§ 177-4 Applicability; more restrictive provisions to prevail.
§ 177-5 Rental occupancy registration required.
§ 177-6 Application for rental registration.
§ 177-7 Responsibilities and protection of tenants.
§ 177-8 Registration application fees.
§ 177-9 Review of application.
§ 177-10 Term of certificate of registration.
§ 177-11 Record of registrations.
§ 177-12 Presumptions applicable to rental registration enforcement and prosecutions.
§ 177-13 Registration effective date and deadline.
§ 177-14 Procedures to obtain voluntary certificate of inspection and maintenance compliance.
§ 177-15 Inspections; positions of certificate.
§ 177-16 Penalties for offenses.
Residential properties are significant assets and represent a critical investment in the City of Watertown because of their impact on community character, property values and overall quality of life. To maintain the quality of City neighborhoods and facilitate effective code enforcement, the City must be able to efficiently communicate with property owners regarding maintenance and property conditions.
In instances when residential properties are rented to others, rather than owner-occupied, the City Council has determined that accurate and current contact information is needed to facilitate timely communication with property owners regarding potential issues related to property conditions and/or violations of the City Code and/or the laws of the State of New York. The City Council has also determined that an inability to make timely contact with the owners of such residential rental properties may result in extended physical deterioration of housing stock and/or substandard living conditions for City residents. The City Council finds that establishing registration and voluntary inspection requirements for rental properties is in the best interest of public health, safety, and welfare and that the good order and governance of the City will be promoted and enhanced by the enactment of registration and inspection requirements for such rental properties and their owners through the adoption of the provisions set forth in this article.
The Code Enforcement Official shall be the City's Code Enforcement Supervisor as described at Article II of Chapter 120 of the Code of the City of Watertown, as the same may, from time to time, be amended. Such official shall have additional duties of registration and inspection, and issuance of certificates of inspection and maintenance compliance pursuant to this article, and is hereby authorized and directed to enforce the provisions of this article.
The Code Enforcement Official shall have the authority to render interpretations of this code and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies, and procedures shall be in compliance with the intent and purpose of this article, but shall not have the effect of waiving requirements specifically provided for in this article.
A structure or building, or any part thereof, equipped with bathing room(s), and areas or rooms for cooking, dining, living and sleeping, occupied or to be occupied by one or more persons as a home or residence.
The person, persons, or entity that has fee simple title or comparable rights to a dwelling unit or of a property including one or more dwelling units.
A return, in money, property or other valuable consideration (including payment in kind or services or other thing of value), for use and occupancy or the right to the use and occupancy of a dwelling unit, whether or not a legal relationship of landlord and tenant exists between the owner and the occupant or occupants thereof.
A dwelling unit established, occupied, used or maintained for rental occupancy in a one-, two-, or multifamily home, equipped with bathing room(s), and areas or rooms for cooking, dining, living and sleeping, occupied or to be occupied by one or more persons as a home or residence.
The occupancy or use of a dwelling unit by one or more persons other than the owner as a home or residence under an arrangement whereby the occupant or occupants thereof pay rent for such occupancy and use. There is a rebuttable presumption that any occupancy or use of a dwelling unit is to be deemed a rental occupancy if the owner of the structure or building containing the dwelling unit does not reside in the same structure or building.
Rental registration and inspection exceptions. The rental registration and inspection requirements of this article shall not apply to owner-occupied one-family dwellings, hotels and motels, nursing homes, hospitals, adult homes, assisted living facilities, hospice residences, and other licensed residential health care facilities. Otherwise, all other dwelling units rented that are equipped with bathing room(s), and areas or rooms for cooking, dining, living and sleeping, occupied or to be occupied by one or more persons as a home or residence, must be registered with the City.
Voluntary inspection exceptions. The voluntary inspection aspects of this article shall not apply to owner-occupied dwellings; multifamily dwellings owned by a duly established public housing authority or leased directly to the U.S. government; any federal, state, or locality-owned or -managed buildings, Section Eight, and other subsidized housing subject to other inspection requirements; and any newly built and renovated housing receiving a certificate of occupancy within the preceding five years that has been approved for occupancy by the Code Enforcement Official.
Scope. This article shall apply to all rental dwelling units located within the City, with the exception of those delineated in § 177-3B.
Applicability. The provisions of this article shall be deemed to supplement applicable state and local laws, ordinances, codes, rules and regulations, and nothing in this article shall be deemed to abolish, modify, limit, impair, supersede or replace any existing requirements of, or remedies under, any other applicable federal, state or local statute, laws, ordinances, codes, rules or regulations. In case of conflict between any provision of this article and any applicable federal, state or local statute, law, ordinance, code, rule or regulation, the more restrictive or stringent provision or requirement shall prevail. The acceptance of any registration, the filing of any application under this article or other compliance with the requirements of this article shall not cause, or be deemed to cause, any circumstance, condition, status, action, or statement of facts that is otherwise illegal, unlawful or noncompliant under any federal, state or local statute, law, ordinance, code, rule or regulation, including, but not limited to, the City Code, to become or be deemed to be lawful, legal or in compliance.
It shall be unlawful and a violation of this article for any owner of any rental property or rental dwelling unit in the City to establish, maintain, use, let, lease, rent or suffer or permit the occupancy and use thereof as a rental occupancy without first obtaining and thereafter maintaining in full force and effect a certificate of registration from the City, as herein provided.
The name, address (both street address and any post office address), telephone and facsimile numbers, and e-mail address, if any, of each owner.
The street address of the rental property, including the apartment or unit number of the rental dwelling unit(s), if any.
If the rental dwelling unit is occupied as of the date the application is filed with the Department.
A description of the building or structure, including the number of rental dwelling units in the building or structure.
Designation of a managing agent. If the owner of the rental dwelling unit does not live within and/or maintain an office or a place of business within Jefferson County, a managing agent must be designated. The name, address (street address and any post office address), telephone and facsimile numbers and e-mail address of the local managing agent or agents or operator of each such intended rental property shall be provided. The agent shall be a person 18 years of age or older, who resides within the County of Jefferson, New York, or conducts a business, the main office or branch of which is located in the County of Jefferson. The agent shall be designated by such owner as in control of and responsible for the maintenance and operation of such dwelling and who shall be designated as the person upon whom process and other notice may be served on behalf of the owner.
Conditions to be met; acknowledgement.
Rental properties and all rental dwelling units thereon shall comply with all applicable federal, state or local statutes, laws, ordinances, codes, rules or regulations, including the applicable provisions of the New York State-adopted rules of the International Code Council (ICC), as the same may, from time to time, be amended.
Operational smoke and carbon monoxide detectors as required by the ICC.
Exterior walls, including foundations, shall be maintained. All exterior walls and foundations must be free of holes and crevices.
Roofs shall be maintained in a weathertight condition, secured by normal means.
Exterior surfaces shall be maintained in good condition.
Interior living spaces, including kitchen(s), bathroom(s), and bedroom(s), are in compliance with the ICC.
Chapter 98, Brush, Grass and Weeds.
Chapter 161, Garbage, Rubbish and Refuse.
Such application shall be signed by the owner(s).
None of the responsibilities of occupants specified in this section shall relieve the owner of his or her responsibility to maintain those parts of a rental unit which are part of the permanent or semipermanent construction of the unit or dwelling, in whole or in part, in a clean, orderly and sanitary condition.
Every occupant of a dwelling unit shall be liable for a code violation as well as for any damage caused by his or her own willful act, omission, assistance, or negligence or that of any member of his or her family, or household guests if such damage results in, or contributes to, a violation of the regulations of the ICC or provisions of the Code of the City of Watertown.
In addition to any other penalty provided by law, a judge may, at the time of sentencing, upon plea or conviction, order restitution pursuant to Subsection B(1) of this section as a condition of any sentence imposed. If such restitution is ordered, except for good cause shown, it shall be paid within 30 days of the date of the sentence.
Every occupant of a dwelling unit shall keep all plumbing, cooking, electric, and all other fixtures and facilities required by this article in a clean and sanitary fashion and shall also be responsible for the exercise of reasonable care in the proper use and operation of such facilities.
No owner, occupant, contractee, mortgagee, designated manager, or any other person, firm or corporation, directly or indirectly in control of a building governed by this article, shall threaten or otherwise retaliate against any occupant who has not committed a breach of the lease of contract of rental, for reporting in good faith of the existence of any violation of the provisions of this article or any other applicable laws, statutes, ordinances or regulations, or for, in good faith, availing himself or herself of any legal remedy to secure or enforce rights under his or her lease or agreement, or provided by law.
No owner, occupant, contractee, mortgagee, designated manager, or any other person, firm or corporation, directly or indirectly in control of a building or a part thereof, shall threaten or otherwise retaliate against any occupant who lives in a dwelling or dwelling unit where the Department has initiated action by giving notice to the owner or persons responsible for the dwelling because the Department believes there has been a violation of any provision of this article.
No owner, occupant, mortgagee, designated manager, or any other person, firm or corporation, directly or indirectly in control of a building or a part, shall threaten or otherwise retaliate against any occupant who has exercised any of his or her rights as described in this article.
The defense of retaliatory action may be raised by the occupant in an eviction action, summary proceeding or other action relating to the right of the occupant to remain in possession of premises.
