SCOTUS Upholds Attorney’s Fees In Title VII Cases Even Where Prevailing Party Did Not Prevail On The Merits
In a unanimous decision dated May 19, 2016, the Supreme Court held in CRST Van Expedited, Inc. v. EEOC that a favorable ruling on the merits is not a necessary predicate to finding that a defendant is a prevailing party for the purposes of attorney’s fees under Title VII’s fee shifting statute.
Petitioner CRST, a trucking company, has two drivers share driving duties for each truck, and requires new drivers complete a training program. The case arose in 2005, when Monika Starke filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was sexually harassed by two male employees during her training. Following the procedures dictated by Title VII of the Civil Rights Act of 1964 (specifically 42 USC §2000e-5(b)), the EEOC informed CRST and investigated. In 2007, after attempts at conciliation failed, the EEOC brought suit in its own name against CRST under Title VII. During discovery, EEOC identified a class of 250, however the District Court dismissed all of the claims, including 67 claims barred due to insufficient investigation by the EEOC or a failure to attempt conciliation. The District Court then dismissed the suit, ruled CRST the prevailing party, and awarded the company over $4 million in attorney’s fees. The Eighth Circuit reversed the dismissal of two claims and vacated the award of attorney’s fees without prejudice, and on remand the District Court again awarded over $4 million. The case returned to the Eighth Circuit, which reversed and remanded on the grounds that a Title VII defendant cannot be a prevailing party unless it obtains a “ruling on the merits.”
Writing for the unanimous court, Justice Kennedy found that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party. He wrote that common sense dictates that a defendant may “prevail” without a ruling on the merits, as the defendant’s goal is to prevent an alteration of the legal relationship between the plaintiff and defendant. That goal was achieved here, and there is no reason to believe Congress, in allowing prevailing defendants to recover whenever the plaintiff’s “claim was frivolous, unreasonable, or groundless” had intended to condition the award of attorney’s fees on a ruling on the merits. Accordingly, the Court vacated and remanded the Eighth Circuit’s decision.
Notably, the Court declined to rule on whether the defendant must obtain a preclusive judgment in order to prevail, as the EEOC did not raise the issue until the merits stage. Accordingly, the issue was found to be inadequately briefed, and the Supreme Court left it for the Eighth Circuit to address in the first instance on remand.
The full text of the decision can be found here: http://www.supremecourt.gov/opinions/15pdf/14-1375_09m1.pdf
College is often considered the best years of a person’s life, but sadly college life has its own dark side. One example, gaining national attention (read the White House statement here), is the issue of rape and sexual assault on college campuses. However, there is also a related but less discussed trend occurring: the reshaping of student disciplinary proceedings. This article is about the damage being done by people with the best of intentions.
Though commonly discussed as problems to be solved, rape and sexual assault are crimes. Even so, very few cases occurring on college campuses enter the legal system, and are instead heard under schools’ disciplinary procedures. However, these proceedings lack many protections that would otherwise be afforded to those criminally accused, including a presumption of innocence. The result is an opaque process that can destroy the lives of the innocent and guilty alike.
Changes to higher education disciplinary hearings have been dramatic. At government urging, many schools have hired one individual to be responsible for investigating, prosecuting, judging, and hearing appeals in sexual assault cases, while lowering the standard of proof from “clear and convincing evidence” to a “preponderance of the evidence.” This requires only a 51% likelihood of guilt, allowing punishment in cases where the evidence is far from conclusive. The process risks biased decision-making, and removes impartial judges and outside review. When these policies were implemented at Harvard, twenty-eight professors signed a letter protesting the changes as lacking “the most basic elements of fairness and due process.” There have also been several high profile cases of students being accused and punished, only to be exonerated after independent investigations by journalists (RollingStone) or the courts (Slate) debunk the accusation. Tellingly, both cases occurred at schools looking to “get tough” on sexual assault following criticism of their existing policies.
The lower standards for school disciplinary hearings are justified by claiming they are civil proceedings, for which the most serious punishment is “merely” expulsion. However, many students expelled for sexual assault charges struggle to enroll in new schools, sometimes being forced to abandon college entirely due to the stigma attached with their expulsion. Other hurdles include transferring credits, financial considerations, delayed graduation, and being forced to leave behind their friends. All of this for students who, due to the lax standards and absence of procedural protections, may not even have committed the offense.
