Category: reason

Yesterday, a per curiam Sixth Circuit panel (Sutton, McKeague, and Nalbandian) decided Maryville Baptist Church v. Beshear. (Eugene blogged about it earlier.) This decision halted the Kentucky governor’s prohibition on “drive-in” church services. The Governor’s policy, the court found, violates the Kentucky Religious Freedom Restoration Act and the Free Exercise Clause. I commend this opinion on several levels.

First, the decision approaches this difficult issue with the sobriety and respect it deserves. There was no hyperbolic rhetoric or accusations of bad faith. Indeed, the Court credited the Governor with the presumption of regularity:

We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth’s citizens.

The panel found that the Governor was doing his best to prevent the spread of an unprecedented epidemic.

Second, the court only decided issues that it needed to resolve. Specifically, it declined to resolve the validity of the in-person service ban:

The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fastmoving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to inperson services at this point. We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it’s not always easy to decide what is Caesar’s and what is God’s—and that’s assuredly true in the context of a pandemic.

The last sentence had a subtle, but effective reference to religion.

Third, the decision provides reasoned consideration that people of all persuasions and faiths can relate to. Consider this passage:

The Governor insists at the outset that there are “no exceptions at all.” Appellee Br. at 21. But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

The contrast between “life-sustaining” and “soul-sustaining” is poetic and persuasive. This crystal-clear prose explains with precision why the government’s policy is internally inconsistent. (Though the unsigned decision is per curiam, I would bet anyone a buckeye this language came from Judge Sutton’s chambers). Why can some people meet in groups with social distancing, but not others? The government must make a subjective judgment about what is “essential” and what is not. For example, the Pennsylvania Governor determined that making marshmallow peeps was “life-sustaining” but selling firearms was not. (This policy was thankfully reversed.)

The Sixth Circuit tears apart Kentucky’s policy:

Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave delivery woman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.

And why does the state trust some professions, but not the clergy to practice social distancing?

Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the social distancing rules against them for that reason.

If people can congregate, elbow-to-elbow on an airplane, they should be able to do the same in a house of worship.

CROWDED FLIGHT: Alarming images inside a nearly full American Airlines flight from New York to Charlotte is raising questions about social distancing in planes, with many passengers sitting side-by-side and some without masks. @DavidMuir reports. https://t.co/45ScCP4arl pic.twitter.com/Y67HB1kvKv

— World News Tonight (@ABCWorldNews) April 28, 2020

Moreover, the state cannot dictate alternatives that the house of worship can adopt.

Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name.” Matthew 18:20; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264- JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020).

Not all faiths can use Zoom. Certain Jewish groups will not use electricity during the Sabbath and other holidays. It is simply impossible for them to live-stream a Passover seder or the Kol Nidre service during Yom Kippur. And there are some rituals that can only be performed with a quorum of ten, know as a minyan.

Co-blogger Marc DeGirolami provides the Catholic perspective at Mirror of Justice:

Consider religious observance. If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one’s view of the true goods of religious observance is very different, then one will not accept these arguments.

Marc also draws attention to a jarring video from Italy. A police officers interrupts a mass, and tells the priest to stop the service, and disperse his parishioners. At the time, there were 14 people, who were spaced out in a huge church. Marc relates that the government had re-opened certain businesses, including museums. But not churches.

The dialogue is in Italian, but you can follow along. The priest tells the officer, “All right, I’ll pay the fine, or whatever there is to pay.” The officer says people can watch the live-stream. The priest replies that his parishioners cannot receive communion online.

Zoom may be an answer to online education. But it is not a replacement for deeply held religious practices. Thankfully, laws like RFRA ensure that the government cannot substantially burden free exercise, even if it acts with purported neutrality. I hedge, slightly, because often a policy of neutrality is premised on a secular understanding of what is “life-sustaining” and what is “soul-sustaining.” For many Americans, what is “soul-sustaining” is “life-sustaining.” A house of worship is far more essential than a liquor store.

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Last week I posed a question: “can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act’s jurisdiction–if not under the Takings Clause, perhaps under some theory of tort.” This post will shed some light on this question, though I still have not yet reached a firm conclusion. And the fifth post in my bump stock series will, alas, have to await further consideration (See Parts I, II, III, and IV).

As a general matter, the federal government cannot be sued for damages without its consent. Congress has waived its immunity through several statutes. For example, the Federal Torts Claims Act provides a limited waiver of sovereign immunity for certain types of torts. And the Supreme Court has also implied certain waivers of sovereign immunity. Through so-called Bivens claims, plaintiffs can seek monetary damages for violations of the Fourth and Fifth Amendment. But the Supreme Court has held that there is no waiver of sovereign immunity for suits based on other provisions of the Bill of Rights, such as the Eighth Amendment. And in recent years, the Supreme Court has put the brakes on future Bivens claims. This much is straightforward doctrine.

But what about the Takings Clause? It is the only provision of the Bill of Rights that clearly states landowners are entitled to monetary damages: “nor shall private property be taken for public use, without just compensation.” Is the Takings Clause a self-executing waiver of sovereign immunity?

In traditional eminent domain questions, the issue of sovereign immunity is irrelevant. Why? The government initiates a condemnation proceeding against a landowner. In other words, a private landowner does not need to sue the federal government. But there is another common type of takings case, known as an inverse condemnation suit. Here, the government regulates a person’s property, but insists there is no taking. Then, the landowner sues the federal government, alleges a violation of the Takings Clause, and seeks “just compensation.”