Registration application fee. A nonrefundable registration application fee shall be paid to the City upon filing each application for a certificate of registration of a rental occupancy and/or for a rental dwelling, in an amount to be set from time to time by the City Council by resolution. The City Council resolution may, in its discretion, but subject to applicable law, establish a schedule or schedules setting different application fees for different categories of applicants or properties.
The fees required by this section shall be waived for any applicant that demonstrates to the satisfaction of the Code Enforcement Official that it is a not-for-profit housing development corporation organized under the laws of the State of New York and that it is providing housing for senior citizens or other designated special populations subject to income guidelines established by either federal or state regulation.
The Code Enforcement Official shall review each application for completeness and accuracy. The Code Enforcement Official shall also review all available information to confirm that the rental property and all rental dwelling units thereon are in compliance with the ICC or provisions of the Code of the City of Watertown at the time the application is made. The application shall be accepted and a certificate of registration shall be issued if, based on all such available information, such application is found to be complete and accurate. Notice to the owner of acceptance or rejection of the application shall be made in writing.
Except for any change in the information provided in the application pursuant to § 177-6A(3), in the event that the prior application is no longer complete or accurate, within 30 days following the occurrence of the event or change in circumstances requiring the updating of such information.
In the event a new application is not filed if and when required pursuant to Subsection A(1)(b) or (2) of this § 177-10, the existing certificate of registration shall be null and void.
It shall be the duty of the Code Enforcement Official to maintain a record of registrations pursuant to this article. Such register shall be kept by owner name and by street address, showing the name and address of the owner, the number of rental dwelling units at such street address, and the date of expiration of registration for such property. Each application shall be maintained in accordance with all record retention requirements applicable to the City and shall be subject to public disclosure, inspection and copying in accordance with the requirements of the applicable law of the State of New York.
There are partitions or internal doors which may serve to bar access between segregated portions of any building or structure located on the property, including, but not limited to, bedrooms.
Two or more complete dwelling units, as defined herein or in the Residential Code of New York State, exist in any building or structure located on the property.
The presumptions set forth above, subject to the limitations contained therein, shall also be applicable to enforcement and prosecution of illegal residential use and occupancy violations under other articles of the City Code.
Nothing herein shall be construed to prevent persons living together with any owner as a two-family unit as defined by the City Code.
The rental registration portions of this article shall be effective beginning January 1, 2018, for all owners in the City of Watertown, Jefferson County, New York. All owners in the City of Watertown must register their property/rental dwelling unit(s) as required by this section on or before June 30, 2018.
Voluntary inspections. After July 1, 2018, upon the request of any rental unit owner, managing agent, or tenant, the Code Enforcement Official shall have authority to inspect the subject rental property/rental dwelling unit(s). In doing so, the Code Enforcement Official shall be entitled to rely upon the representation of said owner or managing agent that the inspection of any occupied unit is with the consent of the tenant. Upon successful inspection, a certificate of inspection and maintenance compliance will be issued.
A certificate of inspection and maintenance compliance issued under Subsection A above will be valid for three years from the last day of the month in which it is issued, and therefore must be kept current to be effective.
Inspection procedures. A certificate of inspection and maintenance compliance may only be obtained after an inspection of the dwelling, including all dwelling units, by the Code Enforcement Official or his or her deputies. Either a certificate of inspection and maintenance compliance or a notice of violation shall be issued within 15 days after the date of such inspection.
If violations are found during the inspection, such violations shall be corrected, or the dwelling unit vacated, within a period of time ranging from 10 days to six months, depending on the severity of the violation and the physical requirements necessary to remedy such violations, as determined by the Code Enforcement Official.
A reinspection may be conducted at any time during the period of the certificate of inspection and maintenance compliance, with a minimum of 10 days' notice to the owner or his agent, if a signed complaint of noncompliance is received from a person or persons renting a dwelling unit, or upon less notice if deemed necessary by the Code Enforcement Official in case of emergency. Such reinspection shall have the same force as the original inspection.
An owner's refusal to permit inspection of a tenant's rental unit shall be admissible as evidence of a breach of the warranty of habitability in any action by the landlord for remedy under the lease or to recover real property in a special proceeding under the provisions of the New York Real Property Actions and Proceedings Law.
Posting of certificate of inspection and maintenance compliance. The certificate of inspection and maintenance compliance issued pursuant to this article shall be posted in a conspicuous place in the dwelling upon its issuance. The certificate shall be valid for a period of three years from the date of issuance unless a reinspection discloses violations. Upon correction of the violations, the certificate shall then be valid for the remainder of the original period of issuance.
Any rental dwelling unit not registered pursuant to the provisions of this article shall not, after June 30, 2018, be offered for rental. Any owner whose failure to comply with the provisions of this article results in legal action by the City to either compel compliance or to enjoin occupancy shall be liable to the City, as part of any judgment obtained by the City, for the City's costs, including reasonable attorney's fees, in obtaining such judgment.
If any clause, sentence, paragraph, section or part of this article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in said judgment.


These comments are submitted on behalf of the Center for Competitive Politics (“the Center”) in response to Notice 2015-09 Rulemaking Petition: Independent Spending by Corporations, Labor Organizations, Foreign Nationals, and Certain Political Committees (Citizens United), published in the Federal Register on July 29, 2015. Originally advanced by Chair Ann Ravel and Commissioner Ellen Weintraub, the petition was subsequently resubmitted by two members of the public representing advocacy organizations: Public Citizen and Make Your Laws. For clarity and ease of citation, this comment will cite to Mr. Holman and Public Citizen’s petition (“the Petition”), though in all material aspects the petitions are the same.
For the reasons set forth below, the Center believes that these topics are not appropriate subjects for rulemaking at this time. Petitioners overstate both the FEC’s statutory authority to regulate in these areas and the need for additional requirements. Citizens United does not compel a rulemaking to expand regulation of speech. In fact, the regulatory regime contemplated by the Petition would risk endangering existing protections for nonprofit donor privacy, protections won during the civil rights movement in the 1950s and 1960s. Moreover, most of the issues raised by the Petition—such as electioneering by foreign nationals, corporate and labor solicitation of employees, and the definition of “coordination”—are already adequately addressed by existing statutes and regulations.
I. The Commission’s statutory authority to regulate independent expenditures is limited.
Under 52 U.S.C. § 30106(b)(1), the “Commission shall administer, seek to obtain compliance with, and formulate policy with respect to” the Federal Election Campaign Act (“FECA”) and its amendments, including the Bipartisan Campaign Reform Act (“BCRA”). This regulatory grant is extensive, and the Commission has exercised it, creating a substantial legal edifice. Nevertheless, the Commission’s rulemaking authority is not limitless.
At the outset, one must ask why Citizens United v. FEC—a case that circumscribed the regulation of political activity—would serve as the basis for greater regulation of campaign financing. As one commissioner has noted, the FEC cannot write regulation merely in response to a Supreme Court decision; there must be a nexus between the proposed regulation and the substance of the Court’s opinion. This is especially true when the Supreme Court opinion is deregulatory.
Similarly, the courts have long limited the authority of administrative agencies to tinker with the clear terms of a governing statute. Under the Supreme Court’s landmark decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., a court first asks “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” If Congressional intent is not clear, Chevron’s second step asks “whether the agency’s answer is based on a permissible construction of the statute.” The agency must satisfy step one before moving to step two. Administrative agencies, including the FEC, are not free to contradict or go beyond the statute.
[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made….Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
The danger of regulatory overreach is real, as litigation against the FEC has shown. For example, in Shays v. FEC, Judge Colleen Kollar-Kotelly struck down multiple regulations promulgated by the Commission in response to the passage of BCRA. After walking through BCRA and the Commission’s Explanation and Justification for the rules promulgated pursuant to BCRA, the district court nonetheless found that many of this Commission’s regulations were in excess of its rulemaking authority.
Furthermore, and especially relevant here, the Shays case concerned, in part, a clear legislative grant. Congress specifically ordered the Commission to “promulgate new regulations on coordinated communications paid for by persons other than candidates, authorized committees of candidates, and party committees. The regulations shall not require agreement or formal collaboration to establish coordination.” Nonetheless, Judge Kollar-Kotelly struck down the Commission’s rule as contrary to statute. In the Judge’s words, BCRA’s language was “not the result of a desire to allow the Commission freedom to create whatever content rules it wanted” but instead the regulatory framework must be informed by “the basic understanding [of how] established campaign finance law treats coordinated communications expenditures as contributions….” Even assuming that there is a mandate to regulate, the Commission is compelled to do so narrowly and with fidelity to the Congressional framework.
These limitations strongly suggest that a rulemaking is inappropriate in these circumstances. As discussed in the next section, Citizens United does not compel the promulgation of further regulation. The other issues—regulation of foreign nationals, solicitation of employees and union members, and coordination—are thoroughly covered by existing rules. Consequently, the Commission should be wary of attempting to add regulatory burdens while lacking support from either the statute or court decision.
II. Supreme Court precedent protects donor privacy.
The Center believes that the Petition overstates the need for rulemaking in this area for three reasons: First, claims about the impact of “dark money” spending, itself an inappropriately rhetorical term, has been overstated. Second, contrary to the Petition, Citizens United did not call for, nor produce a need for, additional disclosure regulations. Third, the Supreme Court has long stated that the value of additional disclosure must be weighed against the danger to privacy of association and belief such disclosure creates.
a. The disclosure system for independent expenditures is adequate to the governmental interests at stake.
