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2007 Section 4: Individual Rights Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IV. INDIVIDUAL RIGHTS

In This Section:

New Case: 06-984 Medellin v. Texas

Synopsis and Questions Presented p. 109

"Supreme Court to Hear Appeal of Mexican Death Row Inmate" p. 125 Linda Greenhouse

"New Claim of Presidential Power" p. 127 Lyle Denniston

"CCA Plurality Says Bush Exceeded His Authority" p. 130 Mary Alice Robbins

"Texas Appeals Court Takes Bush to Task for Stepping in for Foreign-Born Death Row Inmate" p. 133 Michael Graczyk

"Appeals of Mexicans on Death Row Rejected" p. 135 Hope Yen

"Justices Consider Rights of Foreigners" p. 136 Charles Lane

"Bush Orders Hearings for Mexicans on Death Row" p. 138 David G. Savage

"Mexicans on Death Row Win Review" p. 141 Charles Lane

"Death Term Upheld for 5th in Gang" p. 143 Associated Press

New Case: 06-694 United States v. Williams

Synopsis and Question Presented p. 144

"Justices Agree to Revisit Child Pornography Laws" p. 156 Linda Greenhouse

"Court First to Strike Pandering Provision of Child Porn Law" p. 158 Alyson M. Palmer "Struggle Continues to Write Laws that Protect Children Online" p. 161 Stephen V. Treglia

New Case: 06-1322 FederalExp. Corp. v. Holowecki

Synopsis and Question Presented p. 166

"FedEx Case Goes to Supreme Court-Justices Will Hear Discrimination Suit in October" p. 175 Associated Press

"2nd Circuit Rules Filing of EEOC Questionnaire Satisfied ADEA Exhaustion Requirement" p. 176 Lawyers Weekly USA Staff

New Case: 06-637 Board ofEducation ofNew York v. Tom F.

Synopsis and Questions Presented p. 177

"'Unilateral' Placements Face Review" p. 188 Education Week

"Private Schooling for the Disabled, and the Fight Over Who Pays" p. 191 Joseph Berger

"Court Rejects Limit on Payment of Tuition for Disabled Students" p. 193 Tom Perrotta

"Special-Ed Ruling Benefits City" p. 195 JuliaLevy

"Ex-MTV Big Takes on Schools" p. 197 Erin Einhorn

New Case: 06-856 LaRue v. DeWolff Boberg, & Associates

Synopsis and Questions Presented p. 199

"401(k) Case Could Boost Plan Fiduciaries' Liability" p. 205 Sally Roberts

"Invitation Brief in No. 06-856, LaRue v. DeWolff Boberg & Associates" p. 206 Amy Howe

"Dismissal of Granted ERISA Case Urged" p. 207 Lyle Denniston

107 New Case: 06-1221 Mendelsohn v. Sprint/UnitedManagement Company

Synopsis and Questions Presented p. 209

"Workplace Bias Evidence Draws Supreme Court Scrutiny" p. 218 Greg Stohr

"Job Bias and "Me, too" Evidence" p. 219 Lyle Denniston

108 Medellin v. Texas

(06-984)

Ruling Below: (Ex parte Medellin, No. AP-75,207 (Tex.Crim.App.), cert granted, 2006 WL 3302639, April 30, 2007).

Medellin, a Mexican national who spent most of his life in Texas, was convicted of the rape and murder of two teenage girls. He later appealed on grounds that he was not notified of his right to access the Mexican consulate for advice and legal counsel. In Mexico v. U.S. (the Avena judgment), the International Court of Justice (ICJ) held that 51 Mexican nationals, including petitioner, were entitled to receive review and reconsideration in the U.S. President Bush then ordered a review and hearings in each of the 51 cases, which the Texas Court of Criminal Appeals disregarded, holding that the decision of the ICJ was not binding federal law and so did not abide by its decision.

Questions Presented: (1) Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined on Feb. 28, 2005, that the states must comply with the United States' treaty obligation to give effect to the Avena judgment of the International Court of Justice in the cases of the 51 Mexican nationals named in that March 2004 judgment? (2) Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

Ex parte MEDELLIN

Court of Criminal Appeals of Texas

Decided November 15, 2006

[Excerpt: Some footnotes and citations omitted.]

KEASLER, Judge, delivered the opinion of Article 11.071 and (2) were previously the Court with respect to Parts I, II, III.A., unavailable factual and legal bases under III.C., and IV: Section 5(a)(1). We hold that Avena and the President's memorandum do not preempt Jose Ernesto Medellin filed this subsequent Section 5 and do not qualify as previously application, alleging that the International unavailable factual or legal bases. Court of Justice Avena decision and the President's memorandum directing state I. PROCEDURAL HISTORY OF courts to give effect to Avena, require this MEDELLIN'S CASE Court to reconsider his Article 36 Vienna Convention claim because they (1) constitute Medellin, a Mexican national, was convicted hindina federal law that preempt Section of capital murder and sentenced to death for

109 his participation in the gang rape and murder Court of Justice (ICJ) issued its decision in of two teenage girls in Houston. We affirmed Avena. Mexico v. U.S., 2004 I.C.J. No. 128. his conviction and sentence on direct appeal. In that case, Mexico claimed that the United Medellin v. State, No. AP-71.997. slip op. States had violated the Vienna Convention by (Tex.Crim.App. Mar. 19, 1997). failing to timely advise more than fifty Mexican nationals awaiting execution in Medellin filed an initial application for a writ United States prisons, including Medellin, of of habeas corpus, claiming for the first time, their right to talk to a consular official after among other things, that his rights under they had been detained. Id. at 13-16, 49. The Article 36 of the Vienna Convention had been ICJ ruled in favor of Mexico, holding that the violated because he had not been advised of Vienna Convention does confer individual his right to contact the Mexican consular rights and that the United States violated the official after he was arrested. Ex parte Convention. Id. at 90, 106. 140. To remedy Medellin, No. 675430-A (339th Dist. Ct. Jan. the violation, the ICJ ordered the United 22, 2001). The district court found that States to provide review and reconsideration Medellin failed to object to the violation of of the convictions and sentences at issue to his Vienna Convention rights at trial and, as a determine whether the violation "caused result, concluded that his claim was actual prejudice to the defendant in the procedurally barred from review. The court process of administration of criminal justice." also found, in the alternative, that Medellin. Id. at 121. The ICJ specifically stated that as a private individual, did not have standing review is required regardless of procedural to bring a claim under the Vienna Convention default rules that would otherwise bar review. because it is a treaty among nations and Id. at 112-13, 153(9), (11). therefore does not confer enforceable rights on individuals; only signatory nations have The federal district court denied Medellin's standing to raise a claim under the treaty. application for a certificate of appealability. Offering an additional alternative. the court and Medellin appealed to the United States determined that Medellin failed to show harm Court of Appeals for the Fifth Circuit, which because he received effective legal also denied his application. Medellin v. representation and his constitutional rights Dretke, 371 F.3d 270, 273. 281 (5th had been safeguarded. Finally, the court Cir.2004). The Fifth Circuit noted the ICJ concluded that Medellin did not prove that his decision in Avena, but determined that it was rights under the Fifth. Sixth, and Fourteenth bound by the Supreme Court's decision in Amendments had been violated and that he Breard v. Greene. which held that claims failed to show that any non-notification based on a violation of the Vienna affected the validity of his conviction and Convention are subject to procedural default sentence. We adopted the trial court's rules. Id. at 280 (citing Breard v. Greene. 523 findings of fact and conclusions of law with U.S. 371. 118 S.Ct. 1352. 140 L.Ed.2d 529 written order and denied relief. (1998)). Continuing. the court found that even if Medellin's Vienna Convention claim was Medellin then presented his Vienna not procedurally defaulted, its previous Convention claim in a federal petition for a holding in United States v. Jimenez-Nava- writ of habeas corpus. The district court that the Vienna Convention does not create denied relief, and Medellin filed for a individually enforceable rights-would certificate of appealability While his require it to deny Medellin's application for a application was pending. the International certificate of appealability. Id. (citing United

110 States v. Jimenez-Nava, 243 F.3d 192, 198 . . . because the factual or legal (5th Cir.2001)). basis for the claim was unavailable on the date the Medellin petitioned for certiorari to the applicant filed the previous Supreme Court of the United States, which application." granted review. Medellin v. Dretke, 543 U.S. 1032, 125 S.Ct. 686, 160 L.Ed.2d 518 (2004). Before oral argument, the President issued a memorandum directing state courts to give We ordered Medellin and the State to brief effect to the Avena decision under the the following issue: whether Medellin "meets principles of comity. Then, while his case was the requirements for consideration of a pending before the Supreme Court, Medellin subsequent application for writ of habeas filed an application for a writ of habeas corpus under the provisions of Article 11.071, corpus in this Court, requesting that we give section 5, of the Texas Code of Criminal full effect to the Avena decision and to the Procedure." Ex parte Medellin. We also President's memorandum. Ex parte Medellin, invited the Attorney General of the United 206 S.W.3d 584 (Tex.Crim.App. 2005), States to "present the views of the United Application No. AP-75,207. The Supreme States." Id.; see 28 C.F.R. § 0.5 (2005). On Court subsequently dismissed Medellin's case September 14, 2005, we heard oral argument as improvidently granted, stating that there is from the parties and the Solicitor General, a possibility that "Texas courts will provide who argued on behalf of the Attorney General Medellin with the review he seeks pursuant to of the United States. ... the Avena judgment and the President's memorandum. . . ." Medellin v. Dretke, 544 Medellin argues that the Avena decision and U.S. 660, 125 S.Ct. 2088, 2092, 161 L.Ed.2d the President's memorandum are binding 982 (2005) (per curiam). federal law that preempt Section 5 under the Supremacy Clause of the United States Based on the Supreme Court's dismissal, we Constitution. Alternatively, contending that determined that Medellin's subsequent he meets the requirements of Section 5(a)(1), application is ripe for consideration. We Medellin claims that the Avena decision and therefore filed and set this case for the President's memorandum are previously submission. unavailable factual and legal bases because neither was available when he filed his first Under Article 11.071, Section 5(a) of the application. Countering Medellin's Code of Criminal Procedure, we may not arguments, the State contends that the Avena consider the merits of any claims raised on a decision and the President's memorandum do subsequent application for a writ of habeas not meet the requirements of Section 5 and do corpus or grant relief unless the applicant not override it. Finally, the United States as provides sufficient specific facts amicus curiae asserts that, although Avena is demonstrating that: not enforceable in United States courts. Medellin is entitled to review and "the current claims and issues reconsideration of the merits of his Vienna have not been and could not have Convention claim "to the extent that his claim been presented previously in a relies on the President's determination that timely initial application or in a 'review and reconsideration' .. by Texas previously considered application courts is necessary for compliance with the

111 United States' international obligations." The "[T]reaties with foreign nations will be United States also avers that "Section 5 would carefully construed so as not to derogate from contravene the President's implementation of the authority and jurisdiction of the States of treaty obligations, and federal law would this nation unless clearly necessary to preempt its operation in the circumstances of effectuate the national policy." United States this case." v. Pink, 315 U.S. 203, 230, 62 S.Ct. 552 (1942). Accordingly, "state law must yield II. CONTEXTUAL BACKGROUND when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an A. Treaties international compact or agreement." Id. at 230-31, 62 S.Ct. 552.

The Supreme Court has recognized that a Treaties, entered into by the President of the treaty may contain certain provisions that United States with the consent of a super- grant judicially enforceable rights to a foreign majority of the United States Senate, are national residing in another country. Head incorporated into the domestic law of our Money Cases, 112 U.S. at 598, 5 S.Ct. 247. In country pursuant to the Supremacy Clause of such cases, under the Supremacy Clause, the the United States Constitution, which provisions of the treaty are placed in the commands: "all Treaties made, or which shall "same category as other laws of Congress" be made, under the Authority of the United and therefore, are "subject to such acts as States, shall be the supreme Law of the Land; Congress may pass for its enforcement, and the Judges in every State shall be bound modification, or repeal." Id. at 599, 5 S.Ct. thereby, any Thing in the Constitution or 247. When a treaty confers rights that are Laws of any State to the Contrary judicially enforceable, a court will look "to notwithstanding." Treaties are "placed on the the treaty for a rule of decision for the case same footing" as legislation enacted by the before it as it would to a statute." Id. United States Congress, and while neither is However, as we recently noted. there is a superior to the other, both are subject to the presumption that "'international agreements, United States Constitution. Reid v. Covert, even those directly benefiting private persons, 354 U.S. 1, 17, 77 S.Ct. 1222. 1 L.Ed.2d 1148 generally do not create private rights or (1957). . .. provide for a private cause of action in domestic courts."' Sorto v. State, 173 S.W.3d 469, 478 (Tex.Crim.App.2005)....

When a self-executing treaty and an act of B. The United Nations Charter and the Statute Congress concern the same subject matter, of the International Court of Justice courts should give effect to both unless the language of one would be violated. Whitney v. . . . Article 92 establishes the ICJ as "the Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 principal judicial organ of the United L.Ed. 386 (1888). But when "the two are Nations." The ICJ operates "in accordance inconsistent, the one last in date will control with the annexed Statute [of the ICJ]. . . the other." Id. Under Article 93, "All Members of the United Nations are ipso facto parties to the Statute of Addressing the relationship between state law the International Court of Justice." . . . Article and treaties, the Supreme Court has stated: 34 of the Statute provides that "[o]nly states

112 may be parties in cases before the [ICJ]" and, receiving State shall, without under Article 36(1), the court has jurisdiction delay, inform the consular over "cases which the parties refer to it and all post of the sending State if, matters specifically provided for . . . in within its consular district, a treaties and conventions in force." Under national of that State is Article 59, an ICJ decision binds only the arrested or committed to parties to that particular case.... prison or to custody pending trial or is detained in any C. The Vienna Convention on Consular other manner.... Relations and the Optional Protocol Concerning the Compulsory Settlement of Disputes In addition to becoming signatories to the ... The Vienna Convention is a seventy-nine Vienna Convention, Mexico and the United article multilateral treaty that "promotes the States became parties to the Optional Protocol effective delivery of consular services in Concerning the Compulsory Settlement of foreign countries, including access to consular Disputes. Article I of the Optional Protocol assistance when a citizen of one country is states: "Disputes arising out of the arrested, committed to prison or custody interpretation or application of the pending trial, or detained in any other manner Convention shall lie within the compulsory in another country" ... jurisdiction of the International Court of Justice and may accordingly be brought Article 36 "ensure[s] that no signatory nation before the Court by an application made by denies consular access and assistance to any party to the dispute being a Party to the another country's citizens traveling or present Protocol." Although the United States residing in a foreign country... " Sorto. 173 recently withdrew from the Optional Protocol, S.W.3d at 477. Article 36 reads as follows: the United States has agreed to "discharge its inter-national obligations under the decision 1. With a view to facilitating the . . . by having State courts give effect to the exercise of consular functions [Avena] decision. . . ." relating to nationals of the sending State: D. International Court of Justice Rulings on Article 36 of the Vienna Convention (a) consular officers shall be Involving the United States free to communicate with nationals of the sending State The ICJ has encountered a series of cases and to have access to them. filed against the United States by other Nationals of the sendinu State nations alleging violations of Article 36 of the shall have the same freedom Vienna Convention. with respect to communication with and ... Two suits were filed. FederalRepublic of access to consular officers of Germany v. United States of America the sending State; (LaGrand) and Mexico v. United States of America (Avena). . . . Although both the (b) if he so requests, the LaGrands were executed before the ICJ competent authorities of the issued its judgment, the ICJ still found.

113 among other things, that: (1) Article 36 of the sentences of the Mexican nationals whose Vienna Convention confers individual rights individual rights under the Vienna on detained foreign nationals; (2) the United Convention had been violated, the ICJ stated: States failed to comply with Article 36; and (3) as applied to the LaGrands, the procedural ... [W]hat is crucial in the review default rules of the United States prevented and reconsideration process is the the rights intended under Article 36 from existence of a procedure which being given full effect. LaGrand, 2001 I.C.J. guarantees that full weight is given 104, TT 1, 10, 14. The court further stated that to the violation of the rights set the United States, "by means of its own forth in the Vienna Convention, choosing, shall allow the review and whatever may be the actual reconsideration of the conviction and sentence outcome of such review and by taking account of the violation of the rights reconsideration. set forth in that Convention." E. The Presidential Memorandum Almost three years after LaGrand, the ICJ handed down its decision in Avena. With After the United States Supreme Court regard to Medellin and fifty other Mexican granted certiorari in this case, the President nationals, the ICJ concluded that the United weighed in on the controversy surrounding States breached its obligations under Article Avena by issuing a memorandum to the 36, paragraph 1(b) by failing to inform them, United States Attorney General, which states, after their arrests and without delay, of their in pertinent part, as follows: right to contact the Mexican consular post. Avena, 106(1), 153(4). And in forty-nine I have determined, pursuant to the cases, including Medellin's case, the court authority vested in me as President found that the United States violated Article by the Constitution and the laws of 36, paragraphs 1(a) through (c) by failing to: the United States of America, that (1) notify the consular post of their detention; the United States will discharge its (2) enable consular officials to communicate inter-national obligations under the with and have access to them; and (3) enable decision of the International Court consular officials to visit with them. The court of Justice in . . . [Avena], by having also found that in Medellin's case, in addition State courts give effect to the to thirty-three others, the United States decision in accordance with general violated Article 36, paragraph (c) by principles of comity in cases filed preventing consular officials from being able by the 51 Mexican nationals to timely arrange for their citizens' legal addressed in that decision. representation. III. ANALYSIS After addressing the United States' and Mexico's arguments concerning the A. Avena and The Supremacy Clause appropriate remedy for the Article 36 violations, the court concluded "that the Medellin claims that the ICJ decision in ,review and reconsideration' prescribed by it Avena is binding federal law that preempts in the LaGrand case should be effective." Section 5 of the Texas Code of Criminal Directing the United States to provide review Procedure. The State and the United States as and reconsideration of the convictions and amicus curiae disagree.

114 As an initial matter, while we recognize the necessary to maintain an effective control of competing arguments before us concerning international relations." Curtiss-Wright, 299 whether Article 36 confers privately U.S. at 318, 57 S.Ct. 216. When acting in enforceable rights, a resolution to that issue is external affairs, the President has "plenary not required for our determination of whether and exclusive power . .. as the sole organ of Avena is enforceable in this Court. Our the federal government in the field of decision is controlled by the Supreme Court's international relations." And while the recent opinion in Sanchez-Llamas v. Oregon, President's power "must be exercised in and accordingly, we hold that Avena is not subordination to the applicable provisions of binding federal law and therefore does not the Constitution," such power is not preempt Section 5. necessarily dependent on specific congressional authorization. Id. The President, for example, can enter into executive agreements with foreign nations In this case, we are bound by the Supreme without the advice and consent of the Senate. Court's determination that ICJ decisions are Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, not binding on United States courts. As a 415, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). result, Medellin, even as one of the named Valid agreements are accorded the same individuals in the decision, cannot show that status as treaties and, consequently, may Avena requires us to set aside Section 5 and preempt state law if they "'impair the review and reconsider his Vienna Convention effective exercise of the Nation's foreign claim. policy."' Executive orders issued by the President must be authorized by an act of B. The Presidential Memorandum and the Congress or by the Constitution. Supremacy Clause Justice Jackson, in his concurring opinion in Aligned on the effect of the Presidentfs Youngstown Sheet & Tube Company v. memorandum, both Medellin and the United Sawyer, sought to define the scope of the States as amicus curiae contend that the President's power. Recognizing that he was President's February 28, 2005, memorandum offering "a somewhat over-simplified preempts Section 5 and, as a result, requires grouping" because "[p]residential powers are us to review and reconsider Medellin's not fixed but fluctuate, depending upon their conviction and sentence as prescribed by disjunction or conjunction with those of Avena. In opposition, the State challenges, Congress," Justice Jackson related the among other things, the effect of the following: memorandum's substantive language. * The President's "authority is at its . . . [W]e conclude that Medellin has not maximum" "[w]hen the President acts shown that the President's memorandum pursuant to an express or implied entitles him to review and reconsideration, we authorization of Congress." In such will assume, without deciding, that the circumstances, the President's power memorandum constitutes an executive order. "includes all that he possesses in his own right plus all that Congress can delegate." . . . With regard to external affairs. the federal government possesses exclusive power; it is * The President's power is in "a zone of "vested with all the powers of government twilight" "[w]hen the President acts in

115 absence of either a congressional grant or agreements to settle claims with foreign denial of authority." nations....

The President's memorandum cites his Turning to the case before us, we conclude authority under the Constitution and laws of that the reliance on the President's power to the United States. With this in mind, we must enter into executive agreements to settle decide whether the President has exceeded his disputes with other nations, and even power by directing us to give effect to the corporations under the limited circumstances Avena decision under the principles of described in Garamendi, by Medellin and the comity. The President's directive, which is United States is misplaced. The President has dependent on his power to act in both foreign not entered into any such agreement with and domestic affairs, is unprecedented. What Mexico relating to the Mexican nationals Justice Jackson proclaimed in his concurrence named in the Avena decision. There has been in Youngstown Sheet & Tube Company fifty- no settlement. Rather, the presidential four years ago-that the judiciary "may be memorandum is a unilateral act executed in surprised at the poverty of really useful and an effort to achieve a settlement with Mexico. unambiguous authority applicable to concrete problems of executive power as they actually The President's independent foreign affairs present themselves" resonates with us today. power to enter into an executive agreement to settle a dispute with a foreign nation under We hold that the President has exceeded his Article II of the Constitution "has received constitutional authority by intruding into the congressional acquiescence throughout its independent powers of the judiciary. By history. . . ." Garamendi, 539 U.S. at 415, 123 stating "that the United States will discharge S.Ct. 2374. But there is no similar history of its inter-national obligations under the congressional acquiescence relating to the decision of the International Court of Justice President's authority to unilaterally settle a in . . . [ Avena ], by having State courts give dispute with another nation by executive effect to the decision . . . [J" the President's order, memorandum, or directive. See determination is effectively analogous to that Youngstown Sheet & Tube Co., 343 U.S. at decision. In Sanchez-Llamas, the Supreme 610-11, 72 S.Ct. 863. . . . In this context, it is Court made clear that its judicial "power evident that the President's independent includes the duty 'to say what the law is."' power to settle a dispute with a foreign nation, Sanchez-Llamas, 126 S.Ct. at 2684. And that recognized throughout the nation's history, power, according to the Court, includes the depends on the existence of an executive authority to determine the meaning of a treaty agreement. Given the extraordinary conduct as a "matter of federal law." The clear import of the President, unsupported by a history of of this is that the President cannot dictate to congressional acquiescence, we find that the the judiciary what law to apply or how to President's chosen method for resolving this interpret the applicable law. country's dispute with Mexico is "incompatible with the . . . implied will of Medellin and the United States argue that the Congress[.]" Accordingly, in this instance, we President's authority is at its maximum. In find that the exercise of the President's doing so, both rely on the President's inherent foreign affairs power "is at its lowest ebb[.]" foreign affairs power to enter into executive Having acted contrary to the implied will of

116 Congress, we conclude that the President has has exceeded his inherent foreign affairs exceeded his inherent constitutional foreign power by ordering us to comply with Avena. affairs authority by directing state courts to We must make clear, however, that our comply with Avena. decision is limited to the issue before us-the effect of the President's February 28, 2005, memorandum. Therefore, we express no opinion about whether an executive Contrary to the United States' contentions, agreement between the United States and requiring a formal bilateral agreement does Mexico providing for state court compliance not limit or constrain the President's ability to with Avena would preempt state law. settle international controversies or comply with treaty obligations. The President's ability Medellin also relies on the President's duty to to negotiate and enter into an executive faithfully execute the laws as provided in agreement to settle a dispute with a foreign Article II, Section 3 of the Constitution. nation remains. In this case, however, the According to Medellin, the President "has President failed to avail himself of that both the authority and the duty to enforce the mechanism to settle this nation's dispute with United States's treaty obligations within the Mexico. And although it may be time- domestic legal system" because, under the consuming to obtain an executive agreement, Supremacy Clause, treaties are supreme. the need for "swift action" does not override Related to this argument is Medellin's what the Constitution requires-an contention that the President has done nothing international compact or agreement. more than confirm that the United States will do what it has already promised to do-abide ... A Presidential resolution that is based on by the decision of the ICJ in a dispute an evaluation of the means necessary to concerning the interpretation and application resolve a dispute and then implemented in of the Vienna Convention. That promise was anticipation of future acquiescence by a made by [a] constitutionally prescribed foreign government is not a settlement. The process when the President, with the advice mere possibility of later acquiescence by a and consent of the Senate, entered into the foreign government is speculation. Vienna Convention, the Optional Protocol, Representatives of foreign governments the U.N. Charter. and the ICJ Statute. change. and with them, international relations are subject to modification. When it comes to The Supreme Court's determination about the foreign relations, history has proven that a domestic effect of ICJ decisions-that they nation deemed an ally on one day, may on the are entitled only to "'respectful next, be declared an enemy. Finally, the view consideration'" Sanchez-Llamas, 126 S.Ct. at that an executive agreement allows "a foreign 2685 (quoting Breard, 523 U.S. at 375, 118 government veto power over the President's S.Ct. 1352)., based on its interpretation of the exercise of his foreign affairs powers" Statute of the ICJ and the United Nations undermines the purpose of the negotiation Charter in Sanchez-Llamas forecloses any process-the accomplishment of an actual argument that the President is acting within settlement. his authority to faithfully execute the laws of the United States. By directing state courts to The absence of an executive agreement give effect to Avena, the President has acted between the United States and Mexico is as a lawmaker. But, as Justice Black central to our determination that the President explained in Youngstown Sheet & Tube, "[i1n

117 the framework of our Constitution, the power to act when the President's objective is President's power to see that the laws are to protect the interests of American citizens faithfully executed refutes the idea that he is traveling or residing abroad.... to be a lawmaker." The President's February 28, 2005, determination cannot be sustained under the power of the Executive to ensure that the laws are faithfully executed. . . . We cannot accept Medellin's argument that the Hostage Act grants the President Relying again on the enumerated powers of unfettered authority to act to protect the the President, Medellin also contends that interest of United States citizens abroad. It "[t]he Constitution explicitly vests the strains logic to conclude that the power President with authority over diplomatic and delegated to the President under the Hostage consular relations." He argues: "No power is Act permits the President to engage in any more clearly Presidential than the authority to conduct that will ensure the maintenance of protect U.S. citizens and their interests that power. Nevertheless, we need not decide abroad." He contends that the ability of the the scope of any implied power conferred to United States to protect its citizens may be the President under the Hostage Act, because, compromised if the United States does not as we have already concluded in this case, comply with Avena. Looking to statutory "there is [not] a history of congressional authority, Medellin maintains that by virtue of acquiescence in conduct of the sort engaged Title 22 United States Code, Sections 1732 in by the President." When concluding that and 402(a)(1)(D), "Congress has specifically the President had the authority to suspend referenced the President's duty in the context pending court claims in Dames & Moore, the of protecting U.S. citizens who have been Court relied on not only the President's power detained or arrested in foreign lands, . . . and under the Hostage Act, but on the President's in requiring the President to protect foreign power under the International Emergency nationals in the United States[.]" Economic Powers Act and the President's power to settle claims with foreign nations by executive agreement. In doing so, the Court specifically noted: "Crucial to our decision We have no doubt that the President and other today is the conclusion that Congress has executive branch officials play a vital role in implicitly approved the practice of claim protecting the interests of American citizens settlement by executive agreement." We abroad when necessary. However, we do not decline to find that the Hostage Act authorizes construe the constitutional provisions as the President to order this Court to comply expressly or implicitly granting the President with Avena. the authority to mandate state court compliance with the ICJ Avena decision, and Although Section 4802(a)(1)(D), Title 22, Medellin cites no precedent that would lead United States Code, provides that the us to conclude otherwise. Secretary of State has the duty to protect "foreign missions, international organizations, Nor can the statutes be read to authorize the and foreign officials and other foreign persons President's independent action in this case. in the United States," that duty extends only First, there is no indication that the Hostage to things "'authorized by law." The statute, Act specifically grants the President unlimited therefore. cannot be regarded as an

118 independent source of authority for the the participation of the United States in the President's memorandum ordering state United Nations does not authorize the courts to comply with Avena. President to order state courts to give effect to any decision rendered by the ICJ. In further support of its position that the President has the authority to direct state Based on the foregoing, we hold that the courts to give effect to the ICJ Avena President's memorandum ordering us to give decision, the United States directs us to the effect to the ICJ Avena decision cannot be United Nations Charter and the United sustained under the express or implied Nations Participation Act. The United States constitutional powers of the President relied maintains that the ratification of the Charter on by Medellin and the United States or under "implicitly grants the President 'the lead role' any power granted to the President by an act in determining how to respond to an ICJ of Congress cited by Medellin and the United decision." And under the United Nations States. Youngstown Sheet & Tube Co., 343 Participation Act, according to the United U.S. at 585, 72 S.Ct. 863. As such, the States, the President; through appointed President has violated the separation of officials, "represents the United States in the powers doctrine by intruding into the domain United Nations, including before the ICJ and of the judiciary, and therefore, Medellin in the Security Council." Moreover, the cannot show that the President's United States argues that Congress "expressly memorandum preempts Section 5. anticipated that these officials would . . . perform 'other functions in connection with C. Section 5(a)(1), Article 11.071 of the the participation of the United States in the Texas Code of Criminal Procedure United Nations' at the direction of the President or his representative to the United We now consider whether Medellin has Nations." satisfied the requirements of Article 11.071. Section 5(a)(1) of the Texas Code of Criminal Procedure so as to permit this Court to review and reconsider his Vienna Convention claim. Starting with the United Nations Charter, we hold it does not authorize the type of action that the President has taken here. The President is still bound by the Constitution Medellin contends that the Avena decision when deciding how the United States will and the Presidential memorandum serve as respond to an ICJ decision, and, as stated previously unavailable factual and legal bases above, the President exceeded his implied because both issued after his first application foreign affairs power by directing state courts was denied. The State maintains that the legal to give effect to Avena. basis for Medellin's claim, the Vienna Convention, was available before his trial and Additionally, the subsections of the United when he filed his first application. Medellin Nations Participation Act set forth above do claims, however, that he is not reasserting the not support the President's determination. same claim presented on his first application; Because the participation of the United States he contends that the Avena decision and the in proceedings before the ICJ does not bind President's memorandum provide him with the courts of this country to comply with a the right to prospective review and decision of the ICJ, it necessarily follows that reconsideration. We will address whether the

119 Avena decision or the Presidential to the plain meaning of "fact" does not lead to memorandum qualify as a new factual or legal an absurd result that the Legislature could not basis under Section 5(a)(1) separately. have intended. It is the application of the law to a fact or set of facts that yields the legal 1. Factual Basis effect, consequence, or interpretation. And in some cases, the legal effect, consequence, or Section 5(e) of Article 11.071 states: interpretation creates a new rule of law.

For purposes of Subsection (a)(1), a factual The actual event or circumstance involved in basis of a claim is unavailable on or before a Medellin's case is that law enforcement date described by Subsection (a)(1) if the authorities did not inform Medellin of his factual basis was not ascertainable through right to contact the Mexican consulate after the exercise of reasonable diligence on or his arrest as required by Article 36(1)(b). This before that date. fact provided the factual basis for Medellin's challenge to his conviction and sentence What constitutes a "factual basis" under under the Vienna Convention on his first Section 5(a)(1) is not defined. Therefore, to application for a writ of habeas corpus. We determine whether Avena or the President's disposed of this claim on an independent state memorandum qualify as a previously ground. Ex parte Medellin, No. WR-50,191- unavailable factual basis under Section 01 (Tex.Crim.App. Oct. 3, 2001). Agreeing 5(a)(1), we must perform a statutory- with the trial court, we found that the legal construction analysis to determine the effect or consequence of Medellin's Vienna meaning of "factual." Convention claim resulted in the application of our state procedural default rule due to Medellin's failure to object at trial.

