Too Little Too Late If You Work for The State? The Applicability of Employee Thresholds to Age Discrimination Claims from State Workers

The Issue

Americans born in 1978 will be turning 40 this year. In addition to the wisdom that comes with age, these citizens will also be gaining the possibility of protection from age discrimination under the Age Discrimination and Employment Act (ADEA). This act prohibits employers from discriminating “against persons 40 years of age or older.29 U.S.C. §§ 621–34. According to 29 U.S.C. § 630(b), the term “employer” is defined as:

[…] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year․ The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. (Emphasis Added)

If the “twenty or more employees” threshold is not met, workers over 40 are ineligible for ADEA protection. The circuit courts are split on whether the 20-employee threshold only applies to persons, or whether agents of persons, and state entities are included.

The Split

The Seventh Circuit

In Kelly v. Wauconda Park Dist. (7th Cir. 1986), the Seventh Circuit ruled that government entities were encompassed by the 20-employee threshold in 29 U.S.C. § 630(b). The court utilized a two-step process in determining whether government entities had to meet the 20-employee threshold. First, the court looked at whether 29 U.S.C. § 630(b) is ambiguous. If the statute was determined to be ambiguous, then the court would analyze legislative history to guide its decision.

In the first step of the analysis, both parties made arguments about the ambiguity of the statute. Kelly made an argument that the statute excluded government entities, and Wauconda argued that government entities were included by the statute. The court concluded that the statute was ambiguous because it had two reasonable but differing interpretations.

The court then analyzed the legislative history. The lower court ruled “that ‘[t]he legislative history of the 1974 amendment, the similarities between it and a parallel amendment of Title VII, and common sense’ all favor [Wauconda’s] reading of section 630(b).” The Seventh Circuit believed that the analysis of the 1974 ADEA amendment’s history was a valid point, and that Title VII had a large number of parallels to the ADEA. Ultimately, the Seventh Circuit held that the legislative history weighed in favor of the ADEA’s 20-employee threshold applying to government entities.

Therefore, Wauconda Park District, a local government entity, was not an “employer” for ADEA purposes because it did not have the required number of employees as specified in 29 U.S.C. § 630(b).

The Sixth, Eighth, and Tenth Circuits

In EEOC v. Monclova Township (6th Cir. 1990), Palmer v. Arkansas Council On Economic Education (8th Cir. 1998), and Cink v. Grant County (10th Cir. 2015), the Sixth Circuit, Eighth Circuit, and Tenth Circuit, respectively, came to the same conclusion as the Seventh Circuit in Kelly.  Each circuit held that the 20-employee threshold applied to state entities.

The Ninth Circuit

In Guido v. Mount Lemmon Fire Dist. (9th Cir. 2017), the court held that the ADEA definition of “employer” “is deconstructed as follows: The term “employer” means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” Due to the division of these three categories, the “person” category is the only category of the three that is modified by the “who has twenty or more employees” clause. If this is the case, then “agents of the person” or “state-affiliated entities” would have to comply with the ADEA regardless of meeting the 20-employee threshold.

The court supports their position by claiming that the “person” category is further defined by 29 U.S.C. § 630(a) (The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons), and is narrowed by the “engaged in an industry affecting commerce who has twenty or more employees for each working day” clause. The court also claims that the “state-affiliated entities” category is further defined by “the various types of State-affiliated entities covered, such as a ‘political subdivision of a State’.”

The Equal Employment Opportunity Commission (EEOC) supports the Ninth Circuit’s holding. The EEOC states that when Title VII was amended, Congress was able “to apply clarifying language across multiple definitions of a term.” The clarifying language in question applied to “States and State-related entities, including political subdivisions of a State.” 42 U.S.C. § 2000e. The EEOC believed that Congress could have applied similar language to 29 U.S.C. § 630(b) if it had wanted to, but that Congress chose not to.

The ninth circuit ultimately held that “a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA.”