Concern about undisclosed campaign spending has been artificially inflated by erroneous media comments about “secret” contributions to campaigns, as well as a widely held but mistaken belief that, after Citizens United, corporations and unions may contribute directly to candidate campaigns.
Similarly, concerns that nonprofit organizations formed under Sections 501(c)(4), 501(c)(5), and 501(c)(6) of the Internal Revenue Code have been engaging in extensive political campaigns—what critics, including the Petition, have unhelpfully dubbed “dark money”—have been vastly overstated.
According to figures from the Federal Election Commission and the Center for Responsive Politics (“CRP“) (cited by the Petition), approximately $7.3 billion was spent on federal races in the 2012 election cycle. Approximately $309 million was spent by organizations that did not provide itemized disclosure of their donors. That is just under 4.3 percent of the total money spent in the 2012 election cycle. Placed in context, a shade over four percent of total spending on federal races does support the emergency rhetoric used by Petitioners and others. Similarly, in the 2014 election cycle, roughly $173 million was spent by non-itemizing groups compared to roughly $5.3 billion spent on federal races overall. That is just 3.3 percent of total political spending—a full percentage point decrease from the 2012 cycle.
These numbers, moreover, tend to overstate the issue because many of the largest 501(c) spenders are well-known public groups. Only 28 organizations that did not publicly disclose all of their donors spent more than $1 million on all independent expenditures in 2012. Most of these were well-known entities, including the U.S. Chamber of Commerce, the Humane Society, the League of Conservation Voters, NARAL Pro-Choice America, the National Association of Realtors, the National Federation of Independent Business, the National Rifle Association, and Planned Parenthood. Several of these groups also spent substantial funds on issue ads or express advocacy under the FEC v. Massachusetts Citizens For Life, Inc. (“MCFL”) exemption, or on candidate-related issue ads, even before Citizens United, suggesting that the growth in “undisclosed” spending is even less than many who favor more regulation lead the public to believe.
b. Citizens United v. FEC upheld the current disclosure regime and cannot be read to demand new regulation.
The Petition misunderstands the “disclosure” affirmed by eight justices in Citizens United and fails to note that those justices upheld only the disclosure regime before them at the time, and only as applied to specific communications. Contrary to the Petition’s request, Citizen United considered the current disclosure laws sufficient.
Thus, Citizens United neither made nor requested changes to campaign disclosure laws. Nor have disclosure provisions been upended in any of the Court’s other recent decisions. Indeed, in McCutcheon v. FEC, Chief Justice Roberts cited with approval to the present regulations. Similarly, in SpeechNow.org v. FEC, the D.C. Circuit decision that permitted independent-expenditure-only committees, the Court upheld the challenged disclosure provisions and the Supreme Court denied certiorari.
Renee Mullins (voice over): I’m Renee Mullins, James Byrd’s daughter. On June 7, 1998 in Texas my father was killed. He was beaten, chained, and then dragged miles to his death, all because he was black. So when Governor George W. Bush refused to support hate-crime legislation, it was like my father was killed all over again. Call Governor George W. Bush and tell him to support hate-crime legislation. We won’t be dragged away from our future.
This thirty-second TV spot, featuring graphic reenactment footage, began running on October 25, 2000, just a few days before the 2000 presidential election. This ad was perfectly legal to run at any time prior to 2003, with no donor disclosure, and remained legal to run under current disclosure laws more than 30 days before a primary or 60 days before a general election between 2003 and 2007. It probably also could have been run, with no donor disclosure, at any time after the Supreme Court’s 2007 decision in WRTL II. In short, political spending by § 501(c) organizations is nothing new, and those organizations have never been required to disclose the names of their donors and members unless donors gave specifically to support a particular independent expenditure.
Given the fact that spending by § 501(c) organizations is not new and that Citizens United did not call for additional disclosure, there is no legal impetus for a new rulemaking in this area. The mere fact that spending has increased is insufficient, especially where undisclosed political spending remains low.
c. Supreme Court precedent specifically protects the privacy of donors to multipurpose nonprofit organizations.
The Petition fails to consider the dangers posed by new disclosure regulations meant to reveal the donors to § 501(c) organizations engaging in incidental political speech. This Commission does not have that luxury.
Much as the Supreme Court sought to protect from retribution those citizens who supported the cause of civil rights, donors and members of groups supporting unpopular candidates and causes still need protection today. Justice Thomas’s opinion in Citizens United made this point, noting the danger of harassment stemming from the disclosure of information concerning citizens’ political associations. Justice Thomas made specific reference to the experience of Proposition 8 supporters in California: “Some opponents of Proposition 8 compiled this [disclosure] information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result.” It is hardly impossible to imagine similar events occurring in the charged environment of a federal election.
In addition to the logistical challenges faced by organizations, increased disclosure requirements often create “junk disclosure” that misleads the public by associating contributors with communications they have no link to or knowledge of. When individuals donate to a political committee or political party, they know the funds will be used to support or oppose candidates. The same is not true of donors to § 501(c) organizations. If a group decides to make political expenditures as a small part of the organization’s multiple activities, many of its donors could potentially be made public, regardless of whether their donations were earmarked for a political expenditure. People give to membership organizations and trade associations not because they agree with everything the organization does, or particular political positions it takes, but because on balance they think it provides a voice for their views or otherwise advances their interests. To publicly identify contributing individuals with expenditures of which they had no advance knowledge, and which they may even oppose, is both unfair to members and donors and misleading to the public. It is “junk disclosure” and serves little purpose other than to provide a basis for official or private harassment.
Such harassment is not entirely speculative. The Petition’s push for increased disclosure requirements comes at a time when Americans’ confidence in government has been rocked by information that the IRS systematically targeted groups based on their political beliefs. A number of senators specifically urged the IRS to investigate conservative nonprofit groups. Such pressure on the Service appears to have been a major factor in the current IRS scandal, which will have longstanding repercussions for the IRS’s reputation. An unjustified or overbroad regulatory effort would expose the Commission to many of the same risks.
III. Existing law prohibits involvement in political activity by foreign nationals.
A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision-making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person’s Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.
Thus, the answer to the Petition’s fears is clear: a foreign national—whether a natural person or a corporation—cannot direct others to make expenditures or electioneering communications. So while a corporation’s U.S. subsidiary’s board may choose to make an expenditure, it cannot do so at the behest of the parent foreign corporation. Likewise, foreign nationals on a corporation’s board must be separated from any decision concerning the making of expenditures or electioneering communications.
Such regulations are constitutional and have been interpreted broadly. In Bluman v. FEC, a special three-judge court heard a constitutional challenge to the ban on foreign national activity. The Bluman court rebuffed the challenge because the “Supreme Court has long held that the government (federal, state, and local) may exclude foreign citizens from activities that are part of democratic self-government in the United States.” The court was clear: “we interpret the statute to bar foreign nationals… from making expenditures to expressly advocate the election or defeat of a political candidate; and from making donations to outside groups when those donations in turn would be used to make contributions to candidates or parties or to finance express-advocacy expenditures.” The Bluman opinion thus addressed the Petition’s precise worry: that foreign nationals would control the outlay of money for expenditures. In a unanimous order, the Supreme Court summarily affirmed the three-judge Bluman court. Foreign nationals can speak on issues but cannot direct, in any way, the expenditures speaking on politics.
Given that the existing statutory ban on foreign nationals’ political activity clearly includes foreign corporations, the Petition appears to request no more than make-work regulations that would swell the Federal Register to no purpose. There is no basis for opening such a rulemaking.
IV. Existing law protects employees from coercive solicitation by both corporations and labor unions.
The Petition encourages the FEC to “promulgate rules to more clearly protect employees and union members from coercion by corporations and labor organizations engaged in independent political spending.” The Petition fails to identify where any lack of clarity exists, and existing regulations already clearly prohibit such coercion.
[I]t shall be unlawful (i) for a corporation, or a separate segregated fund established by a corporation, to solicit contributions to such a fund from any person other than its stockholders and their families and its executive or administrative personnel and their families, and (ii) for a labor organization, or a separate segregated fund established by a labor organization, to solicit contributions to such a fund from any person other than its members and their families.
As the Center has stated in previous comments, current law carves out exceptions to this solicitation ban for communications with a corporation’s “stockholders and executive or administrative personnel and their families” on “any subject.” This group of people is carefully defined in the statute and regulations. The statute further carves out restrictions on allowable solicitations to a corporation or union’s Separate Segregated Fund (“SSF”). A corporation may generally solicit to this fund only from the “restricted class,” with the exception of twice yearly written solicitations to the rest of the corporation’s employees.
It shall be unlawful—to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other moneys required as a condition of membership in a labor organization or as a condition of employment, or by moneys obtained in any commercial transaction.
Citizens United changed nothing affecting these rules. With very limited exception, solicitation of employees or union members is a violation of statute both before and after Citizens United. Likewise, it is necessarily the case that coercion of employees or union members is also a violation of the statute.
As the Petition notes, “The Commission, however, has also interpreted the Act to generally prohibit the use of ‘coercion, such as the threat of a detrimental job action,’ to induce ‘any individual to make a contribution…’ This approach is wholly consistent with Congress’s intent to ensure that corporate employees and union member said their employers’ and unions’ political activities only when their support is truly voluntary.” The Petition is correct: the Commission has generally prohibited the “use of coercion” precisely because federal law already clearly prohibits those actions. Since Citizens United had no effect on the relevant laws and regulations, no clarifying rulemaking is necessary.