Our review of multiple dictionaries reveals Medellin now argues that Avena is a that there are numerous definitions for the previously unavailable factual basis for word "fact." For instance, Webster's Third purposes of Section 5(a)(1). We disagree. For New International Dictionary alone contains purposes of Section 5(a)(1), the Avena six definitions. Although there are a variety of decision is properly categorized as law, even definitions for the word "fact," it must be though it is not binding on us. Sanchez- considered in the context in which it appears. Llamas, 126 S.Ct. at 2682. The ICJ's decision We find it instructive that the Legislature in Avena is not a fact and, therefore, does not expressly distinguished factual basis (fact) qualify as a previously unavailable factual from legal basis (law) in Section 5(a)(1). This basis under Section 5(a)(1). distinction accounts for the two necessary, but separate. parts of any subsequent claim: the As to the President's memorandum, Medellin factual basis and the legal basis. With this in asserts that "[a] judgment giving rise to new mind, we find that the following definition of claims issued after an applicant's habeas "fact" from Black's Law Dictionary application renders the factual basis of the accurately reflects the Legislature's intent: claim 'unavailable' under Section 5(a)." Thus, "[a]n actual or alleged event or circumstance, he urges, the President's memorandum is a as distinguished from its legal effect, new "factual basis" entitling him to review. consequence, or interpretation." Giving effect We also disagree with this argument.

120 Medellin broadly claims that "whether United States Supreme Court, a court of considered as a factual or legal basis . . . the appeals of the United States, or a court of President's Determination was [not] available appellate jurisdiction of this state. . at the time of his initial application for Indeed, as we noted earlier, the United States purposes of Section 5(a)" without further Supreme Court recently reaffirmed its holding explanation as to how the memorandum in Breard-that procedural default rules may constitutes a "factual" basis. Medellin's bar Vienna Convention claims. In Sanchez- arguments, however, address the Llamas, the Supreme Court concluded that memorandum exclusively as a legal, not Avena is entitled to only "'respectful factual, basis; he argues that the President's consideration,"' and as such, that decision is memorandum "constitutes a binding federal not binding on us. Likewise, because we have rule of decision." But even if Medellin had concluded that the President has exceeded his devised a complete argument that the authority by ordering state courts to give President's memorandum constitutes a effect to Avena, the President's determination "factual basis," we would still reach the same is not binding federal law. Because Avena and conclusion.... the President's memorandum are not binding law, neither of them can serve as a previously 2. Legal Basis unavailable legal basis for purposes of Section 5(a)(1). Because neither the Avena decision nor the President's memorandum constitute a "factual IV. CONCLUSION basis," we now consider whether either qualifies as a previously unavailable "legal Having found that the ICJ Avena decision and basis" under Section 5(a)(1). Section 5(d) of the Presidential memorandum do not Article 11.071 states: constitute binding federal law that preempt Section 5 under the Supremacy Clause of the a legal basis of a claim is United States Constitution and that neither unavailable on or before a date qualify as a previously unavailable factual or described by Subsection (a)(1) if legal basis under Section 5(a)(1). we the legal basis was not recognized DISMISS Medellin's subsequent application by or could not have been for a writ of habeas corpus under Article reasonably formulated from a final 11.071, Section 5. decision of the United States Supreme Court, a court of appeals KELLER, Judge, concurring: of the United States, or a court of appellate jurisdiction of this state On behalf of the United States as amicus on or before that date. curiae, the U.S. Attorney General's office has taken the position that President Bush's Although the Avena decision and the memorandum constitutes an order requiring Presidential memorandum were not available this Court to ignore rules of procedural when Medellin filed his first application, default (including rules governing neither constitutes a new legal basis under the contemporaneous objections at trial and plain language of Section 5(d). Boykin, 818 statutes governing subsequent habeas corpus S.W.2d at 785. First, neither has been applications) and evaluate anew whether recognized as providing a right to review and applicant was prejudiced by a failure to reconsideration in "a final decision of the comply with the Vienna Convention on

121 Consular Relations. I conclude that the designed to encourage parties to raise their President of the United States does not have claims promptly and to vindicate the law's the power to order a state court to conduct important interest in finality of judgments." such a review. When a habeas petitioner asked the United States Supreme Court in Sanchez-Llamas to exempt Vienna Convention claims from the rules of procedural default, the Court The Supreme Court has suggested that the responded that the relief requested was "by proper analysis for determining whether a any measure, extraordinary." The Court president's exercise of his foreign relations observed that the exception to procedural power preempts state law is to determine first default rules requested in that case (as in this whether the state has acted within an area of one) "is accorded to almost no other right, "traditional state responsibility." and if it has, including many of our most fundamental to assess the degree of conflict with federal constitutional protections." The President's policy and the strength of the state interest action here is unprecedented. involved. Garamendi, 539 U.S. at 420, 420 n. 11, 123 S.Ct. 2374. Unlike other federal preemption cases in which a state has prevailed, we address here an express, stark The President has made an admirable attempt conflict between the President's assertion of to resolve a complicated issue involving the power (at least under the Justice Department's United States' international obligations. But interpretation) and the state law at issue. this unprecedented, unnecessary, and Nevertheless, given the principle that a intrusive exercise of power over the Texas weighty state interest lessens the likelihood of court system cannot be supported by the federal preemption, it follows that a president foreign policy authority conferred on him by cannot use his foreign affairs authority to the United States Constitution. As a intrude into the state arena with impunity: at consequence,. the presidential memorandum some point, the national interest is served in does not constitute a new legal or factual too attenuated a manner by the specific basis for relief under Art. 11.071, § 5, nor presidential action, and the state interest does it override § 5's requirements. intruded upon is too fundamental, to permit a president's intervention. With these comments, I concur in the judgment with regard to the analysis of the Such a case is now before us. Criminal justice president's memorandum and otherwise join is an area primarily of state concern. The the Court's opinion. Supreme Court has repeatedly recognized that the "States possess primary authority for PRICE. Judge, concurring: defining and enforcing the criminal law." And states have, to say the least, an overwhelming I agree with the majority's analysis and interest in the procedures followed in their rationale, and, therefore, join the majority. own courts. . . . Moreover, the memorandum Nevertheless, I write separately to advise law ignores "the importance of the procedural enforcement of this State to honor the default rules in an adversary system." These provisions of Article 36 of the Vienna rules, which are neutral-applying to Convention and apprise foreign nationals of everyone, not just foreign nationals-"are their rights under the treaty.

I122- A key issue, however, is the question of around this applicant who makes no claim whether Article 36 of the Vienna Convention that he did not brutally rape and murder two even confers individual rights upon detained teenage girls (ages 14 and 16) with fellow foreign nationals. I believe it does. Pertinent gang members over 13 years ago in the language of the treaty states "if [the detained summer of 1993.... foreign national] so requests, the competent authorities of the receiving State shall, This case has dragged on for an amount of without delay, inform the consular post. . time equal to almost the entirety of the lives Since a foreign national may request that the of these two girls. For many years, in both consular official be notified, it is quite logical state and federal courts, applicant has to conclude that it is the foreign national's received the almost unparalleled due process personal decision to make whether the protections afforded by our country's laws. consulate is or is not notified. This decision is Now, from half-way around the world, the not left to public or diplomatic officials; International Court of Justice in its Avena rather, the detainee is to decide. Furthermore, decision has ordered our state courts to review the treaty explicitly directs a consular officer applicant's Article 36 Vienna Convention to desist in aiding a detained national if that is claim which applicant did not even raise until the national's desire. This language provides his first state habeas application. The additional support for the position that Article President of the United States has made a 36 creates individual rights for the signatory- similar request. nation's citizenry. It is apparent that the power of choice is left to the foreign national. . . . The Court's 60 plus page opinion Though the United States Supreme Court has disposing of applicant's current successive not directly ruled on this issue, a strong voice habeas corpus application provides applicant on that Court favors the position that with much more than he deserves and is also individual rights are conferred by the Vienna consistent with the President's unprecedented Convention. memorandum expressing the United States' intent to discharge its international obligations . . . Since I agree with the majority's under Avena "by having State courts give application of procedural default to Article effect to the [ Avena ] decision in accordance 36, I find it all the more imperative for a with general principles of comity." The foreign national in the custody of law Court's opinion in this proceeding affords the enforcement in this State to be informed of Avena decision all the "respectful his treaty rights. Unless he is informed of consideration" that it deserves "in accordance what his rights are under the Vienna with general principles of comity." Convention, those rights will be of no use to him. One must be aware of these rights before Finally, applicant is by no means a stranger in one can properly exercise them. Not only is it a strange land. He has lived in this country imperative as a practical matter, Article 36 and enjoyed its benefits since he was three- compels it. years old....

. . . Nevertheless, applicant maintains that the lack of intentional, reckless, or negligent HERVEY, Judge, concurring: wrongdoing by the State (other than, perhaps, the lack of clairvoyance), and despite his non- This international cause c6lbre centers assertion of any privilege or immunity, he is

123 entitled to an immunity heretofore not with the decision of the International Court of afforded to any citizen or nonresident under Justice in Avena, looks much more like a Texas or Federal law-immunity from memo than a law.... procedural default. He argues that he has this immunity simply because he happened to be ... It is written in a private memo style. I am born on foreign soil approximately 28 years unable to find a copy of this memo published ago and, for whatever reason, has elected not in the Federal Register. In fact, the only to apply for United States citizenship. public publication of this memo that I can find is on the White House Press Release With these comments, I join the Court's Internet website. I cannot accept the opinion. proposition that binding federal law, either through Congressional enactment or COCHRAN, Judge, joined by JOHNSON, Executive Order, can be accomplished and HOLCOMB, JJ, concurring: through a Presidential press release of a private memorandum directed to the Attorney I join all of the Court's opinion except for General. Thus, I cannot accept the premise Section IIIB dealing with the Presidential that the President's memo to his Attorney Memorandum. I am unable to conclude that a General is federal law that could supersede memorandum from the President to his and obviate a clear and explicit Texas statute. Attorney General constitutes the enactment of Thus, I find it unnecessary to undertake a federal law that is binding on all state courts. separation of powers analysis as does the This memorandum, discussing compliance majority.

124 "Supreme Court to Hear Appeal of Mexican Death Row Inmate"

The New York Times May 1, 2007 Linda Greenhouse

WASHINGTON-The Supreme Court on Court, the White House announced that it Monday agreed to hear an appeal from a would abide by the World Court's decision Mexican citizen on death row in Texas by instructing the states to reconsider the whose case has embroiled the World Court, convictions and sentences of the Mexican the Bush administration and the State of nationals on death row. The Supreme Court Texas in a conflict that has only deepened in then dismissed Mr. Medellin's case to the two years since the justices last enable the Texas courts to comply with that considered how to resolve it. directive.

The inmate, Jose E. Medellin, is one of 50 The Texas Court of Criminal Appeals Mexicans on death rows in various states refused to relax its procedural rules that who, the World Court found in 2004, had barred any reconsideration. One of the been charged and tried without the court's judges, in a concurring opinion, assistance from Mexican diplomats to which accused the White House of an an international treaty entitled them. "unprecedented, unnecessary and intrusive exercise of power over the Texas court The United States is a signatory to the system"-language that echoed the criticism treaty. the Vienna Convention on Consular that the administration had once directed at Relations, which requires local authorities to Mexico. inform foreign nationals being held on criminal charges of the right to consult with Now, however, the administration has their country's diplomats. The requirement entered the case on Mr. Medellin's behalf was, until recently, widely ignored. and urged the Supreme Court to overturn the Texas court's decision. The case, Medellin In the World Court, formally known as the )v. Texas, No. 06-984, will be argued next International Court of Justice, Mexico sued fall. The government's brief, filed by the United States on behalf of its citizens Solicitor General Paul D. Clement, told the who had been sentenced to death without justices that the Texas court's decision, if receiving the required "consular not reversed. "will place the United States in notification." The court ruled that the United breach of its international law obligation" to States was obliged to have the defendants' comply with the World Court's decision and cases reopened and reconsidered. would "frustrate the president's judgment that foreign policy interests are best served Initially, the Bush administration described by giving effect to that decision." Mexico's suit as "an unjustified, unwise and ultimately unacceptable intrusion in the Mr. Medellin was a gang member in United States criminal justice system. But Houston when he was convicted in 1993 of in early 2005, with Mr. Medellin's death- participating in the gang rape and murder of penalty appeal pending before the Supreme two teenage girls. In urging the Supreme

125 Court not to hear the case, the Texas behalf, noting its desire to provide "critical solicitor general, R. Ted Cruz, recounted the resources to aid in the defense of its crime in vivid detail and said that the Texas nationals facing the death penalty." Mexico court had applied its usual rules in noted that last month, the Texas court had concluding that Mr. Medellin was denied relief to five other Mexican death- procedurally barred from reopening his case. row inmates who are also governed by the The president had no constitutional authority World Court decision. "Bilateral relations to pre-empt the state's procedural rules, Mr. between the United States and Mexico" will Cruz said. "unquestionably" be affected by these cases. Mexico's brief said. Mexico filed a brief on Mr. Medellin's

126 "New Claim of Presidential Power"

SCOTUSBiog March 27, 2007 Lyle Denniston

The Bush Administration, -continuing its The government's brief was filed last sturdy defense of presidential powers, has Thursday but has just now become publicly urged the Supreme Court to rule that available. Similarly, the state's brief in President Bush had the authority to direct opposition, filed last week, is now publicly state courts to obey a decision of the World available. Court bearing on state criminal prosecutions. The state of Texas disputed that plea in The government supports the appeal of Jose urging the Court not to hear again a case that Ernesto Medellin, a Mexican national who was before the Justices in 2005, but did not was convicted of a double rape and murder produce a ruling at that time. in Houston in 1993. Medellin claims that his consular access rights were violated, but he In an amicus filing in the case of Medellin v. has been denied a chance to press that claim, Texas (06-984), the government called for both by the Fifth Circuit Court and by reversal of a Texas state court ruling that Texas' highest criminal court. In the most Bush did not have the power to ensure that recent decision, last Nov. 15, the Texas state state courts complied with the international court found he had failed to raise that issue tribunal's decision on the rights of foreign properly as his case unfolded in state court. nationals arrested and prosecuted within the Medellin's appeal to the Justices was filed U.S. for crimes here. The state argued in on January 16. response that the case is moot because Medellin has had access to the courts in Medellin's appeal is also supported by the Texas to challenge his conviction, and that is Mexican government and by a group of law all that the World Court ruling required. professors who are experts on World Court While Texas challenges the Bush matters. Administration's assertion of executive power, it suggests that that question, too, is The case has not yet been scheduled for a moot. Conference of the Justices. It is expected to go to the Justices sometime in April, after The Vienna Convention on Consular Medellin's counsel has filed a reply. Relations gives such foreign nationals a right to meet with a diplomatic officer from While the government brief stressed that his or her home country when arrested in President Bush did not agree with the World another country. The World Court (the Court's ruling (and noted that he has since International Court of Justice at The Hague) withdrawn the U.S. from the protocol that ruled that the U.S. government must take gave the World Court authority to apply the steps to assure that 51 Mexican nationals Vienna Convention), the brief argued that (including Medellin) who were prosecuted the Texas ruling will undermine the in the U.S. had that right, despite state court President's authority to determine "how the rules that barred them from relying upon the United States will comply with its treaty Convention in challenging their convictions. obligations."

127 The Medellin case had been before the a case decided by that tribunal, Clement Supreme Court in 2005, when the Justices noted. agreed to review and heard argument on the enforceability of the World Court decision. "Because the President is uniquely But, after argument, the Court dismissed the positioned both to evaluate and resolve case as "improvidently granted," partly sensitive foreign policy issues and to act because Medellin's lawyers had then with dispatch," the brief contended, "the recently filed a state court challenge to his Optional Protocol and the U.N. Charter are conviction based on a violation of the most sensibly read to entrust the President Convention. That case went forward in with the responsibility of deciding how to Texas courts, resulting in the ruling at issue respond to an ICJ decision." in his new appeal. In addition, the brief noted that Congress In defending presidential powers, the new had "expressly authorized the President to brief by Solicitor General Paul D. Clement direct all functions connected with the argued that the state court decision "decided United States' participation in the United fundamental questions of federal law Nations." relating to the authority of the President to bring the United States into compliance with While some of the Texas judges had argued its treaty obligations." Moreover, it added, that the President's attempt to get the states the ruling "set a course that, if not reversed, to carry out the World Court decision would will place the United States in breach of its be deeply intrusive in state criminal international law obligation to comply with proceedings, Clement countered that the the [World Court] decision, leave intrusion is no greater than necessary to see unresolved the dispute between Mexico and that the World Court ruling is obeyed to the the United States over the treatment of extent it requires consideration of the [Medellin], and frustrate the President's Vienna Convention claims, without dictating judgment that foreign policy interests are how the state court decides the underlying best served by giving effect to that case. "Where, as here, the President acts decision." pursuant to his authority under treaties of the United States, principles of federalism do Citing the famous concurrence opinion of not stand as an obstacle. To the contrary, Justice Robert H. Jackson in the 1952 ruling federal law is supreme, and state law must in Youngstown Sheet & Tube v. Sawyer, give way." Clement argued that the President's powers were at the maximum when he was acted While supporting Medellin on under authority recognized by Congress. In implementation of the World Court ruling, this instance, the Solicitor General said, the the government brief did not support his President's authority relies upon two separate claim that the Vienna Convention is treaties-the protocol that gave the World open to private enforcement. But Clement Court the authority to implement the Vienna indicated that the government did not Convention, plus the United Nations oppose review of that issue, too. Charter. The UN Charter requires signatory nations like the U.S. to comply with World Texas, in opposing Supreme Court review. Court decisions when the nation is a party in contended that President Bush's

128 "memorandum" demanding that the states President to order a state to disregard its comply with the World Court ruling is own habeas corpus statute and review a beyond presidential authority as spelled out claim based on the decision of a foreign in the Constitution. "The President's Article tribunal that this Court has determined has II powers are limited to executing, not no binding effect on domestic courts." creating, the law." The latter point, Texas argued, was settled in Making its own argument out of the Court's the Court's decision last Term in Sanchez- 1952 Youngstown Sheet decision, the state Llamas v. Oregon. In that ruling, the state suggested that the President had attempted said, "the Court determined that decisions of to use unilateral authority. the ICJ are not binding on American courts. Medellin's request that the Court revisit an The claim of Executive power made by issue decided last Term is without merit." Medellin's lawyers (and seconded by the government's brief), the state added, is an In the state's argument on the mootness argument for "a hypothetically limitless question, it contends that Medellin's first executive power to create law based on post-conviction challenge, rejected by state unilateral decisions concerning the foreign courts, was a sufficient opportunity under affairs interests of the United States. But no the World Court decision that the U.S. must enumerated power in Article II allows the "give effect" to its ruling.

129 "CCA Plurality Says Bush Exceeded His Authority"

Texas Lawyer November 20, 2006 Mary Alice Robbins

In a first-of-its-kind ruling, the Court of ICJ in January 2003, alleging that this country Criminal Appeals has held that an had violated its obligations under the Vienna International Court of Justice (ICJ) decision Convention and the treaty's Optional and President George W. Bush's directive that Protocol. In March 2004, the ICJ held in Case state courts comply with that decision do not Concerning Avena and Other Mexican require the CCA to revisit a death-row Nationals that the United States had denied inmate's case. the rights to consular notification and consultation required under Article 36 of the "We hold that the President has exceeded his Vienna Convention to 49 Mexican nationals, constitutional authority by intruding into the including Jose Ernest Medellin, who are independent powers of the judiciary," CCA sentenced to die in Texas and other states. Judge Mike Keasler wrote for a plurality of the court in Nov. 15's Ex Parte Medellin. The ICJ held in Avena that the rights created under the treaty between nations were also Three members of the CCA-Judges individual rights that, if violated, the United Lawrence Meyers, Tom Price and Barbara States must remedy by providing the 49 Hervey-joined Keasler in the portion of the Mexican nationals with a forum for the opinion that addresses the presidential "review and reconsideration" of their memorandum, raising the question of whether convictions. Under the ICJ's holding, courts the holding is precedent. But in a concurring cannot apply procedural default to deny opinion, Presiding Judge Sharon Keller judicial review of the Article 36 claims and provided a similar analysis, holding that the must determine if the violations prejudiced memorandum does not override the state's the Mexican nationals. procedural rules. According to the CCA's plurality opinion in "Technically, it is not precedent if it is only a Medellin, Bush weighed in on the controversy plurality opinion," says University of Texas surrounding Avena in February 2005 by School of Law professor George Dix, who issuing a memorandum directing state courts teaches criminal law. "If it appears that a to hold the hearings that the international majority of the judges agree with the tribunal required. plurality, it comes very close to precedent." But the CCA held in Medellin that the ICJ's The CCA's holding in Medellin is the first Avena decision and Bush's memorandum are judicial decision on a U.S. president's not binding federal law that pre-empts Article authority to issue a directive for state courts to 11.071, §5(a) of the Texas Code of Criminal implement a decision of the ICJ, the judicial Procedure. Under Article 11.071, §5(a), a arm of the United Nations. court may not consider the merits or grant relief if a death-row inmate files a successive Mexico had sued the United States before the state habeas writ application, unless the

130 inmate could not have presented the claim application in May 2004. previously. because the legal basis for the claim was unavailable. The CCA held that the Medellin filed a petition for writ of certiorari ICJ's decision in Avena and the president's with the U.S. Supreme Court, which granted memorandum do not qualify as previously review in Medellin v. Dretke in December unavailable factual or legal bases for filing a 2004 to review the enforceability of the Avena successive writ. decision. [The current case before the Court is Medellin v Texas.] Bush issued his The CCA's opinion sets out the following memorandum in February 2005 before the facts: In 1994, a Harris County jury convicted Supreme Court heard arguments in Medellin's Medellin of capital murder and sentenced him case. to death for his participation in the 1993 gang rape and murder of two teenage girls in Medellin filed his second application for a Houston. Medellin, who was born in Mexico, state habeas writ while his case was pending was 18 at the time of the slayings. The CCA before the Supreme Court, which affirmed Medellin's conviction on direct subsequently dismissed his case to allow the appeal in 1997. CCA to act.

It wasn't until he filed his initial state habeas The CCA held that the Supreme Court's June writ application in 1998 that Medellin decision in Sanchez-Llamas i. Oregon claimed that law enforcement authorities had controls its decision in Medellin. The violated his rights under Article 36 of the Supreme Court consolidated Sanchez-Llamas Vienna Convention because they did not with Bustillo v. Johnson to consider, among advise him of his right to contact the Mexican other issues, whether a defendant forfeits an consular official after he was arrested. The Article 36 claim under state procedural rules 339th District Court in Houston, which if the defendant fails to raise the claim at trial. considered Medellin's second state writ The Supreme Court concluded that ICJ application, concluded that his claim was decisions are entitled only to "respectful procedurally barred, because Medellin had consideration." not objected at trial to the violation of his right to contact the consulate. According to the CCA opinion in Medellin, the Supreme Court made it clear in Sanchez- Medellin presented his Vienna Convention Llamas that judicial power includes the duty claim in an application for a federal habeas "to say what the law is." writ to the U.S. District Court for the Southern District of Texas. In June 2003. the "The clear import of this is that the President federal district court denied relief, and cannot dictate to the judiciary what law to Medellin filed for a certificate of apply or how to interpret the applicable law," appealability. The ICJ issued its decision in Keasler wrote for the plurality. Avena while Medellin's application was pending. Keller wrote in a concurring opinion that Bush's memorandum "ignores the importance -%fter the federal district court denied his of the procedural default rules in an adversary application for a certificate of appealability,. system." According to Keller's concurrence, Medellin appealed to the 5th U.S. Circuit the rules are designed to encourage parties to Court of Appeals, which denied his raise claims promptly and to "vindicate the

131 law's important interest in finality of international law," Babcock says, adding that judgments." Medellin will petition the U.S. Supreme Court again for a writ of certiorari. "I believe Mr. Bush's action in issuing the memorandum Medellin's rights ultimately will be vindicated was unprecedented, and such extraordinary by the Supreme Court," she says. action is unnecessary, Keller wrote. As noted in Keller's opinion, a foreign national whose But Roe Wilson, chief of the post-conviction lawyer fails to raise the Vienna Convention writs section in the Harris County District issue at trial can raise ineffective assistance of Attorney's Office, says she thinks the CCA is counsel in a state habeas writ application. If correct in its interpretation of Bush's all other measures fail, the foreign national memorandum. still can apply to the Texas Board of Pardons and Paroles and the governor for clemency, Wilson, who argued on the state's behalf Keller noted. before the CCA in Medellin, says state courts have to go by state law; they don't have to go Price, Hervey and CCA Judge Cathy Cochran by the ICJ decision. "It's not binding on our also each wrote concurring opinions. Judge courts," she says of the Avena decision. Paul Womack concurred in the judgment of the court but did not write an opinion. Lori Fisler Damrosch, a professor of international law at Columbia Law School, U.S. Deputy Solicitor General Michael R. says the CCA erred in Medellin by applying Dreeben, who argued for the United States the Supreme Court's ruling in Sanchez- before the CCA as an amicus curiae, declines Llamas to more than the high court actually comment on the CCA's decision. Dreeben held. Damrosch says Sanchez-Llamas had contended during the arguments that involved individuals who were not covered by Bush was at the zenith of the lawful exercise the ICJ's Avena decision. of executive power when he issued the memorandum because of his inherent What the president did in his memorandum constitutional authority to conduct foreign responding to Avena was to tell Texas courts affairs, the United States' international to comply with the United States' treaty obligation to comply with Avena under the obligations, Damrosch says. U.N. Charter and the nation's obligations under the Vienna Convention. [See "Medellin "Even if the president had never put his oar in Returns," Texas Lawyer, Sept. 19, 2005, these waters, the courts would have an page 1.] obligation to comply with these treaty obligations," she says. Damrosch predicts Sandra Babcock, a Northwestern University that the Supreme Court will take another look School of Law professor who represents at Medellin's case. The Supreme Court's two Medellin. says it was in the interest of newest members-Chief Justice John Roberts Americans abroad to comply with the ICJ's Jr. and Justice Samuel Alito Jr.-are strong decision in Avena, because they depend on proponents of executive powers, she says. the protections afforded by the Vienna Convention. Notes Damrosch: "I think we could well expect Chief Justice Roberts and Justice Alito "It continues to be our position that it's well to be quite interested in thinking through within the president's power to comply with questions of presidential powers."

132 "Texas Appeals Court Takes Bush to Task for Stepping in for Foreign-Born Death Row Inmate"

The Associated Press November 16, 2006 Michael Graczyk

HOUSTON-A state appeals court courts should give to decisions of the chastised President Bush for intervening in International Court of Justice in The Hague, the case of a condemned killer born in which ruled the convictions of Medellin and Mexico, one of several dozen cases in which 50 other Mexican-born prisoners violated Bush ordered new hearings amid the 1963 Vienna Convention. The pact international complaints. requires consular access for Americans detained abroad and foreigners arrested in The Texas Court of Criminal Appeals on the United States. Wednesday rejected the argument from Jose Ernesto Medellin that he was denied legal In February 2005, Bush unexpectedly help he should have received under ordered new state court hearings for all 51 international treaties. [The Supreme Court prisoners. The Texas court said Wednesday will consider Medellin's case in Medellin v. neither the Constitution nor any act of Texas this term.] Congress gives the president the power to issue such an order. Medellin, who spent most of his life in Texas, was sentenced in 1994 to die for the The decision means Medellin, 31, is not rapes and killings of two teenage girls. entitled to additional review of his international rights claim. "We hold that the President has exceeded his constitutional authority by intruding into Last year. the Supreme Court rejected the independent powers of the judiciary," Medellin's case and those of the 50 other the court said in a 64-page ruling. Mexican nationals on death row in the United States. citing the presidential order, Justice Department spokesman Brian and sent them to their respective state courts Roehrkasse said the department was for review. That ruling avoided the dispute reviewing the ruling and considering its over whether international law is binding on options. American courts.

Medellin was supported in his appeal by In their arguments to the Supreme Court, dozens of countries, legal groups and human Medellin's attorneys said his court- rights organizations, as well as former appointed trial lawyer was suspended from American diplomats and the European practicing law for ethics violations during Union. Much of the international community the case, and he failed to call any witnesses is opposed to capital punishment and the during the guilt phase of the trial. Lawyers execution of Mexican nationals in Texas, the for Mexico said the country would have nation s most active death penalty state, is a made sure Medellin had a competent lawyer particularly touchy point. had it known about the trial.

At issue overall was how much weight U.S. Medellin, 18 at the time, was one of six

133 members of a fledgling Houston street gang Two other gang members had their death convicted in the slayings of Jennifer Ertman, sentences commuted to life in prison when 14, and Elizabeth Pena, 16. The pair had the Supreme Court last year barred been tortured, raped and strangled. executions for those who were 17 at the time of their crimes. The man authorities call the One of Medellin's companions, Derrick gang's ringleader remains on death row Sean O'Brien, also 18 at the time of the without an execution date. slayings, was executed earlier this year. In a confession, O'Brien said Medellin was at The sixth person convicted was Medellin's one end of a belt being pulled around brother, Vernancio, who was 14 at the time Ertman's neck as he yanked on the other. and received a 40-year prison term.

134 "Appeals of Mexicans on Death Row Rejected"

Chicago Sun-Times May 24, 2005 Hope Yen

WASHINGTON-The Supreme Court will prevail," she said. turned away an appeal Monday [prior to the current court's case, Medellin v. Texas] that In an unsigned opinion, the Supreme Court contended 51 Mexicans on U.S. Death Row dismissed Medellin's case as premature were improperly denied legal help, avoiding because of Bush's unexpected order, which a dispute over whether international law is came one month before justices heard binding on American courts. arguments in the case. The court reserved the right to hear the appeal again once the The 5-4 decision dismissed the case of Jose case had run its full course in state court. Medellin, who argued he was entitled to a federal court hearing on whether his rights "This state-court proceeding may provide were violated when a Texas court tried and Medellin with the very reconsideration of sentenced him to death in 1994 on rape and his Vienna Convention claim that he now murder charges. seeks in the present proceeding," stated the opinion, which was backed by Chief Justice It means the case, which has stirred tensions William H. Rehnquist, as well as Justices with foreign countries over convictions of Anthony Kennedy, Clarence Thomas, Ruth their citizens in violation of international Bader Ginsburg and Antonin Scalia. law, will be hashed out in state courts. President Bush in February ordered new At issue is how much weight U.S. courts state court hearings for the 51 Mexicans. and should give to decisions of the International the court cited that order on Monday. Court of Justice in The Hague, which ruled last year that the 51 convictions violated the Texas prosecutors vow to challenge Bush's 1963 Vienna Convention. authority in the matter. "Jose Medellin voluntarily confessed to the brutal gang-rape In 1969, the Senate ratified the Vienna and murder of two teenage girls," Texas Convention, which requires consular access Solicitor General Ted Cruz said. for Americans detained abroad and foreigners arrested in the United States. The Sandra Babcock, an attorney representing Constitution states that U.S. treaties "shall the Mexican government, said she remained be the supreme law of the land," but does hopeful that Medellin's international rights not make clear who interprets them. would ultimately be recognized in state court. In a dissent, Justice Sandra Day O'Connor said she would have ordered the federal "All the issues are still open, and Mexico is courts to review whether international law confident that if and when Mexican should be binding on the U.S. courts. nationals receive new consideration, thev

135 "Justices Consider Rights of Foreigners"

The Washington Post March 29, 2005 Charles Lane

WASHINTGON-The Supreme Court global law and Texas law, issuing a seemed divided over how best to handle a determination that he alone, as the country's dispute over the role of international law in chief diplomat, has the power to decide how U.S. death penalty cases yesterday, as the the country should react to the international justices heard oral arguments in the case of a court's rulings. Noting that the United States Mexican who says Texas violated his rights had agreed to accept ICJ rulings on cases under a U.S.-ratified treaty when it involving the Vienna Convention, he sentenced him to death more than a decade instructed the state courts to give Medellin ago. and the other Mexicans new hearings, as the ICJ had proposed, and told the Supreme The court took up Medellin v. Dretke, No. Court it should bow out. 04-5928, which centers on a ruling last year by the International Court of Justice (ICJ) in Then he withdrew the United States from The Hague. [The court for the coming term international court jurisdiction under the addresses a different issue in Medellin v. convention, to avoid future cases. Texas.] The international court ruled that the United States had violated the Vienna Medellin's lawyer, Donald F. Donovan, Convention on Consular Relations by failing asked the court to suspend its proceedings to tell 51 Mexicans charged with capital until he has a chance to seek a new hearing murder that they had a right under the in state court, as provided for in the convention to meet with diplomats from president's determination. their home country. But Justice Sandra Day O'Connor said "it One of the Mexicans, Jose Ernesto Medellin, would be more likely we would dismiss" the and his supporters had urged the court to case. "This is a very unusual request," she rule that the ICJ ruling is binding in U.S. added. courts-an argument that, if endorsed by the Supreme Court, would have laid an And Chief Justice William H. Rehnquist important precedent in favor of the authority said that "granting a stay could be seen as of international law generally. validating the position of the government without an opinion" from the court.... But Texas, citing Supreme Court rulings. countered that the ICJ could not override Texas Solicitor General R. Ted Cruz asked state procedural rules under which Medellin the court to avoid "the many interesting had forfeited his right to invoke the Vienna international law questions that swirl around Convention by not asserting it until 1998, the case" and rule in favor of Texas now. rather than at his trial in 1994. Even if Medellin's rights under the treaty A month ago, however, President Bush had been violated, Cruz argued, that could intervened in this looming clash between not entitle him to a new hearing. That is

136 because a federal law enacted in 1996-the president's determination there. treaty went into effect in 1969-says that death row inmates can seek a fresh hearing "Why doesn't the ICJ judgment get the same only on new claims that their constitutional recognition as any judgment by any other rights were violated. court?" Justice Ruth Bader Ginsburg asked Cruz. But Justice David H. Souter said the court "wouldn't even have to venture into [that], if Cruz replied that international law we accept the president's determination." contemplates the Vienna Convention will be enforced through U.N. Security Council Cruz replied that Texas sees "significant action. constitutional problems with any unilateral [presidential] decision" that tells state courts U.S. Deputy Solicitor General Michael what to do. Dreeben, urging the court to let Bush's proposal for new state court hearings run its But that constitutional issue, he course, told the court that "if this court treats acknowledged, would inevitably reach the the ICJ as a free-standing source of law . .. Supreme Court, after Texas courts have it would rob the president of freedorn of dealt with Medellin's effort to enforce the action in international affairs."

