The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

New CDC Eviction Moratorium Is Defective, But Federal District Court Cannot Vacate Its Earlier Stay Where the Order of the D.C. Circuit Court of Appeals Upholding that Stay Is the Law of the Case

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-0377-DLF.  Opinion and Order issued August 13, 2021.


The federal district court in the District of Columbia has compared the August 3, 2021 Order of the Centers for Disease Control imposing a nationwide stay of evictions until October 31, 2021 and found it to be not materially different from the order preceding it, which has been found to be, and has been admitted to be, constitutionally defective.  

Were it possible to do so, the federal district court said today, the court would enter an order similar to the order of vacatur issued previously.  The court cannot do so, however, because the United States Court of Appeals for the District of Columbia Circuit refused to disturb the district court’s earlier stay of its order of vacatur.  The appellate court’s refusal to grant relief, which left the district court’s stay of its order of vacatur in place, is the law of the case which the district court may not now ignore. 

The appellate court and the district court were not of the same analytical minds with respect to the initial stay, but this is of no moment at this time.  Plaintiffs’ recourse is in the appellate court or in the United States Supreme Court.  

There is Need for a Meta Crystal Ball.  It is not known at this time whether the plaintiffs will once again seek relief in the United States Supreme Court prior to seeking relief or continuing its current appeal in the D.C. Circuit Court of Appeals.  Although the United States Supreme Court denied plaintiffs’ earlier petition, Justice Kavanaugh opined that he would have agreed with the justices who would have granted relief but for the imminent expiration of the first Centers for Disease Control Order.   While plaintiffs in this case asserted that Justice Kavanaugh’s opinion in essence created a majority that would grant relief, the United States argued the concurrence in denying relief could not be transformed into one granting relief, as plaintits wished, a position with which the district court has agreed.  As the other justices’ votes are known publicly, but their analyses and opinions are not, assessment of a likely outcome if relief were sought first in the Supreme Court will no doubt provoke much discusson. 

JustLawful Observation: Whether in the present posture of the case plaintiffs will renew their request for relief in the United States Supreme Court rather than in the D.C. Circuit Court of Appeals is, of course,  a matter of speculation.  While much of today’s ruling may have too much of a “yes-but-no” flavor, and seem to rely on jurisprudential concepts pleasing to judges and lawyers but confounding to the public, there may be some comfort in considering that it is likely that not too much time will pass before the next round of litigation begins.  

Alabama Association of Realtors, et al. v. HHS, No. 20-0377Memorandum Opinion and Order dated August 13, 2021

20% Off Is Still 100% Unconstitutional: Realtors Argue that Novel Iteration of CDC Eviction Moratorium Is as Lacking in Authority as its Precursor

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-cv-03377 (D. D.C.). 


Emergency!  Last spring plaintiff realtors and related organizations were successful in persuading the U.S. District Court for the District of Columbia that the September, 2020, Order of the Centers for Disease Control imposing a national moratorium on evictions was without authority.  The court found no authority for such a sweeping measure in the public health law that served as the order’s premise, nor could the court find any legislative delegation of authority that would permit the Centers for Disease Control to criminalize rental property evictions. 

The D.C. District Court vacated, yet stayed, its order pending review.  The U.S. Court of Appeals for the District of Columbia Circuit refused to disturb the federal district court’s determinations, and the United States Supreme Court denied emergency review.

The denial of review, however, came with Justice Kavanaugh’s concurring caveat: he agreed that the eviction moratorium order was unconstitutional but sensed that it was best to let the order lapse of its own accord at the end of July, as the Centers for Disease Control represented to the Supreme Court that the moratorium would not be extended further. 

Post-Moratorium Hubbub in the Executive and Legislative Branches.  The President of the United States stated publicly that he had been advised that the eviction moratorium was unconstitutional. A valid moratorium would require, as Justice Kavanaugh pointed out, legislative authority, which Congress failed to enact. 

The President begged the states to disburse the $45,000,000,000 that the federal government had provided in assistance to troubled tenants but which appears to have been bogged down in bureaucracies.  