V. Super PACs, by definition, are independent of candidates and candidate committees. Any further regulation of “coordination” risks chilling significant political activity by means of vague and overbroad rules.
The Petition also seeks to heavily curtail outside spending groups, particularly independent expenditure-only committees. Given the Court’s robust defense of independent speech in the Citizens United decision, this Commission ought to be wary of impeding such speech.
Petitioners suggest that “[t]he Commission’s regulations should be revised to fully and clearly prohibit coordination between candidates and outside spending groups.…” But the Commission already has extensive regulations regulating coordinated communications and the FEC appears to have considered these regulations sufficient when providing advisory opinions to would-be independent speakers. Further tightening these regulations will only add to the complicated analysis that independent speakers must conduct before engaging in public debate concerning the issues of the day.
The Commission has been able to draw lines prohibiting inappropriate coordination, as it did in 2011 when it prohibited a leadership PAC from operating a separate independent expenditure account. Moreover, recent events prove that cases of illegal coordination between campaigns and outside groups are successfully prosecuted where they occur.
The Petition also suggests that the Commission adopt rules prohibiting candidates from attending Super PAC events even though such a rule would contradict an advisory opinion issued by the FEC in 2011 pursuant to a unanimous 6-0 vote. Candidates and independent groups have operated under this guidance for two election cycles, and are on the verge of entering a third. Moreover, the Petition has provided no evidence that the appearance of candidates at Super PAC events has increased the dangers of corruption, the only rationale by which the government may restrict independent speech.
Finally, the Petition suggests that “[t]he Commission should also adopt rules that deem all spending by outside groups that effectively operate as ‘the alter ego of a candidate’ as coordinated spending.” It is unclear how the Commission could draw such a line without making arbitrary decisions or defining these terms so vaguely as to create constitutional concerns. The Petition is silent on this point. As the recent experience with the Internal Revenue Service has demonstrated, the implementation of a “facts and circumstances” approach to regulating organizational status poses significant threats to First Amendment freedoms. This is especially true where the result of such a rule will be an effective ban on independent speech by such organizations.
Moreover, as the SpeechNow court correctly observed, “as a matter of law” there “is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’” Super PACs are presumptively independent organizations, and efforts to impose additional burdens upon them must demonstrate new evidence implicating the corruption interest. The Petition makes no serious effort to provide that evidence, and would not form the basis of a successful defense of any new regulation adopted.
In sum, no pressing need has been shown for the Commission to go beyond the extensive coordination rules that already exist. To the extent that the Commission wishes to go forward with rulemaking, it might consider merely incorporating the advisory opinions it has already issued.
Thank you for considering these comments. The Center looks forward to working with the Commission to protect the First Amendment rights of multipurpose nonprofit organizations. In the event that the Commission chooses to take testimony at a public meeting, the Center requests the opportunity to provide testimony through a representative.
Please do not hesitate to contact us should you have any questions about these comments.
 The Center is a nonpartisan, nonprofit § 501(c)(3) organization that promotes and protects the First Amendment political rights of speech, assembly, and petition. It was founded in 2005 by Bradley A. Smith, a former Chairman of the Commission. In addition to scholarly and educational work, the Center is actively involved in targeted litigation against unconstitutional laws at both the state and federal levels.
 80 Fed. Reg. 45116 (July 29, 2015).
 Ann M. Ravel and Ellen L. Weintraub, Petition for Rulemaking, June 8, 2015 available at http://www.fec.gov/members/statements/Petition_for_Rulemaking.pdf; see also Agenda Document No. 15-31-B, June 11, 2015 available at http://www.fec.gov/agenda/2015/documents/mtgdoc_15-31-a.pdf (noting the original submission by the commissioners).
 Craig Holman and Public Citizen, Petition for Rulemaking Regarding the Citizens United decision, June 18, 2015 available at http://sers.fec.gov/fosers/showpdf.htm?docid=337864; Sai, Make Your Laws PAC and Make Your Laws Advocacy, Inc., MYL PAC & MYL C4 petition for rulemaking re[:] Citizens United, June 18, 2015 available at http://sers.fec.gov/fosers/showpdf.htm?docid=337863 (incorporating by reference the Ravel and Weintraub petition).
 80 Fed. Reg. at 45116.
 11 C.F.R. § 1.1 et seq.
 Opening Statement of Vice Chairman Matthew S. Petersen Regarding the Commission’s Hearing on the McCutcheon v. FEC Advanced Notice of Proposed Rulemaking, Feb. 11, 2015 available at http://www.fec.gov/members/petersen/statements/Opening_Statement_of_Vice_Chairman_Matthew_S_Petersen_re_McCutcheon_ANPRM_Hearing.pdf.
 Id. (“[C]onsidering that McCutcheon [v. FEC, 572 U.S. ___, 134 S. Ct. 1434 (2014),] dismantles a substantial piece of the campaign finance legal framework, to what extent is it appropriate to use this decision as a launching point for extending the Commission’s regulatory reach?”).
 467 U.S. 837, 842-43 (1984).
 Id. at 843 n.9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”) (collecting cases from 1896 to 1981).
 463 U.S. 29, 42-43 (1983).
 Id. at 43 (internal citations and quotation marks omitted).
 FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (citing Wrecking Co. v. United States, 434 U.S. 275, 287, n.5 (1978) and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
 Republican Nat’l Comm. v. FEC, 76 F.3d 400, 407 (D.C. Cir. 1996) (internal citations and quotation marks omitted).
 337 F. Supp. 2d 28 (D.D.C. 2004) aff’d 414 F.3d 76 (D.C. Cir. 2005).
 See, e.g., id. at 130-31 (summarizing which regulations failed judicial review under either Chevron and/or State Farm).
 Id. at 55-56 (discussing BCRA, Pub. L. 107-155 § 214(b)-(c), 116 Stat.81, 94-95 (2002) codified at 52 U.S.C. § 30116 note).
 52 U.S.C. § 30116 note.
 Id. at 65 (finding the regulation failed at Chevron step two analysis).
 Holman, “RE: Petition for Rulemaking Regarding the Citizens United decision,” (cover letter for the Petition).
 We derive the $7.3 billion figure by adding the FEC’s 2012 election cycle summary data for “Total Disbursements” ($6,982.2 billion) and the Center for Responsive Politics’ “Outside Spending by Nondisclosing Groups, Cycle Totals, Excluding Party Committees” bar graph data for 2012 (approximately $309 million), as the FEC does not report this information. FEC, FEC Summarizes Campaign Activity of the 2011-2012 Election Cycle at 1, (Apr. 19, 2013) available at http://www.fec.gov/press/press2013/pdf/20130419release.pdf; Center for Responsive Politics, Graph “Outside Spending by Nondisclosing Groups, Cycle Totals, Excluding Party Committees,” http://www.opensecrets.org/outsidespending/disclosure.php. The Petition states that nondisclosed spending amounts to $310 million for this cycle – the difference is unexplained as the Petition also cites to the same CRP source data. The discrepancy has little impact on other calculations.
 Center for Responsive Politics, Graph, id.
 We derive the $5.3 billion figure by adding the Commission’s 2014 election cycle summary data for “Total Disbursements” by “2014 Congressional Candidates” ($1.6 billion), “Party Committees” ($1.2 billion), and “PACs” ($2.3 billion) for a combined total of $5.1 billion combined, and the Center for Responsive Politics’ “Outside Spending by Nondisclosing Groups, Cycle Totals, Excluding Party Committees” bar graph data for 2014 (approximately $173 million), as the FEC does not report this information. FEC, FEC Statistical Summary of 24-Month Campaign Activity of the 2013-2014 Election Cycle at 1 (Jan. 29, 2015) available at http://www.fec.gov/press/press2015/pdf/20150403release.pdf; Center for Responsive Politics, Graph, id. The Petition states that nondisclosed spending amounts to $190 million for this cycle—the difference is unexplained as the Petition also cites to the same CRP source data. The discrepancy has little impact on other calculations.
 479 U.S. 238 (1986); see also FEC, “Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures” 60 Fed. Reg. 35292, 35293 (July 6, 1995) (“new section 114.10 has been added to implement the MCFL Court’s conclusion that nonprofit corporations possessing certain essential features may not be bound by the restrictions on independent expenditures contained in section 441b”).
 Bradley A. Smith, “Testimony to United States Senate Committee on Rules and Administration” at 4 (July 23, 2014) available at: https://www.ifs.org/wp-content/uploads/2014/07/2014-07-23_Smith-Testimony_CCP_DISCLOSE_Senate-Rules-And-Administration-Hearing.pdf.
 Citizens United, 558 U.S. at 367 (“we find the [disclosure and disclaimer] statute valid as applied to the ads for the movie and to the movie [Hillary] itself”).
 McCutcheon, 134 S. Ct. at 1460 (Roberts, C.J., controlling opinion).
 599 F.3d 686, 698 (D.C. Cir. 2010).
 Bradley A. Smith, “Disclosure in a Post-Citizens United Real World,” 6 St. Thomas J. L. & Pol’y 257, 267 (2012). Draft available at http://www.ncsl.org/documents/summit/summit2013/online-resources/2013_smith_disclosure.pdf (March 26, 2013) p. 10 (citing Byrd Vote-TV, Oct. 25 2000 http://www.gwu.edu/~action/ads2/adnaacp.html).
