On May 31, 2018, The National Federation of the Blind filed this lawsuit in the U.S. District Court for the District of Maryland (Northern Division). The plaintiff brought this lawsuit under the Administrative Procedure Act (“APA”). It sued the U.S. Department of Education and the Secretary of Education along with the Acting Assistant Secretary, claiming that the changes to the U.S. Department of Education Office for Civil Rights Case Processing Manual (“2018 OCR Manual”) violated the federal Administrative Procedure Act (“APA”), and was contrary to the mission of the Office of Civil Rights (OCR). These changes in the 2018 OCR Manual included (1) new provisions to require mandatory dismissal and (2) the elimination of the appeal rights of complainants. In effect, the newly revised 2018 OCR Manual meant that the OCR would dismiss claims of illegal discrimination if the claim was either part of "a pattern" of complaints against multiple recipients, or if the complaint placed an unreasonable burden on OCR's resources. "Pattern" was left undefined and could cover as little as two complaints. The provision was not even limited to those instances where prior complaints were meritless or where they would involve similar allegations. "Unreasonable burden" would also be judged based on unknown factors. In addition, the DOE made a third change that eliminated complainants' right to appeal OCR findings of insufficient evidence. Thus, according to the plaintiff, the new restrictions would block those who had been subjected to more than one incident of illegal discrimination, and also those entities that represent multiple individuals that cannot afford to bring claims on their own. The plaintiffs stated this was arbitrary, capricious, and not in accordance with the law, as this unilaterally eliminated the right of claimants to have their claim of discrimination investigated if it indicated a possible failure to comply with federal civil rights laws. As such, plaintiffs sought declaratory and injunctive relief, damages, and attorney’s fees. This case was assigned to Judge Theodore D. Chuang. On December 3, 2018, the plaintiffs filed an amended complaint naming the newly appointed Department of Education Assistant Secretary for Civil Rights. After this complaint, on August 21, 2019, Judge Chuang granted the defendants' motion to dismiss, saying that while the plaintiffs sufficiently pleaded particularized injuries, the complaint did not take into account an amendment to the OCR manual that removed the language that the parties are contesting. He did grant the plaintiffs leave to file an amended complaint to address the issue. The plaintiffs filed an amended complaint on October 3, 2019 which added a section on how the new OCR manual did not change the underlying issues from the old one, and that it does not provide for redress of formerly removed complaints. These complaints were again made under the APA. Litigation on the case continued, but the parties jointly moved to dismiss the case on account of a settlement agreement that they came to on February 4, 2020. The settlement reopened cases that had been dismissed under the contested rules, and allowed parties that had cases dismissed for insufficient evidence under the old rules to petition the Department to have their cases reopened. The Department of Education also agreed to pay $50,000 to the plaintiffs for legal fees. The parties can move to file for further enforcement of the order until February 5, 2021; no such motion has been filed as of June 2020.

Summary: On May 31, 2018, The National Federation of the Blind filed this lawsuit in the U.C. District Court for the District of Maryland (Northern Division). The plaintiff sued the U.S. Department of Education and the Secretary of Education along with the Acting Assistant Secretary, claiming that the changes to the 2018 OCR Manual violated the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and was contrary to the mission of the OCR. These changes in § 108(t) of the 2018 OCR Manual require mandatory dismissal of complaints if the claim is either part of "a pattern" of complaints against multiple recipients, or places an unreasonable burden on OCR's resources. These changes also eliminate the appeal rights of complainants. The parties came to a settlement agreement reopening complaints dismissed under the contested rules of the manual and allowing parties that had their cases dismissed under the rule to petition the Department to reopen their cases. The case is not officially closed until February 2021, when the parties can no longer file for further enforcement.


On May 14, 2020, a group of public interest organizations focused on helping student-victims of sexual assault and harassment, filed this lawsuit in the United States District Court for the District of Maryland, against Secretary of Education Betsy Devos, in her official capacity, and the Department of Education (ED). The plaintiffs, represented by the ACLU and private counsel, alleged that regulations issued by ED "sharply limit educational institutions' obligations to respond to reports of sexual harassment and assault" and therefore contravened Title IX of the Education Amendmentsof 1972. The plaintiffs sought declaratory and injunctive relief and alleged that ED's rule making process violated the Administrative Procedure Act. Judge Richard D. Bennett was assigned the case. The complaint argued that ED's regulations ran counter to both the spirit and intent of Title IV by narrowing the definition of sexual harassment, directing university officials to ignore Title IV reports of off-campus conduct, and holding schools accountable only when they were "deliberately indifferent" to sexual assault and harassment. These policies, the plaintiffs contended, created a higher standard for race- or national origin-based discrimination and a lower one for sex-based discrimination. As a result, the plaintiffs alleged that ED's rulemaking process violated the Administrative Procedure Act because it was "arbitrary and capricious" for failing to adequately consider important aspects of sexual harassment and assault problems. The case is ongoing.

Summary: On May 14, 2020 the plaintiffs filed a lawsuit against the Department of Education (ED) in the United States District Court in the District of Maryland. The complaint alleged that regulations issued by ED "sharply limit educational institutions' obligations to respond to reports of sexual harassment and assault" and therefore contravened Title IX of the Education Amendmentsof 1972. The case is ongoing with responses to the complaint due on July 31, 2020.


