“Sham Affidavit” Objection is Rejected

Johnson v. Shinseki, Dep’t of Veteran’s Affairs, No.08-1103 (JDB) (D.D.C. Sept. 19, 2011).

Sham affidavit objection to declaration in opposition to summary judgment will be denied when declaration clarifies prior ambiguous deposition testimony or prior affidavit. Summary judgment denied in hostile work environment case.

The decision is available on-lineat : https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1103-44.

– submitted by Joel P. Bennett


Court Rules on Privilege Issues

Segar et al. v. Holder et al., No. 77-81 (EGS/JMF) (D.D.C. Sept. 26, 2011).

In the Segar class action against the Department of Justice, pending since 1977, Magistrate Judge Facciola holds:

1. deliberative process privilege may not be used by a federal agency where intent is at issue; and

2. attorney-client privilege objection to discovery is waived if not raised in response within 30 days of service of discovery.

The opinion is available on-line at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1977cv0081-334.

– submitted by Joel P. Bennett


Summary Judgment Denied on Retaliation Claim

Tarick Ali, by his personal representative, Monica Ali v. District of Columbia, No. 08-01950 (HHK) (D.D.C. Aug. 31, 2011)


Trial Court Properly Waited to Rule on Fee Petition

Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011).

In Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011), the D.C. Court of Appeals held that the trial court acted properly in waiting until after an appeal on the merits (in which the first appeal affirmed the judgment in employee's favor on her DCHRA claims) to decide the employee's long-pending motion for attorney's fees and costs.


Decision Discusses Standard of Proof for Wrongful Discharge in Violation of Public Policy Claim and Individual Liability

Myers v. Alutiiq Intl. Solutions LLC, et al., No. 10- CV-2041 (ABJ), 2011 WL 4018230 (D.D.C. Sept. 12, 2011).

Judge Amy Jackson of the U.S. District Court recently issued a good decision that addresses two somewhat unsettled issues relating to the commonlaw wrongful termination in violation of public policy claim.


Court of Appeals Vacates Decision Adopting Heightened Pleading Standards

Mazza v. Housecraft LLC, No. 09-CV-1068 (D.C. 2011). The original decision is at 18 A.3d 786; and the order vacating it is at 22 A.3d 820.

The D.C. Court of Appeals, thanks to an amicus brief filed by the D.C. Trial Lawyers Association (TLA), has vacated its April 28, 2011 opinion in which the court adopted the Twombly / Iqbal pleading standards in a home improvement contract dispute where the plaintiff-appellant was pro se. The DC TLA commissioned the Center for Constitutional Litigation to draft the successful brief.


D.C. Circuit Remands Hostile Work Environment Claims

Rhonda N. Baird v. Joshua Gotbaum, Director, PBGC, No. 10-5421 (D.C. Cir. Dec. 13, 2011).


OEA Judge Abused His Discretion by Deciding Appeal Without Evidentiary Hearing

Dupree v. D.C. Office of Employee Appeals and DC Dept. of Corrections , No. 09-CV-937 (D.C. Dec. 22, 2011).

The D.C. Court of Appeals held that it was reversible error for the D.C. Office of Employee Appeals Administrative Judge to decide a District employee's appeal without holding an evidentiary hearing, since there were contested factual issues, not purely legal issues:

A. Evidentiary Hearing


D.C. Circuit Reverses Summary Judgment on Exhausted Discrimination Claim and Retaliation Claim

Hamilton v. Geithner, No. 10-5419 (D.C. Cir. Jan. 17, 2012).

The D.C. Circuit, in a decision by Judge Tatel (joined by Judges Garland and Ginsburg, with no dissent or concurrence), held that Judge Walton erred in granting summary judgment in a Title VII discrimination and retaliation case brought by an IRS employee. Although one discrimination claim was not administratively exhausted, the other discrimination claim - denial of a permanent promotion - was properly before the court. The retaliation claim was remanded for further analysis by the district court.

Newsletter Volume: 
Newsletter - January/February 2012