Kopf’s additional response to Ms. Farahany

Amanda A. Farahany has written in response to my earlier post providing her with my data regarding the issue of how employment cases are treated in the federal courts, and particularly the Northern District of Georgia as shown by a study conducted by Ms. Farahany.  In her most recent comment, she stated:

As you can see, your ‘statistics’ are actually lower than the Northern District of Georgia. (71% dismissal/14% ‘unscathed’ v. 82% dismissal/6% unscathed). Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.

What do you think about those differences?

Amanda, I have several responses. Here they are:

  • Initially, you write “as you can see . . . .”  If you intended to provide me with an analysis of my data beyond the words of your comment, I did not receive it.
  • With the foregoing in mind, my “dismissal” percentage should be higher. In the only case where I granted a SJ motion in part and denied it in part–Nugara v. Nebraska Association of Public Employees, et al., 4:09CV3212 (filing no.69 at CM/ECF pp. 24-26)–I pitched all the federal claims with prejudice, and, pursuant to the request of a defendant, declined to exercise jurisdiction over plaintiff’s remaining state law breach of contract claim, dismissing it without prejudice.  As a result, one can hardly argue that the plaintiff prevailed on any claim in that summary judgment proceeding. That being true, my dismissal rate becomes the converse of my unscathed rate. That is, 86% of the time I pitched everything and 14% of the time I left plaintiffs unscathed. If you buy that analysis, my true dismissal rate is four points higher than the rate in the Northern District of Georgia (86% v. 82%).
  • Additionally, you  state: “Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.” Please give me the table citations to your study from where you derive your facts so I can respond to the specifics of that comment. I tried to match up your comments with the tables and had trouble.
  • No matter how you look at it, my dismissal rate and the dismissal rate in the Northern District of George are both roughly equal. What that tells me is that the judges in the Northern District of Georgia and I approach SJ in employment cases about the same.
  • You might find it helpful to know more about how we deal with summary judgment motions in my chambers.  I have two career law clerks. Jan and Jim. Jim is 62 and Jan is 50 (or so). They have worked for me for a long time, they were top flight lawyers before coming to work for me, and they were honor graduates of our local law school. I honestly don’t know their political affiliations, but I suspect they are independents. They skew slightly left of center on politics whenever we chat about such things.
  • Jan and Jim take summary judgment motions according to an internal practice where Jan does the odd number cases and Jim the even number of cases. We try very hard to get SJ motions resolved in 60 days of the ripe date. I almost never discuss the case with Jan or Jim as they are working on the summary judgment motion. When they have completed their work, I receive one thing. That is, a fully completed draft opinion, with hyperlink cites to the record and the cases. I read the opinion and determine whether I agree or disagree with it. Almost always, I file the opinion without change and without discussion and that is because Jan and Jim are very good and very, very thorough. Jan and Jim’s only direction from me is to write these opinions in strict accordance with (1) the precedents in the Eighth Circuit and (2) with the our local rules of practice that place a high premium on a method for sorting out whether there are truly material facts in dispute. See Nebraska Civil Rules (NECivR), 56.1(a)&(b) at pp. 33-34. Having served as law clerk on the Court of Appeals myself (albeit long ago) and now having sat as a judge with the Circuit by designation several times, I like to think I have a better than average understanding of how to read the precedents from the Circuit.
  • So, what’s the point? Despite my high dismissal numbers, we do “it straight up.” I have no reason to suspect that your judges in the Northern District of Georgia do anything different. The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with “yours truly” too.


6 responses

  1. Statistics alone can raise suspicion. They do not possess the power to conclude prejudice. Statistics warrant further inquiry if certain things don’t happen that often in human experience. Either the law or the judges or both are prejudiced against these kinds of cases or the cases themselves are flawed. The statistics don’t tell us which. Dean

  2. The first step in fixing a broken Edsel is to admit that it is broken. As is often said, “Denial is not just a river in Egypt.” Judge Kopf may be one of the last great judges–those who were elevated to the Court primarily on merit, and have no political axes to grind–but as the Bible tells us, sins of omission are as unforgivable as sins of commission. Jas. 4:17. We sin by slience when we know we should speak.

    Judge Kopf’s standard for judicial character in his excellent Standing Bear law review article is the one both Scalia (whom he appears to dislike) and I apply: “Can you apply the law when you are utterly mortified by the outcome”? By that metric, I have often said that a Coloradan has a better chance of spotting Bigfoot on a unicorn than an honest judge; here’s another staggering real-life example.

    When judges are ambivalent, they invariably call it straight. My suspicion is that even Stalin’s judges were honest in cases Comrade Vyshinsky didn’t want to win. A divorce case in China is probably as fair as one here. But when judges have a dog in the hunt, you are, as Jefferson opined, better off in a contest of cross and pile. As Magistrate Kirsten Mix admitted (in a case I had nothing to do with, but one that we discovered while investigating him) involving disgraced ex-Judge Ed Nottingham of the District of Colorado (the one who resigned because he almost certainly took bribes to pay for his high-class hookers):

    “The biggest problem with your case is that Judge Nottingham hates employment cases and there’s nothing you can do about it. It’s random. Now don’t get me wrong, he’s a fine judge, but he just hates employment cases. That’s why he will try to find any way in the summary judgment briefs to say there’s no material issues and grant summary judgment, and if he doesn’t, he will make it tough at trial, and you won’t win . . . I’m going to look you right in the eye and tell you that you’re gonna lose.”