Until and through the latter part of 2006, the University of Michigan's admissions policies allowed for the consideration of race among the factors it considered in making admissions decisions. In 2003, this policy was expressly approved by the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). On November 7, 2006, the people of Michigan approved by majority vote a statewide ballot initiative, Proposal 2, which amended the Michigan Constitution to prohibit discrimination or preferential treatment based on race or gender in the operation of public employment, public education or public contracting in the State. Under the Michigan Constitution, the proposal was scheduled to go into effect on December 23, 2006. In response to the enactment of Proposal 2, the University of Michigan announced that it would change its admissions and financial aid policies so that its "admissions and financial aid processes will not discriminate, nor grant preferential treatment to, any individual on the basis of race, sex, color, ethnicity or national origin," apparently by altering its admissions procedures "such that race and gender will have no effect on the decision-making process" except to "recognize exceptions provided in [Proposal 2] including one for programs that receive federal funds." Both Proposal 2 and the university's announcement triggered litigation. On November 8, 2006, several civil rights organizations, students, labor organizations, a political organization, and a former petition circulator (for the initiative that resulted in enactment of Proposal 2) filed, as plaintiffs, a complaint in the U.S. District Court for the Eastern District of Michigan. Represented by Detroit-based private counsel, they named as defendants the state's governor and the regents of three large state universities, including the University of Michigan, as well as broadly identifying as additional defendants unnamed "trustees of any other public college or university, community college, or school district." The plaintiffs' 42 U.S.C. § 1983 lawsuit sought declaratory and injunctive relief to block the implementation of Proposal 2, claiming it violated the Civil Rights Acts of 1866 and 1964, Title IX of the Educational Amendments of 1972, the equal protection clause of the Fourteenth Amendment, and the First Amendment. On December 12, 2006, the university defendants filed a cross-claim against the governor, saying that they were unsure of the meaning and constitutionality of Proposal 2, were in the middle of their admissions and financial aid cycles, and wanted to continue to act in accord with past policy and practices until the uncertainties about Proposal 2 were resolved. Accordingly, the universities sought an order preserving the status quo and permitting them to act until the court ruled upon the injunctive relief requested by the initial plaintiffs. The universities, too, were represented by private counsel. Two days later, District Judge David D. Lawson granted the state attorney general's motion to intervene as a defendant in the case. The attorney general had cited his duty to defend the constitutionality of the new provision. On December 17, 2006, the plaintiffs filed their amended complaint. Basically, the amendment added the state's attorney general as a defendant, asserted more factual detail about racial discrimination and its myriad effects, asserted that Proposal 2 violated federal constitutional and statutory law, and added the assertions that federal statutes preempted Proposal 2 and that the provision also violated Executive Order 11246. The amended complaint sought the same declaratory and injunctive relief and added a claim for an award of attorneys' fees and costs. The next day, the district court received a stipulation from all parties consenting to the temporary injunctive relief sought by the universities and agreeing to the dismissal of the request in the cross-claim for an injunction. In an unpublished order on December 19, 2006, Judge Lawson accepted the stipulation and enjoined the application of Proposal 2 against the university defendants until July 1, 2007, unless the injunction should be earlier vacated. Also on December 19, other plaintiffs ("the Cantrell plaintiffs") filed a separate complaint in the same court, also seeking to enjoin the effect of Proposal 2 (Docket #: 06-cv-15637-DML-SDP). Meanwhile, motions to intervene in the initial lawsuit had been filed by various parties. On December 27, 2006, Judge Lawson ruled upon three of these motions. The American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee had moved to intervene as plaintiffs on December 14, while a group called Toward a Fair Michigan, and an individual seeking admission to the University of Michigan Law School in the fall, had moved to intervene as defendants on December 18. That same day, the City of Lansing filed a motion to intervene as a plaintiff. Applying federal civil procedure rules governing intervention of right and permissive intervention, Judge Lawson granted only the individual's motion to intervene. Coalition to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006). The day Judge Lawson issued the temporary injunction (December 19, 2006), the individual intervenor and Toward a Fair Michigan had filed a motion requesting a stay of the order enjoining enforcement of Proposal 2 before its effective date-December 23. Having heard nothing from the district court and with the effective date fast approaching, on December 21, these two would-be intervenor-defendants filed a notice of appeal to the U.S. Court of Appeals for the Sixth Circuit. The next day, they filed in that court both an emergency motion for a stay, pending appeal, of the preliminary injunction and a petition for a writ of mandamus directing the district court to grant their then-pending motion to intervene and to vacate its preliminary injunction. Also in the Sixth Circuit, on December 28, the organizations whose intervention was denied by Judge Lawson's December 19's ruling filed appeals of that ruling. Circuit Judge Jeffrey S. Sutton wrote the panel opinion for the appellate court, which decided that (1) the prospective student had standing; (2) the stipulated injunction was invalid; (3) Proposal 2 did not violate the First Amendment or the Equal Protection Clause; (5) neither the Civil Rights Act or Title IX preempted Prop. 2; and (7) a stay of the district court's order granting the injunction was warranted. Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006). On January 5, 2007, Judge Lawson issued an unpublished order consolidating the two cases seeking to enjoin Proposal 2, noting that the proposal was also known as Proposal 06-2 and, now, as Article 1, section 26 of the Michigan Constitution of 1963. Also, the parties were directed to work toward joint proposed stipulations of fact, to submit a discovery plan, and to have lead counsel for the parties attend a status and scheduling conference in March 2007. On January 17, 2007, the first amended complaint after consolidation was filed. In more measured tones than used in the complaints filed by the initial plaintiffs, this amended complaint described a variety of plaintiffs (high school, undergraduate, and graduate and law students, as well as university professors) who sought class action status for the case and asserted that Proposal 2 violated their equal protection rights by placing on them and racial minorities a substantial and unique burden in seeking legislation, because groups seeking beneficial legislation including considerations of race face a different and much more onerous burden in the political process than do those seeking beneficial legislation based on other characteristics. The plaintiffs sought injunctive relief, attorneys' fees, and costs. This amended complaint reflected a host of attorneys serving plaintiffs, including private counsel, counsel from numerous organizations (i.e., Detroit Branch NAACP, ACLU Fund of Michigan, ACLU Foundation of Southern California, NAACP Legal Defense & Educational Fund, Michigan State Conference-NAACP, ACLU Foundation Racial Justice Program), and several law professors from a variety of law schools. On March 28, 2007, the original plaintiffs' counsel filed a second amended petition. It added a gender discrimination component to their earlier equal protection arguments, as well as claims that that Fourteenth Amendment clause was violated by racial and gender discrimination in the very structure of government in Michigan. The second amended complaint added university presidents as defendants, sought class action status for the case, and re-asserted earlier federal constitutional and statutory claims, including those based on preemption under the Supremacy Clause. It extended the claims based on the asserted violation of First Amendment rights by contending students' rights were violated, too, by the state enactment. Plaintiffs continued to seek declaratory and injunctive relief, together with attorneys' fees and costs. On October 5, 2007, the Cantrell plaintiffs filed a motion for summary judgment as to intervening defendant Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the attorney general. On October 17, 2007, the university defendants filed a motion to dismiss. On November 30, 2007, the attorney general filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day. On March 18, 2008, District Court Judge Lawson issued two orders ruling on these motions. In the first published order, the court denied the University Defendants' request to be dismissed as parties and the Cantrell plaintiffs' motion for summary judgment and granted the attorney general's motion for summary judgment, rejecting the plaintiffs' arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Coalition to Defend Affirmative Action v. Regents of University of Michigan, 539 F.Supp.2d 924 (E.D. Mich. 2008). In the second published order on the same day, Judge Lawson adjudicated a series of other motions. Among other things, the court granted the Cantrell plaintiffs' motion for summary judgment as to intervening defendant Russell, denied the motion to intervene by Jennifer Gratz, and denied as moot plaintiffs' respective motions for class certification. Coalition to Defend Affirmative Action v. Regents of University of Michigan, 539 F.Supp.2d 960 (E.D. Mich. 2008). (The Cantrell plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion on December 11, 2008. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 592 F.Supp.2d 948 (E.D. Mich. 2008).) Multiple appeals followed the district court's decisions on March 18 and December 11, 2008. The university defendants appealed the court's denial of their motion to be dismissed as parties. Russell appealed the court's grant of the Cantrell plaintiffs' motion for summary judgment dismissing him as a party to the action. The Cantrell plaintiffs appealed the court's grant of the attorney general's motion for summary judgment and its denial of their motion for reconsideration. Similarly, the Coalition plaintiffs appealed the court's grant of the attorney general's motion for summary judgment. On July 1, 2011, in an opinion delivered by Judge R. Guy Cole, Jr., the Sixth Circuit found that Proposal 2 unconstitutionally altered Michigan's political structure by impermissibly burdening racial minorities. Accordingly, the appellate court reversed the district court's grant of summary judgment for the defendants and ordered the district court to enter summary judgment in favor of the plaintiffs. Also, the appellate court affirmed the district court's decision granting the Cantrell plaintiffs' motion for summary judgment as to intervening defendant Russell, and affirmed the district court's decision denying the university defendants' motion to be dismissed as parties. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 652 F.3d 607 (6th Cir. 2011). On September 9, 2011, the Sixth Circuit granted en banc rehearing; the panel decision/judgment was vacated, and the mandate was stayed. After a new round of briefing and argument, on November 15, 2012, in an opinion delivered by Judge R. Guy Cole, Jr., the Sixth Circuit en banc majority found, as the panel had, that Proposal 2 created a comparative structural burden that undermined the Equal Protection Clause (which the court calls the "political process" argument). Accordingly, the en banc court found Proposal 2 unconstitutional and reversed the judgment of the district court on this issue. The Court affirmed the denial of the University Defendants' motion to be dismissed as parties (deferential to lower court on this type of issue), and affirmed the grant of Cantrell Plaintiffs' motion for summary judgment as to Russell (because he is no longer an interested party). The majority explained that equal protection of the laws includes "a guarantee that minority groups may meaningfully participate in the process of creating laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them." The Court found that "Proposal 2 targets a program that 'inures primarily to the benefit of the minority' and reorders the political process in Michigan in a way that places special burdens on racial minorities." It reorders the political process because admissions procedures are set by the popularly elected governing boards of the universities. To enact other preferential admissions criteria (the court uses the example of legacy applicants), a citizen need only convince the existing officials on the board or seek to elect someone who shares their views. But to enact a race-conscious preference, a citizen must first obtain a constitutional amendment, and then seek to persuade the board or elect board members who agree. It was the process, not the outcome, that the Court held to be a violation of the Equal Protection Clause. The Court did not reach the question of whether the Proposition violates Equal Protection under what it called the "traditional analysis" (impermissibly classifying individuals on the basis of race). Coalition to Defend Affirmative Action v. Regents of the University of Michigan, --- F.3d ---, 2012 WL 5519918 (6th Cir. 2012). The Michigan Attorney General sought certiorari review in the Supreme Court, and on March 24, 2013, the Court granted cert. On October 15, 2013 the Supreme Court heard oral argument in the case. In an opinion written by Justice Kennedy and joined by Justice Roberts and Justice Alito, the court reversed the Sixth Circuit (134 S. Ct. 1623). There were two concurring opinions and a single dissent. Writing for the Court, Kennedy asserted that this case was not about resolving the debate of racial preferences, but whether or not it is constitutional for Michigan to allow its voters to decide the issue. The Court held that there was no authority in the Federal Constitution or in the Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions.

Summary: On November 7, 2006, the people of Michigan approved by majority vote a statewide ballot initiative-Proposal 2-which amended the Michigan Constitution to prohibit discrimination or preferential treatment based on race or gender in the operation of public employment, public education or public contracting in the State. Both Proposal 2 and the University of Michigan's announcement that it would comply triggered litigation. On November 15, 2012, the en banc Sixth Circuit held that Proposal 2 created a comparative structural burden that undermined the Equal Protection Clause (which the court called the "political process" argument). Accordingly, the court found Proposal 2 unconstitutional. On March 24, 2013, the Supreme Court granted review of the case. Argument will be after the Court's summer break. On October 15, 2013 the Supreme Court heard oral argument in the case. In an opinion written by Justice Kennedy and joined by Justice Roberts and Justice Alito, the court reversed the Sixth Circuit. There were two concurring opinions and a single dissent. In his opinion Kennedy asserts that this is not a case about resolving the debate about racial preferences, but rather about whether it is constitutional for Michigan to allow its voters to decide the issue. The court holds that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions.


