Case Type: Race Discrimination
Organization: US Marshals Service
Matthew Fogg, et al. v. Merrick Garland, Attorney General
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. The EEOC’s decision reversed the Agency’s previous denial of class certification and ordered the Agency to notify potential class members of the accepted claim and appoint an Administrative Judge to hear the class claim. In November 2015, the EEOC denied the Marshals Service’s Motion for Reconsideration of the class certification decision. That order modified the class definition to include only law enforcement and operational personnel with claims relating to recruitment and hiring, promotions, training, and assignments and provided that an amended class charge be filed including additional class agents.
Were you discriminated by the US Marshals Service?
Mr. Sanford, along with a team led by Saba Bireda, a partner in the Washington, DC office and Co-Chair of the Firm’s Discrimination and Harassment Practice Group, represents the original complainant and class agent, Matthew F. Fogg, six other class agents and the class in the matter, now cited as Matthew F. Fogg v. Merrick Garland, Attorney General, Department of Justice. To read more about Mr. Sanford and the cases he has worked on, click this link.
An Administrative Judge was assigned to the case in 2016 and an Amended Class Charge was filed in 2017. That amended charge noted the pervasive legacy of race discrimination at the Marshals Service and alleged claims of class-wide racial discrimination, including in promotions, headquarters assignments, and recruitment and hiring. The Administrative Judge approved the Amended Class Charge and certified a class that includes all current and former African American Deputy U.S. Marshals and those Detention Enforcement Officers who applied to be deputies 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.
Since 2017 the parties have engaged in discovery—the gathering of information through document and data production and the testimony of witnesses in depositions. Following the close of discovery, briefing of legal arguments to the Administrative Judge and a hearing on the class claims are expected.
Status as of December 1, 2020
Currently, we are nearing the end of fact discovery, which is the information-gathering stage before trial. As part of discovery, we have taken a number of depositions, including depositions of former Directors Clark, Hylton, Harlow, and Anderson, as well as a number of HRD and EEO individuals and others in Agency leadership. The Agency has also deposed many of our class agents and affirmative witnesses. We have also succeeded on various motions to compel the Agency to produce information and documents from the Agency, that are integral to proving our claims. Once fact discovery ends, we will begin expert discovery, briefing of legal issues in the case, and then we will get a trial date. Expert discovery is expected to include reports from and depositions of labor economists regarding statistical analysis of the Agency’s employment practices by race and Industrial/Organizational Psychologists regarding whether those practices are valid, job-related selection devices from both parties. Legal issues to be decided will then be raised, briefed, and decided in motions for summary judgment. Following those decisions, a hearing on the class claims is expected to be scheduled.
In October 2020, a new EEOC administrative judge was assigned to the case. The Judge held an initial conference and indicated that he would decide pending motions and then set a new case management order scheduling the remaining proceedings.
If you are a class member (i.e., if you identify as African American/Black and were a deputy at any point from 1994 to the present or you were a DEO who applied to be a deputy at any point from 1994 to the present) and would like to speak with a member of our team, please email FoggInfo@sanfordheisler.com.
Brewer v. Holder
In addition to the Fogg administrative class action, Sanford Heisler Sharp litigated a class race discrimination case against the Marshals Service in federal court from 2008 to 2019. Herman Brewer Jr., et al. v. Loretta Lynch was filed in 2008 by then-Deputy US Marshal David Grogan in DC District Court. 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 and argued the matter in the Court on September 12, 2016. In July 2017, the Court of Appeals remanded the case with instructions to allow class members to file a new motion for class certification. Because the Fogg EEOC case was proceeding as a class action that included all of the claims in the Brewer case, in February 2020, the Brewer matter was dismissed without prejudice in light of the Fogg proceedings.