Looking Forward

Based on the holdings from the various circuits, a state entity may or may not be considered an “employer” under the ADEA’s 20-employee threshold. On February 26, 2018, the Supreme Court granted certiorari to hear the case of Guido v. Mount Lemmon Fire Dist. Thus, the issue may be resolved soon.

For further reading, see what Squire Patton Boggs has to say on the topic.

Stay-Put or Pay for Better: Students with Disabilities and the Stay-Put Provision

ISSUE

The Individuals with Disabilities Education Act (IDEA) requires school districts to develop Individualized Education Programs (IEP) for children with disabilities specifying how each student will receive a Free Appropriate Public Education (FAPE). A variety of disputes may arise over what constitutes a FAPE for a student with disabilities. If a parent or guardian feels their child is not receiving adequate resources, they may approach the district for a collaborative process towards resolution. However, either party, the school district or the parent, may also file a complaint to request a hearing, which gives the parties 30 days to resolve the dispute. An additional 45 days may be allotted if a resolution is still not reached.

As part of that process, the “stay-put” provision protects students while parents and school districts resolve their dispute over how to best educate the student. The provision provides: “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.” The purpose of the provision is to prevent schools from excluding students with disabilities and to provide stability for those students during their hearing. Town of Burlington v. Dep’t of Education (1985). In Burlington, the Supreme Court affirmed reimbursement for private school placement during trial, but it is unclear whether reimbursement is available throughout appellate procedure.

If a school district prevails in the dispute, parents still upset with the outcome are generally forced to enroll their students in private schools. They also hold the right to seek state or federal court review post the initial decision. However, courts are split whether the “stay-put” provision applies through the pendency of the appellate case and whether parents and guardians are entitled to tuition reimbursement at private schools if the court ultimately holds in their favor on appeal.

SPLIT

The courts of appeals are divided as to whether the stay-put provision applies through the judicial appeals process or whether it drops after the trial court reviews the state administrative decision.

The D.C. Circuit originally held that the stay-put provision only applies through the trial court decision and the word “proceedings” does not include judicial appeals.

D.C. Circuit: In Andersen v. District of Columbia (D.C. Cir. 1989), four children with learning disabilities sought reimbursement from the District of Columbia Public Schools for expenses of tuition at private specialized schools. The court held that assertion inconsistent with statutory language because the statute in Section 17 refers only to “due process hearings, state administrative review where available, and civil actions for review brought in district court.” The court also referenced legislative purpose, stating:

“Once a district court has rendered its decision approving a change in placement, that change is no longer the consequence of a unilateral decision by school authorities; the issuance of an automatic injunction perpetuating the prior placement would not serve the section’s purpose.”

However, recently, the Third and Ninth Circuits created a split by holding that the pendency applies through appeals. Under this decision, the student would be entitled to stay-put provision protection and reimbursement through lengthy appellate trials.

Ninth: In Joshua A. v. Rocklin (9th Cir. 2009) the court held that the Andersen interpretation was overly narrow and that allowing the district to terminate the child’s placement during the appeals process runs counter to the purpose of the stay-put provision:

“[R]efusing to enforce the stay put provision during the appeals process would force parents to choose between leaving their children in an education setting which potentially fails to meet minimum legal standards, and placing the child in private school at their own cost. Congress sought to eliminate this dilemma through its enactment of § 1415(j).”

Third: In M.R. v. Ridley (3rd Cir. 2014), the court found it was impossible to protect a child’s educational status quo without enforcing the stay-put provision through appellate procedure and was an unavoidable consequence of the balance Congress struck to ensure stability for a vulnerable group of children.

