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Briefs Recently Filed

Kisor v. Wilkie

The State and Local Legal Center (SLLC) filed an amicus brief in Kisor v. Wilkie asking the Supreme Court to overturn Auer v. Robbins (1997). It that case the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to an agency’s interpretation of its own regulations.

In Kisor v. Wilkie the Federal Circuit deferred to the Veterans Administration’s (VA) definition of “relevant” when determining whether a veteran’s claim for benefits can be reconsidered.

James Kisor is a Vietnam veteran who participated in Operation Harvest Moon. In 1983 a VA psychiatrist, while noting Kisor’s participation in this operation, determined he didn’t have PTSD. Kisor was denied disability benefits. In 2007 Kisor was diagnosed with PTSD and the VA gave him full disability benefits prospectively. Kisor also asked the VA to “reconsider” his case and provide him with an effective date of benefits of 1983.     

Per regulation, VA’s receipt of “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim” allow an application to be reconsidered. Kisor claimed that his Combat History document and other paperwork from 1983 that document his participation in Operation Harvest Moon were such records.

Kisor didn’t argue that these records show that he was diagnosed with PTSD in 1983. Instead he claims that these records were “relevant” “because they speak to the presence of an inservice stressor, one of the requirements of compensation for an alleged service-connected injury.” The VA claims they are not “relevant” because “they addressed the matter of an in-service stressor, which was not ‘in issue,’ rather than the issue of whether he suffered from PTSD, which was ‘in issue.’”

Kisor argued for a broad definition of “relevant” and the VA argued for a narrow definition. Deferring to the VA the Federal Circuit adopted the VA’s narrow definition of “relevant” noting it isn’t “plainly erroneous or inconsistent” with the VA’s regulatory framework.

The SLLC amicus brief argues the Supreme Court should overturn Auer. “By demanding deference to an agency’s interpretation of its own regulations, Auer provides a powerful incentive for agencies to abandon the notice-and-comment process that facilities dialogue among federal, state, and local governments.  This, in turn, invites dramatic shifts in federal policy with each new administration—and tends to result in policies that lack the clarity and wisdom that public participation can engender.  Worse still, when agencies do engage in notice-and-comment rulemaking under the Auer regime, they do so knowing that by crafting ambiguous regulations they can expand their own power to unilaterally dictate federal policy through subsequent interpretation.” 

Allyson N. Ho, Kathryn Cherry, and Elizabeth A. Kiernan of Gibson, Dunn & Crutcher wrote the SLLC amicus brief which the following organizations joined:  the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the United States Conference of Mayors, the International City/County Management Association, and International Municipal Lawyers Association, the Government Finance Officers Association, and the National School Boards Association.

PDR Network, LLC v. Carlton & Harris Chiropractic Inc.

In an amicus brief in PDR Network, LLC v. Carlton & Harris Chiropractic Inc. the State and Local Legal Center (SLLC) argues that federal courts should be able to refuse to apply federal agency orders which they deem inapplicable even if the orders are covered by the Hobbs Act. While case sounds obscure, numerous Federal Communications Commission (FCC) orders are covered by the Hobbs Act including the small cell order, which preempt local regulations to facilitate the deployment of small cells for 5G.

The Hobbs Act vests the federal courts of appeals with “exclusive jurisdiction” to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain orders made by the FCC and orders of the Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, and others.

According to one lower court the Hobbs Act “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform, nationwide interpretation of the federal statute by the centralized expert agency.”

In this case PDR Network claims the Fourth Circuit improperly interpreted the Hobbs Act to require a federal district court (and the Fourth Circuit as well) to accept an FCC order which no one questioned was valid but which PDR Network claims should not be deferred to.

PDR Network sent Carlton & Harris, a chiropractic office, a fax about receiving a free Physicians’ Desk Reference eBook. Carlton & Harris sued PDR Network claiming it violated the Junk Fax Prevention Act, which prohibits the use of a fax machine to send “unsolicited advertisement[s].”

PDR Network argued that the fax could not be considered an unsolicited advertisement because it did not offer anything for sale. Carlton & Harris countered that the FCC has adopted a rule stating that “facsimile messages that promote goods or services even at no cost . . . are unsolicited advertisements under the Act.”

Typically, when a court interprets a statute it first determines if the statute is ambiguous. If it is, the court applies so-called Chevron deference, deferring to an agency’s reasonable interpretation of the statute.

