How Ricci Almost Disappeared:
Stuart Taylor has an interesting post on how the Ricci case almost evaded the attention of other Second Circuit judges, let alone the Supreme Court.
Related Posts (on one page):
- How Ricci Almost Disappeared:
- "What Really Happened" in Ricci:
- Ricci Revisited:
This makes me wonder how many other cases of reverse discrimnation have been swept under the rug.
If a tree falls in the forest ...
It is not true that published decisions are circulated to other Second Circuit judges before publication.
It is not true that the Supreme Court "almost never" grants review of summary orders.
1) incompetent and the legal issues in the case just went entirely over their heads, or
2) they actively conspired to bury the case because they astutely recognized it would spell trouble for their personal policy preferences.
Since I've been told that Sotomayor is a wise latina, then I think it's probably the latter.
The third possibility of course is that Cabranes and the entire Supreme Court, including the 4 dissenters got the legal issues wrong, and the case really should have been disposed of by summary judgment, because no real issues existed.
I think most of Sotomayor's supporters realize option 2 is the best explanation but that's the way things should be, as long as the personal policy preferences are "correct", then the judge make them the law of the land by summary decree.
(The two companies are Becker Gallagher Legal Publishing, Inc. and Cockle Printing Co.)
My brief (approximately 350 pages including the initial appendix) cost a shade over $7000, which included the Supreme Court's $300 filing fee.
Additionally, the article implies that an en banc request originates among the members of the court. At least in the Ninth Circuit, the losing party seeks the en banc review. This appears to be the Second Circuit procedure as well, though I will defer to a Second Circuit practioner if there is an unwritten rule allowing a judge to sua sponte seek en banc reconsideration.
Federal appellate rules permit any judge in a circuit to call for an en banc vote, in addition to allowing the losing party to petition for an en banc rehearing.
Just two months ago in Nordyke the request for an en banc vote came from a judge, not a party, in the 9th Circuit.
This fails to consider the fact that the Circuit courts and the Supreme Court do somewhat different things.
The Supreme Court is generally free to make or reshape prior precedent, the Circuit Courts are only free to do so where no Supreme Court decision is on point.
No matter how unfair this case may be, the plain fact is that prior to the Supreme Court decision in Ricci the state of the law was pretty favorable to the defendants in Ricci. That may be a slight overstatement, it's more accurate to say there was simply no strong basis in caselaw to say what the city did was actually unconstitutional. (given their alternative duty to avoid a disparate impact suit)
This is more than amply affirmed by the fact that three judges on the district court decided it was uncontroversial enough to issue something more than a per curiam opinion, and 7 of the 13 judges on the en banc second circuit also though the per curiam decision was not remarkable enough to grant a rehearing, and only 2 actually though the denial of rehearing was remarkable enough to write an opinion about. (IE Cabranes)
The fact that the Supreme COurt decision was 5-4 only provides more support for this. Despite the much bandied about fact that "none of the justices agreed with Sotomayor's approach" (IE a brief per-curiam opinion) it's much more reasonable to say that creating new doctrine requires much more word space than merely reaffirming old doctrine. The fact that the opinion takes up 93 pages is more indicative of how there wasn't much guiding authority here.
It is absolutely true that published decisions -- but not summary orders -- are circulated to other Second Circuit judges before publication. Not before the order is issued, of course; but before publication by West. And judges and their clerks (of whom I was one) review those circulated opinions, precisely for the reason that each judge has an interest in precedents established by panels on which they do not sit.
I was unaware of the procedure where a judge seeks en banc review, in either the Second or the Ninth Circuits. That's what I love about this blog, I often learn something new.
I haven't read either of the Petitioners' applications for cert, but i suspect the second one amended the mandatory section of the application dealing with the disposition of the case below.
I also suspect few appellate lawyers would argue that the change of disposition by the Second Circuit bench would have likely had no effect on the ordinarily slim chances for grant.
Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999).