Even before hearings begin, accused students may face draconian restrictions. In a well-meaning attempt to shield a potential victim from her alleged assailant, an accused student may be prevented from living on campus, taking the same classes as the accuser, or even approaching the accused on campus. Yet unlike with a criminal indictment, where the evidence has met a threshold for charges, a student can face restrictions for months while the school investigates, even if the accusation is ultimately found meritless.
This is not to suggest that schools’ existing policies are sufficient, or that sexual assault is not a serious issue with real victims. The point is that the issue is complex. Sexual norms are subtle, the act itself often occurs in private, and critical questions like when consent is valid continue to be debated by lawyers, politicians, and the public at large. Ultimately, a disciplinary proceeding that affords the accused a fair hearing protects both the victim and the accused. Thus schools should carefully consider any changes to their disciplinary hearings, lest one injustice merely creates another.
A particularly good article on the issue and the underlying literature can be found here.
Jeffrey Heffernan, a police officer in the City of Paterson, New Jersey, was demoted from the position of detective after being observed by fellow officers holding a yard sign supporting the challenger in Paterson’s mayoral race. This action was taken pursuant to a policy prohibiting “overt involvement” by police officers in political campaigns. However, notwithstanding that the challenger was Heffernan’s good friend, that Heffernan was not involved in his campaign, and nor Heffernan even eligible to vote in that election, the yard sign in question was being picked up on behalf of his bedridden mother. Following his demotion, Heffernan brought an action against the City under § 1983 for the violation of his constitutional rights.
Writing for the majority, Justice Breyer began by examining § 1983 itself, noting that preliminary question of whether the focus should be on the plaintiff’s activity or on the defendant’s reasons for acting, based on the believed facts and corresponding motive. The majority concluded that it was the employer’s reasons which were at issue, citing Waters v. Churchill in support. In Waters, the Court had held a government employer did not violate the First Amendment by firing an employee for what the employer reasonably, but mistakenly, believed was speech involving solely personal matters. Thus here, where the employer mistakenly believed that the employee engaged in protected speech, the employer’s motives should again be the focus. Or, as reflected in Justice Breyer’s flair for the colloquial, “what is sauce for the goose is normally sauce for the gander.”
Looking at the employer’s motivation, the Court concluded the employer would know that the speech in question was protected under the First Amendment, and found the demotion to be unconstitutional. Yet this victory for Heffernan may be fleeting, as the Court assumed in its decision that Heffernan was demoted because of his supervisor’s belief that he was speaking in support of a mayoral candidate. The Court remanded the question of whether a neutral office policy prohibiting all police officers from any over involvement in any political campaign was constitutional, and by extension a valid ground for demoting Heffernan.
The case was Heffernan v. City of Paterson, N.J., 2016 WL 1627953 (U.S. Apr. 26, 2016). The full decision can be found here: http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf
Last week, the Supreme Court held oral arguments on Birchfield v. North Dakota. The case centers on whether a state can make it a crime for a driver suspecting of driving under the influence to refuse to take a breathalyzer test absent a warrant. Naturally, there is a degree to which time is of the essence in measuring Blood Alcohol Content (BAC), as it decreases over time, however the issue proved to be far more complex than one might expect.
Initially, the Justices seemed receptive to an exception for breathalyzer tests, making a variety of arguments in favor. The court noted that is already a “special need” exception for warrantless drug and alcohol testing of airline pilots or train operators. Given the higher number of deaths caused by drunk driving, drunk drivers could easily fall within that exception. Furthermore, a breathalyzer is far less invasive than a blood test, diminishing the privacy interest in requiring a warrant. Finally, Justice Kagan suggested that a breathalyzer may fall within another Fourth Amendment exception, the search of an arrestee and his immediate surroundings made incidental to an arrest. In particular, Justice Kagan noted the search’s role in preserving evidence, and calling a breathalyzer “about as uninvasive as a search can possibly be.”