 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
 Citizens United, 558 U.S at 481 (Thomas, J., concurring in part and dissenting in part).
 Bradley A. Smith, “Testimony to United States Senate Committee on Rules and Administration” at 7.
 Jeffrey Milyo, Ph. D., “Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation,” Institute for Justice, 22 April 2010 available at https://www.ij.org/images/pdf_folder/ washington/mowing_down_the-grassroots.pdf.
 Bradley A. Smith, “Testimony to United States Senate Committee on Rules and Administration,” at 7-8.
 For multiple substantive legal comments concerning an IRS proposed rule on a similar topic, and a detailed timeline of scandals associated with the IRS’s improper targeting of particular social welfare organizations, visit Center for Competitive Politics, “Proposed IRS Rules on 501(c)(4) Social Welfare Groups,” https://www.ifs.org/irs/.
 Bradley A. Smith, “Testimony to United States Senate Committee on Rules and Administration,” at 9.
 800 F. Supp. 2d 281 (D.D.C. 2011). The matter was before United States Circuit Judge Brett M. Kavanaugh, and United States District Judges Ricardo M. Urbina and Rosemary M. Collyer.
 Id. at 284 (emphasis added).
 132 S. Ct. 1087 (2012).
 Allen Dickerson, et al., “Center for Competitive Politics Comments on Notice of Proposed Rulemaking 12-80” February 11, 2013 available at https://www.ifs.org/wp-content/uploads/2013/02/CCP-Comment-on-NPR-12-80-LLPs.pdf.
 52 U.S.C. § 30118(b)(7); 11 C.F.R. § 114.1(c).
 Pet. at 7 (citing 11 C.F.R. § 114.2(f)(2)(iv) and Corporate and Labor Organization Activity; Express Advocacy and Coordination with Candidates, Final Rule, 60 Fed. Reg. 64259, 64265 (Dec. 14, 1995)).
 AO 2010-09 (“Club for Growth”).
 Citizens United, 558 U.S. at 324 (“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech…”).
 AO 2011-21 (“Constitutional Conservatives Fund PAC”) at 2.
 See, e.g., United States v. Harber, No. 14-cr-373 (E.D. Va. 2015).
 AO 2011-12 (“Majority PAC and House Majority PAC”) at 4; Certification. (“Commissioners Bauerly, Hunter, McGahn II, Petersen, Walther, and Weintraub voted affirmatively for the decision”).
 SpeechNow, 599 F.3d at 694 (“In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption”).
 Pet. at 8 (internal citation omitted).
 SpeechNow, 599 F.3d at 694-695.
 The phrase used in the Petition—“alter ego”—is not a term of art and would not provide sufficient guidance to the regulated community. See FEC v. Christian Coalition, 52 F. Supp. 2d 45, 95 (D.D.C. 1999) (“The mere fact that the Coalition was singing from the same page as the Bush campaign on certain issues does not establish coordination”).
 E.g. 11 C.F.R. § 109.21(d)(4)(ii) (applying common vendor status to vendors that worked for a candidate, her committee, or her party with the previous 120 days).
 E.g. AO 2012-34 (“Freedom PAC and Friends of Mike H”) at 1 (establishing that a candidate committee “may use campaign funds raised for [a candidate’s] primary election to make a contribution” to a Super PAC).


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John Venn introduced the frequency interpretation of probability in his The Logic of Chance in 1866. Venn said that his work was inspired by John Stuart Mill's A System of Logic and in the later editions of that work, Mill recommends Venn's book (Book III, chapter xviii, p.547).
Venn objected to probability theorists whose work was formal and mathematical, and who postulated a priori probabilities such as a perfect die with 1/6 chance of turning up each face. For Venn, "It is ... ignorance that makes us appeal to the theory of Probability, the grounds of it are of no importance."
Venn rejected the claims of Quetelet and Buckle to have derived deterministic laws from their observed statistical regularities in social physics. And he specifically faulted Buckle's claim to have disproved free will. But he was suspicious of real chance in the universe, which was opposed to causation and design. He was agnostic about whether every individual event had a cause, but demanded that averages are the result of an inviolable principle of Uniformity of Nature.
In Probability ultimate regularity is always postulated, in tossing a die, if not merely the individual throws were uncertain in their results, but even the average also, owing to the nature of the die, or the number of the marks upon it, being arbitrarily interfered with, of course no kind of science would attempt to take any account of it.
Can causation, in the sense of invariable succession (for we are here shifting on to this narrower ground), be denied? ...It is not easy to see how this can be done in any case, but the obstacles would doubtless be greater even than they are, if knowledge of the individual event were not merely unattained, but, owing to the absence of any causal connection, essentially unattainable. On the theory adopted in this work we simply postulate ignorance of the details, but it is not regarded as of any importance on what sort of grounds this ignorance is based.
The question then assumes the following form: Is this assumption, of average regularity in the aggregate, inconsistent with the admission of what may be termed causeless irregularity in the details? It does not seem to me that it would be at all easy to prove that this is so.
In its application to moral and social subjects, what gives this controversy its main interest is its real or supposed bearing upon the vexed question of the freedom of the will... If, therefore, Free-will be so interpreted as to imply such essential irregularity as defies prediction both in the average, and also in the single case, then the negation of free-will follows, not as a remote logical consequence, but as an obvious inference from indisputable facts of experience.
The nature of the argument against free-will, drawn from statistics, at least in the form in which it is very commonly expressed, seems to me exceedingly defective.
As a churchman, Venn wanted to disconnect the existence of real chance from its implications for a Deity.
There is, to begin with, a very old objection, founded on the assumption which our science is supposed to make of the existence of Chance...But the only rational meaning of the objection would appear to be that the principles of the science compel us to assume that events (some events, only, that is) happen without causes, and are thereby removed from the customary control of the Deity. As repeatedly pointed out already this is altogether a mistake. The science of Probability makes no assumption whatever about the way in which events are brought about, whether by causation or without it...The fact is that Probability has nothing more to do with Natural Theology, either in its favour or against it, than the general principles of Logic or Induction have.
§ 1. THE remarks in the previous chapter will have served to clear the way for an enquiry which probably excites more popular interest than any other within the range of our subject, viz. the determination whether such and such events are to be attributed to Chance on the one hand, or to Causation or Design on the other. As the principal difficulty seems to arise from the ambiguity with which the problem is generally conceived and stated, owing to the extreme generality of the conceptions involved, it becomes necessary to distinguish clearly between the several distinct issues which are apt to be involved.
I. There is, to begin with, a very old objection, founded on the assumption which our science is supposed to make of the existence of Chance. The objection against chance is of course many centuries older than the Theory of Probability; and as it seems a nearly obsolete objection at the present day we need not pause long for its consideration. If we spelt the word with a capital C, and maintained that it was representative of some distinct creative or administrative agency, we should presumably be guilty of some form of Manicheism. But the only rational meaning of the objection would appear to be that the principles of the science compel us to assume that events (some events, only, that is) happen without causes, and are thereby removed from the customary control of the Deity. As repeatedly pointed out already this is altogether a mistake. The science of Probability makes no assumption whatever about the way in which events are brought about, whether by causation or without it. All that we undertake to do is to establish and explain a body of rules which are applicable to classes of cases in which we do not or cannot make inferences about the individuals. The objection therefore must be somewhat differently stated, and appears finally to reduce itself to this ;—that the assumptions upon which the science of Probability rests, are not inconsistent with a disbelief in causation within certain limits; causation being of course understood simply in the sense of regular sequence. So stated the objection seems perfectly valid, or rather the facts on which it is based must be admitted ; though what connection there would be between such lack of causation and absence of Divine superintendence I quite fail to see.
As this Theological objection died away the men of physical science, and those who sympathized with them, began to enforce the same protest ; and similar cautions are still to be found from time to time in modem treatises. Hume, for instance, in his short essay on Probability, commences with the remark, "though there be no such thing as chance in the world, our ignorance of the real cause of any event has the same influence on the understanding, &c." De Morgan indeed goes so far as to declare that "the foundations of the theory of Probability have ceased to exist in the mind that has formed the conception," " that anything ever did happen or will happen without some particular reason why it should have been precisely what it was and not anything else'." Similar remarks might be quoted from Laplace and others.
§ 2. In the particular form of the controversy above referred to, and which is mostly found in the region of the natural and physical sciences, the contention that chance and causation are irreconcileable occupies rather a defensive position; the main fact insisted on being that, whenever in these subjects we may happen to be ignorant of the details we have no warrant for assuming as a consequence that the details are uncaused. But this supposed irreconcileability is sometimes urged in a much more aggressive spirit in reference to social enquiries. Here the attempt is often made to prove causation in the details, from the known and admitted regularity in the averages. A considerable amount of controversy was excited some years ago upon this topic, in great part originated by the vigorous and outspoken support of the necessitarian side by Buckle in his History of Civilization.