"... it's more accurate to say there was simply no strong basis in caselaw to say what the city did was actually unconstitutional. (given their alternative duty to avoid a disparate impact suit)
What would be the basis of such a disparate impact suit? Surely not the four-fifths rule because according to the guidelines for applying the rule the sample size was too small. A mere imbalance in test results is not enough to put the burden on the employer. That imbalance must be significant and as I have show in prior posts it was not. Perhaps there was some other basis for a suit against the city on the basis of the test results, but so far I have not come across it.
That case found here, had completely different facts, and a different issue, and is an outcome that I and I think the Supreme Court would agree with:
There is nothing wrong with designing a test with race (neutrality) in mind, and it is exactly what New Haven did. But then New Haven took the next step and threw out the results of examination that was "designed with race in mind (i.e., to minimize the discriminatory impact on minority candidates), was administered and scored in a race-neutral fashion." Because the still didn't like the results.
Whatever you think of the statistics/sample size the Supreme Court actually agreed the test had a disparate impact. It held the Second Circuit was wrong because there was no evidence the test was not job related and consistent with business necessity.
Even finding that, though, would not have been enough to rule for plaintiffs had the Supreme Court not made up a special -- and yes, new -- rule for these "our defense to a disparate treatment suit is that we feared a disparate impact suit if we acted differently" cases.
Aside from this new, special rule, it is clear that it is a valid defense to disparate treatment to act on grounds that are stupid or illogical. If I fire a black employee because he's an Aquarius, and dang it, I hate people of that astrological sign, that's not disparate treatment, and it doesn't matter that my reasoning/fear is illogical or unreasonable. Similarly, if I fire somebody because I fear he's going to sue me for illegally reading his mind, that's a valid defense to any Title VII suit, even if there obviously would be no valid case. The idea is, it may be stupid, but it's not intentional discrimination.
That's the general rule the Second Circuit was following. The Supremes made up a new rule for this specific type of case in Ricci. Reasonable minds can differ as to whether this rule is a good one, but it sure is a new one.
I am not trying to be obtuse. Was your second sentence in your response to me meant to opine that you thought the Cabranes dissent (and the decision itself being published) did or did not affect the chances of cert. being granted?
In all the scenarios you mention, the plaintiff would be able to argue pretext -- as the firefighters did here -- and so long as the plaintiffs were alleged facts that a reasonable jury could find to be sufficient to support such a claim -- again, as the firefighters did here -- then summary judgment would inappropriate. So, even had the Supreme Court majority not announced a new rule the Second Circuit's disposition of the case would have been inappropriate and should have been remanded. Thus, the dissenters said the case should have been remanded, as did the Obama Administration.
I would also note that while the Kennedy opinion announced a new rule, it did not overturn an old one. This scenario had not been squarely presented to the Court before this time.
Owen H. --
In Hayden the issue was whether the test was "neutral," not the outcome.
As for the Second Circuit panel's handling of the case, as I noted in a prior post, the NYT reported that the reason for the initial unpublished summary order was not because the case was clearly controlled by precedent, but because the panel could not agree how to handle the case and did not want to create new precedent.
Ben P. --
The law was more favorable to the defendants pre-Ricci than postRicci, but only assuming that the plaintiffs could not demonstrate that the stated justification for the action (fear of disparate impact suit) was pretext. Under the law at the time, this was clearly a question of fact that should have precluded summary judgment (though, given the law at the time, I believe New Haven would have had a reasonable shot at winning at trial).
JHA
New Haven feared its test would fail that standard because it didn't have a "neutral" outcome.
I'm sure New Haven feared a lot of things, but that isn't the point. The point is that the facts and the law in this case differed significantly from previous precedent in the circuit, so a summary judgment was an attempt at skirting those issues, rather than a determination that the issues had already been resolved.
I don't think it's a complete answer to suggest that Hayden is distinguishable from Ricci because "[i]n Hayden the issue was whether the test was 'neutral,' not the outcome."