Congress has enacted two relevant statutes that purport to waive sovereign immunity for inverse condemnation suits. First, the Tucker Act gives the Court of Federal Claims jurisdiction to hear takings claims against the federal government where the property is worth more $10,000. It provides, in part:

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort

The Tucker Act does not expressly mention takings, but claims under the Fifth Amendment are “founded . . . upon the Constitution.” (They also “arise under the Constitution.”) The Court of Federal Claims is an Article I court: the judges serve for fifteen year terms, and there are no jury trials. Second, the Little Tucker Act gives all federal district courts jurisdiction to hear takings claims against the federal government where the property is worth less than $10,000. It provides, in part:

The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims . . .

Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41

These cases are heard by Article III judges, but jury trials are not permitted. Under both statutes, appeals are heard by the U.S. Court of Appeals for the Federal Circuit, an Article III court. (Fun fact: John Randolph Tucker, the namesake of the Tucker Act, was the grandson of St. George Tucker.)

Can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act’s jurisdiction? I think this question has not been squarely resolved by the Supreme Court. The Supreme Court denied certiorari on a closely-related question in 2018. Brott v. U.S. presented this question: “Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?”

In Brott, the Plaintiffs filed an inverse condemnation suit against the government in federal district court, but requested more than $10,000. They also requested a jury trial. The complaint cited Section 1331 federal question jurisdiction. They acknowledged the Little Tucker Act did not support their claim, because the amount in controversy was more than $10,000. Therefore, they argued that the “action is founded upon the Constitution” itself. That is, “arising under” jurisdiction through 28 U.S.C. § 1331. It provides:

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

And the Plaintiffs claimed that the Little Tucker Act itself was unconstitutional:

In the Tucker Act and Little Tucker Act, 28 U.S.C. §§1346 and 1491, Congress vested the Court of Federal Claims with exclusive jurisdiction to hear all claims against the United States “founded upon the Constitution” where the amount in controversy exceeds $10,000. To the extent Congress created the Court of Federal Claims as an Article I legislative court free of Article III’s requirements and vested the Court of Federal Claims with jurisdiction to hear claims “founded upon the Constitution” these provisions are unconstitutional.

The District Court rejected their claims, as did the Sixth Circuit. The Court found that it lacked subject matter jurisdiction over takings claims, even though takings claims “arise under the Constitution.”

28 U.S.C. § 1331 (1976), the general federal question provision, does not provide a jurisdictional basis on these facts. The Fifth Amendment “taking” claim “arises under the Constitution,” and a remedy for a violation of this provision arguably does not require a waiver of sovereign immunity. However, a number of cases indicate that Congress has made the Court of Claims the exclusive and an adequate forum for the Fifth Amendment claims, at least those over $10,000. We conclude that 28 U.S.C. § 1346(a)(2) [the Little Tucker Act] expressly limits the district court’s jurisdiction over these types of claims against the government to those not exceeding $10,000 in amount and that to utilize the court’s federal question or pendent jurisdiction as to the Fifth Amendment claim would override the express policy of Congress embodied in the Tucker Act. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1088 (6th Cir. 1978).

The Circuit Court also held that the general grant of jurisdiction in Section 1331 does not trump “the Little Tucker Act’s specific and limited grant of jurisdiction.” As best as I can tell, the Supreme Court has never addressed this question concerning Section 1331. I will address it at the end of this post.

Next, the Circuit Court found that “Congress may also decline to waive sovereign immunity, or it may withdraw or modify its consent to suit, even if the right at issue is drawn from the Constitution.” In other words, Congress needs to waive its sovereign immunity, even where the federal government “takes” private property. The Fifth Amendment, therefore, is not a self-executing waiver of sovereign immunity. The Court explained, “Sovereign immunity, however, does not distinguish between congressionally created entitlements and constitutionally created rights.”

The landowners countered that an explicit waiver is not necessary for the Takings Clause:

Nevertheless, the landowners argue that an explicit waiver is unnecessary here because the Fifth Amendment right to just compensation is a “self-executing” right and the right to compensation itself contains a waiver of sovereign immunity. The Supreme Court has indeed referred to the Fifth Amendment right to just compensation as “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987). The Supreme Court has explained that a Fifth Amendment takings claim is self-executing and grounded in the Constitution, such that additional “[s]tatutory recognition was not necessary.” Id. (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933)); see United States v. Dickinson, 331 U.S. 745, 748 (1947).

But the Sixth Circuit rejects this argument:

However, the fact that the Fifth Amendment creates a “right to recover just compensation,” First English, 482 U.S. at 315 (quoting Jacobs, 290 U.S. at 16), does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages. See Minnesota v. United States, 305 U.S. 382, 388 (1939) (“[I]t rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought.”).

