Civil Rights

The civil rights cases included here run the gamut. We’ve selected two title VII cases, Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (2000), and Payne v. Salazar, 619 F.3d 56 (2010), two cases dealing with prisoner abuse, Malik v. District of Columbia, 574 F.3d 781 (2009), and Daskalea v. District of Columbia, 227 F.3d 433 (2000), and cases arising under the Age Discrimination in Employment Act, Miller v. Clinton, 687 F.3d 1332 (2012), the False Claims Act, Yesudian v. Howard University, 153 F.3d 731 (1998), the District of Columbia Human Rights Act, Feemster v. BSA Limited Partnership, 548 F.3d 1063 (2008), and the Individuals with Disabilities Education Act, Akinseye v. District of Columbia, 339 F.3d 970 (2003).

In all eight of the opinions, Garland voted to reverse a district court’s dismissal of a civil rights claim or affirm a jury’s finding for a civil rights plaintiff. In cases like Payne, Malik, and Akinseye, Judge Garland has signaled discomfort with the dismissal of civil rights claims based on technicalities. Similarly, his opinions in Yesudian, which heavily utilized legislative history in interpreting the False Claims Act, and Feemster, which used Title VII to assist in interpreting a D.C. anti-discrimination provision, may indicate a flexible approach, sometimes drawing the ire of more textualist judges, Miller.

Malik v. District of Columbia (2009)

Ismail Malik, a District of Columbia prisoner, was transported on a bus operated by Transcor, a subsidiary of CCA (a private company operating prisons prisons) for 40 hours, handcuffed at the waist with a belly chain attached to another inmate, and forced to wear leg shackles. Because the restraints made it impossible to use a restroom, the prisoners were forced to urinate and defecate on themselves. Malik was also prevented from using an inhaler to treat his asthma and was deprived of water. Malik filed a grievance at a CCA facility, but was told they could not process it, as Transcor, not CCA, provided the transportation. Malik subsequently filed additional grievances requesting an appeal and received the same response. Malik filed suit pro se against the District of Columbia, CCA, and TransCor, alleging cruel and unusual punishment and retaliation against the prisoners, who had been members of a class action lawsuit against the District and CCA.

The district court granted summary judgment to the District and CCA on the ground that Malik had failed to exhaust his administrative remedies, as he filed his first grievance one day later than CCA’s policy permitted. However, Garland wrote that this was irrelevant. The Prison Litigation Reform Act’s exhaustion provision only applies when there is an administrative process to exhaust; here, CCA’s policy provided that “institutional transfers … are not grievable matters.”

The district court also granted TransCor’s summary judgment motion on the ground that Malik had conceded it, as he did not file a motion to oppose summary judgment. But Garland cited to Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), which held that at a minimum, a district court must give a pro se imprisoned plaintiff fair notice of the requirements of the summary judgment rule. Here, there was “objectively confusing procedural history and subjective confusion that Malik plainly manifested.” By failing to clarify to Malik that he was at risk of losing his claim, the district court failed to provide the requisite notice under Fox. Thus, the district court’s grants of summary judgment were reversed.

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Daskalea v. District of Columbia (2000)

Incarcerated at the District of Columbia Jail, Sunday Daskalea was subjected to repeated sexual harassment, culminating in her being forced to perform a strip tease for a crowd of inmates, guards, and maintenance workers. Daskalea brought suit, asserting a civil rights claim under §1983, as well as common law claims of negligent supervision and intentional infliction of emotional distress. A jury awarded her $350,000 in compensatory and $5 million in punitive damages.

Garland, writing for a unanimous panel, concluded that the jury had sufficient evidence to find for Daskalea. The fact that the District had a sexual harassment policy did not insulate it from liability in light of evidence of deliberate indifference to violations of that policy. Moreover, the District’s argument that the abuse was undertaken by “a small group of rogue employees, acting surreptitiously” was rejected—Garland characterized the repeated harassment at the jail as “open and notorious,” and said that the jury could have concluded that if such behavior was unknown to prison policymakers, it was only because of their deliberate indifference.