On December 12, 2003, several New York City public school students with disabilities filed a lawsuit in United States District Court for the Southern District of New York. Plaintiffs filed under the Individuals with Disabilities Education Act ("IDEA"), the14th Amendment of the U.S. Constitution, 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), and New York State Education Law §§ 4401. The acton was brought against the New York City Department of Education and the New York City School Board. The plaintiff, represented by private and public interest council asked the court for injunctive relief, claiming that the defendants violated IDEA by not adhering to the results of impartial hearings regarding the payment for services necessary for the plaintiffs' special education needs. On April 15, 2004, an amended complaint was filed to include a class action for those of a like situation with the plaintiffs. In order to receive funding under IDEA, New York State law allows an aggrieved parent of a child with a disability to have an impartial hearing in respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. The plaintiffs in this case all were to receive compensation or funding for special education tuition or services as a result of one of these hearings. Despite these decisions, the defendant, who could have appealed the decision within 30 days and failed to do so, either did not compensate, or failed to fully compensate the plaintiffs. On April 10, 2008, Judge Richard J. Howell approved a class settlement agreement between the parties. The settlement required the New York Department of Education to implement all impartial hearings within a given time frame, or 35 days if no time frame is given. Any order from a hearing that requires action must be implemented within seven days. Implementation of the orders is now reviewed by an independent auditor. If an order is not implemented in time, parents are notified in a letter which can be used to enforce the order.

Summary: In late 2003, several students with disabilities filed a lawsuit against the New York City Department of Education and the New York City School Board for failing to follow the orders of impartial hearings requiring them to compensate or fund tuition and services for the special education needs of the plaintiffs. In 2008 a settlement agreement was approved which included injunctive and compensatory relief.


This case is about the denial of access to a free appropriate public education (FAPE) to educationally disabled students in the Buffalo City School District. A student with an educational disability received an Individualized Education Program (IEP) for the 2011 school year that included speech and language therapy. Though the IEP projected services to commence with the school year, the school district delayed the start of IEP related services until the third week. The student's parent claimed the delay was a result of the school district’s policy and not the result of any discussion with the parent or an individualized assessment of their child’s needs. The student’s parent, individually and on behalf of their child, filed this class-action lawsuit in the U.S. District Court for the Western District of New York on October 11, 2012. They alleged this policy denied parents meaningful participation in the educational decision-making process, denied individualized determinations of IEPs, and, therefore, denied students of a FAPE. The plaintiff sued the Buffalo City School District Board of Education and its superintendent under Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Improvement Act (IDIEA), and state law. The plaintiffs, represented by private attorneys specializing in disability law, sought declaratory relief, injunctive relief, additional services for the student to compensate for delayed implementation of therapy, and attorneys’ fees and cost. The case was automatically referred to mediation on December 18, 2012 and assigned to Judge Leslie G. Foschio. The parties agreed to and selected a private mediator in March 2013. On November 2, 2012, the plaintiffs sought class certification of those students with learning disabilities and their parents who had been similarly denied services in the first two weeks of school and meaningful participation by the parents in their children’s educational decision-making process. The defendants sought to stay the decision on class certification, but on June 30, 2013 Judge William M. Skretny granted class certification and denied the defendant’s motion to stay. 2013 WL 3354424. The court defined the certified class as:
[C]hildren, and parents of children, between the ages of 5 and 21 residing in the Buffalo City School District, present and future, who are classified as disabled per the definition in [IDEA] . . . and receive related services.
 On July 3, 2013, the defendants appealed Judge Skrenty’s decision granting class certification to the Second Circuit. On June 17, 2014, the appeals court affirmed Judge Skrenty’s decision to grant class certification because the plaintiffs’ case was based on a policy that applied uniformly to all students, satisfying the class commonality requirement. (Circuit Judges Rosemary S. Pooler, Peter W. Hall, Susan L. Carney). 569 Fed.Appx. 41. Mediation and settlement discussions continued throughout the remainder of 2014, and on January 27, 2015 the parties reached a written settlement subject to approval of the Buffalo Board of Education and the court. Judge Skrenty finalized and approved the settlement on March 24, 2015. The settlement involved injunctive relief, compensatory services in the form of 10 hours of speech and language therapy services to the named plaintiff, and attorneys’ fees. The Board of Education agreed to void any practices or procedures indicating that speech and language services shall begin no later than a certain date. They agreed that the start date for speech and language services would be made basis of individual assessments and data of each child, and individual speech and language therapy would be presumed to begin at the start of the school year. Additionally, they agreed that group therapy would begin no later than two weeks after the start of each school year. The firm representing the plaintiffs was assigned to conduct monitoring during the 2015–2016 and 2016–2017 school years. Within 90 days, the Board of Education was to provide notice to class members of the settlement. Any disputes related to the implementation and/or interpretation of the settlement were agreed to be handled through arbitration. The attorneys were awarded $165,000. The case is now closed.

Summary: In 2012, a parent, individually and on behalf of their student-child with an educational disability in the Buffalo City School District, filed this class action complaint in the the U.S. District Court for the Western District of New York. The plaintiffs alleged that the Buffalo City School District Board of Education and its superintendent denied free appropriate public education to children with educational disabilities, failed to promptly provide children with disabilities related services, and failed to provide parents with meaningful participation in their children's educational decision-making process. In 2015, the parties reached a settlement that required more timely speech and language therapy for members of the class and awarded attorneys' fees. The case closed in March 2015.


On February 15, 1996, parents, as next friends of their minor daughters, filed a class action lawsuit in the United States District Court for the Northern District Of Oklahoma against Owasso Public Schools ("OPS") and individual District employees. Plaintiffs, represented by private counsel and attorneys from the National Women's Law Center, claimed that OPS had violated Title IX, the Equal Protection Clause of the U.S. Constitution, and 42 U.S.C. § 1983 by denying female students an equal opportunity to participate in interscholastic athletics. Specifically, plaintiffs claimed that OPS had intentionally discriminated against female OPS students based solely on their gender in the scheduling of games and practice times; the provision of equipment, lockers rooms for both practice and competition, opportunity to receive qualified coaching, publicity and supplies; and the assignment and compensation of coaches. The plaintiffs also sought compensatory damages in their individual capacities. Plaintiffs' motion for class certification was granted by the Court (Judge Terence C. Kern) on June 28, 1996. On October 2, 1996, the Court (Judge Kern) entered a consent decree terminating the case and setting out the agreements reached regarding OPS's sports programs' availability to female students. Specifically, OPS was obligated to survey female students, urge female teams' coaches to play the maximum number of games permitted, and to engage in consistent efforts to provide intramural opportunities for 7th and 8th grade students. Finally, OPS was required to comply with various requirements related to budget and expenditures; coaches; equipment and supplies; facilities, including weight facilities; grievance procedures; policies, including maintenance of records related to compliance; publicity and support organizations; scheduling of games and practice times; Title IX personnel training; travel; and uniforms. On November 22, 1996, the parties jointly agreed to dismiss the lawsuit with prejudice. On May 21, 1997, the Court (Judge Kern) awarded plaintiffs $32,941 in attorney's fees and costs. On August 16, 1999, OPS tendered a report in support of its compliance with the consent decree, detailing OPS's obligations and related compliance. The case is now closed.

Summary: On February 15, 1996, students filed a class action lawsuit against Owasso Independent School District ("OPS"), claiming that it had violated Title IX of the Education Amendment of 1972, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983 by intentionally denying female students an equal opportunity to participate in interscholastic and other school-sponsored athletics. On October 2, 1996, the Court entered a consent decree, which settled each of the claims stated in the Complaint and resolved all claims asserted against individuals who were named in their official and individual capacities, dismissing claims for damages.


On August 10, 1999, parents, on behalf of their minor daughters, filed suit in the United States District Court for the Northern District of Oklahoma against Independent School District No. 32 of Mayes County, alleging that the school district had violated Title IX of the Education Amendment, 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth Amendment through disparate treatment of female students with respect to providing an equal opportunity to participate in interscholastic and other school-sponsored athletics. The plaintiffs sought class certification on behalf of all present and future female students enrolled at Chouteau Public Schools who participate, seek to participate, or are deterred from participating in interscholastic and/or other school-sponsored athletics at Chouteau Public Schools. Specifically, the plaintiffs alleged that the school district violated the female students' rights by knowingly and intentionally offering sports and levels of competition in a manner which discriminates against female students. Additionally, the complaint alleged that the defendants had discriminated against female students with respect to equipment and supplies provided, scheduling of games and practice times, travel, the opportunity to receive qualified coaching, the assignment and compensation of coaches, provision of locker rooms and facilities for both practice and competition and publicity. The plaintiffs sought a declaratory judgment that the defendants had violated the students' rights and an injunction requiring the defendants to cease their discriminatory practices and remedy the effects of such practices and discriminatory conduct. The District Court (Judge Michael Burrage) certified the class in an order dated October 28, 1999. On November 2, 1999, the District Court (Magistrate Judge Claire V. Eagan) set a settlement conference for March 13, 2000. The parties entered a joint stipulation of dismissal on May 25, 2000, and Judge Burrage approved a settlement agreement on June 27, 2000. In the agreement the school district agreed to take affirmative steps to increase female student participate in athletics. They agreed to conduct a survey to determine interest in women's volleyball and soccer at the high school level, and volleyball, soccer and fast and slow pitch softball at the middle school level, and to add those sports for which there was interest. The school district also agreed to establish a system for accounting for revenues and expenditures for male and female sports. The district also agreed to schedule basketball games on a gender-neutral basis and to treat female students equivalent to male with respect to travel, food, lodging and other similar privileges. The District Court (Judge Burrage) dismissed the case on July 17, 2000.