This Time It’s Different.  On August 3, 2021, the Centers for Disease Control issued a new order prohibiting evictions in areas deemed to be highly affected by a variant of the contagious Covid-19 virus that prompted the initial moratorium.  This “Delta” variant, the Centers for Disease Control has predicted, is highly contagious and its threat to interstate transmission justifies federal intervention on a limited basis, which the Centers for Disease Control now sets at about 80% of all counties nationally or 90% of all rental housing in the United States.

Lack of Constitutional Authorization Remains. Plaintiffs argue that the fundamental lack of authorization for the Centers for Disease Control’s new order persists: no geographic or statistical tinkering can imbue the order with the constitutional soundness it lacks.  

It’s Not the Principle of the Thing, It’s the Money. That the Executive Branch is in accord with the view that the prior order was unconstitutional  makes the new order all the more curious except that the President has stated that he hopes that litigation will buy some time to move relief to intended recipients.  

Fuzzy Math.  The U.S. Department of Health and Human Services, of which the Centers for Disease Control is a component, has opposed emergency relief now because, the government argues, the plaintiffs’ assertion that the precedent it finds in Justice Kavanaugh’s concurrence is not precedent at all.  The government argues that a concurrence that can be seen as aligned with those who would have granted relief cannot transform the minority of judges who would have granted review into a majority.  

As Then, So Too Now.  Defendants argue that as there is no Supreme Court precedent binding the district court the law requires that the D.C. Circuit Court of Appeals opinion on the stay controls.  The district court should not disturb its earlier stay, the government argues, but the court must recognize that its earlier vacatur of the first CDC order is of no moment, either, as circumstances have so changed that the court’s initial conclusions would not apply now.  

Deference, Please. Moreover, the Centers for Disease Control submit that the district court should abstain from any action to permit the Solicitor General of the United States to determine whether to seek emergency review in the D.C. Court of Appeals or the United States Supreme Court.

There May Be More to Come. The plaintiffs may file a reply to the government’s opposition by August 6, but at this time none is of record.

Centers for Disease Control Order Dated August 3, 2021:

CDC Eviction Order

Realtors’ Emergency Motion:

Emergency Motion to Enforce the Supreme Court’s RulingyDefendants’ Opposition

Defendants’ Opposition to Plaintiffs’ Emergency Motion

Order of U.S. Supreme Court Denying Review of Eviction Moratorium

Order Denying Application to Vacate Stay June 29, 2021

Public Figures, Private Law: Facebook Oversight Board Upholds Initial Removal of President’s Statements and Presence but Condemns Facebook’s Failure to Articulate Standards or Time Limits


Case No. 2021 -001 – FB – FBR.  Facebook Oversight Board, May 5, 2021.


Facebook is an online social media platform that welcomes all except those determined to have acted badly according to its internal standards, which are described generally in its Terms of Service, with which users promise compliance.   For the errant poster, Facebook may administer rebukes, suspend or terminate service, as well as removing content it deems unsuitable. 

Facebook thus administers and enforces rules of its own making by its own employees.  In light of persistent concerns about this insularity, Facebook founder Mark Zuckerberg created a board of review, funded by Facebook but administered independently.  

This week the Facebook Oversight Board issued an opinion unsigned by its constellation of prominent international figures that concluded that Facebook did not err in removing statements of then-President Donald J. Trump at the time of and concerning violence that erupted on January 6, 2021 in the nation’s Capitol following a rally of Trump supporters.  

While correct in the immediacy of its removal and ban in light of the circumstances at the time, in which the then-President’s words were perceived to have incited insurrection, the Facebook Oversight Board condemned Facebook’s failure to articulate the reasons and applicable standards supporting the removal and ban and the apparent eternal silencing of Facebook account holder Trump.  

The Facebook Oversight Board sent the case back to Facebook for further proceedings. 

The decision is no small matter and some have deemed it a landmark of equal stature with Marbury v. Madison, 5 U.S. 137 (1803), the first enunciation by the United States Supreme Court of its reason for being and its power of judicial review.  

This proceeding can be seen as a foundational attempt to provide some structure for review of platform provider’s decisions.  