Here is the full quote from First English:

[A] landowner is entitled to bring an action in inverse condemnation as a result of the “self–executing character of the constitutional provision with respect to compensation” ***. As noted in Justice Brennan’s dissent in San Diego Gas, it has been established at least since Jacobs [v. United States, 290 U.S. 13 (1933)] that claims for just compensation are grounded in the Constitution itself *** Jacobs *** does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution.

in his Webster v. Doe dissent (1988), Justice Scalia also seemed to reject the self-executing argument the landowners advanced:

The doctrine of sovereign immunity—not repealed by the Constitution, but to the contrary at least partly reaffirmed as to the States by the Eleventh Amendment— is a monument to the principle that some constitutional claims can go unheard. No one would suggest that, if Congress had not passed the Tucker Act, 28 U.S.C. § 1491(a)(1), the courts would be able to order disbursements from the Treasury to pay for property taken under lawful authority (and subsequently destroyed) without just compensation.

The Circuit Court then explained there are two requirements for a waiver of sovereign immunity:

The United States argues that a waiver of sovereign immunity typically requires two things: [1] the existence of a right and [2] provision of a judicial remedy. The Fifth Amendment details a broad right to compensation, but it does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced. . . . The Tucker Act’s waiver of sovereign immunity, therefore, is a necessary ingredient for just-compensation claims brought against the United States.

The Sixth Circuit also relied on history:

First, the landowners have cited no case in which the Fifth Amendment has been found to provide litigants with the right to sue the government for money damages in federal district court.

(I’ll address this historical argument later in the post).

The Sixth Circuit also held that “The landowners’ compensation claims are public-right claims. These are claims made by private individuals against the government in connection with the performance of a historical and constitutional function of the legislative branch, namely, the control and payment of money from the treasury.” (The public rights doctrine is very, very messy, and I will table it here).

Brott and the other landowners filed a cert petition. The petitioners argued that there is no need for a statutory waiver of sovereign immunity:

While a statutory waiver of sovereign immunity may be necessary to enforce a congressionally-created entitlement, this does not apply when the right being enforced is founded upon the Constitution itself. . . .

Because the right to just compensation arises directly from the Constitution, Congress cannot abrogate this right by statute. See Jacobs, 290 U.S. at 17 (“the right to just compensation could not be taken away by statute or be qualified by the omission of a provision for interest”) (citing Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306 (1923), and Phelps, 274 U.S. at 343-44).

The Solicitor General opposed certiorari. The government stated that Congress is under no obligation to give the courts jurisdiction to hear takings cases:

In 1855, Congress established the Court of Claims “to relieve the pressure created by the volume of private bills.” Mitchell, 463 U.S. at 212-213. The court’s jurisdiction did not, however, extend to constitutional claims. “Most property owners” seeking compensation for asserted takings were thus “left to petition Congress for private relief, but Congress was neither compelled to act, nor to act favorably.” 2 Wilson Cowen et al., The United States Court of Claims: A History 45 (1978) (Cowen). As a result, “many owners had suffered the misfortune of holding a legal right for which there was no enforceable legal remedy.” Ibid. That situation led this Court to observe that “[i]t is to be regretted that Congress has made no provision by any general law for ascertaining and paying th[e] just compensation” owed for takings of private property by the United States. Langford v. United States, 101 U.S. 341, 343 (1880).

I am not sure Langford is directly on point. The Court’s discussion of “just compensation” is more limited than the government suggests. Here is the full passage:

The other point is one which requires more delicate handling. We are not prepared to deny that when the government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value. It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation. And we are not called on to decide that when the *344 government, acting by the forms which are sufficient to bind it, recognizes that fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims. On this point we decide nothing.

The SG cites Langford to describe the state of the law before the Tucker Act was enacted. But Langford was decided after the Tucker Act was enacted. Indeed, the appeal arose from the Court of Claims. I don’t think this nuanced statement concerned sovereign immunity and the Takings Clause more broadly. I think this statement concerned the very precise fact pattern at issue in Langford. Here, property owners sued the federal government in the Court of Claims”to recover for the use and occupation of certain lands and buildings.” And they advanced an implied contract theory that is referenced in the text of the Tucker Act. In any event, the Court doesn’t resolve this issue. “On this point we decide nothing.”

The SG also looked to history:

It was not until 1887 that Congress enacted the Tucker Act, waiving sovereign immunity and conferring on the Court of Claims jurisdiction to hear cases “founded upon the Constitution.” Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see Mitchell, 463 U.S. at 214; Cowen 45-46. Thus, for the first century of our Nation’s history, claims seeking compensation for asserted takings by the United States were resolved by Congress— not by the courts.

The Sixth Circuit made a similar point. I’m not sure this history helps as much as the government suggests. Until 1875, there was no federal question jurisdiction. (It existed for a brief period after the Federalists enact the Judiciary Act of 1801, also known as the Midnight Judges Bill.) The only way to get into federal court was through diversity jurisdiction. The Tucker Act was enacted in 1887. And federal question jurisdiction (what became Section 1331) was created two years prior in 1875. It is unsurprising that there were no claims for takings based on federal question for the first nine decades after ratification.

I see here a parallel to Hans v. Louisiana. The Eleventh Amendment made it impossible for a citizen of one state to sue another state in federal court. The text, at least, left open the question of whether a citizen could sue his own state in federal court. But until Congress created federal question jurisdiction, it was impossible for a citizen of one state to sue his own state in federal court. The only path to federal court was diversity jurisdiction. In 1875, Congress creates the federal question statute. Fast-forward to 1890. The Supreme Court decides Hans v. Louisiana. It holds that a citizen of Louisiana cannot sue the state of Louisiana. Here, the Supreme Court finally had an opportunity to address a question that was not resolved by the text of the Eleventh Amendment. (Or was it?) Indeed, it took nearly 15 years for the Supreme Court to address this question after the federal question jurisdiction was restored.

