The National Urban League and the National Fair Housing Alliance, both which are covered federal Government contractors and federal grant recipients, filed suit in the federal District Court for the District of Columbia. Their Complaint seeks a declaration that President Trump’s September 22, 2020 Executive Order 13950 (“Executive Order on Combating Race and Sex Stereotyping”) violated the First and Fifth Amendments to the US Constitution. The two plaintiffs also seek a permanent injunction to stop USDOL Secretary Eugene Scalia from implementing EO 13950. Significantly, however, neither plaintiff sought either a temporary or preliminary injunction. The failure to seek an immediate injunction in the short term while the case is pending signals that the plaintiffs do not think they can prove EO 13950 is unconstitutional on its face, but rather only as implemented in particular ways they will prove at trial.
Nothing in this Complaint seeks to complain about or limit OFCCP’s prosecution of federal contractors which deliver training programs unlawful pursuant to Executive Order 11246. Indeed, OFCCP’s Complaint Hotline continues to receive inquiries and Complaints at a rapid pace about contractor training programs (see related story in this Week in Review immediately following this story reporting the remarks of OFCCP’s Policy Director to Disability:IN). Moreover, as the follow-on Week In Review story also reports, OFCCP has now doubled-down on investigations of federal contractor training programs by also announcing last week a coming wave in 2021 of “D&I Focused Reviews.”
The National Urban League’s and National Fair Housing Alliance’s Complaint is 61 pages in length, but makes only three legal claims, catalogued and briefly outlined below. The Complaint is unusual in that federal law requires only bare-bones “notice” pleading (typically 4 to 10 pages). Indeed, most plaintiffs try to be as sparse and general as they can be in their Complaints so as to not alert the defendant(s) to their full thinking and to allow the plaintiff room to later maneuver and include more specific claims in their earlier more general Complaint to avoid having to later amend their Complaint (usually with the Court’s permission or denial thereof). Written as an attack on American treatment of African Americans since the Republic’s founding, and given the timing of its filing a week before the election, the Complaint reads much like a political pamphlet intended to engender discussion in the run-up to the election.
First Claim for Relief
“ULTRA VIRES ACTION IN VIOLATION OF THE FIRST AMENDMENT-VIEWPOINT DISCRIMINATION” (pp. 53-55)
- Para 4 of the Complaint recites: “In violation of the First amendment’s protection of speech, President Trump issued EO 13950 to silence viewpoints disliked by the Administration.”
- Para 5 of the Complaint recites: “The Order identifies viewpoints that the Trump Administration dislikes—such as the existence of white privilege, implicit bias, systemic racism, structural inequalities, or intersectional experiences of discrimination—and attempts to purge them from the national conversation by denying benefits, such as government contracts and grants, to private entities like Plaintiffs who express speech in these censored topics.”
Second Claim for Relief
“VIOLATION OF THE FIFTH AMENDMENT-VOID FOR VAGUENESS” (pp. 55-56)
- Para 14 of the Complaint: “Under the Fifth amendment to the United States Constitution, a federal law is unconstitutionally vague if it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’” (citations omitted)
Third Claim for Relief
“FIFTH AMENDMENT-VIOLATION OF EQUAL PROTECTION CLAUSE” (pp. 57-59)
- Para 20 of the Complaint: “The Equal Protection component of the Fifth Amendment’s Due Process Clause guarantees the equal protection of the laws and prohibits the government from treating persons differently—on the basis of their race, religion, national origin, or alienage—than similarly situated individuals.” (citations omitted)
- Para 21 of the Complaint: “Race and sex-based discrimination against individuals who are people of color, women, and/or LGBTQ were a substantial or motivating factor behind the issuance of EO 13950, in violation of the Fifth Amendment.”
Editor’s Note: Para 21 is a claim that President Trump consciously intended EO 13950 as a tool to discriminate unlawfully based on race and sex against individuals which are people of color, women, and/or LGBTQ.