137 "Bush Orders Hearings for Mexicans on Death Row"

Los Angeles Times March 9, 2005 David G. Savage

President Bush, in a bow to international known as the World Court, that the U.S. had law, has decided that the 49 Mexican violated the Vienna Convention by failing to nationals who are on death row in notify Mexican officials when Mexican California, Texas and other states are nationals were arrested and charged with entitled to new hearings to see if they were serious crimes. harmed by the failure of authorities to tell them of their right to seek the aid of In the Vienna Convention of 1963, the U.S. Mexican officials. and most other nations agreed to protect their citizens by requiring that they be The presidential order-if it stands-could informed whenever one of their nationals eventually lead to the release from death was "arrested or committed to prison." row of as many as 28 Mexican inmates in Local authorities must also tell the arrested California and 15 in Texas, as well as others person of his rights. in Arizona, Arkansas, Florida, Nevada, Ohio and Oregon. This treaty protects Americans when they live or travel abroad. It may also affect dozens of other foreign nationals who have been condemned to However, its requirements have been widely death across the country. ignored by U.S. police and prosecutors when foreign nationals are taken into custody. The president's order was issued last week without fanfare. It puts the former Texas The Supreme Court is scheduled to hear a governor in the unusual spot of challenging case this month that tests whether Jose Texas officials on the validity of death Medellin, a Mexican national who is on sentences in the Lone Star State. death row in Texas, has a right to a new hearing in federal court after the World Texas Atty. Gen. Greg Abbott questioned Court ruling. Tuesday whether the president had the authority to tell the state courts to reopen Two years ago, Mexico took the issue to the these old cases. World Court on behalf of 51 Mexicans who were held on death rows across the U.S. "We respectfully believe the executive determination [issued by Bush] exceeds the The lead plaintiff, Carlos Avena Guillen, constitutional bounds for federal authority," was charged with murder in Los Angeles in Abbott's office said in a statement. 1980 and sentenced to death in 1981. California officials had no comment. Mexican officials say they did not learn of the Avena case until the mid-1990s. Bush's action was triggered by a recent ruling by the International Court of Justice. Last year. the international tribunal ruled for

138 Mexico and said the U.S. must provide forbids its courts from reopening cases that "review and reconsideration of the have been thoroughly litigated. convictions and sentences of the Mexican nationals." Despite the ruling, it was unclear Paul Clement, acting U.S. solicitor general, how the World Court's order could be said state courts must "review and enforced. reconsider the conviction and sentence" of each Mexican to see whether the failure to Lawyers for Mexico raised the issue in the warn him of his rights "caused actual federal courts in Texas on behalf of prejudice to the defense at trial or at Medellin, but got nowhere. The U.S. Court sentencing." If so, "a new trial or a new of Appeals said the World Court's decision sentencing would be ordered," Clement said. did not give him a right to a new hearing under U.S. law. To their surprise, defense lawyers and international law experts found themselves However, the Supreme Court agreed to hear cheering a move by Bush. The president has Medellin's appeal. The justices are been a critic of international courts and a scheduled to hear arguments in the case strong supporter of the death penalty. March 28. "This is an amazing concession," said Mike Last week, in a friend-of-the-court brief, the Charlton, a defense lawyer for several Texas Bush administration agreed with Texas inmates. "The president is saying the Texas lawyers in saying the Mexicans had "no courts have to reopen and relitigate these judicially enforceable right" to seek help in cases." the federal courts. The brief urged the Supreme Court to dismiss Medellin's legal "This is a complete victory for the Mexican appeal. nationals," said Sandra Babcock, a Minneapolis lawyer who worked for the But having rejected Medellin's legal claim, Mexican government in the case. "It is not the administration then declared that the the way we anticipated winning. but we president had the authority to order new won." hearings in state courts for Medellin and the other Mexicans. Lawyers attached an order Many police and prosecutors are not aware signed by Bush on Feb. 28. of the Vienna Convention and its duties, Babcock said. "I have talked to police "I have determined, pursuant to the authority officers in San Diego and in the Central vested in me as president . . . that the United Valley of California, and they say they never States discharge its international obligations heard of this. But the old maxim-ignorance under the decision of the International Court of the law is no excuse-applies here as of Justice . . . in the case concerning Avena well," she said. and other Mexican nationals by having state courts give effect to the decision," the order It is not clear what the Supreme Court will said. do now.

Bush's lawyers said the "foreign policy Bush's order "raises more questions than it interests" of the U.S. outweighed the laws of answers," Charlton said. He and other the states. Texas, for example. has a law that defense lawyers would like the high court to

139 say the inmates have a legal right to a new court supersedes the laws of Texas and the hearing. Texas state lawyers, by contrast, are laws of the United States," Abbott said. likely to argue that neither Bush nor the Supreme Court can reopen an old case such [The Supreme Court will address Medellin's as Medellin's. case again in the coming term in Medellin v. Texas. ] "The state of Texas believes no international

140 "Mexicans on Death Row Win Review"

The Washington Post December 11, 2004 Charles Lane

WASHINGTON-The Supreme Court there are 118 foreign nationals on death row agreed yesterday to decide whether the in the United States, from 32 countries. federal courts must give a hearing to a Mexican inmate on Texas's death row who The court received friend-of-the-court briefs says the state violated international law by from the European Union, Argentina, trying him on murder charges without first Bolivia, Brazil, Chile, Colombia, El notifying Mexican diplomats who might Salvador, Guatemala, Honduras, Nicaragua, have helped him. Paraguay, Peru, Uruguay, Venezuela and Mexico, all urging it to hear the case. Also The case, which has attracted worldwide supporting Medellin's appeal was a group of attention, is seen as a test of the willingness former U.S. diplomats, including former of the judicial branch of the U.S. Iran hostage L. Bruce Laingen, who argued government to accept an international that U.S. citizens abroad will "suffer in institution's authority at a time when the kind" if their own courts do not enforce executive branch under President Bush is consular access. taking criticism from many quarters abroad for operating unilaterally in world affairs. In its March ruling, the ICJ did not attempt to overturn the men's death sentences. It The context of the death penalty, for which said only that the treaty-which both the the United States in general and Texas in United States and Mexico have ratified- particular are under fire in Europe and Latin gives Medellin and the other Mexicans an America, adds to its potential international individual right to claim in a federal court impact. that their cases might have turned out differently if they had had consular access. The case marks the Supreme Court's first U.S. rules that require them to raise such opportunity to respond to a March 31 claims in state court first do not apply, the decision by the International Court of Justice ICJ ruled. (ICJ) in The Hague, which ruled that the United States violated the Vienna The Bush administration had argued against Convention on consular relations in the case this interpretation, but the vote in the ICJ of the Texas inmate, Jose Ernesto Medellin, was 14 to 1. with a U.S. judge joining the and 48 other Mexican nationals on death majority. row. The ICJ ruling brought to a head a long- The application of the Vienna Convention to simmering conflict between that court and criminal cases is no small issue in the United the conservative majority on the Supreme States. where the population includes Court, which generally favors limiting the millions of noncitizens. Including the avenues by which death-row inmates may Mexicans directly involved in the ICJ ruling. challenge their sentences on constitutional

141 and other legal grounds. advice of his American attorneys, who urged him to plead guilty in return for a life Six years ago, the Supreme Court said that a sentence. treaty-based right of consular access could not trump the requirement in U.S. law that The vote was 6 to 3, with Justices John Paul inmates seeking to overturn their sentences Stevens, Ruth Bader Ginsburg and Stephen must raise their constitutional and legal G. Breyer dissenting. claims in state court first-or forfeit the right to bring them up later in federal court. The court acted in Breard even though Paraguay had taken the case to the ICJ, and In that case, Breard v. Greene, the court the ICJ had called on Virginia not to execute declined to stay the execution of a Breard until it had finished considering the Paraguayan convicted of murder and rape in matter. Virginia. Its unsigned opinion said that, even if the Paraguayan, Angel Francisco Breard, But now it faces a direct and clear judgment were permitted to raise his claim in federal by the ICJ. court, he could not show that the violation of his right to see a consul would have made a The case accepted for review yesterday is difference. Medellin i'. Dretke, No. 04-5928. Oral argument is scheduled for March, and a He had insisted on going to trial against the decision is expected by July.

142 "Death Term Upheld for 5th in Gang"

The Dallas Morning News March 20, 1997 The Associated Press

AUSTIN-The last of five young gang "The facts in this case were so heinous, that members sent to death row for the rapes and if there ever was a small error the court murders of two teenage girls in Houston 3 would find it harmless given the evidence," 1/2 years ago had his death sentence upheld said Kim Stelter, who prosecuted three of Wednesday by the Texas Court of Criminal the five cases for the Hams County district Appeals. attorney's office.

Jose Medellin has been on death row since The five gang members charged with capital September 1994 for the slayings of Jennifer murder in the case-Mr. Medellin, Peter Ertman, 14, and Elizabeth Pena, 16. Cantu, Derrick Sean O'Brien, Raul Villareal, and Efrian Perez-all received the The girls were raped, strangled and beaten to death penalty. All were 18 at the time of the death after they came upon a railroad trestle slayings. in Houston where the members of a gang known as the "Black and Whites" were A sixth participant, tried as a juvenile, was celebrating a new member's initiation. The sentenced to 40 years in prison. girls' bodies were found four days later. Mr. Medellin did not challenge his being It was a crime so brutal-committed by found guilty. but rather the sufficiency of people all younger than 20-that it caught evidence to support the jury's decision to the nation's attention and shocked the city of sentence him to death. Houston. When Mr. Medellin's Houston attorney "It's a relief to have gotten through this Randy McDonald was asked if he was stage," said Bill Delmore, Harris County surprised with the decision, he replied: "A assistant district attorney who prosecuted the little, his four co-defendants were denied, case. but our issues were a little different."

The girls' parents have since become leaders Mr. McDonald had argued in his appeal that in the victims' rights movement and fought several errors were made by the court in jury for the state's new law that allows murder selection and that Mr. Medellin deserved a victims' families to witness the execution of new trial. their loved one's killer.

143 United States v. Williams

(06-694)

Ruling Below: (U.S. v. Williams, 444 F.3d 1286 (11th Cir. 2006), cert granted, 127 S.Ct. 1874, 167 L.E.2d 363, 75 USLW 3508, 75 USLW 3286, 75 USLW 3511).

U.S. Secret Service Special Agent Timothy Devine entered a chatroom under an alias screen name and replied to a post by the defendant which stated that he had pictures of his toddler for exchange. Defendant then stated he had nude photos and hardcore photos of defendant and his daughter as well as others engaging in oral sex with the four-year old toddler. Defendant later posted a hyperlink which led to several pictures of children five to fifteen naked and engaged in various sexual activities, including sado-masochistic behaviors. Secret Service agents raided defendant's home and found two hard drives full of photos. Williams was charged with one count of promoting material in such a manner that was intended to cause another to believe it was illegal child pornography. The charge carries a 60-month mandatory minimum sentence. Williams filed a motion that 18 U.S.C. § 2252A(a)(3)(B) was unconstitutionally vague and overbroad. While the motion was pending, Williams reached a plea agreement and plead guilty but reserved the right to challenge the constitutionality of the statute.

Questions Presented: Whether §2252A(a)(3)(B), which prohibits knowingly advertising, promoting, presenting, distributing, or soliciting any material in such a way that reflects the belief or that is intended to cause another to believe the material is illegal child pornography, is overly broad and impermissibly vague, and thus facially unconstitutional.

UNITED STATES of America, Plaintiff-Appellee V. Michael WILLIAMS, Defendant-Appellant

United States Court of Appeals for the Eleventh Circuit

Decided April 6, 2006

[Excerpt: Some footnotes and citations omitted.]

REAVLEY. Circuit Judge: convicted of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), and he Michael Williams appeals his conviction for appeals his sentence for that offense on the promotion of child pornography under 18 grounds that the court unconstitutionally U.S.C. § 2252Aa)(3)(B) on the grounds of enhanced his sentence under a mandatory facial unconstitutionality. For this reason, we guidelines scheme in violation of United reverse that conviction. Williams was also States v. Booker. 543 U.S. 220, 125 S.Ct. 738,

144 160 L.Ed.2d 621 (2005). Because there was Whether that difficult balance has been struck no reversible Booker error, we affirm in the instant legislation is the issue before us. Williams's sentence of 60-months' imprisonment. C. The Law and Child Pornography

I. THE CHARGES [The Court explains the root of child pornography regulation as growing from the [The Court recounts the background and obscenity doctrine, specifically that in Miller factual history of the case.] v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In the first case dealing II. WILLIAMS'S FACIAL CHALLENGE directly with child pornography, the Supreme TO 18 U.S.C. § 2252A(a)(3)(B) Court found it was a new category of speech and was unprotected by the First Amendment, finding that it documents an underlying act of abuse and the circulation of images causes the B. The Child Pornography Problem child injury. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In this case, we consider the constitutionality Congress shaped a law against child of a law aimed at curbing the promotion, or pornography by following the statute upheld "pandering," of child pornography. While in Ferber. After this law, Congress passed society has benefited greatly from the the Child Pornography Prevention Act of technological advances of the last decade, an 1996 (CPPA), 18 U.S.C. §§ 2251, to outlaw unfortunate byproduct of sophisticated computer-generated images. Since its imaging technology and the rise of the passing, the circuits have split and the Internet has been the proliferation of Supreme Court granted certiorari to Ashcroft pornography involving children. v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).] [The Court explains the development of widening child pornography distribution rings over the internet and the challenges with regulating child pornography with that D. The Supreme Court's Decision in Free expansion and with the sexual stimulation Speech Coalition pedophiles derive from innocuous images.] [The Court explains the Supreme Court's Over the years, Congress has, by large decision in Free Speech Coalition and the bipartisan majorities, enacted legislation Supreme Court's rationale in striking down designed to punish those who produce, two provisions of the CPPA, including peddle. or possess child pornography. prohibitions of computer-generated images Congress has struggled to draft legislation and pandering. The Court found both that captures the truly objectionable child- provisions to be overbroad under Miller and exploitative materials while staying within the Ferber, further stating that the government boundaries of the Supreme Court's First may not prohibit speech on grounds that it Amendment jurisprudence. In other words. may merely encourage, rather than incite, Congress may not "burn the house to roast the pedophiles to engage in illegal activity.] pig." Butler v. Michigan, 352 U.S. 380. 383. 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957).

145 E. The PROTECT Act pornography depicts actual adults rather than minors or that no "actual" minors were Almost immediately after the Free Speech involved in the production. 18 U.S.C. § Coalition decision was handed down, 2252A(c). However, the affirmative defense Congress began an effort to craft responsive expressly does not apply to the pandering legislation. [T]he houses compromised and provision. passed the PROTECT Act, now codified in scattered sections of 18 U.S.C. F. What Congress Has Done Differently

The revised pandering provision of the At the outset of our discussion, we note that PROTECT Act at issue in this case, 18 U.S.C. the new pandering provision allays certain § 2252A(a)(3)(B), provides that any person concerns voiced by the Court in Free Speech who knowingly- Coalition. First, the Court's primary objection to the CPPA's pandering provision was that (B) advertises, promotes, presents, pandered materials were criminalized for all distributes, or solicits through the purposes in the hands of any possessor based mails, or in interstate or foreign on how they were originally pandered. Free commerce by any means, including Speech Coalition, 535 U.S. at 257-58, 122 by computer, any material or S.Ct. at 1405-06. By moving the pandering purported material in a manner that provision from the definitions section to a reflects the belief, or that is stand-alone status, and using language that intended to cause another to targets only the act of pandering, the new believe, that the material or provision has shifted from regulation of the purported material is, or contains- underlying material to regulation of the speech related to the material. This remedies (i) an obscene visual the problem of penalizing individuals farther depiction of a minor down the distribution chain for possessing engaging in sexually images that, despite how they were marketed, explicit conduct; or are not illegal child pornography.

(ii) a visual depiction of With respect to its legislative findings for the an actual minor engaging PROTECT Act, Congress largely abandons in sexually explicit the secondary effects and market deterrence conduct; justifications found wanting by the Court in Free Speech Coalition.... Congress instead commits a criminal offense. . focuses primarily on beefing up its findings that technological advancements since Free Any person who violates, or attempts or Speech Coalition have increased the conspires to violate, the pandering prohibition prosecutorial difficulties raised by the ready is subject to a fine and imprisonment for a availability of technology able to disguise minimum of five years and up to twenty depictions of real children (proscribable under years. 18 U.S.C. § 2252A(b)(1). It is an Ferber) to make them unidentifiable or to affirmative defense for certain reproducers, make them appear computer-generated distributors, recipients, and possessors of (defensible under Free Speech Coalition). child pornography charged under other subsections of § 2252A that the alleged child [The Court explains the PROTECT Act's new

146 definition for child pornography, which pandering provision criminalizes not the includes computer-generated images and the speech expressed in the underlying materials pandering of such images. The Court further described in (i) and (ii), but the speech explains that Williams's pictures were of real promoting and soliciting such materials. The children and so the computer-generated question before us is whether the restriction definition is not at issue in this case.] on that speech is too broad.

1. The Government May Wholly Prohibit Commercial Speech That Is False or Proposes G. Williams's Overbreadth Challenge an Illegal Transaction

Under the overbreadth doctrine, a statute that We recognize that, if we consider the prohibits a substantial amount of pandering provision as purely a restriction of constitutionally protected speech is invalid on commercial speech, we do not apply strict its face. Free Speech Coalition, 535 U.S. at overbreadth analysis. See Bd. of Tr. of the 255, 122 S.Ct. at 1404. Williams asserts that State Univ. of New York v. Fox, 492 U.S. 469, the PROTECT Act prohibition of speech that 477-81, 109 S.Ct. 3028, 3033-35, 106 "reflects the belief, or that is intended to cause L.Ed.2d 388 (1989). Instead, we determine another to believe" that materials contain whether the government has narrowly tailored illegal child pornography is no different than any content-based regulation on protected the CPPA's prohibition of images that speech, that is neither misleading nor related "appear to be" or "convey the impression" of to unlawful activities, to achieve its desired minors engaged in sexually explicit conduct legitimate objectives. Central Hudson Gas & that was struck down as overbroad in Free Elec. Corp. v. Public Serv. Comm'n of New Speech Coalition. York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under this analysis, the We begin our analysis with the recognition government may prohibit completely the that subsections (i) and (ii) of the PROTECT advertisement or solicitation of an illegal Act pandering provision capture perfectly product or activity as well as false or what remains clearly restrictable child misleading advertisement because neither is pornography under pre- and post-Free Speech protected speech. See Virginia State Bd. of Coalition Supreme Court jurisprudence: Pharmacy v. Virginia Citizens Consumer obscene simulations of minors engaged in Council, Inc., 425 U.S. 748, 770, 96 S.Ct. sexually explicit conduct and depictions of 1817, 1829-30, 48 L.Ed.2d 346 (1976). If a actual minors engaged in same. As reviewed person possessing or seeking either obscene above, the government may constitutionally synthetic child pornography or "real" child regulate, on interstate commerce grounds, the pornography, offers to sell or buy it, this is transportation and distribution of obscene unlawful commercial activity that the material, even if it is legal to hold privately government may constitutionally proscribe. If (i.e. non-real child pornography), U.S. v. a person does not have obscene or "real" child Orito, 413 U.S. at 141, 93 S.Ct. at 2676, and pornography but offers such things for sale, may outlaw "real" child pornography for all then the offeror is engaged in false or purposes, including private possession. misleading advertising, which the govermnent Osborne v. Ohio, 495 U.S. at 110, 110 S.Ct. may likewise punish. at 1696; Ferber,458 U.S. at 760, 102 S.Ct. at 3359. However, the PROTECT Act If all that the pandering provision stood for

147 was that individuals may not commercially restrictive means to advance the government's offer or solicit illegal child pornography nor compelling interest or instead sweeps in a falsely advertise non-obscene material as substantial amount of protected speech. though it were, the Government need not United States v. Playboy Entm't Group, Inc., show that it has narrowly tailored its 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d restriction because neither of these scenarios 865 (2000). Under this analysis, we find the involve protected speech. We observe, language of the provision problematic for however, that false or misleading commercial three reasons. advertising is already addressed under other state and federal laws, which are aimed at First, that pandered child pornography need protecting consumers from fraud. Here, under only be "purported" to fall under the legislation aimed at protecting children, the prohibition of § 2252A(a)(3)(B) means that only person who is harmed by misleading promotional or speech is criminalized even speech, even if it preys on the basest of when the touted materials are clean or non- motives, is the would-be buyer of illegal child existent. . . . In a non-commercial context, pornography, and that individual is scarcely in any promoter-be they a braggart, a position to complain.... exaggerator, or outright liar-who claims to have illegal child pornography materials is a Because the First Amendment allows the criminal punishable by up to twenty years in absolute prohibition of both truthful prison, even if what he or she actually has is a advertising of an illegal product and false video of "Our Gang," a dirty handkerchief, or advertising of any product and because, in the an empty pocket. commercial context, we have before us no challenge to the severity of punishment meted Further, while the commercial advertisement out for such behavior, the pandering provision of an unlawful product or service is not would likely pass our muster as a prohibition constitutionally protected, this feature of the of unprotected forms of commercial speech, if Supreme Court's commercial speech doctrine that were all it proscribed. However, the law does not apply to non-commercial speech. is not limited to commercial exploitation and where the description or advocacy of illegal continues to sweep in non-commercial acts is fully protected unless under the narrow speech. Accordingly, we must move to the circumstances, not applicable here, of question of whether the restriction on such immediate incitement. The First Amendment non-commercial speech is constitutionally plainly protects speech advocating or overbroad. encouraging or approving of otherwise illegal activity, so long as it does not rise to "fighting 2. The PROTECT Act Pandering Provision word" status. See Free Speech Coalition, 535 Continues to Sweep in Protected Non- U.S. at 253, 122 S.Ct. at 1403 (citing Commercial Speech Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (holding Because it is not limited to commercial advocacy of racist violence protected speech but extends also to non-commercial speech)). ... Thus, the non-commercial. non- promotion, presentation, distribution, and inciteful promotion of illegal child solicitation, we must subject the content- pornography, even if repugnant, is protected based restriction of the PROTECT Act speech under the First Amendment. pandering provision to strict scrutiny, determining whether it represents the least Finally, we find particularly objectionable the

148 criminalization of speech that "reflects the seen as child pornography and which non- belief' that materials constitute obscene pedophiles consider innocuous. Amy Adler, synthetic or "real" child pornography. The Perverse Law of Child Pornography, 101 Because no regard is given to the actual Colum. L.Rev. 209, 259-260 (2001). As nature or even the existence of the underlying illustrated in this case, relatively innocent material, liability can be established based candid snapshots of children, such as those purely on promotional speech reflecting the initially exchanged by the defendant Williams deluded belief that real children are depicted and the undercover agent, are also collected in legal child erotica, or on promotional or and used as a medium of exchange. We solicitous speech reflecting that an individual cannot, however, outlaw those legal and finds certain depictions of children lascivious. mainstream materials and we may not outlaw 18 U.S.C. §§ 2252A(a)(3)(B)(ii), the thoughts conjured up by those legal 2256(2)(A)(v). materials.

. . . What exactly constitutes a forbidden Freedom of the mind occupies a highly "lascivious exhibition of the genitals or pubic protected position in our constitutional area" and how that differs from an innocuous heritage. Even when an individual's ideas photograph of a naked child (e.g. a family concern immoral thoughts about images of photograph of a child taking a bath, or an children, the Supreme Court has steadfastly artistic masterpiece portraying a naked child maintained the right to think freely. . . . Free model) is not concrete. 18 U.S.C. § Speech Coalition, 535 U.S. at 253, 122 S.Ct. 2256(2)(A)(v). Generally, courts must at 1403 (finding that the fact that possession determine this with respect to the actual of non-obscene virtual child pornography may depictions themselves. While the pictures cause sexually immoral thoughts about needn't always be "dirty" or even nude children was not enough to justify banning it). depictions to qualify, screening materials The Court reiterated that the concern with through the eyes of a neutral fact finder limits child pornography is "physiological, the potential universe of objectionable emotional, and mental health" of children, images. and thus regulation is permissible only when targeted at the evils of the production process In this case, however, the law does not seek to itself, and not the effect of the material on its attach liability to the materials, but to the eventual viewers. Free Speech Coalition, 535 ideas and images communicated to the viewer U.S. at 253, 122 S.Ct. at 1403. The by those materials. This shifts the focus from PROTECT Act pandering provision misses a community standard to the perverted but that target and, instead, wrongly punishes privately held belief that materials are individuals for the non-inciteful expression of lascivious. Through this lens, virtually all their thoughts and beliefs. Stanley v. depictions of children, whom to pedophiles Georgia, 394 U.S. at 566, 89 S.Ct. at 1249 are highly eroticized sexual objects, are likely (stating that legislators "cannot to draw a deviant response. Many pedophiles constitutionally premise legislation on the collect and are sexually stimulated by non- desirability of controlling a person's private pornographic depictions of children such as thoughts"). However repugnant we may find commercially produced images of children in them, we may not constitutionally suppress a clothing catalogs, television, cinema, defendant's beliefs that simulated depictions newspapers, and magazines--otherwise of children are real or that innocent depictions innocent pictures that are not traditionally of children are salacious.

149 3. The Supreme Court's Decision in Ginzburg Coalition, 535 U.S. at 258, 122 S.Ct. at 1406. Does Not Support Pandering as an Independent Offense We disagree with the district court that Ginzburg supports a prohibition of pandering The Government's central justification for the as a stand-alone crime without regard to the pandering provision, found convincing by the legality, or even to the existence, of the district court, relies on the Supreme Court's pandered material. First, we note that, decision in Ginzburg v. United States, 383 notwithstanding its brief mention by the Court U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), in Free Speech Coalition, there is some for the proposition that an individual may be question as to the continued vitality of the found criminally liable for promoting material Ginzburg pandering rationale. Shortly after as appealing to prurient interests even though Ginzburg was decided, the Supreme Court the material actually being promoted might held in Virginia State Board of Pharmacy v. not fall outside the First Amendment's Virginia Citizens Consumer Council, Inc., protection. We believe that reliance is ill- 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 grounded. (1976), that truthful, non-misleading commercial speech is protected by the First In Ginzburg, erotic publications that were not Amendment, although to a lesser degree than "hard core" pornography. and may not have protected non-commercial speech. The sort of been obscene per se, became the subjects of pandering that caused the publications in conviction because their prurient qualities Ginzburg to be found obscene, in other words, were exploited, or pandered, by the defendant has since gained some First Amendment for commercially sexual purposes. The Court protection. In one of two post-Ginzburg cases found that evidence of the manner in which in the 1970s, a dissent joined by four justices the publications were advertised and mailed states that "Ginzburg cannot survive Virginia "was relevant in determining the ultimate Pharmacy." Splawn v. California, 431 U.S. question of obscenity," and that evidence of 595, 603 n. 2, 97 S.Ct. 1987, 52 L.Ed.2d 606 such pandering on the basis of salacious (1977) (Stevens, J., dissenting). . . . appeal "may support the determination that Consequently, although Ginzburg has not the material is obscene even though in other been overturned, its precedential value is contexts the material would escape such questionable. condemnation." Ginzburg, 383 U.S. at 470, 476, 86 S.Ct. at 947, 950. In Free Speech Even if the Ginzburg pandering rationale Coalition, the Court recognized the limited remains viable, the PROTECT Act pandering scope of the pandering rationale expressed in provision, as discussed above, is not limited Ginzburg: that "in close cases evidence of to the commercial context. In considering the pandering may be probative with respect to CPPA pandering provision at issue in Free the nature of the material in question and thus Speech Coalition, the Court clearly suggested satisfy the [obscenity] test." Free Speech that, even if the Ginzburg pandering rationale Coalition, 535 U.S. at 258, 122 S.Ct. at 1406 remains viable, it would only apply in a the (quoting Ginzburg, 383 U.S. at 474, 86 S.Ct. commercial context. Free Speech Coalirion, at 942). The Court also suggested that 535 U.S. at 258, 122 S.Ct. at 1406 (2002). Ginzburg has no application where, as in the The PROTECT Act pandering provision, like case of the CPPA, "[t]he statute does not the CPPA pandering provision found require that the context be part of an effort at unconstitutional in Free Speech Coalition, commercial exploitation." Free Speech does "not require that the context be part of an

150 effort at 'commercial exploitation."' Free rescue the PROTECT Act pandering Speech Coalition, 535 U.S. at 258, 122 S.Ct. provision from substantial overbreadth. at 1406 (2002). 4. The Protect Act Pandering Provision Is Finally, to the extent that the Ginzburg Not Justified by Legislative Findings pandering rationale remains valid, it lends little constitutional support to the pandering The pandering provision of the PROTECT provision at issue here. With respect to the Act, for reasons we have discussed, is "obscene" virtual or simulated material inconsistent with Miller and Ferber, as described under subsection (i), if the reaffirmed in Free Speech Coalition, and is pandering rationale remains valid, then it not sustainable under Ginzburg. The might be the basis for a court to uphold a Government, however, seeks to justify its conviction under the PROTECT Act for prohibitions in other ways. distributing material of questionable social value that would not be deemed obscene but First, noting the state's compelling interest in for the defendant's promotion of it suggesting protecting children from those who sexually that it was. But if the rationale holds, then this exploit them, Congress relies on Ferber and would be the case under existing obscenity Osborne for the proposition that this interest law and the pandering provision adds nothing extends to stamping out the market for child in that respect. The rationale does not justify a pornography. Congressional Findings (501) prosecution under the PROTECT Act that at (2)-(3). . . . However, Congress has not goes farther than existing obscenity law by adequately explained why the mere pandering attempting to convict a defendant for of otherwise legal material should be distributing material that is clearly not prohibited in the pursuit of this interest. obscene, merely because the defendant pandered it as obscenity. In the PROTECT Act's Conference Report, Congress mentions that "even fraudulent With respect to "real" child pornography as offers to buy or sell unprotected child described under subsection (ii). the Ginzburg pornography help to sustain the illegal market pandering rationale is of no relevance.... for this material." H.R.Rep. No. 108-66, Title V, at 62 (2003). This appears to be a In sum, the Government urges us to read the resurrection of the market-deterrence theory PROTECT Act as writing the Ginzburg advanced by the Government., and rejected by pandering rationale into the law. We note that the Court, in Free Speech Coalition. As the at least one state law concerning obscene Court recognized, the prohibitions of "real" visual depictions of children has succinctly child pornography in Ferber and Osborne done just that. See, e.g., Ala.Code § 13A-12- were upheld on a production-based rationale. 195 (2005). But the Government asks us to The Court in Ferber allowed market stretch that rationale much farther, to support deterrence restrictions because they destroyed pandering as an independent crime rather than the profit motive to exploit real children. only as evidence of the crime of obscenity or Congress has again failed to articulate child pornography. We believe such an specifically how the pandering and interpretation of Ginzburg butts directly solicitation of legal images, even if they are against the holding of Free Speech Coalition promoted or believed to be otherwise, fuels and, accordingly. find that Ginzburg does not the market for illegal images of real children

151 engaging in sexually explicit conduct. The Government urges that we consider this simply an inchoate crime, arguing that only Next, the Government points to the legislative those with specific intent to traffic in illegal findings of the PROTECT Act that articulate child pornography will be ensnared and the difficulties in successful prosecution of noting, for example, that offers to buy or sell child pornography possession cases where illegal drugs can be punished even if no drugs advancements in computer technology allow actually exist. . . Further, the intent element images to be so altered as to cast reasonable only applies to one portion of the provision- doubt on whether they involve real children. promoting material in a manner "that is See Findings 501 at (10)-(13). Congress intended to cause another to believe" it is characterizes the pandering provision as "an illicit-and, to be a violator, one need not important tool for prosecutors to punish true intend to distribute illegal materials, but only child pornographers who for some technical intend that another believe the materials one reason are beyond the reach of the normal has are lascivious. Also, a defendant may be child porn distribution or production statutes." liable for promoting, distributing, or soliciting S.Rep. No. 108-2, Title VIII, at 23 perfectly legal materials that only he or she (2003)(remarks of Sen. Patrick Leahy). . . . personally believes are lascivious. . . . Finally, Without such prosecutorial tools, it argues, with any inchoate offense the government the child pornography market will flourish, must show some substantial movement harming real children. See Findings 501 at toward completing the crime, must prove, in (13). other words, something beyond mere talk. Under the PROTECT Act pandering This argument not only attempts, once again, provision, mere talk is all that is required for to revive the rejected market proliferation liability and that does not square with rationale but also disregards the firmly Supreme Court First Amendment established principle that "[t]he Government jurisprudence. may not suppress lawful speech as the means to suppress unlawful speech." Free Speech In sum, we recognize that Congress has a Coalition, 535 U.S. at 255, 122 S.Ct. at 1404. compelling interest in protecting children and, And when the "technical reason" is that the to that end, may regulate in interstate material being described or exchanged does commerce settings the distribution or not fall within one of the two proscribable solicitation of the materials described in categories-but instead is legal child erotica, subsections (i) (obscene child pornography) innocent pictures of children arousing only in and (ii) ("real" child pornography) of the the minds of certain viewers, or non- PROTECT Act pandering provision. existent-the Government cannot circumvent However, the pandering provision goes much the criminal procedure process. In a non- farther than that. The provision abridges the commercial setting, in which most child freedom to engage in a substantial amount of pornography is discussed and exchanged, lawful speech in relation to its legitimate pandering at most either raises actionable sweep, and the reasons the Government offers suspicion that illegal materials are possessed in support of such limitations have no or is evidentiary of the social merit of justification in the Supreme Court's First questionable materials. The Government must Amendment precedents. Accordingly, we find do its job to determine whether illegal it unconstitutionally overbroad. material is behind the pander.

