Recent and Pending Employment Law Cases Before...

Recent and Pending Employment Law Cases

Before the U.S. Supreme Court

Thomas C. Goldstein

AKIN GUMP STRAUSS HAUER & FELD, L.L.P.

Kevin K. Russell

HOWE & RUSSELL, P.C.

National Conference on Equal Employment Opportunity Law San�Antonio,�Texas�

March�24,�2010�

Pending Cases

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The�following�summary�of�cases�and�decisions�were�prepared�for,�and�published�on,�SCOTUSblog�(www.sctosublog.com)�and�its�companion�site�SCOTUSwiki�(www.scotuswiki.com)�

Ricci, et al. v. DeStefano, et al.From ScotusWiki

Author: David Muraskin

Contents1 Briefs and Documents�2 Pre-Argument Articles �

2.1 Argument Preview�2.2 Background�2.3 Petition for Certiorari�2.4 Merits Briefing�

3 Oral Argument Recap�4 Opinion Analysis�5 Links and further information�

Briefs and Documents

Docket: 07-1428; 08-328

Issue: Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Opinion below (2nd Circuit) �Petition for certiorari (07-1428) �Supplemental brief of petitioners (07-1428) �Petition for certiorari (08-328) �Brief in opposition �Petitioner’s reply �Brief amici curiae of Center for Individual Rights, et al. (in support of petitioners) (08-328) �

Merit briefs

Brief for Petitioner Frank Ricci, Michael Blatchley, Greg Boivin, Gary Carbone, Michael Christoforo, Ryan Divito, Steven Durand, William Gambardella, Brian Jooss, James Kottage, Matthew Marcarelli, Thomas J. Michaels, Sean Patton, Christopher Parker, Edward Riordan, Kevin Roxbee, Timothy Scanlon, Benjamin Vargas, John Vendetto and Mark Vendetto

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Brief for Respondent John Destefano, et al. �Reply Brief for Petitioner Frank Ricci, Michael Blatchley, Greg Boivin, Gary Carbone, Michael Christoforo, Ryan Divito, Steven Durand, William Gambardella, Brian Jooss, James Kottage, Matthew Marcarelli, Thomas J. Michaels, Sean Patton, Christopher Parker, Edward Riordan, Kevin Roxbee, Timothy Scanlon, Benjamin Vargas, John Vendetto and Mark Vendetto

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Amicus briefs

Brief for the Concerned American Firefighters Association, Philadelphia Chapter in Support of Petitioner �

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Brief for Kedar Bhatia in Support of Petitioner �Brief for the CATO Institute, the Reason Foundation, and the Individual Rights Foundation in Support of Petitioner(reprint)

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Brief for the Pacific Legal Foundation and the Center for College Affordability and Productivity in Support of Petitioner

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Brief for Joe Oakley, et al., in Support of Petitioner �Brief for the Center for Individual Rights, The Center for Equal Opportunity and The American Civil Rights Institute in Support of Petitioner

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Brief for National Association of Police Organizations in Support of Petitioner �Brief for Mountain States Legal Foundation in Support of Petitioner �Brief for the Claremont Institute Center for Constitutional Jurisprudence in Support of Petitioner �Brief for Bridgeport Firefighters for Merit Employment in Support of Petitioner �Brief for the Eagle Forum Education and Legal Defense Fund in Support of Petitioner �Brief for the American Civil Rights Union in Support of Petitioner �Brief for the New York Law School Racial Justice Project in Support of Respondent �Brief for the NAACP Legal Defense and Educational Fund in Support of Respondent �Brief for the States of Maryland, Alaska, Arkansas, Iowa, Nevada, and Utah in Support of Respondent �Brief for the Society for Human Resource Management in Support of Respondent �Brief for the International Association of Black Professional Fire Fighters, Black Chief Officers Committee, James Clack, Rocco Forte, Sherman George, Ned Pettus, Paul Stubbs, Robert Wright, Kyle Brink, Ph.D., Jeffrey Crenshaw, Ph.D., and Brian Bellinger, Ph.D., in Support of Respondent (in 07-1428 only)

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Brief for the American Civil Liberties Union, the Mexican American Legal Defense and Education Fund, and LatinoJustice PRLDEF in Support of Respondent

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Brief for the Lawyers Committee for Civil Rights Under Law, the National Urban League, and the National Association for the Advancement of Colored People, and the Equal Justice Society in Support of Respondent

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Brief for the Opportunity Agenda in Support of Respondent �Brief for the National Partnership for Women & Families and the National Women's Law Center in Support of Respondent

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Brief for Industrial-Organizational Psychologists in Support of Respondent �Brief for the International Association of Hispanic Firefighters and Bridgeport Hispanic Firefighters Association in Support of Respondent

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Brief for the International Municipal Lawyers Association, the National League of Cities, the National Association of Counties, and the International Public Management Association for Human Resources in Support of Respondent

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Brief for the Asian American Justice Center, the Asian American Institute, and the Asian Law Caucus, et al.,in Support of Respondent

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Brief for the Anti-Defamation League in Support of Neither Party �Brief for the United States of America in Support of Vacatur and Remand �

Oral argument: Transcript

Decision: Reversed and remanded in an opinion by Justice Kennedy

Pre-Argument Articles

Argument Preview

On Wednesday, April 22, in Ricci v. DeStefano (07-1428 & 08-328), the Court will consider questions relating to the operation and constitutionality of Title VII of the Civil Rights Act of 1964. They include whether an employer’s actions to prevent disparate impact violates Title VII’s prohibition on disparate treatment and whether an employer’s failure to “certify the result of” an employment test, for fear of disparate impact, violates the Equal



Protection Clause. The Court’s answers have the potential to fundamentally alter workplace civil rights protections.

Background

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. (“IOS”) to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the “rule of three,” once test results are “certified,” the Department must promote from the group of applicants achieving the top three scores. Immediate application of the “rule of three” to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants’ pass rate on the lieutenant exam was approximately half of the rate for white applicants – a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams’ results.

Because of these outcomes, the City’s independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed “adverse impact” and that he could design tests with less disparate results and better measuring the jobs’ requirements. He also conceded that the City’s tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS’s “technical validity report.” There is some evidence to suggest IOS was prepared to issue such a report, which might have “establish[ed] the City’s lawful use of the test results.” However, the City argues that IOS never offered to prepare the report nor would the report have “proved” the legality of the test.

Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.

A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City’s action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City’s motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate impact prohibition.

On appeal, the Second Circuit initially affirmed the district court’s opinion summarily but subsequently issued a per curiam opinion that praised the district court for a “thorough, thoughtful, and well-reasoned opinion” and concluded that the City could not be held liable for its failure to certify because it “was simply trying to fulfill its obligations under Title VII.” Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel’s judgment and highlighted the issue for the Supreme Court.

Petition for Certiorari

After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the



first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.

The second petition for cert. begins by contending that the Second Circuit’s decision creates a split over when to apply strict scrutiny. According to petitioners, strict scrutiny always applies to racial classifications, and the Eleventh Circuit has held that an employer’s refusal to create positions because of the applicants’ race is a race-based classification. Here, petitioners explain, the City’s refusal to provide promotions solely based upon petitioners’ race similarly should have been subject to strict scrutiny, and the Second Circuit’s failure to do so warrants certiorari.

Petitioners also characterize the Second Circuit’s decision as one that creates an exemption to the Equal Protection Clause for compliance with Title VII. Citing a series of cases addressing racial quotas, reversing summary judgments in favor of employers, and holding that “top-scores” on employment exams must be promoted, petitioners contend that four other circuits have held that compliance with Title VII cannot justify “race-based preferences.”

Raising the specter of racial quotas, petitioners suggest that the Second Circuit’s opinion will allow for racial balancing, which the Court rejected in City of Richmond v. Croson (1989) and Grutter v. Bollinger (2003), and permit governmental entities to engage in racial politics under the guise of complying with Title VII. This, petitioners argue, provides another reason to apply strict scrutiny, as it enables the courts to “smoke out” racial motives.