Summary: Parents, on behalf of female students of Chouteau Public Schools, brought suit against the school district alleging that the school had violated female students' rights under the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendment through disparate treatment with respect to interscholastic athletics and programs. In a settlement agreement, the school district agreed to take steps to remedy the discriminatory actions by, among many things, providing coaching, facilities and equipment to both male and female athletic teams on a gender-neutral basis.


The Public Interest Law Center filed this lawsuit on June 30, 1994 on behalf of a class of 280,000 special education students, 12 named plaintiffs, and 11 disabilities advocacy organizations against the Commonwealth of Pennsylvania in U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs alleged that the Pennsylvania Department of Education violated the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA). The plaintiffs claimed that all school-age students with disabilities in Pennsylvania had been denied a free appropriate education in regular education classrooms with individual supportive services, and had been placed in regular education classrooms without the supportive services, individualized instruction, and accommodations they need to succeed in the regular education classroom. Specifically, the plaintiffs claimed defendants failed to identify disabled students, develop individual educational programs or plans, and provide a free appropriate public education in the least restrictive environment to the maximum extent reasonably possible. Also, the plaintiffs claimed that defendants excluded disabled students solely because of their disability from participating in or from receiving the benefits of any program that received federal funding. The plaintiffs sought to increase the number of children with disabilities educated with their non-disabled peers, and to make sure schools provided real supports to make sure inclusion would work as required by the IDEA. The lawsuit sought to change Pennsylvania’s systems for training districts in inclusion and for monitoring and enforcing inclusion compliance. On August 29, 1994, the plaintiffs filed a motion for class certification, and the defendants filed a motion to dismiss the complaint. On March 8, 1995, the plaintiff filed a motion for preliminary injunction. No further information about the requested injunction is available, but on April 7, 1995, the court (Judge Eduardo Robreno) denied the plaintiff's motion for a preliminary injunction as moot. On March 31, 1995, the court denied the defendant's motion to dismiss the complaint. The court also granted Pennsylvania State education Association and The Educational Support Personnel Association's motion to intervene. On June 12, 1995, the court granted the plaintiff's motion for class certification. The parties continued to engage in extensive discovery, providing multiple case management plans extending the discovery period. The discovery led to the production of thousands of documents, taking of dozens of depositions, and exchanging of eighteen expert reports. The discovery encompassed the inclusion practices of every public school in the state. On June 2, 1999, the plaintiffs deposed special education and general education teachers, and completed surveys of ten sample school districts. With help from experts, the plaintiffs conducted a scientific survey of ten school districts to determine what services actually were being provided to special education students; reviewed selected IEPs in those districts to see if the resources and services were actually delivered; and interviewed teachers and administrators to determine the basis of their placement decisions. The plaintiffs also reviewed the state’s compliance and monitoring systems, as well as statistics concerning placements in all state districts. The parties continued up to filing a thirteenth amended joint case management plan on October 3, 2001. On July 22, 2012, following a discovery dispute, the Court appointed Judge Louis Bechtle, former Chief Judge of the United States District Court for the Eastern District of Pennsylvania, as Discovery Master in the case. With Judge Bechtle’s guidance, the parties completed discovery on May 30, 2003. Thereafter, the parties filed cross-motions for summary judgment, along with responses and replies. On March 24, 2004, the Court heard oral argument on the summary judgment motions. After the oral argument, at the Court’s suggestion, on September 9, 2004, the parties agreed to participate in court-supervised mediation regarding settlement, with Judge Bechtle serving as a mediator. On December 21, 2004, the parties filed a joint motion for approval of settlement agreement, memorandum, proposed order, and proposed settlement agreement. A hearing was held to consider provisional approval of the settlement agreement on April 20, 2005. At the Fairness Hearing, which was held on June 24, 2005, the court heard oral argument from the parties and other interested persons and received testimony from a special-education expert, Commonwealth officials, parents of several named plaintiffs, and certain representatives from advocacy groups. The parties submitted additional evidence through declarations and reports. The court ordered the parties to file a joint motion for final approval of the proposed settlement agreement. The joint motion was filed on August 5, 2005. On September 19, 2005, the court granted the motion for final approval of the Settlement Agreement, ending 11 years of litigation regarding the education of students with disabilities in the least restrictive environment with supplementary aids and services in their neighborhood schools. Despite receiving several objections to the settlement agreement, the Court found the settlement agreement to be fair, reasonable, and adequate. On October 28, 2005, one of the pro se beneficiaries of the settlement filed an appeal to the Court of Appeals, but on August 18, 2005, the appeal was dismissed. The settlement agreement required an overhaul of the state’s systems for helping school districts comply with the IDEA’s inclusion mandates and then monitoring the defendant's compliance. It established tools for the Department of Education to monitor the quality of education for children with disabilities, require corrective action, and offer training for teachers and administrators. In the settlement agreement, the Pennsylvania Department of Education agreed to make systemic changes pursuant to its general supervisory role over special education. The settlement agreement, effective for 5 years, included: increasing the state’s focus on districts with the worst records of inclusion, requiring corrective action plans; changing the complaint resolution process to increase parents’ rights; changing the approval process of districts’ special education programs; increased the state’s commitment to training and technical assistance; creating of an Advisory Panel to guide and assess progress in implementing the agreement other reforms in the state’s training, monitoring, and enforcement procedures. Specifically, the Department of Education agreed to develop display materials for all public school showing all children are welcome; provide increased professional development for teachers and other school personnel; expand information and training that supports parents of children with disabilities; ensure that individualized education program teams determine the appropriateness of implementing goals in general education classrooms with supplementary aids and services; provide a single individualized education program for a student with a disability who also qualifies for gifted support; modify portions of the individualized education program to provide more information related to students participating in general education; clarify complaint resolution and investigation procedures; monitor of least restrictive environment requirements to ensure that districts comply with federal and state laws related to student placement. The most significant aspect of the settlement agreement involved the provision for compliance monitoring, intended to ensure that local school districts are adhering to the IDEA and other federal and state laws that protect the rights of children with disabilities. The parties agreed that those school districts failing to comply with PDE’s corrective action plans--created to rectify deficiencies identified through any type of compliance monitoring--will be subject to sanctions and enforcement powers. Under the agreement, the defendants agreed to pay plaintiffs $350,000 in full, final, and complete settlement and release of the plaintiffs’ claims for compensatory damages that have been asserted in this case. The plaintiffs would be responsible for allocating the $350,000 among themselves. Additionally, defendants would pay plaintiffs’ counsel $1,825,000 in full, final, and complete settlement and release of all claims by plaintiffs or their attorneys for attorneys’ fees and litigation costs. On April 11, 2008, the plaintiffs filed a motion to enforce the settlement agreement. The parties agreed to enter mediation to discuss enforcement of the settlement agreement, and on December 15, 2008, the plaintiff's motion to enforce settlement agreement was denied without prejudice by the court. There are no additional updates on the trial court docket, and the case is presumed closed. In the final months of the agreement’s five-year life, however, Advisory Panel established in the settlement released a report on June 3, 2010, condemning the Department’s failure to make significant improvements in the education of children with disabilities. The panel concluded that the promise of the settlement agreement had not been realized. Overall, inclusion increased very slightly – Pennsylvania improved its standing from 49th in the country to 43rd – but inclusion for many more severe disabilities remained the same or even decreased. Further, the panel noted that they had no way to assess whether the services and supports necessary to make inclusion succeed were ever provided. Small improvements included a “Supplementary Aids and Services Toolkit” developed to help Individualized Education Program teams plan for inclusion, as well as marginal regulatory and training improvements. The Panel’s report most harshly criticized the Department’s failure to substantively monitor the state’s worst performing districts and to take meaningful corrective action in those districts.

Summary: A lawsuit was filed on behalf of all school-age students with disabilities in Pennsylvania seeking to increase the number of children with disabilities educated with their non-disabled peers, and to make sure schools provided real supports to make sure inclusion would work as required by the IDEA. After eleven years, the parties reached a settlement; however, the final report demonstrates many of the terms of the agreement was not met.