LOOKING FORWARD

Currently, the Supreme Court’s Burlington decision does not definitively say whether parents can be reimbursed for appellate procedure. The dicta in the opinion suggests that reimbursement for appellate procedure should only be approved if “the State or local education agency and the parents… agree.” But the recent Third and Ninth Circuit interpretations contradict this dictum and indicate a shift away from the Burlington dictum. Furthermore, other Supreme Court cases referencing the IDEA have emphasized the importance of the protecting disabled students’ placement and entitlement to FAPE. Limiting the stay-put provision to trial courts forces disabled children with limited means to move back to placements that could have been inappropriate to avoid costs that they may be entitled to under further consideration.

 

Are We Done Yet ?… The Investigation That Never Ends.

The Issue

Does the EEOC have investigative authority to subpoena employers for information after the EEOC has issued an employee a right-to-sue letter? What about after a court has already entered a judgment on the merits in favor of the employer? The Seventh Circuit says yes. 

The EEOC… What Now?

The Equal Employment Opportunity Commission (EEOC) is an agency that was created by Congress under the Civil Rights Act of 1964. The purpose of the agency is to serve the public interest by enforcing the provisions of Title VII of the Civil Rights Act and other non-discriminatory legislation in the workplace context. Under the Equal Employment Opportunity Act of 1972, the EEOC’s power was magnified to include enforcement through the courts, longer periods of time for administration, and conciliation of charges. Further, Section 706 of this Act lays out the procedures and timing guidelines for claims filed with the agency.

First, an aggrieved employee may file a charge with the EEOC. Thereafter, the agency investigates the claim against the employer. This investigation could include a subpoena for relevant information and ultimately lead to a lawsuit filed by the agency itself. The charging employee has the option to allow the charge to be resolved by the EEOC or to obtain a right-to-sue letter from the EEOC, which is necessary to file a lawsuit in federal court (excluding charges under the Age Discrimination in Employment Act).

The Split

The Seventh Circuit joins the Ninth Circuit in holding that the EEOC has the administrative authority to investigate possible discrimination independent of the employee’s cause of action. In EEOC v. Union Pac. R.R (2017), the Seventh Circuit upheld the EEOC’s ability to continue investigating an employer after issuing a right-to-sue notice to an employee and after the dismissal of the employees’ subsequent civil lawsuit on the merits. The court reasoned that ruling otherwise would erroneously undermine the EEOC’s authority as “merely derivative” of the employee’s right to sue, which would be contrary to the holding of the Supreme Court in EEOC v. Waffle House (2002).

In EEOC v. Fed. Express Corp. (2008), the Ninth Circuit held that the issuance of a right-to-sue letter does not strip the EEOC of authority to continue to process the charge, including an independent investigation of allegations of discrimination on a company-wide basis. They reasoned that “the EEOC’s right of action is independent of the employee’s private action rights” and further that “it is the [EEOC]’s province–not that of the court–to determine whether public resources should be committed” to the continuing investigation of a charge.

However, in EEOC v. Hearst (1997), the Fifth Circuit held that the EEOC “may not continue an administrative investigation based upon an individual’s charge once the charging party has been issued a right to sue letter and has initiated litigation based upon that charge.” They reasoned the time for investigation passes after litigation has commenced.

Looking Forward

The Seventh Circuit’s opinion largely aligned with the US Supreme Court’s holding in EEOC v. Waffle House (2002).  The Supreme Court reasoned that “[t]he statute clearly makes the EEOC the master of its case and confers on the agency the authority to evaluate the strength of the public interest at stake.”

Following the Seventh Circuit’s decision, the EEOC’s investigative authority could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the issue of whether a valid, final judgment on the merits presents enough discovered information on the employer’s practices would be a different issue from that of Waffle House. The Supreme Court of the United States may need to more definitively rule on this issue for uniformity of the law across circuits.

Agree to Disagree: Defining Submission to Police Authority

Issue

The Fourth Amendment of the Constitution protects against unwarranted searches and seizures, which begs the question—what exactly constitutes a seizure? In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. In the wake of this decision, circuit courts have struggled to define the phrase, “submission to police authority,” resulting in a split of authority. The emergent view in the Courts of Appeals, although admittedly uneven within the circuits, is that when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.” United States v. Camacho (1st Cir. 2011). Some courts have adopted this rather broad interpretation of the term, imparting a low standard for submission. Other courts have adopted a narrow view, requiring additional conduct to meet the standard.