Petitioners also contend that the Second Circuit opinion misinterprets Title VII itself. Citing the Court’s opinion in Furnco Construction Corp. v. Waters (1978), they argue that Title VII only permits employers to remedy proven disparate impact – a standard that would require proof that an equally valid and less discriminatory employment test was available. They contend that three other circuits have held that an employer may not refuse to use employment test results based solely on evidence of adverse impact.

Lastly, petitioners argue that § 2000e-2(l) requires employers to honor employment test results. To do otherwise would – as they argue the Fifth Circuit has held – qualify as “otherwise alter[ing]” the results of an employment test, as prohibited by the provision.

Chris Meade, representing the City and its officials, disputed petitioners’ claim of a circuit split over the interpretation of Title VII. According to the respondents, this case is unique: although other circuits have addressed what qualifies as disparate impact, they have never considered whether the failure to certify test scores for fear of a disparate impact suit would violate Title VII. Moreover, the Court’s decisions make clear that Title VII intends for employers, like the City, to take voluntary remedial actions to prevent disparate impact.

In addition, by failing to raise it in the district court, respondents claim petitioners have waived the question of whether § 2000e-2(l) prohibits the City’s action.

On the equal protection issue, respondents contend that the sole issue before the Court is whether the decision not to certify employment test results was a racial classification – an issue over which there is no circuit split. Moreover, compliance with Title VII’s demands is a sufficiently compelling governmental interest to justify race-based classifications.

Merits Briefing

In their brief on the merits, petitioners expand upon the arguments made in their second cert. petition. They argue that all race-based government actions are subject to strict scrutiny. When the City acted to benefit minorities, by dismissing the results of tests that made minority promotions more difficult, it correspondingly denied the white firefighters promotions because they were white – a quintessential race-based government action. Indeed, petitioners note, the City acted solely based upon racially-calibrated test results. Thus, even if the City’s refusal to



certify the results was not racially motivated on its face, it should be found to be merely a pretext to deny whites promotions.

Petitioners next contend that avoiding disparate impact cannot be a compelling governmental interest, as this would allow racial balancing and enable employers to “surrender to organized racial lobbies.” Moreover, even if compliance with Title VII were a compelling interest, the City should be required to show “strong evidence” that disparate impact in fact occurred before acting to prevent that disparate impact. Without such a strong evidentiary requirement, compliance with Title VII would become a back door to discrimination. Because the City in this case acted based only upon evidence of disparity in the test results, without proof that better alternative tests existed, it could not satisfy such a standard. And in any event, the City’s action was not narrowly tailored because it could have provided tutoring for minority applicants or increased the availability of study aids to help minority performance on future examinations.

Finally, petitioners contend that the City’s action violates Title VII. Section 2000e-2(j), they explain, prohibits employers from “granting preferences to prevent racial imbalances.” To comply with this provision, the City must prove that its use of race was lawful. Specifically, to avoid Title VII becoming a pretext for discrimination, Title VII should be read as requiring respondents to show a “strong basis in evidence” that disparate impact did in fact occur. Under this standard, summary judgment was inappropriate based upon the facts uncovered during discovery. Finally, for the reasons stated above, and as shown by its legislative history, § 2000e-2(l) prohibits the City’s action.

The United States filed an amicus brief that was technically a brief in support of petitioners – because it argued for remand – but which largely previewed the arguments that would be made by the respondents. The government urges the Court not to reach the § 2000e-2(l) issue because it was not properly considered by the lower courts; if it does consider the argument, however, it should reject it, as the City’s decision not to certify is not an “alteration” of the test results.

Also the government argues that Congress intended for employers to voluntarily comply with Title VII’s demands. Similarly, Congress could not have provided remedies for disparate treatment and disparate impact if it did not intend, following racially biased test results, for employers to act to prevent that disparate impact. Consequently, under Title VII, an employer can reject such results as long as it has a “good faith” belief that its test produced disparate impact.

According to the government, the City’s decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral – at most a form of disparate impact itself, without evidence of disparate intent. Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a “strong basis in evidence” that the employer, if it had not acted, would have violated Title VII’s demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City’s decision not to certify was unreasonable or pretextual, the case should go before a jury.

In their merits brief, respondents repeat many of the Solicitor General’s arguments in starker terms and argue in favor of summary judgment. The brief warns that accepting petitioners’ arguments would “read disparate impact out of” Title VII. Further, a holding that disparate impact cannot be remedied through dismissing test results would turn evidence of disparate impact into a shield for those who benefit from the disparity.

Respondents next assert that employers can reject test results as long as they have a “good faith” belief that the test caused disparate impact. Anything more, respondents cautions, would strip employers of the flexibility that they need to comply with Title VII. The “strong basis” standard proffered by petitioners derives from affirmative-action cases, which are not analogous to compliance with Title VII. But in any event, the City had precisely the kind of “strong basis in evidence” required by that standard: a prima facie case that the City could be subject to liability. There has been no showing by petitioners that the City’s action was unreasonable or pretextual.



Moreover, the City’s action did not violate Section 2000e-2(l), which merely limits employers’ manipulation of test scores.

The City also argues that it did not violate the Equal Protection Clause, because its action did not create a racial classification. All exam participants, regardless of race, were denied the effects of their score. At worst, the non-certification had a differential effect, which only requires strict scrutiny if the City also had discriminatory intent, which it did not. In addition, because there is a “strong basis” to believe the tests did not measure proper qualifications, any disparate effect is meaningless, as none of the applicants should have obtained the ranked position they did.

Finally, respondents contend that compliance with Title VII is a compelling interest if – as here – there is a “strong basis” to believe the employment test violated the statute. Congress has long endorsed such remedies for disparate impact. Moreover, if the Court were to find that this was not a compelling interest it would undermine other federal law – which, the Court has suggested, establishes a compelling interest.

Oral Argument Recap

On April 22, the Court heard an extended — over seventy minutes long – argument in Ricci v. Destefano. It clearly struggled with the distinctions and analogies presented by the counsel and the Justices themselves, as the argument was marked by the Justices talking over one another and asking counsel to repeat and clarify their responses.

Greg Coleman, representing the petitioners, spent much of his argument attempting to refine his responses to a series of hypotheticals that appeared to be aimed at influencing Justice Kennedy. The first was posed by Justice Kennedy himself, who asked whether the City of New Haven would be permitted to select an employment qualification test solely based upon the test’s record of disparate impact. Mr. Coleman initially responded that if the City were changing the test it currently used, to reduce its disparate impact, the City would need to show that the new test was equally valid and produced less of a disparity. However, when pressed by Justice Kennedy on whether the City’s action in his hypothetical would raise Fourteenth Amendment concerns, Mr. Coleman responded that to select a new employment test to replace its existing test, the City would need to show a “strong basis in evidence” that it would be subject to liability for using its existing test.

Justice Souter, picking up on Justice Kennedy’s hypothetical, asked whether a comparison of the disparate impacts of available tests could establish a strong basis in evidence that using one of the more disparate exams would expose the City to liability and thus it should use another. Mr. Coleman responded that to select a new test, the City would need to show that the new test would be equally valid. Yet, when asked to clarify this response by Justices Scalia and Kennedy, Mr. Coleman elaborated that if the City had not yet implemented any test, it could choose a test solely on the basis of its record of disparate impact.

Based upon this latter answer, Justice Breyer explained that he could not distinguish the City’s action in this case from what Mr. Coleman suggested would be acceptable. Mr. Coleman attempted to differentiate the two situations based upon the fact that, here, the City had already administered the exam when it determined that the results were unacceptable. Mr. Coleman then attempted to bring the argument back to Justice Kennedy’s original hypothetical, emphasizing that the hypothetical could be distinguished from this case because here City chose to “scuttle” the test based on the race of people who passed, rather than on a neutral comparison of tests’ disparate impacts.

Justice Breyer then asked Mr. Coleman to distinguish this case from Justice Kennedy’s hypothetical in Parents Involved (2007), in which he suggested that a school could redraw its district lines to achieve a more diverse student body. Mr. Coleman responded that, unlike New Haven’s conduct, such redistricting would take account of other considerations in addition to race.



