April 18, 2016

Certiorari denied in Shea v. Kerry

By Joshua P. Thompson Senior Attorney

The Supreme Court denied certiorari this morning in Shea v. Kerry, PLF’s case challenging the Department of State’s race-based hiring practice. This is a disappointing end to a very important case.

William Shea was hired as an entry-level Foreign Service officer by the State Department 25 years ago.  At the time of his hiring, however, the State Department allowed non-white males to be hired directly into mid-level grades. In other words, if you had a skin color different from Shea’s, you could get paid more and advance more swiftly through the ranks of the Foreign Service. Shea felt this racial preference and the accompanying disparity in pay violated his rights under Title VII of the Civil Rights Act of 1964.  In 2000, he sued the Department of State for racial discrimination.

Shea’s case bounced around the federal courts for years. He was dismissed by the district court twice, and the court of appeals overturned both dismissals.  After the district court dismissed the case for the third time, some 13 years after he filed suit, Shea reached out to Pacific Legal Foundation. After he contacted us, I read the opinion of the District Court, which granted summary judgment to the State Department and dismissed the case. It was clear to me that Shea had a great chance of reversing that decision and of setting very important precedent. One issue stood out to me in particular: After Ricci v. DeStefano how can a non-minority plaintiff bear the burden of proving the illegality of race-based affirmative action plan? Differently stated, since Ricci held that all race-based decisionmaking must be justified by a “strong basis in evidence”, how can the government institute a race-based policy without proving preferences are necessary to remedy past discrimination?

This important question led PLF to get involved in the case. If we could show that Ricci changed the standard of proof in race-based affirmative action cases under Title VII, we could establish important precedent for ensuring equality under the law. The case could also go a long way towards returning Title VII to its original meaning.

As we began litigating the case, however, new questions emerged. Not only was it unfair to place the burden on the individual discriminated against, but even under that unfair standard, the Department of State should have lost. After examining the evidence in detail, the State Department had no evidence that the disparities in the mid-levels of the Foreign Service were caused by past discrimination. That’s no exaggeration. The State Department had no evidence because there was no disparity!  The mid-levels of the Foreign Service — where individuals received the racial preference — was not racially imbalanced. Accordingly, as we litigated the appeal, we asked: How can race-based affirmative action that targets a specific job category, be justified if there is no racial imbalance in that job category?

Despite our best efforts, the D.C. Court of Appeals affirmed the district court’s decision. On the Ricci, issue, the Court simply said that until the Supreme Court explicitly overrules Johnson and WeberRicci doesn’t apply to race-based action taken in furtherance of an affirmative action plan.  [Never mind that it is illogical to hold that the government needs strong basis in evidence to discriminate when avoiding a disparate impact violation, but it needs no evidence whatsoever to discriminate in the first instance pursuant to an affirmative action plan.] On the question of the evidence presented, the D.C. Circuit held that an employer need not show a racial imbalance in the job category targeted by the preference — it suffices if the employer shows that there is an imbalance in different job categories that might, eventually, hopefully, someday, perhaps, be filled by the individuals receiving the preference.

As a result of the D.C. Circuit’s decision, we believed we had a very good chance of having the Supreme Court review the case. Moreover, as we discussed this case with leading Supreme Court attorneys, a new issue emerged: Title VII’s Section 717 — which applies exclusively to the federal government — has never been interpreted to permit race-based affirmative action plans at all. Unlike Section 703, which has the erroneous Johnson and Weber opinions as precedent, Section 717 has never been interpreted to permit such race-based decisionmaking. Review of the lower court’s decision would allow the Supreme Court to put some real teeth into Section 717, and it would allow the Court to do so without necessarily overturning Johnson and Weber.

Armed with these certiorari-worthy issues, we felt we had a very good chance to have William Shea’s case heard by the Supreme Court. In addition, four amicus briefs were filed in support of certiorari. The Southeastern Legal Foundation filed this brief, which was joined by the Cato Institute, the Center for Equal Opportunity, and the National Association of Scholars. The Center for Individual Rights filed a brief. Mountain States Legal Foundation filed an amicus brief in support of certiorari. And U.S. Commissioners on Civil Rights Gail Heriot and Peter Kirsanow filed an amicus brief. Such strong support bode well for our chance of having certiorari granted.

Then, very sadly, Justice Scalia passed away. Of course, his passing was sad for so many reasons, but as it pertains to our case, Justice Scalia, was a leading voice for equality under the law. With his absence on the Court, the likelihood of receiving that fourth vote in support of certiorari was slim. It was not just a matter of losing one vote, but it also cast doubt on the the likelihood of overturning the D.C. Circuit Court of Appeals’s decision. Would the other four right-leaning Justices vote for certiorari if they weren’t sure who the fifth member of the Court would be? Not bloody likely.

Even when the Justice Department authored a less-than-stellar brief opposing certiorari, the likelihood of certiorari was slim. So today’s result, while extremely disappointing, is not unexpected. In a final stroke of bad luck, the composition of the Supreme Court was not in William Shea’s favor when his certiorari petition was reviewed. Although it is always an uphill battle to get a case heard by the Justices, with the timing of Shea’s case and Scalia’s passing, it was even tougher.

At Pacific Legal Foundation, we get excited about legal issues, and the opportunity to set important precedent — especially in front of the Supreme Court. The chance to argue Ricci, overturn Johnson and Weber, return Title VII to its original meaning, and put some teeth into Section 717 will come again. William Shea paved the way for those arguments to be raised in a different case. The issues are important, they are on the radar of many liberty-loving organizations, and they should be resolved. When the next case comes along, Pacific Legal Foundation will be there, and we’ll have William Shea to thank for it.

But for William Shea, today’s decision must be disappointing.  He has litigated this case for fifteen years — most of that time pro se. He successfully reversed two dismissals of his case. He stood on the side of justice and equality. He deserved his chance before the Supreme Court. He was denied that chance.

Over the past few years, I’ve exchanged phone calls and emails with Bill. He is still serving his country in the Foreign Service. He is a smart, practical, and understanding person. He has always helped me understand the complexities of his case, but also was willing to defer to PLF’s legal judgment. He was the ideal client. We had always hoped to meet in person, at counsel table when the Supreme Court was hearing his case. That is not to be. But when these issues are raised the next time, he’ll be the first one I call.

What to read next