That’s Not My Job: Is the Determination of ‘Scope of Employment’ in the FTCA a Merits Issue or a Jurisdiction Issue?

Background

The Federal Torts Claim Act (FTCA) grants federal courts jurisdiction to hear claims against the government for torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). The scope of employment issue is dispositive of both the federal court’s subject matter jurisdiction and the merits of the underlying tort claim. Thus, when a defendant wants to raise the defense that the employee was not acting within the scope of their employment, is it proper that they file a motion to dismiss for lack of subject matter jurisdiction (Rule 12(b)(1)), or a motion to dismiss on the merits (Rule 12(b)(6) or Rule 56)? The implications are huge in determining the plaintiff’s likelihood of success.

To survive a defendant’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the burden of proving subject matter jurisdiction (here specifically, the burden of proving that the defendant was acting within the scope of their employment) lies with the plaintiff. This can be a particularly difficult burden given that the discovery process has not begun yet at this stage. Moreover, trial courts have the discretion to independently evaluate factual issues for purposes of determining subject matter jurisdiction. On the other hand, for a plaintiff to survive a 12(b)(6) motion for failure to state a claim (a merit-based motion), the plaintiff’s pleaded facts are assumed to be true, and dismissal is only proper if the alleged facts fail to lay out a valid claim. The plaintiff then gets the benefit of the discovery process, allowing them to acquire otherwise private evidence of those facts, before having to prove them to the court.

The Split

The Fourth, Fifth, Ninth, and Eleventh Circuits all have held that when such a factual determination is inextricably tied to both the question of federal subject matter jurisdiction and the merits of the underlying case, the federal trial court is to assume jurisdiction, in order to evaluate the factual issue at the merits stage. The Fifth Circuit provided cogent reasoning for this stance:

No purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place greater restrictions on the district court’s discretion. Montez v. Dep’t of the Navy (5th Cir. 2004) (citing Williamson v. Tucker (5th Cir. 1981)).

The Second and Third Circuits have held that the proper way to raise the dispute as to scope of employment is at the outset—in a rule 12(b)(1) motion—citing structural implications in the FTCA as well as procedural ways to ameliorate the concerns cited above by the Fifth Circuit. The Third Circuit reasoned:

The scope-of-employment requirement of the FTCA appears in the same sentence as Congress’s grant of jurisdiction. See 28 U.S.C. § 1346(b)(1). “[J]urisdiction” in § 1346(b)(1) suggests that each clause of that provision represents a limitation on Congress’s waiver of sovereign immunity and thus a limitation on federal courts’ jurisdiction.

* * *

[W] here jurisdiction is intertwined with the merits of an FTCA claim, that a district court must take care not to reach the merits of a case when deciding a Rule 12(b)(1) motion . . Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff’s allegations. Thus, when faced with a jurisdictional issue that is intertwined with the merits of a claim, district courts “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.” CNA v. United States (3d Cir. 2008) (citing Gould Elecs., Inc. v. United States (3d Cir. 2000)).

Looking Forward

Do the normative concerns cited by the Fifth Circuit overshadow the textualist reasoning accepted by the Third Circuit? Does the Third Circuit’s claim that district courts will “demand less in the way of jurisdictional proof than would be appropriate at a trial stage” alleviate any of the concerns raised by the Fifth Circuit? For a detailed argument in favor of the Second and Third Circuit jurisdictional approach, check out Erin Murray Watkins’ article for George Mason Law Review, THE SCOPE OF EMPLOYMENT REQUIREMENT OF THE FEDERAL TORT CLAIMS ACT: THE IMPROPRIETY AND IMPLICATIONS OF THE MONTEZ DECISION, AND THE SUPERIOR JURISDICTIONAL PRIMA FACIE APPROACH.

