Public Law Legal Research Blog

CIVIL RIGHTS: Do Termination Reports Constitute "Publication"?

Posted by Dora S. Vivaz on Tue, Jan 19, 2016 @ 13:01 PM

The Lawletter Vol 40 No 12

Dora Vivaz, Senior Attorney, National Legal Research Group

     In a recent case involving the Kansas University and City of Lawrence ticket-fixing scandal, wherein traffic tickets were allegedly dismissed in exchange for tickets to university athletic events, a city employee, an African-American, who had been terminated as a result of the investigation into the scandal, brought claims for race discrimination and the violation of his due process liberty interests. Monroe v. City of Lawrence, Kan., Case No. 13-2086-EFM, 2015 WL 5006081 (D. Kan. signed Aug. 20, 2015). The court engaged in the usual burden-shifting analysis on the race discrimination claim, concluding that although the employee had clearly shown that he had been treated differently from a similarly situated white employee, he had failed to raise a disputed question of fact on the issue of motive, because he had not shown that the City's reasons were pretextual.

     The court then went on to the interesting due process question raised by the employee's claim, that the "termination report" filed by the City violated his liberty interest by foreclosing employment opportunities in his field. The court concluded that the viability of the claim rested on whether the report constituted "publication." First the court noted that the City was required by statute to submit the report to the Kansas Commission of Peace Officers' Standards and Training. It then noted that although the statute purports to provide absolute immunity for reporting, the City had abandoned that argument in light of Supreme Court precedent stating that state law cannot immunize conduct that is wrongful under federal law. The question therefore came down to whether the report constituted publication, as required to make out a claim, or merely intragovernmental dissemination, which falls short of publication.

     The employee argued that the report constituted publication because it was available to prospective employers, but the court found the legal character of the report to be unsettled. It explained that the Tenth Circuit had not yet considered whether public dissemination, that is, publication, occurs when a mandatory report to another governmental agency is made and that the authority in the circuit on intragovernmental dissemination was underdeveloped. It further noted that the district court itself had reached conflicting conclusions on the issue of obligatory termination reports.

     In the end, the court failed to address the conflict, because, even assuming publication, the employee could not support his liberty interest claim. He had clearly received an adequate name-clearing hearing, and nothing more was required by due process.

Topics: civil rights, Dora S. Vivaz, due process claim, publication, termination report

CHURCHES: Constitutional Law—Ministerial Exception

Posted by Timothy J. Snider on Tue, Jan 19, 2016 @ 12:01 PM

The Lawletter Vol 40 No 12

Tim Snider, Senior Attorney, National Legal Research Group

     Setting aside the cases involving criminal misconduct by priests and others affiliated with certain Roman Catholic Church dioceses, the First Amendment precludes courts from interfering with the internal operations and activities of churches. Few principles are more firmly enshrined in our body of constitutional law than that government, including the courts, should not become entangled in the internal or doctrinal affairs of churches. To do so would offend the First Amendment's Free Exercise Clause. For over a century, the Supreme Court has directed that courts may not entangle themselves in the internal functions of churches. Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871).

     Churches are at liberty to make employment decisions that are arbitrary, even capricious, and those decisions are immune from judicial scrutiny. Young v. N. Ill. Conference of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994). To permit courts to review decisions that are alleged to be arbitrary or unreasonable would be to allow courts to inquire into internal doctrinal matters, and the courts may not do that. There are circumstances where a court may inquire into an action taken by a church, but those circumstances are rare and typically involve, for example, the contractual obligations between the church and an unaffiliated third party, such as a contractor repairing the roof of the church building. Those decisions, however, implicate no doctrinal issues, unlike the employment of a pastor, which is intimately bound up with a church's doctrinal principles. Thus, civil courts, as a general proposition, are not a constitutionally permissible forum for a review of ecclesiastical disputes. Serb. E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976).

