Monday, June 9, 2008

The Supreme Court As Meat-Axe: Engquist Loses EP "Party of One" Case

4united_states_supreme_court_112904 As Radiohead once said, "No Surprises." (The mood of the song is perfect for this post. Listen to it as you read - "They don't speak for us.").

Here's the syllabus in Engquist v. Oregon Dept of Justice (US 06/09/2008), a 6-3 decision written by Chief Justice Roberts (joined by Justices Scalia, Kennedy, Thomas, and surprisingly and disappointingly, Breyer), which further deprives public employees of constitutional rights.

Petitioner Engquist, an Oregon public employee, filed suit against respondents— her agency, her supervisor, and a co-worker—asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called “class-of-one” claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The jury rejected the class-membership equal protection claims, but found for Engquist on her class-of-one claim. The Ninth Circuit reversed in relevant part. Although recognizing that this Court had upheld a class-of-one equal protection challenge to state legislative and regulatory action in Village of Willowbrook v. Olech, 528 U. S. 562, the court below emphasized that this Court has routinely afforded government greater leeway when it acts as employer rather than regulator. The Court concluded that extending the class-of-one theory to the public employment context would lead to undue judicial interference in state employment practices and invalidate public at-will employment.

Held: The class-of-one theory of equal protection does not apply in the public employment context.

(a) There is a crucial difference between the government exercising “the power to regulate or license, as lawmaker,” and acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896. Thus, in the public employment context, the Court has recognized that government has significantly greater leeway in its dealings with citizen employees than in bringing its sovereign power to bear on citizens at large. See, e.g., O’Connor v. Ortega, 480 U. S. 709, 721–722. The relevant precedent establishes two main principles: First, government employees do not lose their constitutional rights when they go to work, but those rights must be balanced against the realities of the employment context. See, e.g., id., at 721. Second, in striking the appropriate balance, the Court considers whether the claimed employee right implicates the relevant constitutional provision’s basic concerns, or whether the right can more readily give way to the requirements of the government as employer. See, e.g., Connick v. Myers, 461 U. S. 138.

(b) The Court’s equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425. Olech did recognize that a class-of-one equal protection claim can in some circumstances be sustained. Its recognition of that theory, however, was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle to the facts in that case: The government singled Olech out with regard to its regulation of property, and the cases upon which the Court relied concerned property assessment and taxation schemes that were applied in a singular way to particular citizens. What seems to have been significant in Olech and the cited cases was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. This differential treatment raised a concern of arbitrary classification, and therefore required that the State provide a rational basis for it.

There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases treating like individuals differently is an accepted consequence of the discretion granted to governmental officials. This principle applies most clearly in the employment context, where decisions are often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. Unlike the context of arm’s length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course. It is no proper challenge to what in its nature is a subjective and individualized decision that it was subjective and individualized. That the Court has never found the Equal Protection Clause implicated in this area is not surprising, given the historical understanding of the at-will nature of government employment. See, e.g., Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896. Recognition of a claim that the State treated an employee differently from others for a bad reason, or for no reason at all, is simply contrary to the at-will concept. The Constitution does not require repudiating that familiar doctrine.

Finally, the Court is guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, supra, at 143. If class-of-one claims were recognized in the employment context, any personnel action in which a wronged employee can conjure up a claim of differential treatment would suddenly become the basis for a federal constitutional claim. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423.

No surprises (see here, even with incompetent oral argument), except I thought it would be 9-0).  Instead it was 6-3. Good for Stevens (along with Souter and Ginsburg) for fighting the good fight.  Stevens wrote eloquently:

In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, Bush v. Lucas, 462 U. S. 367 (1983), or for the nonconstitutional claims of state employees, Bishop v. Wood, 426 U. S. 341 (1976). But refusal to give effect to the congressionally mandated remedy embodied in §1983 would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional violation at all, and that there was thus no harm to be remedied. In so holding, the Court—as it did in Garcetti v. Ceballos, 547 U. S. 410 (2006)—carves a novel exception out of state employees’ constitutional rights. In Garcetti, the Court created a new substantive rule excepting a category of speech by state employees from the protection of the First Amendment. Today, the Court creates a new substantive rule excepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection “class of one” claims, the Court should use a scalpel rather than a meat-axe.

Well put, indeed.  Seeing employment-at-will re-validated (although maybe pleasing those who champion the current Restatement on Employment Law), along with Garcetti, has given me literal indigestion.

But, Stevens, the author of Bush v. Lucas gives hints that he, and two others, might be willing to consider giving back Pickering rights to federal employees through an amendment to Section 1983 (I'm reading way between the lines).  It seems less likely he would agree with me that the CSRA of 1978 is no longer vindicating the rights of federal employees as I have argued in Whither the Pickering Rights of Federal Employees? My only wish was that he saw how this also connected with recognized public employee sexual privacy rights under Lawrence v. Texas and applying the Pickering analysis to substantive due process and equal protection clause claims under the Fourteenth Amendment, as I argued in The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional Non-Interference in Private Affairs.

Hat Tip: Ross Runkel


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In a 6-3 decision written by Chief Justice John Roberts, the Supreme Court in Engquist v. Oregon Dep't of Agriculture held that a discrimination lawsuit against the government for engaging in class of one discrimination does not apply in ... [Read More]

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