On Whose Authority? Authorized Access and Criminalized Computer Use under CFAA

It’s a close thing, when watching a crime drama, to see whether the makers of a show thoroughly misunderstand the law or the use of computers. The fantasy of the hacker furiously typing as code streams down a computer screen, and the fantasy of the lawyer defying the judge to give a rousing speech and sway the jury, are equally illusory mainstays of network TV. Occasionally, however, law and computer technology do produce real drama. On January 13th, 2013, a young man named Aaron Swartz faced a lawsuit from the United States. Swartz, a student from MIT, had been accused of downloading over 4,000,000 articles from the online database JSTOR. Swartz had, according to the United States, broken into a network closet at MIT and downloaded the majority of the JSTOR archives, which MIT had licensed, before sharing the millions of scholarly articles on various file-sharing websites. After his breach of the network was discovered, the United States filed suit. During the course of the litigation, after learning that he could face up to seven years in prison, Mr. Swartz committed suicide.

Though this is a dramatic example of information redistribution, many who are currently law students or young lawyers grew up committing, and continue to commit, routine criminal offenses on their computers. Anyone who ever downloaded a song over Napster or Limewire, who got a free version of Microsoft Office or Adobe Photoshop from a friend on a USB drive, or fought through hundreds of pop-up ads to watch a low-res version of a not-on-Netflix movie with a date has committed a crime. Commentators have often worried about statutes that criminalize large swaths of everyday behavior, creating a situation where most people receive no penalty while an arbitrary few face crushing consequences. One such statute under scrutiny is the Computer Fraud and Abuse Act, the statute under which Mr. Swartz was prosecuted.

The Split

The Computer Fraud and Abuse Act, ‘CFAA,’ is codified at 18 U.S.C. § 1030. The CFAA criminalizes certain acts by those who have “knowingly accessed a computer without authorization or exceeding authorized access.” The question is, what constitutes authorized access? Courts have split over the proper definition. The narrow view, held by the Ninth and Fourth Circuits, interprets “exceeding authorized access” as referring to only access restrictions on restricted data itself. The broader view, held by the First, Fifth, Seventh and Eleventh Circuits, interprets “exceeding authorized access” as referring to any use of the computer that was not authorized.

Typical of the narrow interpretation is the case U.S. v. Nosal (9th Cir. 2012). The defendant, David Nosal, was planning on leaving his contracting firm and starting a competing business. Along with associates, he obtained login credentials and downloaded source lists and other data from his employer, to use in founding his own company. Nosal summarises the split well:

This language can be read either of two ways: First, as Nosal suggests and the district court held, it could refer to someone who’s authorized to access only certain data or files but accesses unauthorized data or files—what is colloquially known as “hacking.” For example, assume an employee is permitted to access only product information on the company’s computer but accesses customer data: He would “exceed authorized access” if he looks at the customer lists. Second, as the government proposes, the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.

After review, the Ninth Circuit upheld the reasoning of the district court, arguing both that the broad interpretation made redundant prior “without authorization,” clause of the statute, and that the federal statute too broadly criminalized computer use:

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.

The broader view can be found in cases like U.S. v. Rodriguez (11th Cir. 2010), argued in the Eleventh Circuit. Rodriguez found that an employee in the Social Security Administration who authorized personal information in the database without a business reason had violated the CFAA, as “the policy of the Administration is that use of databases to obtain personal information is authorized only when done for business reasons… In the light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.”

Looking Forward

Many tech commentators continue to worry that the CFAA as interpreted as broadly as it is in the Rodriguez case will, as the Ninth Circuit notes, criminalize even basic work slacking. Despite his win, the defendant Nosal found himself in court again for U.S. v. Nosal (9th Cir. 2016), or “Nosal II.” In this case, Mr. Nosal was found in violation of the CFAA, though the Ninth Circuit retained their narrow interpretation. Mr. Nosal appealed to the Supreme Court, and the case was denied certiorari. Until the Supreme Court clarifies the CFAA, courts will continue to disagree on how broadly the statute should be interpreted, and on whether the use of a work computer “without a business reason,” like sneaking some Netflix in during company time, should be a federal crime.

Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

The Demise of “married Sunday, fired Monday”: Sexual Orientation Discrimination in Title VII

The Issue

In June 2015, the Supreme Court held in Obergefell v. Hodges that states must license and recognize same-sex marriages under the Due Process Clause of the Fourteenth Amendment.  While this historic decision opened the chapel doors for same-sex couples, the LGBT community still faces discrimination in other arenas, including employment. Does discrimination based on an employee’s sexual orientation fall under the prohibition of sex discrimination in Title VII of the 1964 Civil Rights Act? Overturning circuit precedent, the Seventh Circuit says yes. The Seventh Circuit is the first to rule in favor of expanding the meaning of discrimination on the basis of sex to include sexual orientation, and is therefore at odds with its sister circuits.

Title VII and Sex Discrimination Cases

Title VII of the Civil Rights Act of 1964 states that an employer subject to the Act cannot discriminate in hiring practices or against employees on the basis of “race, color, religion, sex, or national origin.”  While the Supreme Court has not directly weighed in on whether this statute bans discrimination based on sexual orientation, the Court has previously interpreted the meaning of sex for Title VII purposes. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that discrimination against an employee because he or she does not conform to gender stereotypes is prohibited. In Price Waterhouse, a female senior manager claimed her employer discriminated against her when the firm held her candidacy for a partnership position and failed to propose her for the position because she expressed more masculine attributes in her dress, hair, and personality. In Oncale v. Sundowner Offshore Servs. Inc. (1998), the Supreme Court again expanded sex discrimination under Title VII, holding that the sex of a harasser is immaterial to whether there was sex discrimination. Courts have used these cases to both support and undermine the inclusion of sexual orientation discrimination within Title VII.

The Split

The most recent circuit spilt on this issue is between the Seventh and Eleventh Circuit. In Hively v. Ivy Tech Cmty. College of Ind. (2017), a former part-time professor alleged discrimination under Title VII for her unsuccessful applications for a full-time position as well as the school’s failure to renew her part-time contract in 2014 because she is a lesbian. The Seventh Circuit, in an en banc decision, held that Hively’s claim fits within the interpretation of sex discrimination of Title VII because it is based on assumptions about the proper behavior for someone of a given sex.

The discriminatory behavior does not exist without taking the victim’s biological sex into account. Any discomfort, disapproval, or job decision based on the fact that the complainant- woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

The court made this determination by using a comparative method of analysis wherein it isolated the significance of the plaintiff’s sex in the employer’s decision and changed only that variable. Examining the situation if all the circumstances were the held the same, including the sex of her partner, and only Hively’s gender was changed, the court stated that “Hively represents the ultimate case of failure to conform to the female stereotype.” The Seventh Circuit also referred to the Supreme Court’s decision in Loving v. Virginia (1967) which held that discrimination because of the race with whom a person associates is a form of racial discrimination, to support its decision under an associational theory.

In Evans v. Ga. Reg’l Hosp. (2017), the Eleventh Circuit dismissed the plaintiff’s sexual orientation discrimination claim as such discrimination is not prohibited by Title VII. The court stated that it was required to follow its precedent in Blum v. Gulf Oil Corp. (1979) that “discharge for homosexuality is not prohibited by the Title VII”, unless the ruling is overruled either by the Supreme Court or the Eleventh Circuit sitting en banc. Rejecting the argument by the plaintiff that the Supreme Court decisions of Price Waterhouse (1989) and Oncale (1998) supported encompassing sexual orientation into sex discrimination, the court stated that these decisions were not clearly on point.

Looking Towards the Supreme Court

In September 2017, the Second Circuit sitting en banc heard oral arguments for Zarda v. Altitude Express, a case regarding this very question. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice both filed amicus briefs. In rare fashion, these two government agencies have opposite positions. In 2015, the EEOC announced that sex discrimination in Title VII includes discrimination based on sexual orientation. The Trump Administration and Department of Justice argue that because Title VII does not define the word sex, it must be taken in its common meaning to mean biologically male or female and, therefore, the law does not encompass discrimination based on sexual orientation. The brief further states that Congress has had ample time and opportunity to add sexual orientation discrimination into the legislation and has chosen not to. The split and opposing opinions present compelling reasons for the Supreme Court to take on the issue in the coming years. It may even be sooner rather than later, as LGBT advocacy group, Lambda Legal, has filed a petition for a writ of certiorari with the Supreme Court to appeal Evans.