This matters greatly (“bigly”, some might say) because internet service providers are almost entirely immune from suit for questionable decisions and at the same time the government of the United States cannot intervene to regulate online speech as it is constrained by the First Amendment to the Constitution of the United States.  

Section 230:  the good, the bad, and the sometimes ugly. When widespread public adoption of the internet was in its infancy, Congress sought to inhibit unprotected speech while protecting internet service providers from liability for statements not of their own creation posted on platforms.  Section 230 of the Communications Decency Act of 1996 preempts federal law and precludes suit against any platform provider who does not create content.  The platform is free to remove or to otherwise police its product without losing those immunities.  

This would leave a user without recourse unless the platform’s actions could be challenged in court in contract, which in limited measure can be done, or through internal review with the platform provider, as is the case in this week’s opinion.

The creation of an international body not necessarily bound by the laws of any one nation cannot be other than a major inflection point in modern law.  Prominent First Amendment authorities question whose law should govern such cases.  

It is far too soon to tell whether this new thing is a good thing, and much is lost in cheers and jeers attaching to personalities, whether that of the former President or of the founder and CEO of Facebook.  What is to the Facebook Oversight Board’s credit is that the reviewing body articulated not only the facts determined but also the standards embraced.  The virtue of its reliance on standards drawn from international human rights declarations, which remain aspirational domestically if not adopted by the United States, awaits further reflection.  

Links to the decision and to other materials are posted below. 

The Facebook Oversight Board opinion:  

2021 001 FB FBR Oversight Board Opinion

The Facebook Oversight Board announcement and overview of its opinion:

Oversight Board Upholds Trump Suspension While Finding Facebook Failed to Apply Proper Penalty

The composition of the Oversight Board:

Facebook Oversight Board

A primer on the creation of the Oversight Board and a reflection on this week’s opinion:

Lawfareblog: About the Facebook Oversight Board

Lawfareblog: It’s Not Over: Oversight Board Trump Decision is Just the Start

Reflections on jurisprudential questions prompted by the Facebook Oversight Board determination:

Volokh Conspiracy: Whose Rules Should Govern How Americans Speak with Other Americans Online

Responses to announcement of the decision and opinion in the mainstream media:

Facebook Oversight Board Tells Zuckerberg He’s the Decider on Trump – The New York Times

Trump Is Still Banned on YouTube. Now the Clock Is Ticking. – WSJ

Facebook Oversight Board’s Trump Decision was Marbury v Madison Moment – CNBC

Two recent cases discussing Section 230 of the Communications Decency Act of 1996:

Daniels v Alphabet Inc ND Cal 2021

Murphy v Twitter Inc Cal App 2021

Discussions of United States’ positions on international human rights conventions:

Where the United States Stands on 10 International Human Rights Treaties – The Leadership Conference Education Fund

Human Rights and the United States

Public commentary on the controversy submitted to the Facebook Oversight Board:

Facebook Oversight Board Public Comments

Hardly Extraordinary: D.C. Circuit Reverses Course and Denies Mandamus, Returning Flynn Case to Trial Court for Inquiry into Government’s Motion to Dismiss


In re Michael T. Flynn, No. 20-5143 (D.C. Cir.) Order and Opinion Denying Emergency Petition for Mandamus entered August 31, 2020.


ICYMI:  Retired General Michael T. Flynn, having served in both the Obama and Trump administrations, was charged with making false statements to federal officers in connection with investigation of foreign involvement in the United States’ 2016 election and related matters.  Gen. Flynn twice entered guilty pleas yet later sought to withdraw those pleas, as exculpatory evidence became available and as the conduct of federal investigators came into question.

The Attorney General requested independent review of the matter subsequent to which the federal government moved to dismiss the charges against Gen. Flynn.  The trial judge retained as amicus a retired judge to aid in determining whether the matter ought to be dismissed, and even if the matter were to be dismissed, whether the trial court might independently hold Gen. Flynn in criminal contempt for perjury.  The court was committed to discerning the foundation for dismissing the case, which would include discovery of the prosecutorial process and hearings.