Edwin Kneedler, representing the Government as an amicus in favor of vacatur and remand, had the least eventful argument of the day. Justice Scalia pressed Mr. Kneedler to explain how the Court could allow the disparate treatment that occurred in this case as a means to remedy disparate impact. Mr. Kneedler stated that the City would need to show that its fear of disparate impact was reasonable before it could dismiss the test results; thus, the Government was arguing that the case should be remanded to explore that issue. However, if there was a reasonable concern of disparate impact, the City’s actions should not be viewed as illegal disparate treatment. Mr. Kneedler also argued that diversity should be considered a compelling interest; one that cannot be advanced through quotas, but can be advanced by creating new policies to remedy disparate impact as long as those policies affect all races equally.

Christopher Meade, representing the respondents, was immediately pressed by Justice Alito to answer whether a statistical disparity could be sufficient evidence to justify dismissing the results of an administered employment test. Mr. Meade responded that it was possible, but such a disparity would need to be severe. Here, by contrast, the City also had doubts about the validity of the test, leading it to dismiss the results.

The Chief Justice pressed Mr. Meade to explain why the City’s action was not a racial classification. Mr. Meade argued that because the City did not treat any individual differently based upon his or her race, but rather reacted to the racial make-up of the test results as a whole, its conduct was facially neutral. The Chief retorted that Mr. Meade’s response would enable an employer to throw out test results until it obtained the racial outcome it desired. Mr. Meade stated that in such instances, the repeated re-testing could be used as evidence that the employer’s claimed interest in complying with Title VII was merely a pretext, and would undermine the employer’s argument that there were “equally valid less discriminatory alternatives.”

Justice Kennedy then asked whether Title VII prohibits the dismissal of an employment test’s results, after the test had been administered. Mr. Meade said that § 2000-e(l) only prohibits the alteration of individual exam results, not the refusal to certify all results, and that to rule otherwise would unnecessarily tie the hands of employers who could face disparate impact liability based upon the exam’s overall outcomes. Moreover, Mr. Meade later emphasized, the City did not act based upon the racial make-up of the results alone, but also upon its concerns about the validity of the test. Under Title VII, all an employer should be required to show is that there was some basis to believe that further investigation would reveal a Title VII violation. If that is the case, the employer should not be required to certify the test results.

Opinion Analysis

The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven. And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.



While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular. And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.

First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid. Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers. Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites. And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

For other cases, the Court’s ruling applies to Title VII cases a concept borrowed from race cases under the Constitution — that is, that using a race-based selection criterion will be allowed only if it is shown, by “a strong basis in evidence,” to be clearly necessary to remedy past racial discrimination.

When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit.

It will not be enough, the Court made clear, that the employer had a “good faith” belief that the test was skewed against minorities, or a “good faith” fear that it will get sued if it implements the results.

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

Among the large questions that did not get addressed at all, perhaps the most significant was whether government employers, even if they have a ”strong basis in evidence” that they think will justify making a race-based job selection, will escape liability under the Constitution.

The Court said explicitly that it was not ruling on the question of whether compliance with that standard would satisfy the Constitution’s command of racial equality — in other words, whether a government employer genuinely worried that accepting test results would work against minorities can escape a constitutional violation if it casts aside the results and thus shuts out whites who scored better.

(The constitutional uncertainty only affects government, not private employers, because only government employers are bound by the Constitution.)



Links and further information Implication of Ricci Argument for School Diversity QuestionRetrieved from "http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et_al."

This page was last modified 17:11, 28 January 2010.�



Ashcroft, Former ATT'Y Gen. v. IqbalFrom ScotusWiki

Author: Lyle Denniston


2.1 Argument Preview�3 Oral Argument Recap�4 Opinion Analysis�5 Links and further information �

5.1 From the Blogosphere�5.2 SCOTUSblog�


Docket: 07-1015 and 07-1150

Issue: Whether current and former federal officials, including FBI Director Robert Mueller and former Attorney General John Ashcroft, are entitled to qualified immunity against allegations they knew of or condoned racial and religious discrimination against individuals detained in the wake of the September 11 attacks.

Opinion below (2nd Circuit) �Petition for certiorari (Federal government) �Petition for certiorari (Sawyer, former Bureau of Prisons officials) �Brief in opposition �Petitioner’s reply (Ashcroft) �Petitioner’s reply (Sawyer) �Brief amici curiae of former Attorney General William P. Barr, et al. (in support of the petition) �

Merit briefs

Brief for Petitioner John Ashcroft, Former Attorney General of the United States and Robert Mueller, Director of the Federal Bureau of Investigation

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Brief for Respondent Javaid Iqbal, et al. �Brief for Respondents Michael Rolince; Former Chief of the Federal Bureau of Investigation; International Terrorism Operations; Section; Counterterrorism Division; Kenneth Maxwell; Former Assistant; Special Agent in Charge; New York Field Office; Federal Bureau of Investigation in Support of Reversal

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Brief of Dennis Hasty as Respondent Supporting Petitioners �Reply Brief for Petitioner John Ashcroft, Former Attorney General of the United States and Robert Mueller, Director of the Federal Bureau of Investigation

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Amicus briefs

Brief for William P. Barr, Griffin Bell, Benjamin R. Civiletti, Edwin Meese III, William S. Sessions, Richard Thornburgh, and the Washington Legal Foundation in Support of Petitioner

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Brief for National Civil Rights Organizations in Support of Respondent �Brief for The Sikh Coalition, the American-Arab Anti-Discrimination Committee, Discrimination and National Security Initiative, the Muslim Public Affairs Council, the Sikh American Legal Defense and Education Fund, the Sikh Council on Religion and Education, the South Asian Americans Leading Together and United Sikhs in Support of Respondent

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Brief for American Association for Justice in Support of Respondent �Brief for the Japanese American Citizens League, the Pakistani American Public Affairs Committee, the Sikh American Legal Defense and Education Fund, the National Korean American Service & Education Consortium, and Muslim Advocates in Support of Respondent

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Brief for Ibrahim Turkmen, Asif-Ur-Rehman Saffi, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, Akhil Sachdeva and Ashraf Ibrahim in Support of Respondent

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Oral Argument: Transcript

Decision: Reversed and remanded in an opinion by Justice Kennedy


Argument Preview

By now, the Supreme Court is intimately familiar with many of the legal issues stirred up by the government's response to the Sept. 11, 2001, terrorist attacks on the U.S. But, for the first time, in Ashcroft and Mueller v. Iqbal, it will confront an attempt to hold high-levels officials to account, personally, for their actions after the attacks. The question, though, is not whether they did engage in wrongdoing, but rather what proof former suspects must offer in order to proceed with their claims for damages against officials of Cabinet or near-Cabinet rank. Thus, it is, in legal terms, a case about the necessary ingredients of a lawsuit, not its outcome. That case, and others like it, have not gone to trial.

Background

In the months after the 2001 terrorist strikes, the FBI and other federal agencies pursued a massive investigation, inside the U.S. and elsewhere, to locate individuals involved and to gather information to head off further attacks. Agents reacted to some 96,000 tips supposedly providing information that would aid in the investigation, although later revelations indicated that many were exceedingly flimsy tips. In the early stages of that sweeping probe, the FBI rounded up thousands of individuals – most, if not all of them, were non-citizen Muslims or of Arab ancestry – and held them as suspects “of interest.” Few criminal prosecutions resulted, but a number of those detainees were later exported.

Lawsuits by former detainees have arisen, including cases filed by some of those who have been deported. They have focused more on how the detainees were treated after being rounded up than on the legality of their original detention. The fate of those lawsuits is likely to depend, in significant ways, on the outcome of a case now before the Supreme Court, by former Attorney General John D. Ashcroft and then-and-still FBI Director Robert Mueller.

According to the detainees' claims, individuals rounded up in the New York metropolitan area on suspicion of criminal or immigration violations were treated as individuals “of interest” if they were Muslims. They were then put into a special part of the Metropolitan Detention Center in Brooklyn, set up especially for those captured in the FBI sweeps. In that unit, their lawsuits contend, they were suspected to harsh conditions – severe physical and verbal abuse, unnecessary and abusive strip and body cavity searches, extended periods in solitary confinement, deliberate interference with their exercise of their Muslim faith, and interference with their attempts to communicate with lawyers. They also asserted that they were denied adequate exercise, nutrition and medical treatment.