In this case the district court concluded that the statute isn’t ambiguous and doesn’t apply to a fax offering something for free. So the district court didn’t defer to the FCC interpretation. The Fourth Circuit disagreed holding that the Hobbs Act required the district court not just to defer to the FCC order but to accept it. A dissenting judge argued that the Hobbs Act is implicated only if there is a challenge to the “validity” of an agency’s order. There was no such challenge in this case.

States and local governments aren’t typically senders of junk faxes. But they are subject to agency orders covered by the Hobbs Act which they may view as valid but which they don’t think should receive deference. This case requires courts to go even further than deferring to such orders.  

The SLLC amicus brief argues that the Fourth Circuit’ construction of the Hobbs Act “work[s] an unprecedented transfer of judicial and legislative power to agencies, which would be free to construe federal law without any opportunity for judicial review.” The Hobbs Act requires that challenges to the validity of covered agencies’ actions be brought within 60 days after the entry of a final order. As a practical matter the lower court’s ruling would require states and local governments “to anticipate and challenge possible future unlawful applications of an agency order [in that 60 day window] when they were still theoretical or lose the chance to do so forever.” Many FCC order aren’t as monumental as for example the small cell order meaning state and local governments may not immediately realize they should challenge their validity.   

Ashley E. Johnson, Bradley G. Hubbard, and Elizabeth A. Kiernan of Gibson, Dunn & Crutcher wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, and the International Municipal Lawyers Association.

American Legion v. American Humanist Society

In American Legion v. American Humanist Society the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.

The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the Court should come up with a single, clear test to evaluate the constitutionality of public displays.  

Prince George’s County citizens and an American Legion Post raised money to build the monument. In 1925 it was dedicated at a Christian prayer service. Over the years Christian religious services have been held at the cross.

In 1961 the Maryland-National Capital Park and Planning Commission took title of the land and the cross because it is located in the middle of a busy traffic median. The cross is part of a park honoring veterans. Other monuments are located anywhere from 200 feet to a half-a-mile from the cross. None are taller than 10 feet.

The First Amendment’s Establishment Clause prohibits the government from establishing religion. The Fourth Circuit applied the so-called three-prong Lemon test, as modified by the Supreme Court’s most recent monument decision Van Orden v. Perry (2005), to conclude that the government display and maintenance of this cross violates the Establishment Clause.

The lower court first concluded that the cross has a secular purpose thus passing the first prong of the Lemon test. Specifically, the Commission obtained the cross to maintain safety near a busy highway intersection and preserves the memorial to honor World War I soldiers.

But the Fourth Circuit concluded that a reasonable observer would understand this cross to advance religion. The Latin cross is the “preeminent symbol of Christianity.” While the cross has secular elements (like the words valor, endurance, courage, and devotion inscribed on its base and a plaque at the base listing the memorialized soldiers), the “immense size and prominence of the Cross” “evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.”

The Fourth Circuit also concluded that the cross fails Lemon’s third prong because it creates an excessive entanglement between government and religion. First, the Commission has spent $117,000 to maintain and repair it. In 2008 it set aside an additional $100,000 for renovations. “Second, displaying the Cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.”

The SLLC asks the Supreme Court to overturn the Fourth Circuit decision. The amicus brief first argues that the harm the challengers allege in this case, that they are offended by the memorial and wish to no longer have contact with it, is insufficient to have standing to bring a lawsuit. The brief also argues the memorial doesn’t violate the Establishment Clause and describes at length the confusing body of law courts and state and local government attorneys have to sift through to determine whether a public display violates the Establishment Clause. The brief encourages the Court to adopt a single, easy-to-apply standard to evaluate public displays so that their constitutionality may be resolved more quickly and easily.

Paul J. Zidlicky, Michael B. Buschbacher, and Christopher S. Ross of Sidley Austin wrote the SLLC brief which was joined by the National Association of Counties, the National League of Cities, the International City/County Management Association, the International Municipal Lawyers Association, and the Government Finance Officers Association.

Tennessee Wine & Spirits Retailers Association v. Byrd

The State and Local Legal Center (SLLC) amicus brief in Tennessee Wine & Spirits Retailers Association v. Byrd argues that Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license is constitutional.

According to Tennessee Wine & Spirits “[a]t least twenty-one States impose some form of durational-residency requirement for liquor retailers or wholesalers. And many States impose other residency-based requirements on those entities.”