It should be remarked that in these cases the attempt is sometimes made as it were to startle the reader into acquiescence by the singularity of the examples chosen. Instances are selected which, though they possess no greater logical value, are, if one may so express it, emotionally more effective. Every reader of Buckle's History, for instance, will remember the stress which he laid upon the observed fact, that the number of suicides in London remains about the same, year by year; and he may remember also the sort of panic with which the promulgation of this fact was accompanied in many quarters. So too the way in which Laplace notices that the number of undirected letters annually sent to the Post Office remains about the same, and the comments of Dugald Stewart upon this particular uniformity, seem to imply that they regarded this instance as more remarkable than many analogous ones taken from other quarters.
That there is a certain foundation of truth in the reasonings in support of which the above examples are advanced, cannot be denied, but their authors appear to me very much to overrate the sort of opposition that exists between the theory of Chances and the doctrine of Causation. As regards first that wider conception of order or regularity which we have termed uniformity, anything which might be called objective chance would certainly be at variance with this in one respect. In Probability ultimate regularity is always postulated, in tossing a die, if not merely the individual throws were uncertain in their results, but even the average also, owing to the nature of the die, or the number of the marks upon it, being arbitrarily interfered with, of course no kind of science would attempt to take any account of it.
§ 3. So much must undoubtedly be granted; but must the same admission be made as regards the succession of the individual events? Can causation, in the sense of invariable succession (for we are here shifting on to this narrower ground), be denied, not indeed without suspicion of scientific heterodoxy, but at any rate without throwing uncertainty upon the foundations of Probability? De Morgan, as we have seen, strongly maintains that this cannot be so. I find myself unable to agree with him here, but this disagreement springs not so much from differences of detail, as from those of the point of view in which we regard the science. He always appears to incline to the opinion that the individual judgment in probability is to admit of justification; that when we say, for instance, that the odds in favour of some event are three to two, that we can explain and justify our statement without any necessary reference to a series or class of such events. It is not easy to see how this can be done in any case, but the obstacles would doubtless be greater even than they are, if knowledge of the individual event were not merely unattained, but, owing to the absence of any causal connection, essentially unattainable. On the theory adopted in this work we simply postulate ignorance of the details, but it is not regarded as of any importance on what sort of grounds this ignorance is based. It may be that knowledge is out of the question from the nature of the case, the causative link, so to say, being missing. It may be that such links are known to exist, but that either we cannot ascertain them, or should find it troublesome to do so. It is the fact of this ignorance that makes us appeal to the theory of Probability, the grounds of it are of no importance.
§ 4. On the view here adopted we are concerned only with averages, or with the single event as deduced from an average and conceived to form one of a series. We start with the assumption, grounded on experience, that there is uniformity in this average, and, so long as this is secured to us, we can afford to be perfectly indifferent to the fate, as regards causation, of the individuals which compose the average. The question then assumes the following form: Is this assumption, of average regularity in the aggregate, inconsistent with the admission of what may be termed causeless irregularity in the details? It does not seem to me that it would be at all easy to prove that this is so. As a matter of fact the two beliefs have constantly co-existed in the same minds. This may not count for much, but it suggests that if there be a contradiction between them it is by no means palpable and obvious. Millions, for instance, have believed in the general uniformity of the seasons taken one with another, who certainly did not believe in, and would very likely have been ready distinctly to deny, the existence of necessary sequences in the various phenomena which compose what we call a season. So with cards and dice ; almost every gambler must have recognized that judgment and foresight are of use in the long run, but writers on chance seem to think that gamblers need a good deal of reasoning to convince them that each separate throw is in its nature essentially predictable.
§ 5. In its application to moral and social subjects, what gives this controversy its main interest is its real or supposed bearing upon the vexed question of the freedom of the will; for in this region Causation, and Fatalism or Necessitarianism, are regarded as one and the same thing.
Here, as in the last case, that wide and somewhat vague kind of regularity that we have called Uniformity, must be admitted as a notorious fact. Statistics have put it out of the power of any reasonably informed person to feel any hesitation upon this point. Some idea has already been gained, in the earlier chapters, of the nature and amount of the evidence which might be furnished of this fact, and any quantity more might be supplied from the works of professed writers upon the subject. If, therefore, Free-will be so interpreted as to imply such essential irregularity as defies prediction both in the average, and also in the single case, then the negation of free-will follows, not as a remote logical consequence, but as an obvious inference from indisputable facts of experience.
Few persons, however, would go so far as to interpret it in this sense. All that troubles them is the fear that somehow this general regularity may be found to carry with it causation, certainly in the sense of regular invariable sequence, and probably also with the further association of compulsion. Rejecting the latter association as utterly unphilosophical, I cannot even see that the former consequence can be admitted as really proved, though it doubtless gains some confirmation from this source.
§ 7. Again, another deficiency in such reasoning seems to be the laying undue weight upon the mere regularity or persistency of the statistics. These may lead to very important results, but they are not exactly what is wanted for the purpose of proving anything against the freedom of the will; it is not indeed easy to see what connection this has with such facts as that the annual number of thefts or of suicides remains at pretty nearly the same figure. Statistical uniformity seems to me to establish nothing else, at least directly, in the case of human actions, than it does in that of physical characteristics. Take but one instance, that of the misdirected letters. We were already aware that the height, weight, chest measurement, and so on, of a large number of persons preserved a tolerably regular average amidst innumerable deflections, and we were prepared by analogy to anticipate the same regularity in their mental characteristics. All that we gain, by counting the numbers of letters which are posted without addresses, is a certain amount of direct evidence that this is the case. Just as observations of the former kind had already shown that statistics of the strength and stature of the human body grouped themselves about a mean, so do those of the latter that a similar state of things prevails in respect of the readiness and general trustworthiness of the memory. The evidence is not so direct and conclusive in the latter case, for the memory is not singled out and subjected to measurement by itself, but is taken in combination with innumerable other influencing circumstances. Still there can be little doubt that the statistics tell on the whole in this direction, and that by duly varying and extending them they may obtain considerable probative force.
The fact is that Probability has nothing more to do with Natural Theology, either in its favour or against it, than the general principles of Logic or Induction have. It is simply a body of rules for drawing inferences about classes of events which are distinguished by a certain quality. The believer in a Deity will, by the study of nature, be led to form an opinion about His works, and so to a certain extent about His attributes. But it is surely unreasonable to propose that he should abandon his belief because the sequence of events, - not, observe, their general tendency towards happiness or misery, good or evil,— is brought about in a way different from what he had expected; whether it be by displaying order where he had expected irregularity, or by involving the machinery of secondary causes where he had expected immediate agency.
§ 8. It is both amusing and instructive to consider what very different feelings might have been excited in our minds by this co-existence of, what may be called, ignorance of individuals and knowledge of aggregates, if they had presented themselves to our observation in a reverse order. Being utterly unable to make assured predictions about a single life, or the conduct of individuals, people are sometimes startled, and occasionally even dismayed, at the unexpected discovery that such predictions can be confidently made when we are speaking of large numbers. And so some are prompted to exclaim, This is denying Providence! it is utter Fatalism! But let us assume, for a moment, that our familiarity with the subject had been experienced, in the first instance, in reference to the aggregates instead of the individual lives.
It is difficult, perhaps, to carry out such a supposition completely; though we may readily conceive something approaching to it in the case of an ignorant clerk in a Life Assurance Office, who had never thought of life, except as having such a 'value' at such an age, and who had hardly estimated it except in the form of averages. Might we not suppose him, in some moment of reflectiveness, being astonished and dismayed at the sudden realization of the utter uncertainty in which the single life is involved? And might not his exclamation in turn be, Why this is denying Providence! It is utter chaos and chance! A belief in a Creator and Administrator of the world is not confined to any particular assumption about the nature of the immediate sequence of events, but those who have been accustomed hitherto to regard the events under one of the aspects above referred to, will often for a time feel at a loss how to connect them with the other.

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Michael Bongiorno concentrates his practice on securities litigation and enforcement matters. He has served as first-chair lead defense counsel and argued motions to dismiss in dozens of securities class action and derivative suits across the country, as well as appeals affirming dismissals in federal and state courts. His clients have achieved dismissal in the vast majority of such matters. His successful defense in such cases spans a variety of industries and jurisdictions, and he is a recognized leader in securities litigation, particularly in matters against biotech, life science, biomaterials, medical device, and medical product companies, among other industries and areas. His successful representations include the dismissal of cases against companies such as Tetraphase Pharmaceuticals, Inc., Apollo Education Group, Inc., ConforMIS, Inc., Britannia Bulk Holdings Inc., Optionable, Inc., DryShips Inc., InVivo Therapeutics Holdings Corp., AVEO Pharmaceuticals, Inc., VeraSun Energy Corp., EDAP TMS S.A., Medtronic, Inc., AtheroGenics Inc., and many others.
Mr. Bongiorno also has extensive experience handling internal investigations and various securities regulatory and enforcement matters, including matters before the Securities and Exchange Commission, the Department of Justice, FINRA, and various federal and state agencies. He regularly advises boards of directors and board committees with regard to corporate governance and matters related to litigation, enforcement, regulatory issues, and crisis management.
Mr. Bongiorno has substantial trial experience in federal and state courts in various contexts. Recent trial successes include the defense of a company and its officers against fraud and other related claims in Massachusetts Superior Court (affirmed on appeal), and a five-week trial in the US Bankruptcy Court for the Southern District of New York regarding corporate governance and fiduciary duty claims (resulting in an extraordinarily favorable settlement for his clients). He has tried more than 20 civil and criminal matters in his career in federal and state courts, including jury trials, bench trials, as well as AAA and FINRA arbitrations.