On June 11, 2015, Gavin Grimm, a sixteen-year-old transgender boy filed this lawsuit against the Gloucester County School Board in the U.S. District Court for the Eastern District of Virginia. The plaintiff, represented by the national and Virginia ACLU, proceeded under Title IX and 42 U.S.C. § 1983. He sought a preliminary and permanent injunction allowing him to use the boys' restroom at school, claiming that the school board's policy of requiring transgender students to use a private restroom facility violated his rights under Title IX and the Fourteenth Amendment. Specifically, the plaintiff alleged that after he had used the boys' restroom with the school's permission for seven weeks without incident, the school board released a policy stating that students' access to restrooms was restricted based on their "biological gender" and that students who were unable to use the corresponding restroom because of "gender identity issues" were to use an alternative private facility. At the time, plaintiff was the only student at the school required to use the private facility. The ACLU had previously filed a complaint with the U.S. Department of Justice (DOJ) on December 18, 2014, only days after the school board instituted the restroom policy. The ACLU's complaint stated that the school board's behavior was a violation of Title IX in that discrimination based on a person's transgender status is discrimination based on sex. Additionally, the complaint alleged that, since there had never been any complaints regarding the plaintiff, any privacy concerns were nothing more than irrational prejudice or stigma against transgender people. On September 4, 2015, the court (Judge Robert Doumar) denied the plaintiff's motion for a preliminary injunction. Then on September 17, 2015, the court also granted the school board's motion to dismiss. The school board argued that discrimination based on gender identity is not sex discrimination, and therefore, not covered under Title IX. the court agreed, ruling that the plaintiff failed to state a valid claim under Title IX because schools are permitted to keep separate restrooms based on sex as long as the restrooms are comparable. The court also explained that it had denied plaintiff's motion for a preliminary injunction on the basis that allowing him to use the boys' restroom would violate other students' constitutional right to privacy. 132 F.Supp.3d 736. The plaintiff appealed the court's denial of the preliminary injunction. In the Fourth Circuit, on October 28, 2015, the DOJ filed an amicus curiae brief in support of the plaintiff's appeal. The DOJ, citing a letter issued by the U.S. Department of Education (DOE), took the position that discrimination based on transgender status constitutes discrimination based on sex, denying a student access to the restroom that corresponds to their gender identity denies the student equal educational opportunity, and general invocations of privacy and safety do not override Title IX's prohibition on sex-based discrimination. This marked the first time the administration took this position in an appeals court. On April 19, 2016, the Fourth Circuit reversed and vacated in part the district court’s ruling. The circuit court found that Title IX is ambiguous on how gender should be determined for purposes of finding impermissible sex discrimination. The court also found that the DOE’s interpretation of Title IX, which required schools to treat transgender students consistent with their gender identity, was the result of the agency’s fair and considered judgment, and was neither a convenient litigating position nor a post hoc rationalization. Based on those findings, the Fourth Circuit reversed the district court's grant of summary judgment to the school board, finding that the DOE’s interpretation was entitled to deference. The Fourth Circuit further found that the district court had improperly excluded evidence in deciding whether to grant the plaintiff preliminary injunctive relief. The Fourth Circuit then remanded the question of whether to grant the plaintiff injunctive relief with instructions to consider the improperly excluded evidence. 822 F.3d 709 (4th Cir. 2016). The plaintiff had also asked for the case to be reassigned to a different judge on remand. He argued that various statements by Judge Doumar expressing opinions about medical facts and gender dysphoria indicated that the judge had pre-existing views that he would be unwilling to set aside in the face of contrary evidence about gender and sexuality. The Fourth Circuit denied reassignment, finding that there was insufficient evidence that Judge Doumar would refuse to consider and credit sound contrary evidence, and that his methods were idiosyncratic but not fundamentally unfair. On May 31, 2016, the Fourth Circuit denied rehearing en banc; it also denied a stay of its mandate. 824 F.3d 450 (4th Cir. 2016). On remand, on June 23, 2016, the district court issued an order granting the plaintiff a preliminary injunction allowing him to use the boys' restroom. The court, noting that the plaintiff had not asked for access to the boys' locker rooms, specified that the preliminary injunction was limited to plaintiff’s ability to access the boys' restrooms. 2016 WL 3581852. On June 27, 2016, the defendants appealed the preliminary injunction, and asked it to be stayed pending the outcome of that appeal. The Fourth Circuit denied the stay on July 12, 2016. 654 Fed.Appx. 606. The defendants then sought relief from the Supreme Court. On August 3, 2016, the Court granted the application to stay the district court's preliminary injunction. If the Supreme Court declined to hear the full case, the stay would automatically end; if the Supreme Court ultimately heard the full case, the stay would end once the Court made its final judgment. 136 S.Ct. 2442. The school board then filed an unopposed motion to stay in the district court on August 18, 2016. The court granted this motion on August 31, 2016. On August 29, 2016, the defendants sought full review of the case from the Supreme Court. Three questions were presented in this petition. First, whether the Court should retain the <Auer/i> doctrine, which allows deference to agencies’ regulations even when the regulations are ambiguous. Second, whether the <i>Auer</i> deference extends to an unpublished agency letter that does not carry the force of law. Third, whether the DOE’s Title IX interpretation is valid. On October 31, 2016, the Court agreed to hear the appeal of only the second and third questions presented. 137 S.Ct. 369. On February 22, 2017, the new Trump administration withdrew the guidance that the Fourth Circuit had relied on in its rulings, and took no position on whether or how gender identity was covered under Title IX. Argument before the Supreme Court was set for March 28, 2017, but on March 6, the Court vacated the Fourth Circuit's judgment and remanded the case for further consideration in light of the government's change in position. 137 S.Ct. 1239. On remand from the Supreme Court, on April 7, 2017, the Fourth Circuit vacated the preliminary injunction. 853 F.3d 729. It remanded the case back to the district court to determine whether the case was rendered moot by the original plaintiff's graduation. Back in district court, the was reassigned to Judge Arenda Wright Allen on June 6, 2017. The plaintiff filed an amended complaint on August 22, 2017, alleging he would be subject to the School Board's policy as an alumnus. The defendant filed a motion to dismiss on September 22, 2017, alleging that the plaintiff failed to state a claim because the Board's locker room and restroom policy was consistent with Title IX and the Equal Protection Clause, and because alumni were not subject to the School Board's policies (which only apply to current students), this added claim was not a justiciable controversy. On October 26, 2017, Judge Arenda L. Wright Allen deferred a ruling on the defendant's motion to dismiss, pending resolution of the issue of mootness. On November 2, 2017, the plaintiff filed a notice of consent to dismissal as to his third and fourth requests for relief. The plaintiff agreed to dismiss his request for prospective declaratory judgment and permanent injunctive relief, but maintained his request for retrospective declaratory judgment and nominal damages. Following this approved withdrawal of requested prospective relief, the defendant filed an amended motion to dismiss on January 5, 2018. On May 22, 2018, the court denied the defendant’s motion to dismiss, finding that the plaintiff had sufficiently pled that the school board’s policy was not substantially related to protecting other students’ privacy rights, “because there were many other ways to protect privacy interests in a non-discriminatory and more effective manner.” She also found that the board’s argument that the policy did not discriminate against any one class of students was “resoundingly unpersuasive.” On February 15, 2019, the plaintiff filed a second amended complaint that alleged additional facts regarding the defendant’s ongoing violations of the plaintiff’s rights. According to the second amended complaint, the plaintiff had obtained a Virginia court order declaring his sex as male and an updated birth certificate reflecting his sex as male. However, the plaintiff alleged that the defendant continued to refuse to update his official school transcript to match the male gender marker on his birth certificate. On March 26, 2019, the plaintiff and the defendant separately filed motions for summary judgment. Specifically, the plaintiff sought permanent injunction requiring the Board to update his school records to reflect his male identity along with the summary judgment. On August 9, 2019, the court granted the plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment. The court stated that in order to obtain relief for claims alleging a violation of Title IX, a plaintiff must demonstrate that (1) he or she was excluded from participation in an education program because of his or her sex; (2) the educational institution was receiving federal financial assistance at the time of his or her exclusion; and (3) the improper discrimination caused the plaintiff harm. The court found that the plaintiff demonstrated all three criteria. With respect to the Equal Protection Clause claim, the court held that intermediate scrutiny must be applied in analyzing claims of discrimination against transgender individuals. The court also granted the plaintiff's request for a permanent injunction. 400 F.Supp.3d 444 On August 30, 2019, the defendant appealed the case to the U.S. Court of Appeals for the Fourth Circuit (USCA Case Number 19-1952). The oral argument was held on May 26, 2020; the case is ongoing.

Summary: In 2015, a transgender boy filed a lawsuit against his school district because they would not allow him to use the boys' bathroom. The court granted the school district's motion to dismiss, but the appeals court reversed and remanded, and the district court has since granted a preliminary injunction allowing plaintiff access to the boy's bathroom. The Supreme Court agreed to hear the school district's appeal in 2016, but later remanded the case after the Department of Education and Department of Justice withdrew their prior guidance on the issue. The case was remanded to the district court to determine whether the plaintiff's graduation from high school rendered the case moot. On May 22, 2018, the district court denied the defendant’s motion to dismiss. The plaintiff filed a second amended complaint on February 15, 2019, and a motion for summary judgment on March 26, 2019. On August 9, 2019, the court granted the summary judgment; the defendant appealed the case. The case is ongoing.


