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Posts Tagged ‘U.S. Court of Appeals for the 5th Circuit’

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

4th Circuit Revives Gay Hate Crime Prosecution

Posted on: August 22nd, 2017 by Art Leonard No Comments

The Richmond-based U.S. Court of Appeals for the 4th Circuit has revived a federal hate crime prosecution against a man who physically assaulted a gay co-worker without provocation at an Amazon Fulfillment Center in Chester, Virginia. U.S. District Judge John A. Gibney, Jr., had dismissed the case, accepting defendant James William Hill, III’s argument that prosecuting him would violate Congress’s constitutional authority to enact legislation under the Commerce Clause, because his conduct was not motivated by any desire to interfere with interstate commerce and was a purely private dispute.  United States v. Hill, 20176 U.S. App. LEXIS 15678, 2017 WL 3575241 (August 18, 2017).

According to the opinion for the appeals court by Judge Dennis W. Shedd, the indictment against Hill alleges that he “willfully caused bodily injury to C.T. because of C.T.’s actual and perceived sexual orientation” in violation of the Hate Crimes Prevention Act of 2009, and that this was sufficient to withstand a motion to dismiss the indictment. An opinion agreeing that the case can be prosecuted but dissenting from the “basis for the judgment” by the panel, was written by Judge James A. Wynne, and provides more factual details about the case.  Wynne charged the majority with failing to confront an important question about the application of the federal hate crimes law that was directly presented by this case.

C.T. was preparing packages for interstate shipment when Hill assaulted him around 7:00 p.m. on May 22, 2015. According to Wynne, “Defendant approached C.T. from behind and – without provocation or warning – repeatedly punched him in the face.  As a result of the attack, C.T. sustained numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and lacerations and bruising around his left eye.  Following the incident, neither Defendant nor C.T. returned to their work stations for the remainder of their ten-hour shifts.  Their absences affected more than 5,500 items, which were either not shipped or not ‘re-binned’ during that time.”  After the incident, Hill provided a statement to Amazon’s staff and subsequently to the Chesterfield County police.  Both times, he stated that he “felt disrespected by C.T. because C.T. was a homosexual; that he does not like homosexuals; and that C.T. deserved to be punched because he was a homosexual.”  “Hill offered no other explanation for the assault,” wrote Judge Wynne.

Because Virginia’s hate crimes law does not cover sexual orientation, the local prosecutor referred the case to the U.S. Attorney. Six months later, the Attorney General (at that time Eric Holder) certified that prosecuting Hill under the federal law “is in the public interest and is necessary to secure substantial justice.”  The case was presented to a federal grand jury, which returned an indictment alleging one count of a violation of the federal hate crime law.  The indictment states that Hill “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.”

These statements about commerce may seem strange, but they are necessary in order for the federal Hate Crimes Prevention Act to apply. Congress does not have broad power to enact criminal statutes.  Its power is limited by the categories listed in Article I of the Constitution, which do not include general power to pass criminal statutes.  Congress does have power to regulate interstate commerce, so it justified passing the federal hate crime law by providing that it applies to crimes that somehow affect interstate commerce.

In relation to this case, the crucial language is that the conduct “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or otherwise affects interstate or foreign commerce.” Judge Gibney concluded, mistakenly, that only an economic crime would fit this jurisdictional requirement.

Writing for the majority of the panel, Judge Shedd found that “the indictment specifically alleges that Hill’s conduct had an effect on interstate commerce,” and as such “is legally sufficient and does not present an unconstitutional exercise of Congressional power.”

Hill’s motion to dismiss the indictment was not a facial challenge to the constitutionality of the law, but rather an “as-applied” challenge, arguing, in effect, that Congress could not constitutionally turn an assault in a private business establishment involving co-workers into a federal offense. The factual question, wrote Shedd, is “whether Hill’s conduct sufficiently affects interstate commerce as to satisfy the constitutional limitations placed on Congress’s Commerce Clause power” and this “may well depend on a consideration of facts, and because the facts proffered here” in the indictment “may or may not be developed at trial, it is premature to determine the constitutional issues.”  Shedd noted prior cases holding that “an indictment that tracks the statutory language is ordinarily valid.”