152 H. Williams's Vagueness Challenge heightened level of clarity and precision is demanded of criminal statutes because their The Government contends that, since the consequences are more severe. Village of written plea agreement references only Hoffman Estates, Inc. v. Flipside, Hoffman Williams's right to appeal his pandering Estates, Inc., 455 U.S. 489, 498, 499, 102 conviction on grounds of overbreadth, he has S.Ct. 1186, 71 L.Ed.2d 362 (1982). waived his vagueness challenge. We disagree. We recognize that vagueness and overbreadth In this case, considering a penal statute that doctrines, although "logically related and both restricts speech and carries harsh similar," are distinct. Kolender v. Lawson, criminal penalties, it is not at all clear what is 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 meant by promoting or soliciting material "in L.Ed.2d 903 (1983). However, plea bargains, a manner that reflects the belief, or that is as we have noted, are like contracts and intended to cause another to believe" that should be interpreted in accord with the touted or desired material contains illegal parties' intent. United States v. Rubbo, 396 child pornography. This language is so vague F.3d 1330, 1334 (11th Cir.2005). . . . The and standardless as to what may not be said record in this case clearly reflects the parties' that the public is left with no objective intent to preserve Williams's constitutional measure to which behavior can be conformed. challenges under both overbreadth and Moreover, the proscription requires a wholly vagueness doctrines. That the written subjective determination by law enforcement memorialization of that agreement omitted the personnel of what promotional or solicitous latter of these related grounds is insufficient speech "reflects the belief' or is "intended to to support waiver. cause another to believe" that material is illegally pornographic. Individual officers are Laws that are insufficiently clear are void for thus endowed with incredibly broad discretion three reasons: (1) to avoid punishing people to define whether a given utterance or writing for behavior that they could not have known contravenes the law's mandates. See City of was illegal; (2) to avoid subjective Chicago v. Morales, 527 U.S. 41, 119 S.Ct. enforcement of the laws based on arbitrary or 1849, 144 L.Ed.2d 67 (1999) (holding discriminatory interpretations by government unconstitutionally vague an anti-loitering officers; and (3) to avoid any chilling effect ordinance, which defined loitering as on the exercise of sensitive First Amendment remaining in place with "no apparent freedoms. Grayned v. City of Rockford. 408 purpose," finding that standard "inherently U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 subjective because its application depends on L.Ed.2d 222 (1972). Thus, to pass whether some purpose is 'apparent' to the constitutional muster, statutes challenged as officer on the scene.") . . . vague must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply it to avoid Even more complex is the determination of arbitrary and discriminatory enforcement. what constitutes presentation in a "manner Kolender, 461 U.S. at 357, 103 S.Ct. at 1858 that is intended to cause another to believe" (1983); Bama Tomato Co. v. U.S. Dept. of that material contains illegal child Agriculture. 112 F.3d 1542 (11th Cir.1997). pornography. Let us consider, for example, an Vagueness concerns are more acute when a email entitled simply "Good pics of kids in law implicates First Amendment rights and a bed." Let us also imagine that the "pics" are

153 actually of toddlers in footie pajamas, sound pandering provision fails to convey the asleep. Sender One is a proud and computer- contours of its restriction with sufficient savvy grandparent. Sender Two is a chronic clarity to permit law-abiding persons to forwarder of cute photos with racy tongue-in- conform to its requirements. Because of this cheek subject lines. Sender Three is a language, the provision is insusceptible of convicted child molester who hopes to trade uniform interpretation and application by for more graphic photos with like-minded those charged with the responsibility of recipients. If what the statute required was a enforcing it. Accordingly, we find it specific intent to traffic in illegal child impermissibly vague. pornography, the identity of the sender and the actual content of the photos would be III. WILLIAMS'S Booker CHALLENGE probative. Senders One and Two would be off the hook while Sender Three may warrant A. Standard of Review further investigation. Where, as here, there is a timely objection, we But again, the pandering provision requires no review a defendant's Booker claim in order to inquiry into the actual nature or even determine whether the error was harmless. existence of the images and provides no United States v. Mathenia, 409 F.3d 1289, affirmative defense that the underlying 1291 (11th Cir.2005). There are two harmless materials are not, in fact, illegal child error standards, one of which applies to pornography. The offense is complete upon Booker constitutional errors, the other to communication "in a manner that," in the Booker statutory errors. Statutory errors are discretionary view of law enforcement, "is subject to the less demanding test that is intended to cause another to believe" that applicable to non-constitutional errors. A materials are illegal child pornography. Here, non-constitutional Booker error is harmless if, the "manner" of presentation, as well as the viewing the proceedings in their entirety. a plainly legal underlying material, are identical court determines that the error did not affect in all three instances. And Sender Two clearly the sentence, or had but very slight effect. intended that his recipients believe, however United States v. Mathenia, 409 F.3d 1289, briefly, that the attached photos were sexually 1291 (11th Cir.2005). If one can say with fair explicit depictions of minors. assurance that the sentence was not substantially swayed by the error, the sentence is due to be affirmed even though there was error. United States v. Mathenia, We again recognize that Congress may 409 F.3d 1289, 1291 (11th Cir.2005). regulate the distribution or solicitation of the Because this is a Booker statutory error case illegal materials described in subsections (i) we will apply that standard. (obscene child pornography) and (ii) ("real" child pornography) of the pandering B. No Reversible Booker Error provision. If that were all the provision did, we would find no constitutional infirmity on Williams was assessed (1) a two-level vagueness grounds. However, the statute is sentence enhancement for use of a computer unnecessarily muddled by the nebulous for transmission, receipt or distribution of "purported material" and "reflects the belief, child pornography (2) a two-level sentence or is intended to cause another to believe" enhancement for possession of child language. Because of this language, the pornography because the pornographic

1 54 material at issue involved minors under age sexual abuse of a real minor retains protection twelve, and (3) a four-level sentence of the First Amendment. We believe the enhancement because the material involved Court's decision in Free Speech Coalition portrayed sadistic or masochistic conduct or leaves Congress ample authority to enact other depictions of violence. Because these legislation that allows the Government to enhancements were applied under a accomplish its legitimate goal of curbing mandatory guidelines scheme, error occurred. child abuse without placing an unacceptably See United States v. Shelton, 400 F.3d 1325, heavy burden on protected speech. Certainly 1331 (11th Cir.2005). However, because Congress took many cues from the Court in Williams admitted to the factual basis for his drafting the legislation at issue in this case. sentence, which included the facts underlying these enhancements, there was no Sixth Given the unique patterns of deviance Amendment Booker error. See United States inherent in those who sexually covet children v. Shelton, 400 F.3d 1325, 1331 (11th and the rapidly advancing technology behind Cir.2005). which they hide, we are not unmindful of the difficulties of striking a balance between We conclude that, viewing the proceedings in Congress's interest in protecting children their entirety, the sentence was not from harm with constitutional guarantees. substantially swayed by the statutory error. However, the infirmities of the PROTECT Williams was sentenced above the bottom of Act pandering provision reflect a persistent the 57 to 71 month guideline range for the disregard of time-honored and possession count, and the district court, constitutionally mandated principles relating exercising its discretion, expressly declined to the Government's regulation of free speech his request for a lower sentence within that and its obligation to provide criminal range. The court also stated that, even if not defendants due process. Because we find the bound by the guidelines, it had doubts that the PROTECT Act pandering provision, 18 sentence would be any lower, and it may have U.S.C. § 2252A(a)(3)(B), both substantially been higher. While the judge declined to issue overbroad and vague. and therefore facially an alternative sentence in anticipation of unconstitutional, we reverse Williams's Blakely's application to the guidelines given conviction under that section. However, the then-settled state of that issue in this because we find no reversible Booker error in circuit, he explained his decision thoroughly his sentencing for possession of illegal child enough that we are confident that he would pornography, we affirm his sentence of 60- not lower the sentence in this case on remand. months imprisonment.

IV CONCLUSION CONVICTION REVERSED AND SENTENCE ON COUNT ONE In the wake of Free Speech Coalition, VACATED; SENTENCE ON COUNT sexually explicit speech regarding children TWO AFFIRMED. that is neither obscene nor the product of

155 "Justices Agree to Revisit Child Pornography Laws"

The New York Times March 27, 2007 Linda Greenhouse

WASHINGTON, March 26-The Supreme Clement said the government had invoked Court agreed Monday to undertake its latest the section at issue "only rarely." effort to define the permissible boundary between free speech and the government's Congress passed the law to respond to a prohibition of child pornography. Supreme Court decision the year before that invalidated the Child Pornography The justices agreed to hear a government Prevention Act of 1996. "Protect" is an appeal of a ruling issued last year by the acronym for the statute's formal title, federal appeals court in Atlanta that Prosecutorial Remedies and Other Tools to overturned part of a recent federal law End the Exploitation of Children Today. aimed not only at the sexual exploitation of real children but also at computer-generated The appeals court invalidated a section or enhanced images that help sustain the known as the "pandering" provision, which market for child pornography. makes it a crime to advertise, promote, distribute or solicit "any material or The appeals court, the United States Court purported material in a manner that reflects of Appeals for the 11th Circuit, said that the belief, or that is intended to cause while the statute's goal was one of another to believe, that the material or "extraordinary importance," its prohibition purported material contains" either "an against "pandering" child pornography was obscene visual depiction of a minor too broadly worded and too vague to satisfy engaging in sexually explicit conduct" or the First Amendment. "Congress may not such a visual depiction of an "actual minor." burn the house to roast the pig," the court said. In other words, the government told the Supreme Court, the law allows prosecution In appealing to the Supreme Court. Solicitor of those who "make direct requests to General Paul D. Clement said the provision. receive, or offers to provide, what purports a portion of a 2003 law known as the Protect to be illegal material, regardless of whether Act, was "totally consistent with the the government can prove that such material Constitution" because it was aimed at a form is in fact real child pornography or that it of speech that was not entitled to even exists." The minimum sentence is five constitutional protection. years.

"The court of appeals' misguided The appeals court's decision came in an invalidation of the law undermines appeal brought by a man, Michael Williams, Congress's effort to protect children by who was caught in a federal sting operation eliminating the widespread market in child soliciting and offering child pornography in pornography," the government's appeal said. an Internet chat room. Secret Service agents In another part of the brief, however. Mr. obtain a warrant and searched his home,

156 finding two computer hard drives with empty pocket." images of minors engaged in sexually explicit conduct. Congress's effort in the 2003 law to define the crime precisely was a response to the The appeals court found that the Supreme Court's dissatisfaction with the photographs were "unquestionably" of earlier law, so broadly written, Justice "real" children. so that the case did not raise Anthony M. Kennedy wrote for the a question about the definition of "virtual" majority, that it could have turned a modern child pornography. The problem, the appeals production of "Romeo and Juliet" into a court held, was with the absence of language criminal act. Juliet was supposed to be only in the law that would limit its application to 13, Justice Kennedy noted, so her portrayal commercial transactions. as a young teenager could well be a "visual depiction" of a minor, or one who appeared While commercial promotion of child to be a minor, engaged in sexually explicit pornography would lack constitutional conduct, in violation of the law. protection, the appeals court said, "the non- commercial, non-inciteful promotion of The court will hear the new case, United illegal child pornography, even if repugnant, States v. Williams, No. 06-694, in its next is protected speech under the First term. Amendment." Also on Monday, the court declined to Without such a limitation, the court revisit the question of the circumstances continued, the law could apply to "any under which courts can award visiting rights promoter-be they a braggart, exaggerator, to grandparents over the objection of a or outright liar-who claims to have illegal child's parents. It let stand a decision by the pornography," and could subject such a Pennsylvania Supreme Court that upheld a person to up to 20 years in prison, even if visiting order without requiring proof that the material was nothing more than "a video denying visits would harm the child. The of 'Our Gang,' a dirty handkerchief, or an case was Fausey v. Hiller, No. 06-863.

157 "Court First to Strike Pandering Provision of Child Porn Law"

The Recorder April 11, 2006 Alyson M. Palmer

ATLANTA-Congress' quick fix to a child legislation was Congress' response to a 2002 pornography law struck down in 2002 by the U.S. Supreme Court decision that struck U.S. Supreme Court failed last week before down the prior law. Ashcroft v. Free Speech the Eleventh Circuit U.S. Court of Appeals. Coalition, 535 U.S. 234 (2002).

The April 6 decision, the first by a federal That decision, which split the court 6-3, appeals court declaring a particular struck down as overbroad an aspect of the provision of the law unconstitutional, may prior statute that included within the have minimal practical impact given the definition of child pornography computer- relatively rare use of that provision. generated images that appeared to show minors engaged in sexually explicit conduct. But it is significant to First Amendment Writing for the majority, Justice Anthony jurisprudence and will no doubt give Kennedy also found fault with the prior prosecutors and legislators headaches. "pandering" provision to the extent that it included within its child pornography The provision struck made it a felony- definition material promoted in such a way carrying at least five years of prison time- that it "conveys the impression" that it to promote, distribute or solicit material in a shows a minor engaged in sexually explicit way intended to cause others to believe that conduct. the material is legally obscene or depicts a minor engaging in sexually explicit conduct. Reavley's Eleventh Circuit opinion quoted fears expressed by Sen. Patrick Leahy, A three-judge panel found the provision D-Vt., during the debate over Congress' against promotion of such material vague attempt to fix the law after it was struck and overbroad because, in essence, it could down by the high court. criminalize legal speech. The panel's opinion was written by Senior Judge Leahy, the ranking Democrat on the Senate Thomas Reavley, visiting from the Fifth Judiciary Committee, said the proposed Circuit, and joined by Eleventh Circuit changes "federally criminalize[s] talking Judges Rosemary Barkett and Charles dirty over the Internet or the telephone when Wilson. the person never possesses any material at all." The provision struck by the court- sometimes called the "pandering" "In a non-commercial context," wrote provision-is part of the federal legislation Reaviey, "any promoter-be they a known as the Prosecutorial Remedies and braggart, exaggerator or outright liar-who Other Tools to end the Exploitation of claims to have illegal child pornography Children Today (PROTECT) Act of 2003. materials is a criminal punishable by up to Signed by President Bush in 2003, the twenty years in pison, even if what he or

158 she actually has is a video of 'Our Gang,' a Attorney R. Alexander Acosta, said Friday dirty handkerchief or an empty pocket." that prosecutors would make a determination whether to seek further The provision is overbroad, the judge added, review of the Eleventh Circuit panel's also because criminal liability under the decision soon but would have no further provision could be based on the "perverted comment. but privately held belief' that certain materials are "lascivious." Most pedophiles The government's Eleventh Circuit brief find "virtually all" depictions of children argued that the pandering provision of the erotic, said the court, but "we may not PROTECT Act was significantly different outlaw the thoughts conjured up by those from the law struck down by the Supreme legal materials." Court in 2002 and "does not prohibit a substantial amount of protected speech in Jeffrey Douglas, chair of the board of the relation to the statute's plainly legitimate Free Speech Coalition, a trade organization sweep." for adult entertainment businesses that challenged the old law before the Supreme Ironically, the appellate decision may be of Court, said that the Eleventh Circuit's no practical help to the party who raised the decision was "inevitable" following the challenge to the law. 2002 ruling. According to the decision, federal "While everyone abhors the idea of sexually prosecutors in Miami charged Michael exploiting children," said Douglas, also a Williams after he traded messages with an criminal defense attorney in Santa Monica, undercover agent posing as a minor in a chat "there is a legal difference between an idea room. Federal agents seized images of and an act, and Congress attempted to minors engaging in sexually explicit conduct criminalize the idea again, and the Supreme from Williams' hard drive, the decision Court and now the Eleventh Circuit has added. essentially said you can't do that." In addition to receiving a five-year sentence As an example of what the Eleventh on his pandering conviction, Williams also Circuit's decision means, Douglas noted that received a five-year sentence-to run at the the term "Lolita" is highly suggestive of same time as the other sentence-for child molestation, but the novel by that possession of child pornography. The name may be written without exploiting any appeals court rejected Williams' arguments child. that he was improperly sentenced on the possession count, leaving his five-year "If I were to offer to distribute Lolita sentence intact. material there are law enforcement agents that would line up between here and Atlanta "It's really a pyrrhic victory at this point," to prosecute me because of what that phrase said Luis Guerra, a Miami attorney who or term conveys," he said. "But you can't do represented Williams, adding that he still that." was very pleased with the decision on the pandering provision. Guerra said that his The case came from a federal prosecution in client was considering whether or not to Miami. Alicia Valle, special counsel to U.S. seek a rehearing or review by the Supreme

159 Court on the sentencing ruling. "So I don't really think the case will be that significant in terms of impacting other Guerra said that the attorneys were not First defendants' convictions." Amendment experts but "felt comfortable" handling the matter because "it was so However, Kinsley added that she thought obvious to us that this statute was the decision might call into question the problematic." constitutionality of laws that criminalize an adult soliciting an undercover police officer Jennifer Kinsley, a criminal defense attorney posing as a juvenile for sex. in Cincinnati who handles First Amendment matters, suggested that few defendants may The case is United States v. Williams, 04- be helped directly by Williams' partial 15128 (11th Cir. April 6, 2006). victory.

"[I]t is exceedingly rare that a defendant is Alyson M. Palmer is a reporter with the charged with promotion, since the penalties Fulton County Daily Report, a Recorder for possession are so high and the burden of affiliate based in Atlanta. proof is so low," said Kinsley in an e-mail.

160 "Struggle Continues to Write Laws that Protect Children Online"

The New York Journal May 16, 2006 Stephen V. Treglia

Congress' second attempt to criminalize the appears to be, of a minor engaging in distribution of "virtual child pornography" sexually explicit conduct,"' under 18 USC over the Internet-the Prosecutorial 2256(8)(B). Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 A second CPPA provision, 18 USC (PROTECT Act)-was recently held 2256(8)(D), likewise criminalized "the unconstitutional by the U.S. Court of production or distribution of pornographic Appeals for the Eleventh Circuit in U.S. v. material pandered as child pornography." Williams, _ F3d , 2006 WL 871200 (Fla, 4/6/06). The Free Speech Coalition, described in Ashcroft as "an adult-entertainment trade While not yet having received the public association," filed suit in the Northern attention as an earlier decision in this line of District of California seeking injunctive and jurisprudence, Ashcroft v. Free Speech declaratory relief out of fear the CPPA Coalition, 535 US 234 (2002), Williams would have an adverse effect on the continues the judiciary's trend of making it industry. Their suit claimed the phrases difficult for the legislative branch to find a "appears to be" and "conveys the solution to the conflict between impression" were "overbroad and vague" constitutionally protected speech and the and created a "chilling effect" on the legitimate interests of keeping minors safe production of First Amendment protected from sexual predators. art.

A review of these legislative attempts and The majority in Ashcroft initially observed the federal decisions holding them that these CPPA provisions targeted a unconstitutional will illuminate the "range of sexually explicit images . . that difficulties already encountered by appear to depict minors but were produced lawmakers as well as demonstrate the by means other than using real children, problems that lie ahead for future attempts such as through the use of youthful-looking to resolve this difficult conflict. adults or computer-imaging technology."

The Child Pornography Protection Act of The majority opinion went on to state that 1996 (CPPA) was enacted wvith the intention the broad language of "appears to be" and of creating, as noted by the U.S. Supreme "conveys the impression" could be used to Court in Ashcroft, criminal sanctions against prosecute numerous "mainstream" artistic "not only pornographic images made using endeavors, including movies involving adult actual children, but also 'any visual actors merely playing the role of a minor. depiction. including any photograph, film, video, picture or computer or computer- Justice Kennedy pointed to the paintings of generated image or picture' that 'is, or Gingerich. the photographs of Raffaelli and

161 the films "Traffic," "American Beauty" and items in Osborne v. Ohio, 495 US 103 "Romeo and Juliet" as examples of "virtual (1990). depictions" of sexual activity that could arguably fit within the definition of child In contrast, Justice Kennedy stressed in pornography under 18 USC 2256(8)(B). Ashcroft that while the government attempted to claim 18 U.S.C. 2256(8)(B)'s A careful reading of his opinion, however, prohibition of virtual child pornography was believed to provide a roadmap of protected against harm to real children, "the compliance by those in law enforcement causal link is contingent and indirect." looking to draft new legislation intended to Instead, he noted the "harm does not withstand future First Amendment scrutiny. necessarily follow from the speech, but depends upon some unquantified potential Justice Anthony Kennedy noted that for subsequent criminal acts." The clear "freedom of speech has its limits; it does not implication here is that if Congress could embrace certain categories of speech, establish a more direct "causal link" or some including defamation, incitement, obscenity, "quantifiable potential for subsequent and pornography produced with real criminal acts," future legislation might be children." He remarked that the two CPPA held constitutional. provisions at issue failed to include the four- prong obscenity language standard set forth PROTECT Act in Miller v. California, 413 US 15 (1973) (i.e., "the work, taken as a whole. appeals to In response to Ashcroft, Congress enacted the prurient interest, is patently .offensive in the PROTECT Act, which attempted to light of community standards, and lacks include the suggested solutions in Justice serious literary, artistic, political, or Kennedy s opinion. scientific value"). One would hope that Congress learned the Hence, it appeared that one easy solution for following lessons from Ashcroft in drafting Congress would have been to enact a virtual new legislation: (1) avoid overbroad child pornography statute that included the language, (2) adopt the full three-prong obscenity three-prong standard as an Miller obscenity standard, and (3) adopt element of the offense. Justice Kennedy's specific legislative findings supporting the opinion did, nevertheless, provide a second need for criminalizing virtual child possible method of withstanding pornography. Williams found the PROTECT constitutional attack in the future. Act failed in successfully meeting any of these goals. His opinion analyzed, at some length, how the Court had previously found a valid The defendant in Tilliams was caught in limitation of free speech protection in New one of the commonplace undercover sexual York v. Ferber, 458 US 747 (1982), which predator stings in which a law enforcement held that a state had a substantial interest in officer visits Internet chatrooms. In this protecting real children from harm by case, the defendant, after meeting the criminalizinez the distribution of actual child undercover in a "public" chatroom, engaged pornography. The Court extended this valid the undercover in a private online state interest to the mere possession of such communication.

162 While still participating in a private chat, the that the PROTECT Act's definition of two initially exchanged non-pornographic obscenity used only one of the three prongs depictions of young girls. Next, the of the Miller standard (the "lacking serious defendant told the undercover he had "hard literary, artistic, political or scientific value" core" images of his own daughter, indicating prong). he was willing to trade with the undercover if the latter had similar depictions. At one point in Williams, the court seemed to imply that Congress may regulate After the undercover sent more non- "obscene child pornography," presumably if pornographic pictures, the defendant the entire Miller definition had been utilized, announced in the public chatroom that the but the court found other deficiencies with undercover was "a cop" because the the act. undercover refused to send sexually explicit depictions of children. The undercover For example, the description of what immediately responded by announcing that constitutes distributing child pornography is the defendant was really the "cop." someone who "advertises. promotes, presents, distributes, or solicits through the The defendant fell for this trap by posting a mails, or in interstate or foreign commerce hypertext link in the public chatroom so that by any means, including by computer, any anyone could click on it to access child material or purported material in a manner pornography. The defendant added to this that reflects the belief, or that is intended to link a statement in the chatroom bragging cause another to believe, that material or that he could not be a cop because he was purported material" that fits the definition of willing to post such an "uplink" while the child pornography. undercover would not do the same. The circuit court found such language The defendant was prosecuted for both the objectionable on multiple grounds. First, the possession and the distribution of child use of the term "purported material" could pornography. A plea arrangement was be considered to include someone who worked out so the defendant could admit his claims he is distributing child pornography guilt to both the possession and distribution, when he is sending legal depictions of but still appeal the PROTECT Act children (such as a non-provocatively posed distribution provisions to the Eleventh nude child). Circuit as being unconstitutionally overbroad and vague. This, the court found, criminalizes not the validly objectionable act of the distribution The new, promoting child pornography of the child pornography, but the "speech provisions of the PROTECT Act made it a promoting and soliciting such material." It crime to distribute the visual depiction of noted that the foundation of protected both an "actual minor" and an "obscene speech is the right to openly speak about visual depiction of a minor" engaging in objectionable topics. sexually explicit conduct. So it appeared Congress did link obscenity to virtual child Also problematic were such "muddled" and pornography. "nebulous" phrases as "purported material" and -reflects the belief, or is intended to The problem the circuit found, however, was cause another to believe."

163 The Williams decision concluded its analysis age based on an examination of of the PROTECT Act's constitutionality by developmental characteristics and other remarking that the distribution provisions phvsical traits. But does the law require such "fail to convey the contours of its evidence to sustain a conviction? restrictions with sufficient clarity to permit law-abiding persons to conform to its At least three post-Ashcroft federal decisions requirements." Hence, they are have ruled that juries, on their own, are "insusceptible of uniform interpretation and capable of distinguishing between real and application by those charged with the virtual images, U.S. v. Kimler, 335 F3d 1132 responsibility of enforcing" them and, (10th Cir, 2003); U.S. v. Deaton, 328 F3d therefore, are unconstitutionally vague. 454 (8th Cir, 2003); U.S. v. Hall, 312 F3d 1250 (11th Cir, 2003), cert den., 538 US Williams also appears to subtly suggest 954. there are other weaknesses in the PROTECT Act, without using them as grounds for The leading New York case on reversal. For example, the legislative disseminating indecent material to minors, memorandum supporting the act focused People v. Foley, 94 NY2d 668 (2000), almost exclusively on the technological likewise appears to imply support of a jury's advances in modem computer-generated ability to make a similar determination. images creating virtually indistinguishable depictions of child pornography while Conclusion abandoning other supporting grounds listed in the memorandum. Whether it is the Communication Decency Act of 1996, which was ruled Likewise, the court mentioned other unconstitutional in Reno v. ACLU, 521 US potentially vague words and phrases found 844 (1997), or the Child Online Protection elsewhere in the act, some closely mirroring Act of 1998, found unconstitutional in the CPPA language found objectionable in Ashcroft v. ACLU, 535 US 564 (2002), or Ashcroft, but never specifically ruled on New York's Disseminating Indecent such language being a basis for reversal. Material to Minors in the Second Degree, held unconstitutional in American Library New York Law Association v. Pataki, 969 FSupp 160 (SDNY, 1997), or the CPPA or PROTECT In New York, the Ashcroft and Williams Act provisions cited in this article, decisions are basically a non-issue. The lawmakers continue to struggle with drafting state's child pornography provisions are legislation designed to protect minors online worded to require that the "sexual consistent with First Amendment performance" be done "by a child." protections.

The obvious question then becomes, how Whether the fault lies with imprecise does a prosecutor prove the depicted person legislative draftsmanship or with the engaged in pornographic acts is, in fact, a structural nature of the Internet itself is still child? a bit unclear, although a combination of the two is probably closest to the truth. One way to prove the age of a child would be to call an expert in the approximation of Ultimately, the only real solution might be

164 to retool the Internet with appropriate regulations and supervision of cyberspace as controls, checks and balances imposed from it exists today-just may be impossible. birth. While that seems a daunting task, the development of a "second Internet" has been Stephen V Treglia is an assistant district talked about for the past several years. attorney in Nassau County and chief of the Hopefully, the mistakes in governing the office 's technology crime unit. first one will be minimized with the second because the alternative-a retrofitting of

165 Federal Exp. Corp. v. Holowecki

(06-1322)

Ruling Below: (Holowecki v. FederalExp. Corp., 440 F.3d 558 (2d Cir. 2006), cert granted

_ S. Ct. , 2007 WL 989595 (U.S.), 75 USLW 3540, 75 USLW 3641, 75 USLW 3644 [2007]).

Respondents filed suit under the Age Discrimination in Employment Act ("ADEA") against Federal Express, alleging a pattern of discrimination against older couriers. One of the respondents filed an "intake questionnaire" with the Equal Employment Opportunity Commission ("EEOC") and two others filed charges with the EEOC and received right-to-sue letters in response; the remaining respondents did not file any charges with the EEOC. The District Court dismissed the suit without reaching the merits, finding that none of the fourteen plaintiffs had filed timely or valid charges with the EEOC, but the Second Circuit reversed the dismissal and held in favor of petitioners, allowing eleven of the fourteen original plaintiffs to piggyback on the single complaint of plaintiff Kennedy.

Questions Presented: Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue the Supreme Court has examined but not yet decided, that an "intake questionnaire" submitted to the EEOC may suffice for the charge of discrimination that must be submitted pursuant to the ADEA, even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

FEDERAL EXPRESS CORPORATION Petitioner, Appellant V. Paul HOLOWECKI, et al. Respondent, Appellee

United States Court of Appeals for the Second Circuit

Decided March 8, 2006

[Excerpt: Some footnotes and citations omitted.]