Despite these strong arguments, one counter-argument did receive a lot of attention. Specifically, several Justices questioned why getting a warrant was a burden, noting that modern technology has reduced the time required to as little as 5 minutes in certain jurisdictions. Even where the wait is longer, a warrant can still often be acquired while taking the driver to the station for the test to be administered. The attorneys’ responses, notably “a lack of resources and manpower,” did not go over well as a justification for creating an exception to a constitutional right.
Surprisingly, the imposition of criminal rather than civil penalties by roughly a dozen states, including respondent North Dakota, did not arise as a significant issue. As Justice Kennedy humorously suggested, given the choice between spending three days in jail or having your license suspended for three years, many people might choose the jail time.
Speculation that a contested Republican convention may choose a nominee who struggled at the polls, or was not even on the primary ballot, has once again reignited the debate about the nature of American democracy. Yet for all of the media’s focus on delegate counts, Monday’s Supreme Court decision in Evenwel v. Abbot addressed a far more critical issue: the meaning of “one person, one vote.” In a representative democracy, the people elect representatives, from local officials to the President of the United States, to speak on their behalf and protect their interests. The question before the Supreme Court in Evenwel was who do those officials represent: the people, or the voters?
States have a significant influence over the electoral process. Despite constitutional guarantees prohibiting discrimination such as on the basis of race or gender, the qualifications for voting are historically a state and local issue. For example, in local elections in Silver Spring, Maryland, the voting age was lowered to sixteen and the franchise granted to non-citizens, even though the standard for national elections remains citizens over the age of eighteen. State legislatures also control redistricting. The Constitution requires that every ten years, the government conduct a census so that congressional representation, which is based on population, may be reallocated. Redistricting is the process of drawing boundaries for the congressional state legislative districts after that reallocation. This process can be highly partisan, and has been the basis for most of the high profile voting cases, including Evenwel, to come before the Supreme Court in recent years.
Since the 1964 decisions in Reynolds v. Sims, 377 U.S. 533 and Wesberry v. Sanders, 376 U.S. 1, redistricting has been governed by the principle of “one person, one vote.” Under “one person, one vote,” voting districts must have roughly the same population (usually the average, +/- 5%), and every state currently uses total population as the standard. However, the plaintiffs in Evenwel argue the standard should instead be eligible voters, asserting some Texas state Senate districts have nearly 50% more eligible voters than others.The question before the Court was thus whether “one person, one vote” required districts have an equal population, or an equal number of eligible voters?
In a decision unanimously upholding the Texas map and population-based approach, Justice Ginsburg, writing for the majority, noted that “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.” This also serves to protect the interests of non-voters, such as children who attend public schools. Notably, however, the Court made clear it did not address the constitutionality of a redistricting map based on eligible voters, instead holding only that a total population based approach was constitutional. It is thus quite possible this issue will return to the Supreme Court, particularly given that the State of Texas’s brief took the position that states could adopt either approach. This is a particularly daunting prospect for many civil rights groups, who argue that an eligible voter standard would significantly diminish the clout of Hispanic communities with proportionally higher numbers of non-citizens and children, and certain African American communities with higher felony disenfranchisement rates. Thus while the issue may have been settled for today, it remains a question to keep an eye out for in years to come.
This is the second part of our look at Rehabilitation Support Services, Inc. v. City of Albany, 2015 WL 4067066 (NDNY 7/2/2015).
After finding that the Plaintiff had standing, the Court next rejected Defendants arguments that the case was frivolous because the claim could be (and was) brought in an Article 78 proceeding seeking “substantively identical” relief. First, the Court found that relief sought was not “substantively identical,” as the Article 78 sought review of the denied application, while the instant action sought a ruling on the constitutionality of the Zoning Ordinance itself. In addition, Plaintiff could not have raised his claims regarding the facial constitutionality of the Zoning Ordinance in an Article 78 proceeding.
Finally, Defendant argued Plaintiff failed to make out a prima facie case of disparate treatment because (1) Plaintiff failed to allege it was denied a use variance permit because of the individuals it serves, and (2) because the BZA had legitimate reasons to deny the permit. The court disagreed, finding instead that the Plaintiff’s allegation that multiple-person dwellings serving people with disabilities faced more burdensome requirements should survive a motion to dismiss because it was a claiming that the Zoning Ordinance itself was facially discriminatory. Also, Plaintiff was not challenging the denial of the permit in the instant suit, making the BZA’s legitimate reason for denying the specific permit irrelevant. In addition, it was not necessary for the Plaintiff to show animus in order to survive a motion to dismiss. The Court thus found that Plaintiff had alleged facts sufficient to state a claim under the FHA and ADA.