The issue of defining submission is incredibly significant because of its impact on other aspects of a case. For example, whether or not a defendant is deemed to have submitted to police authority can determine what evidence may be presented at trial, which can significantly influence the outcome of a case. The Fourth Amendment serves to protect against unwarranted invasions of privacy by requiring probable cause. The Fourth Amendment “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho (1st Cir. 2011).

The Split

The following circuits have adopted the view that brief compliance followed by flight does not constitute submission.

  • Second Circuit: In United States v. Huertas (2d Cir. 2017), the court held that, in dealing with the police, conduct that amounts to evasion cannot be considered submission.
  • Third Circuit: In direct contradiction with the Tenth Circuit’s ruling, the court in United States v. Valentine (3d Cir. 2000) held that a brief pause does not make for a submission, and therefore the defendant in this case was not seized within the Fourth Amendment meaning.
  • Ninth Circuit: In United States v. Hernandez (9th Cir. 1994), the court rejected the defendant’s argument that he was “seized” because he briefly submitted to the police officer’s show of authority before fleeing. The court here requires a discernible showing of compliance to constitute submission:

“We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.”

The following circuits have adopted the view that brief compliance followed by flight does constitute submission.

  • First Circuit: In United States v. Camacho (1st Cir. 2011), the court held that once a defendant responds to questions posed by the police, he or she has submitted to police authority.
  • Tenth Circuit: In United States v. Morgan (10th Cir. 1991), the court held that even the slightest form of compliance, in this case, a momentary hesitation, is enough to constitute submission. The court explains its reasoning as follows:

“Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter.”

  • D.C. Circuit: In United States v. Brodie (D.C. Cir. 2014), the court ruled that when a defendant complies with an officer’s orders by engaging in overt acts, such as putting one’s hands on the car, the defendant has submitted to police authority.

Looking Forward

Although the Supreme Court expressly outlined the requirements for a “seizure” in California v. Hodari D. (1991), it still left some questions unanswered—circuit courts were tasked with the responsibility of defining “submission to police authority,” and conflicting rulings resulted. Branden Huertas submitted a petition for writ of certiorari to the Supreme Court in December 2017, in hopes of appealing the Second Circuit’s decision in United States v. Huertas (2017). In the petition, Huertas discusses the split among the lower courts and urges the Supreme Court to review the issue. In his petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit, Huertas notes: “The conflict is widely recognized by courts and commentators. It also is deeply entrenched; the courts on either side of the split have acknowledged the contrary reasoning of their peers and have had multiple opportunities to reconsider their positions, but the conflict has persisted. Thus, only this Court can restore uniformity on this important question of Fourth Amendment law.” For further reading, see the petition for writ of certiorari: Huertas v. United States.

Card Declined: The Credit Card Fraud – Crime Sentencing Transaction

The Issue

Wire fraud, an intentional act to defraud another individual or entity of property (usually money) through electronic means, is becoming an increasingly common and widespread crime in the United States. According to a study by Javelin Strategy & Research in partnership with LifeLock, Inc., approximately 15.4 million consumers were victims of identity theft or fraud in 2016, up 16 percent from 2015, and more than ever recorded by the firm. Obtaining credit card numbers, encoding them on blank cards, and making purchases or withdrawals from automated teller machines (ATMs) has become a favorite medium of crime among fraudsters. When determining how a perpetrator of wire fraud should be sentenced for possessing credit cards that are canceled, expired or attached to an account from which all funds have been successfully siphoned, a key issue is whether the “access device” is in fact usable by the perpetrator.