     The application of the foregoing principles, however, can involve fine distinctions. In Davis v. Williams, 774 S.E.2d 889 (N.C. Ct. App. 2015), the court was asked to referee a dispute between the pastor and his supporters and a dissident group alleging, inter alia, violations of the church's bylaws regarding voting. Reluctant to enter this constitutional thicket, the court concluded that it could resolve disputes through "neutral principles of law, developed for use in all property disputes." Id. at 892 (quoting Johnson v. Antioch United Holy Church, Inc., 714 S.E.2d 806, 810 (N.C. Ct. App. 2011)). "The dispositive question is whether resolution of the legal claim requires the court to interpret or weigh church doctrine." Id. (quoting Smith v. Privette, 495 S.E.2d 395, 398 (N.C. Ct. App. 1998)). Thus, the court could decide whether the church violated its own bylaws in conducting a vote regarding proposed amendments to the bylaws.

     The plaintiffs also brought claims against the pastor for conversion and embezzlement/obtaining property by false pretenses. The court held, however, that determining whether actions, including expenditures, by a church's pastor, secretary, and chairman of the board of trustees were proper would require an examination of the church's view of the role of the pastor, staff, and church leaders, their authority and compensation, and church management. Because a church's religious doctrine and practice affect its understanding of each of these concepts, seeking a court's review of those matters is no different from asking a court to determine whether a particular church's grounds for membership are spiritually or doctrinally correct or whether a church's charitable pursuits accord with the congregation's beliefs. None of these issues could be addressed using neutral principles of law.

     These kinds of issues recur in many jurisdictions, but the authority applying North Carolina law is particularly well developed. There are a number of cases involving the so-called "ministerial exception" to the exercise of jurisdiction wending their way through the courts, including in North Carolina. Stay tuned.

Topics: churches, Free Exercise Clause, First Amendment, Timothy J. Snider, ministerial exception

CONSTITUTIONAL LAW: Involuntary Commitment Scheme Violates Due Process

Posted by John M. Stone on Tue, Dec 15, 2015 @ 16:12 PM

The Lawletter Vol 40 No 11

John Stone—Senior Attorney, National Legal Research Group

     A state must release a person who is involuntarily committed if the grounds for his commitment no longer exist. See O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975); cf. Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."). If the requirement to release the committed when they deserve to be let out is to have any meaning, a state must also periodically review whether the grounds for commitment are still met. Otherwise, a state could circumvent the timely release requirement by simply refusing to ever consider the continued propriety of commitment. To effectuate that requirement, then, the state must undertake some form of periodic review. See Parham v. J.R., 442 U.S. 584, 607 (1979).

     Periodic review of continuing involuntary commitments need not consist of an adversarial proceeding involving a judge or even an administrator. Nonetheless, the person charged with periodically reviewing continuing involuntary commitments must be required to consider the propriety of ongoing commitment. That person must also be authorized to order a release if the criteria for commitment are no longer met. See id. ("It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission.").

     The Eleventh Circuit Court of Appeals was recently asked to consider the constitutionality of Florida's involuntary commitment scheme on behalf of J.R., an intellectually disabled man with an IQ of 56 who functions as a seven-year-old. J.R. v. Hansen, No. 12-14212, 2015 WL 5973269 (11th Cir. Oct. 15, 2015). As found by a lower court, J.R.'s intellectual disability would always exist, but his potential for dangerousness could change. In 2000, J.R. was charged with sexual battery in Florida, found incompetent to stand trial, and involuntarily admitted to the appropriate Florida agency. In 2004, he was involuntarily admitted to nonsecure residential services under a Florida statute. The order involuntarily admitting J.R. contained no end date.

     J.R. lived in several different settings after his admission. While his commitment was characterized by the statutes as "non-secure," his liberty was substantially limited. If he were to have left his facility without permission, the police would probably have been called to return him to his group home. He was subject to a daily curfew of 10 p.m.; he could not drink alcohol; he had to "earn" the right to leave his group home, and when he did leave he had to always inform the staff exactly where he was going, the purpose of his trip, and when he would return. If he did not comply with these requirements, he could lose his right to freedom of movement. While the precise restrictions on J.R.'s liberty changed and could continue to change with the annual revision of his support plan, the circuit court had not held a hearing about J.R.'s commitment since 2005.