Plaintiff, a non-profit organization, sought to establish a residence for two dozen people recovering from alcoholism and substance abuse. The proposed location was zoned R2A, limited to “single and two family residences and houses of worship.” Though some multi-unit residences, like dormitories, nursing homes, etc. could operate under a special use permit, other multi-unit dwellings, like Plaintiff's planned residence, must obtain a use variance. Though both require an application process, a special use permit does not require showing “unnecessary hardship,” while the application for a use variance does. On these grounds, Plaintiff filed a federal action alleging that the City's Zoning Ordinance violated both the FHA and the ADA on its face. Plaintiff also filed an Article 78 proceeding seeking review of the BZA’s decision to deny Plaintiff a use variance.
First, the Court addressed standing, stating an organization may bring suit on behalf of its members by demonstrating: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Here, standing exists because Plaintiff alleged the Zoning Ordinance imposed more burdensome application requirements than required of multi-member dwellings for people without disabilities, and that the ordinance prevented Plaintiff from opening the proposed residence to serve its members was sufficient to show an injury “fairly traceable” to Defendant's actions. In addition, the organization could bring this action on behalf of its members as “(1) it serves a class of individuals with discrimination claims-individuals recovering from substance abuse; (2) the interests of the class are germane to the organization, which is in the business of developing and operating sober homes; and (3) no individual participation of class members is necessary because the instant litigation involves a facial challenge” to the Zoning Ordinance.
In our next post, we will look at the merits of the discrimination claims themselves.
The case was Rehabilitation Support Services, Inc. v. City of Albany, 2015 WL 4067066 (NDNY 7/2/2015).
In a 50-page opinion issued on February 29, 2016, U.S. Magistrate Judge James Orenstein sided with Apple in its high-profile fight with the federal government over whether Apple can be compelled to write software allowing authorities to bypass an iPhone’s security features. Judge Orenstein’s opinion is the first comprehensive judicial analysis of the government’s authority under the All Writs Act in this context. While the decision is not binding in other jurisdictions, it may be influential as courts around the country consider the 80 similar requests pending against Apple, most notably in California, where a federal judge is considering the government’s request to compel Apple to provide access to the iPhone of San Bernardino shooter Syed Farook.
Legally, the case turns on the All Writs Act, a 1789 statute which provides “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In short, it allows a court to compel individuals or corporations to give aid in executing its orders. For example, in United States v. New York Telephone Co., 434 U.S. 159 (1977), the Supreme Court ruled the All Writs Act allowed a U.S. District Court to order a telephone company assist law enforcement in installing a device on a rotary phone to track the numbers dialed. More recently, it has been used to provide the authorities access to password protected devices, requests that were regularly granted by tech companies, including Apple. Apple’s recent reversal is largely due to the robust security of its new iPhone operating system, which is more difficult to disable.
In siding with Apple, Judge Orenstein found the All Writs Act did not apply in this context, suggesting that it fell to lawmakers to resolve this issue, writing “it would betray our constitutional heritage and our people’s claim to democratic government for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”He further noted that this ruling was not about whether the government was entitled to “force Apple to help it unlock a specific device… [but] whether the All Writs Act resolves that issue and many others like it yet to come.” Finally, Judge Orenstein suggested that there was no reason the government could not attempt to bypass the security itself.
