Two Civil Rights Groups Sued The Trump Administration To Stop EO 13950 – JD Supra

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 Trumps 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 OFCCPs prosecution of federal contractors which deliver training programs unlawful pursuant to Executive Order 11246. Indeed, OFCCPs 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 OFCCPs 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 Leagues and National Fair Housing Alliances 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 Courts permission or denial thereof). Written as an attack on American treatment of African Americans since the Republics 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.

ULTRA VIRES ACTION IN VIOLATION OF THE FIRST AMENDMENT-VIEWPOINT DISCRIMINATION (pp. 53-55)

VIOLATION OF THE FIFTH AMENDMENT-VOID FOR VAGUENESS (pp. 55-56)

FIFTH AMENDMENT-VIOLATION OF EQUAL PROTECTION CLAUSE (pp. 57-59)

Editors 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:

Editors 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.

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 Foxs Blog accompanying our original September 28, 2020 Week In Review reporting President Trumps 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.

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).

Tomorrows 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.

Read all of our prior stories and Blogs about EO 13950, please see our Week In Review reporting:

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Two Civil Rights Groups Sued The Trump Administration To Stop EO 13950 - JD Supra