     When a civil rights lawsuit was brought on behalf of J.R. under 42 U.S.C. § 1983, the Eleventh Circuit, reversing a decision by the U.S. District Court for the Northern District of Florida, struck down Florida's involuntary commitment scheme. The Florida provisions for the involuntary commitment of individuals with intellectual disabilities to nonsecure residential facilities facially violated the Due Process Clause of the Fourteenth Amendment by failing to require periodic review of continued involuntary commitment by a decisionmaker with the duty to consider, and the authority to order, release. Florida's scheme did provide for annual review of support plans by the Agency for Persons with Disabilities ("APD"), which evaluated the most appropriate, least restrictive, and most cost-beneficial environment for a committee's treatment. However, the annual review did not consider whether the committee was a danger to himself or others, which is a requirement for imposing involuntary commitment. In addition, the APD lacked the authority to order release, as that authority remained with the state circuit court that authorized the initial involuntary commitment. Further, the APD was not required to petition the state circuit court for release when it determined that the circumstances that had led to the initial admission of a person with intellectual disability to residential services had changed.

     The Eleventh Circuit reached its conclusion despite expressing sympathy for Florida's interest, as expressed in a statute, in involuntarily admitting the intellectually disabled to residential services in order to "prevent or reduce the severity of developmental disabilities" and to "enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living." These goals were "honorable," but the court could not sanction the State's methods for achieving them. Id. at *9.

Topics: constitutional law, John M Stone, involuntary commitment, periodic review of grounds for commitment

BANKRUPTCY: Reopening a Federal Bankruptcy Case

Posted by Anne B. Hemenway on Mon, Dec 14, 2015 @ 11:12 AM

The Lawletter Vol 40 No 11

Anne Hemenway—Senior Attorney, National Legal Research Group

     There are a variety of reasons why a federal bankruptcy case may be reopened after the debtor has been discharged and the case closed. A debtor may discover a claim, not known at the time the case was pending, and seek to reopen the case to discharge the claim. More typically, a Chapter 7 trustee may seek to reopen a case after discovering potential bankruptcy estate assets that the debtor failed to schedule. The party seeking to reopen may find intense challenges to the motion to reopen, because the reopening can result in a major redistribution of assets. Under the Bankruptcy Code, the bankruptcy court has broad discretionary authority to reopen a case "to administer assets, to accord relief to the debtor, or for other cause." 11 U.S.C. § 350(b).

     Recently, in In re Ludvigsen, BAP No. MB 14-039, Bankr. No. 13-12232-WCH, 2015 WL 3733193 (B.A.P. 1st Cir. Jan. 16, 2015) (not for publication), the First Circuit Appellate Panel stated that a bankruptcy court properly exercises its discretionary authority to reopen a closed bankruptcy case when it does so to determine a substantive dispute on its merits, but does not exercise proper discretionary authority when only technical defects with the closed case are at issue. Further, when determining whether to exercise its discretionary authority, the court should look at each § 350(b) motion on a fact-by-fact basis. Id. at *4 (citing In re Dalezios, 507 B.R. 54, 58 (Bankr. D. Mass. 2014).

     A motion to reopen may be filed only by a debtor or other "party in interest." Fed. R. Bankr. P. 5010. While neither the code nor the rules define "party in interest," the Bankruptcy Code defines a party in interest as "including the debtor, the trustee, a creditors' committee, an equity security holders' committee, an equity security holder, or any indenture trustee." 11 U.S.C. § 1109(b). This list is not exclusive and may include others with "sufficient stake in the proceedings." In re Papazov, 610 F. App'x 700, 701 (9th Cir. 2015) (not for publication) (internal quotation marks omitted).

     Significantly, unlike under other Bankruptcy Code provisions, the bankruptcy court may grant a motion to reopen under § 350(b) without either notice or a hearing. "Nothing in § 350, or in its implementing Rule 5010, requires 'notice and hearing' prior to the motion being granted." In re Miller Auto. Group, Inc., No. 14-6047, 2015 WL 4746246, at *3 (B.A.P. 8th Cir. filed Aug. 12, 2015).