By way of comparison, two years after federal question jurisdiction was reimposed, Congress enacts the Tucker Act, which expressly waived sovereign immunity for takings claims. It is unsurprising during this two year gap, the Supreme Court did not have occasion to decide if the Takings Clause, by itself, effects a waiver of sovereign immunity.

Perhaps the most relevant case is U.S. v. Lee (1882). In this famous case, Robert E. Lee’s son challenged the federal governments seizure of the land in Virginia that would become Arlington National Cemetery. The Solicitor General argued that Lee, as well as Larson v. Domestic & Foreign Commerce Corp, precludes Brott’s claims.

Petitioners’ “celebrated example” (Pet. 36) vividly illustrates their error. Petitioners correctly note (ibid.) that, in United States v. Lee, 106 U.S. 196 (1882), Robert E. Lee’s son brought a suit challenging the United States’ seizure of the land that became Arlington National Cemetery. But it was neither a suit seeking just compensation nor one brought against the United States. Instead, it was an “ejectment” action brought against individual federal officers under state law and seeking “to recover possession” of the land. Id. at 197- 198; see id. at 210 (“The case before us is a suit against Strong and Kaufman as individuals, to recover possession of property.”). The Court in Lee recognized that Lee’s son could not have sought compensation from the United States. Id. at 222. And this Court has since reaffirmed that, when “[t]he Lee case was decided in 1882,” “there clearly was no remedy available by which he could have obtained compensation for the taking of his land.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697 n.17 (1949).

Here is the relevant passage from Lee. It doesn’t say exactly what the SG argued:

Another consideration is, that since the United States cannot be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the government, as is decided by this court in the case of Carr v. United States, already referred to, the government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights.

Here, I think “its” modifies “United States.” This passage does not concern a landowner suing the federal government for regulating the landowners property. The facts of Lee are tortured, but it did not begin as a suit against the federal government; it originated as a state court action in ejectment against federal officials. I need to study the posture more closely.

And here is the passage from Larson:

The Court thus assumed that if title had been in the plaintiff the taking of the property by the defendants would be a taking without just compensation and, therefore, an unconstitutional action. FN17

FN17: The Lee case was decided in 1882. At that time there clearly was no remedy available by which he could have obtained compensation for the taking of his land. Whether compensation could be obtained today in such a case is, of course, not the issue here.

Later, the government cited this passage again, in an inaccurate way:

The Court thus recognized that, before the Tucker Act, “there clearly was no remedy available” for a property owner seeking compensation for a taking. Larson, 337 U.S. at 697 n.17

Lee was not talking about the world before the Tucker Act. By 1882, the Tucker Act was created, and the Court of Claims existed. That court had jurisdiction over takings claims against the federal government. I think the Larson Court was describing the fairly intricate facts of Lee’s case, for which there was no remedy. I don’t take that footnote to be saying anything at all about the Takings Clause, in general. I welcome corrections. Lee and Larson are somewhat enigmatic decisions. But the SG’s argument is not the best reading of those cases.

The Solicitor General offered a very different reading of First English.

First English thus concluded that the Fifth Amendment is self-executing in that it creates a right to compensation for a taking. But “the fact that the Fifth Amendment creates a ‘right to recover just compensation,’ does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages.” Pet. App. 13a (quoting First English, 482 U.S. at 315) (citation omitted). To recover money damages against the United States, a plaintiff must identify both a waiver of sovereign immunity and a “substantive right enforceable against the United States for money damages.” Mitchell, 463 U.S. at 216 (citations omitted); see Pet. App. 14a. The Tucker Act waives sovereign immunity, but does not create any substantive rights. Mitchell, 463 U.S. at 216. Instead, “[a] substantive right must be found in some other source of law, such as ‘the Constitution, or any Act of Congress.’ ” Ibid. (quoting 28 U.S.C. 1491).

First English makes clear that the Fifth Amendment creates a substantive “right to recover just compensation for property taken by the United States” that may be enforced under the Tucker Act without further congressional action. 482 U.S. at 315 (citation omitted) cf. Mitchell, 463 U.S. at 216 (“Not every claim invoking the Constitution * * * is cognizable under the Tucker Act.”). But First English did not involve a suit against the United States, and the Court did not discuss—much less overrule—the century’s worth of precedent establishing that the Tucker Act’s waiver of sovereign immunity is a necessary precondition to suits seeking just compensation from the United States.

In other words, the Fifth Amendment does not, by itself, get you into federal court to sue.

Let’s revisit the discussion from Maine Maine Community Health Options v. United States. that occasioned my original post. Justice Sotomayor wrote in a footnote:

By the dissent’s contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not “expressly create . . . a right of action,” post, at 3, when it mandated “just compensation” for Government takings of private property for public use, Amdt. 5; see also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315–316 (1987). Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law. E.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016– 1017 (1984) (citing United States v. Causby, 328 U. S. 256, 267 (1946)).