Beyond repealing prohibition, the Twenty-First Amendment prohibits the transportation or importation of alcohol into a state in violation of state law. Despite this section’s broad language the Supreme Court has held that some state laws restricting the distribution of alcohol violate the Constitution’s dormant Commerce Clause. The dormant Commerce Clause prevents states from “discriminat[ing] against interstate commerce” or “favor[ing] in-state economic interests over out-of-state interests.”

Tennessee Wine & Spirits argues that the dormant Commerce Clause doesn’t apply to durational-residency requirements because they “treat liquor produced out of state the same as its domestic equivalent.” Tennessee Wine & Spirits relies on Granholm v. Heald (2005), where the Supreme Court struck down a state law that permitted in-state wineries, but not out-of-state ones, to ship directly to in-state consumers. The Court reasoned that the Twenty-First Amendment did not “save” this law from violating the dormant Commerce Clause. According to Tennessee Wine & Spirits per Granholm the dormant Commerce Clause only applies to regulation of alcohol producers and products. In short, Tennessee’s durational-residency law doesn’t treat alcohol produced in-state or out-of-state differently.

The Sixth Circuit disagreed with Tennessee Wine & Spirits and concluded the dormant Commerce Clause applies to this statute and was violated. The statute’s legitimate purposes of protecting the health, safety, and welfare of Tennessee residents and having a higher level of oversight over liquor retailers could be accomplished through non-discriminatory alternatives, according to the court. Possibilities included requiring a retailer’s general manager to be a resident of the state and implementing technological improvements, such as creating an electronic database to monitor liquor retailers.

The SLLC amicus brief argues “courts should review State regulation of alcohol with a heavy thumb on the scale in favor of upholding the regulation, striking it down only if there could be no rational basis on which the regulation serves a legitimate interest in regulating alcohol and instead could have no purpose other than discrimination against out-of-state economic interests. Under that standard, the Tennessee two-year residency requirement easily passes muster.” Additionally the brief points out “[a]ffording that kind of deference to State regulation of alcohol makes sense because States and local governments bear the brunt and cost of problems associated with alcohol sales and use.”

Richard A. Simpson, Tara L. Ward, and Emily S. Hart of Wiley Rein wrote the SLLC brief which the following organizations joined:  National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Gamble v. United States

In an amicus brief in Gamble v. United States, the State and Local Legal Center (SLLC) asks the Supreme Court not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from the U.S. Congress.

According to Gamble, the separate-sovereigns exception should be overruled because, among other reasons, it “flunks every test of constitutional interpretation.”

The United States responds that: “[a]n unbroken line of this Court’s decisions, whose origin reaches back nearly two centuries, has correctly understood the violation of a state law and the violation of a federal law as distinct ‘offence[s]’ under the Double Jeopardy Clause.“

The SLLC amicus brief points out that “Tenth Amendment and the federalism principles it enshrines have formed and shaped” the “separate sovereigns” exception. The brief also argues that a number of practical justifications support retaining the “separate sovereigns” exception. Specifically, eliminating it would “unfairly impact state and local prosecutors, who would remain politically accountable for law enforcement outcomes, despite being stripped of the ability to address those problems locally.”

Gordon D. Todd, Josh Fougere, Spencer Driscoll, Audry M. Klossner, of Sidley Austin wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National District Attorneys Association, and the National Sheriffs Association.

Timbs v. Indiana

The issue in Timbs v. Indiana is whether the Eighth Amendment Excessive Fines Clause applies to the states. The State and Local Legal Center (SLLC) Supreme Court amicus brief rejects the argument that the Fourteenth Amendment incorporates all rights included in the first eight Amendments. It also argues that the forfeiture in this case isn’t unconstitutionally excessive.

Indiana sought to forfeit Tyson Timbs’ Land Rover which he used to buy and transport heroin. The trial court accepted Timbs’ challenge that the fine would be excessive per the Eighth Amendment which states that “excessive bail shall not be required, nor excessive fines imposed.” The court observed that the value of the vehicle well exceeded the maximum statutory fine ($10,000) for the felony Timbs plead guilty to.

The Indiana Supreme Court decided not to apply the Excessive Fines Clause to Indiana because the U.S. Supreme Court had yet to apply it. After the passage of the Fourteenth Amendment, the U.S. Supreme Court began to “apply various provisions of the Bill of Rights to the States through the doctrine of selective incorporation.” But the U.S. Supreme Court has never held whether the Eighth Amendment’s Excessive Fines Clause is enforceable against the states.

