In Re: Jeh Johnson.
411 U.S. App. D.C. 366
| D.C. Cir. | 2014Background
- Eight African-American Secret Service agents were denied GS-14/GS-15 promotions and certified to sue the Secretary of Homeland Security on behalf of ~120 similarly situated agents.
- Government sought to review/classify the class under Rule 23(a)/(b)(3) and petitioned Rule 23(f) interlocutory review.
- Secret Service uses a Merit Promotion Plan with three scoring stages (First Level, Second Level, Peer Panel) and a final decision by the Director.
- Plaintiffs allege pattern-or-practice discrimination and disparate impact under Title VII and §1981a; seek back pay, damages, declaratory judgment, and injunction.
- District court certified the class (approx. 120 individuals) under Rule 23(b)(3); Government challenged via Rule 23(f) arguing lack of commonality, adequacy, predominance, or superiority.
- Future guidance on class management was noted; the court denied interlocutory review and affirmed certification at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the class certification under Rule 23(b)(3) was proper. | Moore argues commonality/predominance support certification. | Government claims lack of commonality and predominance. | Not manifestly erroneous; certification affirmed. |
| Whether the named plaintiffs adequately represent the class. | Named plaintiffs sufficiently represent all members given lack of conflicts. | Potential conflicts due to scorers/upper management involvement. | Adequacy of representation satisfied. |
| Whether commonality is satisfied given Wal-Mart and DL precedents. | Common policy of discrimination through MPP provides common glue. | Wal-Mart/DL foreclose commonality due to stage-specific discrimination. | Commonality upheld; MPP provides common questions. |
| Whether Rule 23(f) interlocutory review is warranted. | Rule 23(f) review denied. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (commonality requires a common glue for class-wide relief)
- In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98 (D.C. Cir. 2002) (set standards for Rule 23(f) review)
- In re Veneman, 309 F.3d 789 (D.C. Cir. 2002) (discusses interlocutory review standards)
- DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013) (no universal commonality when actions span various stages)
- Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (U.S. 1977) (approval of pattern-or-practice discrimination framework)
- Franks v. Bowman Transp. Co., 424 U.S. 747 (U.S. 1976) (discrimination framework preceding Teamsters)
- Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013) (special circumstances for expedited review)