The Split

Credit cards that have been encoded with stolen numbers and used fraudulently are governed by 18 U.S.C. § 1029(e)(1) and (e)(3). Of particular importance, Application Note 3(F)(i) of § 2B1.1 of the sentencing guidelines says in cases involving “unauthorized access devices,” in this case credit cards, “loss includes any unauthorized charges made with the counterfeit access device.”

The Ninth Circuit ruled on this issue in 2012, when it considered United States v. Onyesoh, which explored access device fraud under 18 U.S.C. § 1029 and whether the government must prove the usability of an expired credit card number in order for a district court to increase the severity of a sentence. In Onyesoh, the Ninth Circuit held that unauthorized access devices must be usable:

An “unauthorized access device” must be an “access device,” which itself must be capable of obtaining “money, goods, services, or any other thing of value.” 18 U.S.C. § 1029(e)(1) and (e)(3). The statute’s language is clear and we give it full effect—unauthorized access devices are a subset of access devices, and therefore must be capable of obtaining something of value…The statute is intended to target major fraud operations instead of individual [fraud]…But the kind of devices potentially covered by the statute says nothing about the quantum of proof necessary to establish usability. The legislative history simply does not address that issue. No court, in this or any other circuit, has read usability out of the statute.

But in deciding United States v. Popovski at the end of 2017, the Seventh Circuit changed the score. Judge Easterbrook adopted the Sixth Circuit’s 2015 decision in United States v. Moon, arguing that the statute and note must be read together:

[T]he definition of “unauthorized access device” in § 1029(e)(3) includes “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud”. This necessarily implies that a card, number, or other identifier with a potential to obtain goods or initiate a transfer of funds remains an “access device” even if it is “expired, revoked, [or] canceled.” These two statutory paragraphs can work together only if paragraph (1) defines an “access device” according to its nature—the sort of thing that could in principle be used to get goods or funds, whether or not it would work in practice…. If a calculation under Application Note 3(F)(i) overstates the seriousness of the offense, a district judge must adjust accordingly. That process, rather than warping the language of § 1029(e), is the way to avoid the Ninth Circuit’s parade of horribles.

While the Ninth Circuit’s decision was likely predicated on a desire to prevent obtuse sentences for criminals who possessed but did not use expired credit card numbers, Judge Easterbrook’s scathing critique of the Ninth Circuit made clear that the Seventh Circuit, like the Sixth Circuit, will not cut financial criminals any sentencing slack:

Like the panel in Onyesoh, we too think that a district judge should not increase a sentence just because the defendant possessed ancient pieces of plastic or lists of numbers useful only during the reign of Xerxes. But we disagree with Onyesoh’s view that this result should be achieved by treating the language in § 1029(e)(3) as irrelevant to the meaning of “access device”. Courts must read the statute to reconcile these paragraphs.

Looking Forward 

After a new sentencing hearing, the Ninth Court of Appeals and the Supreme Court denied Onyesoh’s petition for a writ of certiorari.  Certiorari is currently pending for Popovski, but the Supreme Court has not expressed interest in ruling on the case in the current session.

Judge Easterbrook, in deciding United States v. Popovski, came down hard on the Ninth Circuit’s interpretation of the sentencing law regarding this sort of wire fraud. He argued, in part, that district judges can come to a workable resolution under the current law without disregarding any specific portion of the statute. Following Judge Easterbrook’s logic, it seems unlikely that this issue will pique the Supreme Court’s interest. Nevertheless, if credit card fraud continues to rise at record levels and continues to emerge as the cause celebre of the consumer crime world, constituent pressure may push Congress to act.

 

Do Potential Deportees Have A Constitutional Right To Be Made Aware Of Discretionary Relief From Removal?

The Issue

Section 212(h) of the Immigration and Nationality Act (INA) lists reasons and conditions under which a potential deportee can request discretionary relief from removal. However, not all persons who are subject to deportation know that the possibility of relief is available. Because granting relief from removal is a wholly discretionary decision, deportees who fail to present their eligibility during their removal proceedings might not receive such relief.