 

Splitting the Baby: Does the Child Have a Say?

Divorces can be hard enough on children without being abducted by one of their parents. Unfortunately, this problem occurred frequently enough for 98 countries to adopt an international law addressing this problem. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for a prompt return of children to their “habitual residence” in the event of being wrongly removed or retained in a foreign country by one of their parents. 22 U.S.C. § 9003(e). The Convention sets out to protect children in the context of custody battles by deterring parents from crossing international borders in an attempt to gain advantage in a more favorable jurisdiction.

The sole purpose of the Convention is to protect children who are uprooted from their homes in the wake of their parents’ split by returning them to their “habitual residence.”  Unfortunately, the Convention failed to define what constitutes a child’s “habitual residence,” which gave rise to competing interpretations of the term. The point of contention is whether the child’s perspective rules in determining where they must be returned or if greater weight should be given to the parents’ last shared intent regarding the child’s residence.

The Split

Courts of most contracting nations evaluate both of these factors – the child’s perspective as well as the parents’ shared decision prior to the break-up. However, courts in the U.S. disagree regarding which one of them is dispositive. In Cohen v. Cohen (8th Cir. 2017), after a mother and child moved to St. Louis from Israel, the relationship between the parents deteriorated. The father filed a request to have the child returned to Israel under the Convention. He asserted that the parents agreed that if the father will be unable to join his family in the United States, they will return to Israel. He “urge[d] the court to adopt the standard applied in the Second Circuit, among others, which gives dispositive weight to parental intent,” in reference to Gitter v. Gitter (2nd Cir. 2005).  In Gitter, the Second Circuit concluded that:

“…the first step in determining a child’s habitual residence is to inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared.”

The Cohen court refused to adopt this standard, giving greater weight to the fact that the child has spent a significant portion of his life in the United States, where he has been going to school, socializing, and making other significant connections in the community.  The Eighth Circuit “declined to adopt this standard and decided that [they] determine habitual residence from the child’s perspective.” Although the court admits that the parents may have a more mature perspective on the situation, their primary goal is to ensure the child remains in their habitual environment.

The child-focused approach is in the minority, distinct from the “Mozes framework” proclaimed in the Ninth Circuit’s Mozes v. Mozes (2001). Here, the Ninth Circuit held that children “normally lack the material and psychological wherewithal to decide where they will reside,” so the dispositive weight is given to the last shared intent of “persons entitled to fix the place of child’s residence.” The Fourth, Seventh, and Eleventh Circuits, among others, adopted this perspective. However, the court in Redmond v. Redmond (7th Cir. 2013) attempted to reconcile the two approaches, emphasizing that “habitual residence” should be a “practical, flexible, factual inquiry, not a “fixed doctrinal test.” While it declared that it also subscribes to the Mozes framework, the Seventh Circuit Court declared that courts should consider both elements and determine which one deserves greater weight on a case-by-case basis.

Looking Forward

Since the Convention focuses on preventing children from needlessly suffering as a result of their parents’ actions, the Second Circuit’s decision to prioritize the child’s perspective seems like the just approach. However, the majority view, articulated by the Ninth Circuit, also have some traction, particularly in situations involving younger children. Although the courts have an interest in establishing a consistent interpretation, many commentators emphasize the importance of flexibility in determining the meaning of “habitual residence.” Depending on the child’s age and circumstances, a case-by-case approach will likely result in more equitable decisions than when applying a rigid, uniform principle. If the Supreme Court ever decides to address this question, it could likely establish a fairly flexible test, similar to the Redmond opinion, allowing the courts a lot of discretion in subsequent cases.