As it turns out, oral argument in Fort Bend County v. Davis was not the most headline-grabbing Title-VII-related news emanating from the Supreme Court yesterday. Disagreement among the justices seemed relatively muted as they wrestled with whether the requirement that employment discrimination plaintiffs present their claims to the Equal Employment Opportunity Commission before filing lawsuits is a jurisdictional prerequisite or merely a claim-processing rule.
The question matters because claim-processing rules can be waived, unlike jurisdictional rules. Here, Fort Bend County waited five years to argue that Lois Davis did not properly pursue her religious-discrimination claim with the EEOC; during that time, Davis’ case traveled from the district court to the U.S. Court of Appeals for the 5th Circuit and back again. If Title VII’s administrative-exhaustion requirement is a claim-processing rule, then Fort Bend’s failure-to-exhaust argument came much too late. But if instead the exhaustion requirement is jurisdictional, then it is never too late for a defendant to raise a plaintiff’s failure to comply; in addition, courts would be required to raise potential administrative-exhaustion problems themselves, rather than leaving those issues solely to the parties.
Congress is free to impose either jurisdictional requirements or mandatory claim-processing rules, and much of the argument was devoted to how to discern whether Congress intended the former or the latter. Representing respondent Lois Davis, Raffi Melkonian argued that the court should apply the clear-statement rule from Arbaugh v. Y&H Corp., another Title VII case, as “the best way to discern congressional intent.” In Arbaugh, the court held in an 8-0 opinion that Title VII’s employee-numerosity requirement was not jurisdictional, and wrote that Congress could override that conclusion by “clearly stat[ing]” to the contrary. Chief Justice John Roberts pushed back, asking if it was reasonable to apply a clear-statement rule announced in 2006 to a statute enacted earlier. Melkonian answered that the clear-statement rule was still the best way to discern Congress’s intention, given the severe consequences that accompany jurisdictional rules – in other words, Congress would have been unlikely to impose a jurisdictional requirement by implication. Justice Neil Gorsuch later returned to the issue during Jonathan Bond’s argument for the solicitor general in support of Davis, inviting Bond to agree that “our decisions are normally retroactive.”
Whether the court agrees that Arbaugh’s clear-statement approach applies to this case will likely affect its receptivity to Colleen Roh Sinzdak’s argument on behalf of Fort Bend County that the text and structure of Title VII indicate that the exhaustion requirement is jurisdictional. The same subsection of Title VII contains the exhaustion requirement and, two paragraphs later, a grant of jurisdiction for federal courts to hear “actions brought under this subchapter.” Sinzdak argued that taken together, these paragraphs provided “text linking explicitly to the jurisdictional provision,” as “part of an intricate scheme for statutory and judicial review.” Additionally, Sinzdak noted that when a government entity is the defendant, a jurisdictional requirement forcing parties to attempt to resolve a claim at the agency level effectively narrows Title VII’s waiver of sovereign immunity.
Justice Ruth Bader Ginsburg asked the first 14 questions during Sinzdak’s argument, expressing skepticism about Sinzdak’s position. Ginsburg’s questioning centered on the EEOC’s limited power to resolve claims, and suggested that it would be unusual to deem jurisdictional an agency process that can result only in conciliation, and not adjudication. Later, Bond amplified this argument, distinguishing from Title VII statutory schemes like the National Labor Relations Act, which allow agencies to resolve claims in decisions that are then reviewable by the federal appellate courts.
Much of the rest of the argument centered on the potential consequences of treating Title VII’s exhaustion requirement as a claim-processing rule. Justice Brett Kavanaugh suggested that “so long as defendants raise the argument,” such a rule would have little effect on employers, while also saving judges from the obligation “to look through the record to make sure each claim was specifically exhausted.” In response, Sinzdak posited that some employers might not have an incentive to raise a plaintiff’s failure to exhaust, to the detriment of the EEOC’s process. Here, Sinzdak was referring to cases in which plaintiffs could cure their failure to exhaust by returning to the EEOC, ultimately lengthening the time it would take to resolve their claims. Later, Melkonian argued that few cases would fall into this category, given the relatively short time – 180 or 300 days – that employees have to file an EEOC charge.