Emilio Estrada is a Mexican citizen who was charged with illegal re-entry after deportation, and subject to deportation proceedings.  Estrada’s attorneys failed to advise him about his possible eligibility for relief from deportation, and Estrada did not request discretionary relief. Estrada later collaterally attacked his deportation order, claiming that this failure constituted a violation of his due process rights. In United States v. Estrada (2017), the Sixth Circuit disagreed. Relying on precedent, the court stated that there is no constitutionally-protected right to be informed of relief from deportation because such relief is discretionary. The Sixth Circuit joins six of its sister circuits in this holding. But the Second and Ninth Circuits have held that there is a constitutionally-protected right to be informed of potential relief from deportation, and that a failure by an attorney or an immigration judge to make the potential deportee aware of such relief constitutes a due process violation.

The Split

In Estrada, the Sixth Circuit followed circuit precedent from Huicochea-Gomez v. INS (2001), stating that “an individual has no constitutionally-protected liberty interest in obtaining [or being informed of] discretionary relief from deportation.” The court further stated that the discretionary nature of the relief does not “create a protectable liberty or property interest,” and without such an interest, a due process violation cannot occur.

The Sixth Circuit joins the majority of its sister circuits in holding that an undocumented immigrant does not have a constitutional right to be informed of eligibility for discretionary relief:

  • In Smith v. Ashcroft (2002), the Fourth Circuit stated that “for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation…of a benefit. There must be entitlement to benefit as directed by statute.”
  • In United States v. Lopez-Ortiz (2002), the Fifth Circuit stated that “[discretionary relief] conveyed no rights, it conferred no status,” and its denial does not implicate the Due Process clause.”
  • In United States v Santiago-Ochoa (2006), the Seventh Circuit relied on dicta from a previous circuit decision, stating that “it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause was designed to protect.”
  • In Escudero-Corona v. INS (2001), the Eighth Circuit stated that “eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General,” and as such, did not confer a constitutionally-protected right.
  • In United States v. Aguirre-Tello (2004), the Tenth Circuit held that an undocumented immigrant’s constitutionally-protected rights only included the right to “be heard at a meaningful time and in a meaningful place, and nothing more.”
  • In Oguejiofor v. Attorney General of the United States (2002), the Eleventh Circuit held that the petitioner could not assert a due process challenge because he had “no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”

In contrast, the Second and Ninth Circuits have held that there is a constitutional right to be advised of discretionary relief:

  • In United States v. Copeland (2004), the Second Circuit stated that “[failing] to advise a potential deportee of a right to seek…discretionary relief can, if prejudicial, be fundamentally unfair.”
  • In United States v. Lopez-Velasquez (2010), the Ninth Circuit stated that “failure to advise an alien of his potential eligibility for discretionary relief violates due process.”

Looking Forward: The Current Administration and the Role of Attorneys

The United States Supreme Court denied certiorari in United States v. Lopez-Ortiz (2002). But given the current administration’s heightened enforcement of immigration laws and the constitutional question posed by this now-current issue, the circuits — and potential deportees and their families — would benefit from a clear ruling from the Supreme Court on this issue. The Sixth Circuit’s ruling brings to the forefront an issue that could have a tremendous and life-changing impact on potential deportees. Because Estrada considers a constitutional question, rather than challenging an actual exercise of discretion, this issue should not fall prey to the bar to judicial review of discretionary immigration decisions.