The lawsuits not only were aimed at Detention Center officials with whom the individuals had direct conduct, but also at Justice Department and FBI officials at various levels, and, at the top of the hierarchy, John Ashcroft, Attorney General at the time, and FBI Director Mueller. Although other officials involved have sought to appeal to the Supreme Court, only the petition for review by Ashcroft and Mueller is to be heard, at this point, by the Justices.

In broad terms, the detainees' lawsuits contended that Ashcroft and Mueller helped set up and to implement policies and procedures at the Detention Center, including discriminating against the detainees who were Arab Muslims, and were aware that such individuals were being held there and mistreated, solely because of their religious or ethnic background. The lawsuits claimed violations of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. They sought damages under the Supreme Court's 1971decision in Bivens v. Six Unknown Agents, and made a variety of claims of violations of the Alien Tort Statute, the Religious Freedom Restoration Act, civil rights law, and the Federal Tort Claims Act.

Before the cases moved forward to the evidence-gathering stage, Ashcroft, Mueller and others who were sued asked the federal judge to dismiss the lawsuits entirely, claiming, among other arguments, that they had “qualified immunity” to the lawsuits and thus they should not go any further. The District Court ruled that the constitutional claims and the claim of a conspiracy to violate civil rights could proceed, finding that the detainees had offered sufficient information to allow them at least to go through the “discovery” (evidence-gathering) phase, and perhaps up to the point of seeking summary judgment before trial.

The Second Circuit Court agreed, finding – as to Ashcroft and Mueller – that the lawsuits made adequate claims that those two officials had a discriminatory motive for their roles, and that, because of their positions, they were probably aware of and accountable for the discrimination and the abuse. The Circuit Court relied upon a standard that such allegations need only provide enough facts to make them “plausible.” It said that, after a period of “carefully controlled and limited discovery,” Ashcroft and Mueller could renew their pleas for outright dismissal, before a trial started.

Among the lawsuits was one filed by Javaid Iqbal, a Pakistani national and Muslim, and Ehab Elmaghraby, an Egyptian national and Muslim. Both were held in the special detention unit at the Brooklyn facility, and both contended that they were subjected to the abuse that was common in that unit. Both ultimately pleaded guilty to criminal charges – Javaid to identity fraud, Elmaghraby to using a counterfeit identification. Javaid was deported to Pakistan, and later filed his lawsuit, along with Elmaghraby. Before the Second Circuit Court ruling, Elmaghraby settled his part of the lawsuit as to the Federal Tort Claims Act claim, in return for a payment by the government of $300,000. Thus, as the case reached the Second Circuit and then the Supreme Court, it involved only Iqbal, who at the time he was picked up in November 2001 was a cable TV installer on Long Island.

In February 2008, Ashcroft, no long Attorney General, and Mueller filed their petition in the Supreme Court.

Petition for Cetiorari

Ashcroft and Mueller, in their petition independent from other officials who had been sued, raised two issues: may a lawsuit under the Bivens precedent against a Cabinet or near-Cabinet level officer proceed despite an immunity claim, if it is based on “conclusory allegations” of actually condoning or agreeing to allegedly unconstitutional acts by subordinates, and may such a high-level officer be held personally liable on a theory that, even if he lacked actual knowledge, he at least had “constructive notice” of the discrimination by subordinates.

Basically, the petition urged the Supreme Court to lay down a rule that, when a top-tier government official is claiming immunity to a personal lawsuit, the courts should apply a more rigorous standard for the claims that must be made for the suit to survive a dismissal motion. The Second Circuit, it contended, was wrong in accepting as sufficient a complaint that offered enough factual allegations as to make the claims of illegality plausible. The petition noted that the Circuit Court had confessed to struggling over the right standard to be used in the face of a



qualified immunity plea. The Supreme Court's precedents do not support a mere “plausibility” standard, and the Second Circuit ruling on the point conflicts with other courts of appeals' rulings, it argued.

The petition, in keeping with Justice Department pleas in other war-on-terrorism cases in the courts, seeks to turn the Iqbal case into a serious test of immunity doctrine in the national security context. What was unfolding in late 2001 law, the two officials contended, was “an unprecedented national-security crisis.” That is the setting, it went on, in which the protection of qualified immunity is “most acutely needed.” The Circuit Court ruling, it asserted, would “largely eviscerate” those protections.

Iqbal's attorneys countered that the Supreme Court should not even hear the case. Their response contended that there was no Circuit Court conflict on the first point – the level of factual claims needed to keep the case alive, and the split on the second issue – whether constructive notice is sufficient to justify the lawsuit's proceeding – is not implicated because Iqbal's complaint allegy es that Ashcroft and Mueller actually had knowledge of the abuse that was going on at the Detention Center on their watch.

The government's appeal was supported by three former U.S. Attorneys General, two former Directors of the FBI, and the Washington Legal Foundation, a legal advocacy group that usually pursued conservative causes. They expressed fear that the Second Circuit ruling restricts qualified immunity doctrine “to such an extent that government officials will be unable to win pre-discovery dismissal of insubstantial constitutional claims.”

The Court granted review of the case on June 16. The other officials who were sued along with Ashcroft and Mueller are treated as respondents, entitled under Supreme Court rules to file papers in the case. They, too, supported Supreme Court review.

Merits Briefs

Ashcroft and Mueller argued, in their brief on the merits, that the crucial issue in this case is whether, in a case involving top government officials serving during a time of crisis, the “plausibility” standard for making claims is, in its usual form, sufficient. Because officials at high rank are less likely in general to be personally involved in wrongdoing by subordinates “far down the bureaucratic chain of command,” it will be harder to pursue a claim based on mere plausibility of their involvement, the brief argued. In that context, it added, “to survive a motion to dismiss, a plaintiff must plead facts sufficient to render the personal involvement and liability of such a high-ranking official plausible.”

With the crisis context firmly in mind, the brief said, Iqbal's “conclusory allegations” against Ashcroft and Mueller “are inadequate to suggest that [the officials] themselves were personally involved in the unlawful conduct of lower-level officials or otherwise violated clearly established law.” Thus, the two key officers are entitled to immunity, the brief argued.

On the second point, the brief contended that it is entirely inappropriate, for high-level officials, to hold them to standards of supervisory liability developed for use in civil rights claims against state and local government officers. The Supreme Court, it asserted, has been wary of expanding the scope of officials' liability for constitutional violations, and has not embraced the notion of vicarious liability. Iqbal's case, it added, is focused on claims against lower-level officials, and there is no claim, beyond that of “constructive notice,” that Ashcroft and Mueller were involved.

Ashcroft and Mueller again have the support, at the merits stage, of the former Justice Department officials. And the other officials sued have filed their own merits briefs, making similar arguments for lower officials who nonetheless had supervisory positions. “High-ranking non-cabinet supervisory officials...should be treated no differently. Because FBI officials are also subject to frivolous lawsuits, qualified immunity is as important to those supervisors as it is to cabinet-level officials,” one of those briefs asserted.



Iqbal's brief on the merits, at the outset, makes a renewed plea that the Court lacks jurisdiction to decide the opening question – on the adequacy of the pleadings against Ashcroft and Mueller. The District Court's conclusion that Iqbal's complaint was sufficient to allow the case to proceed, the brief said, is not a final decision. While there is an exception allowing pre-trial appeals in qualified immunity cases, the brief asserted that the exception does not apply here because the two officials do not seek review of the Second Circuit “determination that they behaved unreasonably in light of clearly established law.” The brief went on to suggest that Ashcroft and Mueller have waived the question of their constructive knowledge in lower courts, so cannot assert it now.