Thus, it was inappropriate for District Judge Gibney to dismiss an as-applied challenge to the prosecution when the indictment, tracking statutory language, asserted that the assault had “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.” This, according to Shedd’s opinion, was sufficient to meet the requirement that a federal indictment inform the defendant of the nature of the crime and allege facts sufficient to meet the statute’s jurisdictional requirement.

“Facts outside of an indictment should not be used to conclusively decide whether an element of a criminal offense is satisfied during a pretrial motion,” wrote Shedd, “and a Congressional statute should not be overturned on an incomplete record.”

This was too timid to satisfy Judge Wynne. “On review to this Court,” he wrote, “the majority opinion now ignores the district court’s basis for dismissing the indictment and instead concludes that, because the government’s indictment sets forth the charged offense in the language of the statute, it satisfies the specificity requirement imposed by Fifth and Sixth Amendments.”

To Wynne, the question posed is: “Whether Congress can enact a statute, pursuant to its authority to regulate interstate commerce, proscribing the physical assault of a victim whose job involves packing products for interstate sale and shipment and who is doing that job at the time of the assault?” Wynne argued that a proper answer to this question would lead to the conclusion that the statute “easily falls under Congress’s broad authority to regulate interstate commerce.”  He cited a recent Supreme Court decision, Taylor v. United States (2016), holding that “Congress has the authority to regulate criminal conduct that interferes with ongoing commercial activity.”

“Cavalierly, the majority ducks the only issue in this case and instead decides an issue that was neither presented by the parties nor addressed by the district court,” he charged. “The only issue in this case is one of first impression and of great importance – it was addressed by the district court and has now been placed squarely before us by the parties.  We should not, on our own volition, create a basis for avoiding it.”

Judge Wynne makes an important point. The 2009 enactment of this statute was the first successful legislative achievement of the Obama Administration’s LGBT rights agenda, and the focus of much agitation by LGBT political groups, but there was always a question whether it would have significant application in the real world beyond a symbolic declaration by Congress that committing a violent crime because of a victim’s sexual orientation was wrong, precisely because of the constitutional limitation on Congress’s authority.

The main practical purpose of the statute was to fill the gap left by the many states that have balked at including sexual orientation in their state hate crimes laws, as is the case with Virginia. Thus far, there have actually been few successful prosecutions under this law, despite the continuing epidemic of anti-gay violence in many parts of the country, because of the limitation that the statute applies only if the jurisdictional requirements are met, and only where local prosecutors are not empowered specifically to prosecute anti-gay hate crimes.  Successful prosecutions have involved crimes committed with cars traveling on interstate highways, or using weapons that had been sold across state lines, but, as Judge Wynne points out, this is the first case to present the question whether a physical assault of one worker against another in a private (that is, non-governmental) workplace is covered by the law.

And, as Judge Wynne pointed out, in a certain sense this case is a no-brainer. This workplace is an Amazon Fulfillment Center, selecting and packaging thousands of goods for shipment to on-line customers in many different states.  Any interruption in workplace activity would clearly affect the shipment of goods in interstate commerce, and an assault that at least temporarily disables the victim from performing his job will clearly interfere with commerce.  Wynne pointed to the cases in which the Supreme Court has found that even a slight interference with commercial activity can provide the basis for applying a federal regulation.  Missing several hours of a shift, delaying the dispatch of thousands of parcels, would clearly seem to qualify.

Hill argued that his assault was not motivated by any attempt to interfere with commerce, and thus did not come within the statute, but, wrote Wynne, “the Supreme Court has recognized that the economic or non-economic nature of proscribed conduct turns on whether the conduct can be shown to affect economic activity subject to congressional regulation – and therefore interstate commerce – and not whether the perpetrator of the conduct was motivated by economic interest. Indeed, we have consistently rejected the argument that a defendant must intend for his criminal conduct to affect interstate commerce for such conduct to be susceptible to congressional regulation under the Commerce Clause.”

 

For example, he wrote, “this Court and other circuits have concluded that federal arson statutes may be applied against defendants who set fire to property used in interstate commerce, notwithstanding that such defendants were motivated by purely personal reasons, and not any economic interest.” He insisted that “there is no constitutional or logical basis to conclude that the Commerce Clause authorized Congress to regulate interference with one factor of production (capital in the form of real property), but not another (labor).  On the contrary, the Supreme Court’s longstanding recognition that Congress may pervasively regulate the labor market and the terms and conditions of employment indicates that Congress may proscribe conduct that interferes with labor as well as capital.”