On August 11, 2005, the Equal Employment Opportunity Commission filed a lawsuit in the Northern District of Alabama under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 against Tyson Foods, Inc, one of the world's largest food production companies. On the same day, fourteen current and former African American Tyson employees who worked for the defendant's Ashland, Alabama plant filed their own complaint in the same court, 1:05-cv-01720, and a motion to intervene in this lawsuit. The individual plaintiffs sought relief under both Title VII and 42 U.S.C. § 1981. The cases were consolidated on November 1, 2005. Plaintiffs asked the court for injunctive relief and monetary damages, claiming that Tyson had maintained racially segregated facilities and had subjected African American employees to a racially hostile work environment and retaliation and threats. Specifically, plaintiffs claimed that in Tyson's Alabama plant African American employees were locked out of one of the two bathrooms, and that bathroom was marked with a "Whites Only" sign. Managers had knowledge of this practice and did not correct it, and additionally closed the break room frequently used by African American employees for lunch and established a new break room where only certain white employees had keys to the locked refrigerator and cabinets. Plaintiffs further alleged that their white supervisors and fellow employees would harass them and refer to them in racially derogatory terms. Finally, Plaintiffs claimed that during a training session for plant employees, the corporate personnel conducting the session threatened that if an employee filed a racial discrimination lawsuit, the plant would be shut down. On March 9, 2006, the case was stayed until September 18, 2006 so that the parties could negotiate a settlement through mediation. The court dismissed the case on October 26, 2006, noting that a settlement had been reached by both parties. On November 7, 2006, the case was re-opened and the Consent Decree and Final Judgment entered. The consent decree, which bound the parties for three years, stipulated that Tyson would not violate Title VII or § 1981 at its Ashland facility by engaging in any discriminatory or retaliatory practices. Tyson was also required to develop a clear policy prohibiting discrimination, harassment, and retaliation, as well as an Equal Employment Opportunity training program for its Ashland employees. The individual plaintiffs and the EEOC were awarded a gross sum of $871,000.

Summary: In 2005, the Equal Employment Opportunity Commission filed a lawsuit in the Northern District of Alabama against Tyson Foods, Inc. Fourteen current and former African American employees at Tyson's Ashland, Alabama plant filed a lawsuit over the same issues, and the cases were consolidated. Plaintiffs claimed that Tyson had maintained racially segregated facilities and had subjected African American employees to a racially hostile work environment and retaliation and threats. On November 7, 2006, the parties settled and Plaintiffs received $871,000, while Tyson was required to institute anti-discrimination policies and programs at its Ashland plant.


In August 2006, the Equal Employment Opportunity Commission ("EEOC") filed this lawsuit against Eagle Produce L.L.C. in the U.S. District Court for the District of Arizona alleging wage discrimination on the basis of sex in violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. Specifically, the complaint alleged the defendant paid male Quality Control Inspectors more than female Inspectors ones despite their performance of substantially similar work duties. The complainants sought a permanent injunction ending the pay disparity and damages for the individual named plaintiffs. Both parties moved for summary judgment. Eagle Productions argued that the EEOC lacked evidence to support its claims because the female employees did not perform work equal to that performed by the two comparative male employees. It further argued that the Title VII claim was time-barred. The EEOC sought summary judgment as to Eagle Produce’s statute of limitations defense, its laches defense, and its claim that one of the plaintiffs failed to mitigate her damages. On June 6, 2008, Judge Neil Wake granted in part and denied in part the plaintiff and defendant’s motions for summary judgment. Specifically, he held that all claims for conduct prior to August 7, 2004 under both Title VII and the Equal Pay Act were barred because of the statute of limitations. All claims under the Equal Pay Act for conduct occurring after August 7, 2004 were still valid. This removed one complainant from the case. Judge Wake further granted the Plaintiff’s motion for summary judgment as to the failure to mitigate damages. 2008 WL 11339627. The EEOC moved for reconsideration of the order, but Judge Wake denied this motion on July 18th. 2008 WL 2796407. The parties then entered into settlement conversations. They submitted an agreement to the Court on October 3, 2008, and the Court subsequently dismissed the case with prejudice and required the parties to pay their own attorney fees. Under the settlement, the defendant agreed not to engage in similar discrimination in the future, to pay $9,000 in monetary relief (including back pay and payroll taxes, liquidated damages, and compensatory damages), and to expunge all references to this action and litigation from the complaining employee's employment file. Further, Eagle Produce agreed to provide training on the Equal Pay Act and discrimination, review and modify written policies regarding wage and gender discrimination, promptly investigate future claims of discrimination, and file required reports with the EEOC District Office for the duration of the settlement agreement. The Court retained jurisdiction over the case for one year to enforce the settlement. There was no further action and the case is now closed.

Summary: In 2006, the EEOC filed this case against Eagle Produce in the U.S. District Court for the District of Arizona. The EEOC alleged sex and wage discrimination. In 2008 the parties reached a settlement agreement which included monetary compensation, as well as requirements for training and reporting.


On August 9, 2006, the San Francisco office of the Equal Employment Opportunity Commission filed a lawsuit in the U.S. District Court for the Northern District of California under Title VII against Robert G. Aptekar, MD, Inc. and the Arthritis and Orthopedic Medical Clinic. The EEOC alleged that the defendants had violated the rights of the complainant by subjecting her to racial harassment, subjecting her to a hostile work environment, and by retaliating against her when she filed a complaint with the EEOC. On November 17, 2006, the case was referred to mediation. On March 6, 2007, the parties settled the case during mediation. On July 16, 2007, the parties entered a consent decree, which the District Court (Judge Ronald M. Whyte) approved on August 20, 2007. Among other things, the defendants agreed to pay the complainant $44,000 in unspecified damages. The District Court (Judge Whyte) retained jurisdiction over the decree, which lasted for 18 months.

Summary: On August 9, 2006, the San Francisco office of the Equal Employment Opportunity Commission filed a lawsuit under Title VII against Robert G. Aptekar, MD, Inc. and the Arthritis and Orthopedic Medical Clinic in the U.S. District Court for the Northern District of California. The EEOC alleged that the defendants had violated the rights of the complainant by subjecting her to racial harassment, subjecting her to a hostile work environment, and by retaliating against her when she filed a complaint with the EEOC. On July 16, 2007, the parties entered a consent decree set to last 18 months, which the District Court (Judge Ronald M. Whyte) approved on August 20, 2007. Among other things, the defendants agreed to pay the complainant $44,000 in unspecified damages.


On September 27, 2006, the EEOC filed this lawsuit in the U.S. District Court for the Easter District of California. The EEOC sued Foam Works, LLC under Title VII of the Civil Rights Act of 1964, bringing this suit on behalf of a female employee who sought a permanent injunction enjoining Foam Works, LLC from discriminating against employees on the basis of sex or from discriminating against employees for opposing unlawful employment practices. The EEOC also sought backpay and punitive damages for the female employee. In the complaint, the employee claimed that she had experienced sexual harassment in the form of derogatory comments. When the employee complained about the harassment her employer retaliated against her by reducing her hours and duties. She was ultimately discharged. On October 12, 2007, District Judge Morrison C. England approved and ordered a proposed consent decree. The consent decree required the defendant to pay the complainant $21,500 in compensatory damages. The defendant was also required to conduct annual training on harassment, institute a confidential complaint procedure, retain pertinent records, and allow the EEOC to inspect documents with twenty days notice. Its effective period was 3 years, and there's nothing more on the docket--so presumably the matter ended in 2010.

Summary: On September 27, 2006, The EEOC filed this lawsuit in the U.S. District Court for the Easter District of California. The plaintiff sued Foam Works, LLC under Title VII of the Civil Rights Act of 1964 alleging sexual harassment and a hostile work environment. On October 12, 2007, District Judge Morrison C. England approved and ordered a proposed consent decree. The consent decree required the Defendant to pay the complainant $21,500 in compensatory damages. The Defendant was also required to conduct annual training on harassment, institute a confidential complaint procedure, retain pertinent records, and allow the EEOC to inspect documents with twenty days notice.


On September 29, 2006, the Los Angeles District Office of the EEOC filed this suit in the U.S. District Court for the Southern District of California. The plaintiffs sued Hometown Buffet Inc. under for violation of Title VII of the Civil Rights Act of 1964. Specifically, the plaintiffs alleged sexual harassment and a hostile work environment. The plaintiffs sought injunctive relief, back pay, and punitive damages. The defendant filed a motion for summary judgment or, alternatively, a motion for partial summary judgment. The EEOC filed a cross motion for summary judgment or, alternatively, a motion for partial summary judgment. On March 7, 2007, the court denied the defendant's motions and granted the EEOC partial summary judgment on the issue of the EEOC discharging its statutory obligation to conciliate before filing suit. 481 F. Supp. 2d 1110 (S.D. Cal. 2007). The parties proceeded with discovery. On January 23, 2008, the defendant notified the court that it had started Chapter 11 bankruptcy proceedings. Six months later, the defendant filed another motion for summary judgment, and the EEOC responded with a motion for partial summary judgment. The court set multiple dates to hear these motions, but they were continued at the parties' request. On July 21, 2009, the parties submitted a proposed consent decree to the court. The next day, Judge Michael M. Anello approved the proposed consent decree put forth by the parties. The consent decree included monetary damages ranging from $25,000-$35,000 for each plaintiff and injunctive relief enjoining the defendant from future discrimination, harassment, or retaliation. Its effective period was two years, and there is nothing more on the docket - so presumably the matter ended in 2011.

Summary: On September 29, 2006, the Los Angeles District Office of the EEOC filed this suit in the U.S. District Court for the Southern District of California. The plaintiffs sued Hometown Buffet Inc. under for violation of Title VII of the Civil Rights Act of 1964. Specifically, the plaintiffs alleged sexual harassment and a hostile work environment. On July 22, 2009, Judge Michael M. Anello approved the proposed consent decree put forth by the parties. Its effective period was two years, and there is nothing more on the docket - so presumably the matter ended in 2011.