     It is also important to recognize the limited scope of a § 350(b) motion to reopen. A bankruptcy case dismissed for cause prior to being fully administered may, under certain circumstances, be reopened under § 350(b) to address an unfinished detail or administrative issue. A case dismissed for cause may not be reopened under § 350(b) by a debtor as a way to have the dismissal set aside so that the debtor can create and enforce rights not in existence at the time the case was originally closed. In re Finch, 378 B.R. 241 (B.A.P. 8th Cir. 2007).


Topics: bankruptcy, Anne B. Hemenway, bankruptcy court, Chapter 7 trustee

CIVIL RIGHTS: Intracorporate Conspiracy Doctrine

Posted by Dora S. Vivaz on Tue, Dec 1, 2015 @ 08:12 AM

The Lawletter Vol 40 No 10

Dora Vivaz—Senior Attorney, National Legal Research Group

      The intracorporate conspiracy doctrine was created to shield corporations and their employees from liability for routine, collaborative business decisions that are later alleged to be discriminatory. E.g., Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007). Although the doctrine was initially crafted in the context of the Sherman Act, the courts have extended its reach to many other contexts, including claims brought under civil rights and other antidiscrimination laws. See, e.g., Blades v. Countrywide Home Loans, Inc., No. CIVA1:06CV1000LG-JMR, 2007 WL 2746678 (S.D. Miss. Sept. 18, 2007) (available on WL and Pacer). The courts have not necessarily agreed on just how far the doctrine should be extended, however. See id. (and cases cited).

      In a recent case, for example, the federal district court noted that while the doctrine applies in the Sixth Circuit to conspiracy claims under 42 U.S.C. § 1985, it is unclear whether it also applies to claims under 42 U.S.C. § 1983. See Engle v. City of Cuyahoga Falls, No. 5:14-CV-1161, 2015 WL 3852143 (N.D. Ohio June 22, 2015). In fact, it appears that the district courts within the Sixth Circuit continue to disagree on whether the doctrine should apply to § 1983 cases. Id.

      In another recent case that involved a constitutional claim under § 1983, the Sixth Circuit again declined to decide the question, finding, instead, that even if the intracorporate conspiracy doctrine applied, the conduct at issue fell within the exception for defendants acting outside of the scope of their employment. DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604 (6th Cir. 2015). That case involved the ordering of demolition of a building by an official who had the self-serving intent to personally obtain the property, which clearly constituted an improper abuse of authority for personal gain or malicious intent and was therefore outside the scope of his employment and not protected by the intracorporate conspiracy doctrine.

     What is clear at this point is that plaintiffs wishing to bring conspiracy claims under the civil rights statutes or the Fourteenth Amendment, pursuant to § 1983, need to take a close look at whether the claim will be precluded by the intracorporate conspiracy doctrine.

Topics: civil rights, Dora S. Vivaz, civil rights statutes, intracorporate conspiracy doctrine

CIVIL RIGHTS: A Civil Rights Civil War: Religious Observance and Educational Rights of the Disabled

Posted by Steven G. Friedman on Tue, Nov 3, 2015 @ 11:11 AM

The Lawletter Vol 40 No 9

Steve Friedman, Senior Attorney, National Legal Research Group

     One of the bedrock principles of American jurisprudence is the freedom of religion guaranteed by the First Amendment. See U.S. Const. amend. I. More recently, the law had mandated that disabled students are to receive certain minimum educational benefits at public expense. See 20 U.S.C. §§ 1400–1491o (Individuals with Disabilities Education Act ("IDEA")); 29 U.S.C. § 794 (Rehabilitation Act of 1973 ("RA")). At times, these two distinct rights may overlap and conflict with one another. As illustrated by two fairly recent cases, however, public schools need not accommodate the student's (or the parents') religious beliefs in providing a free appropriate public education ("FAPE") as required by the IDEA and the RA.