The Hayden plaintiffs argued that
The Hayden court found that the exam was administered on a race-neutral basis (for example, no scoring preference was given to any racial group) and held that
That seems pretty reasonable support for the proposition that invalidating (or refusing to validate) the results of an exam for the purpose of diminishing the adverse impact on minority applicants (and presumably replacing it with some other "lower impact" neutral selection criterion) is also not a "racial classification."
In Ricci the Supreme Court, appears to have made a distinction between cases in which an exam has already been administered and those in which it has not been. In the former circumstance, choosing a different selection method for the purpose of diminishing adverse impact is a "racial classification," in the latter, maybe not.
In other words, Hayden says, "choosing a promotion test to avoid or minimize disparate impact is not a racial classification;" in Ricci the Supreme Court qualifies, "unless you've already administered the test that causes disparate impact." That qualification didn't exist when the panel decided Rici.
That case found here, had completely different facts, and a different issue, and is an outcome that I and I think the Supreme Court would agree with
What in blazes are you talking about? The question was what precedent the Second Circuit relied upon, and I identified it. Unless you're a member of the Second Circuit, the fact that you see the case as distinguishable has little relevance.
Did. I also believe that under SCOTUS rules, petitioners were duty bound to revise/amend their petition when the Second Circuit changed its disposition of the case.
I am not disagreeing (though cert. has been granted in unpublished cases in the past). I just wanted clarification because I wasn't sure which way you meant it.
Thanks for the response.
I have not read the decision carefully, but evidently SCOTUS did think the test results showed disparate impact. I would be curious to know why they would think that. If they decided that the four-fifths rule was violated then they are simply wrong. This would not be the first time they got confused over a statistical question. For example they confused odds with probability in another case.
Can you explain your thinking? Hayden appears to say that choosing among neutral selection methods on the basis of which one minimizes disparate impact is not a "racial classification." Why wouldn't that resolve Ricci absent a new rule that doing so becomes a racial classification once a test has been administered?
What in blazes are you talking about? The question was what precedent the Second Circuit relied upon, and I identified it. Unless you're a member of the Second Circuit, the fact that you see the case as distinguishable has little relevance.
Exactly, which is why Judge Cabranes blew the whistle. It was obvious to him, and anybody else that read the facts of the two cases. Which is why they pulled the summary judgment dodge to keep the facts out of the record.
Right, and it wouldn't be the first time that a court got confused about stats. Let me be clear that I'm not necessarily disagreeing with you about the stats, just saying what the Supreme Court held.
JHA:
You might want to check out the rates at which plaintiffs in Title VII cases lose -- on summary judgment and on appeal -- despite the fact that they have a right to argue pretext. Plaintifs lose Title VII cases at pretty much every stage of litigation at a rate greater than pretty much any other type of civil litigation.
This may be good or bad (althouh I'll note that I don't often hear conservatives and libertarians argue it's bad). But the point is it was hardly unprecedented for a lower court to find no pretext based on the type of evidence in Ricci and for an Appellate court to basically rubber-stamp that finding. Heck, after St. Mary's Honor Center v. Hicks, plaintiffs can show pretext and still lose, even on summary judgment.
Let me stress I don't think that's a good state of affairs for the law to be in. But it wasn't the liberals on the Supreme Court who created those rules.
Let me also stress that I'm not even arguing that the rule the Supreme Court came up with in Ricci is a bad one -- just that it's a new one, and that the Second Circuit didn't act outrageously by following the old one.
Jim, I'm not sure when you clerked, but that was not the practice when I clerked for the Second Circuit in 2005-06.
It's pretty clear from the article that the plaintiffs had the option of seeking en banc review: "Attorney Karen Torre, who represents the firefighters, said they were considering whether to ask the full 2nd Circuit Court to hear the case or to take a direct appeal to the Supreme Court."
It's also pretty clear from the article that the plaintiffs were none too pleased: "Adding insult to injury, they wouldn't even give us a decision, just a few sentences which dispose of our constitutional rights without comment. We expected more than that from a federal appeals court."
I wonder if federal appeals courts often issue summary orders merely because they don't want to set any precedents.
Maybe one day they will modernize and just let you submit a PDF.
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