The Complaint also seeks class action status on behalf of all other similarly situated federal contractors and federal grantees. (See p. 50 of the Complaint). These class claims help illuminate what concerns the plaintiffs because the plaintiffs must explain to the Court all the “common issues” which allegedly bind together the purported Class Members. The “common issues” the plaintiffs allege in this case are:
- “whether the Order’s prohibition of Protected Speech, including trainings, qualifies as unconstitutional viewpoint discrimination in violation of the First Amendment;
- whether the Order’s prohibition of Protected Speech, including trainings, is unconstitutionally vague in violation of the Fifth Amendment;
- whether the Order’s prohibition of Protected Speech, including trainings, violates the Equal Protection component of the Fifth Amendment’s Due Process Clause;
- whether and to what extent Defendants’ actions may impair or threaten future activities protected by the First Amendment; and
- what equitable and injunctive relief is warranted.”
Editor’s Note regarding the potential for the involvement of federal Government contractors and grantees in this case: If former Vice President Biden wins the election, one of his first acts in the White House will undoubtedly be to rescind EO 13950 given the hullabaloo which has burst out in the weeks following its publication. (In fact, that thought alone makes one wonder about the timing of this Complaint as yet another of the many pre-election posturings and maneuverings both political parties are currently undertaking involving Government contractors). If Mr. Biden were to win the election and were indeed to rescind EO 13950 on or after January 20, 2021 (Inauguration Day), this Complaint would become moot. The US Department of Justice would then undoubtedly file a Motion with the Court to Dismiss the Complaint, if the Plaintiffs did not first offer to voluntarily dismiss the action. NOTE: plaintiffs could have held their Complaint for filing another week or so to determine whether their Complaint were necessary or relevant in light of the election results.
Class Certification Issues
If President Trump were to win re-election, the plaintiffs would presumably continue their litigation with full force. The plaintiffs would then likely in the next 6-12 months file a Motion to Certify a Class of all similarly situated federal contractors and federal grantees. If the Court were to certify a class of federal contractors and federal grantees, federal contractors and (possibly) federal grantees would then receive Notices in the mail from the plaintiffs inviting federal contractors/grantees to “opt-in” to the plaintiffs’ lawsuit against EO 13950. (Note: In federal class action lawsuits, Class Members must affirmatively agree to join the lawsuit (i.e. “opt-in”). This procedure is the reverse of many state law class action rules which presume that similarly situated Class Members are “in” the lawsuit unless they affirmatively “opt out”). We say it is only “possible” that federal grantees could be invited to join as Class Members because please remember that EO 13950 makes no statement about the obligations of federal grantee training. Rather EO 13950 assigned the Office of Management & Budget to gather information about grantees and report back with next step suggestions. See John Fox’s Blog accompanying our original September 28, 2020 Week In Review reporting President Trump’s September 22, 2020 signing of EO 13950. Accordingly, federal grantees thus far have nothing to complain about and will not have legal “standing” before the court until the federal government does something which allegedly adversely affects the constitutional rights of federal grantees.
Who is the Judge?
Judge Amit P. Mehta, is a smart liberal first-term Obama appointee, who has practiced law for 23 years (since 1997) and has sat as a federal District Judge in the District of Columbia for the last 6 of those years (since 2014).
Tomorrow’s election will decide whether the Week in Review, as a practical matter, has only a few last stories coming in the future about EO 13950, or whether updates about the National Urban League case and Executive Order 13950 will now become a staple of the Week in Review for the remainder of the year and to the end of 2021.
If you are a Glutton for Punishment…
Read all of our prior stories and Blogs about EO 13950, please see our Week In Review reporting:
- President Trump’s signing of EO 13950
- Details of EO 13950
- OFCCP had already set up a telephone Hotline for EO 13950 Complaints
- OFCCP had crossed swords with Microsoft and Wells Fargo re race-based hiring
- OFCCP’s Launch of its EO 13950 Landing Page
- OFCCP’s issuance of FAQs on Sex Stereotyping Related to EO 13950
- OFCCP’s publication of a Request for Information about D&I Training