      In M.L. ex rel. Leiman v. Starr, No. PWG-14-1679, 2015 WL 4639569 (D. Md. filed Aug. 3, 2015), appeal filed, No. 15-1977 (4th Cir. Aug. 27, 2015), the parents of a child with an intellectual disability brought suit against Maryland's Montgomery County Board of Education, alleging that the Board had failed to provide the student with a FAPE as required by the IDEA. The student is part of the Orthodox Jewish community, and, thus, it is very important to his parents that he learn the rules and customs of Orthodox Jewish life. Consequently, the parents sought an individualized education program ("IEP") that placed the student at a private school where the basics of Orthodox Jewish life are a part of the curriculum. Instead, the school district proposed an IEP that placed the student at a public school that did not include instruction on Orthodox Jewish life.

     The U.S. District Court for the District of Maryland held that the IDEA does not require an IEP to be so personalized that it incorporates the student's and/or the parents' religious and/or cultural beliefs.

     Try as the Plaintiffs do to distinguish their misgivings with the IEP from its failure to provide for instruction geared to the Student's religious and cultural identity as an Orthodox Jew, that is the crux of this dispute: Is the education proposed in the IEP a FAPE when it does not account for the Student's individual religious and cultural needs? The short answer is yes. Simply put, a FAPE, to which a child with a disability is entitled, is the education that any student without disabilities would receive. The IEP is "individualized" or "personalized" to ensure that a child can access that education, considering his or her individual or personal cognitive and developmental capabilities and needs. In this regard, Plaintiffs have pointed to no authority, nor have I found any, that expands the requirement of the IDEA that an IEP be "individualized" to the extent that it affords a qualified student with an educational program specifically tailored to the religious and cultural enclave in which the student lives.

Id. at *8 (citation omitted).

      In D.L. ex rel. K.L. v. Baltimore City Board of School Commissioners, 706 F.3d 256 (4th Cir. 2013), the parents of a disabled student brought suit against the Baltimore City Board of School Commissioners ("BCBSC"), alleging that public school officials had violated the RA by not providing the student with educational services related to certain disorders when the student was enrolled exclusively in private religious school. The BCBSC determined that the student was eligible for services under the RA but informed the parents that the BCBSC could not provide such services unless the student were enrolled in one of its public schools. The BCBSC further informed the parents that because Maryland law did not permit simultaneous dual enrollment in a private and a public school, the student would have to withdraw from his private religious school and enroll in a local public school in order to obtain services under the RA.

     In the ensuing litigation, the U.S. Court of Appeals for the Fourth Circuit agreed with the school district. The RA "and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice" such that "[p]ublic schools are only required to make a FAPE available on equal terms to all eligible children within their district." Id. at 260-61. Accordingly, the BCBSC is not required to "provide access to eligible individuals that opt out of the program by enrolling in private schools." Id. at 261. Furthermore, the court held that the BCBSC's prerequisite that private-school students cease enrollment in private religious institutions and enroll in public schools in order to access services under the Act did not violate either the Supremacy Clause or the Free Exercise Clause. Although the BCBSC's policy might increase the overall cost of this student's private education, it did not substantially infringe on his right to attend a private religious school. His right to a religious education did not extend to a right to demand that public schools accommodate his educational preferences. The BCBSC had legitimate financial, curricular, and administrative reasons to require that the student enroll exclusively in a public school in order to take advantage of services under the Act, and, therefore, his parents were required to shoulder the full cost of their decision to exercise their religious beliefs by keeping him enrolled in private school, including the cost of services that the student needed in order to address his challenges.

Topics: civil rights, Steven G. Friedman, religious observance, educational rights

CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

Posted by John M. Stone on Thu, Sep 10, 2015 @ 17:09 PM

CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

The Lawletter Vol 40 No 7

John Stone, Senior Attorney, National Legal Research Group

     It is no easy task for a prisoner to succeed on a claim that he was denied medical care in circumstances that violated his federal constitutional rights. Such a cause of action is not simply a prisoner's version of a medical malpractice case but, rather, requires a more demanding showing by the plaintiff. Mere negligence in diagnosis or treatment will not suffice. To state an Eighth Amendment claim for cruel and unusual punishment based on deficient medical care, a prisoner must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Estelle v. Gamble, 429 U.S. 97 (1976). "Deliberate indifference" to a prisoner's serious medical needs occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists but then disregards that risk.