 

Thus, Wynne decisively rejected Judge Gibney’s holding that because Hill’s conduct was not an economic crime, it could not be constitutionally prosecuted in federal court, or that allowing the prosecution to go forward would violate Hill’s constitutional right to a presumption of innocence until proven guilty.

 

“The immediate impact of Defendant’s assault of C.T. on ongoing commercial activity demonstrates a sufficient relationship to interstate commerce to support Defendant’s prosecution under the Hate Crimes Act,” wrote Wynne, and because Hill had failed to make a plain showing to the contrary, the case should be allowed to go forward. Of course, in order to secure a conviction, the government will have to prove actual interference with commerce by presenting relevant evidence at trial.  Wynne rejected the argument that because the indictment did not specifically state how much interference had taken place, it was jurisdictionally defective, noting that so long as any interference could be shown, the jurisdictional requirement would be satisfied.

Ending his dissent, Wynne chided the majority for producing an opinion that “elides” the important issue of whether anti-gay violence in the workplace in the form of an assault with fists (rather than a weapon such as a pistol that has moved across state lines) can be prosecuted under the federal Hate Crimes law. The question remains unanswered, but at least Wynne’s dissenting opinion is published and can provide some persuasive support for a future prosecution.

Appeals Courts Issue New LGBT-Related Rulings

Posted on: April 26th, 2017 by Art Leonard No Comments

Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

Roy Moore Loses Reinstatement Appeal before “Alabama Supreme Court”

The Alabama Supreme Court normally consists of seven justices elected by the people of the state, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal that ruling to the state’s Supreme Court, all of the other justices recused themselves. What to do?

The Supreme Court invoked a special procedure to authorize the Acting Chief Justice (who was appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Bentley (who has since resigned because of a sex scandal) to create a substitute supreme court to consider Moore’s appeal. They assembled a list of all the retired judges in the state who were deemed “capable of service,” then conducted a lottery to compile a list of fifty potential judges, with the first seven names drawn to make up this special substitute version of the court unless one or more recused themselves or were disqualified for some other reason, in which case they would go back to the list of 50 until they had a full bench.

Moore was suspended because of his activities in opposition to marriage equality. After U.S. District Judge Callie Granade ruled on January 23, 2015, that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action.  He undertook various efforts to block implementation of Judge Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.  As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.

As the marriage equality issue rose through the courts to the U.S. Supreme Court’s June 26, 2015, Obergefell v. Hodges ruling, finding a federal constitutional right for same-sex couples to marry, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the evil day when same-sex marriage might be fully accepted in Alabama. Although he recused himself from some of the Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in the court’s decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. But Moore wrote separately from the rest of the court, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.

This led to allegations that he was violating several provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.

In this appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended that he had not violated any of the judicial ethical rules. He also contended that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long: far longer than any past disciplinary suspension of any sitting judge.

The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”

This might not be the end for Moore as a “public servant,” however. Earlier in his career he had been ejected from the state supreme court for defying a federal court order to remove a 10 Commandments Monument he had installed in the lobby of the Supreme Court building.  He bided his time and eventually came back and won election to a new term as Chief Justice.  On April 26, he announced that he would enter the contest for the U.S. Senate seat that was vacated by Jeff Sessions when he became Trump’s Attorney General.  Former Governor Bentley had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election, and Strange has already announced he will be a candidate for the Republican nomination.  The deadline for candidates to qualify for the primary is May 17 and the party primaries will be held on August 15.  If no candidate wins an outright majority for the Republican nomination, a run-off will be held September 26, and the general election is December 12.

Over $600,000 Awarded to Victorious Lawyers in Texas Marriage Equality Case

In an appeal that has been pending before a panel of the 5th Circuit Court of Appeals for more than a year, the court decided to reject an attempt by Texas Governor Greg Abbott, Attorney General Ken Paxton, and Commissioner John Hellerstedt of the Department of State Health Services to win a reduction of the large attorneys’ fees and costs awarded by U.S. District Judge Orlando Garcia to the victorious attorneys who represented the plaintiffs in the Texas marriage equality case, DeLeon v. Perry (now titled DeLeon v. Abbott).

