Civil Rights/General Public Interest Law Projects
I. Employment Discrimination
A. Hairston v. Boarman
IPR represents Kevin Hairston, an African-American who has worked for the Government Printing Office (GPO) for decades but has repeatedly been denied promotions on the basis of race. Mr. Hairston joined GPO in 1987, and, after scoring third out of 134 on GPO’s Offset Press Assistant Training Program examination, he was invited to participate in GPO’s Press Training Program Apprenticeship. After completing the program, Mr. Hairston became an Offset Pressperson.
In August 2006, Mr. Hairston applied for a promotion to the position of Second Offset Pressperson. GPO sent him notification that he was qualified, and internal documents obtained during the investigation reveal that the selecting and approving officials chose him for the position. Yet, without explanation, a Production Manager ordered that the selection be canceled, and the position was closed without it being offered to anyone. The position was later re-posted after management claimed that no qualified applicants had applied for the opening the first time. A white man was hired for the position. Mr. Hairston filed a complaint with the Equal Employment Office (EEO) at GPO, and he was retaliated against by his supervisors for doing so.
In September 2008, IPR filed suit on Mr. Hairston’s behalf. GPO responded with a motion to dismiss, claiming that Mr. Hairston failed to exhaust his administrative remedies prior to initiating the federal lawsuit. IPR opposed this motion, and, in the fall of 2009, the district court denied the motion as to the discrimination claim and granted the motion as to the retaliation claim. In the meantime, Mr. Hairston suffered additional retaliation at GPO, and he filed additional EEO complaints after he was denied overtime and training opportunities. IPR amended his federal complaint to include the denial of training claim in the spring of 2010, and the parties engaged in discovery throughout the summer and fall of 2010.
In spring of 2011, GPO filed a motion for summary judgment, arguing that the agency had a non-discriminatory reason for canceling Mr. Hairston’s promotion. IPR opposed the motion, arguing that the evidence indicates that GPO’s reason was false and pretext for discrimination. The court granted summary judgment to GPO in January 2013, and IPR filed an appeal to the D.C. Circuit on Mr. Hairston’s behalf. IPR successfully opposed GPO’s motion for summary affirmance and merits briefing was completed in April 2014. The D.C. Circuit has scheduled oral argument on Mr. Hairston’s appeal for October 2014.
B. Eley v. Vance-Cooks
IPR represented Melvin Eley, an African-American who had worked for the Government Printing Office (GPO) for decades but had repeatedly been denied promotions on the basis of race and retaliation. After Mr. Eley was denied a promotion in 2001, he filed an EEO complaint, and IPR represented him. GPO settled that matter favorably to Mr. Eley in 2003, but GPO continued to deny Mr. Eley promotions for which he was qualified.
Since the 2003 settlement, Mr. Eley has been denied at least four promotions, one of which was canceled without explanation. Most recently, in 2008, Mr. Eley applied for the Operations Director position, a Senior Level Service (SLS) position in the Information Technology and Systems Department. Mr. Eley was deemed qualified, but a white man was hired instead. At the time, there were no African-American men among the approximately 30 SLS positions at GPO.
IPR filed a Title VII complaint on Mr. Eley’s behalf in district court in November 2009. The parties conducted discovery throughout the summer and fall of 2010. In spring 2011, GPO filed a motion for summary judgment, arguing that the agency had a non-discriminatory reason for denying Mr. Eley the promotion. IPR opposed the motion, arguing that the evidence indicated that GPO’s reason was baseless and pretext for discrimination. In March 2012, the district court held a summary judgment hearing and denied summary judgment in a lengthy ruling from the bench, relying in significant part on arguments advanced in our brief. After the decision, the parties participated in mediation, and IPR obtained a favorable settlement for Mr. Eley.
C. Smith v. Bank
IPR represented Mary Smith (name changed), a former employee of a major national bank. Ms. Smith worked as a bank teller, and she was often assigned to work on Saturdays.
While she was working at the bank, Ms. Smith converted to a religion that strictly observes the Sabbath from Friday evening through Saturday evening. In accordance with her religious practice, Ms. Smith refrains from all work on Saturdays and spends much of the day worshipping at her temple.