Interestingly, in Cooper Industries v. Leatherman Tool Group (2001), the Court stated in dicta (language in the opinion not essential to the holding of the case) that the Excessive Fines Clause does apply to the states. But in McDonald v. Chicago (2010), the Court stated, again in dicta and without mentioning Cooper, it has never decided whether the Excessive Fines Clause applies to the states. 

The SLLC amicus brief argues that the historical evidence that the Fourteenth Amendment was originally understood to incorporate the first eight amendments, as Timbs argues, is “deeply unsatisfactory.” The brief also argues that the forfeiture in this case wasn’t excessive. First, Timb’s use of the Land Rover was integral in his heroin operation. Second, depriving Timbs of his Land Rover is roughly proportional. And finally transporting heroin is a serious offense.

Lawrence Rosenthal, Chapman University, Fowler School of Law, wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Virginia Uranium v. Warren

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t preempted by the Atomic Energy Act (AEA).

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. It sued the state arguing the ban is preempted by federal law.

The AEA allows states to “regulate activities for purposes other than protection against radiation hazards.” Virginia and Virginia Uranium agree uranium mining isn’t an “activity” per the AEA so states may regulate it for safety reasons. Uranium-ore milling and tailings storage are “activities” under the AEA so states can’t regulate them for safety reasons. Milling is the process of refining ore and tailings storage refers to the remaining (radioactive) material which must be stored.

Before the lower court, Virginia argued, and the Fourth Circuit agreed, that its ban on uranium mining isn’t preempted because it doesn’t mention uranium milling or tailings storage. Virginia Uranium pointed out “no one would want to undertake the pointless expense of constructing a mill and tailings-management complex in Virginia and transporting out-of-state uranium [ore] into the Commonwealth.” Virginia Uranium also argued the AEA preempts the mining ban because its purpose and effect is to regulate milling and tailings storage for safety reasons. But the Fourth Circuit refused to “look past the statute’s plain meaning to decipher whether the legislature was motivated to pass the ban by a desire to regulate uranium milling or tailings storage” when Virginia banned uranium mining.

The SLLC amicus brief points out that Virginia Uranium “seek[s] to compel a state to allow uranium minimum on nonfederal land based on federal preemption, even though the federal act in question is silent as to uranium mining on nonfederal land, mining is historically subject to state police power, and a statute in the state in question bans uranium mining.” According to the brief, “[s]uch extraordinary relief would not be subject to a limiting principle.” The brief also notes that Virginia Uranium’s argument involves “divining the subjective intent of a state legislature rather than relying on the plain text of the state’s legislation.” The SLLC amicus brief describes how “peering behind statutory text in search of some unexpressed actual motive is a fruitless endeavor.”

John J. Korzen, Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which was joined by the the National Conference of State Legislatures, the National League of Cities, and the International City/County Management Association.

Nieves v. Bartlett

The Supreme Court decides numerous difficult cases each term. It may be surprising that no issue has vexed the Court like whether probable cause to arrest someone means they can’t bring a First Amendment retaliation case. In Nieves v. Bartlett the State and Local Legal Center (SLLC) argues in an amicus brief (for the third time) that probable cause defeats First Amendment retaliation claims.   

Russell Bartlett was attending Arctic Man, an Alaskan snowmobile race, when he declined to talk to Police officer Luis Nieves who was patrolling the large outdoor party. Officer Nieves later observed Bartlett yelling at a separate officer, Bryce Weight, and Weight pushing Bartlett away. Believing Bartlett posed a danger to Officer Weight, Officer Nieves arrested Bartlett. Bartlett alleges that Nieves said “bet you wish you had talked to me now” in the process of the arrest.

Bartlett sued Officer Nieves claiming Nieves arrested him in retaliation for his refusal to initially speak to Nieves in violation of the First Amendment. The district concluded there was probable cause to arrest Bartlett. All federal circuit courts to decide this issue except the Ninth Circuit have held that to bring a First Amendment retaliatory arrest case plaintiffs must be able to prove the absence of probable cause to arrest them, which Bartlett could do not in this case.

But in the Ninth Circuit a plaintiff will win a First Amendment retaliatory arrest claim if he or she can “demonstrate that the officers’ conduct would chill a person of ordinary firmness from future First Amendment activity” and the evidence “ultimately [proves] that the officers’ desire to chill his [or her] speech was a but-for cause” of the arrest.