Two same-sex couples filed suit in 2013 against then-governor Rick Perry and other state officials seeking the right to marry and to win recognition of same-sex marriages performed out of state. In February 2014 Judge Garcia ruled in favor of the plaintiffs, but the decision was stayed as the state appealed to the 5th Circuit.  That court put off oral arguments until shortly before the Supreme Court announced that it would consider appeals in marriage cases from the 6th Circuit.  Then the 5th Circuit delayed ruling until after the Supreme Court announced its Obergefell decision, which made the 5th Circuit appeal purely academic.  That court quickly affirmed Judge Garcia’s decision, making the plaintiffs “prevailing parties” who were entitled to seek an award of attorneys’ fees and costs.

Judge Garcia awarded fees of $585,470.30 and costs of $20,202.90, more than $600,000 in all. In December 2015, the new line-up of official state defendants filed their appeal.  The 5th Circuit panel issued a brief opinion upholding Garcia’s award, emphasizing that the trial judge has “broad discretion” to award fees and costs if the judge “provides a concise but clear explanation for its reasons for the fee award.”    In this case, the court found that this standard had been met, but one member of the court, Circuit Judge Jennifer Walker Elrod, issued a dissent on three points.

She objected first to awarding fees for time spent opposing a motion by an anti-gay group to intervene as a co-defendant so that they could make arguments that the state was unlikely to make in defending the statute. Although the plaintiff’s lawyers were successful in beating back the intervention effort, Judge Elrod thought the state should not be required to pay them fees for doing so, since the state had not supported the intervention effort and was not the “losing party” on that issue.

She also objected to awarding fees for time that the attorneys spent “interacting with the media.” Plaintiffs’ lawyers in controversial public interest cases frequently spend time cultivating the media to win favorable coverage of the litigation and help build public support for the resulting court decision.  That was a key part of the litigation strategy in the marriage equality cases, and arguably the successful media cultivation helped to move public opinion so that the ultimate Supreme Court decision and its implementation did not arouse widespread opposition.  But Elrod argued that awarding fees for that time was “improper.”  “Plaintiffs have offered no explanation for how the media-related tasks included in the fee award were directly and intimately related to their successful representation, or were aimed at achieving their litigation goals,” she wrote.  As such, the state should not have to pay for them.

Finally, she objected to awarding fees for much of the time spent by the plaintiffs’ attorneys in recruiting and assisting various amicus curiae (so-called “friends of the court’) to file briefs supporting the plaintiffs in the case. She would have denied fees for such time on the theory, articulated by the 11th Circuit in a prior case, that because “amici are not entitled to attorneys’ fees as a ‘prevailing party,’ it would not allow this result to be changed ‘by the simple expedient of having counsel for a party do some or all of the amicus work.’’”  She would, however, agree to order the state to pay for time that plaintiffs’ attorneys spent reviewing the amicus briefs after they were filed, because the issues and arguments raised by amici might come into play during the trial or appeals of the case.  But she rejected the view that soliciting amicus parties and helping the amici to prepare their briefs was part of the work of representing the plaintiffs.  This seems the least plausible of her objections, since lawyers consider the presentation of forceful amicus briefs, carefully coordinated to avoid inconsistent arguments and assure coverage of all potential points of argument, to be an integral part of their strategy to educate the court and provide significant supplementation to the evidentiary record.  The courts of appeals and the Supreme Court have cited amicus briefs in their opinions in favor of marriage equality, showing that they are not merely peripheral window dressing in the effort to achieve the plaintiffs’ litigation goals.

Judge Elrod stated her objections in terms of concepts rather than dollar amounts, not suggesting how much she would have reduced the fee award, and the per curiam opinion does not respond to any of her arguments. The state could seek Supreme Court review, and Elrod’s partial dissent implicitly encouraged this by contending that some of the points she raised involved departures from 5th Circuit precedent or created splits between the 5th Circuit and other Circuit courts on the basis for awarding fees to prevailing parties.  The Supreme Court is rarely interested in cases about attorneys’ fees, but a circuit split in a high profile case might catch its attention.

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.