In re Jeh Charles JOHNSON, Secretary of the U.S. Department of Homeland Security, Petitioner.
No. 13-8002.
United States Court of Appeals, District of Columbia Circuit.
Argued April 21, 2014. Decided Aug. 1, 2014.
760 F.3d 66
subsection (d)(1)(A)‘s use of the term “preserve[],” meaning “to keep (something) in its original state,” Merriam-Webster‘s Collegiate Dictionary (online ed.2014), manifests Congress‘s intent to retain the state-law claims falling within the Delaware carve-out in their pre-SLUSA state—not to inject those claims into federal court for the first time.
The Supreme Court‘s decision in Kircher confirms our reading of the statute. Kircher involved state-court actions removed to federal district court pursuant to subsection (c) of SLUSA. The Supreme Court considered whether the district court‘s orders remanding the cases to state court were appealable. 547 U.S. at 636, 126 S.Ct. 2145. The Court held that
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For the foregoing reasons, we agree with the district court that SLUSA does not confer federal subject matter jurisdiction in this case. We have also considered Campbell‘s remaining arguments in favor of federal jurisdiction and find them to be without merit for the reasons explained by the district court. We therefore affirm the district court‘s dismissal of the complaint for lack of subject matter jurisdiction.
So ordered.
Catherine E. Stetson argued the cause for respondents. With her on the brief were E. Desmond Hogan, Erica Knievel
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and GINSBURG, Senior Circuit Judge.
GINSBURG, Senior Circuit Judge:
Eight African-American Secret Service agents who were denied promotions to the GS-14 or GS-15 level, allegedly because of their race, were certified by the district court to sue the Secretary of the Department of Homeland Security on behalf of a class comprising all similarly situated agents, of whom there are approximately 120. The Government argues the plaintiffs are not eligible to proceed as a class under
I. Background *
The Secret Service employs about 3,000 Special Agents in seven major offices, each headquartered in Washington, D.C. Each office is run by an Assistant Director who reports to the Deputy Director and the Director of the Secret Service.
The Secret Service used a multistage process known as the Merit Promotion Plan (MPP) to select Special Agents for promotion to the GS-14 and GS-15 positions at issue in this case. In the first stage of the process, a Special Agent received numerical scores from (1) his or her immediate supervisor (First Level Evaluation), (2) a panel comprising a representative from each Assistant Director‘s office (Second Level Evaluation), and (3) for promotion to a GS-14 position, a panel comprising six peers and two alternates who are selected and convened annually by the Deputy Director (Peer Panel Evaluation). The MPP prescribed the criteria each of the three groups had to use to assign scores and the training that scorers received, provided common evaluation forms to scorers and applicants, and assigned weights to each of the component scores in order to come up with a final MPP score for each candidate. A Special Agent seeking a promotion used his or her final MPP score to “bid” for one or more available positions. Bidders for each position were ranked by their scores and the top 30 or the top 25%, whichever was greater, were placed on a “best qualified list” (BQL). Then the Advisory Board, comprising the Deputy Director, the seven Assistant Directors, and the Chief Counsel, reviewed the BQL for each position and made a
The named plaintiffs in this suit are current and former African-American Special Agents who bid for but did not receive GS-14 or GS-15 promotions under the MPP in the period from 1995 to 2005. They allege both that the Secret Service engaged in a pattern or practice of racial discrimination in making promotions and that the MPP had a disparate impact upon African-American Special Agents seeking promotions, in violation of
BQLs were used to narrow the pool of applicants for approximately half the vacancies that arose during the class period; for the other half, there were few enough applicants that all were placed on the relevant BQL. The plaintiffs have proffered statistical evidence that the use of scores pursuant to the MPP disproportionately disqualified African-American Special Agents from reaching the BQLs throughout the class period. Additionally, their statistical evidence shows that when African-American Special Agents were included in the BQLs, they had lower mean ranks than would be expected in the absence of discrimination and more frequently failed to score as high as did the lowest-scoring agent who was promoted that year.
The plaintiffs have also proffered statistical evidence that even when African-American Special Agents made it onto the BQLs, for certain years in the class period (1998 to 2000 for GS-14 promotions and 2002 to 2005 for GS-15 promotions), fewer of them were selected for promotion than would be expected in the absence of discrimination. Additionally, the plaintiffs have pointed to a “substantial continuity” throughout the class period among the personnel serving on the rating panels, on the Advisory Board, and as the Director, suggesting class members experienced in common whatever racial bias may have affected the subjective elements of the promotions process.