Gen. Flynn immediately petitioned for a writ a mandamus, which was initially granted.  The trial judge, having been requested by the court of appeals to respond, petitioned for en banc review.  

On Monday, the full complement of the D.C. Circuit Court of Appeals changed its initial position and denied mandamus relief.  Two judges dissented.

The per curiam opinion.  The majority of the panel concluded that mandamus was not appropriate where the trial court had not yet entered any order concerning the government’s motion to dismiss.  General Flynn could pursue appeal if any ruling were adverse to him, and as such, he had not made a showing that there existed no adequate means of redress.  The separation of powers arguments are speculative and, in the absence of concrete action on the motion to dismiss, cannot support extraordinary relief.  Moreover, the adversities the defendant complained about were not dissimilar from those visited upon other defendants, and unlike many others, the General remained at liberty.  

In addition, the panel majority found no reason to reassign the case to another judge.  The court’s commentary in the course of the proceedings was not unusual and without more cannot support reassignment.  Disqualification based on the trial judge having become a party in the mandamus proceedings could not be supported where the federal court of appeals determined to grant en banc review sua sponte.

Principles only, not politics.  D.C. Circuit Judge Griffith wrote a separate concurrence underscoring that the appellate court concerned itself only with the constitutional and jurisprudential questions presented notwithstanding any public commentary about political matters, including political appointments.

If not now, when?  Judges Henderson and Rao each wrote dissenting opinions and each supported the other’s views.

Circuit Judge Henderson affirmed her view that the initial In re Flynn mandamus ruling and order was correct, and worried that the standard set for reassignment by the panel majority is impossibly high, which will inhibit motions for disqualification that would otherwise be brought. 

The statutory standards for impartiality appear to have been diluted beyond any efficacy where the notion of “leave of court” with respect to prosecutorial motions to dismiss, heretofore liberally construed, now permits scheduling hearings and taking evidence to determine whether leave ought to be granted.  

Flynn’s petition for mandamus would limit the trial judge’s participation in the mandamus proceedings to that which the appellate court might invite, as with the request that the judge reply to the petition.  Rather than accept this limitation, the trial judge disregarded the order of the D.C. Circuit to dismiss the Flynn case and assumed the posture of a party to the litigation by demanding en banc review.  The majority of the panel appears to have sidestepped this concern by announcing that the court had determined that it would proceed to rehearing en banc sua sponte, notwithstanding that an order referenced the non-party judge’s request as the basis for its decision. 

Throughout these proceedings, the trial judge has behaved in a way that causes concerns about impartiality, the judge observed, in that the court offered its “disgust” and “disdain” for Gen. Flynn’s behavior.  The court’s selected amicus — in addition to inviting public participation as amici — was on public record supporting the denial of dismissal.  

Where a trial judge’s participate in mandamus proceedings is by invitation, the trial court’s retention of counsel and behavior as if the judge were a party indicated an opposition to dismissal before the fact.  That the trial court wanted to investigate whether the court itself could conclude that the defendant ought to be held in criminal contempt even if the case were dismissed is an indication that the court itself would pursue the defendant.  

Judge Rao noted that separation of powers principles undergird judicial deference to prosecutor’s motions to dismiss notwithstanding that “leave of court” is sought.  The proceedings envisioned by the trial judge are intended to discover the inner workings of the executive branch, which is not constitutionally appropriate.  Moreover, such an incursion is not necessary in light of the known shortfalls in the government’s conduct with General Flynn.

The contradictory positions assumed by the trial judge are troublesome.  Although the court issued detailed orders about the planned proceedings, counsel at argument before the circuit court stated that the trial judge may not make any findings as a result of the judicial inquest.  This negates the majority’s conclusion that the harm anticipated by petitioner Flynn is “speculative.”

The routine availability of appellate review as a basis for denial of mandamus relief would mean that there would be no extraordinary case warranting mandamus.  “Wishful waiting” is no shield against the harm that judicial involvement in the executive may cause here, particularly where Flynn’s liberty, which the executive no longer seeks to curtail, is threatened by the trial judge’s plan of action. (Slip opinion at 26.)