On September 29, 2005, the San Francisco District Office of the EEOC filed this lawsuit in the U.S. District Court for the Eastern District of California. The EEOC sued Paragary's Management Group, Paramoor, Inc., and PDK Partnership under Title VII of the Civil Rights Act of 1964, representing claimants who alleged the defendants had subjected them to a hostile work environment and disparate treatment. The EEOC sought a permanent injunction enjoining the decedent from future harassment or discrimination, and also sought backpay and monetary compensation. Specifically, the claimants alleged sexual harassment in the form of verbal and physical acts. They further alleged that the defendant had discriminated against them as Mexican females by providing different terms and conditions of employment, requiring them to do the work of non-Mexican female employees, and denying them breaks and requested leave. On April 29, 2009, U.S. District Judge Morrison C. England approved and ordered a consent decree to be in effect for three years. The consent decree required the defendant to issue an anti-harassment policy, impose a complaint procedure, use outside consultant to train all employees, and prepare reference letters for the claimants. The decree also required that the defendant pay $60,000 in damages to the claimants. There's nothing more in the docket, so presumably the matter ended in 2012.

Summary: On September 29, 2005 the San Francisco District Office of the EEOC filed this lawsuit in the U.S. District Court for the Eastern District of California. The plaintiff sued Paragary's Management Group, Paramoor, Inc., and PDK Partnership under Title VII of the Civil Rights Act of 1964. The EEOC represented claimants who alleged the defendants had subjected them to a hostile work environment and disparate treatment. On April 29, 2009 Judge Morrison C. England approved and ordered a consent decree to be in effect for three years. The decree granted permanent injunctive relief and $60,000 in monetary damages. There is nothing more in the docket, so presumably the matter ended in 2012.


In December 2005, the EEOC district office in San Francisco, California brought this action against Pizzeria Uno Lombard, Inc., a regional restaurant chain, in the U.S. District Court for the Northern District of California The EEOC alleged that the defendant violated Title VII of the Civil Rights Act of 1964 when it subjected female employees to a sexually hostile work environment. The defendant never answered the complaint, and an entry of default was entered against it on September 8th, 2006. The EEOC voluntarily dismissed the action in April 2007 before the magistrate judge's report and recommendation for judgement was entered.


On September 29, 2005, the EEOC filed suit in the U.S. District Court for the Northern District of California under Title I and Title VII against Taylor Made Digital Systems. The EEOC sought injunctive relief and damages, alleging that the defendant discriminated against one of its employees on the basis of her sex and race. Specifically, the plaintiff alleged that the defendant discriminated against the employee by refusing to allow her to return to her previous position after her pregnancy, despite the fact that she could perform all her job functions. The complaint also alleges that the defendant replaced, demoted, and eventually terminated the employee on account of her being female/pregnant and African American. The suit was filed after the employee filed an initial charge with the EEOC alleging violations of Title VII by the defendant. On December 21, 2005, the plaintiff filed an amended complaint against Rioch Corporations, a successor to the original defendant, Taylor Made Digital Systems. On October 18, 2006, the court (Judge Maxine M. Chesney) entered a consent decree. The consent decree required the defendant to pay $30,600 to the employee who brought the initial charge. The defendant also agreed to comply with Title VII, not to engage in retaliation against any employee because of the employee's opposition to discrimination, and to continue to post an anti-discrimination policy on its company intranet. Finally, the consent decree required all inquiries about the employee who filed the initial charge to be directed to a specific member of human resources, who was prohibited from referring to the present lawsuit. The consent decree terminated after one year.

Summary: In September 2005, the EEOC filed suit in the U.S. District Court for the Northern District of California under Title I and Title VII against Taylor Made Digital Systems. The EEOC sought injunctive relief and damages, alleging that the defendant discriminated against one of its employees on the basis of her sex (female/pregnant) and race (African American). In October 2006, the court (Judge Maxine M. Chesney) signed a proposed consent decree. The consent decree required the defendant to pay $30,600 to the employee who brought the initial charge. The defendant also agreed to comply with Title VII, not to engage in retaliation against any employee because of the lawsuit, and to continue to post an anti-discrimination policy on its company intranet. Finally, the consent decree required all inquiries about the employee who filed the initial charge to be directed to a specific member of human resources, who was prohibited from referring to the present lawsuit. The consent decree terminated after one year.


On December 8, 2005, six employees filed a class action complaint against their employer, Best Buy Co., Inc. under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and California Government Code § 12940 et seq. in the United States District Court for the Northern District of California. The plaintiffs, represented by private counsel, alleged gender and racial discrimination, and they sought injunctive and declaratory relief, punitive damages, back pay, and front pay. Specifically, the plaintiffs claimed that Best Buy had discriminated against women and minority individuals -- Latinos and African Americans -- on the basis of gender, race, color, and/or national origin with respect to recruitment, hiring, job assignments, transfers, promotions, compensation, allocation of weekly hours, and other terms and conditions of employment. Further, the plaintiffs alleged that Best Buy operated through a corporate culture of racial and gender stereotypes and enforced a nationwide corporate policy of preferring white male employees. On January 6, 2009, the plaintiffs filed their Third Amended Class Action Complaint against all of the defendants. Subsequently, there were many administrative tasks and declarations in support of class action certification. On June 17, 2011, the parties submitted a proposed consent decree. The consent decree awarded $200,000 to the named parties and required the defendant to implement neutral hiring, training, and promotion procedures, perform manager assessments, institute a complaint and dispute resolution process, and undergo monitoring. On August 17, 2011, the plaintiffs moved for attorney fees and reimbursement of costs and expenses in the amount of $9,999,999. The court approved both on November 9, 2011. The court retained jurisdiction to enforce the consent decree for four years. At the end of the four-year period, the monitor filed a certification of compliance on December 8, 2015, indicating the expiration of the term of the consent decree. The monitor was satisfied that Best Buy had complied with the consent decree. Best Buy had done so by, among other things, maintaining non-discrimination and anti-harassment policies and internal complaint and anti-retaliation procedures, ensuring dissemination and awareness of such policies, adopting policies to promote diversity in management positions, and improving training of employees. The case is now closed.

Summary: In 2008, six Best Buy employees filed a class action lawsuit against Best Buy alleging discrimination on the bases of race and sex. In 2011, the parties settled. The settlement agreement provided for the implementation of policies to protect employees against discrimination and monetary relief. On December 8, 2015, the monitor reported that Best Buy had complied with the terms of the consent decree and it thus expired.


On December 29, 2004, employees of El Paso Corporation filed a lawsuit under ERISA and the ADEA against their employer in the United States District Court for the District of Colorado. The plaintiffs, represented by private counsel, asked the court for declaratory, injunctive, and compensatory relief, claiming that changes made to their pension plans violated federal law. Specifically, the plaintiffs claimed that their pension plans were negatively impacted when El Paso Corporation changed to a cash balance formula for determining pension benefits. On March 22, 2007, the court (Judge Walker Miller) dismissed one of the plaintiffs' claims under ERISA (Claim III) but denied the defendant's motion to dismiss on all other claims. The Court found that the statute of limitations did not bar the remaining claims from proceeding. 2007 WL 891378 (D. Colo. Mar. 22, 2007). On March 19, 2008, the court granted the defendant's motion for judgments on the pleadings, and granted in part and denied in part Plaintiffs' motion for class certification. The court dismissed Claims II and IV; as a result, only Claims I and V remained. Claim I alleged that the "wear-away period" in the pension plan violated the ADEA. Claim V alleged that the Summary Plan Description violated ERISA section 102 (29 U.S.C. § 1022). The court granted the plaintiffs' motion for class certification and conditionally approved the ADEA collective action on the condition that they resubmit a class definition in accord with the Court's dismissal of some of their claims. 2008 WL 762456 (D. Colo. Mar. 19, 2008). On January 21, 2009, the court denied the plaintiffs' motion to reconsider the dismissal of Claims II and IV. The court also granted the defendant's motions for summary judgment on the ADEA claim, holding that it was time-barred because the conversion to a cash balance formula was a "discrete act" under Ledbetter v. Goodyear. Further, the court dismissed the plaintiffs' remaining ERISA (alleging inadequate notice in the Summary Plan Description) claim because there was no evidence that the plaintiffs relied on the Summary Plan Description or that they suffered prejudice because of it. After this decision, Plaintiffs had no remaining claims. 2009 WL 151532 (D. Colo. Jan. 21, 2009). The court granted plaintiffs' motion to alter or amend judgment on August 28, 2009. As a result of the Ledbetter Legislation, the court decided that the plaintiffs' ADEA claim (Claim I) was not time-barred. 2009 WL 2766718 (D. Colo. Aug. 28, 2009). On September 17, 2009, the defendants filed a renewed motion for summary judgment on the merits of ADEA claim. On July 26, 2010, the court found for the defendants and granted summary judgment, finding that the pension transition did not violate ADEA. On August 6, 2010, the court entered its judgment against the plaintiffs and in favor of defendants on claim 1. On August 19, 2010, the defendants filed a motion to bifurcate attorneys' fees. On August 25, the court granted the motion upon the condition that their motion included a good faith estimate of the dollar amount of their claim. On August 20, 2010, the defendants submitted a motion seeking $141,423.03 in costs; approximately $98,000.00 of that amount was attributable to “Mercer electronic discovery ordered by Court.” After a hearing, the court awarded the defendants $5220.25, representing $4,086.35 for the costs of transcripts, witness fees of $1,021.00, and copying charges of $120.90. On August 24, 2010, the plaintiffs filed an appeal to the United States Court of Appeals for the Tenth Circuit. On August 27, 2010, the defendants filed a motion for attorneys' fees under ERISA for fees incurred in defending against the plaintiffs’ ERISA claims up until the January 21, 2009 order dismissing the plaintiffs’ final ERISA claim. The plaintiffs opposed the motion, arguing that attorneys’ fees should not be awarded. On March 30, 2011, the court denied the defendant's motion for attorneys' fees. On June 9, 2011, the court granted in part and denied in part the defendant's motion for taxation of costs. The court increased its award from $5,220.25 to $7,995.90, but denied the other motions. On August 11, 2011, the Court of Appeals affirmed the district court's decision. In its opinion, the court explained that “wear-away” periods were caused by giving a transition period that employers were not obligated by law to give. The court refused to punish the defendants for giving a benefit it was not obligated to give in the first place. Second, the court recognized that the cash balance benefit continued to grow equally for everyone, irrespective of the age of the employee. Finally, the court noted that older workers had the option of choosing the “frozen” final average pay benefit rather than the cash balance benefit, if any employee found that to be more valuable. The court also made clear that when employers make major changes to their pension plans they must give notice of those changes to employees. The court analyzed and approved the notices that the defendants sent out to its employees, making specific and detailed findings regarding what employers must include in Summary Plan Descriptions – and what they need not include – when changes are made to pension plans. On December 22, 2011, the plaintiffs filed Petition for Writ of Certiorari, but it was denied on February 28, 2012. This case is now closed.