The emphasized sentence purports to resolve the issue that was not resolved in Lee and Larson. This sentence also conflicts with language in First English. But it does conform with Justice Scalia’s dissent in Webster. How should we treat this sentence? First, this issue was not at all relevant to Maine. It was not briefed. The plaintiffs in that case brought suit under the Tucker Act. They did not assert a claim under the Fifth Amendment. I tend to think the Supreme Court does not resolve important constitutional questions in passing, without any consideration. I am not even sure what “express cause of action” means. The Court here didn’t discuss Section 1331 federal question jurisdiction or sovereign immunity. I am loathe to ever label a sentence in a SCOTUS decision as dicta, but this is it. The Court does not quietly resolve longstanding constitutional questions, on which cert petitions were previously denied, in such a slapdash fashion.

Going forward, I think there are two important questions that remain unresolved. First, can plaintiffs bring a takings suit against the federal government under Section 1331, without relying on the Little Tucker Act? That is, can Section 1331’s grant of general jurisdiction co-exist with the Little Tucker Act’s grant of specific jurisdiction. Second, assuming the federal district court has jurisdiction under Section 1331, is the Takings Clause a “self-executing” waiver of sovereign immunity?

Professor James W. Ely and the Mountain States Legal Foundation submitted an amicus brief in Brott. They framed these two questions precisely:

This Court has repeatedly emphasized the principle that the Just Compensation Clause is self-executing. E.g., First English Evangelical Lutheran Church v. Cnty. of Los Angeles, 482 U.S. 304, 314 (1987); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 654 (1981) (Brennan, J., dissenting); United States v. Clarke, 445 U.S. 253, 257 (1980); Jacobs v. United States, 290 U.S. 13, 15 (1933). Thus, contrary to the judgment below, the district court had jurisdiction over this case under 28 U.S.C. § 1331. In fact, a waiver of sovereign immunity for just compensation claims is not only unnecessary, but duplicitous.

The Supreme Court addressed the first question, albeit indirectly in Duke Power Co. v. Carolina Environmental Study Group, Inc. (1978). The question presented was whether “whether Congress may, consistent with the Constitution, impose a limitation on liability for nuclear accidents resulting from the operation of private nuclear power plants licensed by the Federal Government.” This case did not squarely present the question of whether the federal courts have jurisdiction to hear Takings Claims under Section 1331. But the Court addressed this issue.

The majority, per Chief Justice Burger, stated that a takings claim can be brought under Section 1331 federal question jurisdiction:

In light of prior decisions, for example, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) and Hagans v. Lavine, supra, as well as the general admonition that “where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief,” Bell v. Hood, supra, at 684, we conclude that appellees’ allegations are sufficient to sustain jurisdiction under § 1331 (a).

(The citation to Bivens is a bit of a throwback. The better answer is that the text of the Fifth Amendment itself speaks of monetary damages. There is no reason to rely on implied remedies.)

In dissent, then-Justice Rehnquist disagrees. He states that federal district courts lack jurisdiction under Section 1331 for takings claims. They could only rely on the Little Tucker Act, which imposes a jurisdictional limit of $10,000.

The District Court does have jurisdiction to consider claims of taking under the [Little] Tucker Act, 28 U. S. C. § 1346 (a) (2) (1976 ed.), where the amount in controversy does not exceed $10,000.

The majority responds to Rehnquist in a footnote:

MR. JUSTICE REHNQUIST suggests that appellees’ “taking” claim will not support jurisdiction under § 1331 (a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U. S. C. § 1491 (1976 ed.). We disagree.

But the Court doesn’t actually say that all takings claims can be brought under 1331 jurisdiction. The Court hedges a bit:

Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional….While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

(This point confused me; jurisdiction for a declaratory judgment can be sought under 28 U.S.C. 2201. The Court really doesn’t explain the interaction of 1331 and 2201.

Rehnquist raises this point in his dissent:

Nor does the fact that appellees seek only declaratory relief under the Declaratory Judgment Act, 28 U. S. C. § 2201 (1976 ed.), support a different result. This Court has held that the well-pleaded complaint rule applied in Mottley is fully applicable in cases seeking only declaratory relief, because the Declaratory Judgment Act merely expands the remedies available in the district courts without expanding their jurisdiction.

In any event, Rehnquist reads the majority’s opinion quite broadly:

The Court concludes, ante, at 71 n. 15, although appellees do not so contend, that their taking claim is cognizable under 28 U. S. C. § 1331 (a) (1976 ed.), which grants jurisdiction to the district courts where the suit “arises under the Constitution.”

Then, Rehnquist draws the natural implication from the majority’s opinion:

To conclude that § 1331 embraces a “taking” claim makes the Tucker Act largely superfluous, cf. United States v. Testan, 424 U. S. 392, 404 (1976), and will permit the district courts to consider claims of over $10,000 which previously could only be litigated in the Court of Claims. Richardson v. Morris, 409 U. S. 464 (1973). Such a significant expansion of the jurisdiction of the district courts should not be accomplished without the benefit of arguments and briefing.

Rehnquist here presages Scalia’s dissent from Webster v. Doe. I read the Duke majority the same way Rehnquist did. Federal Courts can exercise Section 1331 jurisdiction over takings claims, irrespective of the Declaratory Judgment Act wrinkles.