When the bank terminated Ms. Smith after she had worked there for nearly two years, she filed a religious discrimination complaint with the Equal Employment Opportunity Commission. EEOC issued a determination in Ms. Smith’s favor, but did not prosecute her case. Ms. Smith then came to IPR, and we agreed to represent her in a federal district court proceeding. IPR filed a Title VII complaint on behalf of Ms. Smith’s, alleging that the bank discriminated against her on the basis of religion and in failing to accommodate her religious observances.
Ms. Smith’s complaint alleged that, after her religious conversion, she explained to her bank manager and a human resources representative that she would no longer be able to work on Saturdays. They agreed to accommodate Ms. Smith’s religious practices. However, the bank manager was later replaced. Ms. Smith’s complaint alleged that the new bank manager and the same human resources representative informed Ms. Smith that the bank would no longer accommodate her religious observances. Finally, Ms. Smith alleged that she was fired because she refused to work on Saturdays.
Following a period of intense discovery, the bank filed a motion for summary judgment, which IPR opposed. The court denied the bank’s motion for summary judgment, holding that Ms. Smith had raised genuine issues of material fact as to both her failure to accommodate and disparate treatment claims, and the case has been resolved.
D. Freeman v. Dal-Tile
Represented by other counsel, Lori Freeman brought a Title VII and Section 1981 lawsuit against her former employer, Dal-Tile Corporation, alleging a hostile work environment based on race and sex, retaliation, and constructive discharge in the U.S. District Court for the Eastern District of North Carolina. Ms. Freeman later added a civil obstruction of justice claim under North Carolina state law after it emerged during discovery that Dal-Tile had destroyed potentially relevant emails.
Dal-Tile distributes granite, tile, stone, and other materials used in home remodeling. Ms. Freeman worked in the office at one of Dal-Tile’s showrooms, and she frequently interacted with Timothy Koester, a sales representative for a local contracting company who did a large volume of business with Dal-Tile. Over a period of three years, Koester engaged in a broad range of sexually and racially offensive conduct during his almost daily visits to Ms. Freeman’s workplace. Koester regularly made sexual comments about women—including African-American women in particular. He bragged about his sexual exploits, and he used offensive racial language. Koester targeted Ms. Freeman, the only African-American woman in the office, with several especially serious slurs and incidents of harassment. But although the branch manager witnessed Koester’s behavior and Ms. Freeman complained about it, his conduct continued, Dal-Tile did nothing to stop Koester.
Ms. Freeman came to IPR after the district court granted Dal-Tile’s motion for summary judgment. IPR represented Ms. Freeman on appeal to the U.S. Court of Appeals for the Fourth Circuit. The parties completed merits briefing during the fall 2013 semester, and the court heard oral argument in January 2014. In April 2014, the Fourth Circuit reversed summary judgment on Ms. Freeman’s Title VII and Section 1981 hostile work environment claims (and affirmed on the remaining claims). The Fourth Circuit recognized for the first time in a published opinion that employers may be held liable for third-party harassment, applying the same test used in co-worker harassment cases. Further, the Fourth Circuit found that a jury reasonably could conclude that Koester’s conduct was objectively offensive and based on race and sex, and that Dal-Tile had knowledge of the hostile work environment but failed to respond adequately.
The Fourth Circuit remanded the case to the district court and the case was resolved before trial.
II. Open Government
A. McBurney v. Young
IPR represented Mark McBurney, a citizen of Rhode Island, Roger Hurlbert, a citizen of California, and Bonnie Stewart, a citizen of West Virginia. Each filed requests for public records under the Virginia Freedom of Information Act (VFOIA), but each request was denied because VFOIA only grants the right to access Virginia public records to citizens of Virginia. Mr. McBurney, who had been a citizen of Virginia for 13 years, sought records from the Virginia Department of Child Support and Enforcement regarding child support for his son. Mr. Hurlbert, who runs a business that collects and provides real estate information, sought records from the Henrico County Tax Assessors Office. Ms. Stewart, a professor of journalism at West Virginia University, sought information from Virginia public universities as part of a journalism course she teaches.