    Pl.’s Mot. For Recusal of Judge Nottingham Pursuant to 28 U.S.C. §144 and §455(a) and (b)(1) [Dkt. #59] , Phillips v. Pepsi Bottling Group, No. 05-cv-01322-EWN-KLM (filed Nov. 1, 2007).

    Disgraced ex-Chief Judge Nottingham’s response is priceless:

    “Based on the magistrate’s comments, Plaintiff asserts that I have “a personal bias or prejudice against him.” I must underscore, however, that the magistrate’s comments are wholly devoid of any mention of my feelings toward Plaintiff. Instead, the comments merely reflect the magistrate’s perception that the undersigned “hates employment cases.” Even accepting Plaintiff’s affidavit as true and further assuming the magistrate’s statements to be accurate, my “judicial leaning” is an improper basis upon which to premise a recusal motion.

    Additionally, the sufficiency of Plaintiff’s section 144 affidavit is undermined by the fact that it is based entirely on hearsay and conclusory opinion. Where, as here, the hearsay statements fail to demonstrate personal bias and, moreover, are tenuously corroborated only by Plaintiff’s own conclusory assertion that I “had [sic] personal bias or prejudice” against him, an affidavit is patently insufficient. Moreover, the context in which the magistrate’s comments were made further impugns their reliability: they were made in an attempt to persuade Plaintiff to accept a settlement offer.”

    Order, Phillips v. Pepsi Bottling Group, No. 05-cv-01322-EWN-PAC, 2007.DCO.0003368, ¶¶ 40-42 (D.Colo. Nov. 13, 2007) (Versuslaw) (citations omitted).

    While ex-Judge Nottingham’s reasoning may not rise to the level of opprobrious conduct worthy of discipline, the shocking assertions he makes constitute an open confession of a breakdown of our judicial system on a galactic scale. In effect, he not only asserts THAT MAGISTRATE KRISTEN MIX IS AN INVETERATE LIAR WHO ROUTINELY DEFRAUDS LITIGANTS IN SETTLEMENT CONFERENCES, but the fact that she did so (he assumes this to be true for purposes of his recusal analysis) in a specific incident is not only unworthy of stern denunciation but entirely unremarkable. Furthermore, he completely ignored the fact that Magistrate Mix was acting as his agent at the time.

    Contrast this attitude to the high-minded commentary offered in the Code of Conduct for United States Judges:

    “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. … The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

    Code of Conduct for United States Judges, Canon 2.A. cmt.

    The obvious question Judge Kelly assiduously avoided in our misconduct complaint is whether a magistrate’s established practice of lying to litigants in order to pressure and even defraud them into accepting an unjust settlement–not only condoned but expected by superiors like Chief Judge Nottingham–would create a legitimate perception that that the magistrate’s ability to carry out her judicial responsibilities with integrity, impartiality, and competence has been impaired. Frankly, to even pose the question is to arrive at an answer. Senior Judge Miner of the Second Circuit observes:

    “The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.”

    Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004).

    Now of course, judges don’t do this in every case, and it is quite possible that many judges don’t do it in any cases. But if you dump enough tar sands oil into the Ogallala Reservoir, the water becomes unpotable. New judges like Christine Arguello–who was only considered for the Supreme Court because she was a menstruating Hispanic, and that bench is pretty thin– routinely “forsake[] the rule of law for convenience or expediency,” which even she admits is “an unforgivable sin.” Christine M. Arguello, Speech (on Investiture for United States District Judge for the District of Colorado), Dec. 5, 2008 at 10-11, transcript at http://facultyfederaladvocates.org/downloads/0812ffa_arguello.pdf.

    The first step in fixing our broken Edsel of a judicial system–and that may be my remaining life mission–is to have the candor to acknowledge that it is broken.

  3. To those who would counsel that I should “give it a rest,” I would respond with the example of Penn State graduate assistant Mike McQueary. Rather than sound the alarm, this watchman on the Penn State wall remained silent, and irreparable harm ensued. “[T]o one who knows the right thing to do and does not do it, to him it is sin.” James 4:17 (NASB).

    How could anyone remain silent after watching the rape of a child?

    The logical question follows: Exactly what level of perfidy is de minimis? Where is the threshold? What is our duty to our fellow citizens? If, like the pariah Mike McQueary, we remain silent, isn’t it a veritable certainty that it will continue to happen? District Judge Robert “Driving While Black” Wilkins of the District of Columbia responds:

    “I was determined to do something about this because I don’t consider myself a victim; I consider myself a warrior. … I wanted to make sure that this stopped happening to other people.”

    Robert Wilkins, Feb. 13, 1993, as quoted in All In With Chris Hayes (MSNBC television broadcast Jun. 5, 2013), available at http://video.msnbc.msn.com/all-in-/52114957#52114957.

    When real people’s real lives are destroyed, it is no big deal … but if you cut off funding for elbow clerks, it is an unspeakable outrage? To state the case is to refute it.

    As anyone who has run a business knows, there is nothing worse than a disgruntled ex-customer…. 🙂

  4. Dear Ken,

    Within reason, I am willing to tolerate your single-minded focus. But, my patience has limits. I don’t want one person “taking over” the comment section of this blog, particularly when his or her comments are not directly responsive to the post. So, with respect, consider this as a gentle but firm warning. Please remember this is my blog, and you must “play” by my rules. Otherwise, I will use a tool in this blog platform and block your comments.

    All the best.


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