The SLLC filed an amicus brief in this case arguing that the Court should reject the Ninth Circuit test and hold that in general probable cause defeats First Amendment retaliation claims.  According to the brief, a no-probable-cause rule gives law enforcement clear guidance in the field, will better weed out frivolous retaliatory-arrest claims early on, and will dissuade plaintiffs from asserting meritless claims at all. The brief also points out the 50 state constitutions also protect free speech. State courts may interpret state constitutions more broadly than the federal constitution.

In Reichle v. Howards (2012) the Supreme Court failed to decide whether to adopt the no-probable-cause rule in First Amendment retaliatory arrest claims. Instead it gave qualified immunity to Secret Service agents who arrested Steven Howards for touching Vice President Dick Cheney and lying about it. Howards told Cheney his “policies in Iraq are disgusting.”

In Lozman v. Riviera Beach (2018) the Court held that Fane Lozman, who was arrested at a city council meeting for refusing to stop talking, was not barred from bringing a First Amendment retaliatory arrest claim even though the city had probable cause to arrest him. Lozman claimed the city council arrested him as part of a strategy to intimidate him because he filed a lawsuit against the city. The Court declined to decide as a general rule whether probable cause is required to bring a more typical retaliatory arrest cases like Nieves.

Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Knick v. Township of Scott 

In Knick v. Township of Scott the Supreme Court will decide whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985). In that case the Court held that before a takings claim may be brought in federal court, landowners must comply with state law procedures and remedies enacted to provide just compensation. The State and Local Legal Center (SLLC) amicus brief urges the Court to keep Williamson County.

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery.

The Third Circuit agreed with the Township that Knick failed to comply with Williamson County because she filed her case in federal court instead of pursuing it under Pennsylvania’s Eminent Domain Code. 

Knick argues that the Supreme Court should overturn Williamson County because it “deprives property owners of reasonable judicial access for a takings claim, impedes the orderly development of takings law, and causes a tremendous waste of judicial and litigant resources.”

The SLLC amicus brief argues the Supreme Court should not overturn Williamson County. The brief explains how lower courts have ensured that the state-compensation requirement is not “gamed to deprive property owners of their day in court.” It also explains why state courts are a better forum for deciding these cases than federal courts. State courts are much more familiar with state property law and “are far more expert in the state statutory issues that so often accompany takings claims.”

The Supreme Court has repeatedly and recently refused to hear petitions arguing Williamson County should be overturned. This case will provide Justice Gorsuch his first opportunity to participate in takings case on the Supreme Court. It remains to be seen whether Judge Kavanaugh will be on the bench by October 3 to participate in oral argument.

Matt Zinn, Andrew Schwartz, and Laura Beaton, Shute, Mihaly & Weinberger LLP, wrote the SLLC amicus brief which was joined by the National Governors Association, National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Mt. Lemmon Fire District v. Guido

The legal issue in Guido v. Mount Lemmon Fire District could not be simpler; but the law is tricky. In this case the Supreme Court will decide whether the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) amicus brief argues it should not.

John Guido was 46 and Dennis Rankin was 54 when they were terminated by the Mount Lemmon Fire District due to budget cuts. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. 

The fire district argues that the ADEA does not apply to it because it employs fewer than 20 people.

The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

Guido argued, and the Ninth Circuit agreed, that “employer” means “[A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” The clause describing state-affiliated entities contains no size requirement.

The Ninth Circuit opined that the word “also” supports its interpretation. “The word ‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” As used in this context, ‘also’ adds another definition to a previous definition of a term—it does not clarify the previous definition.”

Notably the Sixth, Seventh, Eighth, and Tenth Circuits have come to the opposite conclusion—that the 20-employee minimum applies to state and local governments.

The SLLC amicus brief points out that small special districts, like the Mount Lemmon Fire District, are very common. Particularly in rural areas there are “few alternatives to layoffs and terminations when budget cuts must be made,” making small special districts particularly vulnerable to age discrimination lawsuits.

The brief also argues the Ninth Circuit decision is inconsistent with principles of federalism. “Small state and local government entities must have the latitude to staff their projects as they see fit, responsive to local needs and in line with particular project goals. The fact that these needs differ is illustrated by the different age discrimination statutes enacted by the States with a variety of minimum employee thresholds.”

Collin O’Connor Udell of Jackson Lewis wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Public Labor Relations Association, and the International Public Management Association for Human Resources.