POOLER, Circuit Judge: claiming that FedEx had engaged in a pattern and practice of employment procedures that Appellants, who are all at least 40 years of discriminate based on age, in violation of the age and are currently or were formerly Age Discrimination in Employment Act employed as couriers for appellee Federal ("ADEA"), 29 U.S.C. §§ 621 et seq., the New Express Corporation ("FedEx"). filed an April York State Human Rights Law ("NYHRL"), 30, 2002, complaint on behalf of themselves N.Y. Exec. Law §§ 290 et seq., and the laws and other similarly situated FedEx couriers, of several other states. The United States

166 District Court for the Southern District of BACKGROUND New York (McKenna. J.) dismissed the claims as time-barred, concluding that each This case requires us to consider various time named plaintiff failed to comply with the limits imposed on plaintiffs seeking to sue ADEA s time limit requirements under 29 their employer under the ADEA. Appellants U.S.C. § 626(d). (also referred to as "Holowecki plaintiffs"), residents of several states, filed an April 30, We disagree with the district court's 2002, complaint on behalf of themselves and dismissals of the plaintiffs' claims. other similarly situated FedEx couriers. The Specifically. we hold that plaintiff Patricia complaint alleged, inter alia, that, through Kennedy's Intake Questionnaire and policies initiated in 1994 and 1995-such as accompanying verified affidavit, filed with "Best Practices Pays" ("BPP") and the Equal Employment Opportunity "Minimum Acceptable Performance Commission ("EEOC"), constituted an EEOC Standards" ("MAPS")-and through a pattern "charge" that satisfactorily fulfilled the and practices that continued thereafter, FedEx ADEA's exhaustion requirements even had discriminated based on age. The though the EEOC never notified, or Holowecki plaintiffs contended that BPP, investigated, the employer. Furthermore, we MAPS, and related policies were intended to conclude that Kennedy's EEOC charge was encourage older workers to leave the sufficient to permit the eleven named company before they wished to retire and to plaintiffs that never filed EEOC charges to mask FedEx's efforts to terminate older take advantage of the "single filing" or workers based on age discrimination. "piggybacking" rule and thereby satisfy the ADEA's exhaustion requirements. According to the complaint, for instance, after the initial implementation of the BPP and Finally, with respect to plaintiffs George MAPS, FedEx continued to increase Robertson and Kevin McQuillan, two performance goals and apply these new goals individuals who did individually file in a way that discriminated against older administrative charges and received right-to- couriers..." Over time, however, [FedEx] sue letters. we conclude that the district court treated the goals as the minimum acceptable erred in determining that these plaintiffs did number of stops that older couriers were not file their charges within 300 days after the required to make to retain their positions. ... alleged unlawful practice occurred, as is Older couriers, according to the complaint, required by 29 U.S.C. § 626(d). We remand! were more often "written up" for occasional however, for the district court to decide in the failures.... The complaint alleged a series of first instance whether the complaint. fleshed additional discriminatory practices.... out by Robertson's affidavit, was sufficient to withstand a motion dismiss based on the The district court dismissed the Holowecki ADEA's requirement that a claimant who plaintiffs' complaint without reaching the receives a right-to-sue letter must bring suit in merits, ruling that all fourteen named federal court within 90 days of receipt of the plaintiffs failed to satisfy the ADEA's time letter. See 29 U.S.C. § 626(e). Accordingly. limit requirements, see 29 U.S.C. § 626, and wxe reverse in part, vacate in part. and remand declining to exercise supplemental for further proceedings in accordance with jurisdiction over plaintiffs' state law claims. this opinion. Under 29 U.S.C. § 626(d) ("Section 626(d)"),

167 an aggrieved person must file an EEOC instituted a number of policies and practices charge at least 60 days prior to initiating an that discriminated based on age. It stated, for ADEA suit in federal court. In addition, if the instance, that "as a result of [the Best Practice allegedly discriminatory act occurs in a Pays] policy and procedure changes," FedEx "deferral state," a state that has its own age had "fired and/or constructively terminated" discrimination law and its own age older couriers ' and had otherwise discrimination remedial agency, the charge discriminated against older couriers. must be filed within the earlier of 300 days Moreover, it named several practices, such as after the alleged unlawful practice occurred or FedEx's goals with respect to the number of thirty days after a complainant receives notice stops per hour, that had increasingly gotten of the termination of state law proceedings. It worse since the initiation of the BPP and is undisputed that all of the states relevant to MAPS. this action are deferral states. The district court determined (1) that Unlike Title VII, the ADEA does not require Kennedy's EEOC Intake Questionnaire and an aggrieved party to receive a right-to-sue affidavit was not an EEOC "charge" and letter from the EEOC before filing suit in therefore did not satisfy Section 626(d)'s federal court. However, in the event that the requirement that a claimant file a charge EEOC issues a right-to-sue letter to an ADEA before bringing suit in federal court, and (2) claimant, the claimant must file her federal that Kennedy's May 30, 2002, EEOC charge suit within 90 days after receipt of the letter. form was untimely because it was not filed 60 days prior to filing the April 30, 2002, ADEA While the ADEA's time limit requirements complaint in federal court. See 29 U.S.C. § are subject to equitable modification or 626(d). Appellee does not dispute that estoppel, Dillman v. Combustion Eng'g, Inc., Kennedy's EEOC Intake Questionnaire form 784 F.2d 57, 59 (2d Cir.1986), ADEA time and accompanying affidavit would satisfy the limits "are not to be disregarded by courts out 60 and 300 day time limits set out in 29 of a vague sympathy for particular litigants," U.S.C. § 626(d) if we consider them to be an Baldwin County Welcome Ctr. v. Brown, 466 EEOC charge. In appellee's view, however, U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d the EEOC Intake Questionnaire and 196 (1984). accompanying affidavit do not satisfy Section 626(d) because they are not properly Three of the named Holowecki plaintiffs filed considered to be an EEOC "charge." charges with the EEOC or an authorized state agency (collectively referred to as "EEOC") Plaintiff Robertson, a resident of Illinois, filed before bringing suit in federal court and an EEOC charge on December 1, 2000, and eleven did not. Plaintiff Kennedy, a resident plaintiff McQuillan, a resident of New York, of Florida, filed an EEOC Intake filed an EEOC charge on September 11. 1998. Questionnaire form and accompanying Although there was no question as to whether verified affidavit on December 3, 2001. and these constituted EEOC "charges" or as to an EEOC charge form on May 30, 2002. whether these were filed 60 days prior to the Kennedy did not receive a right-to-sue letter initiation of the April 30, 2002, federal in conjunction with either of these filings. The complaint, the district court found that they verified affidavit, accompanying the Intake failed to meet the Section 626(d) requirement Questionnaire form, consisted of over four that the EEOC charge be filed within 300 pages of text and alleged that FedEx had days after the occurrence of the allegedly

168 discriminatory acts. Appellee argued below discriminatory treatment in the same time that these two plaintiffs, both of whom frame." Snell v. Suffolk County, 782 F.2d received right-to-sue letters from the EEOC, 1094, 1100 (2d Cir.1986). In cases such as failed to satisfy the requirement that they this, when the allegedly discriminatory bring their April 30, 2002, federal suit within activity affects a large group, piggybacking is 90 days of receipt of the letters. See 29 U.S.C. not allowed unless the filed charge provides § 626(e). After McQuillan filed his September "some indication that the grievance affects a 11. 1998, charge, the EEOC issued a right-to- group of individuals defined broadly enough sue letter on June 11. 1999. to include those who seek to piggyback on the claim." Tolliver. 918 F.2d at 1058. Appellee argues that Robertson's right-to-sue letter was received on or about April 25, An individual who has previously filed an 2001, but Robertson states, "under penalty of EEOC charge cannot piggyback onto peijury," that it was received shortly after someone else's EEOC charge. See Levy v. February 7. 2002, and thus satisfies Section United States Gen. Accounting Office, 175 626(e) because it was received within 90 days F.3d 254, 255 (2d Cir.1999) (per curiam); see of the April 30, 2002, federal suit. After also Snell, 782 F.2d at 1100. As noted by Robertson filed his December 1, 2000, charge other Circuit Courts of Appeals, allowing an with the EEOC, providing a Lake Villa, individual who has previously filed a charge Illinois address, the EEOC sent Robertson a to abandon that charge and piggyback onto right-to-sue letter, dated April 25, 2001. the charges of another individual would too According to Robertson's declaration, often frustrate the EEOC's statutorily submitted to the district court in opposition to mandated efforts to resolve an individual appellee's motion to dismiss, he moved from charge through informal conciliation. See, Lake Villa in March of 2001 and requested e.g., Gitlitz v. Compagnie Nationale Air that the United States Postal Service forward France, 129 F.3d 554, 557-58 (11th his mail. The April 25, 2001, right-to-sue Cir.1997).. .. We agree with this analysis. letter, however, somehow did not reach Robertson. In January or February of 2002, The eleven non-filing plaintiffs (also referred Robertson contacted the EEOC because he to as "the piggybacking plaintiffs") present had not heard anything since the filing of his three piggybacking theories on appeal, all of charge. In response, on February 7, 2002, the which the district court rejected. They argue EEOC sent Robertson the April 25. 2001, that they can piggyback onto (1) Kennedy's right-to-sue letter. December 3. 2001, EEOC Intake Questionnaire and accompanying affidavit or According to the record, eleven of the (2) Robertson's December 1, 2000, EEOC Holowecki named plaintiffs never filed charge, both of which, in their view, satisfy anything approximating an EEOC charge. the ADEA's time limit requirements. These non-filing plaintiffs claimed that their Additionally, the piggybacking plaintiffs suit nonetheless did satisfy ADEA time limit contend that they can piggyback onto timely requirements because of the single filing, or EEOC charges filed by parties to a separate "piggybacking." rule. According to the Florida lawsuit that was dismissed prior to the piggybacking rule, "where one plaintiff has initiation of this claim, Freeman v. Federal filed a timely EEOC complaint, other non- Express Corp., No. 99-2466 (M.D.Fla. Sept. filing plaintiffs may join in the action if their 25, 2000), aff'd, 2002 WL 187185 (11th Cir. individual claims aris[e] out of similar Jan.14, 2002). because the charges filed by

169 those individuals put the EEOC and FedEx on agree on both accounts and reverse the district notice about its allegedly nationwide court's dismissal of these plaintiffs' claims. discriminatory practices. None of the Freeman plaintiffs are parties to the A. Meaning of EEOC "Charge" Holowecki suit. None of the Holowecki named plaintiffs were parties to the Florida In order to decide whether Kennedy's EEOC lawsuit, although some of them Intake Questionnaire and accompanying unsuccessfully tried to join in an amended affidavit constitutes an EEOC charge we first Freeman complaint that the Florida district turn to the meaning of the statutory term court dismissed as moot. See Bost v. Federal "charge." The ADEA requires the filing of a Express Corp., 372 F.3d 1233, 1236-37 (11th timely charge with the EEOC but does not Cir.2004). define the term "charge." See 29 U.S.C. § 626(d). The EEOC has established DISCUSSION interpreting regulations that specify the requisite information that must appear in a We construe the district court's ruling as a "charge." See 29 C.F.R. §§ 1626.3, 1626.6, dismissal for failure to state a claim under 1626.8. The required content is minimal. For Federal Rule of Civil Procedure 12(b)(6) instance, a charge "is sufficient" when the rather than a dismissal for lack of jurisdiction EEOC receives "a . . . writing" (or under Federal Rule of Civil Procedure information that an EEOC employee reduces 12(b)(1). Rule 12(b)(1) does not apply to a writing) from the person making the because the ADEA's time limits, which are charge that names the employer and generally subject to equitable modification, are not describes the allegedly discriminatory acts. jurisdictional in nature. See Dillman, 784 F.2d See id. § 1626.8(b) (citing id. § 1626.6). at 59.... According to the regulations, a charge also "should contain," but is not required to In reviewing the Rule 12(b)(6) ruling, it is contain, other information such as the full proper for this court to consider the plaintiffs contact information for the employer and the relevant filings with the EEOC and the individual filing the charge, and a "clear and declaration that Robertson submitted to the concise statement of the facts, including district court..... pertinent dates, constituting the alleged unlawful employment practices." See id. § I. Kennedy's EEOC Intake Questionnaire 1626.8(a)(l)-(5). and Affidavit Some Circuits have imposed an additional Both Kennedy and the piggybacking plaintiffs requirement, the "manifest intent" rule, that is argue that, based on the circumstances of this not explicitly stated in the statute or case, Kennedy's EEOC Intake Questionnaire interpreting regulations. According to these and accompanying affidavit constitute an courts, for a written submission to the EEOC EEOC "charge." Accordingly. they contend, to constitute a "charge," it must manifest an it is timely in accordance with 29 U.S.C. § individual's intent to have the agency initiate 626(d) because it is a "charge" that satisfies its investigatory and conciliatory processes. both the 60 day and 300 day time limits. The An oft-cited proposition of the Third Circuit piggybacking plaintiffs further argue that the is that "[i]n order to constitute a charge that scope of Kennedy's charge is sufficient to satisfies the requirement of section 626(d), incorporate their age discrimination claims, notice to the EEOC must be of a kind that thereby permitting them to piggyback. We would convince a reasonable person that the

170 grievant has manifested an intent to activate fails to follow through with notifying the the Act's machinery." Bihler v. Singer Co., employer and attempting to resolve the matter 710 F.2d 96, 99 (3d Cir.1983); see Wilkerson through "conciliation, conference, and v. Grinnell Corp., 270 F.3d 1314, 1319 (11th persuasion." 29 U.S.C. § 626(b). To require Cir.2001); Steffen v. Meridian Life Ins. Co., this would be to hold individuals accountable 859 F.2d 534, 542 (7th Cir.1988). for the failings of the agency. Moreover, we see no reason to require that the EEOC have We agree with this proposition and hold that a provided misleading information to a writing submitted to the EEOC containing the complainant about the status of her charge. information required by EEOC interpreting Regardless of what the EEOC communicates regulations is an EEOC "charge" for purposes or fails to communicate to a party, a written of Section 626, only when the writing filing that complies with the ADEA and demonstrates that an individual seeks to contains the information required by EEOC activate the administrative investigatory and interpreting regulations is an EEOC "charge" conciliatory process. We also agree that as long as it demonstrates a party's intent to "notice to the EEOC must be of a kind that activate the administrative process. would convince a reasonable person that the grievant has manifested an intent to activate This Court has recognized, in the ADEA the Act's machinery." Bihier. 710 F.2d at 99. context, that it is not required that the EEOC has actually taken action before an individual, This interpretation of the meaning of "charge" who otherwise satisfactorily filed a charge, recognizes that providing the EEOC with an can bring suit in federal court. Hodge, 157 opportunity "to eliminate the discriminatory F.3d at 167-68. In Hodge, we allowed a practice or practices alleged, and to effect federal ADEA suit to go forward even though voluntary compliance with the requirements the EEOC had not terminated its of [the ADEA] through informal methods of investigation. In that case, the investigation of conciliation, conference, and persuasion," 29 the charge had been held up due to the U.S.C. § 626(b). is "an essential element" of withdrawal of plaintiff's initial administrative the ADEA's statutory scheme, cf. Francis v. charge pursuant to an agreement that was later City of New York, 235 F.3d 763, 768 (2d deemed invalid. Id. We concluded that Cir.2000). Receiving a charge provides the plaintiff need not re-file a charge or seek to EEOC with an opportunity to notify the reopen the administrative proceedings. Id. prospective defendants and seek conciliation. Since the EEOC had the charge for more than See Tolliver. 918 F.2d at 105-: see also the "60-day period that Congress established Dezaio v. Port Auth. of N.Y & N.J.. 205 F.3d for the EEOC to investigate or attempt 62. 65 (2d Cir.2000). Without notice from the conciliation before the ADEA plaintiff is complainant, the EEOC is not provided with allowed to file suit in court." we saw "no an opportunity to fulfill this statutory purpose. statutory purpose to be served by a refiling or See Schroeder v. Copley Newspaper. 879 F.2d reopening requirement, the effect of which 266. 269 (7th Cir.1989). would be the imposition of additional delays, including another 60-day waiting period." Id. While we fully recognize that administrative at 168. We cited Bihler, 710 F.2d at 99 n. 7, exhaustion is an important aspect of the for the proposition that "[s]uch a holding ADEA-k. if an individual satisfactorily notifies would establish a prerequisite to suit beyond a the EEOC of her charge. she is not foreclosed prospective plaintiffs control and therefore from federal suit merely because the EEOC would be contrary to the spirit and purpose of

171 the Act." Hodge, 157 F.3d at 168. This Moreover, the questionnaire form and reasoning equally applies when an individual accompanying four-page verified affidavit, has manifested her intent to activate the were a "writing" that named the employer and administrative process. A complainant should generally described the alleged discriminatory not be held accountable if the EEOC fails to act, as is required by 29 C.F.R. §§ 1626.6 and follow through after that complainant has 1626.8(b). The affidavit detailed numerous provided written notice to the EEOC "that instances of alleged discrimination, such as would convince a reasonable person" that she FedEx's implementation of various aspects of intends "to activate the Act's machinery," the "Best Practices Pays" and "Minimum Bihler, 710 F.2d at 99. Acceptable Performance Standards" programs.... B. Kennedy's EEOC Questionnaire as EEOC Charge Second, the content of the questionnaire evidenced Kennedy's intent to activate the Now that we have described the requirements administrative process. The forceful tone and for an EEOC "charge" we - turn to the content of the affidavit should have alerted particular circumstances of this case. the EEOC that the filing was meant to be an Kennedy filed her EEOC Intake EEOC "charge." For instance, the affidavit Questionnaire and accompanying affidavit states that, in years past, Kennedy has ("questionnaire") with the EEOC on "threatened to stand up for [her] rights" but December 3, 2001, more than 60 days prior to that "[i]n the past several months" she had initiating this suit on April 30, 2002, and ''come to realize that by doing nothing" she alleged discriminatory acts that occurred had allowed FedEx to continue its within 300 days of the filing of the discriminatory practices against her. As questionnaire. See 29 U.S.C. § 626(d). The further indication that Kennedy intended to relevant question on appeal is whether this activate the administrative process, by otherwise timely filing with the EEOC checking the "consent" box on the constituted a "charge." We conclude that questionnaire form, Kennedy consented to the Kennedy's questionnaire constituted an disclosure of her identity to the employer that EEOC "charge" because (1) its content allegedly discriminated against her. This satisfied the statutory and regulatory demonstrates Kennedy's desire to move the requirements for what content must be investigatory and conciliatory process included in a charge, and (2) the questionnaire forward. Moreover, the EEOC form, on which communicated Kennedy's intent to activate Kennedy submitted her affidavit, itself the EEOC's administrative process. indicated that the case was currently "open," also suggested that her filing would be First, Kennedy's questionnaire satisfies the sufficient to initiate the administrative EEOC's interpreting regulations specifying process. Finally, and perhaps most tellingly, the required content that must appear in a the affidavit unambiguously states, "[p]lease "charge." See 29 C.F.R. §§ 1626.3, 1626.6, force Federal Express to end their age 1626.8(b). By stating that FedEx was discrimination plan so we can finish out our discriminating against her and others because careers absent the unfairness and hostile work of their age, Kennedy's questionnaire environment created within their application certainly alleged that the defendant had of Best Practice Pays/High-Velocity Culture engaged in "actions in violation of the Act," Change." In light of these facts, we conclude as is required by 29 C.F.R. § 1626.3. that Kennedy provided written notice to the

172 EEOC "that would convince a reasonable that the Best Practice Pays policy "has person" that Kennedy intended "to activate systematically targeted myself and others." the Act's machinery," see Bihler, 710 F.2d at [A. 158] Moreover, it stated that 99. The EEOC erred by failing to act in ''management has continually picked at me response to Kennedy's manifested intent. and other older couriers emotionally and financially by changing our 'start times"' and FedEx argues that the fact that Kennedy later that Kennedy knew she was "not alone" filled out an actual EEOC charge form because "many older couriers" shared her indicates that her earlier intention was not to "doubts and fears." Kennedy concluded by file a "charge." Some courts have followed stating that FedEx must be forced to stop its this logic to some extent. See Bost, 372 F.3d discriminatory policies so that "we can finish at 1241; Diez v. Minnesota Mining & Mfg. out our careers" absent discriminatory Co., 88 F.3d 672, 677 (8th Cir.1996). There is practices. nothing in the record, however, that indicates that Kennedy, by also filing a charge form, Because we agree that the piggybacking was doing anything more than supplementing plaintiffs can piggyback onto Kennedy's her earlier charge., or acting out of a surfeit of charge, there is no reason for this court to caution. Therefore, based on the address the two other piggybacking theories circumstances of this case, we conclude that presented on appeal. Therefore, we are left the content of Kennedy's questionnaire only to deal with the two remaining named sufficiently demonstrated her intent to plaintiffs who individually filed activate the administrative process and her administrative charges with the EEOC. later filing of an EEOC charge form does not compel us to find otherwise. II. Robertson's EEOC Charge

Having established that the questionnaire in It is undisputed that Robertson's charge was this case was a "charge," we turn to the filed more than 60 days prior to the initiation piggybacking plaintiffs' theory that they can of the Holowecki suit. The district court held, use Kennedy's charge to satisfy the ADEA's however, that the Robertson charge was time limit requirements because Kennedy's nonetheless untimely under Section 626(d) affidavit identified discriminatory treatment because it was filed more than 300 days after that is similar to the acts described in the the implementation of the allegedly complaint and alleges that a large group of discriminatory policies alleged in the workers have experienced similar complaint. Specifically, the district court discrimination. See Tolliver, 918 F.2d at found the charge untimely because it was 1056-58. We agree with this theory. submitted "over six years after plaintiffs claim the policies were implemented." Like the Holowecki complaint, Kennedy's Appellee also challenges the Robertson questionnaire described the allegedly charge on an additional timeliness ground not discriminatory policies, such as the Best specifically addressed in the district court's Practices Pays. Minimum Acceptable opinion, arguing that Robertson did not file Performance Standards, and other suit in federal court within 90 days of his discriminatory practices, in detail. Kennedy's receipt of a right-to-sue letter. in violation of questionnaire also provided notice that the Section 626(e). We find that, if we accept the policies were affecting a wide range of FedEx allegations in the complaint as true, employees. The affidavit stated, for instance, Robertson's charge was not filed more than

173 300 days after the implementation of the filed suit within 90 days of receiving the discriminatory policies alleged, and we right-to-sue letter. therefore vacate the district court's dismissal of his claim on that basis. However, because III. McQuillan's EEOC Charge it was not reached below, we remand for the district court to address whether Robertson's As with Robertson, we disagree with the suit was untimely because it was not filed district court's determination that McQuillan within 90 days of receiving the right-to-sue failed to file within 300 days after the alleged letter. unlawful practice occurred. McQuillan's charge, which was signed on September 11, Robertson's charge unambiguously included 1998, challenges his termination from references to allegedly discriminatory employment, which occurred on March 31, practices that took place within the 300-day 1998. There is no doubt that the charge period and did not even mention any described acts that allegedly occurred within particular FedEx policies or acts that were the required 300-day period. Because we initiated more than 300 days before the filing vacate the district court's dismissal of of the charge. Instead Robertson's January 2, McQuillan's claim on this ground, we remand 2001, charge alleged that FedEx refused to for the district court to consider in the first allow Robertson to take accrued leave in instance appellee's argument that August 2000, and terminated him on McQuillan's suit was not filed within 90 days September 8, 2000, based on age and of receiving the right-to-sue letter. disability discrimination. Both of these acts occurred less than 300 days before Robertson CONCLUSION filed his January 2, 2001, charge. The district court's reference to alleged discriminatory The judgment of the District Court is acts that occurred outside the 300-day period REVERSED with respect to all of the named is simply a misreading of the allegations in plaintiffs, except Robertson and McQuillan. the complaint. We therefore vacate the district The District Court's dismissal of Robertson's court's dismissal on the basis that Robertson's and McQuillan s claims is VACATED. The charge was untimely, and remand for the case is REMANDED for further proceedings district court to consider whether Robertson consistent with this opinion.

174 "FedEx Case Goes to Supreme Court-Justices Will Hear Discrimination Suit in October"

Associated Press June 5, 2007

WASHINGTON-The Supreme Court said of discrimination, investigate the charges Monday that it will consider [in Federal and seek to resolve them before a suit is Express Corporation i'. Holowecki] whether filed, the company said. an a,-e discrimination lawsuit against FedEx Corp. can proceed. The plaintiffs respond that a form Kennedy filed with the EEOC in December 2001 At issue is whether a group of 14 FedEx included the information necessary to employees, led by Patricia Kennedy and comply with that law, and that the suit she Paul Holowecki, followed proper procedures and her colleagues filed in April 2002. in suing FedEx for age discrimination. should be allowed to proceed.

The Memphis-based company is arguing A district court dismissed the case, but the that the suit should be dismissed because U.S. Second Circuit Court of Appeals, based Kennedy did not file a formal charge in New York City, ruled in March 2006, that alleging age discrimination with the Equal the case should be allowed to proceed. The Employment Opportunity Commission until court found that the EEOC's failure to after she sued FedEx. The other employees follow through on Kennedy's complaint and joined Kennedy's complaint. notify FedEx should not preclude the plaintiffs' right to sue. Federal law requires plaintiffs to file a complaint with the EEOC and wait 60 days The justices won't hear arguments in the before they sue an employer, FedEx says. dispute until the Supreme Court's next term. The law is intended to give the EEOC the which begins in October. opportunity to notify the company accused

175 "2nd Circuit Rules Filing of EEOC Questionnaire Satisfied ADEA Exhaustion Requirement"

Lawyers Weekly USA March 27, 2006 Lawyers Weekly USA Staff

An employee satisfied the Age the EEOC containing the information Discrimination in Employment Act's required by EEOC interpreting regulations is exhaustion requirement by filing an intake an EEOC 'charge' . . . when the writing questionnaire with the EEOC, the 2nd demonstrates that an individual seeks to Circuit has ruled [in Federal Express activate the administrative investigatory and Corporation v. Holowecki]. conciliatory process."

The employee, along with 11 other Furthermore, "if an individual satisfactorily plaintiffs, brought suit alleging that her notifies the EEOC of her charge, she is not employer engaged in a pattern and practice foreclosed from federal suit merely because of employment procedures that the EEOC fails to follow through with discriminated on the basis of age. A judge notifying the employer and attempting to dismissed the complaint on the ground that resolve the matter through 'conciliation, the plaintiffs did not satisfy the ADEA's conference, and persuasion."' To impose time limit requirements. such a requirement, the court reasoned, "would be to hold individuals accountable But the 2nd Circuit reversed, holding that for the failings of the agency." one employee's EEOC intake questionnaire and accompanying verified affidavit Here, the court said that the other plaintiffs, "constituted an EEOC 'charge' that who never filed EEOC charges, could "take satisfactorily fulfilled the ADEA-s advantage of the 'single filing' or exhaustion requirements even though the 'piggybacking' rule and thereby satisfy the EEDOC never notified, or investigated, the ADA's exhaustion requirements" because employer." the affidavit outlined similar discrimination experienced by a large group of workers. The court stated that "a writing submitted to

176 Bd. of Educ. of City of N. Y. v. Tom F.

(06-637)

Ruling Below: (Bd. ofEduc. of City of N. Y v. Tom F., 193 F. App'x 26, cert granted 127 S. Ct. 1393, 167 L. Ed. 2d 158, 75 U.S.L.W. 3452, 75 U.S.L.W. 3456 [2007]).

Gilbert F. had attended a private school in New York since Kindergarten that offered special education services. In 1999, the Board of Education conducted its annual review and determined that Gilbert was still in need of special education and placed him at a public school program with a teacher to student ratio of 15:1. Gilbert's father, Tom F., kept him at the private school where the classroom size was 8:1. In 2000, Tom F. applied to the board for reimbursement of education expenses. Although local and state administrative bodies determined that Tom F. should be reimbursed, the school district refused to pay, claiming that the Individuals with Disabilities Education Act (IDEA) precluded the father from reimbursement, because Gilbert had never attended a public institution. The school district filed suit in the Southern District of New York to overturn the state's determination that the school district owed reimbursement. The District Court Judge overturned the decision, holding that the IDEA did bar reimbursement in this instance. However, the Second Circuit Court of Appeal, in a summary order, reversed that determination and remanded the matter for further proceedings in light of its decision in Frank G. v. Bd. of Educ., which held that the IDEA did not preclude reimbursement when a student had not previously received special education and related services.

Question Presented: Whether the IDEA permits tuition reimbursement where a child has not previously received special education from a public agency.

BOARD OF EDUCATION of the CITY SCHOOL DISTRICT of the CITY OF NEW YORK, Appellee, V. TOM F. on behalf of GILBERT F., a minor child, Appellant

United States Court of Appeals for the Second Circuit

Decided August 9, 2006

[Facts: Tom F.'s son, Gilbert, has attended a with a teacher to student ratio of 15:1. Tom private school since Kindergarten. The F. chose to keep his son in the private school district's Committee on Special school, where the class size was 8:1. Tom Education (CSE), conducted its annual F. then sought reimbursement for the cost of review in 1999 and determined that Gilbert tuition. An Impartial Hearing Officer (IHO) should remain classified as learning ordered the school board to reimburse Tom disabled. CSE proposed placement in a F. The school board appealed that public school special education classroom determination to the State Education

177 Department State Review Officer (SRO),. SUMMARY ORDER who affirmed the IHO's determination. The school board filed suit in the Southern UPON DUE CONSIDERATION, IT IS District of New York. The District Judge HEREBY ORDERED, ADJUDGED AND held that the IDEA precluded DECREED that the judgment of district reimbursement, since Gilbert had never court be, and it hereby is, VACATED and received special education from a public REMANDED for further proceedings in school before his placement in a private light of this Court's decision in Frank G. v. institution. Tom F. now appeals that Board of Education of Hyde Park, 459 F.3d judgment.] 356 (2d Cir. 2006).

FRANK G. and Dianne G., Parents of a Disabled Student, Anthony G., Plaintiffs-Appellees, N1. BOARD OF EDUCATION OF HYDE PARK, Central School District, Defendant-Appellant.

United States Court of Appeals for the Second Circuit

Decided July 27, 2006

[Excerpt: Some citations omitted.]

KORMAN. District Judge: child to receive educational benefits."' Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998).

