US Marshals Race Discrimination Class Action

Case Description

Case Type: Race Discrimination
Organization: US Marshals Service

Fogg v. Lynch

In July 2012, Lead Counsel David Sanford, a partner and founder at Sanford Heisler Sharp, LLP, a leading national public interest law firm, received a decision from the U.S. Equal Employment Opportunity Commission (EEOC) on a class action appeal filed in 2007. The decision approved certification of a class complaint originally filed in July 1994, asserting that African-Americans are systematically discriminated against based on race by the US Marshals Service.

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Mr. Sanford represents the complainant and class representative Matthew F. Fogg and the class in the matter, now cited as Matthew F. Fogg v. Loretta Lynch, Attorney General, Department of Justice. In 2010, Mr. Sanford was lead counsel in Amy Velez, et al., v. Novartis Pharmaceuticals Corp., the nation’s largest gender discrimination class action to go to trial, which settled after winning a $253 million verdict from a federal jury in New York.

“This is a very welcome outcome, given the serious nature and pervasiveness of the racial discrimination within the USMS since at least the mid-1990s,” said Sanford. “We are prepared to move forward immediately to ensure there are no further delays in securing justice for the many African-American men and women whose employment by the Service has been adversely affected by its illegal practices.”

The class includes all current and former African American Deputy U.S. Marshals and Detention Enforcement Officers who were subjected to USMS policies and practices regarding promotions, including reassignments and transfers, Headquarters Division assignments, hiring, and recruitment from January 23, 1994, to present.

The Amended Complaint notes the pervasive legacy of race discrimination at the Marshals Service, including the Agency’s discrimination in promotions, recruitment, and hiring.

After a month-long trial in April 1998, a jury in Washington, DC awarded Mr. Fogg four million dollars in his individual race discrimination matter against the US Marshals Service. At that trial, numerous witnesses described the Marshals Service as having labored in substantial racial turmoil for at least a decade.

An EEOC administrative judge dismissed his class claims in April 2007, concluding that Fogg’s complaint failed to satisfy various procedural requirements for class certification, according to the order. This decision was reversed in July 2012, after which the Marshals Service filed a request for reconsideration.

The EEOC’s decision to reverse the Agency’s previous denial of class complaint certification is signed by Carlton M. Hadden, Director of the EEOC’s Office of Federal Operations. It orders the Agency to notify potential class members of the accepted claim, appoint a judge to hear the class claim, and submit a report of compliance with the decision of the Commission. In November 2015, Mr. Hadden denied the Marshals Service’s Motion for Reconsideration of the class certification decision, which had been pending since August 2012, and remanded the case to an administrative judge. Mr. Hadden’s order modified the class definition to include only law enforcement and operational personnel with claims limited to recruitment, promotions, training, and assignments.

Brewer v. Holder

In addition to the Fogg administrative class action, Sanford Heisler Sharp is currently litigating a class race discrimination case against the Marshals Service in federal court. Herman Brewer Jr., et al. v. Loretta Lynch was filed in 2008 by then-Deputy US Marshal David Grogan in DC District Court. Through the course of discovery, the government’s own expert has acknowledged the existence of statistically significant class disparities in promotions and assignments. These disparities stymie the careers of countless promising and well-qualified African American deputies. Former class representative Herman Brewer, a 25-year veteran of the Marshals Service, was denied over 22 competitive promotions and reassignments between 2007 and his mandatory retirement in 2014.

In September 2015, a DC District Court judge denied Sanford Heisler’s motion to certify a class of African American Criminal Investigators in Grades 12 through 15. Sanford Heisler Sharp promptly appealed that decision to the DC Circuit Court of Appeals by filing a Rule 23(f) Petition, and argued the matter in front of the Court on September 12, 2016. After Mr. Brewer settled his individual claims and filed a stipulation of dismissal in July 2016, four new prospective class representatives, Keith Harrington, Melanie Thompson, Mariam Rodgers, and Frederick Robinson moved for leave to intervene to substitute Petitioner Brewer in the matter. After the district court failed to rule on this motion, Sanford Heisler Sharp subsequently filed appeals as of right of both the district court’s functional dismissal of the July 2016 Motion for Leave to Intervene and the September 2015 denial of class certification in September 2016. In November, the Court ruled to stay briefing in those appeals until final disposition in the Rule 23(f) Petition.

If you believe you were part of the class or collective action and you have any questions, you may contact Sanford Heisler at 202-499-5200 or 202-499-5219.

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