     In a recent case, a prisoner appearing on his own behalf, and perhaps benefiting from the relative leniency afforded pleadings from pro se litigants, convinced a federal appeals court to reinstate his claim under 42 U.S.C. § 1983 for denial of medical care after his claim had been dismissed by a federal district court. Perez v. Fenoglio, No. 12-3084, 2015 WL 4092294 (7th Cir. July 7, 2015). While an inmate at a state prison, Perez was injured during a prison basketball game. He suffered a torn ligament in his right hand, dislocation of his thumb, tissue damage, and a "gaping wound" between his thumb and right index finger. What ensued was a succession of failures by medical personnel and prison officials to see to it that Perez received adequate treatment for his serious injuries. The recurring theme was unnecessary delays, prison red tape, some outright indifference to Perez's condition, and, at least as to some of the defendants, a desire to retaliate against Perez. The result was permanent damage to his hand and a diminished ability to use it.

     Not only did Perez's complaint state a violation of his Eighth Amendment right to medical care, but a succession of persons or entities who made contact with him after his injury were found by the Seventh Circuit to be culpable, assuming that Perez could support his allegations with proof. The prison physician determined that the wound was so serious that it required a specialist's care, but then Perez had to wait four days and file a grievance before he was sent to the specialist, by which time it was too late for the wound to be sutured. Then Perez had to wait seven months and file another grievance before he was sent to the specialist for follow-up care. The prison physician also ignored recommendations of the specialist. Altogether, Perez was forced to wait 10 months from the time of his injury until receipt of meaningful treatment in the form of surgery, despite his complaints of ongoing symptoms, including pain, bleeding, swelling, and loss of function.

     A prison nurse had knowledge of the severe injury yet failed to provide adequate treatment to Perez herself, such as by suturing his wound, or to ensure that others did, such as by contacting supervisory personnel to voice any concerns about the treatment being provided to him. The private corporation that served as the prison's health-care provider also could be found liable on allegations that the prison nurse told Perez that she could not stitch his wound or prescribe medication without a "doctor there" and that a doctor was not "there" because of the provider's policy or practice of not having a full-time doctor stationed at the prison at all times or on call to suture open wounds as necessary. The prison's health-care administrator also contributed to the violations, as he was the individual responsible for approving requests for inmates to be seen by outside doctors. Furthermore, despite the prison physician's determination that Perez's gaping wound and open dislocation were so serious that he should see a specialist, the administrator, without explanation, refused to grant the referral request for four days, causing Perez needless pain and suffering and worsening the injury.

     Even some nonmedical personnel at the prison were subject to being held liable. Grievance officials, who had been made aware of Perez's predicament by way of his grievances and other correspondences, obtained actual knowledge of the serious medical condition and inadequate medical care through coherent and highly detailed grievances and other correspondences from Perez. Each of these officials failed to exercise his or her authority to intervene on behalf of Perez to rectify the situation, suggesting that they either approved of, or turned a blind eye to, his allegedly unconstitutional treatment.

     According to Perez's handwritten complaint, the suffering experienced from the neglected injuries to his hand was compounded by the fact that the defendants were retaliating against him over an earlier series of events. He sufficiently alleged that because he had brought a previous grievance against prison officials for the withholding of his prescribed depression medication, members of the prison's medical staff, including the prison physician and the prison's health-care administrator, denied him adequate care when he severely injured his hand. This constituted a separate, additional violation, this time of his rights under the First Amendment. To state a First Amendment claim for retaliation, a plaintiff must allege that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the defendants' decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).


Topics: constitutional law, John M Stone, Eighth Amendment, The Lawletter Vol 40 No 7, medical care, inmate

PUBLIC LAW: Ability to Obtain Shelter Is a Major Life Activity

Posted by Steven G. Friedman on Thu, Jul 9, 2015 @ 11:07 AM

The Lawletter Vol 40 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

     The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").

      "The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).

     Recently, the U.S. Court of Appeals for the Second Circuit joined the Fourth Circuit in adding another category to the list of major life activities: obtaining housing/shelter.