In any event, the Iqbal document contends that the Ashcroft and Mueller brief is predicated on “hyperbole,” because the District Court has only authorized discovery from them after all other discovery has been completed, and then only if that other discovery demonstrates a need to question Ashcroft and Mueller. The brief also defended the clarify of their allegations, saying they were quite sufficient. And it argued that the two officials are seeking a heightened pleading standard, based solely on their present or former rank in government. Federal procedure rules do not make such distinctions, the brief asserted.

Seven other detainees who were held at the Detention Center have filed an amicus brief supporting Iqbal. Their case is now proceeding in lower courts. They noted in their brief that a recent Justice Department probe of the post-9/11 roundup of Muslims found significant abuses, buttressing their claims of a policy in support of such mistreatment. Also supporting Iqbal are various advocacy groups for ethnic minorities, as well as civil liberties organizations and professors of court procedure.

The Court has scheduled argument in the case for 10 a.m. on Wednesday, Dec. 10.

Analysis

The temptation is strong to assume that the Supreme Court accepted review of the case, in its pre-trial stage, with the likely intent of overturning the Second Circuit. It was not deterred, at the petition stage, by Iqbal's argument that the case had reached the Court prematurely, and that there were no issues worthy of the Court's time at this point. The Court, while it retains the option after full briefing and argument to find it has no jurisdiction, that seems an unlikely prospect.

If it does go forward to a decision on the merits, observers will be watching closely to see whether the Justices are tempted to write a new rule requiring more rigorous pleading threshholds applying either to high-level officials only, or that only in times of “national security crisis.” The Court majority, in other cases arising out of the “war on terrorism,” has shown some deference to the national security emphasis that the government has asserted, but has not been uncritical in doing so. Indeed, its other war-on-terrorism rulings may well have taught at least some of the Justices to be at least moderately skeptical of the special priority asserted for Executive wartime powers.

If the Court sees the case as fundamentally one about the federal court rules in general, it may be tempted – while still ruling for Ashcroft and Mueller – to decide the case more modestly. It has shown some diligence in policing the claims made against officials seeking qualified immunity, and may do so again. At a minimum, it may well heed the plea of Second Circuit Judge Jose Cabranes, in concurrence in Iqbal's case, for the Court to speak more clearly on pleading standards as a general matter.

The Court is expected to decide the case by next spring or early summer.

Oral Argument Recap

With Chief Justice John G. Roberts, Jr., discussing what might be a For-9/11-Only rule to limit lawsuits against high government officials during crisis times, the Supreme Court on Wednesday seemed to be edging toward embracing a new form of legal immunity. A majority of Justices seemed concerned about requiring officials of Cabinet or near-Cabinet level to answer in court for the way they react in the immediate, perhaps-frenzied



aftermath of a severe threat to national security. The case of Ashcroft v. Iqbal (07-1015) provided the platform for voicing those worries.

The government appeal in the case seeks to spare former Attorney General John D. Ashcroft and present FBI Director Robert S. Mueller from any potential obligation to give evidence in a group of lawsuits in federal courts claiming that they were at least partly to blame for serious physical and mental abuse of Arab Muslims picked up and detained in harsh conditions in a Brooklyn, N.Y., jail in the weeks and months after the terrorist attacks on theU.S. on Sept. 11, 2001.

While U.S. Solicitor General Gregory G. Garre insisted that Ashcroft and Mueller were not asking for any special burdens on lawyers trying to make a case against high-level officials, Garre did explicitly argue that “context does matter” in considering limits on such lawsuits– specifically, the context of efforts of top officials who had acted to “protect the effective functioning of our government” following a terrorist attack.

That argument got the most enthusiastic embrace from the Chief Justice, who repeatedly attempted to get a lawyer for a post-9/11 detainee to concede that there should be a more rigorous standard for making claims of wrongdoing against the Attorney General and the FBI director “in the wake of 9/11.” The duty to plead such a case in the formal claims that launch the lawsuit, Roberts went on, perhaps should be more demanding because context does matter.

When the counsel for detainee Javaid Iqdal, Alexander A. Reinert of Yonkers, N.Y., argued that the level of pleading required should be no higher when top government officials were being sued than when, say, a corporatepresident was the target, the Chief Justice seemed genuinely put off.

That comparison had arisen because the Court, in one of the hypotheticals pursued throughout the hearing, explored the differences or similarities in the standard of pleading between the post-9/11 lawsuits against Ashcroft and Mueller and a fictitious lawsuit in which the president of the Coca-Cola company was being sued on a claim that he was to blame for dead mice being found in the bottles of Coke produced at his plants.

Justice Stephen G. Breyer was the originator of that hypothetical, as he sought answers from both Garre and Reinert about when judges in federal court could shut down the attempts to get evidence directly from high-ranking officials for something that may have been done by subordinates. When Reinert and some of the Justices suggested that there were existing protections against abuse of the evidence-gathering process in a lawsuit, Garre — supported energetically by the Chief Justice — ridiculed those as inadequate. What is necessary, Garre said, was to have the case against the officials dismissed outright, rather than leave it to trial judges to protect them from harassing evidence demands that would divert them from their government duties.

Breyer, while giving no sign that he agreed with Garre that shutting down the 9/11 lawsuit altogether was the right outcome, appeared genuinely troubled about high officials having to face perhaps ten years of evidence demands, if there were no way for them to escape that. Justice John Paul Stevens seemed to share some of the same concern.

If the Chief Justice were seeking to build a majority to set some higher hurdles for lawsuits such as this one, he very likely would be able to count on Justice Antonin Scalia. Although not as active as some of the other Justices, Scalia left little doubt that he was attracted to Garre’s argument that Ashcroft and Mueller were not personally responsible for any abuse of detainees, but had devised only a completely legal policy of temporary detention. Scilalia also suggested that the ability of high-level officials to do their jobs undiverted by lawsuits should not have to depend upon how a single federal judge felt about the suit’s continuation.

Justice Samuel A. Alito, Jr., was deeply skeptical of the factual basis for the claims against Ashcroft and Mueller.

Justice Anthony M. Kennedy said little, but did comment that he shared some of Breyer’s concern about the need to cut off evidence demands in cases that might not have a lot of substance, at least at the outset.



Only Justices Ruth Bader Ginsburg and David H. Souter made comments suggesting that they thought the claims made in Iqbal’s lawsuit against high officials probably passed the threshhold of pleading requirements, and that there may well be some substance to those claims.

Justice Clarence Thomas, following his usual practice, asked no questions and made no comments.

The Court is expected to decide the case sometime in late spring.

Opinion Analysis

Without mentioning the current controversy over holding high officials of the Bush Administration legally to blame for torture allegedly carried out against detainees held overseas by the U.S. military or Central Intelligence Agency, the Supreme Court on Monday signaled that it may be very difficult to hold them accountable in some future lawsuit by a detainee claiming such abuse. The Court ruled that high officials cannot be held responsible for the actions of individuals down in the ranks, but can only be found liable for their own personal misconduct.

That does not amount to a legal pass, but it does require anyone who would seek damages for being unconstitutionally abused while in custody (military or otherwise) to come forth with specific proof that high-ranking government officials directly and personally committed illegal acts. This was accomplished without explicitly fashioning a new form of legal immunity to apply in the aftermath of a terrorist attack.

Much attention to the Court’s 5-4 ruling in Ashcroft v. Iqbal (07-1915) will be focused, of course, on whether former Attorney General John D. Ashcroft and current FBI Director Robert Mueller will ultimately be held accountable for the FBI roundup within the U.S. and subsequent abuse of men of Arab descent in the immediate wake of the Sept. 11, 2001, attacks.

But the larger meaning of the decision may well turn out to be the flat rejection of the notion of liability for the misconduct of subordinates — an issue, according to Monday’s dissent, that the Court reached out on its own to address even after both sides conceded there might sometimes be high-level liability for subordinates’ unconstitutional acts.

Why it may be somewhat puzzling that the Court would take on an issue beyond what the case seemed to require, there may be a clue within the majority opinion written by Justice Anthony M. Kennedy. The opinion embraces the concerns expressed by a lower court judge over government officials being challenged for their response to “a national and international security emergency unprecedented in the histwory of the American Republic.”