As ultimately dismissal must be granted and as the judiciary has no power to superintend the executive’s power to direct and to control prosecutions, any denial of dismissal by the trial court would mean mandamus would issue in accordance with precedent.  There is no need to withhold relief where the appellate court would do well to inhibit error. 

Moreover, in light of the known errors of the executive, there is much to be said for permitting self correction and little to be said for further proceedings with the harm that would ensue to petitioner Flynn.  Incarceration is not the benchmark for measuring losses already occasioned and those foreseeable if proceedings continue.

The morass created by this case may not be without instructive value, according to Judge Rao, who concluded:

This case highlights the essential connection between the Constitution’s structure of separated powers and the liberty interests of individuals. While modern administrative government often blurs the separation of powers, at least in criminal cases courts have steadfastly policed the separation of powers, ensuring that a criminal defendant may lose his liberty only upon action by all three branches of the government. By allowing the district court to scrutinize “the reasoning and motives” of the Department of Justice, En Banc Pet. 13 (quotation marks omitted), the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor. The Constitution’s separation of powers and its protections of individual liberty require a different result. I respectfully dissent. 

2020 08 31 Flynn Mandamus Per Curiam

2020 08 31 Order on Mandamus

2020 08 31 Order on Flynn Mandamus Petition En Banc

The Tale of the Tell All: Federal District Court Refuses to Enjoin Publication Said to Contain Sensitive National Security Information


United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.


Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.

Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23.  Excerpts are currently available online.

The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances.  The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.

The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.

The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met.  To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.

Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.

The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred.   Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.

The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.

While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits:  “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.”  (June 20th Order, Docket No. 27, at p. 6.)

The court recited potential costs if Bolton loses on the merits are not insignificant:  loss of profits, exposure to criminal liability, and harm to national security.

Justlawful observation:  A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order.  Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.

This is not to say that the government wears a ten-gallon white hat in this case.  The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position.  Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern.  Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.

Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.”  (June 20th Order, Docket No. 27, at p. 6).  It is in this that the government’s extension of the review process may stand on firmer ground.

United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020

 

 

 

 

 

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

Not Exactly the Remedy Plaintiff Had In Mind: Federal Judge Denies Injunctive Relief Against Alleged Unicorn Trademark Infringers, Observing Public Health Crisis is Real, But Unicorn Crisis is Not

Art Ask Agency v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto, No. 20-cv-01666 (N.D. Ill.)


Plaintiff sought an emergency order to bring to a halt alleged infringement on unicorn and elf designs, which if granted would involve third parties domestically and internationally.  The federal court, strapped for resources in light of declared national and state emergencies, brooked plaintiff no mercy when, having been advised that the court would not schedule the hearing as plaintiff requested, plaintiff renewed its demand.

The court’s pointed opinion serves not only as a shot across the bow to litigants demonstrating extraordinary, yet imprudent, zeal in extraordinary times, but offers homespun 19th century legal wisdom:  “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” 1 Jessup, Elihu Root 133 (1938). Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192 (7th Cir. 1987).

Sure to be quoted to litigants and clients alike in coming days.

Just Lawful Chortles, But Frets:  The trial court was well within reason to put counsel on notice that repeatedly pressing its cause would not work, and particularly not in times of emergencies of the court’s and the nation’s own.  Through the quote from Root the court did, in fact, offer counsel a way to soften the blow to the client, albeit sardonically.  

Yet the reliance on ‘national emergency’ may itself soon wear thin.  At the heart of this case, and the court’s order, is the issue of enforceability, not pestiness.  Courts do not like to issue orders that cannot be effectuated, and rightly so. This is particularly true of orders that would affect entities not before the court, which would occur if the relief requested by Art Ask Agency were granted. It would not have consumed a great deal of judicial resources to mention this in the order denying reconsideration of the scheduling order. 

Although counsel everywhere will no doubt make use of this opinion to illustrate to clients what approach not to take at present, no one, and we may hope the courts included, looks forward to expansion of the “national emergency” rationale to cause even further limitations on the process of the courts.

Art Ask Agency v. The Individuals, et al., No. 20-cv-1666 (N.D. Ill.).