DISCUSSION The key element of the IDEA is the development of an IEP for each handicapped Congress enacted the IDEA to promote the child, which includes "a comprehensive education of children with disabilities, "to statement of the educational needs of a ensure that all children with disabilities have handicapped child and the specially available to them a free appropriate public designed instruction and related services to education that emphasizes special education be employed to meet those needs." Sch. and related services designed to meet their Conm. of Burlington v. Dep't of Educ., 471 unique needs [and] . . . to ensure that the U.S. 359, 368, 105 S. Ct. 1996 (1985). The rights of children with disabilities and IEP is collaboratively developed by the parents of such children are protected." 20 parents of the child, educators, and other U.S.C. § 1400(d)(1). A free appropriate specialists.... public education "must include 'special education and related services' tailored to If a state fails in its obligation to provide a meet the unique needs of a particular child, free appropriate public education to a and be 'reasonably calculated to enable the handicapped child, the parents may enroll

178 the child in a private school and seek enable a child to receive an educational retroactive reimbursement for the cost of the benefit, it must be "likely to produce private school from the state. In progress, not regression." Id. at 130. Courts determining whether parents are entitled to must, therefore, "examine the record for any reimbursement, the Supreme Court has objective evidence' indicating whether the established a two pronged test: (1) was the child was likely to make progress or regress IEP proposed by the school district under the proposed plan." Id. Thus, "in the inappropriate; (2) was the private placement regular classrooms of a public school appropriate to the child's needs. See system, the achievement of passing marks Burlington, 471 U.S. at 370, 105 S. Ct. and regular advancement from grade to 1996. Moreover, because the authority to grade will be one important factor in grant reimbursement is discretionary, determining educational benefit." Rowley, "equitable considerations [relating to the 458 U.S. at 207 n. 28, 102 S. Ct. 3034. reasonableness of the action taken by the Although it is more difficult to assess the parents] are relevant in fashioning relief." significance of grades and regular Burlington, 471 U.S. at 374, 105 S. Ct. advancement outside the context of regular 1996. public classrooms, these factors can still be helpful in determining the appropriateness Parents seeking reimbursement for a private of an alternative educational placement. placement bear the burden of demonstrating that the private placement is appropriate, No one factor is necessarily dispositive in even if the proposal in the IEP is determining whether parents' unilateral inappropriate. Nevertheless, parents are not placement is "reasonably calculated to barred from reimbursement where a private enable the child to receive educational school they choose does not meet the IDEA benefits." Rowley., 458 U.S. at 207, 102 S. definition of a free appropriate public Ct. 3034. Grades, test scores, and regular education. . . advancement may constitute evidence that a child is receiving educational benefit, but Subject to the foregoing exceptions, the courts assessing the propriety of a unilateral same considerations and criteria that apply placement consider the totality of the in determining whether the School District's circumstances in determining whether that placement is appropriate should be placement reasonably serves a child's considered in determining the individual needs. To qualify for appropriateness of the parents' placement. reimbursement under the IDEA, parents Ultimately, the issue turns on whether a need not show that a private placement placement-public or private-is furnishes every special service necessary to "reasonably calculated to enable the child to maximize their child's potential. They need receive educational benefits." Bd. ofEduc. v. only demonstrate that the placement Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, provides "educational instruction specially 73 L. Ed. 2d 690 (1982). While the IDEA designed to meet the unique needs of a does not require states to "maximize the handicapped child, supported by such potential of handicapped children," Rowley, services as are necessary to permit the child 458 U.S. at 213, 102 S. Ct. 3034, it must to benefit from instruction." Rowley, 458 provide such children with "meaningful U.S. at 188-89, 102 S. Ct. 3034. access" to education, WJalczak, 142 F.3d at 133. With these goals in mind, we have held With this as a backdrop, we turn to two of that for an IEP to be reasonably calculated to the principal arguments of the School

179 District, namely, that the enrollment of agency would his parents be free unilaterally Anthony at Upton Lake was not appropriate to enroll him at an appropriate private to his needs and that, because Anthony had school and seek reimbursement. Because not previously received special education Anthony never received special education and related services, his parents are not and related services from a public agency entitled to reimbursement even if Upton prior to his enrollment at Upton Lake, the Lake provided him with an appropriate School District argues, his parents are not special education. The School District entitled to reimbursement for his tuition describes the latter argument as its "absolute there. defense." The justification offered for this argument is 1. The Appropriateness of the Upton Lake the assertedly plain language of 20 U.S.C. § Placement 1412(a)(10)(C)(ii) which authorizes reimbursement to the parents of a disabled [The court found that Anthony's placement child, "who previously received special at Upton Lake was appropriate. The court education and related services under the agreed with the IHO, that Anthony benefited authority of a public agency" and who from the smaller class size at Upton Lake. enrolled the child in a private elementary or Evidence included dramatic improvement on secondary school without the consent or the Stanford Achievement Test.] referral of the private agency, "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner 2. The School District's "Absolute Defense" prior to enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii). Because the authority The School District argues that it has "an granted by this subsection applies to the absolute legal defense" to Anthony's reimbursement of parents of disabled parents' claim for reimbursement, even if children, "who previously received special Upton Lake provided him with an education and related services under the appropriate public education. This defense is authority of a public agency," the School based on one of the 1997 amendments to the District argues that it should be read as IDEA, 20 U.S.C. § 1412(a)(10)(C)(ii), implicitly excluding reimbursement to which the School District argues, parents who enrolled their child in a public "established a statutory threshold for parents or private school before the need for a free to recover tuition reimbursement when appropriate special education manifested enrolling their child in a private school itself. "The clear implication of the plain without the consent of the school district." language, however, is that where a child has Specifically, it argues that it may deny not previously received special education reimbursement to the parents of disabled from a public agency, there is no authority students who had enrolled them in regular to reimburse the tuition expense arising from public or private schools prior to the a parent's unilateral placement of the child emergence of the need for a free appropriate in private school." Bd. of Educ. v. Tom F., public education to meet their unique needs. 2005 WL 22866, at *3 (S.D.N.Y. Jan. 4, Only after a learning disabled student 2005). We disagree. enrolled in an inappropriate special education program offered by a public As in all statutory interpretation cases, we

180 begin with the language of the statute. Our The plain language of 20 U.S.C. § first task "is to determine whether the 1412(a)(10)(C)(ii) does not say that tuition language at issue has a plain and reimbursement is only available to parents unambiguous meaning with regard to the whose child had previously received special particular dispute in the case." Barnhart v. education and related services from a public Sigmon Coal Co., Inc., 534 U.S. 438, 450, agency, nor does it say that tuition 122 S. Ct. 941, 151 L. Ed. 2d 908 (2002). reimbursement is not available to parents Our inquiry ends, if the language of the whose child had not previously received statute is unambiguous and "the statutory special education and related services. scheme is coherent and consistent," unless Indeed, the School District's need to rely on the case comes within the category of cases an inference to be drawn from the plain in which the result reached by applying the language, rather than the language itself, plain language is sufficiently absurd to suggests a degree of ambiguity that would override its unambiguous terms. Id. at 450, not necessarily be present if § 459, 122 S. Ct. 941. If, however, the terms 1412(a)(10)(C)(ii) was the only section of of a statute are ambiguous, "we resort to the the IDEA that spoke to the issue of the canons of statutory construction to help remedy that a district court may award. resolve the ambiguity." Gottlieb v. Carnival This section, however, is not the only Corp., 436 F.3d 335, 337 (2d Cir. 2006). section or even the principal section of the Moreover, while the Supreme Court has said IDEA that speaks to this issue. that it "rarely" invokes the need to avoid an absurd result to override the plain language Another section of the IDEA, 20 U.S.C. § of a statute, Barnhart, 534 U.S. at 459, 122 1415(i)(2)(C), authorizes a district court S. Ct. 941, we have long held that where a hearing a challenge to the failure of a local statute is ambiguous, it "should be education agency to provide a free interpreted in a way that avoids absurd appropriate public education to "grant such results." See, e.g., United States v. Dauray, relief as [it] determines is appropriate." In 215 F.3d 257, 264 (2d Cir. 2000). Burlington, the Supreme Court held that the identically worded predecessor of this Whether a statute is plain or ambiguous "is section, 20 U.S.C. § 1415(e)(2) (1984), determined by reference to the language authorized the equitable remedy of tuition itself, the specific context in which that reimbursement to parents who had enrolled language is used, and the broader context of their disabled child in a private school while the statute as a whole." Robinson v. Shell they successfully litigated the issue of the Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, inappropriateness of his public placement. 136 L. Ed. 2d 808 (1997). We have applied Then-Justice Rehnquist explained the a similar approach in determining whether a reasoning of the decision as follows: provision of a contract is ambiguous. Specifically, we have held that "[1]anguage The statute directs the court to is ambiguous when it is capable of more "grant such relief as [it] than one meaning when viewed objectively determines is appropriate." The by a reasonably intelligent person who has ordinary meaning of these words examined the context of the entire integrated confers broad discretion on the agreement." O'Neil v. Retirement Plan for court. The type of relief is not Salaried Employees of RKO, Inc., 37 F.3d further specified, except that it 55. 59 (2d Cir. 1994). must be "appropriate." Absent

181 other reference, the only possible concluded, "the child's right to a free interpretation is that the relief is to appropriate public education, the parents' be "appropriate" in light of the right to participate fully in developing a purpose of the Act. As already proper IEP, and all of the procedural noted, this is principally to provide safeguards would be less than complete. handicapped children with "a free Because Congress undoubtedly did not appropriate public education intend this result, we are confident that by which emphasizes special empowering the court to grant 'appropriate' education and related services relief Congress meant to include retroactive designed to meet their unique reimbursement as an available remedy in a needs." The Act contemplates proper case." Id. that such education will be provided where possible in regular The language of § 1415(e)(2), upon which public schools, with the child Burlington relied, was unchanged by the participating as much as possible 1997 revision of the IDEA and continues to in the same activities as non- provide that the court "shall grant such relief handicapped children, but the Act as the court determines is appropriate." 20 also provides for placement in U.S.C. § 1415(i)(2)(C)(iii). The re- private schools at public expense enactment of § 1415(e)(2). without change, where this is not possible. In a is significant because it can be presumed case where a court determines that that Congress intended to adopt the a private placement desired by the construction given to it by the Supreme parents was proper under the Act Court and made that construction part of the and that an IEP calling for enactment. Whether 20 U.S.C. § placement in a public school was 1412(a)(10)(C)(ii). upon which the School inappropriate, it seems clear District relies, was intended to eliminate the beyond cavil that "appropriate" power of a district court to grant the relief to relief would include a prospective which Anthony's parents would otherwise injunction directing the school be entitled, involves a question to which the officials to develop and implement IDEA does not provide an unambiguous at public expense an IEP placing answer. Indeed, the assertedly "clear the child in a private school. implication of the plain language" of § 1412(a)(10)(C)(ii), Tom F., 2005 WL Prospective relief alone is not a sufficient 22866, at *3, is inconsistent with the clear remedy because the process of obtaining the implication of§ 1412(a)(10)(C)(i), which in relief "is ponderous" and a "final judicial relevant part provides that the obligation of decision on the merits of an IEP will in most a state to offer a free appropriate education instances come a year or more after the "does not require a local educational agency school term covered by that IEP has to pay for the cost of education . . of a child passed." Id. at 370. 105 S. Ct. 1996. Under with a disability at a private school or these circumstances. "it would be an empty facility if that agency made a free victory to have a court tell [parents who. appropriate public education available to the placed their child in a private school] several child and the parents elected to place the years later that they were right," yet deny child in such private school or facility." them reimbursement for the placement. Id. The implication of this subsection is that "If that were the case," Justice Rehnquist reimbursement is available where, as here,

182 the agency failed to make a free public provide a court with numerous avenues for education available to the child. supplementing and narrowing the possible meaning of ambiguous text," Nat'l. Res. Under these circumstances, we think it is Def Council v. Muszynski, 268 F.3d 91, 98 hardly clear from the fact that § (2d Cir. 2001), several rules are particularly 1412(a)(10)(C)(ii) provides for parental helpful in interpreting the statutory reimbursement in one circumstance, that it provision at issue in this case. Where the excludes reimbursement in other terms of a statute are ambiguous, we "focus circumstances. Our conclusion is supported upon the 'broader context' and 'primary by the cases in which a part y relies on the purpose' of the statute." Can. Life Assurance Latin maxim "expressio unius est exclusio Co. v. Converium Ruckversicherung alterius," that the express statutory mention (Deutschland)AG, 335 F.3d 52, 57 (2d Cir. of certain things impliedly excludes others 2003). Ultimately, as Justice Jackson not mentioned. The School District may observed, "courts will construe the details of not invoke this maxim here, because it an act in conformity with its dominating "applies only when the statute identifies a general purpose, will read text in the light of series of two or more terms or things that context and will interpret the text so far as should be understood to go hand in hand, the meaning of the words fairly permits so thus raising the inference that a similar as to carry out in particular cases the unlisted term was deliberately excluded." generally expressed legislative policy." United States v. City of New York, 359 F.3d Joiner, 320 U.S. at 350-51, 64 S. Ct. 120. 83, 98 (2d Cir. 2004). Nevertheless, even where the maxim is otherwise applicable, A second and related rule of statutory the Supreme Court has not treated as construction is that the meaning of an conclusive the inference that Congress ambiguous statutory provision is "clarified intended to exclude that which it did not by the remainder of the statutory scheme ... explicitly include. Instead, it has treated the [when] only one of the permissible maxim "as but an aid to construction." Sec. meanings produces a substantive effect that & Exch. Comm'n v. C.M. Joiner Leasing is compatible with the rest of the law." Corp., 320 U.S. 344, 351 n. 8, 64 S. Ct. 120, United States v. Cleveland Indians Baseball 88 L. Ed. 88 (1943). Indeed, only recently Co., 532 U.S. 200, 217-18, 121 S. Ct. 1433, the Supreme Court held that "[w]e do not 149 L. Ed. 2d 401 (2001). The rule is read the enumeration of one case to exclude particularly applicable here, because the another unless it is fair to suppose that issue involves an ambiguity created by the Congress considered the unnamed tension between different sections of the possibility and meant to say no to it." IDEA rather than the interpretation of an Barnhart v. Peabody Coal Co.. 537 U.S. ambiguous word or phrase. 149, 168, 123 S. Ct. 748, 154 L. Ed. 2d 653 (2003). Applying these rules in the present case, we again observe that the express purpose of the Where, as here, the terms of a statute are IDEA is to ensure that a free appropriate ambiguous, we turn to the "traditional public education is "available to all children canons of statutory construction to resolve with disabilities." Indeed, the IDEA is the the ambiguity." United States v. Peterson, legislative centerpiece of "an ambitious 394 F.3d 98, 105 (2d Cir. 2005). "Although federal effort to promote the education of the canons of statutory interpretation handicapped children." Voluntown, 226

183 F.3d at 62. Its central purpose is to "ensure construction of the § 1412(a)(10)(C)(ii) that that all children with disabilities have the School District urges upon us would available to them a free appropriate public defeat both purposes of the IDEA. The education that emphasizes special education construction we adopt is the only one that and related services designed to meet their "produces a substantive effett that is unique needs and prepare them for further compatible with the rest of the law." education, employment, and independent Cleveland Indians Baseball Co., 532 U.S. at living" and "to ensure that the rights of 217-18, 121 S. Ct. 1433. children with disabilities and parents of such children are protected." 20 U.S.C. § [The court looked at the final rule: to 1400(d)(1)(A)-(B). The IDEA also provides construe an ambiguous statute so as to avoid that a state's eligibility for IDEA funding is absurd results. The court determined that that it make available "free appropriate parents who plan to reject the proposed IEP public education . . . to all children with and subsequently give such notice to the disabilities." 20 U.S.C. § 1412(a)(1). agency, should not be forced to first enroll their children in the proposed placement One of the primary ways in which the IDEA only to pull them back out, in order to seeks to ensure that children with disabilities receive reimbursement. If the proposed receive a free appropriate education is by placement was indeed inappropriate, the conferring broad discretion on the district child's health would be jeopardized.] court to grant relief it deems appropriate to parents of disabled children who opt for a unilateral private placement in cases where the parents' placement is. determined to be [The court noted that its interpretation of the proper and the proposed IEP is determined statute was consistent with that of the to be inadequate. While the manner in which Department of Education's Office of Special the authority is exercised may be guided by Education & Rehabilitative Services, who the various subsections of § 1412(a)(10). had written in a letter their belief that actual which mainly codified existing law in receipt of special education from a public significant respect, Voluntown, 226 F.3d at agency is not a prerequisite for 69 n. 9, nothing in the legislative history (to reimbursement.] be discussed shortly) suggests that Congress sought to alter prior law in a manner that would constrain the power of a district court judge to award reimbursement for a private Contrary to the School District's argument, placement where a free appropriate public the legislative history does not alter our education had not been provided under the conclusion. . . . One of the changes to the circumstances here. IDEA is the addition of 20 U.S.C. § 1412, the purpose of which is explained as The Supreme Court has also instructed us follows: that, because "[t]he [IDEA] was intended to give handicapped children both an Section 612 [20 U.S.C. § 1412] also appropriate education and a free one; it specifies that parents rffay be reimbursed for should not be interpreted to defeat one or the the cost of a private educational placement other of those objectives." Burlington, 471 under certain conditions (i.e., when a due U.S. at 372, 105 S. Ct. 1996. The process hearing officer or judge determines

184 that a public agency had not made a free added). To paraphrase the words of the appropriate public education available to the Supreme Court in an analogous context, child, in a timely manner, prior to the Lindh v. Murphy, 521 U.S. 320, 330, 117 S. parents enrolling the child in that placement Ct. 2059, 138 L. Ed. 2d 481 (1997), "[a] without the public agency's consent). thoughtful Member of the Congress" Previously, the child must have had received reading this explanation for a change in special education and related services under prior law would have very likely concluded the authority of a public agency. (1) that "previously," meaning prior to the proposed amendment to the IDEA, parents At best, this language is an awkward could receive reimbursement for a private paraphrase of the ambiguous statutory placement only if the child received special language which refers to "the parents of a education and related services under the child with a disability, who previously authority of a public agency and (2) that the received special education and related change afforded by the proposed services under the authority of a public amendment would permit funding even agency." Again, the statutory language where the disabled child had not previously does not expressly exclude reimbursement received such special education and related where special education and related services services. This is just the opposite of what have not been previously provided, it only the School District and Tom F. argue is the provides a basis for the argument that clearly expressed intent of Congress. Congress implicitly excluded reimbursement in these circumstances. The district judge The House Report gives no indication that in Tom F., however, read the language in the Congress intended to amend the IDEA's House Report to require explicitly that the rules regarding tuition reimbursement. child "must" have "[p]reviously . . . Indeed, the House Report makes no received" such services as a condition to the reference to prior law on the issue and receipt of reimbursement of his parents. expresses no intent to limit the discretion 2005 WL 22866, at *3. We cannot agree. that Burlington vested in district courts to award reimbursement pursuant to 20 U.S.C. A natural reading of the word "previously," § 1415(i)(2)(B). Nor does it explain the in the context of a report detailing changes reason why it attached the condition at issue to the IDEA, would suggest a reference to here to private placement reimbursement. the IDEA's previous requirements. Thus, Indeed, the House Report is as significant the first sentence of the paragraph for what it does not say as for what it does unequivocally provides reimbursement for a say. private placement "when a due process hearing officer or judge determines that a [The court declined to pay any deference to public agency has not made a free the confusing legislative history, although it appropriate public education available to the declined to accept Justice Scalia's argument child, in a timely manner, prior to the that such history should never be used.] parents enrolling the child in that placement without the public agency's consent." The * * * second sentence explains that "[p]reviously, the child must have received special This brings us to the last leg of the School education and related services under the District's argument-its reliance on authority of a public agency." (emphasis Greenland Sch. Dist. v. Amy N., 358 F.3d

185 150 (1st Cir. 2004). Greenland held only These threshold requirements are that parents of a learning disabled child, who key to this case: tuition unilaterally placed their child in a private reimbursement is only available school without notice to the local for children who have previously educational agency of their child's need for received "special education and special education and without offering the related services" while in the agency an opportunity to prepare an IEP that public school system (or perhaps is appropriate to the child's needs, were not those who at least timely eligible for tuition reimbursement. Id. at requested such services while the 159-60.. .. We do not regard Greenland as child is in public school). There is dispositive. no dispute that neither Katie's parents nor anyone else requested Greenland's discussion of 20 U.S.C. § an evaluation for Katie while she 1412(a)(10)(C)(ii) arose from its perceived was at Greenland. There is also need to deal with the subsection no dispute that she was removed immediately preceding it. Again, this from Greenland for reasons having subsection, § 1412(a)(10)(C)(i), says that a nothing to do with any issue about local education agency is not required to pay whether Katie was receiving [a for the cost of education, including special free appropriate public education]. education and related services, "if that agency made a free public education The Greenland Court then went on to deny available to the child and the parents elected the parents' claim for reimbursement to place the child in such private school or because of their failure to alert the School facility." This language troubled the District of Katie's need for special education Greenland Court, because it implied that and related services while she was in public parents are entitled to reimbursement if a school. We agree completely with the result free appropriate public education was not reached in Greenland. Indeed, we reached provided "where, as here [in Greenland], the the same result in Voluntown, without local education agency was never informed reference to § 1412(a)(10)(C)(ii). while the child was in public school that the child might require special education Our problem with the analysis in Greenland services." 358 F.3d at 159. This "seeming is that it assumes that the ambiguous ambiguity," according to Greenland, language of § 1412(a)(10)(C)(ii) is clear by "disappears when considered in light of the adding the word "only" to the language of section's affirmative requirement that 'the the subsection. Indeed, not a single word of parents of a child with a disability, who the language we have emphasized in the previously received special education and foregoing quote appears in the language of related services under the authority of a the subsection. This includes the suggestion public agency' can receive reimbursement that a child in public school need not have for their unilateral placement of the child in previously received "special education and private school only 'if [a] court or hearing related services;" the child need only have officer finds that the agency had not made a made a request for it while in a public free appropriate public education available school. Simply stated, without discussion to the child in a timely manner prior to that or analysis, Greenland resolved the issue of enrollment."' Id. Greenland continued as the ambiguity of § 1412(a)(10)(C)(ii) by follows: simply amending the language itself.

186 Moreover, it did so in a way, perhaps Unlike the parents of the child in Greenland, inadvertently, that implicitly suggested an who provided "no notice at all to the school arbitrary distinction between children system before Katie's removal from enrolled in a regular public school and Greenland that there was any issue about children enrolled in a regular private school. whether Katie was in need of special Perhaps even more troubling is that none of education," 358 F.3d at 160, in the instant this discussion was necessary, because the case, Anthony's parents provided the School subdivision immediately following § District with ample notice that he was in 1412(a)(10)(C)(ii) makes "clear Congress's need of special education and the School intent that before parents place their child in District evaluated his needs in 2000, when private school, they must at least give notice he was classified as learning disabled, and to the school that special education is at again in 2001 at the request of his parents. issue." Greenland, 358 F.3d at 160 When the School District provided Anthony (emphasis in original). Indeed, the latter with an IEP that Anthony's parents believed subsection expressly states that "[t]he cost of was inappropriate, Anthony's parents gave reimbursement described in clause (ii) may timely notice of their dissatisfaction to the be reduced or denied," if the prescribed School District. Before his enrollment in notice is not given, 20 U.S.C. § Upton Lake, the School District had every 1412(a)(1 0)(C)(iii)(I), or "upon a judicial opportunity to evaluate Anthony in the finding of unreasonableness with respect to regular private school that he was attending actions taken by the parents," 20 U.S.C. § and determine whether "a free appropriate 1412(a)(1 0)(C)(iii)(III). public education can be provided in the public schools." Id. After forcing a hearing Separate and apart from subsection before an IHO, it conceded that it had failed 1412(a)(10)(C)(ii), we have held that it is to provide the free appropriate public inequitable to penmit reimbursement under education required by the IDEA. Section the circumstances in Greenland.As we have 1415(i)(2)(B), as construed by the Supreme observed: "[C]ourts have held uniformly Court in Burlington, provides an ample basis that reimbursement is barred where parents for the award of reimbursement to unilaterally arrange for private educational Anthony's parents. Section services without ever notifying the school 1412(a)(10)(C)(ii) does not prohibit it. board of their dissatisfaction with their child's IEP." M.C, 226 F.3d at 68. Indeed, We have considered carefully the other in Carmel, where the district judge followed arguments raised by the School District and the analysis of Greenland as it related to § conclude that they are without merit. 1412(a)(10)(C)(ii), she also denied Accordingly. the judgment of the district reimbursement on the alternative ground court is AFFIRMED. that "the parents are not equitably entitled to tuition reimbursement." Id. at 407.

187 "'Unilateral' Placements Face Review"

Education Week March 7, 2007

The U.S. Supreme Court has agreed to step Michael Best, the general counsel of the into one of the most contentious and costly New York City district, said that the school areas of special education law by accepting system paid tuition for 2.240 unilateral [New York City Bd. of Ed. v. Tom F.,] a placements during the 2005-06 school year. case involving a parent's efforts to seek He estimates that half those cases involved public reimbursement for a private school students who had never attended New York placement of his child. City public schools. The average tuition cost for unilateral placements that year was The justices in their next term will take up a $29,000, bringing the district's total outlay case in which the New York City school to about $6.5 million for that school year. system is balking at reimbursing a parent for private school tuition when his child never Mr. Best said that the city is willing to pay spent any time in the city's public schools. for private school tuition when it cannot provide an appropriate placement for a In its appeal, the 1.1 million-student New child. But that's just not true in the case York district contends that it offered an accepted by the high court, he maintained. appropriate placement for Gilbert Freston, And the argument that students have to now 17, but that the boy's father, Thomas E. suffer in public school placements "is a Freston, never planned to accept it. The complete red herring," he said. father says that the district failed to meet his son's needs. "That assumes that if a kid has to go to public school to get special education, it's The Supreme Court held in a 1985 case, somehow going to be bad," he said. "That's Burlington School Committee v. completely wrong." Massachusetts Department of Education, that under the federal Individuals with Public School First? Disabilities Education Act, parents who "unilaterally" remove their children from Mr. Freston, the parent in New York Cit public schools and enroll them in private Board of Education i. Tom F. (Case No. schools are entitled to public reimbursement 06-637), is a co-founder of the cable channel when courts later determine that the school MTV and a former Viacom Inc. executive district's placement was inappropriate and who reportedly received a severance that the private school placement was package of $85 million when he was ousted appropriate. as the president and chief executive officer of the media company last year. Although no reliable statistics are readily available, such reimbursements are routinely Neal Rosenberg, Mr. Freston's lawyer. said ordered by lower federal courts under the that the special education case is not about proper circumstances, and school districts money. Mr. Freston sought an say they are a significant expense. individualized education program for his son

188 from the New York City district because he But in April 2001, a state special education wanted the boy to receive transportation hearing officer determined that the district services and because of the principles had not met its burden of proving that its involved, he said. His son was entitled to an recommended placement was appropriate education provided by the city, Mr. for the student. On appeal, a state review Rosenberg said. officer upheld the hearing officer's decision.

"I have never found a parent who was The school system prevailed, however, grateful that they had a handicapped child so when it took the case to U.S. District Court that they could get the district to subsidize in Manhattan. In a July 2005 decision, U.S. the education of that child," Mr. Rosenberg District Judge George B. Daniels wrote that said. The district's arguments that prior the text of the IDEA suggests "that where a enrollment in public school should be a child has not previously received special prerequisite to reimbursement are saying, in education from a public agency, there is no effect, that parents "have to make a guinea authority to reimburse the tuition expenses pig of their child," he said. arising from the parent's unilateral placement of the child in private school." Mr. Freston enrolled Gilbert in the Stephen Gaynor School in New York City, a private The father appealed and last year, a three- school for children with special needs, in the judge panel of the U.S. Court of Appeals for fall of 1995, when the boy was 6. In 1997 the 2nd Circuit, in New York City, and 1998, the New York City district overruled the district court, applying the established an individualized education plan reasoning of a recent decision the 2nd for Gilbert, which the school district Circuit court had made in a similar case, acknowledged was inadequate, Mr. Frank G. v. Board of Education of Hyde Rosenberg said. The district reimbursed Mr. Park Central School District. Freston approximately $36,000 for those two years. Mr. Freston donated the money In that case, a different 2nd Circuit panel received from the public school system said the argument that parents first have to district to the private school, his lawyer said. enroll their child in a public school places them "in the untenable position of In 1999, the district offered a different acquiescing to an inappropriate placement in placement for Gilbert. Despite never having order to seek reimbursement from the public visited the public school suggested for his agency that devised the inappropriate son, or any of the other public schools placement." suggested for him in the past, the district's brief says, Mr. Freston again sought In its appeal to the Supreme Court, the New reimbursement, this time for about $18,000 York City district argues that the 2nd Circuit for the 1999-2000 school year. court's ruling conflicts with a 1997 amendment to the IDEA. The district Mr. Best said that the district, in making an believes the amendment made clear that the effort to re-evaluate some tuition- statute does not require a district to reimbursement cases, zeroed in on this case reimburse parents when the district offers an because Gilbert Freston had never attended appropriate placement but the parents public school. voluntarily place the child in

189 a private school. rarely, that you would have a child that has never come to public school," Mr. Osborne 'A New Issue' said. "But in some of your bigger city districts, it could come up more often." Allan G. Osborne Jr., a former president of the Education Law Association and the He added, "Even if it doesn't come up very author of several books and papers on much, when it does come up its very special education law, said he was surprised important, because it's a lot of money." that the Supreme Court chose now to take up a case involving tuition reimbursement Julie Wright Halbert, the legislative counsel when the student had not attended public of the Council of the Great City Schools, school first. said the outcome of the case is important to the members of her group. "It's an issue that I think has not been fully litigated by the lower courts," said Mr. "There's no question that the cost and Osborne, who is also the principal of Snug burden is significant," she said. Harbor Community School, a public elementary school in Quincy, Mass. The case adds to a list of three major IDEA cases the high court has accepted over the "This is a new issue because it involves past two years. Just last week, the justices some of the newer amendments to the heard arguments on whether nonlawyer IDEA," he said, referring to provisions in parents can represent their children in the 1997 reauthorization of the law. federal court in special education cases.

"It's a situation that probably occurs fairly

190 "Private Schooling for the Disabled, and the Fight Over Who Pays"

New York Times March 21, 2007 Joseph Berger

Paying for private school is no hardship for districts have to pay for private school for Tom Freston, the former chief executive of disabled children if the families refuse to try Viacom, the company that runs MTV and out public programs? Comedy Central. He left with a golden parachute worth $85 million. School systems around the country are closely watching the case. Almost seven But he says New York City should million students nationwide receive special- reimburse him for educating his son in a education services, with 71,000 educated in private school for children with learning private schools at public expense, according disabilities, where the tuition is $37,900 a to the United States Department of year. In 1997, his son, then 8, was found to Education. Usually school districts agree to be lagging in reading, though not in math. pay for these services after conceding they The city offered the child a coveted spot in cannot provide suitable ones. the Lower Laboratory School for Gifted Education, a competitive school on the In New York City, for example, 147,000 of Upper East Side that also has classes for the 1.1 million public school children students with moderate disabilities. He receive special-education services; 7,445 of would have been placed in a classroom with them, most severely handicapped, attend 15 students, and given speech and language private schools at taxpayer expense because therapy. the city agrees that it cannot properly instruct them, said Lindsey Hair, a Mr. Freston, though, wanted a class of only spokeswoman for the city education eight students for his son, in a smaller department. setting. Without trying Lab, he put his child in the Stephen Gaynor School on the Upper City officials say that is not the case with West Side, where students, in Gaynor's Mr. Freston's son, or with other children language, display "learning differences." whose families reject the public school While the city is required by federal law to system outright. In 2005-6, 2,240 families pay for private programs for disabled sued the city for tuition reimbursement for children when it cannot provide appropriate private schools they attended. Half those programs. city officials said the Lab children never sampled a public school, said program was suitable for Mr. Freston's son Michael Best, the education department's and wanted him to try it. After two years of counsel, and the taxpayer tab is well over reimbursing the Frestons for a large part of $30 million. the private school tuition, the city stopped. "What we're talking about is parents who The result has been a seesawing lawsuit that have never worked with the school system the United States Supreme Court recently to find appropriate placement," Mr. Best took for review. The question: Do school said. "They're making a unilateral decision

191 to place kids in private school. We shouldn't reimbursements. "Many wealthy, well- have to pay for it if we can supply the educated people are gaming the system in appropriate services." New York City and around the country." she said. Mr. Freston's lawyer, Neal H. Rosenberg, said the city effectively acknowledged it Some champions of special education could not provide proper services by paying programs argue that it is unfair to force tuition at Gaynor for two years. Mr. Freston children to enroll in public programs just to himself declined to be interviewed for this prove the programs are weak. Matthew column. But in a statement, he said his Lenaghan, deputy director of Advocates for lawsuit was about principle, not money. Children, points out that finding strong instruction promptly is essential. "If a child "While I was fortunate to have the means to has autism, does that student have to try a provide such an opportunity for my child, program he knows is inadequate?" he said. many families are not able to do so," he Similarly, Scott Gaynor, head of the Gaynor said. His goal, he added, is to make sure that school, said "the goal here is to catch a child all families of disabled children "have before they fail." access to an appropriate special educational program." He has used the roughly $50,000 Voucher advocates are closely watching the in reimbursements he has received to case because they feel taxpayers should finance tutoring for lagging first graders at allow all children, whether handicapped or Public School 84 on the Upper West Side. not, to choose private schooling for themselves and recover the public money The Freston case is another in the history of that would otherwise have been spent on the nation's 32-year-old special-education them. "The first obligation should be to the law that raises uncomfortable questions. The needs of children, not to the need of any Individuals with Disabilities Education Act, public school system." said Jay P. Greene, passed under a different name in 1975, professor of education reform at the protects disabled children in ways University of Arkansas. mainstream children are not, because historically children with disabilities were ill In some ways, the case has been outrun by served. But today it can end up financing realities. Mr. Freston's son is now 17 and top-of-the-line programs for disabled has long since rejoined mainstream classes, students while students in overcrowded or a success for which Mr. Freston credits poorly taught mainstream classrooms do not private schooling. But it is not clear how his have recourse to private schools. son would have fared at the Lab School.

The Council of the Great City Schools, a The case also has a paradox at its heart. coalition of 66 urban systems, has supported Current thinking-and the special-education the city in the case with a friend-of-the-court law itself-urges that disabled children be brief. Julie Wright Halbert, legislative placed in the "least restrictive counsel for the group, said some parents environment"-preferably in mainstream might ask a city's specialists to evaluate classes. But Mr. Freston fought to keep his their children while planning all along to child in an environment where he would be send them to private schools. banking on a surrounded only by children with district's being too burdened to contest the disabilities.

