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Dems Blast Higher Hurdles for Civil Rights Claims


Sen. Sheldon Whitehouse (WDCpix)

Last year, an Arizona housing developer known for building affordable homes for Hispanics filed a complaint against the City of Yuma, which denied his application to build homes for low to moderate income families in a predominately white high-income neighborhood. The developer sued for discrimination under the Fair Housing Act, charging that the decision was racially motivated. But the federal court dismissed the case before the developer could even gather evidence, ruling that the discrimination the developer alleged was not “plausible.”

[Law]In the past, merely stating the allegations would have been enough to allow the developer to at least begin gathering information to try to prove his case. But two recent Supreme Court decisions have made bringing discrimination cases far more difficult by demanding not only that the claim clearly meet the requirements of the law, but also that a judge find it “plausible” before allowing the plaintiff to begin collecting evidence. The consequence is that many people who in the past might have won their cases on the merits now won’t even get past the entrance gate.

That’s either a sea change in the way the courts handle lawsuits and particularly civil rights claims, as several witnesses and senators argued on Wednesday at a Senate Judiciary Committee hearing on the subject, or it’s merely a clarification of the longstanding procedural requirements, as some Republicans at the hearing argued.

John Payton, President of the NAACP Legal Defense and Education Fund, in his testimony to the committee described the changes created by the Supreme Court as “a significant barrier that operates to deny victims of discrimination their day in court. This is nothing short of an assault on our democratic principles.”

Sen. Arlen Specter, (D-Pa.), who has introduced a bill that would overturn those decisions, called it “a blatant case of judicial lawmaking,” which normally “everybody agrees ought not be done.”

And Sen. Sheldon Whitehouse (D-R.I.) noted that the “plausibility standard” doesn’t appear anywhere else in the law, and “seems to be putting a big thumb on the scales” against the plaintiff. “It imports the judge’s set of beliefs into the equation in a way I’ve never seen before,” he said on Wednesday.

The cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal, might seem, at first, to be about procedural technicalities. But the procedures they address determine whether a victim of discrimination will be able to sustain a case in court. Stephen Burbank, a law professor at the University of Pennsylvania and expert on federal civil procedure testified that “these cases raise important questions about access to court, compensation for injury, the enforcement of public law, the role of litigation in democracy and the role of democracy in litigation.”

In Twombly, the Court held that the traditional “notice” pleading standard set out in 1957 no longer applies to anti-trust claims, and that a plaintiff had to plead “enough facts to state a claim to relief that is plausible on its face.” Two years later, the Court in Iqbal extended that stricter standard to all civil cases. To be “plausible,” the claim must provide enough “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal was a Pakistani arrested in New York after the September 11 attacks and held in a special federal detention facility after the FBI decided that he was “of high interest” to their investigation. After he was cleared and released, he sued federal officials, incuding former Attorney General John Ashcroft and FBI Director Robert Mueller, charging discrimination on the basis of race, religion, and national origin. In May, the Supreme Court dismissed the claims against Ashcroft and Mueller as vague and implausible.

To Payton and civil rights advocates, the Supreme Court’s rulings in these cases were a dramatic shift from the way federal courts have handled such claims since the civil rights movement. In 1957, the Supreme Court said that the federal procedural rules “do not require a claimant to set out in detail the facts upon which he bases his claim,” but instead require only “a short and plain statement of the claim” that will provide notice to the defendant and the basis for the claims. The case would then be developed as the plaintiff gathers facts during what’s known as the “discovery” process, which allows the plaintiff to seek evidence from the defendant.

Payton testified on Wednesday that the court’s recent change will drastically limit the ability of many discrimination claims to bring cases, because it’s usually the defendant who has all of the evidence of discriminatory conduct; the plaintiff can’t access it until after filing suit. Say, for example, that a black woman has applied for a job, and she heard from somebody that her application was not even reviewed, he said. Under the new pleading standards, her claim of discrimination would be thrown out before she could even investigate the case under the normal procedural rules. “We know in discovery maybe the smoking gun document shows up,” said Payton. “We know the consequence has been harmful to very important civil rights values we all share.”

In fact, in his written testimony, Payton cites specific discrimination cases already dismissed in federal courts around the country based on the Iqbal decision. In one, a Latino voter in Tucson wasn’t allowed to vote in a city election because he lacked the requisite identification, but he wasn’t given a provisional ballot, either, which the law requires. When he claimed he was denied the right to vote on account of his race, “the court summarily resolved a contested factual issue and concluded that the failure to issue a provisional ballot ‘was an isolated incident and in no way affected the standard, practice, or procedure of the election,’ ” says Payton.

In another case, a 51-year-old man claimed he was the victim of age discrimination after he was treated differently from younger employees with respect to promotions, training, job assignments and discipline. His claim, too, was summarily dismissed based on “the absence of factual allegations indicating a closer, causal link between the suspension decision and [his] age as opposed to an employer’s general disciplinary concerns.” That made the claim “conceivable” but not “plausible,” the court ruled. The court ignored the fact that the man had no way of obtaining evidence from the employer as to why he was being treated differently before filing his claim.

Such significant changes to the federal court’s procedural rules are usually made only after the judiciary or Congress conducts lengthy studies on what the effect of the change will be. “There was no study here,” said Payton.

Burbank similarly testified that the court “evaded the statutorily mandated process that gives Congress the opportunity to review, and if necessary to block, prospective procedural policy choices before they become effective,” he said. The process used and the outcome “undermine democratic values.”

But to Gregory Garre, a Solicitor General during the Bush administration who argued the Iqbal case before the Supreme Court, the cases are “in line with decades’ worth of precedent at both the Supreme Court and appellate level” and merely “clarify the gateway standards for pleading an adequate claim under the Federal Rules of Civil Procedure,” he testified.

Ranking Republican Committee member Jeff Sessions of Alabama agreed, citing a “general sustained concern” that the rules governing claims in federal court had become too lax. In his view, they allowed potential plaintiffs to say, when faced with a disappointing decision: “I don’t like it, I think maybe I was abused, pay me money. I want to sue you, take you to court, it will cost you $50,0000 or $100,000 and take two years in court, so you’ll pay me anyway. So I think it’s perfectly appropriate that if you can’t assert a plausible cause of action, it can’t go forward…we really oughta tighten up this thing a little bit.”

Democrats on the Committee, however, warned that the new standard invites judges to base their decisions about what’s “plausible” on their own personal views and prejudices.

“In my experience, misconduct is inherently implausible,” said Senator Sheldon Whitehouse (D-R.I.). “It is implausible that the woman that Mr. Payton referred to who brought in her resume and was African-American, that somebody would be so callous to throw that into the wastebasket without further analysis because she was black. It’s implausible that a CEO with a bizarre fetish goes after a female staffer in a way that is inappropriate and a violation of her rights.…it is always implausible when there are these sorts of bizarre or wrongful elements of conduct.”

Such claims may seem even more implausible to the many conservative judges now populating the federal judiciary, he added. “When you say, okay, bring that world view in to this discussion, you’re stacking it against the plaintiff,” Whitehouse said. “Because thank God those general allegations tend to be implausible, because most people are good and don’t engage in that kind of behavior.”

The purpose of the courts, however, is to provide a remedy when they do.

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