Mr. McBurney contacted IPR for assistance, knowing that IPR had previously handled a similar case, Lee v. Minner, against the state of Delaware, which IPR won in the U.S. Court of Appeals for the Third Circuit. Mr. Hurlbert contacted IPR soon after, and, in January 2009, IPR filed a complaint in district court in Virginia against the Virginia Attorney General, the Virginia Department of Child Support and Enforcement, and the Henrico County Tax Assessors Office on behalf of Mr. McBurney and Mr. Hurlbert. In February 2009, Professor Stewart contacted IPR regarding her own experience with the discriminatory provision of Virginia’s FOIA, and the complaint was amended to add Professor Stewart’s claim.
The complaint alleged that the citizens-only provision of Virginia’s FOIA violates the Privileges and Immunities Clause of Article IV and the Dormant Commerce Clause of the U.S. Constitution. After a hearing, the district court granted the defendants’ motion to dismiss, finding that the Attorney General, the only defendant sued by Professor Stewart, was not a proper party and that Mr. McBurney and Mr. Hurlbert lacked standing to bring their claims and opining that the plaintiffs would have lost on the merits anyway.
IPR appealed the decision to the U.S. Court of Appeals for the Fourth Circuit, and, in July 2010, after oral argument, the Fourth Circuit affirmed the district court’s decision to dismiss the Attorney General and Professor Stewart; reversed the decision as to Mr. McBurney’s and Mr. Hurlbert’s standing; and remanded Mr. McBurney’s and Mr. Hurlbert’s claims to the district court. On remand, the district court found that Mr. McBurney and Mr. Hurlbert have standing to challenge VFOIA’s citizens-only provision, but that the law did not violate the constitution. IPR appealed the merits decision to the Fourth Circuit. In February 2012, after oral argument, the Fourth Circuit held that the citizens-only provision did not violate the Privileges & Immunities Clause or the dormant Commerce Clause.
The U.S. Supreme Court granted IPR’s petition for certiorari, which argued that the Fourth Circuit’s decision conflicted with the Third Circuit’s decision in Lee v. Minner. In conjunction with the Gupta/Beck firm as lead counsel, IPR briefed the Supreme Court appeal during the fall 2012 and spring 2013 semesters.
On April 29, 2013, the Court ruled 9-0 against IPR. In an opinion by Justice Alito, the Court held that VFOIA’s citizens-only provision does not violate the Privileges and Immunities Clause because Virginia made most of the requested records available via other means and the state’s refusal to provide the remaining records did not affect any constitutionally protected privilege or immunity. The Court also held that VFOIA’s citizens-only provision does not violate the dormant Commerce Clause because the statute does not regulate commerce.
B. Bloche v. Department of Defense
IPR represents two prominent bioethics experts, M. Gregg Bloche, M.D., a Georgetown law professor, and Jonathan Marks, a bioethics professor at Penn State, in a Freedom of Information Act (FOIA) case against various agencies of the Department of Defense and the Central Intelligence Agency. The plaintiffs seek information concerning the participation of government and civilian medical personnel in the design and implementation of torture techniques.
After filing FOIA requests with the relevant agencies in 2006 and 2007, and receiving no documents in response, IPR filed a FOIA lawsuit on behalf of the experts in November 2007. The Court ordered the government defendants to turn over relevant documents in several stages, and the releases concluded in spring 2010. The agencies are still withholding many documents, citing various FOIA exemptions.
In March 2011, the plaintiffs moved for summary judgment against a key defendant, the U.S. Air Force, arguing that the government’s exemption claims are unlawful under FOIA. Because the Air Force appears to have played a key role in developing the policies that the plaintiffs are interested in, the plaintiffs are hopeful that this motion will serve as a bellwether for the litigation as a whole. The government filed an opposition to the motion and filed a cross motion for summary judgment. The plaintiffs filed an opposition to the government’s motion and a reply on its motion. The motion is fully briefed and awaiting a decision. In the meantime, the government has begun to release some of the Air Force documents that it previously claimed were exempt and has agreed to review informally memoranda prepared by IPR detailing legal concerns about withholdings by defendant agencies other than the Air Force.
The plaintiffs have also filed a motion against three other defendants: the Navy and two subunits of the Department of Defense that establish and implement military health policy. Again, the government filed an opposition and cross motion for summary judgment. The parties completed summary judgment briefing in fall 2012, and the court held a hearing on those motions in December 2012. More than a year and a half later, the court still has not ruled. However, the court permitted the government to update its explanations for withholding certain Defense subunit records, and IPR supplemented its summary judgment motion based on those updates. In the meantime, the government has begun releasing documents put in issue by IPR’s summary judgment motion (particularly some documents held by the Navy). In addition, the U.S. Army has also released documents in response to an informal memorandum the plaintiffs sent to government counsel detailing concerns with the Army’s insufficient explanations for its withholdings.