That exchange prompted a question from Justice Samuel Alito about whether stronger incentives for plaintiffs to file thorough EEOC charges would result in more cases being resolved at the agency level, and thus fewer cases reaching the courts. Although it wasn’t clear after argument how many claims are now successfully resolved at the EEOC level, Melkonian also argued that – given that most courts now treat Title VII’s exhaustion requirement as a claim-processing rule – “we have been running a natural experiment across this country on whether our rule works or not.” Roberts observed that it would be difficult to collect hard data about the outcome of this experiment, though Melkonian suggested that the EEOC (which supports his position) was in a position to “observe what’s happening in the district courts.” Later, Sinzdak pointed to “at least 50” decisions “in the last two months on Westlaw” in which courts dismissed unexhausted Title VII claims, arguing that “in our natural experiment, plaintiffs are not bringing their … claims to the EEOC.”
Because the justices spent little time pressing Melkonian or Bond on Title VII’s text, I predict a win for Davis and the federal government. Further, Ginsburg strikes me as the most likely author of an opinion in Davis’ favor, based on her apparent interest in the case and given that she also wrote Arbaugh. Finally, Roberts and Alito seemed the most supportive of Fort Bend’s position; if there is an opinion – either a majority or a dissent – in favor of the county, then I would expect one of them to write it.
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Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:
- Iancu v. Brunetti
- Emulex Corp. v. Varjabedian
- Parker Drilling Management Services, Ltd. v. Newton
- North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust
- United States v. Davis
- McDonough v. Smith
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McDonough v. Smith, argued Wednesday, saw justices and attorneys repeating metaphors about heads spinning and constitutional rights swimming. The justices seemed inclined to rule for the petitioner (supported by the United States) that his claim was timely and that the limitations period on a civil action should not begin until favorable termination of criminal proceedings. But the likely scope of the ruling remains uncertain.
Respondent Youel Smith prosecuted petitioner Edward McDonough, a former election official, for fraud arising from a primary election; the prosecution was initiated and continued on allegedly fabricated evidence, fabricated affidavits, false testimony and faulty DNA analysis. McDonough was indicted and tried twice, the first trial ending in a mistrial and the second ending in an acquittal. Less than three years after the acquittal, McDonough filed an action in federal district court under 42 U.S.C. § 1983, alleging malicious prosecution and fabrication of evidence before the grand jury and at the two trials, in violation of the Fourth, Fifth, Sixth and 14th Amendments. The lower courts dismissed the fabrication-of-evidence claim as untimely, because the three-year statute of limitations began to run when McDonough became aware of the use of fabricated evidence, which occurred well before his acquittal and thus more than three years before he filed the federal civil action. The issue before the Supreme Court is whether the limitations period instead began to run only when the state criminal proceedings terminated in McDonough’s favor with his acquittal, making his Section 1983 action timely.
Arguments of petitioner McDonough
Neal Katyal represented McDonough, launching the parade of metaphors. Justice Samuel Alito complained that the case had his head spinning because he could not understand how to discuss rules for when a claim accrues without identifying the constitutional right at issue or the elements of that right. Katyal responded that it was unnecessary to identify the source, because either the Fourth Amendment or 14th Amendment “swim to exactly the same result,” prompting Justice Neil Gorsuch to quip that “they don’t swim at all.” (The justices would refer to swimming several more times during the argument.) But Katyal stuck to his position that it did not matter whether this was a Fourth Amendment case, requiring the plaintiff to show lack of probable cause, or a 14th Amendment procedural due process claim, requiring the plaintiff to show a “reasonable probability” that the prosecutor would not have proceeded but for the fabricated evidence. Although these rights might diverge in a hypothetical case, the outcome in this case would be the same.
Justices Ruth Bader Ginsburg and Elena Kagan questioned whether Smith would enjoy absolute prosecutorial immunity for this claim, as he enjoyed absolute immunity from the malicious prosecution claim. Katyal argued that the fabrication claim was different than malicious prosecution, because it focused on the “use and maintenance of the criminal prosecution” and did not require malice as an element, only fabrication of evidence, even reckless fabrication, and a deprivation of liberty.