One last point. The Little Tucker Act and Section 1331 can be read harmoniously. The former waives sovereign immunity for a wide range claims against the federal government; for example, disputes over of governmental contracts. There is no express constitutional provision that waives sovereign immunity for contract disputes with the federal government. (The Contracts Clause only applies to states.) The Tucker Act was not needed to waive sovereign immunity for Takings Claim; that waiver was self-executed by the 5th Amendment itself. A dispute over a government contracts would “arise under” federal law for purposes of Section 1331. But there is no waiver of sovereign immunity for that claim, absent the Tucker Act. The Tucker Act no doubt created a convenient and specialized forum to litigate takings cases, but Section 1331 provides the requisite jurisdiction for takings claims.

I’ll address this issue further in a future writing.

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The court also suggests the limit on in-person church services may be invalid, but concludes that the matter should be considered further by the trial court—rather than by this emergency appeal—given “the 24 hours the plaintiffs have given us with this case.” Here’s the heart of the opinion in Maryville Baptist Church v. Beshear, handed down by Judges Sutton, McKeague, and Nalbandian:

Maryville Baptist Church and its pastor, Dr. Jack Roberts, appeal the district court’s order denying their emergency motion for a temporary restraining order. The Church claims that the district court’s order effectively denied their motion for a preliminary injunction to stop Governor Andy Beshear and other Commonwealth officials from enforcing and applying two COVID-19 orders.

The orders, according to the Church, prohibit its members from gathering for drive-in and in-person worship services regardless of whether they meet or exceed the social distancing and hygiene guidelines in place for permitted commercial and other non-religious activities. The Church moves for an injunction pending appeal, which the Attorney General supports as amicus curiae. The Governor opposes the motion.

Governor Beshear issued two pertinent COVID-19 orders. The first order, issued on March 19, prohibits “[a]ll mass gatherings,” “including, but not limited to, community, civic, public, leisure, faith-based, or sporting events.” It excepts “normal operations at airports, bus and train stations, … shopping malls and centers,” and “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.”

The second order, issued on March 25, requires organizations that are not “life-sustaining” to close. According to the order, religious organizations are not “life-sustaining” organizations, except when they function as charities by providing “food, shelter, and social services.” Laundromats, accounting services, law firms, hardware stores, and many other entities count as life-sustaining.

On April 12, Maryville Baptist Church held a drive-in Easter service. Congregants parked their cars in the church’s parking lot and listened to a sermon over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction….

The Church is likely to succeed on its state and federal claims, especially with respect to the ban’s application to drive-in services. Start with the claim under Commonwealth law—Kentucky’s Religious Freedom Restoration Act. “Government shall not substantially burden” a person’s “right to act … in a manner motivated by a sincerely held religious belief,” it guarantees, “unless the government proves by clear and convincing evidence” that it “has used the least restrictive means” to further “a compelling governmental interest in infringing the specific act.”

The point of the law is to exercise an authority every State has: to provide more protection for religious liberties at the state level than the U.S. Constitution provides at the national level. In this instance, the purpose of the Kentucky RFRA is to provide more protection than the free-exercise guarantee of the First Amendment, as interpreted by Employment Division v. Smith (1990). The Kentucky requirements parallel in large measure the RFRAs enacted by other States and one enacted by Congress, all of which share the goal of imposing strict scrutiny on laws that burden sincerely motivated religious practices.

Application of this test requires little elaboration in most respects. The Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. Religion motivates the worship services. And no one disputes the Church’s sincerity. Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings. At the same time, the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus. All accept these conclusions.

The likelihood-of-success inquiry instead turns on whether Governor Beshear’s orders were “the least restrictive means” of achieving these public health interests. That’s a difficult hill to climb, and it was never meant to be anything less.

The way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches. The orders permit uninterrupted functioning of “typical office environments,” which presumably includes business meetings. How are in-person meetings with social distancing any different from drive-in church services with social distancing? Kentucky permits the meetings and bans the services, even though the open-air services would seem to present a lower health risk.

The orders likewise permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service. On the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church. The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the Governor did not narrowly tailor the order’s impact on religious exercise.

In responding to the state and federal claims, the Governor denies that the ban applies to drive-in worship services, and the district court seemed to think so as well. But that is not what the Governor’s orders say. By their terms, they apply to “[a]ll mass gatherings,” “including, but not limited to, … faith-based … events.” In deciding to open up faith-based events on May 20, and to permit other events before then such as car washes and dog grooming, the Governor did not say that drive-in services are exempt. And that is not what the Governor has done anyway. Consistent with the Governor’s threats on Good Friday, state troopers came to the Church’s Easter service, told congregants that they were in violation of a criminal law, and took down the license plate numbers of everyone there, whether they had participated in a drive-in or in-person service.

The Governor’s orders also likely “prohibit[] the free exercise” of “religion” in violation of the First and Fourteenth Amendments, especially with respect to drive-in services. On the one hand, a generally applicable law that incidentally burdens religious practices usually will be upheld. On the other hand, a law that discriminates against religious practices usually will be invalidated unless the law “is justified by a compelling interest and is narrowly tailored to advance that interest.”

Discriminatory laws come in many forms. Outright bans on religious activity alone obviously count. So do general bans that cover religious activity when there are exceptions for comparable secular activities. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law….

The Governor’s orders have several potential hallmarks of discrimination. One is that they prohibit “faith-based” mass gatherings by name. But this does not suffice by itself to show that the Governor singled out faith groups for disparate treatment. The order lists many other group activities, and we accept the Governor’s submission that he needed to mention faith groups by name because there are many of them, they meet regularly, and their ubiquity poses material risks of contagion.