However, the panel struck the $5 million in punitive damages. Garland wrote that D.C. law did not permit punitive damages for Daskalea’s common law claims, and the District, as a municipality, had immunity from punitive damages in the §1983 action (the panel determined that Daskalea had sued the Director of the D.C. Department of Corrections Margaret Moore in her official, not individual, capacity).

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Feemster v. BSA Ltd. Partnership (2008)

For over 20 years, BSA, which owns and manages properties in Washington, D.C., participated in the Section 8 rental assistance program. However, in 2002, BSA decided to opt out of the program, and in 2004 began to press Section 8 tenants to leave. When an owner opts out of Section 8, families in that project may remain in their units and receive an “enhanced voucher,” covering the difference between the previous rent and the new market rent. But BSA refused to accept these enhanced vouchers, demanding tenants pay rent from their own funds, not through the Section 8 voucher program.

The District of Columbia Human Rights Act prohibits discrimination in real property transactions based on “source of income,” which expressly includes Section 8 assistance. The district court held that BSA had not violated the Act, as the plaintiffs had not shown discriminatory motive, but the D.C. Circuit reversed. Garland wrote that, like Title VII, when a policy is discriminatory on its face, the defendant’s motive is irrelevant. “Just as it would constitute a facial violation of Title VII to discriminate in leasing on the basis of a renter’s race—regardless of whether the landlord professed a “benign” motive for so doing—it is a facial violation of the Human Rights Act to discriminate on the basis of the renter’s source of income.”

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Miller v. Clinton (2012)

John Miller, an employee of the State Department working at the U.S. embassy in Paris, brought suit under the Age Discrimination in Employment Act after he was terminated because he turned 65 years old. The district court dismissed the complaint on the ground that the Basic Authorities Act allows the State Department to exempt Miller from ADEA protections.

The court reversed. Garland noted that because of the similar configuration and purpose of the statutes, exempting the State Department from the ADEA would also mean exempting it from Title VII and the ADA. He was skeptical that Congress would intend to override the “important congressional policy against discriminatory employment practices” with “an ambiguous statutory provision.” Moreover, he noted that where Congress did intend to carve out exceptions to the ADEA, it did so expressly.

Having found that the State Department was not entitled to Chevron deference on account of it failing to provide an explanation for its interpretation, the court undertook an extensive review of the statutory text, ultimately finding that the Basic Authorities Act did not exempt the State Department from ADEA protections. If Congress had intended such a decision, it would not hide them “in obscure references that require trips through multiple statutes only to end in still further ambiguous provisions.”

Kavanaugh, dissenting, wrote that the text of the Basic Authorities Act allowed the State Department to mandate retirement at age 65 for workers such as Miller, and that “[t]his is not a close call.” Kavanaugh wrote: “Although I might disagree with the lines Congress has drawn in this statute, it is our job to respect those lines, not to re-draw them as we might prefer.”

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Payne v. Salazar (2010)

After suffering a nearly-fatal allergic reaction to a bee sting, Cassandra Payne, a Department of the Interior employee, was reassigned to work indoors and moved from a Monday-Friday to a Wednesday-Sunday schedule. Payne repeatedly asked for weekends off to attend church and Bible study but was denied. Payne filed an EEO complaint alleging religious discrimination and, later, retaliation against her for filing the initial complaint. An EEOC judge found that the Department had discriminated against Payne on account of her religion and awarded her damages, but found for the Department on the retaliation claim. Payne filed a Title VII suit on the retaliation claim in district court, but was dismissed on the ground that she did not also sue on her successful discrimination claim. In other words, federal court review of an agency decision on an EEO complaint was an “all-or-nothing proposition”: to be granted review of her retaliation claim, Payne would have to put her successful discrimination claim at risk.

Garland wrote that there was no such “all-or-nothing proposition” in the statutory text. He noted that, under the relevant Title VII provisions, employees may file suits challenging claims they were “aggrieved by”; Payne wasn’t aggrieved by a successful suit, and the court had never required litigants to bring before the court parts of agency orders they don’t dispute. Further, the FRCP do not suggest that a “complaint” filed in federal court must include all the claims a litigant previously raised in a complaint filed with her agency, let alone those resolved in her favor. Moreover, Garland noted that it was the agency that consolidated the complaints and then issued a single disposition; EEOC regulations require such consolidation even when the claims are unrelated. Thus, under the government’s view, every time a litigant before the EEOC is successful on some claims but not others, she must seek review of all of them, giving the government “complete control over the scope of an employee’s access to the courts.”