Estrada, and the cases cited above raise another concern — the failure by attorneys to make their clients aware of the potential for discretionary relief, which was the grounds upon which Mr. Estrada and other potential deportees claimed that their due process rights had been violated. This is not to suggest that attorneys are outright failing their clients. The INA is a complex statute and the grounds for relief are not entirely obvious or well-publicized. Section 212(h) of the INA provides an exhaustive list in of reasons upon which a potential deportee can request relief. While the measures for relief are discretionary and do not guarantee that a person’s deportation will be suspended, attorneys who are representing potential deportees should be aware that there are federal statutory provisions that could help them more thoroughly advocate for their clients. Attorneys — and even law students — who work with undocumented immigrants and others who could be subject to deportation proceedings can take steps to educate themselves and their colleagues on these measures.

A Taxing Dilemma: Whether Gross Ups are Permitted for Title VII Back Pay Awards

When an employee sues his or her employer in a Title VII action, the employee may be awarded a lump sum as back pay. That lump sum can cause a tax problem for the employee, who may be pushed into a higher tax bracket and therefore owe more in taxes than he or she would have owed if the employer had made the payments over time. Some appellate courts have allowed federal district courts the discretion to award a tax consequence adjustment, or “gross up,” for receipt of a lump sum back pay award to offset this consequence and make the employee whole. The Ninth Circuit recently joined the Third, Seventh, Ninth, and Tenth Circuits by allowing gross ups, furthering the split with the D.C. Circuit.

The Split

 In a brief opinion, the D.C. Circuit rejected the possibility of gross ups in Danshaw v. Pena (1994), abrogated on other grounds by Rann v. Chao (2003):

We know of no authority for such relief…Given the complete lack of support in existing case law for tax gross ups, we decline so to extend the law in this case.

The Third, Seventh, Ninth, and Tenth Circuits disagree and allow district courts to award a gross up. The core of their viewpoint is that gross ups are necessary to make the plaintiff whole. Without any tax consequence adjustment, the plaintiff is still damaged by the employment discrimination. In its recent opinion joining these other Circuits, the Ninth Circuit described this position in Clemens v. CenturyLink Inc. (2017). It emphasized that Title VII exists “to make persons whole for injuries suffered on account of unlawful employment discrimination” and “provides courts with considerable equitable discretion to ensure adequate compensation.” The Ninth Circuit followed the Seventh Circuit’s opinion in EEOC v. N. Star Hosp., Inc. (2015) by citing Title VII as the source of courts’ authority to award back pay gross ups. There, the Seventh Circuit agreed with the Third and Tenth Circuits that “without the tax-component award, [the plaintiff] will not be made whole, a result that offends Title VII’s remedial scheme.”

In Eshelman v. Agere Sys. Inc. (2009), the Third Circuit noted that the decision of whether to award a gross up is within the discretion of the trial court:

[W]e do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences above the amount to which she would otherwise be entitled. Employees will continue to bear the burden to show the extent of the injury they have suffered. The nature and amount of relief needed to make an aggrieved party whole necessarily varies from case to case.

While these four Circuits find that Title VII commands the possibility of gross ups to make a plaintiff whole, they do not find that plaintiffs are automatically entitled to the adjustment. While the D.C. Circuit categorically rejects gross ups, even in those courts that permit the possibility of gross ups, whether a plaintiff may receive a gross up, and how much of an adjustment is made, will depend on the particular case.

Looking Forward

Gross ups in awards for back pay in Title VII cases are ripe for Supreme Court review.  SCOTUS may want to settle (1) whether gross ups are permitted at all, and (2), if they are, what factors a district court should consider when exercising its discretion to make a determination in a particular case. In allowing the possibility of gross ups, the Third Circuit in Eshelman noted that a prevailing plaintiff is not automatically entitled to a gross up; the relief required to make an employee whole will inexorably vary depending on the case. The Ninth Circuit in Clemens suggested that difficulty in determining the proper gross up or negligibility of amount may be such factors that would make a gross up inappropriate, but it may be helpful to establish a set of criteria for district courts to use in their review.

