Thursday, January 17, 2008

We have been silent for a few days as we have been in the midst of a titanic battle in court under the Computer Fraud and Abuse Act. Many interesting issues that I hope to later discuss, once the dust clears in the litigation.

I am a certified baseball nut. So, this blog will occasionally have posts about baseball, some that might marginally have something to do with employment law, and most probably just having to do with the greatest game that God ever invented. So, with that fair warning, I thought I would start the day with some baseball.


Tuesday, February 26, forty days from today, will be the first spring training games. The Mets play Michigan at noon, and that should be the first game of the spring training schedule.

In the midst of all the embarrassments about the drug scandal, the sad news comes that one of the greats died the other day. Johnny Podres who helped pitch the Brooklyn Dodgers to their one World Series died last Sunday. Podres pitched Game 7 in 1955 against the Yankees in their park, and, of course, the Dodgers won, having lost the World Series seven times before. Podres mentored Curt Schilling. Schilling had very nice things to say on his blog the other day about Podres. In his obituary, he is described as "old-school", and that he "disdained technological advances such as computerized charts." He once said: "I don't know nothin' about computers, I know pitchers."

In embarrassing contrast, Major League Baseball appeared on Capitol Hill on Tuesday of this week. And, what did we learn. First, Miguel Tejada may get indicted for lying under oath in his 2005 Congressional testimony. As far as I am concerned, I would be a happy man if Bonds, Tejada, and the others share a jail cell for a long time. We also shockingly learned that Major League Baseball granted an extraordinary number of drug exemptions to Major League ballplayers in 2007, allowing them to use performance-enhancing drugs because of alleged medical disorders. Now, before I tell you the medical disorder du jour, put your seat belts on, the vast majority of the players requested exemptions for stimulants used to treat attention-deficit disorder. Give me a break.

Then, you have the embarrassing shill for the union, Donald Fehr, who probably should be indicted as a co-conspirator and placed in a dark dank jail cell for a long time. Finally, in stark contrast to Mr. Fehr who is deserving of zero respect, we have the Baseball Hall of Fame passing over Marvin Miller, and on the same ballot, selecting Bowie Kuhn. I could hardly think of anyone more deserving to be in the Hall of Fame than Marvin Miller, and, at least comparatively speaking, anyone less deserving than Bowie Kuhn. But, life ain't fair.

Enough baseball.

The Balkans

Okay, I guess after taking a few days off, I am having trouble getting back into the swing of things in terms of employment law. I read the other day an op-ed piece about potential trouble spots in the Balkans, and came away saying to myself that you probably could count on one hand the people in our government who have an awareness of the many powder keg issues in that area that could explode into unrest in the coming months. For example, how many of us have a clue as to what is Mitrovica, much less its significance in this area of the world. Now, if you passed that test, can you find for me on a map Abkhazia? How about South Ossetia? Okay, you're a genius and you've gotten the first three. How about Trans Dnestr? Or Nagorno-Karabakh? If you are seriously interested, what provoked this rather silly post was Anatol Liven's op-ed in the Financial Times of this past Monday entitled "Balkan Unrest Remains a Recipe for Disaster."

Jena Six

Remember a few weeks back when everyone was in a dither about the so-called Jena Six. While I do not profess to know the full story, Charlotte Allen's article entitled "Jena: A Case of the Amazing Disappearing Hate Crime" that appeared in the January 21 edition of The Weekly Standard, is well worth reading to get a very different perspective on the matter than you might get from reading the Washington Post and the New York Times.

D.C. School Legislation Authorizing Termination of Non-Union Employees Passes

On January 8, the D.C. City Council gave final approval to the legislation that would provide authority to the new Chancellor to terminate non-union employees without cause. See our prior post "District of Columbia Non-Union School Employees To Be At-Will", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, Dec. 27, 2007 at (For full text of Act, see

Court Monitors and Special Masters

There has been controversy recently surrounding the fact that former Attorney General Ashcroft's business, the Ashcroft Group, was selected by the United States Attorney in New Jersey to monitor a False Claims Act settlement. See Philip Shenon, "Ashcroft Deal Brings Scrutiny in Justice Dept.", The Washington Post, Jan. 10, 2008, available at ; "Ashcroft Rakes It In With DOJ Settlement", available at ; and "Pascrell Calls on House Judiciary Committee To Examine Deferred Prosecution Agreements", available at In contrast, I have not heard a whisper of protest that the Supreme Court this past Tuesday named San Francisco lawyer, Kristin Linsley Myles, to be a Special Master to gather evidence and report to the Court on a dispute between South Carolina and North Carolina over sharing the waters of the Catawba River. Ms. Myles is a former clerk for Justice Scalia. For an excellent discussion on Special Masters, see Margaret G. Farrell, The Role of Special Masters in Federal Litigation, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in the Federal Courts (Oct. 14-16, 1993). See also materials submitted by Francis E. McGovern entitled Appointing Special Masters and Other Judicial Adjuncts: A Handbook for Judges, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in Federal and State Courts (Mar. 7-9, 2007).

One wonders if there ought not be competitive bidding for these plumb assignments.

Supreme Court Update

Engquist v. Oregon Department of Agriculture, 478 F.3d 985 (9th Cir. 2007), petition for cert. in No. 07-474 granted, 76 U.S.L.W. 3364 (Jan. 11, 2008).

The issue presented is whether the Court's "rational basis" analysis in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive, or malicious reasons.

In Olech, the Court recognized the viability of " . . . equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." The Olech Court held that a complaint alleging that the Village demanded a larger easement from the plaintiff than other similarly situated property owners; that the difference in treatment was irrational and wholly arbitrary; and that the Village ultimately relented in accepting a lesser easement was "sufficient to state a claim for relief under traditional equally protection analysis." 528 U.S. at 565.