Harrington v. Tetraphase Pharm. Inc., 2017 WL 1946305 (D. Mass. May 9, 2017): obtained dismissal four days after oral argument in a securities fraud claim arising out of stock drop after announcement of disappointing results of a Phase 3 clinical trial.
Battle Constr. Co. v. InVivo Therapeutics Holdings Corp, 101 F. Supp. 3d 135, aff'd, 845 F.3d 447 (1st Cir. 2017): successfully argued for the dismissal of a securities fraud complaint at the federal district court level and before the United States Court of Appeals for the First Circuit in this action arising out of the defendant company's disclosures related to communications with the FDA regarding the timing of a study of a new biomaterials device.
Luger v. McCarthy, 65 N.E.3d 671 (2017): successfully argued before the trial court at the Court of Appeals in Massachusetts for the dismissal of this shareholder derivative action arising out of disclosures related to FDA studies.
Cody v. ConforMIS, Inc., 199 F. Supp. 3d 409 (2016): successfully argued before the federal district court for the dismissal of this action arising out of the recall of a medical device as a result of certain manufacturing concerns.
In re EDAP TMS S.A. Sec. Litig., No. 14 Civ. 6069, 2015 WL 5326166 (S.D.N.Y. Sept. 14, 2015): obtained dismissal of this action in federal court in the Southern district of New York arising out of disclosures related to a “Major Deficiency Letter” from the FDA.
In re AVEO Pharma., Inc. Sec. Litig., No. 1:13-cv-11157-DJC, 2015 WL 1276824 (Mar. 20, 2015) and after repleading, dismissal with prejudice, slip op. (Nov. 18, 2015), and Van Ingen v. Ha-Ngoc, No. 1:14-cv-11672-DJC, slip op. (Apr. 28, 2015): after multiple oral arguments before the United States District Court in Boston, obtained dismissals of both class action and derivative suits arising out of disclosure of the status of FDA application for approval of new drug.
Successfully represented Apollo Education Group in a securities class action lawsuit filed against it based on the University of Phoenix's military recruiting practices and its transition to a new online learning platform. The initial amended complaint was dismissed without prejudice in February, 2017, Lomingkit v. Apollo Education Group, Inc., 2017 WL 3172861 (D. Ariz. Feb. 16, 2017), and after repleading, was then dismissed with prejudice, 2017 WL 633148 (D. Ariz. July 27, 2017).

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Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P.
1. The district court judge asked for guidance from the appellate court on whether she acted appropriately when she did not recuse herself after she accepted a Tulane Law School summer teaching assignment in Greece with a stipend of $5500.00 on the eve of her decision to grant summary judgment in favor of Tulane. The per curiam unpublished opinion with a dissent by Chief Judge King provides no guidance on this issue.
2. The district court welcomed a revisiting of the issue of what constitutes an adverse employment action under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), because this circuit's position on this issue is the minority view among the circuits. Our sister circuit, the Eleventh, has rejected the Fifth Circuit view as being "inconsistent with the plain language" of the statute. Although the Fifth Circuit has not addressed whether or under what circumstances a negative job reference by an ex-employer would qualify as an adverse employment action, the district court reluctantly and inappropriately applied Mattern's definition of adverse employment action to hold that a negative reference letter is not an adverse employment action. The panel's one sentence, unpublished opinion on the merits of this case stated that, "even if Tulane's responses to the requests for reference be considered as adverse employment actions, there was no error of any significance..." In this important case of first impression on this issue in this circuit, the panel decision has given no guidance.
1. Panel opinion of Circuit Judges Reavley and Jones, with dissent by Chief Judge King.
2. Order and Reasons of Judge Berrigan, dated May 30, 2000, stating her reasons why she did not recuse herself.
3. Letter of April 4, 2000 from Dr. Bernofsky to Judge Berrigan, requesting that she recuse herself.
4. Orders in Pending Cases of the U.S. Supreme Court for March 19, 2001.
5. The Tulane Hullabaloo News, dated April 6, 2001.
6. Transcript, pages 1-4, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.
7. Transcript, pages 17-20, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.
8. Transcript, pages 9-12, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.
A. Whether the district court judge abused her discretion in not recusing herself after she accepted a Tulane Law School summer teaching assignment in Greece with a stipend of $5500.00 in the midst of presiding over litigation against Tulane University (Administrators of the Tulane Educational Fund).
B. Whether the district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), the negative reference letter was not an adverse employment action in Dr. Bernofsky's claim for retaliation under Title VII of the Civil Rights Act of 1964.
Dr. Bernofsky was denied a jury trial by the district court judge in his first case of discriminatory termination of his employment of twenty years at Tulane. In 1997, the district court judge granted summary judgment in favor of Tulane in Dr. Bernofsky's first case. The U.S. Court of Appeals, Fifth Circuit, affirmed the decision, and the U.S. Supreme Court denied a petition for certiorari in 1998. Justice Scalia did not recuse himself from that determination. In February, 1999, before Tulane offered Judge Berrigan the teaching assignment in Greece, Chief Judge King dismissed a judicial misconduct complaint filed by Dr. Bernofsky, which alleged that Judge Berrigan should have recused herself based on adjunct teaching at the law school and a prior affiliation with Tulane's Amistad Research Center.
Dr. Bernofsky filed the case presently before this Court because Tulane gave him a negative reference letter when he applied for work at the University of Houston and because Tulane did not respond at all to a reference inquiry from Michigan Tech. The case before this Court was also dismissed by Judge Berrigan by granting summary judgment in favor of Tulane. However, on this occasion, the summary judgment was granted two weeks after Dr. Bernofsky asked Judge Berrigan, in writing, to recuse herself because Judge Berrigan was given a teaching assignment in Greece by Tulane Law School, with a stipend of $5500.00. See Bernofsky letter of April 4, 2000 at Exhibit 3. The trial judge denied a Motion for Recusal, which was based upon her not disclosing her teaching position in Greece, and her accepting the teaching position with $5,500.00 stipend without recusing herself from this case. See Exhibit 2. The panel decision affirmed the actions of the district court judge; however, the dissent by Chief Judge King stated that the district court judge should have recused herself and that she would reverse the judgment and remand with instructions to send the case to another judge. See Exhibit 1.
Dr. Bernofsky was a research professor at Tulane for approximately 20 years. After overcoming some serious health problems that occurred about the time Tulane fired him, Dr. Bernofsky attempted to return to the work force in early 1997. After mailing out over 50 employment inquiries, he got preliminary interest for his services from the University of Houston and Michigan Tech.
"Dr. Carl Bernofsky, formerly of your department, has inquired here about the possibility of an academic position. His training, experience, and specialties do have interest for us. Before investigating possibilities with Dr. Bernofsky, I would like to get an evaluation from you as to his performance in research, teaching, and departmental citizenship as a faculty member in your department."
Instead of responses from Dr. Stjernholm, Dr. Steele, and Dr. Karam, they were instructed not to respond by Tulane's counsel, John Beal, who took it upon himself to respond in their place.
I can confirm that Dr. Bernofsky was a research professor at Tulane whose position was eliminated because Dr. Bernofsky no longer had any research funds to support his position. (Emphasis added) His dismissal was not based on any performance issues, but was strictly a financial decision due to lack of research funds.
Lack of response from Dr. Karam, Dr. Steele, or Dr. Stjernholm personally should not indicate any negative information relative to Dr. Bernofsky, but is necessitated because of the pending litigation.
This letter was not responsive to the request for comment on Dr. Bernofsky's performance. Instead, Mr. Beal volunteered the information about Dr. Bernofsky's lawsuit against Tulane. Mr. Beal incorrectly stated that Bernofsky sued Dr. Karam personally. Dr. Karam is the Chairman of the Biochemistry Department where Bernofsky worked. Beal admitted in his deposition that Dr. Karam was not sued personally. [Record Excerpts, Exhibit 22].
Judge Berrigan learned of her teaching assignment in Greece in November, 1999. She did not disclose this fact to Dr. Bernofsky or his counsel of record. This nondisclosure is particularly egregious because Dr. Bernofsky had tried to get Judge Berrigan to recuse herself on several prior occasions.
Dr. Bernofsky learned of Judge Berrigan's teaching assignment in Greece in April, 2000. He immediately wrote Judge Berrigan a letter asking for her recusal. See Exhibit 3. Judge Berrigan did not respond to that letter. However, two weeks after Dr. Bernofsky's request for recusal, Judge Berrigan issued her ruling on the merits of the case, granting summary judgment in favor of Tulane and dismissing all of Dr. Bernofsky's claims.
Unbeknownst to Dr. Bernofsky and his counsel at the time of oral argument on April 3, 2001, Justice Scalia had recused himself from consideration of a petition for certiorari in the case of Asher Rubinstein v. Administrators of the Tulane Educational Fund, Case Nos. 00-789 and 00-996, the same defendant as in the case at bar. See Exhibit 4. Justice Scalia participated in the Tulane Summer School Abroad four times and is scheduled to go to Greece this summer in the judge's position that Judge Berrigan was given last year. See Exhibit 5. Although both Justice Scalia and Judge Berrigan taught at the same Tulane Law School summer school in Greece, Justice Scalia recused himself from participating in the Rubinstein case with Tulane as a party; yet, Judge Berrigan did not recuse herself in the case at bar.
