Monday, August 15, 2011

Dissing Dicta

New Image For those of you who have been following the twists and turns of the Ricci case (broadly viewed) after the Supreme Court's opinion, there's yet another dramatic development. Although the Ricci plaintiffs had their victory, a black firefighter, Michael Briscoe, challenged the use of the promotion test as having an unjustified impact on African Americans. Given that he was not a party to the Ricci litigation, it would seem that the district court would have had to consider his claim free of any preclusion effects.

But not so fast. Justice Kennedy, having envisioned this very possibility in Ricci, wrote a convoluted sentence whose purpose was to make clear that black firefighters couldn't prevail should they sue. 

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

And the district court seemed to think that, regardless of the normal rules of preclusion, a nonparty such as Briscoe could be bound when the Supreme Court explicitly addresses his situation: if plaintiff were denied his day in court, that was because Justice Kennedy had said so. Accordingly, it dismissed the suit.

The latest twist in this tale is from the Second Circuit, which reversed the district court in Briscoe v. City of New Haven. The city did not defend the lower court judgment by arguing preclusion -- and the panel agreed that "the district court's theory is inconsistent with well-settled principles of non-party preclusion." While the 1991 Civil Rights Act had widened the possibilities of preclusion in civil rights cases, the Second Circuit found that Briscoe did not fit into either of the categories for which Congress envisioned a nonparty being barred. "We are skeptical that the Court would use one sentence in Ricci to silently revise preclusion principles that were unanimously reaffirmed just over a year before in Taylor [v. Sturgell]."  

The city put its eggs in a different basket and argued that, per Justice Kennedy's opinion and regardless of preclusion, the Supreme Court's decision provided the requisite strong basis in evidence of disparate treatment liability, which would exonerate the city from a disparate impact claim. The Second Circuit disagreed because "we see no way to reconcile the dicta.. . with either the Court's actual holding in Ricci or longstanding, fundamental principles of Title VII law." 

The opinion is well-worth reading since, whatever you think of the basic holding in Ricci, Kennedy's language had the potential to do even more damage to the disparate impact theory, Indeed, his sentence is a kind of infinite regress -- there's disparate treatment if there isn't (a strong basis) for disparate impact and there isn't a strong basis for disparate impact because of the disparate treatment....   

As the previous passage suggests, every time I read Justice Kennedy's sentence, I got confused. But the  Second Circuit has done a lot to dispel the confusion, and confine Ricci to its holding rather than its dicta. The opinion is well worth a read, and I congratulate David Rosen on both his filing suit on behalf of Michael Briscoe and his persevering in the face of the district court's dismissal.


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And check out Joe Seiner's "intriguing" shout-out in footnote 13.

Posted by: Rick Bales | Aug 15, 2011 12:28:59 PM

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