     [The Second Circuit] has not determined whether "obtaining housing" is a major life activity, but the Fourth Circuit has held that it is. United States v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). We agree. "Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 24 C.F.R. § 100.201(b). But this list is "not exclusive." Reeves [v. Johnson Controls World Servs.], 140 F.3d [144,] 150 [(2d Cir. 1998)]; see also Bartlett v. N.Y. State Bd. of Law Exam'rs, 226 F.3d 69, 79-80 (2d Cir. 2000). Major life activities are "those activities that are of central importance to daily life," Toyota Motor [Mfg., Ky., Inc. v. Williams], 534 U.S. [184,] 197 [(2002)], including reading, Bartlett, 226 F.3d at 80, and interacting with others, Jacques v. DiMarzio, Inc., 386 F.3d 192, 202-04 (2d Cir. 2004). On the other end of the spectrum are those activities that are "insufficiently fundamental," such as performing housework and shopping. Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635, 642-43 (2d Cir. 1998). The ability to obtain shelter is among the most basic of human needs and thus is a "major life activity" for purposes of the FHA. We note that a person is not substantially limited in the major life activity of obtaining housing simply because she is unable to, or regarded as unable to, live in a particular dwelling. Rather, a person is substantially limited if, due to her impairment, she cannot live or is regarded as unable to live in a broad class of housing that would otherwise be accessible to her.

Rodriguez v. Vill. Green Realty, Inc., No. 13-4792-CV, 2015 WL 3461554, at *13 (2d Cir. June 2, 2015); see also Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1328, 1336-37 (S.D. Fla. 2007) (assuming without deciding that the ability to secure housing is a major life activity); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 459 n.21 (D.N.J. 1992) (recognizing, in dicta, that the Fourth Circuit has held that the ability to obtain housing is a major life activity).

     Although this issue has arisen mostly in the context of drug and alcohol rehabilitation centers, see, e.g., United States v. S. Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992); Jeffrey O., 511 F. Supp. 2d 1328; Oxford House, 799 F. Supp. 450, it is clearly not limited to that context, see, e.g., Rodriguez, 2015 WL 3461554, at *1, *3 (parents alleged that real estate agent forced them to leave their home because of their daughter's epilepsy). Furthermore, it is important to note, as emphasized in the above-quoted material, that the major life activity of obtaining housing does not mean the housing of one's choice. See, e.g., Rodriguez, 2015 WL 3461554, at *13.

     Given that the class of major life activities remains open, see 42 U.S.C. § 12102(2)(A), it is prone to further development through litigation.

Topics: Rehabilitation Act, Fair Housing Act, Americans with Disabilities Act, Steven G. Friedman, The Lawletter Vol 40 No 5, housing/shelter, major life activity

PUBLIC LAW UPDATE: Circuits Split on Showing Required in Reverse Discrimination

Posted by Dora S. Vivaz on Thu, Jun 11, 2015 @ 16:06 PM

Dora Vivaz, Senior Attorney, National Legal Research Group

     The procedural requirements and burdens for showing race discrimination in employment are by now fairly well delineated and established. This is apparently not yet so for claims of reverse discrimination. In a recent case, the U.S. District Court for the Western District of Virginia, faced with such a claim, first noted that there is a split amongst the circuits as to whether the same requirements and burdens apply to reverse discrimination claims as apply to discrimination claims. Shomo v. Apple, Inc., Civ. Act. No.: 7:14cv00040, 2015 WL 777620, at *4 n.3 (W.D. Va. Feb. 24, 2015). The court referenced McNaught v. Virginia Community College System, 933 F. Supp. 2d 804, 817-20 (E.D. Va. 2013), which includes a detailed discussion of the subject and outlines the circuit split on the issue.

     In McNaught, the court reviewed the decisions by the circuit courts. It noted that the Sixth, Seventh, Eighth, Tenth, and District of Columbia Circuits all require an enhanced showing by a reverse discrimination plaintiff—a showing of background circumstances that tend to demonstrate that the employer has either reason or inclination to unlawfully discriminate against a "majority" applicant or employee. The court explained that the rationale for the enhanced requirement is that the usual proof scheme developed under Title VII was developed by the courts based upon this country's history of race discrimination against minorities, particularly African-Americans.