C. Southern Migrant Legal Services v. Range
Southern Migrant Legal Services (SMLS) is a legal services organization that provides free legal services to indigent migrant agricultural workers in six southern states. To assist in its advocacy, SMLS frequently files state and federal freedom of information requests seeking documents about the employers of migrant workers. The migrant worker visa program (the H2-A program) is a heavily regulated joint federal-state program.
In 2007, the Mississippi legislature amended its labor laws and classified H-2A documents as confidential, permitting the documents to be withheld under the Mississippi Public Records Act. SMLS has requested H-2A records under the Public Records Act from the Mississippi Department of Employment Security (MDES) several times, and MDES denied each request, citing the new law.
In July 2010, IPR filed a complaint under 42 U.S.C. § 1983 in federal district court in Mississippi on behalf of SMLS. The complaint alleged that MDES’s withholding of H-2A records violates federal law because a federal regulation requires states to release H-2A documents. MDES filed a motion to dismiss, arguing that SMLS lacked a right of action to challenge the Mississippi Public Records Act. IPR amended its complaint to add a preemption claim under the Supremacy Clause, and MDES filed a second motion to dismiss. IPR then filed a motion for summary judgment on the merits, arguing that the Mississippi statute making H-2A records confidential is preempted by federal law requiring the disclosure of H-2A records. Summary judgment briefing was completed in February 2011, and the court held partial hearings in July 2012 and November 2013.
In January 2014, the district issued an oral order (followed later by a written opinion) denying SMLS’s motion for summary judgment and granting MDES’s motion to dismiss. IPR now represents SMLS on appeal to the Fifth Circuit. Merits briefing was completed in July 2014, and oral argument is scheduled for late October 2014.
D. Nicholls v. OPM
Federal law prohibits men who fail to register with the Selective Service from working for the federal government unless they can show that their failure to register was not knowing and willful. The Office of Personnel Management (OPM) makes the knowing and willful determination. Based on the clinic’s work in Elgin v. U.S. Department of the Treasury, former IPR staff attorney Leah Nicholls grew to believe that OPM often (erroneously)considers factors other than whether the failures to register were knowing and willful. Ms. Nicholls submitted multiple FOIA requests to OPM with the goal of shedding light on how the agency makes its determinations.
In April 2011, Ms. Nicholls filed a FOIA request with OPM seeking documents reflecting the numbers of men not hired or fired for their failure to register and documents related to appeals concerning the termination or failure to hire men who failed to register. Over the telephone, OPM indicated to Ms. Nicholls that it lacked documents responsive to her request, but she never received a written response.
In September 2011, IPR filed a complaint on Ms. Nicholls’ behalf against OPM in federal district court, alleging that OPM never responded to her request. After failed settlement discussions, the parties filed cross-motions for summary judgment. OPM argued that it lacked responsive documents, while IPR contended that OPM had failed to conduct a sufficiently thorough search and that OPM read the request for knowing and willful appeals too narrowly.
The district court substantially agreed with IPR and granted summary judgment to Ms. Nicholls in May 2012. The court required OPM to search for responsive records and ordered OPM to produce non-exempt records related to appeals from knowing and willful determinations. After filing a motion for attorney fees and costs in May 2012, IPR reached a monetary settlement with OPM. In conformance with the court’s order, OPM has produced additional responsive documents and expects to complete its production by September 2014.
In December 2011, Ms. Nicholls made an additional FOIA request to OPM seeking records concerning the agency’s interpretation and implementation of the law prohibiting employment of men who failed to register with the Selective Service. By letter, OPM stated that it had located responsive records, but that the search, review, and copying costs would be more than $6,000.
On Ms. Nicholls’ behalf, IPR administratively appealed the fees, arguing that the request qualified for a waiver of the search and review costs because it was made for non-commercial educational purposes. IPR also argued that Ms. Nicholls was entitled to the public interest fee waiver exempting copying costs. In April 2012, OPM’s General Counsel determined that the request qualified for the educational waiver of search and review costs, reducing the costs to approximately $250, and remanded the public interest fee waiver question.
