People For the American Way

Trump Judge Wrongly Relies on Technicalities to Uphold Dismissal of Age Discrimination Cases: Our Courts, Our Fight

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Trump Judge Wrongly Relies on Technicalities to Uphold Dismissal of Age Discrimination Cases: Our Courts, Our Fight

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.


Trump DC Circuit judge Neomi Rao wrote a 2-1 ruling that upheld the final dismissal of two cases charging federal agencies with serious age and disability bias based on the plaintiffs’ easily remedied failure to serve copies of the complaints on the Attorney General and US Attorney, in addition to the federal agencies that employed them. The November 2021 decision was in Morrissey v Mayorkas.

Paul Morrissey was a Secret Service agent for more than 30 years, received high performance ratings, and became an Assistant Director of the agency. But in 2015 when he was 59 years old, he was demoted. According to the federal age discrimination complaint he filed, his supervisor said he wanted to build his own staff with “younger” people “with a fresh perspective.” Morrissey properly filed an age bias administrative complaint which resulted in authorizing him to file suit, and he proceeded to serve the complaint and summons on the parent agency of the Secret Service, the Department of Homeland Security.

Kelly Stephenson served as an Air Traffic Control Specialist for the Department of Transportation for more than twenty years. He suffered a stroke in 2005 and took voluntary disability retirement, which left him with the ability to reapply for his position at a later time. Around eight years later, when he was still qualified, he applied for two vacancies in his former job. Under agency rules, Stephenson was supposed to receive “bona fide consideration” before the agency began recruiting for the position. As Stephenson later contended, however, the agency did not give him upfront consideration, looked at other candidates, did not even grant him an interview, and selected younger candidates without any disability. He filed an age and disability discrimination complaint with the EEOC, which authorized him to file a lawsuit, which he did, and served the summons and complaint on the Department.

Under what have been referred to as the “confusing” and “complex requirements” of the Federal Rules of Civil Procedure (FRCP), however, when people fie suit against a federal agency, they must also serve a copy of the summons and complaint on the US Attorney General and the US Attorney in the district in which they filed suit. The lawyers for Stephenson and Morrissey neglected to do so. Both cases were dismissed “without prejudice,” which means that ordinarily they can be filed again. But because of the time that had passed, the statute of limitations precluded any re-filing, so the dismissal of the complaints was final, without any consideration whatsoever on the merits. Morrissey and Stephenson asked for extensions of time or reconsideration of the dismissals so they could comply with the technical rules about service of their complaints, but the district court refused. They each appealed to the DC Circuit.

In a 2-1 decision, Trump judge Rao rejected the appeal and upheld the dismissal in both cases. She maintained that strict compliance with the FRCP was necessary to help “ensure orderly disposition of claims.” Although there was no indication of bad faith, she wrote, there was no question that Morrissey and Stephenson had not followed the rule by failing to “timely serve” the Attorney General and the US Attorney, and each district court was “well within its discretion” in denying relief, even though the “running of the statute of limitations may prevent Morrissey and Stephenson from suing the agencies for which they worked.”

Judge Patricia Millett strongly dissented from the majority’s reliance on “mere technicalities” to dismiss both discrimination complaints, contradicting what the DC Circuit has previously called the FRCP’s “clear preference” to “resolve disputes on their merits.” Specifically, she explained that Rao’s decision contradicts the Fifth Circuit, which “requires a showing of misconduct or willful failure to effect service” and a lack of reasonable alternatives before “slamming the courthouse door shut on aggrieved parties,” as well as holdings in four other circuit courts of appeal, which require “focused consideration and appropriate weight to the death knell consequences” of dismissals like these “before terminating a lawsuit just because of attorneys’ confusion or easily correctible mistakes.” The majority ruling also “cannot be reconciled,” Millett wrote, with the DC Circuit’s own precedents requiring “weighty reasons” before final dismissal of a case “for failure to complete service” under the FRCP or “failure to serve foreign governments.”

In both the Morrissey and Stephenson cases, Millett went on, there was “a single, purely technical misstep” in the complex process of serving the complaint, which were “good faith mistakes” that were “first-time” and “one-off and easily remedied.” Under these circumstances, she continued, both the majority and the lower courts made an error of law in determining that district courts can simply “brush aside the known fatal consequences” of a dismissal because of a service problem and statutes of limitations in cases like these, and in concluding that “no weightier showing” is required for a “case-ending dismissal,” which is one of the “harshest sanctions in the district court’s arsenal,” than for “a dismissal without any prejudice at all,” which is ordinarily what would happen in the case of a “technical misstep” as in these cases. At the very least, Millett noted, the majority should have followed the lead of other appellate courts and required more specific analysis of whether the “harsh sanction of locking the courthouse doors to a plaintiff’s claim is warranted,” resulting in effectively “ending a party’s case before it even begins,” in cases like those of Morrissey and Stephenson,

As a result of Trump Judge Rao’s decision, however, precisely that “harsh sanction” will apply to possible bias victims Paul Morrissey and Kelly Stephenson. The ruling also sets a troubling precedent, authorizing other district courts to deal a “mortal blow” to discrimination and other cases “at the service-of-process stage,” and undermining the “credibility of the judicial branch” and the “fairness and openness with which we administer justice,” as Judge Millett explained. This decision emphasizes the importance, as part of our fight for our courts, of the Senate confirming more fair-minded judges who will respect and carry out these important values and counteract the votes of Trump judges who do not.


age discrimination, D.C. Circuit Court of Appeals, disability justice, Neomi Rao, Our Courts Our Fight