The real question goes to exceptions. The Governor insists at the outset that there are “no exceptions at all.” But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth’s citizens. And we agree that no one, whether a person of faith or not,hasaright”toexposethecommunity…tocommunicabledisease.”

But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom. Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.

Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name.” Matthew 18:20. As individuals, we have some sympathy for [Ohio] Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish them all (we assume) that it’s “not Christian” to hold in-person services during a pandemic. But this is not about sympathy. And it’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.

Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services.

They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the social- distancing rules against them for that reason.

The Governor claims, and the district court seemed to think so too, that the explanation for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be. We doubt that the reason a group of people go to one place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another? If the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time….

Preliminary injunctions in constitutional cases often turn on likelihood of success on the merits, usually making it unnecessary to dwell on [other] factors. That’s true here with respect to the ban on drive-in worship services….

The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fast- moving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to in- person services at this point.

We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it’s not always easy to decide what is Caesar’s and what is God’s—and that’s assuredly true in the context of a pandemic.

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In the latest issue of National Review, I review Richard Epstein’s latest book, The Dubious Morality of Modern Administrative Law.

Here’s a taste of my review:

In 2014, Columbia Law School professor Philip Hamburger posed the question “Is administrative law unlawful?” in a book of that title. Now Hamburger’s New York neighbor Professor Richard Epstein, of New York University Law School, asks whether modern administrative law is immoral. Both answer in the affirmative.

Although framing their inquiries in different ways, both Hamburger and Epstein question whether contemporary administrative law is consistent with the rule of law. This is not an idle question. The laws that govern many individuals’ lives and livelihoods are the product not of the legislature but of administrative agencies exercising delegated power with inconsistent legal or political accountability. . . .

Drawing upon Lon Fuller’s classic treatise The Morality of Law, Epstein considers whether modern administrative law satisfies Fuller’s prescriptions for a moral legal order. And as Epstein’s title suggests, this is a dubious proposition: “Fuller’s steely insistence on legal coherence, clarity, and consistency, coupled with his strong condemnation of retroactive laws, does not mesh with modern administrative law.” This is quite a problem, for the features Fuller identified were not merely advisory, but “the minimum requisites for the rule of law.” Insofar as modern administrative law violates these principles, it is, in one sense, immoral and needs to be reformed.

The full review is here.

 

 

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Yesterday a federal district court judge granted summary judgment on the most significant parts of the Equal Pay Act and Title VII claims of players on the U.S. Women’s National Soccer Team (WNT), who had alleged they were paid less than players on the men’s team (MNT) for equal work. The judge concluded that the undisputed facts established that the WNT had been paid more on both a cumulative and an average per-game basis than the MNT over the last several years–and thus had no chance of prevailing at a trial. In my view, the ruling is dubious and will likely be overturned on appeal.

I blogged about this case back in March, when lawyers for the employer in this case–the U.S. Soccer Federation–argued that men and women’s soccer players do not perform substantially equal work. Fallout quickly followed from the lawyers’ perverse position that America’s reigning world champion women’s team was not as good as the men’s team, which failed to even qualify for the World Cup. The President of U.S. Soccer, Carlos Cordeiro, apologized for the filing and promptly resigned.  But while U.S. Soccer brought in new lawyers on the case, they never withdrew their offensive argument.

And yesterday, the U.S. Soccer succeeded in dismissing the most significant claims of the WNT. The district judge handling the case agreed with U.S. Soccer that the undisputed facts demonstrated that no reasonable juror could conclude that the women were paid less than the men. While news articles have briefly described the outcome, no analysis that I have seen has drilled down into the legal merits of the ruling.  Nor are the legal filing associated with the ruling readily available on the web.  As someone who has experience with summary judgment issues, I thought a more detailed analysis (with links to some of the actual court documents) might be of interest. My reading of the case is that the judge’s ruling will quite likely be overturned on the inevitable appeal.

Here’s the linchpin of the district judge’s ruling against the women:

It is undisputed that, during the class period, the WNT played 111 total games and made $24.5 million overall, averaging $220,747 per game.  By contrast, the MNT played 87 total games and made $18.5 million overall, averaging $212,639 per game.  Based on this evidence, it appears that the WNT did not make more money than the MNT solely because they played more games. Rather, the WNT both played more games and made more money than the MNT per game. (S.J. Order at p. 18).

But while the judge’s math is accurate, the numbers miss the forest for the trees. While the WNT ended up earning about the same amount of money as the MNT over the relevant time period, the women were far more successful than the men’s team.  The pay structures for both the women’s and men’s teams provided bonuses for winning games. Because the WNT won more games (and particularly more high-profile games), the women players ended up receiving about the same total compensation as the men. But the women’s rate of pay–the decisive factor in an Equal Pay Act case–was lower than that for the men. (WNT Mot. for S.J. at pp. 5-6.) If anything, the judge should have granted summary judgment for the women (although that might have been stretch, as some disputed facts would have remained for the jury to consider).