On remand, OPM has released some responsive records but withheld or redacted other records. In January 2014, IPR filed an administrative appeal challenging the agency’s withholding and redactions and requesting that the agency provide a Vaughn index. OPM has indicated that it will issue a decision on the administrative appeal by October 2014.
III. Class Actions
A. Hayden v. Atochem North America
In 1992, residents of Bryan, Texas filed a class action against Atochem in federal district court in Houston, alleging that the chemical manufacturer’s local pesticide plant spewed arsenic and other carcinogens, causing widespread medical problems and property damage throughout the area. The case settled favorably to the plaintiffs in 2000. Approximately $1 million remained in unclaimed settlement funds, and the district court sought proposals for distributing the remaining funds. The defendant proposed that the funds be either given back to it or given to specific local charities having nothing to do with the subject matter of the class action.
In March 2010, IPR, on behalf of class member Ralph Klier, submitted a competing proposal, arguing that the law required the court to make an additional pro rata distribution of funds to the most seriously injured class members. Alternatively, IPR argued that the funds should be distributed to a charitable cause with a strong nexus to the issues in the class action, such as Texas A&M’s School of Rural Public Health, which researches the carcinogenic effects of pesticides on humans in Texas.
The court decided to use the funds to make cy pres awards to several local charities unconnected to the subject matter of the class action, such as the Children’s Museum of the Brazos Valley. IPR sought a stay of the distribution, which was granted, and appealed the award to the Fifth Circuit. The Fifth Circuit heard argument in June 2011. In September 2011, the Fifth Circuit issued a decision entirely favorable to Mr. Klier and the class of seriously injured class members. Klier v. Elf Atochem N. Am., 658 F.3d 468 (5th Cir. 2011). The court of appeals ruled that because the money practically could be (and, therefore, should be) distributed to the seriously injured class members themselves, a cy pres award was inappropriate.
On remand the district court in Houston, IPR worked with the case claims administrator to see that the remaining funds were distributed as completely and promptly as possible to the seriously injured class members. About 95% of the money designated for distribution to the class members was in fact distributed. The per-class member amounts ranged from as little as $350 to as much as $26,000.
B. Briggs v. United States
This nationwide class action was brought by military personnel, veterans, and their families who had held credit cards issued by a part of the U.S. military. The government had collected debts on these credit cards from the plaintiff class after the statute of limitations had expired. The parties settled in December 2009, and the government agreed to repay each class member 100% of the debt it had illegally collected.
Through two extensive memoranda, IPR advised class counsel on the applicable legal principles and possible appropriate charitable recipients in the event a pro rata redistribution of remaining funds is not feasible after an extensive search for all class members. In the memo concerning potential charitable recipients, IPR’s research focused on locating reputable organizations that provide financial or debt relief assistance to veterans and their families.
After drafting the memoranda, IPR worked on maximizing the distribution to class members. The distribution process was long and productive and resulted in nearly all of the funds going to the class members themselves. After the distribution was completed, the remaining funds were distributed to a government-run charity that serves military members and their families.
C. Hecht v. United Collection
The federal Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from engaging in various forms of deceptive and unfair debt collection practices (such as posing as people other than debt collectors and harassing debtors with midnight phone calls). In 2010, the federal district court in New York approved a nationwide FDCPA class action settlement against a debt collector that systematically phoned alleged debtors without providing various disclosures required by the FDCPA. The settlement provided no monetary relief to the class members, small charitable contributions to charities having nothing to do with the substance of the lawsuit, and a sizeable attorney’s fee for the plaintiffs’ lawyers. In the meantime, Chana Hecht brought a suit regarding the same conduct in a federal district court in Connecticut. That court threw out the suit on the ground that Ms. Hecht was a member of the class that had settled in New York and that her suit was precluded by the judgment approving the earlier nationwide settlement. IPR took on the briefing and argument of the case in the Second Circuit. IPR argued that giving the New York settlement preclusive effect would violate Ms. Hecht’s due process rights because she never was given notice and an opportunity to be heard in the New York case and because the plaintiffs in the New York case did not provide Ms. Hecht constitutionally adequate representation (as evidenced by the no-value settlement in the New York case). The Second Circuit agreed, ruling in August 2012 that the notice provided did not satisfy Due Process requirements, vacating the dismissal of Ms. Hecht’s claim, and remanding the case to the district court.
