Cowardly, Corrupt Ruling on Age Discrimination by 9th Circuit Panel

Three 9th Circuit judges dismiss my 12-year-effort to hold the Social Security Admin. accountable for age discrimination in a ruling that affirms invented facts and disregards legal precedent.

• The full 9th Circuit Court of Appeals refused on May 3, 2024 to review the demonstrably corrupt decision below by a three-judge panel in Pasadena, CA. That panel upheld a decision based on “critical” non-facts invented by Chief U.S. District Court Judge Miranda Du of Nevada, who completely ignored 9th Circuit precedent. The full court looked the other way.

Apparently, it is not age discrimination for a federal agency to limit the public advertisement for five jobs to two institutions with populations well under the age of 40.

In 2011, the aftermath of the Great Recession, Nevada had the highest unemployment rate in the nation and many attorneys in Nevada were out of work. I applied for a job with the Social Security Administration. I found out about the openings quite by chance and was told via email to apply immediately because the recruitment was closing. Furthermore, I wasn’t provided the vacancy announcement, which was not public.

When I wasn’t hired, I inquired about why.

I learned the SSA’s public advertisement for the jobs was limited to two emails containing the vacancy notice sent to the University of Nevada’s College of Law [UNLV] and an office of outgoing Peace Corps volunteers – both of whom have population’s with an average well below 40.

I later found out that 26 of the 27 applicants for the jobs were under the age of 40. 

I complained to the SSA that the recruitment discriminated based on age, but the SSA ignored my complaint and the very next day began offering positions to eight applicants who were under the age of 40. Several declined. Finally, the other older applicant, a 47-year-old outgoing Peace Corps volunteer, was tendered an offer and he accepted.

Fast-forward… TWELVE years.

Chief U.S. District Judge Miranda M. Du of Nevada, a 2012 Obama appointee, dismissed my age discrimination case on the grounds of futility, basically ruling that age had nothing to do with it. She said I was not hired because I wrote a blog about worker rights. The implication was that no sane manager would hire anyone who advocates for worker rights. (See related story on the First Amendment.)

I appealed the dismissal, and a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit in San Francisco overturned Du’s dismissal, ruling it was “common sense” that the SSA had engaged in age discrimination. The panel sent the case back to Du.

Invented Facts

Du then dismissed the case a second time, holding I had not presented sufficient statistical evidence that older applicants were harmed by the SSA’s now established age discrimination. (Ironically, in the same decision she writes that I was harmed by the discriminatory recruitment because I wasn’t given a copy of the vacancy notice and the hiring official said he thought I should have been better prepared.)

In fact, I showed the average age for an attorney in Nevada was 47 in 2011 while the average age of the five candidates hired by the SSA was 33.8. And I cited 9th Circuit case law that unambiguously states statistical evidence isn’t even required in cases where discrimination is obvious [“common sense”].

Most shocking, Du adopted “critical” and disputed facts for which there was no evidence in the record. For example, she said the vacancy notices were placed on the UNLV law school’s electronic job board, where they were viewed by older alumni and attorneys from other universities who had permission through an agreement of “reciprocity” to view the job board. This despite the admissions of the hiring officer and the SSA that they had no idea how the university or Peace Corps distributed the vacancy notices.

The SSA had not once mentioned the issue of “reciprocity” in the preceding 12 years.

A University of Nevada law school official first raised the issue of reciprocity holders in 2023, when she said students from other law schools who seek permission to view UNLV’S electronic job board also “may” see job notices if they are posted there. Neither the official nor the SSA ever said a single reciprocity holder actually did see the notices. Du converted this speculation into a fact despite the lack of evidence that any reciprocity holder or older UNLV graduate saw the job vacancies or that the positions were even posted on UNLV’s online job board.

First Inkling Of Trouble

Back to the 9th Circuit.

Given Du’s ridiculously flawed decision, I felt somewhat confident.

My first inkling of trouble was when a newly appointed three-judge panel in Pasadena, CA, that was assigned to hear the case cancelled the oral argument at the last minute, after I purchased plane tickets and booked a hotel. This was presumably so that no one could watch the hearing online and hear the discussion about Du’s embarrassing decision.