192 "Court Rejects Limit on Payment of Tuition for Disabled Students"

New York Law Journal August 2, 2006 Tom Perrotta

A Federal appeals court has rejected an parents of children with disabilities in the interpretation of the Individuals with untenable position of acquiescing to an Disabilities Act that would have placed inappropriate placement in order to preserve restrictions on parents who sought private their right to seek reimbursement from the school tuition reimbursement for the special public agency that devised the inappropriate education needs of their children. placement."

The decision will be published Monday. He added: "We decline to interpret 20 U.S.C. 2 §1412(a)(10)(C)(ii) to require The ruling from the U.S. Court of Appeals parents to jeopardize their child's health and for the Second Circuit came in Frank G. v. education in this manner in order to qualify Bd. ofEduc. ofHyde Park, 04-CV-498 1. for the right to seek tuition reimbursement."

While the unanimous ruling affirmed a In Frank G., Frank and Diane G., the parents lower court's decision in the case, it of Anthony G., a learning disabled child, simultaneously rejected the conclusion of fought to obtain $3,600 in tuition another trial court in Bd. of Educ. v. Toni reimbursement and more than $45,000 in F.. 2005 WL 22866. attorney's fees from the Hyde Park Central School District in Dutchess County. In Tom F., Southern District Judge George B. Daniels ruled that 1997 amendments to Anthony G. was born in May 1991 to a the disabilities act clearly stated that when crack-addicted mother. Frank and Diane G. "a child has not previously received special later adopted him. Since the age of 3, education from a public agency, there is no Anthony has been diagnosed with Attention authority to reimburse the tuition expense Deficit Hyperactivity Disorder. By the time arising from a parent's unilateral placement he reached the fourth grade at his private of the child in private school." school in Newburgh, the Committee on Special Education for the Hyde Park school The Second Circuit last week disagreed with district had classified him as learning that ruling, saying the plain language of the disabled under the disabilities act. amendments did not say that reimbursement was only available to parents whose children Both school district personnel and an had previously received special education independent doctor evaluated Anthony in from a public agency. Such a reading, the summer 2001. The doctor concluded that court said, would produce "absurd" results. Anthony should receive individual attention in a small class, perhaps with 12 students. Judge Edward R. Konman, the chief judge of The school district, however, developed an the Eastern District, sitting by designation, independent education plan for Anthony that said this view of the statute would "place the would have placed him in a regular-size

193 class of 26 to 30 students at a public school finds that the agency had not made a free and provided him with additional services. appropriate public education available to the Diane G. requested a hearing from the school child in a timely manner prior to enrollment." district. and asked it to provide these services at Anthony's private school. She stressed that Judge Korman said the school district was the class size was too large. The hearing did relying on ambiguity in the statute for its not take place until November and December position, and noted that other sections of the of that year, and Anthony's parents decided to statute, and its legislative history, lead the enroll him in a new private school court to a different conclusion about when beforehand. reimbursement was appropriate.

The school district argued that this placement "The plain language of 20 U.S.C. § was inappropriate, but Southern District 1412(a)(10)(C)(ii) does not say that tuition Judge Charles L. Brieant eventually reversed reimbursement is only available to parents the decision of a hearing officer and ruled in whose child had previously received special favor of the parents. He awarded the tuition education and related services from a public reimbursement and about $35,000 in legal agency, nor does it say that tuition fees, though he expressed concern about the reimbursement is not available to parents sum of the fees compared to the tuition. whose child had not previously received special education and related services," the No Ambiguity judge wrote. "Indeed, the School District's need to rely on an inference to be drawn from On appeal to the Second Circuit, the school the plain language, rather than the language district argued that Anthony's parents were itself, suggests a degree of ambiguity that not entitled to reimbursement or fees because would not necessarily be present if § of the holding in Tom F.. which it described 1412(a)(10)(C)(ii) was the only section of the as an "absolute defense." The Second Circuit IDEA that spoke to the issue of the remedy disagreed and affirmed Judge Brieant. that a district court may award."

The statute in question, 20 U.S.C. § Judges Rosemary S. Pooler and Sonia 1412(a)(10)(C)(ii), authorizes reimbursement Sotomayor concurred on the ruling. to the parents of a disabled child "who previously received special education and Mark I. Reisman represented Frank and Diane related services under the authority of a public G. James P. Drohan of Donoghue, Thomas, agency- and who enrolled the child in a Auslander & Drohan represented the school private school, "if the court or hearing officer district.

194 "Special-Ed Ruling Benefits City"

The New York Sun January 7, 2005 Julia Levy

The city could save millions of dollars under this is a sound decision and are pleased that a new ruling, which found that special- the court agreed with our view," the education students who never try public department's general counsel, Michael Best, school are ineligible for reimbursement for said. private-school expenses. The lawyer who represented Gilbert and his The decision by Judge George Daniels of father, Neal H. Rosenberg, called the federal District Court in Manhattan found decision "very bad." that the family of a boy identified as Gilbert F. didn't have the right to be reimbursed for "I don't understand why the board is tuition because Gilbert had never attended applauding itself here," Mr. Rosenberg said public school. He began attending a private last night in a telephone interview. "It's special-education program in kindergarten at almost like they are thrilled that a judge says the Stephen Gaynor School on the Upper they're not obligated to provide services that West Side. they themselves recommend."

Judge Daniels's ruling overturned a 2000 He said his client and the city agreed that decision by the city's impartial hearing Gilbert needed special-education services. officer and another decision by the state The question was whether the special Education Department's state review officer. services would be provided by the public- school system or by a private school. The It could send shockwaves through the city paid part of Gilbert's tuition for the first growing community of parents who have two years of his schooling. In the third year never sent their children to public school but the city refused to settle with the family, petition the city each year to pay for all or which led to a hearing and then more than part of the youngsters' tuition at private four years of litigation. school. Mr. Rosenberg said if Judge Daniels's In the last school year, the city Department decision is upheld, some special-education of Education spent more than $12 million students who try the public schools might be reimbursing the families of about 1.000 successful, but others will fail. special-education students who had never attended public school despite the "It is asking a lot of parents to make a department's recommendations. The number guinea pig of their child," he said. "The risk of families applying for reimbursement has society runs here is that the year will be so more than tripled since the 1997-98 school unsuccessful as to require two years or three year. years to make up for the bad year."

Yesterday, department officials said they Other lawyers who represent special were pleased with the decision. "We believe education students whose families sue for

195 reimbursement had similar opinions. clients are poor and can't afford private lawyers, and thus will not be affected by the "It's going to be a disaster for parents who ruling. But she said in many cases there don't want to put their children in peril and aren't appropriate placements for special- in harm," one attorney, Regina Skyer, said. education students in public schools. She said parents shouldn't have to put their children into public schools and watch them "The real issue here is to get more fail before being able to put them into appropriate programs for kids with private schools. disabilities in the school system so they don't need to make use of the private Another lawyer, Phyllis Saxe, who entered schools," she said. the field after her experience convincing the city to pay for the private education of a The chairwoman of the City Council's daughter with cerebral palsy. said she is Committee on Education, Eva Moskowitz, "devastated" by the decision. said although she doesn't think parents should be granted a "free pass" for private "I feel extremely bad for the special school if the public schools can meet their education children," she said. "It's a terrible child's needs, there's a shortage of good emotional blow to hear that not only is your special-education programs in the public child disabled but that there is no recourse." system.

She said if parents start trying out public- "This ruling will result in students being school programs and then pulling out their forced to try a public-school program even if children to place them in private schools, the public-school system offers no "you're going to have a lot of children who appropriate program," the Manhattan are going to be disturbed in addition to being Democrat said. disabled." Mr. Rosenberg said he would advise the The executive director of Advocates for boy's father, identified as Tom F., to appeal. Children, Jill Chaifetz, said most of her

196 "Ex-MTV Big Takes on Schools"

Daily News (New York) February 27, 2007 Erin Einhorn

Multimillionaire businessman Tom Freston- "For him it was a moral issue. It wasn't a the man who founded MTV-was last night financial issue." revealed to be the driving force behind a Supreme Court battle to help city schoolkids Freston's son, now 17, received three years of with special needs. tuition reimbursement from the city under a federal law requiring school districts to pay Freston, who can afford to send his son to any for kids they can't educate. In 1999, the city school in the world, is pushing his case obj ected. because of principle, his lawyer said. The teenager never attended a public school; Freston landed at the center of [Bd. of Ed. of city lawyers argued that federal law the City School District of the City of New guarantees tuition only to children who had York v. Tom F.,] the controversial case over "previously received special education and whether taxpayers should cover private tuition related services" from the public schools. at a special school for his son, who has learning disabilities. The court yesterday School officials said his son's needs could agreed to hear the "Tom F" case, which could have been met at the highly respected Lower affect thousands of kids around the country Lab public school in Manhattan. who have special needs that their parents say cannot be addressed by their local public Freston won appeals to city and state schools. administrative judges. The city appealed to the federal courts. The Daily News has identified "Tom F" as Freston, who helped found the MTV "There are millions and millions of dollars at Networks in 1981 and went on to take over stake here for school districts," said Education Viacom. He was fired last September and was Department lawyer Michael Best. "If parents paid as much as $84.8 million in severance. can force us to pay for private school placement when we're perfectly capable of Freston, who lives in an upper East Side providing that child with a place in the public mansion once owned by Andy Warhol, could schools, then it's a needless waste of money easily have paid his son's tuition at the that should be going to public schools." Stephen Gaynor School, a private academy on the upper West Side for kids with learning Best said 2,240 parents requested an average disabilities, but he pursued the case on moral of $29,000 in tuition during the last school grounds, his lawyer said. year. Of those cases, Best estimated that roughly half could be affected by the Ton F "He felt his son's rights were being case. violated-rights guaranteed to him under federal law," said lawyer Neal Rosenberg. Many families have legitimate claims, Best

197 said, but "sometimes parents do try to take school kids in the school's W. 90th St. advantage of the system." neighborhood. Special education advocates say many of the families getting tuition are Rosenberg said Freston has not sought poor or middle class, and some worry that reimbursement since 1999, when he began Freston's wealth could harm the cause. appealing his case, and that Freston contributed the $50,000 he received for three "This case has dangerous implications for my years of Gaynor tuition to a special fund at the clients," said lawyer Regina Skyer, who school. represents disabled children. If parents have to send their kids to a public school before Head of School Scott Gaynor confirmed they can seek tuition, "it'll force parents into Freston contributed $100,000 about five years feeling they'll have to put their child in ago for a free tutoring program for public- harm's way."

198 LaRue v. DeWolff Boberg & Associates

(06-856)

Ruling Below: (LaRue v. DeWolff Boberg & Associates, 450 F.3d 570 (4th Cir. 2006), cert granted, 127 S.Ct. 2971, 75 U.S.L.W. 3333, 75 U.S.L.W. 3673, 75 U.S.L.W. 3677 [2007]).

DeWolff, Boberg, & Associates administers an ERISA-regulated 401(k) retirement savings plan for its current and former employees. LaRue, a participant in the plan since 1993, states that he directed the administrators, who are also fiduciaries, to make certain changes to the investment strategy for his plan. LaRue argues that neglecting to make the requested changes amounts to a breach of fiduciary duty. Having not made those changes, it caused a loss of over $150,000 in interest revenue for his retirement plan. LaRue filed suit for the losses or similar relief under 29 U.S.C. § 1132(a)(3).

Questions Presented: Whether §502(a)(2) of ERISA permits a participant to bring an action to recover losses attributable to his account in a "defined contribution plan" that were caused by fiduciary breach; and whether §502(a)(3) permits a participant to bring an action for monetary "make-whole" relief to compensate for losses directly caused by fiduciary breach (known in pre- merger courts of equity as "surcharge")?

James LaRUE, Plaintiff-Appellant V. DeWOLFF, BOBERG, & ASSOCIATES, INC., et al., Defendants-Appellees

United States Court of Appeals for the Fourth Circuit

Decided June 19, 2006

[Excerpt: some footnotes and citations omitted]

WILKINSON, Circuit Judge: his account would have appreciated had defendants followed his instructions. The The plaintiff in this case alleges that district court concluded that his complaint defendant fiduciaries breached their duty to did not request a form of relief available him by failing to implement the investment under ERISA, and it therefore granted strategy he had selected for his employee defendants' motion for judgment on the retirement account. Relying on two separate pleadings. provisions of the Employee Retirement Income Security Act of 1974 (ERISA). 29 We affirm. Section 1132(a)(2) provides U.S.C. §§ 1132(a)(2) and 1132(a)(3) (2000), remedies only for entire plans, not for he seeks recovery of the amount by which individuals. And while § 1132(a)(3) does in

199 some cases furnish individualized remedies, decisions have repeatedly cautioned, "vague the Supreme Court's decisions in Mertens v. notions of a statute's 'basic purpose' are ... Hewitt Associates, 508 U.S. 248, . . . compel inadequate to overcome the words of its text the conclusion that it does not supply one regarding the specific issue under here. Plaintiff has alleged no unjust consideration." Great-West Life & Annuity enrichment, unlawful possession, or self- Ins. Co. v. Knudson, 534 U.S. 204. . . . dealing on the part of defendants, and the Section 1132(a) represents an "interlocking, remedy he seeks falls outside the scope of interrelated, and interdependent remedial the "equitable relief' that § 1132(a)(3) scheme" that "provide[s] strong evidence authorizes. that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 .... II. With these constraints in mind, we consider [The court states that Congress intended to whether the statute's text provides the uniformly regulate employee benefit plans. particular relief at issue here. One of the principal sections of ERISA was to preempt state law causes of action and III. provide only specified remedies. See § 1132(a).] Plaintiff first suggests that remuneration of his plan account finds express authorization in the text of 29 U.S.C. § 1132(a)(2). That subsection allows for a civil action "by a Section 1132(a) stops short of providing participant, beneficiary or fiduciary for ERISA complainants with a full arsenal of appropriate relief under section 1109 of this relief. ERISA is "an enormously complex title." Section 1109, in turn, provides that and detailed statute that resolve[s] [a]ny person who is a fiduciary with respect innumerable disputes between powerful to a plan who breaches any of the competing interests-not all in favor of responsibilities, obligations, or duties potential plaintiffs." Mertens v. Hewitt imposed upon fiduciaries by this subchapter Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063. shall be personally liable to make good to 124 L.Ed.2d 161 (1993). Its civil such plan any losses to the plan resulting enforcement provision in particular attempts from each such breach, and to restore to to settle "a tension between the primary such plan any profits of such fiduciary ERISA goal of benefiting employees and the which have been made through use of assets subsidiary goal of containing pension costs." of the plan by the fiduciary, and shall be Id. at 262-63. 113 S.Ct. 2063. Congress has subject to such other equitable or remedial consequently made various "policy choices" relief as the court may deem appropriate. ... resulting in "the inclusion of certain 29 U.S.C. § 1109(a). remedies and the exclusion of others." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41. 54, Plaintiffs argument regarding the 107 S.Ct. 1549. 95 L.Ed.2d 39 (1987). applicability of § 1132(a)(2) is made for the first time on appeal. Even if the argument Interpretation of § 1132(a) is therefore no were not therefore waived, see, e.g., Jones v. easy task. As the Supreme Court's ERISA Liberty Mut. Ins. Co. (In re Wallace & Gale

200 Co.), 385 F.3d 820, 835 (4th Cir.2004), he not solely benefit the individual could not succeed on the merits. Recovery participants." Smith, 184 F.3d at 363 under this subsection must "inure[ ] to the (emphasis added). . . . Here, by contrast, benefit of the plan as a whole," not to plaintiff seeks to particularize the recovery particular persons with rights under the plan. to himself. Section 1132(a)(2) is not -a Russell, 473 U.S. at 140. . . ." A fair proper avenue for him to obtain such relief. contextual reading of the statute makes it abundantly clear that its draftsmen were IV. primarily concerned with the possible misuse of plan assets, and with remedies that We thus turn to plaintiff's second theory of would protect the entire plan, rather than relief, which relies on a different ERISA with the rights of an individual beneficiary." remedial provision, 29 U.S.C. § 1132(a)(3). Russell, 473 U.S. at 142, 105.... That section authorizes a civil action by a participant, beneficiary, or fiduciary (A) to It is difficult to characterize the remedy enjoin any act or practice which violates any plaintiff seeks as anything other than provision of this subchapter or the terms of personal. He desires recovery to be paid into the plan, or (B) to obtain other appropriate his plan account, an instrument that exists equitable relief (i) to redress such violations specifically for his benefit. The measure of or (ii) to enforce any provisions of this that recovery is a loss suffered by him alone. subchapter or the terms of the plan. And that loss itself allegedly arose as the result of defendants' failure to follow Plaintiff contends that the "make whole" plaintiffs own particular instructions, relief he seeks constitutes one of the forms thereby breaching a duty owed solely to of "other appropriate equitable relief' that him. the provision authorizes.

We are therefore skeptical that plaintiffs A. individual remedial interest can serve as a legitimate proxy for the plan in its entirety, In construing the scope of § 1132(a)(3). the as § 1132(a)(2) requires. To be sure, the Supreme Court has stressed that the term recovery plaintiff seeks could be seen as "equitable" is one of limitation. In Mertens accruing to the plan in the narrow sense that v. Hewitt Associates, the Court held that the it would be paid into plaintiffs personal phrase "equitable relief' refers only to plan account, which is part of the plan. But "those categories of relief that were t)pically such a view finds no license in the statutory available in equity" in the days of the text, and threatens to undermine the careful divided bench. 508 U.S. at 256, 113 S.Ct. limitations Congress has placed on the scope 2063. . . . The Court reasoned that other of ERISA relief. sections of ERISA expressly refer to "equitable or remedial relief," 29 U.S.C. § This case is much different from a § 1109(a), and "legal or equitable relief," e.g., 1132(a)(2) action in which an individual id. § 1132(g)(2)(E), thereby demonstrating plaintiff sues on behalf of the plan itself or that "equitable relief' connotes only a subset on behalf of a class of similarly situated of the full palliative spectrum. See Mertens, participants... In such a case, the "remedy 508 U.S. at 258, 113 S.Ct. 2063. The Court will undoubtedly benefit [the plaintiff] and refused to "read the statute to render the other participants in the [p]lan," but "it does modifier superfluous," id., a construction

201 that would undermine Congress's exclusive conclusion that the remedy plaintiff desires remedial scheme by opening a back door falls outside the scope of§ 1132(a)(3). As in through which uninvited remedies might Mertens, although he "often dance[s] around enter, id. at 257, 113 S.Ct. 2063. the word," what plaintiff "in fact seek[s] is nothing other than compensatory damages- The particular definition of "equitable" that monetary relief for all losses ... sustained as the Court has adopted finds support in a a result of the alleged breach of fiduciary well-known principle of statutory duties." 508 U.S. at 255, 113 S.Ct. 2063. construction. "The maxim noscitur a sociis, "Money damages are, of course, the classic that a word is known by the company it form of legal relief," id., and have therefore keeps, while not an inescapable rule, is often remained conspicuously absent from the list wisely applied where a word is capable of of traditional equitable remedies available many meanings in order to avoid the giving under § 1132(a)(3), id. at 256. of unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., While that list does include "restitution," id., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d this form of recovery is not so broad as to 859 (1961). Section 1132(a)(3) expressly include the compensatory relief that plaintiff mentions the right to "enjoin" certain acts or seeks. As the Supreme Court explained in practices " or . .. to obtain other appropriate Great-West Life & Annuity Insurance Co. v. equitable relief' (emphasis added). The Knudson, "not all relief falling under the understanding of what "equitable" means in rubric of restitution is available in equity." this context is necessarily informed by its 534 U.S. at 212, 122 S.Ct. 708. In particular, association with injunctive relief, the "for restitution to lie in equity," as opposed quintessential exemplar. of a remedy that to at law, "the action generally must seek equity alone would typically provide. not to impose personal liability on the defendant, but to restore to the plaintiff Determining the applicability of § particular funds or property in the 1132(a)(3) therefore requires a court to defendant's possession." Id. at 214, 122 examine whether the form of relief a S.Ct. 708.... plaintiff seeks is, like an injunction, historically one that a court of equity rather The Supreme Court's most recent § than a court of law would have granted. See 1132(a)(3) decisions demonstrate how the Sereboff 126 S.Ct. at 1874. The Supreme absence of unjust possession is fatal to an Court has, in addition to injunctions, listed equitable restitution claim. In Knudson, the mandamus and restitution as examples of Court denied a restitutionary remedy under § traditional equitable remedies. See Mertens, 1132(a)(3) where "'the funds to which 508 U.S. at 256, 113 S.Ct. 2063. Subsequent petitioners claimed an entitlement' were not decisions of both the Supreme Court and in Knudson's possession, but had instead this court have been wary of expanding the been placed in a 'Special Needs Trust' under list beyond these archetypes and their California law." Sereboff 126 S.Ct. at 1874 closely related kin. See, e.g.. Varity Corp. v. (quoting Knudson, 534 U.S. at 207, 214, 122 Howe, 516 U.S. 489.... S.Ct. 708) (internal alterations omitted). More recently in Sereboff v. Mid Atlantic B. Medical Services, Inc., the Court allowed a claim for equitable restitution to proceed Mertens and its progeny compel the where "Mid Atlantic sought specifically

202 identifiable funds that were within the was the case in Mertens ). Unlike either of possession and control of the Sereboffs." Id. those scenarios, the argument goes, this case (internal quotation marks omitted). The can be analogized to a common law breach- Court in Sereboff reaffirmed the possession of-trust action by a beneficiary seeking to requirement it had announced in Knudson, recover lost trust profits, a remedy that trust but found that the "impediment to treatises have labeled "equitable." See characterizing the relief in Knudson as Restatement (Second) of Trusts §§ 197, equitable [was] not present" in the 205(c) (1959).... Sereboffs' case. Id. The governing precedent, however, does not The impediment is, however, present in this point as plaintiff suggests. In fact, Mertens case, and it precludes plaintiff flom squarely "rejected the claim that the special recovering under an equitable restitution equity-court powers applicable to trusts theory. Plaintiff does not allege that funds define the reach of [§ 1 132(a)(3)]." owed to him are in defendants' possession, Knudson, 534 U.S. at 219, 122 S.Ct. 708; but instead that these funds never see Mertens, 508 U.S. at 256-57, 113 S.Ct. materialized at all. He therefore gauges his 2063. While the generally exclusive recovery not by the value of defendants' jurisdiction of equity courts over breach-of- nonexistent gain, but by the value of his own trust suits renders all remedies in such cases loss-a measure that is traditionally legal. "equitable" in the sense that a court of not equitable. . . . Thus, at core, he seeks "to equity has power to grant them, "equitable" obtain a judgment imposing a merely in the context of § 11 32(a)(3) has a narrower personal liability upon the defendant[s] to meaning. Mertens, 508 U.S. at 256, 113 pay a sum of money." Knudson, 534 U.S. at S.Ct. 2063. Under Mertens, "the relevant 213, 122 S.Ct. 708 (internal quotation marks question is . . . whether a given type of relief omitted). As Knudson explained, historically was available in equity courts as a general "[s]uch claims were viewed essentially as rule," Rego v. Westvaco Coip., 319 F.3d actions at law," and they are therefore 140, 145 (4th Cir.2003)(emphasis added), unavailable under § 1 132(a)(3). Id. rather than merely in the context of "the particularcase at issue," Mertens, 508 U.S. C. at 256, 113 S.Ct. 2063. "Equitable relief' therefore does not encompass the "many Plaintiff attempts to avoid this conclusion by situations-not limited to those involving arguing that his requested "make whole" enforcement of a trust-in which an equity relief represents something entirely different court could," by virtue of its jurisdiction from the types of remedies that we or the over the claim at issue, "grant legal remedies Supreme Court have heretofore considered which would otherwise be beyond the scope in the context of § 1132(a)(3). In particular, of its authority." Id. he emphasizes that this case involves a situation where a participant or beneficiary That plaintiff can analogize this suit to a is suing a fiduciary for a breach of fiduciary common law breach of trust action therefore duty. In his view, the scope of "equitable" proves of no avail in characterizing the relief remedies available in such a case is broader he seeks as equitable. Plaintiff admits that he than when a fiduciary sues a beneficiary (as lacks support for the notion that "make was the case in Knudson and Sereboff ) or whole" relief was available in equity outside when a beneficiary sues a non-fiduciary (as the context of trusts. It is therefore

203 impossible for us to conclude that such relief our conclusion that the compensatory relief "was available in equity courts as a general he seeks is legal, not equitable. rule," Rego, 319 F.3d at 145. V The Sixth Circuit has reached a similar conclusion in a case presenting facts nearly Though Congress may one day take the identical to those before us here. In Helfrich remedial step plaintiff desires. it has not yet v. PNC Bank, Kentucky, Inc., 267 F.3d 477 done so. It is not difficult to imagine why. In (6th Cir.2001), a beneficiary of an employee crafting ERISA, Congress sought a careful 401(k) plan sued a plan fiduciary for failing balance between the goals of "ensuring fair to comply with written directions to roll and prompt enforcement of rights under a over his assets into a specific set of mutual plan" on the one hand and "encourag[ing] funds. Id. at 479-80. The plaintiff asserted ... the creation of such plans" on the other. an entitlement to the difference between the Aetna Health, 542 U.S. at 215, 124 S.Ct. "amount he would have earned" had the 2488 (internal quotation marks omitted). It fiduciary followed his instructions and "the would certainly be reasonable for Congress amount he in fact earned" as a result of the to have concluded that imposing personal fiduciary's alleged breach of duty. Id. at financial liability on fiduciaries under 480. The court concluded that his requested circumstances such as this-where there remedy was unavailable under § 1132(a)(3). was no unjust enrichment, unlawful Id. at 481-83. It found that the plaintiff could possession, or self-dealing-would seriously not style his relief as "restitution" when he deter plan formation and the service of was measuring recovery by his own losses qualified individuals and institutions as rather than the defendant's gains, id. at 482- fiduciaries. Compare, e.g., Mertens, 508 83, and it rejected a strict congruence U.S. at 262-63, 113 S.Ct. 2063 (discussing between § 1132(a)(3) and the common law negative effects of expansive ERISA of trusts, id. at 482 (citing Mertens, 508 U.S. liability). at 256, 113 S.Ct. 2063). It therefore dismissed the suit because "ERISA does not Congress's decision to omit such liability permit plan beneficiaries to claim money hardly leaves a plan participant or damages from plan fiduciaries." Id. at 482. beneficiary in plaintiffs position without recourse. He could, for example, seek an As Helfrich shows, the fact that a plaintiff injunction compelling compliance with his happens to be a participant or beneficiary investment instructions, see 29 U.S.C. § suing a fiduciary is entirely beside the point 1132(a)(3), or. under appropriate in the § 1132(a)(3) inquiry; the status of the circumstances, bring suit on the plan's parties does not determine the nature of the behalf to remove the fiduciary. see 29 relief. Many other circuits, both before and U.S.C. § 1109(a). In Congress's view. such after Knudson, have likewise rejected the alternative remedies are sufficient to keep notion that whether a particular form of fiduciaries from breaches of fiduciary duty relief is "equitable" depends on the identity that result in no benefit whatsoever to of the parties. See Pereira v. Farace, 413 themselves. We possess no authority "to F.3d 330, 340 (2d Cir.2005). . . . The adjust the balance . . that the text adopted teachings of Mertens and Knudson obligate by Congress has struck." Mertens, 508 U.S. us to agree, and plaintiffs contrary at 263. 113 S.Ct. 2063. Accordingly. we argument therefore fails to cast doubt upon AFFIRM the judgment.

204 "401(k) Case Could Boost Plan Fiduciaries' Liability"

Business Insurance June 25, 2007 Sally Roberts

WASHINGTON-Employers with defined his retirement account is short $150.000 contribution plans may face more fiduciary because the management firm, which liability depending on how the Supreme administers the plan, failed to carry out his Court interprets sections of federal pension directions to make certain investment law [in LaRue v. DeWolff Boberg, & changes to his account in 2001 and 2002. He Assoc.].... sued the firm in 2004.

At issue is whether the Employee In an amicus curiae brief encouraging the Retirement Income Security Act allows an Supreme Court to review the 4th Circuit individual participant in a defined ruling, U.S. Solicitor General Paul D. contribution plan to sue fiduciaries to Clement noted that every other courts of recover individual plan account losses appeals that has addressed the issue have all caused by an alleged fiduciary breach. ... held that ERISA authorizes suits by participants in such instances not The 4th U.S. Circuit Court of Appeals in withstanding that the recovery will Richmond, Va., which upheld a lower court ultimately be allocated to the plan accounts decision in the LaRue case, ruled that while of a limited number of participants.... ERISA provides that a lawsuit may be brought by a participant against a fiduciary "This could have a sweeping impact on who is liable to make good any losses to the employers" and other fiduciaries, said plan due to a fiduciary breach, the remedy is Martha N. Steinman, a partner in the only for entire plans, not for individual executive compensation and ERISA practice accounts. of LeBoeuf, Lamb, Greene & MacRae L.L.P. in New York. "Fiduciaries have just Additionally, the appeals court noted, in been adding increasingly higher levels of drafting ERISA, Congress sought to balance risk in terms of potential liability in recent the protection of participants' rights with the years, which makes a lot of people reluctant encouragement of plan formation. to be fiduciaries," she said. "A reversal in this case will have a significant impact on By making fiduciaries liable where there that." . . . was no "unjust enrichment" to the fiduciary would seriously discourage plan formation But if the Supreme Court rules in favor of and the service of qualified individuals and plan participants, fiduciaries will be held institutions as fiduciaries, the appeals court liable if they are not being "scrupulous and said. really detailed oriented" in making sure the plan is directing investment decisions In this case. James LaRue, who has exactly the way the participant wants, Mr. participated in Dewolff, Boberg & Rosenberg said, noting that he believes the Associates' 401(k) plan since 1993, alleges Supreme Court will overturn the 4th Circuit.

205 "Invitation Brief in No. 06-856, LaRue v. DeWolff Boberg & Associates"

SCOTUS Blog May 22, 2007 Amy Howe

Another invitation brief is in. and it looks warranted, the U.S. explains, both because like the Court may have another case for its the Fourth Circuit's holding conflicts with 2007 line-up: the United States those of the four other courts of appeals that recommended that cert. be granted in No. have addressed the question, and because 06-856, LaRue v. DeWolff, Boberg & the question presented is one of substantial Associates.... importance.

LaRue presents two questions: (1) whether, With regard to the second question, the pursuant to Section 502(a)(2) of ERISA, a United States argues that a suit such as participant in a defined contribution pension LaRue's seeks "equitable relief' because plan may sue to recover losses to the plan "both [his] claim, breach of fiduciary duty, caused by a breach of fiduciary duty, even and the relief he seeks, surcharge of the when those losses affected only the trustee for the losses resulting from the participant's individual account; and (2) breach, were typically-indeed, whether an action by a plan participant exclusively-equitable in the days of the against a fiduciary to recover losses caused divided bench." Here, the United States by a breach of duty seeks "equitable relief' notes, certiorari is warranted because for purposes of ERISA Section 502(a)(3). although the Fourth Circuit's erroneous holding comports with those of five other In the view of the U.S., the Fourth Circuit in circuits, the Seventh Circuit has reached the LaRue erred in answering both of the two opposite conclusion. questions presented in the negative. With regard to the first question, the government In closing, the United States notes that explains that ERISA Section 502(a)(2), read ERISA was enacted to address "misuse and in conjunction with Section 409, authorizes mismanagement of plan assets by plan a plan participant to bring a suit to recover administrators," as well as "to protect . . . for the plan "losses to the plan" resulting the interests of participants in employee from a breach of fiduciary duty. The fact benefit plans . . . by establishing standards that petitioner James LaRue seeks to recover of conduct, responsibility, and obligation for funds (approximately $150,000) that he fiduciaries of [those] plans, and by allegedly lost when respondent failed to providing for appropriate remedies, make certain investments that he had sanctions, and ready access to the Federal directed does not, the U.S. contends, take his courts." As such, the United States suit outside the purview of Section 502(a), concludes, certiorari should be granted "to as any recovery by LaRue will ultimately clarify that ERISA provides monetary benefit the plan as a whole by "directly remedies to recompense plans and increas[ing] the overall amount of assets participants who have been harmed by held by the plan." Certiorari is further fiduciary breaches."