One of the questions over-hanging the Ashcroft case throughout its journey to and through the Supreme Court was whether the Justices would be tempted — by the post-9/11 atmospherics — to create some special crisis-based legal shield for official actions. They may now have done just that, even though most of the language of the Kennedy opinion is more general, defining what is required to keep a case in federal court from being dismissed at the beginning when the claim is that government officials have acted unconstitutionally.

The Iqbal case, as it reached the Supreme Court, was a civil rights damages lawsuit aimed directly at Ashcroft and FBI chief Mueller by Javald Iqbal, a cable TV installer who lived in Hicksville on New York’s Long Island until rounded up in the wake of 9/11 (he is a Muslim Pakistani) along with more than 1,000 others, mostly men of Arabic descent.

With Monday’s ruling finding by the Court majority that his lawsuit was too thin on facts, his case returns to the Second Circuit Court, which had previously allowed it to proceed. It will be up to that Court, in the first instance, to decide whether to give Iqbal a chance to come up with more facts to support his claim against Ashcroft and Mueller. But, if the Circuit Court does allow that, he will have to marshal facts that charge Ashcroft and Mueller with direct participation in unconstitutional actions against him personally. However much he claims to have been



tortured or abused or to have had his Muslim faith defiled while in custody after the FBI “sweep,” he could not win on the point unless he can put the two high officials in the very midst of that mistreatment. A claim of mere knowledge that it was going on, apparently, would not be enough. Neither, it appears would a claim that they were deliberately indifferent to what was going on. Monday’s decision already has found such assertions to be insufficient.

As the Court majority read Iqbal’s lawsuit, in the form in which it was filed, they concluded that “all it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

Within that perception of what Iqbal was claiming, the majority found it unremarkable that, since the 9/11 terrorists were Arab Muslims associated with the Al Qaeda terrorist network, it would occur that a roundup after that attack would focus on Arab Muslims. That harsher impact on men of one faith and ethnic identity, Justice Kennedy wrote, can be explained by reasons other than religious or ethnic bias.

Because the Iqbal case involved an FBI “sweep” carried out within the U.S. against individuals living here legally, it says nothing directly about what an alien detainee claiming torture or abuse at some U.S. detention site overseas — including Guantanamo — would have to say in a lawsuit against high officials to keep the case from being dismissed. It seems doubtful, though, that the Court would relax the evidence-pleading standard it has adopted for a domestic case for use in an overseas-based case.

It no doubt will fall first to the lower courts to spell out when, if ever, a high official has such a deep involvement in torture or abuse will face legally accountability for the actions.

Links and further information

National Journal: Plaintiff lawyers see broad impact of high court's decisions on detainees

ACSblog: Examining Congress’ Reaction to High Court’s Reach

From the Blogosphere

Concurring Opinions: Eight Months of Iqbal (January 20, 2010) �PrawfsBlawg: How do you solve a problem like Iqbal? (January 21, 2010) �

SCOTUSblog

Court to rule on right to sue Cabinet officers �Conference Call: DOJ Seeks Immunity for Ashcroft, Mueller �

[[Category:]]

Retrieved from "http://www.scotuswiki.com/index.php?title=Ashcroft%2C_Former_ATT%27Y_Gen._v._Iqbal"

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Gross v. FBL Financial Services, Inc.From ScotusWiki

Author: Kevin K. Russell


2.1 Argument Preview�3 Oral Argument Recap�4 Opinion Analysis�5 Links and further information�


Docket: 08-441

Issue: Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.

Opinion below (8th Circuit) �Petition for certiorari �Brief in opposition �Petitioner’s reply �Brief amicus curiae of National Employment Lawyers Association (in support of petitioner) �

Merit briefs

Brief for Petitioner Jack Gross �Brief for Respondent FBL Financial Services, Inc. �Reply Brief for Petitioner Jack Gross �

Amicus Briefs

Brief for AARP in Support of Petitioner �Brief for The American Association for Justice in Support of Petitioner �Brief for the Lawyers’ Committee for Civil Rights Under Law, the Asian American Justice Center, the Mexican American Legal Defense and Education Fund, the National Partnership for Women & Families, and the National Women’s Law Centerin Support of Petitioner

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Brief for The National Employment Lawyers Association in Support of Petitioner �Brief for The United States of America in Support of Petitioner �Brief for Equal Employment Advisory Council in Support of Respondent �Brief for National School Boards Association in Support of Respondent �Brief for the National Federation of Independent Business Small Business Legal Center and Society for Human Resource Management in Support of Respondent

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Brief for the Chamber of Commerce of the United States of America in Support of Respondent �

Page 1 of 4Gross v. FBL Financial Services, Inc. - ScotusWiki

1/28/2010http://www.scotuswiki.com/index.php?title=Gross_v._FBL_Fina...

Oral Argument: Transcript\

Opinion: VACATED AND REMANDED in an opinion by Justice Thomas


Argument Preview

On Tuesday morning, the Court will hear argument in Gross v. FBL Financial Services, Inc., No. 08-441, a case regarding the burden of proof in “mixed motive” cases under the Age Discrimination in Employment Act (ADEA). The Court granted certiorari on the question “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” One of the most significant issues to have arisen during the briefing in this case - and sure to be a subject of significance at oral argument - is whether the Court should limit itself to that question or decide, instead, a much broader question of much greater significance - namely, whether to overrule its decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and hold instead that the plaintiff must always bear the burden of proof in mixed motive cases. The employee-petitioner will be represented by Eric Schnapper of the School of Law at the University of Washington. The employer-respondent will be represented by Carter Phillips of Sidley Austin, LLP. [Disclosure: I consulted with petitioners in this case.]

'Background

1. Petitioner Jack Gross sued his employer alleging intentional age discrimination in violation of the ADEA, asserting that he was demoted because of his age. As in many intentional discrimination cases, the employer both denied that it took age into consideration at all and argued that even if it did, it also had legitimate reasons for changing Gross’s position. The question then arises - if the employer would have taken the same action anyway, regardless of its discriminatory motive, should it be held liable for intentional discrimination because it also had an illegal motive? And if not, who should bear the burden of proving what the employer would have done absent the discriminatory motive?

The Supreme Court set the rules for such “mixed motive” cases under Title VII in Price Waterhouse. It held that the answer to the first question is “No” - the employer is not liable if it would have taken the same action anyway,despite the discriminatory motive. A majority of the Justices further agreed (albeit in fractured opinions) that upon an appropriate showing by the plaintiff, the burden should shift to the defendant to prove that it would have taken the same action anyway.

Congress subsequently overruled Price Waterhouse to the extent that it held that an employer who makes the required showing is not liable at all for the discrimination. Instead, the 1991 Civil Rights Act Amendments provide that the employer is liable, but is not subject to lesser remedies. Congress did not, however, apply this new provision to the ADEA.

2. In this case, the district court instructed the jury that if the plaintiff proved by a preponderance of the evidence -direct or otherwise - that age was a motivating factor in the decision to demote him, then the burden of persuasion shifted to the defendant to prove it would have taken the same action absent the prohibited consideration of age.

On appeal, the Eighth Circuit reversed, holding that the burden of persuasion should shift to the defendant only if the plaintiff proved that age was a motivating factor by presenting direct evidence of age bias. When the plaintiff relies on circumstantial evidence, the court held, the burden of proof remains on the plaintiff, who must demonstrate that the employer would not have demoted him but for his age.



3. Gross petitioned for certiorari, asking the Court to decide whether the burden of proof in mixed motive cases shifts to the employer only when direct evidence of bias is presented, or whether it shifts in all cases, regardless of the type of evidence.

Respondents’ brief in opposition focused on disputing that there was a circuit split on the question, or whether this case was an appropriate vehicle to resolve the asserted split. The Court eventually granted certiorari.

Arguments

1. Petitioner argues that nothing in the Court’s decision in Price Waterhouse turned on whether the plaintiff presents direct or indirect evidence. Moreover, he points to the Court’s recent decision Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003), as establishing a general rule that unless Congress clearly states otherwise, nothing in the law turns on whether evidence is direct or circumstantial. And nothing in the language of the ADEA satisfies that standard. In addition, attempting to define what, exactly, constitutes “direct” evidence would be difficult, he claims.