Based upon Olech, seven Circuits recognized that public employees could state a rational basis equal protection claim against public employers to challenge individual employment decisions.
See Scarbrough v Morgan County Bd. Of Educ., 470 F3d 250, 260-61 (6th Cir 2006); Hill v Borough of Kutztown, 455 F3d 225, 239 (3d Cir 2006); Whiting v Univ of Miss, 451 F3d 339, 348-50 (5th Cir 2006); Neilson v D’Angelis, 409 F3d 100, 104 (2d Cir 2005); Levenstein v Salafsky, 414 F3d 767, 775-76 (7th Cir 2005); Campagna v Mass Dep’t of Envt’l Prot., 334 F3d 150, 156 (1st Cir 2003); and Bartell v Aurora Public Schools, 263 F3d 1143, 1148-49 (10th Cir 2001).

In contrast, the Ninth Circuit in Engquist, created an exception to Olech for public employment cases, predicating its exception on a concern that Olech was unnecessary due to the number of legal protections public employees enjoy, that the application of Olech to public employment would upset the common law at-will rule, and that such an exception would generate a flood of cases requiring federal review of a multitude of public agency personnel decisions. 478 F.3d at 993. See also Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Whillowbrook v. Olech, 78 Wash. L. Rev. 367 (2003).

The Fourth Circuit has recognized Olech in Willis v. Marshall, 426 F.3d 251 (4th Cir. 2005), a non-employment case, where the plaintiff was barred from a municipal community center for "dirty dancing".

Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2007), cert. granted, 128 S.Ct. 742 (Dec. 7, 2007), cert. dismissed, 2008 U.S. LEXIS 1095 (Jan. 14, 2008).

On Monday, the Supreme Court dismissed the Huber case as the parties had settled the matter. See our prior post, "Is The ADA An Affirmative Action Statute?", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, at

James v. Metro Government of Nashville, No. 07-367, cert denied, James v. Metro. Gov't, 2008 U.S. LEXIS 930 (U.S., Jan. 14, 2008)

The Court denied cert. in this case which presented the question whether a judge or jury has the role of deciding whether a worker has been retaliated against for protesting discrimination in the workplace.

This is the James' case second visit to the Supreme Court. Following the decision in Burlington Northern, James sought cert. and the Supreme Court, in light of its Burlington Northern decision vacated an earlier decision of the Sixth Circuit finding that certain retaliatory actions were not adverse employment actions under section 704(a) of Title VII. The Court remanded the case for reconsideration. 127 S. Ct. 336 (2006).

Thereafter, following a series of Sixth Circuit decisions, the Court of Appeals held on remand that it is for the Courts to determine whether the facts or allegations of a particular case meet the Burlington Northern standard. See McNeill v. U.S. Dep't of Labor, 2007 WL 1880599, *6 (6th Cir., June 27, 2007); Michael v. Catepillar Financial Service Corp., 2007 WL 2176220, *7 (6th Cir., July 31, 2007); Watson v. City of Cleveland, 202 Fed. Appx. 844, 855 (6th Cir. 2006).

Five other Circuits have adopted the holding of the Sixth Circuit that judges are to determine whether the Burlington Northern standard has been satisfied, and four other Circuits have held that juries should decide.

The Fourth Circuit in Csicsmann v. Sallada, 211 Fed. Appx. 163 (4th Cir. 2006), found that the alleged retaliatory act did not meet the Burlington Northern standard because "This court has never found" that a materially adverse action existed based on the type of retaliation alleged in that case. See also Parsons v. Wynne, 2007 WL 731398, *1 (4th Cir., Mar. 9, 2007). In contrast, the District of Columbia Circuit has held that it is for juries to decide whether a retaliatory act could have deterred protected conduct. See Vlikonja v. Gonzales, 466 F.3d 122 (D.C. Cir. 2006). See also Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).

John R. Sand & Gravel Co. v. United States (Jan. 8, 2008).

The majority opinion, written by Justice Breyer, relying on stare decisis, adheres to the Court's interpretation of a statute of limitations applicable to claims presented to the Court of Federal Claims (28 U.S.C. Section 2501) as jurisdictional, finding that the Court's decision in Irwin v. Dep't of Veteran's Affairs, 498 U.S. 89 (1990) was distinguishable. The Court, quoting Justice Brandeis, states that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting opinion).

Justice Ginsburg, in her dissent, responding to the stare decisis argument, states: "It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions." Justice Ginsburg also notes that 28 U.S.C. Section 2401(a) contains a time limit materially identical to that in Section 2501, and that the Courts of Appeals are divided on the question whether Section 2401(a) is jurisdictional. In conclusion, Justice Ginsburg states: "After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts."

For employment lawyers, I think the important question is whether the majority in any way suggests that Irwin, which is only seventeen years old, remains good law. Irwin held in a Title VII case against a federal agency that the statute of limitations is subject to equitable tolling - "namely, 'that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.'" (citation omitted). I do not read the majority as suggesting that Irwin is anything other than good law. Clearly, in cases against the federal government, where there is an existing interpretation of a statute of limitations as jurisdictional, it would appear that an overwhelming majority of this Supreme Court will not overturn those precedents even though they are out of step with more modern interpretations that statutes of limitations against the federal government should be treated the same as statutes of limitations against private parties. As the dissent noted, Oliver Wendell Holmes' famous quote, seems applicable here. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).

Collaborative Law

As a follow-up on my earlier post, "Collaborative Law", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog,, January 11, 2008, on collaborative law, see Marlissa Briggett's article in the Boston College Law Magazine on the topic,


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