Finally, Garland rejected the notion that Payne’s position would result in a chilling effect on administrative findings that are adverse to the government. He referred the government to “the inscription outside the Attorney General’s Office at the Department of Justice: ‘The United States wins its point whenever justice is done its citizens in the courts.’ … If an agency believes it is liable on a claim, Title VII requires it to rule in the complainant’s favor without regard to tactical litigation considerations.”

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United States ex rel. Yesudian v. Howard University (1998)

After blowing the whistle on financial improprieties in the Howard University Purchasing Department, Daniel Yesudian was terminated for insubordination. Yesudian claimed the firing was retaliatory under the False Claims Act (Howard University is a grantee of federal funds). The district court held that Yesudian’s conduct was unprotected because “he never initiated … a private qui tam suit.” But Garland noted that the language of the Act protects “investigation for … an action filed or to be filed”—it is sufficient that a plaintiff be investigating matters that could reasonably lead to a viable False Claims Act case.

A critical question was whether the university knew Yesudian was engaged in protected activity, an essential element of a retaliation claim. The lower court said this was element was not satisfied—Yesudian had never suggested to the defendant that he intended to pursue a False Claims Act action, or that was going to report the improprieties to government officials. But Garland wrote that, since it was not required that a plaintiff know his investigation could lead to a False Claims Act action in order to be protected, there could be no requirement that he notify the defendant he was contemplating such an action. Instead, what the defendant must know is that the plaintiff engaged in activity that reasonably could lead to a False Claims Act case, regardless of whether the defendant knows such claims would violate the Act itself.

Henderson dissented, writing that in order for a retaliation claim to proceed, a plaintiff must put the employer on notice that she is investigating fraud against the federal government, so as to potentially support a qui tam or direct suit by the government.

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Akinseye v. District of Columbia (2003)

Appellants, 65 disabled children and their parents or guardians, sought to compel the District of Columbia to provide special education services to disabled children under the Individuals with Disabilities Education Act (IDEA). The District settled and voluntarily agreed to pay attorney’s fees. Appellants contend that they were paid late, and filed an action to recover $17,000 in interest.

Henderson, writing for the majority, dismissed the claim for lack of subject-matter jurisdiction. Appellants had not sought recovery of attorney’s fees under the IDEA—the attorney’s fees were voluntarily agreed to, and appellants only sought interest on the payment, rendering the question of statutory entitlement moot. Because there was no other cause of action to recover this interest, there was a lack of a federal question.

Garland, dissenting, thought there was a case to be made for the proposition that the IDEA provides a federal cause of action for interest as “part of the costs” of the litigation. Dismissal for lack of subject-matter jurisdiction was thus inappropriate, as it could not be said that the claim was “so insubstantial, implausible, foreclosed by prior decisions …, or otherwise completely devoid of merit as not to involve a federal controversy.”

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Sparrow v. United Air Lines, Inc. (2000)

Victor Sparrow, a former employee of United Air Lines, claimed he was denied promotion and then fired from the company on the basis of race. The lower court dismissed Sparrow’s claim on the ground that Sparrow had not made out a prima facie case of discrimination—that is, under the McDonnell Douglas framework, he did not establish (1) he was a member of a protected class, (2) was similarly situated to an employee who was not a member of the protected class, and (3) he and the similarly situated person were treated differently.

But Garland, writing for a unanimous panel, said that establishing a prima facie case was not required at the pleading stage; under the then-prevailing Conley standard, Sparrow’s claim needed only to state that he was fired because of his race to survive a motion to dismiss. Moreover, Sparrow’s admission in the complaint that he lied about his criminal history in his job application was not grounds for dismissal either—even if United could show a nondiscriminatory reason for its actions, Sparrow was entitled to an opportunity to show this reason to be a pretext.

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