A. The district court judge abused her discretion in not recusing herself after she accepted a Tulane law school summer teaching assignment in Greece with a stipend of $5,500.00 on the eve of her decision to grant summary judgment in favor of Tulane.
Justice Antonin Scalia - 1987, 1991, 1997, 2001; Justice Harry Blackmun - 1992; Chief Justice William Rehnquist - 1995, 1997; Justice Ruth Bader Ginsburg - 1999 [Record Excerpts, Exhibit 15] To state the obvious, there is prestige in being asked to participate in a program whose past participants include four Justices of the U.S. Supreme Court. Chief Justice Rehnquist and Justice Scalia participated in the program more than one year.
Scalia probably should recuse himself, yes."
Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 4, lines 12-25. See Exhibit 6.
Tulane was involved in two petitions for certiorari that recently went before the U.S. Supreme Court: Administrators of the Tulane Educational Fund v. Rubinstein, Case No. 00-789, filed 11/13/00, and Rubinstein v. Administrators of the Tulane Educational Fund, Case No. 00-996, filed 12/15/00. Attorney Shuler was Counsel of Record for Tulane in both Rubinstein cases.
Counsel for Dr. Bernofsky correctly opined at oral argument that Justice Scalia, who was paid by Tulane to teach in Greece this year, should recuse from cases in which Tulane is a party. In the above two Supreme Court cases involving Tulane, Justice Scalia did, in fact, recuse himself from both the consideration and decision of these petitions, which were denied by order on March 19, 2001. See Exhibit 4.
Code of Judicial Conduct than the trial judges.
Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 19, lines 10-25. See Exhibit 7.
This is a strange and misleading statement from the counsel of record in the Rubinstein cases, made two weeks after Justice Scalia recused himself in those cases.
Clearly, Judge Berrigan, who is in a similar position as Justice Scalia with respect to the receipt of funds from Tulane to teach abroad, should have recused herself from these proceedings involving Tulane. The federal law recusal statute is mandatory, not optional. The Fifth Circuit has set the standards for recusal in the case of Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988): "Under 28 U.S.C. §455(a), a justice, judge, or magistrate of the United States is required to recuse himself in any proceeding in which his impartiality might reasonably be questioned." The Levitt case goes on to state that, "Because 28 U.S.C. Section 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street."
The opinion of the average person on the street would surely agree with the opinion of Chief Judge King and Justice Scalia that there is an appearance of partiality when a judge decides a case in favor of a party who gives that judge a plum teaching assignment in Greece with a $5,500.00 stipend.
Judge Berrigan also had a duty to disclose the facts of her teaching assignment to Dr. Bernofsky and her counsel. Liteky v. U.S., 510 U.S. 540, 548, 114 S.Ct.1147, (1994). She failed to make this disclosure.
A judge who teaches at a law school should recuse from all cases involving that educational institution as a party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case and related factors. Similar factors govern recusal of judges serving on a university advisory board.
Judge Berrigan, in her opinion (Exhibit 2, page 4), states that this rule does not provide clear guidance. She stated that the first sentence does not distinguish between a paid and unpaid teaching position. That distinction became irrelevant when Tulane paid Judge Berrigan a stipend of $5,500.00.
the degree of independence of the law school.
What do we know about that on this record?"
Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, p. 12, lines 16-19. See Exhibit 8.
Chief Judge King in her dissent, concluded that, since there is no evidence of attenuation in the relationship between the Fund (Tulane University) and the Law School, that she would conclude that a reasonable person might question Judge Berrigan's impartiality. Clearly Chief Judge King would recuse Judge Berrigan.
Based upon the fact that there is no evidence in the record of the relationship between the university and the law school, the burden of producing evidence of any attenuation in that relationship would be upon Tulane and not Dr. Bernofsky.
It should be noted that three judges previously recused themselves from the present case because of their association with Tulane: Magistrate Judge Lance M. Africk (Record Excerpts, Exhibit 7), District Court Judge Ivan L.R. Lemelle (Record Excerpts, Exhibit 8), and Magistrate Judge Joseph C. Wilkinson, Jr. (Record Excerpts, Exhibit 9).
Chief Judge King concluded her dissent by stating that she would reverse the judgment and remand with instructions to send the case to another judge.
B. The district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), the negative reference letter is not an adverse employment action in a claim for retaliation under Title VII of the Civil Rights Act of 1964.
The district court clearly holds that a negative reference letter is not an adverse employment action. Record Excerpts, Exhibit 3, p.14. The district court went on to state that the adverse employment action is the failure of the prospective employer to hire Bernofsky. Because of this conclusion by the district court, the district court then concluded that Bernofsky offered no proof that the negative reference letter was a determinative factor in Bernofsky not being hired. Although this is not true, and although Bernofsky did offer evidence that he would have made the short list of candidates at the University of Houston but for the negative reference letter, this entire line of inquiry is misplaced. Original Brief at page 37.
If the district court had correctly concluded that a negative reference letter is an adverse employment action, it would not be necessary to prove that Bernofsky was not hired because of the letter to the University of Houston and the non-response to Michigan Tech.
The district court invites this Court to revisit its minority position of adverse employment actions stated in Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997). Record Excerpts, Exhibit 3, page 13. Using the restrictive language in Mattern, the district court hesitantly concluded that a negative reference letter was not an adverse employment action. That conclusion was error by the district court.
Mattern does not discuss the issue of whether a negative reference letter is an adverse employment action. Mattern only discusses pre-termination events such as disciplinary filings and reprimands, when it gives examples of employment actions that it considers not to be adverse employment actions. The Fifth Circuit states that these lesser employment actions may jeopardize employment in the future. Mattern at 708. The implication in this language is that if these employment actions lead to the ultimate employment decision of termination, then the employee will have an actionable adverse employment action. However, Bernofsky had been terminated long before the negative reference letter was written. The holding by the district court that, under Mattern, a negative reference letter is not an adverse employment action is inconsistent with the language of Mattern, inconsistent with case law, and results in the illogical conclusion that there is no remedy for retaliation by an employer after the employee leaves the employment of the employer, unless the ex-employee can prove that he was not hired by a subsequent employer because of the negative reference.
The Ninth Circuit held that the Navy's retaliatory dissemination of negative employment reference violated Title VII, even if the negative reference did not affect Army's subsequent decision not to hire Ms. Hashimoto, a victim of discriminatory action by the Navy. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), certiorari denied, 118 S.Ct. 1803, 523 U.S. 1122, 140 L.Ed.2d 943.
In Hashimoto, an Asian-American woman alleged that the Department of Navy gave her a negative job reference in retaliation for filing an EEO complaint. Ninth Circuit recognized that, unlike most cases alleging retaliation where the retaliatory conduct takes the form of discharge, demotion, failure to promote, or the like, a retaliatory negative job reference does not itself inflict tangible employment harm because it requires a prospective employer's subsequent, adverse action in response to the reference to create the employment harm.
The Ninth Circuit in Hashimoto found that the dissemination of an unfavorable job reference was an adverse employment action "because it was a 'personnel action' motivated by retaliatory animus." The Ninth Circuit so found even though the defendant proved that the poor job reference did not affect the prospective employer's decision not to hire the plaintiff: "That this unlawful personnel action turned out to be inconsequential goes to the issue of damages, not liability." In this case, the Navy was ordered to stop notifying prospective employers of its employees' or former employees' participation in protected activity. Id.
The panel majority sidestepped the issue here by stating, "even if Tulane's responses to the requests for reference be considered as adverse employment actions, there was no error of any significance and Bernofsky presents no evidence of improper motive or defamation." The improper motive is the Beal letter, which volunteered the information that Dr. Bernofsky sued Tulane. This is exactly what the Navy was ordered by the Ninth Circuit to stop doing, namely notifying prospective employers of former employees' participation in protected activity. The reference request did not ask for reasons for termination, but rather just for evaluation of past performance. The defamation is obvious in the letter when Beal states that Bernofsky had no research funds at a time when he had the Air Force grant of a quarter million dollars.
In the case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the United States Supreme Court reversed a Fourth Circuit decision and held that a former employee does have the protection of Title VII's anti-retaliation provisions. In that case, while an EEOC charge was pending, the ex-employee applied for a job with another company, which contacted the employee's ex-employer for an employment reference. Claiming that ex-employer gave him a negative reference in retaliation for his having filed the EEOC charge, the ex-employee filed suit under §704(a) of Title VII, which makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have availed themselves of Title VII's protections. In deciding that case, the U.S. Supreme Court held that there is a cause of action for a negative job reference given by an ex-employer who gives the negative reference in retaliation for the ex-employee exercising his rights under Title VII.
This case should be heard en banc because two errors of exceptional public importance were made by the district court. The district court did not recuse itself under circumstances that a reasonable person might question the impartiality of the district court judge. Fundamental to the litigant is the right to a fair and impartial trial. Fundamental to the judiciary is the public's confidence in the impartiality of our judges and the proceedings over which they preside. U.S. v. Jordan, 49 F3d 152, 156 (5th Cir. 1995). Public confidence in the impartiality of our judges will be shattered if this Court does not reverse the judgment and remand this case to a judge who appears to be impartial. The second error by the district court judge is to expand the definition of adverse employment action under Mattern to include negative reference letters, which denies to employees the right to be free from retaliation from their ex-employers for participating in protected activity. These are matters of exceptional public importance, and they should be considered by this Court en banc.