Is following procedure discretionary? Limits on the jurisdictional ban on review of discretionary immigration decisions

Issue

In the Immigration and Nationality Act (“INA”), Congress provided certain limits on a court’s jurisdiction to review discretionary decisions by the United States Citizenship and Immigration Services (“USCIS”). The INA provides that “the Secretary of Homeland Security may … for what he deems to be a good and sufficient cause, revoke the approval of any petition approved by him….” 8 U.S.C. § 1155. The substance of such discretionary decisions is not reviewable by the courts under 8 U.S.C. § 1252(a)(2)(B)(ii). The issue is whether the courts can still review the procedural basis for those discretionary decisions.

The issue arose in the context of three almost identical cases in three separate circuits. In each of the cases, the US employer of a citizen of India filed an I-140 (immigrant petition for alien worker) on the employee’s behalf. The employee then changed companies and “ported” their I-140 to their new employer under Section 105 of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). The initial I-140s were subsequently revoked and the employees’ requests for adjustment of status denied. The employees in each case sought to appeal the decision alleging that USCIS failed to follow its own procedural regulations in revoking their I-140s.

If a Supreme Court Decision is rendered that—under the discretionary bar—courts could not review such procedural questions, procedural regulations in the immigration context, which supposedly protect the rights of immigrants, would serve as little more than suggestions. For example, in the I-140 context discussed in these cases, supposed protections like the requirement for notice and opportunity to present evidence could be unenforceable by the people affected.

Split

The split exists between the Second and Eleventh Circuits, holding that the courts have jurisdiction to hear claims that USCIS failed to follow procedural regulations, and the Eighth Circuit, holding that the courts lack jurisdiction to hear such procedural claims.

The Second and Eleventh Circuits focus on the word ‘discretionary’ in the statutory limits on jurisdiction found in 8 U.S.C. § 1252(a)(2)(B)(ii).

In Kurapati v. U.S. Bureau of Citizenship and Immigration Servs. (2014), the Eleventh Circuit reasoned that “If … USCIS failed to follow the correct procedure in revoking the I-140 petitions, that failure was not within USCIS’s discretion. § 1252(a)(2)(B)(ii) thus does not prevent judicial review of the conduct of the administrative proceedings.”

In Mantena v. Johnson (2015), the Second Circuit similarly held that “compliance with regulations establishing procedural requirements is ‘not within the discretion of the Attorney General,’ so the INA’s jurisdiction-stripping provision does not apply.”

In contrast, the Eighth Circuit ignores the word ‘discretionary’ and instead draws a distinction between reviewable and non-reviewable procedural questions.

In Rajasekaran v. Hazuda (2016), the Eighth Circuit first noted the Supreme Court’s holding that “courts review an agency’s compliance with its own regulations when … the rules were intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion….” The Eighth Circuit relied on its own precedent in drawing the distinction that “where a procedural rule is designed primarily to benefit the agency in carrying out its functions, judicial review may be circumscribed.” Without explicitly stating that the case fell into this latter category, the court implied within its ultimate holding that the court lacked jurisdiction to review what it calls the agency’s “discretionary procedural decisions.”

In short, while the Second and Eleventh Circuits uphold jurisdiction over review of compliance with procedural requirements on the grounds that following procedural regulations is not discretionary and therefore not covered by the jurisdictional ban, the Eighth Circuit denies jurisdiction over such review on the grounds that these procedural rules are merely designed to help the agency carry out its functions and are still within the umbrella of discretionary decisions covered in the jurisdictional ban.

Looking Forward

On December 5, 2016, the Supreme Court denied a petition for writ of certiorari for the Eighth Circuit’s Rajasekaran v. Hazuda decision. Therefore, it is unlikely that a resolution to this issue, in its present form, will come from the Supreme Court.

A 2017 amendment to the AC21 has presumptively resolved the confusion in I-140 revocation hearings that caused problems for the plaintiffs in the three cases discussed. However, the underlying issue of courts’ jurisdiction to hear appeals on procedural compliance is still very much alive. We may have to wait until the issue returns in another context to get a resolution.

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.