Petitioner also disputes the court of appeals’ reliance on Justice O’Connor’s concurring opinion in PriceWaterhouse, which the court of appeals read to require direct evidence before shifting the burden of persuasion to the employer. Her vote, petitioner argues, was not necessary to the disposition of the case because Justice White provided the fifth vote and did not endorse any such requirement.

2. The Solicitor General filed an amicus brief in support of petitioner.

3. After certiorari was granted, respondents hired new Supreme Court counsel, who filed a brief taking an even more aggressive position than had the court of appeals. In particular, respondent’s principle argument is that the Court should overrule Price Waterhouse in its entirety and hold that the plaintiff bears the burden of disproving the employer’s assertion that it would have taken the same action anyway, in all cases (direct or circumstantial). Causation is an element of the plaintiff’s case-in-chief, respondent argues, and the plaintiff ordinarily bears the burden of persuasion with respect to all the elements of his claim. Causation should not be different. And to prove causation, the plaintiff must show that the unlawful motive was the but-for cause of his injury, which means that he must prove that the employer would not have taken the challenged action but-for its discriminatory motive.

Respondent acknowledges that this view requires overruling Price Waterhouse, but the decision was badly fractured to begin with, and has proven unworkable in practice, it argues.

In any event, even if Price Waterhouse is not overruled, respondent argues, both Justice O’Connor and Justice White (one of whom provided the fifth vote) required an employee to make some sort of heightened showing before the burden should shift to the defendant - Justice O’Connor required “direct” evidence and Justice White required “substantial” evidence. However, respondent does not argue that “direct” evidence means “not circumstantial.” Instead, it argues that “direct evidence” means evidence that is “related directly to the challenged decision” beyond the indirect showing required to establish a prima facie case. And because the evidence in this case was neither “substantial” nor “direct,” respondent argues, the decision below should be affirmed.

4. In his reply brief, petitioner argues that the continuing validity of Price Waterhouse is not properly before the Court. The question is not within the Question Presented and the issue was not raised by the respondent in its Brief in Opposition. Among other things, petitioner argues, by seeking to introduce the issue for the first time in its brief on the merits, respondent deprived the Solicitor General of an opportunity to address the issue.

In any case, petitioner asserts, Price Waterhouse should not be overruled because it has provided a stable background rule against which courts have operated for many years and against which Congress has acted in enacting subsequent legislation, assuming Price Waterhouse would provide the governing standard.



Petitioner acknowledges that Congress did not mention the ADEA when it overruled Price Waterhouse in part in the 1991 Civil Rights Amendment (which applied only to Title VII). But that simply means, he says, that Congress intended Price Waterhouse to apply without modification to statutes like the ADEA, which is what the lower courts have unanimously assumed.

Petitioner further repeats its denial that Justice O’Connor’s opinion in Pricewater House is controlling, and argues that Justice White did not understand “substantial factor” to be any different than the “motivating factor” referred to by the plurality.

Analysis

Respondent’s frontal attack on Price Waterhouse is an interesting strategic decision. On the one hand, it may reflect respondent’s awareness (particularly with the assistance of new and very experienced Supreme Court counsel) that the Court is unlikely to be attracted to a legal rule that turns on whether the plaintiff adduces “direct” or “non-direct” evidence, particularly in light of Desert Palace. Thus, while stare decisis always makes it difficult to argue against the grain of a prior Supreme Court decision, it may be that respondent’s most likely path to victory is over the carcass of that prior decision.

In addition, the fact that Price Waterhouse did not produce a majority decision, and has never been applied by the Supreme Court to the ADEA, makes the argument from stare decisis somewhat weaker. The decision to attack Price Waterhouse may also reflect respondent’s view that a majority of the current Court would decide the case differently, if confronted by the question for the first time today. Indeed, respondent’s arguments in favor of requiring but-for causation, and requiring the plaintiff to prove it, seem at least to me significantly stronger than its argument in favor of adopting Justice O’Connor’s apparent position in Price Waterhouse.

On the other hand, the Supreme Court has long applied essentially the same rule in constitutional cases, see Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), making it somewhat harder to believe that the Court would either make a distinction between statutory and constitutional cases, or overrule Mt. Healthy as well, given how much water is under the bridge on that case. Moreover, Mt. Healthy was not a fractured decision - quite to the contrary, then-Chief Justice Rehnquist wrote the decision for a unanimous Court.

In addition, the fact that respondents did not raise this argument in their Brief in Opposition stands as a significant impediment to the Court even considering the question. A respondent is entitled to defend the judgment below on any ground apparent in the record. But the Court generally expects that if a respondent is going to raise an argument that would preclude it from reaching the question presented by the petition, it should say so openly and early, so the Court can decide whether it wants to address that antecedent question (and if not, possibly deny certiorari) and to allow full briefing on the question by the other party and amici (especially the United States). In this case, it seems unlikely that anything nefarious was afoot - in all likelihood, the idea emerged when new counsel took a hard look at the case after cert. was granted. But that does little to mitigate the problems that occur when a new significant argument is raised for the first time in the middle of the merits stage.

Oral Argument Recap

Opinion Analysis

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Pending Requests for the View of the Solicitor General

Cases In Which The Supreme Court Has Called For The Views Of The Solicitor General

Thompson v. North American Stainless, No. 09-291

Question Presented: Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

Background: Plaintiff Eric Thompson worked as an engineer at a steel company. In 2002, his fiancée, who also worked at the firm, filed a charge of sex discrimination by her supervisor. A month or so after the firm was notified of the charge by the EEOC, it terminated Thompson. He filed suit, alleging that he was terminated in retaliation for his fiancée’s discrimination charge. The company denied the charge, but also argued that Title VII forbids only retaliation against the worker who filed the charge (in this case, Thompson’s fiancée). Eventually, the Sixth Circuit, sitting en banc, agreed and ordered Thompson’s retaliation claim dismissed.

The petition asserts that there is a conflict in the courts of appeals over whether (a) it violates Title VII to retaliate against an employee who filed an EEOC charge by taking adverse action against a relative of the worker; and (b) if so, whether the relative (or only the employee who filed the charge) may bring an action to challenge such retaliation.

On December 14, 2009, the Court invited the Solicitor General to file a brief setting out the views of the United States.

Straub v. Proctor Hospital, No. 09-400

Question Presented: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

Background: Plaintiff Straub sued his employer, alleging he was discharged by his employer because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act. His case consisted largely of evidence showing that his immediate supervisor wanted him fired because his military duties sometimes required modifications of his work schedule. He alleged that this supervisor ultimately filed a series of false disciplinary reports in order to get him fired. But the termination decision was ultimately by a higher level official, based on the disciplinary charges.

The case thus involves the so-called “catspaw theory” of liability under antidiscrimination statutes, under which an employee attempts to establish liability based on the discriminatory animus of individuals who influenced the final decisionmaker, but did not make the final decision themselves. The Seventh Circuit held that because the final decisionmaker was not alleged to be biased against servicemembers, Straub could rely on the discriminatory animus of subordinates only if those subordinates exercised “singular influence” over the decision to terminate. And so long as the final decisionmaker relies on at least some information from other sources, no such “singular influence” can be established.

The Supreme Court granted certiorari in a Title VII catspaw case in 2007, but the petitioner dismissed the petition prior to argument.

The Court called for the views of the Solicitor General on November 9, 2009.

Chamber of Commerce v. Candelaria, No. 09-115

Questions Presented:

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).

2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Background: An Arizona statute provides that state employers who knowingly hire undocumented workers can have their business licenses revoked. It also requires employers to use the federal E-Verify program to check the status of every employee they hire. The Chamber of Commerce and a coalition of interest groups brought suit to challenge the constitutionality of the state statute. They argued that the statute was expressly preempted by the Immigration Reform and Control Act of 1986, which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ or recruit or refer for a fee for employment, unauthorized aliens.” The coalition further argued that at the very least the requirement that employer’s use E-Verify was pre-empted by the statute establishing the E-Verify system, which expressly made employer use of the system voluntary.