The named plaintiffs seek to represent the class of all similarly situated African-American Special Agents. The order here challenged by the Government was issued after the plaintiffs’ fourth attempt to define the class so as to meet the requirements of
The class, as certified by the district court, comprises the following individuals, numbering approximately 120:
II. Analysis
This court has identified three reasons for which interlocutory review of a class certification order is appropriate under
The Government here invokes both the second and third reasons and additionally argues this case presents “special circumstances” of the sort present In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C.Cir.2013), where a “confluence of multiple rationales,” including a subsequent decision of the Supreme Court, justified immediate review of the class certification order. Id. at 250. None of these three justifications obtains in the present case.
A. Unsettled and Fundamental Issue Likely to Evade End-of-the-Case Review
The Government fails to demonstrate this case presents any unsettled and fundamental issue of law relating to class actions that is likely to evade end-of-the-case review. To be sure, the Government points out areas of ambiguity in the law of class actions that are relevant to its case, but it fails to provide any reason we should resolve those issues now: The Government‘s briefs simply ignore the requirement that the issues be “likely to evade end-of-the-case review.” Lorazepam, 289 F.3d at 105. When pressed at oral argument the Government suggested settlement pressure would prevent end-of-the-case
B. Manifest Error
The Government next contends the class certification decision is manifestly erroneous. This is a difficult standard to meet; we have never before granted
Despite its need to clear this high bar, the Government has made almost no effort to explain which of the district court‘s alleged errors it thinks manifest. Out of an abundance of caution, therefore, we consider whether any of its challenges to the class certification requirements—commonality, adequacy of representation, predominance, and superiority—is based upon an error that can be deemed manifest. We conclude that none of these rulings on the requirements for certification is manifestly erroneous because the court applied the correct standards and the cases relied upon by the Government do not squarely foreclose the class certification here. We therefore decline to exercise our discretion under
1. Commonality
The district court found the commonality requirement was satisfied because every class member‘s claim of employment discrimination could be moved toward resolution by answering the common contention, supported by some evidence, that there was a policy or practice of racial discrimination infecting the promotion process at the Secret Service in the period 1995-2005. Moore, 926 F.Supp.2d at 28-30. The Government argues this conclusion is at odds with the Supreme Court‘s decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 2550-57, 180 L.Ed.2d 374 (2011), in which a putative class alleging employment discrimination failed the commonality requirement. The Court there stated that “[w]ithout some glue holding the alleged reasons for all [the promotion] decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552. According to the Government, there is no such glue in this case because class members allege discrimination at different stages in the MPP process, where they faced different decision makers. Id. at 2551 (class “claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor“). The Government also relies upon this court‘s decision in DL v. District of Columbia, 713 F.3d 120 (2013), in which,
In Wal-Mart, the only feature common to all promotion decisions was the policy of delegating those discretionary decisions to individual store managers. See id. at 2554. In essence, all they had in common was that each one (or, more precisely, each manager‘s decision) was different. In contrast, under the MPP here at issue, every class member was evaluated upon the same criteria and scored using the same numerical system. Furthermore, every promotion decision was ultimately made by the Director of the Secret Service. Although different decision makers no doubt injected some subjectivity into the evaluations of different class members, which might be enough to cast doubt upon the commonality of their claims were we engaged in a more searching inquiry, the policy here was far from the complete delegation involved in Wal-Mart; hence, if the district court erred in coming to a different conclusion, then the error is certainly not manifest and so need not be reviewed at this stage in the litigation.
In DL, all the class members alleged they had been deprived of a “free appropriate public education” as a result of various failings at different stages in the District of Columbia‘s process to “identify, locate, evaluate, and offer special education and related services to disabled preschool-age children.” See 713 F.3d at 122. Because the class members were suing for injunctive relief to obtain improvements at various different stages in the delivery of disability services, the court held there was no question capable of common resolution for all class members. See id. at 125, 127-28. Here, all class members are seeking damages to compensate them for the allegedly discriminatory decisions not to promote them. The Government seeks to differentiate class members by the stage of the promotion process in which they may have encountered discrimination; for instance, it suggests class members who applied for promotions in years for which there was no statistically significant disparity in the BQL-to-promotion rate are in actuality complaining only about discrimination from the scoring and ranking process, not about discrimination in management‘s subjective decision-making process. These distinctions, however, are not indicated by DL because all the class members here are seeking the same relief and, in so doing, must all show that promotion decisions made pursuant to the MPP were affected by discrimination generally. Because there is a good deal of commonality in the way all those promotion decisions were made, the district court did not manifestly err in finding the class claims could be moved together toward resolution.