To work around this rate-of-pay issue, the district judge concluded that the WNT had bargained for a different pay structure than the men.  As the judge saw things, the history of the negotiations for two Collective Bargaining Agreements (CBAs) demonstrates that

the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, [the WNT players] cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT’s pay-to­ play stmcture when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the “insurance” that WNT players receive under their CBA. (S.J. Order at p. 19)

But here again, to reach this conclusion, the district judge had to assume many factual questions would be resolved against the women and in favor of U.S. Soccer. In particular, as the women carefully detailed in their own summary judgment papers, U.S. soccer’s own witnesses

testified that despite the WNTPA’s equal pay demand, USSF never offered to pay the WNT at the same bonus rate as the MNT for friendlies, tournaments and the World Cup. It is thus impossible for the USSF to obtain summary judgment in its favor on the ground that the [women] never asked for equal pay to the MNT during collective bargaining. USSF’s own witnesses admit just the opposite: USSF would not have agreed to equal pay “no matter what the [women’s players’ association] had offered as a compromise.” Indeed, at his deposition, USSF former president, Sunil Gulati, admitted that he told the WNT players during negotiations that USSF’s terms were the most he would give financially, and while he was willing to move money around to different forms of compensation, the WNT had to accept the overall value of the deal or there would be no deal at all. (WNT Opp. to S.J. at pp. 17-18)

Moreover, a step back to look at the big picture reveals the absurdity of concluding that the women somehow were “willing” to forego the kinds of bonuses the men had. Accordingly to a seemingly straightforward calculation, the the women would have made $66 million more if paid on the same structure as the men! The women had no reason to be “willing” to forego that staggering amount of additional compensation–even if they did receive some modest “insurance” at far lower levels of compensation. The WNT was the defending world champion during the negotiations–and were expected to be very strong contenders to win the 2019 Women’s World Cup. They would have loved to have contracted for the same kinds of bonuses that the men were promised if they had achieved at that high international level.

Of course, to grant summary judgment, the district judge had to conclude that no reasonable jury could find that the women had gathered facts showing unequal pay. But the women clearly did have at least some facts showing unequal pay–specifically statements admitting unequal pay from U.S. Soccer itself! For example, the President of U.S. Soccer, Carlos Cordeiro, had admitted that the women were not paid equally and that changes needed to made to eliminate the discrimination:

Our women’s teams should be respected and valued as much as our men’s teams, but our female players have not been treated equally.… I’m a strong supporter of greater equality, diversity and inclusion throughout U.S. Soccer, and we clearly need to work toward equal pay for the national teams. I believe that where existing agreements are unfair, adjustments should be made immediately. To ensure equal pay going forward, we need to be open to new paradigms while recognizing the specific needs and desires of the WNT and MNT…. [W]e don’t need to wait for [collective bargaining agreement] negotiations to make these changes; we can start now. It’s the right thing to do. (WNT Statement of Undisputed Facts at p. 5).

The district judge recognized this damning admission, but refused to accept it at face value. Instead, the judge concluded that the fact that U.S. Soccer’s President said “WNT players are paid less does not make it true ….” But surely an admission from the employer that it paying unequal pay is some evidence of … well … unequal pay.  A jury could quite reasonably rely on such a statement in finding for the women.  Perhaps recognizing the difficulty with this position, the judge also pointed out that Cordeiro had later stated that, when he referenced working toward “equal pay,” he meant “creating more opportunity for our women so they can play more competitive events that would drive more revenue and compensation” because “there was a lack of opportunity for the women where the men play four/five times as many competitive [i.e., non-friendly] matches as our women do … and [that] is at the heart of the issue.” (S.J. Order at p. 20).  But this spin on Cordeiro’s admission is precisely the sort of thing that juries have to work through in an Equal Pay Act case.  Deciding precisely what Cordeiro may or may not have meant is not what a district judge is entitled to do in ruling on a summary judgment motion.

The women had not only an admission from U.S. Soccer’s President but also a statement from U.S. Soccer’s outside counsel, who (according to the women) stated during the collective bargaining negotiations that “market realities are such that the women do not deserve equal pay.” (WNT  Statement of Undisputed Facts at p. 12.) This statement, too, would seem to preclude summary judgment on an equal pay case. But the district judge quickly pointed out that it was “disputed” whether U.S. Soccer’s counsel had actually made this comment.  Precisely what the women were arguing!  It is disputed fact–and disputed facts are the very reason why a jury trial was necessary in this case.

At a jury trial on the “market realities” and other issues swirling around the case, the WNT would have fully presented its case. By its calculation, the WNT–the world champions–generated more revenue and earned a larger profit for U.S. Soccer than the MTN. (WNT Mot. for S.J. at 3). Perhaps these calculations are skewed.  Perhaps they are unfair to the MNT, which suffered an unexpected downturn in revenues when it unexpectedly failed to qualify for the World Cup. But perhaps not. Questions such as these are precisely why juries decide these kinds of cases. The factual complexities have to be evaluated by twelve neutral observers, who hear all the witnesses and see all the evidence.

When I was a federal district court judge, I saw some equal pay and similar gender discrimination claims come before me. These cases inevitably presented complicated fact patterns that rarely lent themselves to resolution on a summary judgment motion. So too in this case. The facts are complex and disputed–and must be decided by a jury.

The district judge here did allow several of the WNT’s claims to proceed to a jury trial, specifically some narrow claims about charter flights and hotel accommodations and medical and training support. But the main claims—i.e., the big dollar claims–are now out.

The WNT has already vowed to appeal, and they should.  This ruling has a very high likelihood of being overturned on appeal. If one thing is clear about this case, it is that the WNT players have made reasonable claims of being paid unequally that a jury must decide.

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