The text of the law aside, increasingly complex encryption on smartphones and other devices raises policy issues on privacy and security that are both far reaching and compelling. The government rightly argues that it has a real and valid interest in accessing individual’s devices in criminal cases and matters of national security, particularly where acting pursuant to a judicially issued search warrant. At the same time, however, tech companies like Apple have equally valid concerns about protecting the privacy of their customers, whether from government overreach, hackers, or simply on the principle that privacy is a constitutional right. What makes this issue so fascinating is the need to balance these equally important considerations, and the uncertainty about where the middle ground might be. For more on the policy considerations, you can read this excellent article on Bloomberg regarding the pending case in California, in which dozens of amicus briefs have been filed by groups across the ideological specttrum: http://www.bloomberg.com/news/articles/2016-03-03/apple-supporters-weigh-in-from-big-tech-to-a-terror-victim
Though none of these cases has reached final disposition, it seems inevitable that this issue will one day come before the Supreme Court, and given his strong views on privacy and the right to be free from government search, there may be no issue on which the late Justice Scalia’s voice will be more greatly missed.
Second Circuit Denies Class of One Claim Absent Evidence Of Preferential Treatment To Similarly Situated Properties
Appellant appealed from District Court order granting summary judgment for Respondents Town of Enfield, the Town’s Planning and Zoning Commission, and various officials on Appellant’s class-of-one equal protection claim. Appellant argued Respondents discriminated against her by denying her subdivision application, which complied with all relevant regulations, over concerns about flooding, traffic safety, neighborhood aesthetics, as well as community opposition. Appellant also contended Respondents had approved all other applications that conformed with those requirements since 1999.
On appeal, the Second Circuit noted that where a class of one plaintiff challenges a zoning decision, he or she must identify comparable properties that are similarly situated with regard to the zoning board's “principal reasons” for denying the application. Here, Appellant attempted to compare her application to other applications which were in full compliance with the Town’s technical requirements for a residential subdivision, but unlike her application had been approved. Despite this, Appellant failed to provide any evidence these comparators were “similarly situated” to hers regarding the considerations underlying the denial of her subdivision plan, including the concerns about flooding, traffic safety, etc. The Court held that unlike a challenge to the merits of a zoning decision, requiring only evidence the defendants subjected a plaintiff to unlawful treatment, an equal protection claim requires evidence that the plaintiff was singled out for such treatment where defendants had no legitimate interest in treating the plaintiff differently. As the Appellant failed to establish any similar situated comparators, the dismissal of her class of one claim was affirmed.
The case was Pappas v Town of Enfield, 602 Fed. Appx. 35 (2nd Cir. 2015).
E.D.N.Y. Dismisses Residents’ Fair Housing and Equal Protection Claims Over Rezoning Of Mobile Home Park
Developer Frontier applied to rezone the Property from a mobile home park to 500 residential units of one and two bedroom apartments and up to 45,000 square feet of retail space. On December 29, 2011, the Town Board of the Town of Babylon granted Frontier's application, subject to various conditions and covenants, in Resolution 743. The Town Board then adopted by resolution a relocation plan for mobile homes and households on the Property. Subject to the Town Attorney’s approval, this plan would provide a maximum of $20,000 per household in relocation assistance for residents who: (1) actually occupy a unit; (2) are in good standing; (3) submit the name and contact information of the resident to receive the relocation assistance on the household’s behalf; and (4) vacate the premises within 90 days of receiving notice. The resident’s complaint alleges that the defendants violated: (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq.; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1982; (4) 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; and (5) 42 U.S.C. § 3608 and its “affirmatively furthering” obligations.
Frontier claims the case should be dismissed for lack of subject matter jurisdiction, as it incorrectly assumes the relocation plan requires residents to sign a release giving up their “rights” to the 100 affordable/workforce housing units. Frontier also claims the complaint contains no allegations that any Plaintiffs executed documents associated with the Relocation Plan or applied for the affordable/workforce housing units and were denied because they agreed to the Plan. The court agreed, finding Plaintiffs could not plausibly allege executing the Plan documents foreclosed a “right” to the affordable housing when the Plan contains no such provision and there are no allegations that any Plaintiffs applied for and were denied affordable/workforce housing by agreeing to the Plan's terms. The court also found the complaint’s allegations were wholly unsupported by the public record and by the documents included, or affirmatively omitted, from its exhibits. Accordingly, Frontier's motion to dismiss was granted, Plaintiffs' complaint was dismissed with prejudice, and Frontier's motion for Rule 11 sanctions was granted.
The case was Amityville Mobile Home Civic Ass'n v. Town of Babylon, 2015 WL 1412655 (E.D.N.Y. 2015).