Gorsuch questioned how the court could adopt a favorable-termination requirement for limitations purposes without deciding whether favorable termination is part of the claim; he wondered whether the court should look for a case allowing it to identify the elements of the fabrication claim, rather than a case in which happenstance caused the plaintiff to “create this rather bespoke tort” to obtain a longer limitations period. Katyal argued that favorable termination is significant as a way to allow criminal defendants to defend themselves without having to pursue simultaneous civil litigation. It serves policy goals of avoiding duplicative and collateral litigation, allowing plaintiffs to pursue their criminal defenses to the end before seeking compensation and deterrence through Section 1983. Katyal added, in response to a question from Ginsburg, that having the federal court stay the civil action is not sufficient because stays are discretionary and many federal courts decline to issue them.
Katyal returned to these policy concerns in his rebuttal, emphasizing the need for the criminal case to conclude and for the plaintiff to wait until favorable termination of that case before seeking civil damages. Katyal added that “it’s quite remarkable to actually have the federal government agreeing with this former criminal defendant” on the need to hold the limitations period pending favorable termination of the prosecution.
Arguments of amicus curiae United States
Principal Deputy Solicitor General Jeffrey Wall argued for the United States as amicus curiae urging reversal. Wall said the “parties’ presentations may make this case seem more difficult than it is,” arguing that favorable termination is an element of a Section 1983 claim for fabrication of evidence. In an exchange with Alito, Gorsuch and Justice Brett Kavanaugh, Wall identified the claim as grounded in procedural due process, akin to claims that prosecutors failed to disclose exculpatory evidence, in which the use of fabricated evidence or perjured testimony is the same as failing to disclose evidence. Wall then clarified that favorable termination is an element of the Section 1983 damages claim, although not of the constitutional claim. The United States could prosecute a line attorney who fabricated evidence and used it at trial; an individual can sue for damages, which collaterally attacks the state criminal process, only if that process terminated in the individual’s favor.
Kagan asked whether the claim could be one for substantive due process, in that simple fabrication of evidence is so awful as to shock the conscience and violate the Constitution. Wall rejected that position, emphasizing the Supreme Court’s reluctance to expand substantive due process and precedent holding that presentation of false evidence is a procedural due process concern. The key, Wall argued, was the deprivation of the defendant’s liberty — the restrictions on travel while on bail and perhaps the obligation to appear for trial.
Arguments of respondent Smith
Thomas O’Connor argued for Smith, insisting that “my head has been spinning from this case for a lot longer than yours.” O’Connor pushed the point that McDonough’s claimed constitutional right to be free from fabricated evidence did not exist, but if it did, it sounded in substantive due process. Ginsburg challenged that point, because a fair trial is the “most fundamental procedural right” and the dramatic allegations of perjury throughout made this a “corrupt process.” O’Connor declined to dispute that, prompting Justice Sonia Sotomayor to suggest that each use of fabricated evidence until acquittal constitutes “either a continuing violation or a finishing of the accrual time.” O’Connor responded that each isolated, distinctive use would be a distinct violation, with the claim accruing when the use occurred. Kagan summarized O’Connor’s argument, a summary with which he agreed — a favorable termination element makes sense when a claim has as a component the deprivation of liberty, but not when the claim, like this one, arises from the fabrication itself and does not require that deprivation.
Chief Justice John Roberts, Justice Stephen Breyer, Sotomayor and Kavanaugh engaged O’Connor on policy reasons for a favorable-termination requirement, regardless of the source of the constitutional right or how the action is characterized. All expressed concern for the confusion created by simultaneous civil and criminal proceedings; for interfering with the orderly division between criminal proceedings and civil tort suits; for complicating strategy for the defendant and perhaps prejudicing him in his criminal proceeding; and for rendering prosecutors (the targets of any civil action) less inclined to enter a plea agreement. Why not, Kavanaugh asked, “choose the more orderly, practical approach” of allowing the criminal proceedings to conclude rather than encouraging plaintiffs to routinely file Section 1983 actions during the criminal case? O’Connor urged the court not to “sacrifice the correct to the convenient,” suggesting a stay of civil proceedings as the remedy. But Roberts doubted that a stay eliminated the complications and burdens on the criminal defendant. And Kavanaugh suggested that routine stays reflect that these cases should not proceed simultaneously, but that the criminal defendant should be able to await conclusion of the criminal case before the clock begins to run on his civil action.
Editor’s Note: Analysis based on transcript of oral argument.
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