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Hogan Lovells’ Win for Class-Certification of Afro-American Secret Service Agents


Hogan Lovells

' Win for Class-Certification of Afro-American Secret Service Agents

Hogan Lovells' recent win this August in a matter for class-certification of African-American Secret Service agents at the U.S. Court of Appeals for the D.C. Circuit is significant in that the court opinion clears up a lot of the mess that came in the wake of Wal-Mart Stores Inc. V. Dukes (2011). The order was in respect of the government asking the Court of Appeals to exercise its discretion under Rule 23(f) to grant interlocutory review, and those interested can also check out how the court dealt with the application of Rule 23(f) in its opinion.

The court ultimately decided that even if the district court had erred in the class-certification, such error was not manifest and there was no need to review it at the current stage of litigation. Hogan Lovell's press release concerning the case can be found here.

In Wal-Mart, class-certification perceptions received a heavy blow when the U.S. Supreme Court found a putative class alleging employment discrimination failed the commonality requirement. In essence, the Supreme Court stated that a group of discriminated employees cannot constitute a class unless it could be found that "examination of all the class members' claims for relief will produce a common answer to the crucial question why I was disfavored."

In distinguishing the present case from Wal-Mart, the DC Court of Appeals observed that "In Wal-Mart, the only feature common to all promotion decisions was the policy of delegating those discretionary decisions to individual store managers… In contrast, under the MPP here at issue, every class member was evaluated upon the same criteria and scored using the same numerical system."

The court considered that in case of Wal-Mart what all plaintiffs had in common was that each manager's decision was different. In the present matter, the D.C. Circuit observed, "Although different decision makers no doubt injected some subjectivity into the evaluations of different class members, which might be enough to cast doubt upon the commonality of their claims … the policy here was far from the complete delegation involved in Wal-Mart."

Also, on what is now known as a Teamsters hearing issue, the D.C. Circuit cited the U.S. Supreme Court saying that in pattern-or-practice class actions, the plaintiffs can first "demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer" and then members of the class will have the benefit of that presumption at his or her individualized hearing (Int'l Bhd. Of Teamsters v. United States, 1977).

The court said that in Wal-Mart, the Supreme Court had held that a defendant must have the opportunity in a Teamsters hearing to rebut this presumption of discrimination on an individualized basis, and "a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its statutory defenses to individual claims." However, according to the D.C. Circuit, in the present case the district court anticipated individualized Teamsters hearings and so, in effect complied in advance with that aspect of the Wal-Mart decision." While in Wal-Mart the lower courts had certified the class on the ground that individualized issues could be resolved on a classwide basis, in this matter the district court certified a "class action with respect to particular issues" which it is authorized to do by Rule 23(c)(4) of the Federal Rule of Civil Procedure.

The final word of the Court of Appeals for the D.C. Circuit in denying the government's application to deny class certification to African-American members of the Secret Service was that "Although we recognize there are unsettled questions of law relating to class actions at issue in this case, now is not the appropriate time to resolve them … None of the district court's rulings … is foreclosed by controlling precedent and the unsettled questions are not likely to evade end-of-the-case review."

Hogan Lovells Appellate practice co-chair Cate Stetson said, "This was a resounding victory for our clients … The Court clearly saw the Secret Service's arguments for what they were: unsupported theories presented in an effort to further delay resolution of this important case."

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