206 "Dismissal of Granted ERISA Case Urged"

SCOTUS Blog July 25, 2007 Lyle Denniston

Attorneys for a nationwide management plan operator, and whether ERISA allows consulting firm involved in a case the monetary relief, in the form of a court- Supreme Court is scheduled to hear at its ordered payback, as a remedy for alleged next Term have urged the Justices to dismiss wrongs by a plan operator. the case as moot. In a motion filed on Monday, counsel for DeWolff, Boberg & The Fourth Circuit Court ruled on June 19 Associates Inc. said that the individual who last year that LaRue could not assert a claim took the case to the Supreme Court has under ERISA because recovery must benefit withdrawn all of his funds from his pension the plan as a whole, not a particular plan plan account, leaving him "with no legally participant. cognizable interest in the outcome of the case." The motion, re-filed with redactions Solicitor General Paul D. Clement, in urging to protect privacy interests, can be found the Court to decide the two questions, said here. The individual involved has a right to they were "important and recurring" issues respond. regarding civil enforcement of ERISA.

The case is LaRue v. DeWolff Boberg & DeWolff Boberg's dismissal motion, Associates, et aL (docket 06-856). The however, noted that neither of the two legal Court agreed on June 18 to hear the case claims involves a live controversy, because after seeking the views of the U.S. Solicitor of LaRue's withdrawal from the plan. The General, who urged the Court to hear and ERISA provision at issue in the first decide both issues raised by James LaRue, a question raised allows a lawsuit by "a Texan who worked for DeWolff Boberg participant, beneficiary, or fiduciary," the until 2001. motion said. There is no legal basis, the motion contended, for allowing a former Thomas P. Gies, a Washington attorney for participant in a defined contribution plan to DeWolff Boberg, told the Court that, in bring a lawsuit under that section to recover assembling materials for a merits brief in the damages measured by lost profits. The case, his office "discovered that on July 22, Supreme Court, it noted, has not addressed 2006, while the case was still pending before the issue. the Fourth Circuit," LaRue withdraw all of his funds from his account. The provision at issue in the second legal claim, according to the motion, also makes In LaRue's petition, filed last Nov. 6, he that issue moot. The claim LaRue made raised two issues: whether the Employee under that section, it noted, was that he was Retirement Income Security Act allows a only seeking to have the plan reflect what pension plan participant to sue a plan would have been his interest in it. Now that manager or administrator to recover losses he is a former plan participant, the motion that the worker suffered in a personal contended, he has no legally cognizable pension account because of actions by the interest in a recovery by the plan.

207 The Supreme Court, it added, "has of DeWolff Boberg, Morgan Buffington, recognized that when a petitioner voluntarily saying that he had learned just this month changes his status . . . while litigation is that LaRue had withdrawn all of his funds pending, that change may render the matter and ceased to be a plan participant in July moot by eliminating the petitioner's legally 2006. A statement about his account for the cognizable interest in his claim." third quarter of 2006, Buffington said, showed a zero balance and a withdrawal of Although recommending that the case be $119,009.13. dismissed, the motion did suggest that the Court "may wish to consider" deciding now At the time of his withdrawal of the funds in another question that LaRue did not raise in July 2006, the declaration said, LaRue "was his petition-that is, whether a worker who no longer employed [by the firm] and is no longer a participant in an ERISA plan received no other income" from it, so he has a right to sue for damages measured by "could not make any additional lost value in his plan. That is an issue on contributions to the plan following his which the lower courts are divided, the decision to close out his account." motion said. Forms included with the motion indicated Submitted along with the motion to dismiss that LaRue has an address in Southlake, was a sworn declaration by a vice president Texas.

208 Mendelsohn v. Sprint/United Management Company

(06-1221)

Ruling Below: (Mendelsohn v. Sprint/United Mgmt. Co., 466 F.3d 1223 (10th Cir. 2006), cert granted, 127 S.Ct. 2937, 75 USLW 3661, 75 USLW 3657, 75 USLW 3499).

Plaintiff Ellen Mendelsohn sued her former employer, Sprint/United Management Company, after the company terminated her employment in 2002 as part of an ongoing company-wide reduction in force (RIF). Mendelsohn alleged that Sprint unlawfully discriminated against her in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. After a trial on the merits, a jury returned a verdict for Sprint. Mendelsohn appealed the verdict, arguing that the district court erred in excluding the "me, too" testimony of other former employees who alleged similar discrimination, which she believed demonstrated the pervasive presence of age discrimination at Sprint.

Questions Presented: Whether a district court may properly exclude "me, too" evidence from non-parties, alleging discrimination at the hands of persons who did not play a role in the plaintiffs adverse employment situation, in employment discrimination cases.

Ellen MENDELSOHN, Plaintiff-Appellant V. SPRINT/UNITED MANAGEMENT COMPANY, Defendant-Appellee.

United States Court of Appeals for the Tenth Circuit

Decided, November 1, 2006

[Excerpt: Footnotes and citations omitted.]

BALDOCK, Circuit Judge: company-wide reduction in force (RIF). After a trial on the merits, a jury returned a Plaintiff Ellen Mendelsohn sued her former verdict for Sprint. At issue in this appeal is employer Defendant Sprint/United whether the district court erred in excluding Management Company (Sprint). alleging testimonial evidence from former Sprint Sprint unlawfully discriminated against her employees who alleged similar on the basis of age in violation of the Age discrimination during the same RIF. We Discrimination in Employment Act have jurisdiction under 28 U.S.C. § 1291. (ADEA), 29 U.S.C. §§ 621-634. Because the evidentiary exclusion deprived Mendelsohn alleged she was selected for Mendelsohn of a full opportunity to present termination on account of her age during a her case to the jury, we conclude the district

209 court abused its discretion in excluding the against Mendelsohn on the basis of age. evidence. We reverse and remand for a new Mendelsohn then filed a motion for a new trial. trial renewing her objections to the district court's in limine ruling. See Fed. R. Civ. P. I. 50(b). The district court denied the motion, and Mendelsohn timely appealed.] [The Court recounts the background and factual history of the case. Mendelsohn II. worked for Sprint from 1989 until November 2002. At the time, Mendelsohn Mendelsohn argues the district court was fifty-one years old and the oldest committed reversible error by requiring her manager in her unit. Mendelsohn brought to show she and the other employees shared her claim under the ADEA. As evidence of a supervisor as a precondition for Sprint's alleged discriminatory animus admissibility of their testimony. According toward older employees, Mendelsohn sought to Mendelsohn, the testimony of other to introduce evidence that Sprint terminated employees in the protected age group who five other employees over the age of forty as were subject to substantially similar RIF part of the same RIF. Prior to trial, Sprint terminations was relevant and admissible as filed a motion in limine seeking to exclude, reflecting on Sprint's discriminatory intent among other things, any evidence of Sprint's in selecting Mendelsohn to the RIF. Sprint, alleged discriminatory treatment of other on the other hand, maintains any evidence of employees. Relying exclusively on its treatment toward other employees is not Aramburu v. The Boeing Co.. 112 F.3d relevant to the determination of this action 1398, 1404 (10th Cir. 1997). Sprint argued because the evidence does not make it more any reference to alleged discrimination by likely that Sprint discriminated against any supervisor other than Paul Reddick, Mendelsohn. Mendelsohn's supervisor, was irrelevant to the issue in this case. The district court We review the district court's ruling to granted the motion in part. and limited exclude evidence for an abuse of discretion. Mendelsohn's evidence to "Sprint See Whittington v. Nordam Group Inc.. 429 employees who are similarly situated to F.3d 986, 1000 (10th Cir. 2005). . . . her." To prove the employees were Applying these standards, we agree with "similarly situated," the district court Mendelsohn that the evidence she sought to required Mendelsohn to show Reddick introduce is relevant to Sprint's supervised the employees and Sprint discriminatory animus toward older terminated them in close temporal proximity workers, and the exclusion of such evidence to Mendelsohn's termination. Because unfairly inhibited Mendelsohn from Reddick did not supervise any of the other presenting her case to the jury. See, e.g., employees Mendelsohn sought to place on Beaird v. Seagate Tech., Inc., 145 F.3d the stand, the district court excluded their 1159, 1168 (10th Cir. 1998) (identifying as a testimony at trial. Following the court's in theory of pretext in RIF cases evidence of an limine ruling, Mendelsohn submitted in employer's general policy of using a RIF to writing a proper offer of proof. Following an terminate older employees in favor of eight-day trial, the jury returned a verdict for younger employees). Sprint finding Sprint did not discriminate

210 A. we found testimony of other employees regarding how defendant treated them To prevail on a discriminatory discharge relevant to the defendant's discriminatory claim under the ADEA, a plaintiff bears the intent where "testimony establishes a pattern burden of proving age was the motivating of retaliatory behavior or tends to discredit factor for the employer's decision to the employer's assertion of legitimate terminate her. See Reeves v. Sanderson motive." Plumbing Prod., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Sprint would have us extend the "same As part of her proof, the plaintiff must supervisor" rule announced in Aramburu to persuade the jury that the employer's this case. In Aramburu, we held in the proffered reason for its conduct is unworthy context of a discriminatory discipline action of belief. See Pippin v. Burlington that plaintiffs seeking to present testimony Resources Oil And Gas Co., 440 F.3d 1186, of other employees who were treated more 1193 (10th Cir. 2006). Because direct favorably for violating the same work rule testimony as to the employer's mental (or another of comparable seriousness) as processes seldom exists, see Reeves, 530 evidence of discriminatory intent, must U.S. at 141, evidence of the employer's show they shared the same supervisor with general discriminatory propensities may be the proffered witnesses. As we have relevant and admissible to prove observed elsewhere: "The 'same supervisor' discrimination. See McDonnell Douglas test has been found to be relevant in cases Corp. v. Green, 411 U.S. 792, 804-805, 93 involving allegations of discriminatory S. Ct. 1817. 36 L. Ed. 2d 668 (1973) ("Other disciplinary actions." Equal Employment evidence that may be relevant to any Opportunity Comm'n v. Horizon/CMS showing of pretext includes . . . [the Healthcare, 220 F.3d 1184, 1198 n. 10 (10th employer's] general policy and practice with Cir. 2000). In discussing Aramburu, we respect to minority employment."); see also explained comparison of a supervisor's United States Postal Seri. Bd. of Governors disciplinary action with other disciplinary v. Aikens, 460 U.S. 711, 713-14 n. 2, 103 S. action of the same supervisor is relevant to Ct. 1478, 75 L. Ed. 2d 403 (1983). show the bias of the supervisor. For example: We have previously recognized the testimony of employees, other than the If X fires A, an Hispanic, for particular plaintiff, concerning how the employer misconduct, but gives only a warning to B, a treated them as relevant to the employer s non-Hispanic, for identical misconduct, one discriminatory intent. See Spulak v. K Mart might infer that something beyond the Coip., 894 F.2d 1150, 1156 (10th Cir. misconduct (such as a bias by X against 1990). For example, in Greene v. Safeway Hispanics) motivated the disciplinary action. Stores, Inc., 98 F.3d 554 (10th Cir. 1996), But if it was Y, not X, who decided not to and Bingman v. Natkin & Company, 937 impose a harsher sanction against B, one F.2d 553 (10th Cir. 1991), we recognized cannot infer that X's decision to fire A must evidence the employer had terminated other have been motivated by something other older employees was relevant as evidence of than A's misconduct. X may simply have a a pattern of dismissal based on age. less tolerant view toward misconduct than Y Similarly, in Coletti v. Cubb Pressure does. Cf. Kendrick, 220 F.3d at 1233 Control, 165 F.3d 767. 776 (10th Cir. 1999), ("Different supervisors will inevitably react

211 differently to employee insubordination."). create an unwarranted disparity between Rivera v. City and County of Denver, 365 those cases where the plaintiff is fortunate F.3d 912. 922 (10th Cir. 2004). This case, enough to have other RIF'd employees in on the other hand, is not about individual the protected class working for her conduct but about a company-wide policy of supervisor, and those cases where the which all Sprint's supervisors were plaintiff is not so fortunate. We do not think allegedly aware. Accordingly, we decline to such disparity should exist. extend the "same supervisor" rule beyond the context of disciplinary cases. B.

Since deciding Aramburu, we have only The testimony of the other employees applied the "same supervisor" rule in the concerning Sprint's alleged discriminatory context of alleged discriminatory discipline. treatment and similar RIF terminations is See, e.g., MacKenzie v. City and County of "logically or reasonably" tied to the decision Denver, 414 F.3d 1266, 1277 (10th Cir. to terminate Mendelsohn. Spulak, 894 F.2d 2005); Rivera, 365 F.3d at 922; Kendrick v. at 1156 n. 2 (upholding a district court's Penske Transp. Services, Inc., 220 F.3d decision to allow former employees in the 1220, 1232 (10th Cir. 2000). For example, protected age group to testify about the in Gossett v. Oklahoma ex rel. Bd. of circumstances surrounding their Regents for Langston University, 245 F.3d employment departure). In this case, the 1172 (10th Cir. 2001), a gender other employees' testimony is logically tied discrimination case, we declined to extend to Sprint's alleged motive in selecting the application of the "same supervisor" rule Mendelsohn to the RIF. Although beyond its original context. Mendelsohn and the other employees worked under different supervisors, Sprint Aramburu has no application where, as here, terminated all of them within a year as part plaintiff claims to be a victim of a company- of an ongoing company-wide RIF. All the wide discriminatory RIF. Applying employees were in the protected age group, Aramburu's "same supervisor" rule in the and their selection to the RIF was based on context of an alleged discriminatory similar criteria. Accordingly, testimony company-wide RIF would, in many concerning the other employees' circumstances, make it significantly circumstances was relevant to Sprint's difficult, if not impossible, for a plaintiff to discriminatory intent. prove a case of discrimination based on circumstantial evidence. Conceivably, a According to the dissent, the evidence plaintiff might be the only employee Mendelsohn proffered need not be admitted selected for a RIF supervised by a particular because it is "devoid of independent supervisor. Meanwhile, scores of other evidence showing that Sprint had company- employees within the protected group also wide discriminatory policies." Dissent at 4. selected for the RIF might work for different The dissent, however, does not explain what supervisors. In such cases, the constraints of this independent evidence might be. In Aramburu would preclude a plaintiff from Gossett. we noted that evidence regarding introducing testimony from those other the discriminatory application of an employees. Applying Aramburu to cases of enterprise-wide policy by other supervisors discrimination based on an alleged was admissible when the plaintiff has "other company-wide discriminatory RIF would evidence of that policy[.]" 245 F.3d at 1177.

212 Thus, we required a plaintiff to proffer employees identified in the spreadsheets evidence, other than her own testimony, testified at trial. The dissent fails to concerning the alleged application of said recognize the limited purpose for which the policy. In Gossett, the plaintiff satisfied this district court admitted this evidence as well requirement by introducing an affidavit from as the distinct characteristic of the evidence a former student and professor concerning the district court excluded in its ruling on the the application of the policy. Id. at 1177, motion in limine. 1179 n. 2. Of particular relevance to the case was Similarly, Mendelsohn in this case proffered whether Sprint followed its own procedures independent evidence in the form of when it selected Mendelsohn for the RIF. In testimony from other Sprint employees who fact, the district court denied Sprint's motion were similarly terminated during the RIF. for summary judgment on this very issue. The dissent mistakenly reads Gossett to The district court made quite clear that require independent evidence apart from that exhibits 3 and 4 as well as Renda's evidence which Mendelsohn has proffered. testimony was allowed to come in for the Reading Gossett in such a manner may place purpose of determining Sprint's compliance an insurmountable evidentiary burden upon with its procedures: a claimant entitled to prove her case of age discrimination by circumstantial evidence. [T]he reason I overruled your See Merrick v. Northern Natural Gas Co., motion for summary judgment Div. of Enron Corp., 911 F.2d 426, 429 was because there was, I thought, (10th Cir. 1990)(noting the ADEA does not sufficient evidence in the record require an employee to produce direct that Sprint didn't follow its own evidence of discriminatory intent; rather the procedures. I think that makes the employee only need show the employer's whole process, you know, fair proffered justification is unworthy of belief). game. what was the procedure and We respectfully disagree with the dissent's was it followed? And if this interpretation of Gossett. spreadsheet was used as part of the implementation of the RIF and it Moreover, the dissent claims "the district has ages on it, then I think that it's court did not apply a narrow interpretation fair game for the jury. of admissibility to the evidence of company- wide discrimination," because the district court admitted into evidence exhibits 3 and 4. Dissent at 2. Those exhibits are a It was never my intention to compilation of documents Sprint used preclude Plaintiff from putting on during the RIF process that includes evidence about the RIF, how it spreadsheets containing, among other data, worked, whether Sprint followed the names and age of Sprint employees who its own RIF procedures, et. cetera. were being considered for termination. In addition, the court permitted Jo Renda, Aplt's Supp. Appx. at 88, 92-93. In response Director of Human Resources, to testify to Sprint's concerns regarding the improper concerning the use of these documents use of this evidence the district court during the RIF process. With the exception reiterated that its in limine ruling was aimed of Mendelsohn, however, none of the at excluding "other employees . . from

213 coming in and saying, I was RIF'd, it was Rural Elec. Co-op., 110 F.3d 1501, 1508 because of my age" and that the ruling (10th Cir. 1997). But the court's discretion applied to this evidence. Id. at 93-94. The over evidentiary matters should not unfairly court made clear Mendelsohn's use of this prevent a plaintiff a full opportunity to evidence would have to conform to the in present her case. See Gossett, 245 F.3d at limine ruling. See id. at 55-56. Therefore, 1178. Blanket pretrial evidentiary these exhibits were not offered for the exclusions, in particular, "can be especially purpose of showing pretext under the theory damaging in employment cases, in which Sprint had a policy of favoring younger plaintiffs must face the difficult task of employees. Instead, the district court persuading the fact-finder to disbelieve an admitted this evidence under a different employer's account of its own motives." theory of pretext by showing Sprint did not Hawkins v. Hennepin Technical Center, 900 follow its own RIF criteria. In addition, Jo F.2d 153 (8th Cir. 1990)(citation omitted). Renda was able to use this evidence to find The evidence which Mendelsohn seeks to examples of older employees whom Sprint present, "is certainly not conclusive had retained, even though they were not evidence of age discrimination itself, but it supervised by Reddick. Thus, the district is surely the kind of fact which could cause court's in limine ruling disadvantaged a reasonable trier of fact to raise an Mendelsohn further because Sprint was eyebrow, and proceed to assess the allowed to portray itself as retaining older employer's explanation" for its motive in employees, aside from Mendelsohn, even terminating Mendelsohn. Greene, 98 F.3d at though these employees were not all 561. Age as a motivation for Sprint's supervised by Reddick. selection of Mendelsohn to the RIF becomes more probable when the fact-finder is ... The nature of the evidence Mendelsohn allowed to consider evidence of (1) an proffered is vastly different from the atmosphere of age discrimination, and (2) evidence the jury considered-merely Sprint's selection of other older employees names and dates of birth. Evidence of an to the RIF. employer's alleged prior discriminatory conduct toward other employees in the C. protected class has long been admissible to show an employer's state of mind or attitude Finally, Sprint argues the testimony should toward members of the protected class. See, be excluded under Fed. R. Evid. 403. Rule e.g.. McDonnell Douglas Corp., 411 U.S. at 403 allows a district court to exclude 804; Aikens, 460 U.S. at 713-14 n. 2; Estes relevant evidence when concerns over unfair v. Dick Smith Ford, Inc.. 856 F.2d 1097. prejudice, confusion, or waste of time 1102-03 (8th Cir. 1988); Hunter v. Allis- substantially outweigh the probative value Chalmers Corp., Engine Div., 797 F.2d of the evidence. Sprint argues that allowing 1417, 1423-24 (7th Cir. 1986). These other the evidence would prejudice Sprint because employees should have been allowed to take it would result in Sprint having to defend the stand and testify subject, of course, to multiple claims of discrimination. To be any district court ruling regarding the proper sure, the district court retains its power to use and limitations of such testimony. limit cumulative and marginally relevant testimony. But otherwise, we disagree. Generally, a court's evidentiary ruling is Excluding otherwise admissible evidence entitled to deference. See Shugart v. Central under Rule 403 "is an extraordinary remedy

214 [that] should be used sparingly." United made no independent showing of a States v. Roberts, 88 F.3d 872, 880 (10th company-wide policy of discrimination. Cir. 1996). "In performing the 403 balancing, the court should give the A. evidence its maximum reasonable probative force and its minimum reasonable A brief review of the evidence the court prejudicial value." Deters v. Equifax Credit admitted will place its ruling in perspective. Info. Servs., Inc., 202 F.3d 1262, 1274 (10th First, despite its pre-trial ruling regarding Cir. 2000)(internal quotations omitted). the witness testimony, the court admitted Little doubt exists that the admission of Exhibits 3 and 4, voluminous documents evidence about other alleged episodes of from Sprint's "succession planning" file, discrimination would inconvenience Sprint. including notes on employees slated for But the fact Sprint would have to rebut this termination pursuant to the company-wide testimony is not in itself enough to outweigh RIF. Both exhibits show that Sprint kept the probative value of Mendelsohn's information on the gender, ethnicity and age proffered evidence. See Bingman, 937 F.2d of employees alongside other information at 557. Based on the record before us, we on their performance and perceived cannot say the evidence is unduly "4potential." . prejudicial. 5 Second, the court also allowed testimony Accordingly, for the reasons stated above regarding the RIF dismissal of Marc Elster, the district court's order denying one of Reddick's peers who was 51 at the Mendelsohn's motion for a new trial is time of his termination.... reversed. We remand to the district court for further proceedings consistent with this This evidence shows that the district court opinion. did not apply a narrow interpretation of admissibility to the evidence of company- REVERSED and REMANDED. wide discrimination proffered by Mendelsohn.... TYMKOVICH, CircuitJudge, dissenting.

I respectfully dissent because I do not believe the district court abused its Finally, in addition to admitting actual discretion in its evidentiary rulings evidence of pretext, the district court excluding testimony. At the outset, I agree rejected a jury instruction proffered by that the district court's ruling is difficult to Sprint, which would have instructed jurors decipher, especially looking solely at the to consider only evidence about employees minute order. In the context of the trial, similarly situated to Mendelsohn. The court however, I think the court's ruling is clear explained that evidence outside of Reddick's enough-the proffered testimony from other chain of command had been allowed to employees failed to satisfy the relevancy and come in as relevant to the question of prejudice requirements of Rule 403. pretext.. .. Moreover, I believe the majority makes a mistake in holding that testimony from other In sum, it appears to me that the plaintiff had employees not similarly situated is an adequate opportunity to introduce admissible even where the plaintiff has relevant evidence of Sprint's corporate

215 policies and practices surrounding the RIF this does not in and of itself support the and argue that the RIF was itself a pretext conclusion that Reddick was so motivated. for age discrimination. I am further Nor does it establish that the RIF's convinced of this after studying the "subjective criteria" was a pretext for age proposed testimony of the five witnesses discrimination. While Sprint may well have proffered by Mendelsohn and excluded by had policies designed to discriminate against the district court. Their proposed testimony older employees, without more, the seems a mixture of hearsay and speculation excluded testimony does nothing to establish that would be marginally admissible in any that fact, nor does it directly support an event. I cannot say that the court erred in inference that Mendelsohn's termination excluding such testimony under the was wrongfully motivated. See Carpenterv. standards of Rule 403. Boeing Co. 456 F.3d 1183 (10th Cir. 2006) (discussing use of statistical evidence to I readily admit that the court would not have support claim of disparate treatment). The erred in admitting the evidence. see, e.g., evidence must tend to show that the Spulak v. K Mart Corp., 894 F.2d 1150, company had a policy to discriminate, not 1156 (10th Cir. 1990), but I am equally merely a policy applied in a discriminatory confident that the court did not abuse its manner by an individual supervisor or discretion in choosing to exclude it. supervisors.

B. The second and more important hazard of the majority's approach is the narrow The larger problem with the majority's reading it gives to Aramburu. The so-called position is it suggests that anecdotal ".same supervisor" rule articulated in that evidence from employees throughout a large case recognizes that where an employee has organization will be per se admissible when putatively been fired for the violation of a offered in the context of alleged workplace rule, an inference of discrimination in a RIF. This appeal discrimination is more likely where the same illustrates the hazard of such an approach for supervisor disciplines similarly situated several reasons. employees differently. Aramburu v. The Boeing Co., 112 F.3d 1398. 1403 (10th Cir. The first reason is the lack of any statistical 1997). or other direct evidence that supports an inference of enterprise-wide discrimination. But it is equally plausible that an employer Given the size of Sprint, the fact that could have a company-wide policy of using Mendelsohn found five former employees disciplinary actions as a pretext for unlawful who believed they were victims of age discrimination. In such a case, I suspect we discrimination is not meaningful until a would modify the applicable relevancy specific evidentiary foundation has been standard in order to account for and allow laid. The proffer of evidence here is devoid evidence of a company-wide policy. of independent evidence showing that Sprint had company-wide discriminatory policies. I would do the same in the RIF context and Even taking as true Mendelsohn's assertion apply the Aramburu rule in cases like this that these witnesses would provide credible one unless "independent evidence of evidence that managers other than Reddick specific enterprise-wide policy" has been were motivated by discriminatory animus, developed. Rivera v. City and County of

216 Denver, 365 F.3d 912, 922 (10th Cir. 2004). But it is equally plausible that an employer Since Mendelsohn did not establish a could have a company-wide policy of using foundation that the proffered evidence disciplinary actions as a pretext for unlawful would support such a finding, and since she discrimination. In such a case, I suspect we otherwise had the opportunity to present would modify the applicable relevancy evidence to the jury of other older standard in order to account for and allow employees subject to the RIF, the district evidence of a company-wide policy. court did not abuse its discretion in excluding the additional witness testimony. I would do the same in the RIF context and apply the Aramburu rule in cases like this The second and more important hazard of one unless "independent evidence of the majority's approach is the narrow specific enterprise-wide policy" has been reading it gives to Aramburu. The so-called developed. Rivera v. City and County of "same supervisor" rule articulated in that Denver, 365 F.3d 912. 922 (10th Cir. 2004). case recognizes that where an employee has Since Mendelsohn did not establish a putatively been fired for the violation of a foundation that the proffered evidence workplace rule, an inference of would support such a finding, and since she discrimination is more likely where the same otherwise had the opportunity to present supervisor disciplines similarly situated evidence to the jury of other older employees differently. Aramburu v. The employees subject to the RIF, the district Boeing Co., 112 F.3d 1398, 1403 (10th Cir. court did not abuse its discretion in 1997). excluding the additional witness testimony.

217 "Workplace Bias Evidence Draws Supreme Court Scrutiny"

Bloomberg June 11, 2007 Greg Stohr

The U.S. Supreme Court will use an age- AT&T Inc., Honeywell International Inc. bias lawsuit against Sprint Nextel Corp. to and Lockheed Martin Corp. joined Sprint in consider limiting the ability of workers to urging the high court to take up the case, present evidence of discrimination against saying the issue is a recurring one in other employees at trial. employment-discrimination lawsuits.

The justices today agreed to hear arguments In siding with Mendelsohn and ordering a from Sprint, the nation's third-largest new trial, the Denver-based 10th U.S. mobile-phone service provider, in its bid to Circuit Court of Appeals said the testimony end an age-bias lawsuit by Ellen was relevant because the other workers lost Mendelsohn, who lost her job as a manager their jobs as part of the same layoff. Like during layoffs in 2002. Sprint wants the Mendelsohn, all five worked for Sprint in court to reinstate a jury verdict in the Kansas City, Kansas, though they didn't company's favor. report to her supervisor.

The court will consider the admissibility of "The 10th Circuit, like other courts of what Sprint calls "me, too" evidence- appeals, addresses on a case-by-case basis testimony by other alleged victims of the relevance of anecdotal evidence of other discrimination. In ruling against Sprint, a discrimination," argued Mendelsohn, who federal appeals court said five of was 51 when she was fired. Mendelsohn's former coworkers should have been allowed to testify in the case. Sprint is based in Reston, Virginia.

"For the trial to be fair, district judges must The justices will hear arguments during their retain the discretion to declare that such 2007-08 term, which starts in October. proof, whatever its marginal probative value, is unfairly prejudicial," Sprint argued The case is Sprint/United Management v. in court papers, filed in Washington. Mendelsohn, 06-1221.

218 "Job Bias and "Me, Too" Evidence"

SCOTUS Blog June 11, 2007 Lyle Denniston

Workers who believe they lost a job or a She was laid off-one of 18 persons in her workplace opportunity because of their age group who lost their jobs in the downsizing. must offer proof that their age was the Sprint later claimed that her performance motivating factor for what happened to had been weak, and that is why she was them. Since there is seldom direct evidence included in the group that got laid off. She of the employer's mindset, lawyers for claimed age bias was the controlling factor, workers in such cases try to prove a general charging company-wide discrimination propensity in the management of the against older workers. The Equal company to favor younger workers. On Employment Opportunity Commission Monday, the Supreme Court said it will rejected her challenge, finding no evidence consider, at its next Term, whether a worker of an ADEA violation. She thus was free to claiming discrimination under the Age sue, and did so. Discrimination in Employment Act can bring other workers into the case to testify She asserted in her lawsuit that the bias that they, too, were victims of age bias on against her was typical for the Sprint unit. the job-so-called "me, too" evidence. The Her lawyers then began assembling proof other workers would not have been in the for the trial. case as actual parties, but were available to tell their stories to help prove the claim. Mendelson's counsel sought to call five (The new case does not involve a claim of a other ex-employees of Sprint, all within the pattern or practice of discrimination based 40-and-over age range-the range protected on age, but only a single worker's claim.) by ADEA from discrimination. They, too, were ready to testify that they also were The case[, Sprint/United Manageient i. victims of discrimination, as was Mendelsohn,] involves Ellen Mendelson, Mendelson. Sprint lawyers objected, arguing who worked for a company in Kansas City, that they were not in the same situation as Mo.. named Sprint/United Management Co. Mendelson, because none of them had (a subsidiary of Sprint Nextel Corp.) She worked for the supervisor who made the was on the payroll there from 1989 to decision to lay off Mendelson. The District November 2002. working in business Court ruled that only workers laid off by the development activities. same supervisor could be called to testify on Mendelson's claim, so it barred the In the fall of 2002, the Sprint unit, hit by the prospective witnesses on her side. The case recession that generally spread through the went to a jury, and it ruled in favor of Sprint, telecom industry, decided to downsize its finding no discrimination against payroll. Other Sprint units elsewhere were Mendelson. also involved in the cutback, with the release of some 15,000 workers. The case then moved to the Tenth Circuit, which ruled in a 2-1 decision last Nov. 1 that Mendelson, at the time, was 51 years old. a District Court trying an ADEA case must

219 admit any testimony of other workers who admit 'me, too' evidence-testimony by claimed to suffer the same sort of bias nonparties, alleging discrimination at the against them-even if they had worked for a hands of persons who played no role in the different supervisor, or in a different work adverse employment decision challenged by unit for the same employer. While the the plaintiff." It contends that the Tenth Circuit Court said that, in the past, it had Circuit ruling conflicts with decisions in limited testimony in a job bias case to that of other circuits-four holding that such other workers who had the same supervisor, evidence is wholly irrelevant, and five it stressed that the prior case involved only a excluding it under the Federal Rules of claim of discriminatory disciplinary actions, Evidence. The issue, the appeal said, is a and it had never applied that restriction in recurring question of proof in workplace any other workplace context. discrimination cases.

If "me, too" evidence were excluded when The appeal is supported by he Equal different supervisors were involved, the Employment Advisory Council and the Circuit Court said, that would make it Society for Human Resource Management. significantly more difficult in many They contended that admission of "me, too" circumstances to prove discrimination based evidence will prolong litigation in on circumstantial evidence. Conceivably, an workplace cases, and will unfairly prejudice individual worker might be the only management as it seeks to defend itself, employee chosen for a reduction in force by since management would be forced to justify a particular supervisor, but scores of other every other employment decision it had workers within the 40 and older group might made against any worker who is allowed to have been treated the same way by other come in and testify. supervisors. The case will be briefed over the summer, Sprint/United's petition for review raises and will be heard sometime in the fall or this question: "whether a district court must early winter.

220