The Ninth Circuit disagreed. It held that the Arizona law fell within the exception for “licensing or similar laws” set out in the federal statute’s express pre-emption provision. Moreover, because Congress did not expressly prohibit States from requiring employers to use E-Verify, the Ninth Circuit held that federal law did not prevent Arizona from imposing that requirement on its employers.

On November 2, 2009, the Court called for the views of the Solicitor General.

Pending Legislative Proposals

O:\COE\COE09974.xml

111TH CONGRESS 1ST SESSION S. ll

To provide that Federal courts shall not dismiss complaints under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

IN THE SENATE OF THE UNITED STATES

llllllllll

Mr. SPECTER introduced the following bill; which was read twice and referred to the Committee on llllllllll

A BILL To provide that Federal courts shall not dismiss complaints

under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

SECTION 1. SHORT TITLE. 3

This Act may be cited as the ‘‘Notice Pleading Res-4

toration Act of 2009’’. 5

2

O:\COE\COE09974.xml

SEC. 2. DISMISSAL OF COMPLAINTS IN FEDERAL COURTS. 1

Except as otherwise expressly provided by an Act of 2

Congress or by an amendment to the Federal Rules of 3

Civil Procedure which takes effect after the date of enact-4

ment of this Act, a Federal court shall not dismiss a com-5

plaint under rule 12(b)(6) or (e) of the Federal Rules of 6

Civil Procedure, except under the standards set forth by 7

the Supreme Court of the United States in Conley v. Gib-8

son, 355 U.S. 41 (1957). 9

I

111TH CONGRESS 1ST SESSION H. R. 3721

To amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate standard of proof.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 6, 2009 Mr. GEORGE MILLER of California (for himself, Mr. CONYERS, Mr. ANDREWS,

Mr. NADLER of New York, Mr. COURTNEY, Ms. CHU, Ms. CLARKE, Mr. HOLT, Mr. HARE, Mr. KILDEE, Mr. LOEBSACK, Mr. SABLAN, Mr. SCOTT of Virginia, Ms. HIRONO, Ms. WOOLSEY, Mr. BISHOP of New York, and Mr. SESTAK) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL To amend the Age Discrimination in Employment Act of

1967 to clarify the appropriate standard of proof.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

SECTION 1. SHORT TITLE. 3

This Act may be cited as the ‘‘Protecting Older 4

Workers Against Discrimination Act’’. 5

SEC. 2. FINDINGS AND PURPOSE. 6

(a) FINDINGS.—Congress finds the following: 7

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•HR 3721 IH

(1) In enacting the Age Discrimination in Em-1

ployment Act of 1967, Congress intended to elimi-2

nate discrimination against individuals in the work-3

place based on age. 4

(2) In passing the Civil Rights Act of 1991, 5

Congress correctly recognized that unlawful discrimi-6

nation is often difficult to detect and prove because 7

discriminators do not usually admit their discrimina-8

tion and often try to conceal their true motives. 9

(3) Congress has relied on a long line of court 10

cases holding that language in the Age Discrimina-11

tion in Employment Act of 1967, and similar anti-12

discrimination and antiretaliation laws, that is near-13

ly identical to language in title VII of the Civil 14

Rights Act of 1964 would be interpreted consistently 15

with judicial interpretations of title VII of the Civil 16

Rights Act of 1964, including amendments made by 17

the Civil Rights Act of 1991. The Supreme Court’s 18

decision in Gross v. FBL Financial Services, Inc., 19

129 S. Ct. 2343 (2009), has eroded this long-held 20

understanding of consistent interpretation and cir-21

cumvented well-established precedents. 22

(4) The holding of the Supreme Court in Gross, 23

by requiring proof that age was the ‘‘but for’’ cause 24

of employment discrimination, has narrowed the 25


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•HR 3721 IH

scope of protection intended to be afforded by the 1

Age Discrimination in Employment Act of 1967, 2

thus eliminating protection for many individuals 3

whom Congress intended to protect. 4

(5) The Supreme Court’s holding in Gross, rely-5

ing on misconceptions about the Age Discrimination 6

in Employment Act of 1967 articulated in prior de-7

cisions of the Court, has significantly narrowed the 8

broad scope of the protections of the Age Discrimi-9

nation in Employment Act of 1967. 10

(6) Unless Congress takes action, victims of age 11

discrimination will find it unduly difficult to prove 12

their claims and victims of other types of discrimina-13

tion may find their rights and remedies uncertain 14

and unpredictable. 15

(b) PURPOSE.—The purpose of this Act is to ensure 16

that the standard for proving unlawful disparate treat-17

ment under the Age Discrimination in Employment Act 18

of 1967 and other anti-discrimination and anti-retaliation 19

laws is no different than the standard for making such 20

a proof under title VII of the Civil Rights Act of 1964, 21

including amendments made by the Civil Rights Act of 22

1991. 23


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•HR 3721 IH

SEC. 3. STANDARD OF PROOF. 1

Section 4 of the Age Discrimination in Employment 2

Act of 1967 (29 U.S.C. 623) is amended by adding after 3

subsection (f) the following: 4

‘‘(g)(1) For any claim brought under this Act or any 5

other authority described in paragraph (5), a plaintiff es-6

tablishes an unlawful employment practice if the plaintiff 7

demonstrates by a preponderance of the evidence that— 8

‘‘(A) an impermissible factor under that Act or 9

authority was a motivating factor for the practice 10

complained of, even if other factors also motivated 11

that practice; or 12

‘‘(B) the practice complained of would not have 13

occurred in the absence of an impermissible factor. 14

‘‘(2) On a claim in which a plaintiff demonstrates a 15

violation under paragraph (1)(A) and a defendant dem-16

onstrates that the defendant would have taken the same 17

action in the absence of the impermissible motivating fac-18

tor, the court— 19

‘‘(A) may grant declaratory relief, injunctive re-20

lief (except as provided in subparagraph (B)), and 21

attorney’s fees and costs demonstrated to be directly 22

attributable only to the pursuit of a claim under 23

paragraph (1); and 24


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•HR 3721 IH

‘‘(B) shall not award damages or issue an order 1

requiring any admission, reinstatement, hiring, pro-2

motion, or payment. 3

‘‘(3) In making the demonstration required by para-4

graph (1), a plaintiff may rely on any type or form of 5

admissible circumstantial or direct evidence and need only 6

produce evidence sufficient for a reasonable trier of fact 7

to conclude that a violation described in subparagraph (A) 8

or (B) of paragraph (1) occurred. 9

‘‘(4) Every method for proving either such violation, 10

including the evidentiary framework set forth in McDon-11

nell-Douglas Corp. v. Green, 411 U.S. 792 (1973), shall 12

be available to the plaintiff. 13

‘‘(5) This subsection shall apply to any claim that the 14

practice complained of was motivated by a reason that is 15

impermissible, with regard to that practice, under— 16

‘‘(A) this Act, including subsection (d); 17

‘‘(B) any Federal law forbidding employment 18

discrimination; 19

‘‘(C) any law forbidding discrimination of the 20

type described in subsection (d) or forbidding other 21

retaliation against an individual for engaging in, or 22

interference with, any federally protected activity in-23

cluding the exercise of any right established by Fed-24

eral law (including a whistleblower law); or 25


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•HR 3721 IH

‘‘(D) any provision of the Constitution that pro-1

tects against discrimination or retaliation. 2

‘‘(6) This subsection shall not apply to a claim under 3

a law described in paragraph (5)(C) to the extent such 4

law has an express provision regarding the legal burdens 5

of proof applicable to that claim. 6

‘‘(7) In any proceeding, with respect to a claim de-7

scribed in paragraph (5), the plaintiff need not plead the 8

existence of this subsection. 9

‘‘(8) In this subsection, the term ‘demonstrates’ 10

means meet the burdens of production and persuasion.’’. 11

SEC. 4. APPLICATION. 12

This Act, and the amendments made by this Act, 13

shall apply to all claims described in section 4(g)(4) of 14

the Age Discrimination in Employment Act of 1967 (29 15

U.S.C. 623(g)(4)) pending on or after June 17, 2009. 16

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