I received a cursory 4-page decision on Thursday from the appeals court dismissing the case in its entirety.

Much to my chagrin, the three-judge panel adopted the “critical” unproven facts cited by Du that have absolutely no basis in the record. This is a gross violation of the Federal Rules of Civil Procedure, which require defendant cite to “particular parts of materials in the record” to establish an assertion.

“[T]here was no data presented about the ages of [UNLV law school] or Peace Corps alumni, students and alumni from other law schools who had access to [the law school’s] online job board,” wrote the panel, which “agreed” that I had “not presented the appropriate evidence to show a disparate impact on individuals by virtue of their age.”

The panel does not address the 9th Circuit case law - undisputed by the SSA - that statistical evidence is not required in cases where the discrimination is obvious [“common sense”].

“Didn’t you notice a powerful and obnoxious odor of mendacity in this room?” - Tennessee Williams.

I had argued that I had no way of providing data re. Du’s finding that reciprocity holders saw the vacancies online. The SSA raised the issue after the close of discovery, having never before mentioned it in 12 years. I was denied an opportunity to question the SSA or to request statistics from the agency. If this isn’t manifest injustice, what is?

Also, the SSA never said reciprocity holders saw the vacancies. A UNLV official said reciprocity holders “may” see job vacancies if they are posted on the law school’s electronic job board. Du improperly converted that “may” into a fact.

Again, there is no evidence the vacancies were ever posted on UNLV’s electronic job board.

This is a form of judicial corruption

The decision was unsigned, which is unusual. Normally, one judge is assigned to write an appeal and he or she is identified as the author.

In one sense, I can totally understand why none of the three judges in Pasadena would want their name on this wretched, cowardly and corrupt decision.

But on the other hand, surely I am entitled to know which judge was responsible for ensuring justice here. Who waived that responsibility to protect the SSA and a district court judge who has repeatedly demonstrated unethical behavior by assuming the role of advocate for the SSA.

The panel consisted of Circuit Judges Ryan D. Nelson (appointed by Pres. Donald Trump in 2018), Lawrence VanDyke (appointed by Trump in 2019) and Judge Gabriel P. Sanchez (appointed by Pres. Biden in 2022).

Book on Age Discrimination

Shortly after the events described above occurred, I invested considerable time into researching the problem of age discrimination, resulting in a book called, Betrayed: The Legalization of Age Discrimination in the Workplace. This groundbreaking book describes a confluence of failures by the judiciary and the U.S. Congress to ensure that older workers are protected from age discrimination.

Older workers have far fewer rights under the Age Discrimination in Employment Act of 1964 (ADEA) than are provided under Title VII of the Civil Rights Act to workers based on sex, gender, religion, race, color and national origin. Why? Aren’t we covered by the Equal Protection Clause of the U.S. Constitution like everyone else?

And even after navigating the built-in obstacles posed by the ADEA, older Americans still face ageism and stereotypes from federal judges, who rarely feel the personal consequences of their actions because they are not required to retire.

To sum up. That’s why it’s not age discrimination for the federal government, the nation’s largest employer, to advertise five jobs in the middle of a recession at only two institutions having populations well under age 40.

*Note - According to a Gallup poll, only 47% of American adults had any trust in the judicial system in 2022. This represents a 20% drop from 2020.

** Note: Du had little experience prior to her appointment in 2012 by then Democratic Pres. Barack Obama, who was supposedly motivated by the optics of her “story” as a Vietnamese refugee. The American Bar Association rated Du with a partial “Not Qualified rating.” Her experience consisted of being “involved in” four jury trials and a bona fide scandal that led to her being sanctioned by a court for reckless behavior. See the account of U.S. Sen. Chuck Grassley of Iowa, then the ranking member of the Senate Judiciary Committee. He said Du failed to “acknowledge the finding of the court that she was reckless. I think this demonstrates a lack of humility, which is an essential element of being a federal judge.” The 39 Republicans on the Senate Judiciary Committee unanimously opposed Du’s nomination.