2. Adequacy of representation
The Government next contends the district court erred in holding the named plaintiffs could adequately represent the entire class because some class members had served as scorers in the evaluation
3. Predominance of the common issues
The district court held common issues predominated over individual issues in this suit because there are no individual issues involved in determining whether the MPP was discriminatory and because the court, when and if it ever reaches individualized questions, will send those questions to separate hearings outside the class proceedings. Moore, 926 F.Supp.2d at 33-34 & n. 7. In the end, that is, only common issues will be handled on a classwide basis, so common issues necessarily predominate. Insofar as the Government argues those issues cannot be resolved on a classwide basis and so should weigh against predominance, that is nothing more than a restatement of the Government‘s commonality argument. Therefore, the district court could have erred only if it was incorrect in thinking it lawfully could bifurcate the suit and certify the class for the purpose of answering only the common questions concerning discrimination vel non.
Because we see no facial defect in the district court‘s reasoning and there is no binding precedent on point, we conclude the district court did not make a manifest error in certifying the class solely to resolve the questions concerning discrimination. The Supreme Court has instructed that in pattern-or-practice class actions, the plaintiffs can first “demonstrate that
We recognize there is a controversy over the proper use of issue classes, especially when the result is to isolate a particular issue that would otherwise derogate from the predominance of common issues in a
Because the appropriate use of an issue class was not raised or briefed in the present case, we shall not review at this time the district court‘s determination of how best to manage the issues before it. Cf. Veneman, 309 F.3d at 796 (declining to exercise
4. Superiority of the class device
In the district court, the Government suggested no way of handling class
Because the district court did identify factors that could make the class device superior, and because it dealt with the Government‘s arguments to the contrary in its analyses of the commonality and predominance requirements, the court‘s relatively brief discussion of superiority was sufficient unto the task. The court explained that the interests of efficiency and uniformity supported resolving the question of discrimination in one stroke rather than requiring the same question to be answered separately for each individual. Moore, 926 F.Supp.2d at 34. On the other hand, it acknowledged the Government‘s argument that class members might have enough at stake in this litigation to make individual trials viable. Id. It was not manifestly erroneous for the district court to hold that argument was outweighed by the court‘s and the plaintiffs’ legitimate interests in efficiency and uniformity. Furthermore, given the district court‘s identification of common questions susceptible to classwide proof and its stated intention, if the plaintiffs prevailed on those questions, to hold Teamsters hearings for each class member, we cannot credit the Government‘s argument that the district court failed adequately to analyze how the class device would operate to conserve judicial resources.
C. Special Circumstances
Perhaps sensing it is not on solid ground with any of the reasons for interlocutory review we identified in Lorazepam, the Government contends this case presents “special circumstances” similar to those that justified our granting review under
III. Conclusion
Although we recognize there are unsettled questions of law relating to class actions at issue in this case, now is not the appropriate time to resolve them. None of the district court‘s rulings in support of its order certifying the plaintiff class is foreclosed by controlling precedent and the unsettled questions are not likely to evade end-of-the-case review. As we have observed before, “[t]he sheer number of class actions, the district court‘s authority to modify its class certification decision, and the ease with which litigants can characterize legal issues as novel, all militate in favor of narrowing the scope of
Denied.
(citations omitted). Accordingly, the Government‘s petition is
Denied.
Notes
[A]ll current and former African-American Agents who were employed as Criminal Investigators (GS/GM-1811) and who had the required time-in-grade to seek promotion to competitive positions at the GS-14 level at any time during the years 1995 to 2004, and/or who had the required time-in-grade to seek promotion to competitive positions at the GS-15 level at any time during the years 1995 to 2005.
In their fourth certification motion, they proposed the following class definition, the last clause of which excluded upper management and which the court certified:
[A]ll current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995 to 2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995 to 2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, a Deputy Director, or the Director of the Secret Service during the class period. Moore, 926 F.Supp.2d at 15, 35.