     The court then noted that the Third, Fifth, and Eleventh Circuits have held that the same standard applies to all discrimination claims. The court explained that the rationale for employing the same standard is essentially the constitutional requirement for equal protection. Finally, the court noted that the Fourth Circuit has repeatedly refused to decide the issue, with the result that there is an intracircuit split amongst the district courts of the Fourth Circuit. After reviewing the cases, the court sided with those courts that have applied the same standard, concluding that the enhanced requirement is vague and hard to apply and that a uniform standard better reflects the approach of the Supreme Court.

     The Shomo court likewise concluded that it would apply the same standard to all discrimination claims. In Shomo, there was simply no evidence to support a reasonable inference of unlawful reverse discrimination under either standard, so the issue was unimportant to the decision in that case. Inevitably, however, this issue will have to be decided by the Supreme Court.

Topics: legal research, Dora S. Vivaz, The Lawletter Vol 40, No 4, equal protection, reverse discrimination

CIVIL PROCEDURE: Simultaneous Involvement in Cobell Settlement Claim Bars Plaintiffs' Mineral Lease Complaint Against United States

Posted by Charlene J. Hicks on Thu, Mar 19, 2015 @ 12:03 PM

Charlene Hicks, Senior Attorney, National Legal Research Group

     A class action settlement may have far-reaching, unintended effects for particular class members who choose not to opt out of the settlement. This point is highlighted in a recent decision by the U.S. Court of Federal Claims in Two Shields v. United States, No. 13-90 L, 2015 WL 513315 (Fed. Cl. Feb. 6, 2015).

     In that case, two Native Americans filed claims against the United States, alleging that the Government had breached its fiduciary duty to prudently manage their mineral rights, which were held in trust by the United States. The plaintiffs were allottees of Indian lands on the Fort Berthold Indian Reservation who, in 2007 and 2008, had granted oil leases to a private party known as Dakota-3. The plaintiffs alleged that the United States had rubber-stamped its approval of the leases at below-market rates. In November 2010, Dakota-3 re-leased the plaintiffs' allotments for a bonus price roughly 20 times the original lease rate. The plaintiffs alleged that the United States had breached its duties under the Indian Long-Term Leasing Act, 25 U.S.C. § 396, which requires the Government to approve only those mineral leases that are in the best interests of the Indian owners.

     The Court of Federal Claims entered summary judgment on the plaintiffs' breach-of-fiduciary-duty claims, based on a prior release entered in a class action case known as the Cobell Settlement, Cobell v. Salazar, No. 1:96CV01285 (TFH), 2011 WL 10676927 (D.D.C. July 27, 2011), aff'd, 679 F.3d 909 (D.C. Cir.), cert. denied, 133 S. Ct. 543 (2012). Cobell involved claims for Government mismanagement of Individual Indian Money ("IIM") accounts. The United States entered into a comprehensive settlement that released the Government from all known and unknown Indian land administration claims that had been or could have been asserted through September 30, 2009.

     The Two Shields plaintiffs were members of the Cobell class because they held IIM accounts in their names and they had not opted out of the Settlement. The Court of Federal Claims ruled that the Two Shields plaintiffs' breach-of-fiduciary-duty claims against the United States were land administration claims within the meaning of the Cobell Settlement because they were known or unknown claims that accrued when the oil leases were originally executed in 2007 and 2008. As a result, the claims were barred by the Cobell Settlement. This was true despite the fact that the Settlement did not mention the Fort Berthold oil leases, and the underlying action in the Cobell case involved IIM accounts rather than mineral leases. If the plaintiffs had wanted to protect their claims, the court indicated that they should have exercised their right to timely opt out of the Cobell class.

     As Two Shields demonstrates, a class action settlement in one case may be broad enough to encompass seemingly unrelated causes of action that may exist in a wholly different context but that involve the same defendant. Accordingly, a class action member who potentially may have more than a single claim against the defendant should exercise great caution in choosing not to opt out of the class, lest his or her participation in the class have the effect of barring all other potential causes of action.

Topics: breach of fiduciary duty, civil procedure, class action

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