Day v. Persels & Associates LLC
IPR filed an amicus brief in the Eleventh Circuit on behalf of the National Association of Consumer Advocates in support of absent class members who objected to a magistrate judge’s approval of a no-value consumer class action settlement. We argued that the settlement’s approval below was unconstitutional because it was entered by a magistrate judge, not an Article III district judge. Magistrate judges may, under 28 U.S.C. § 636(c), enter final appealable judgments with the consent of the parties. We argued that the use of the magistrate judge here was impermissible because the absent class members could not, and did not, consent.
In April 2013, the Eleventh Circuit heard oral argument, in which it allowed IPR to participate because our client addressed issues the parties did not raise. In September 2013, the Eleventh Circuit ruled in favor of the objectors and vacated and remanded to the district court, reasoning that the magistrate judge abused his discretion in approving the settlement. Although the majority concluded that the magistrate judge had jurisdiction despite the lack of consent from absent class members, one judge dissented, agreeing substantially with the arguments IPR advanced in its amicus brief.
Koby v. ARS National Service, Inc.
In this case, plaintiffs brought a class action alleging that collection agency ARS National Services violated the Fair Debt Collection Practices Act. A settlement between the parties was approved by a magistrate judge over the objections of absent class members. An objecting class member appealed to the Ninth Circuit, arguing that the settlement was substantively unfair and that the notice provided to the class was deficient. IPR has filed an amicus brief on behalf of the National Association of Consumer Advocates in support of the objector, arguing that the settlement’s approval below was unconstitutional because only an Article III judge, and not a magistrate judge, has the constitutional and statutory authority to enter final judgment. Briefing is completed and oral argument is not yet scheduled.
IV. Other Matter
A. Knight v. Thompson
In this U.S. Supreme Court case, IPR is representing as amici the International Center for Advocates Against Discrimination and two other groups representing the interests of Sikh Americans. Earlier in this case brought under the Religious Land Use and Institutionalized Persons Act (RLIUPA), the Eleventh Circuit held that the Alabama state prison system may require inmates to cut their hair even if that violates their genuinely held religious beliefs. The inmates argued that RLUIPA demands that they be allowed to wear unshorn hair consistent with their religious beliefs because RLIUPA requires that the government use the “least restrictive means” in pursuing its legitimate interests (here, the interest in prison security). When the inmates pointed out that most state prison systems and the federal Bureau of Prisons allow religious inmates to maintain their hair unshorn—as evidence that Alabama’s policy was inconsistent with the “least restrictive means” test—the Eleventh Circuit responded that what other prison systems did was “beside the point.”
The prison inmates petitioned for review in the Supreme Court of the United States. IPR’s amicus brief supports the inmates’ petition. Through legal argument and the use of many case examples, IPR’s brief shows that a wide array of religious practices, including those of mainstream religions, would be vulnerable to legislative attack unless the Eleventh Circuit’s approach is rejected by the Supreme Court.
The inmates’ petition remains pending before the Supreme Court.
B. Elgin v. U.S. Department of the Treasury
Michael Elgin, Aaron Lawson, Henry Tucker, and Christon Colby are all former valued employees of the federal government. Each was terminated solely because the Selective Service has no record that they registered. Each then sought a determination from the Office of Personnel Management (OPM) that his failure to register was not knowing and willful, a determination that would permit him to work for the federal government, but OPM denied each of their requests and their and their employers’ administrative appeals.
Mr. Elgin appealed his termination to the Merit Systems Protection Board (MSPB), arguing that his termination was unconstitutional, and the MSPB dismissed his appeal for lack of jurisdiction. Mr. Elgin, joined by Mr. Lawson, Mr. Tucker, and Mr. Colby, then filed a complaint in Massachusetts federal district court, arguing that the lifetime ban on federal employment for men who fail to register is a Bill of Attainder prohibited by the Constitution and that it violates their constitutional equal protection rights because the bar on employment only applies to men. The district court held that it had jurisdiction to consider the plaintiffs’ claims, but decided against them on the merits. Mr. Elgin, Mr. Lawson, Mr. Tucker, and Mr. Colby appealed, and a majority of the First Circuit panel held that it lacked jurisdiction over their constitutional claims because the Civil Service Reform Act’s scheme for addressing the grievances of federal employees impliedly precludes federal district court jurisdiction over employees’ constitutional claims.
In July 2011, on behalf of Mr. Elgin, Mr. Lawson, Mr. Tucker, and Mr. Colby, IPR filed a petition for certiorari in the U.S. Supreme Court. The Supreme Court granted certiorari and heard oral argument in February 2012. IPR argued that the Civil Service Reform Act did not impliedly preclude district court jurisdiction over federal employees’ constitutional claims for equitable relief, and the Solicitor General contended that the Act requires that the employee bring his or her claim in the MSPB.
In June 2012, the Supreme Court held, 6-3, that the Civil Service Reform Act requires federal employees to bring their equitable constitutional claims in the MSPB, even if the MSPB cannot grant the relief sought. In step with arguments made by the Solicitor General, the Court reasoned that the Federal Circuit could decide employees’ claims on appeal even if the MSPB could not. Justice Alito, joined by Justices Ginsburg and Kagan, dissented for the reasons outlined in IPR’s brief.
C. Schoenefeld v. New York
A New York statute requires that non-resident members of the New York bar have an office in New York to practice law in the state. Ekaterina Schoenefeld, a member of the New York bar and a resident of New Jersey, challenged the law in district court, arguing that it discriminates in favor of state residents in violation of Article IV’s Privileges and Immunities Clause. Ms. Schoenefeld prevailed in the district court, which held that the non-resident office requirement was unconstitutional. New York appealed to the Second Circuit.
In the Second Circuit, IPR filed an amicus brief supporting Ms. Schoenefeld on behalf of twenty-two members of the New York bar who are not residents of New York and whose legal practices suffer because of the office requirement. IPR argued that the statute places significant additional burdens on out-of-state attorneys that cannot be justified by any legitimate New York interest. Because those burdens are only placed on non-residents, IPR argued that that the office requirement violates the Privileges and Immunities Clause.
In April 2014, the Second Circuit issued an opinion reasoning that resolving the constitutional issue depends on a question of state law interpretation, namely what minimum requirements are necessary to satisfy New York’s statutory mandate that non-resident attorneys maintain an in-state office. The Second Circuit noted that, under the New York intermediate state courts’ interpretations of the office requirement, the mandate appears to discriminate against non-resident attorneys, and therefore implicates the Privileges and Immunities Clause.
Rather than deciding the case based on interpretations by intermediate state courts, the Second Circuit certified the state law question to the New York Court of Appeals—the state’s highest court—which has not yet addressed the issue. The Court of Appeals accepted the certified question in May 2014. Merits briefing is scheduled for fall 2014, and IPR will again represent the amici in the Court of Appeals.
D. Ridley School District v.M.R.
IPR is helping the parents of a child with a disability in a suit under the federal Individuals with Disabilities Education Act (IDEA) pending in the U.S. Supreme Court. IDEA seeks to ensure that children with disabilities receive a free and appropriate education (FAPE) in public schools. When parents and schools dispute whether the school district is providing a FAPE, the parties can have that dispute resolved, first, in an administrative proceeding and, after that, in the courts. Some disputes are about a student’s placement: for instance, in a special-education classroom versus a “mainstream” classroom. IDEA’s so-called “stay-put” provision says that while the dispute is pending, the student has the right to stay in his or her current placement. That way, the student has educational continuity during the dispute, which can sometimes be lengthy.
In this case, the Ridley School District argued to the U.S. Court of Appeals for the Third Circuit that the stay-put obligation runs only through the end of the trial-court proceedings and does not cover cases while in the courts of appeals (even though Ridley concedes that parties have a right to appeal). The Third Circuit rejected Ridley’s argument. Ridley then filed a petition seeking review in the U.S. Supreme Court. IPR has drafted an opposition to Supreme Court review on behalf of the child’s parents, arguing, among other things, that the stay-put provision’s purpose of stability for children would be undermined if the provision did not cover appellate proceedings.
A decision on whether the Supreme Court will review the case is expected in late September 2014.