Summary: This case was brought by employees of El Paso Corporation against their employer alleging violations of ERISA and the ADEA as a result of the conversion of their pension plans to a cash balance formula. However, the Tenth Circuit ruled that the defendant’s conversion to a cash balance plan was legal, as were the means the company utilized to transition to the new pension plan.


On September 29, 2011, the Equal Employment Opportunity Commission ("EEOC") brought this lawsuit against Beverage Distributors Company, LLC ("BDC") on behalf of a visually impaired company employee in the U.S. District Court for the District of Colorado under the Americans with Disabilities Act of 1990 ("ADA") and Title I of the Civil Rights Act of 1991. The EEOC claimed that BDC discriminated against the employee when it conditioned his employment on the results of a medical exam and subsequently refused to hire him as a night warehouse loader upon learning that he had a disability. The EEOC asked the Court for a permanent injunction preventing BDC from discriminating on the basis of disability, reinstatement for the employee, compensatory and punitive damages, and back pay. The employee has been legally blind since birth. He began working for BDC in 2003 as a driver's helper and performed well in that role. In early 2008, BDC informed him of its decision to eliminate the helper position and use contract labor to do the job instead. The employee was then offered a position as a night warehouse loader, but after the medical exam, the company rescinded the offer because it believed he could not drive a forklift safely, even though operating a forklift is not a job entry-level warehouse loaders perform. BDC also failed to engage in the ADA's required interactive process to determine whether it was possible to accommodate the employee in performing the job safely. BDC moved for summary judgment and invoked the ADA's "direct-threat" defense, contending that the employee could not perform the essential functions of the warehouse loader position and therefore would pose a "direct threat" to others in the workplace. The District Court (Judge Christine Arguello) denied the motion on December 7, 2012, because there were issues of material fact about whether BDC's decision was reasonable. EEOC v. Beverage Distribs. Co., No. 11-cv-02557-CMA-CBS, 2012 WL 6094152 (D. Colo. Dec. 7, 2012). The EEOC also moved for summary judgment, and it was partially granted and partially denied. EEOC v. Beverage Distribs. Co., No. 11-cv-02557-CMA-CBS, 2012 WL 6547782 (D. Colo. Dec. 14, 2012). Specifically, the District Court (Judge Arguello) rejected BDC's affirmative defense that the EEOC failed to conciliate in good faith before bringing suit. It also rejected the affirmative defenses of waiver, equitable estoppel, and unclean hands. The Court did, however, rule in favor of BDC in sustaining the affirmative defense of laches. It held that there remain issues of material fact about whether the three-year delay between the EEOC's investigation and its lawsuit was reasonable. Finally, the Court struck BDC's affirmative defense under which the company claimed that its due process rights would be violated if the Court did not bifurcate the trial to consider separately the EEOC's request for punitive damages. After pointing out that bifurcation is not an affirmative defense because it does not affect whether the defendant should be held liable, the Court declined to rule on the issue until a later date. Following a four-day trial in April, a jury agreed with the EEOC that BDC intentionally violated the ADA when it withdrew its job offer to the employee because of his impaired vision. The jury initially awarded $132,347 in back pay but found that his damages should be reduced by $102,803 because he could have mitigated those damages by finding a comparable position. 2013 WL 3829474. This is confirmed by the final judgment on April 15, 2013, and the amended final judgment on the same day. On December 9, 2013, however, the District Court (Judge Arguello) vacated the jury's finding that the employee could have mitigated his damages, holding that BDC failed to prove there were any available comparable jobs that the employee could have performed. EEOC v. Beverage Distribs. Co., No. 11-cv-02557-CMA-CBS, 2013 WL 6458735 (D. Colo. Dec. 9, 2013). In addition, the Court ordered BDC to hire the employee as a night warehouse loader with the same seniority that he would have had if BDC had not withdrawn the job offer due to his eyesight. The Court also indicated that, pending a hearing on the tax consequences of the award, the employee might be entitled to a tax penalty offset because of the lump-sum nature of the damages. Finally, the Court required BDC to hire an outside consultant to provide training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. BDC was required to report its compliance with this order to the Court within six months. BDC appealed this decision to the U.S. Court of Appeals for the Tenth Circuit and subsequently asked the District Court to stay the requirement that it hire an outside consultant pending the outcome of the appeal. On November 1, 2014, the District Court (Judge Arguello) denied BDC's request, holding that it failed to meet its burden by showing that a stay was justified. EEOC v. Beverage Distribs. Co., No. 11-cv-02557-CMA-CBS, 2014 WL 5591430 (D. Colo. Nov. 1, 2014). On March 16, 2015, the Tenth Circuit (Judges Timothy M. Tymkovich, Jerome A. Holmes, and Robert E. Bacharach) reversed the district court, holding that the direct-threat jury instruction inaccurately conveyed the standard and therefore constituted reversible error. EEOC v. Beverage Distribs. Co., 780 F.3d 1018 (10th Cir. 2015). More specifically, the Tenth Circuit held that the instruction erroneously required BDC to prove that the employee posed a direct threat when the company in fact had to prove only that it reasonably believed the job would pose such a threat. On the tax issue, however, the Tenth Circuit rejected BDC's argument that the district court erred in awarding a tax offset. That decision fell within the district court's discretion, and the employee may be entitled to an offset if the EEOC wins on retrial. On April 30, 2015, the EEOC filed a petition for panel rehearing and/or rehearing en banc. The EEOC argued that the Court’s holding was inconsistent with its own precedent on evaluating jury instructions, as well as its past interpretations of the ADA. Specifically, it highlighted past 10th Circuit decisions that required proof that an employee posed a direct threat, not that the company reasonably believed as much. The 10th Circuit denied the petition for rehearing on May 27, 2015. On December 4, 2015, Judge Arguello approved a consent decree between the parties. 2015 WL 10097367. Judgment was entered against BDC for $160,000; $80,000 was for total back pay for the employee, and $80,000 was for compensatory damages. BDC was required to provide a letter of recommendation for the employee. In return, BDC was able to expunge the case and all related allegations of discrimination from its records. BDC was ordered to not engage in discrimination of the basis of disability, nor retaliate against employees who opposed an action because of its violation of the ADA. In consultation with an outside consultant, BDC was ordered to develop an anti-discrimination policy and reasonable accommodations guide, and to update its EEOC policy to be consistent with the ADA. It agreed to provide training for managers, human resources personnel, and employees, and to maintain detailed records and provide written reports to the EEOC for six months. Each party was responsible for its own attorneys’ fees and costs. The decree had a two-year duration, and the matter appears to be closed as of March 2018.

Summary: On September 29, 2011, the Equal Employment Opportunity Commission ("EEOC") brought this lawsuit against Beverage Distributors Company, LLC ("BDC") on behalf of a visually impaired company employee in the U.S. District Court for the District of Colorado under the Americans with Disabilities Act of 1990 ("ADA"). The EEOC claimed that BDC discriminated against the employee in violation of the ADA when it conditioned his employment on the results of a medical exam and subsequently refused to hire him as a night warehouse loader upon learning that he had a disability. The jury initially awarded the employee $132,347 in back pay, but it found that his damages should be reduced by $102,803 because he could have mitigated those damages by finding a comparable position. On December 9, 2013, the District Court vacated these findings and awarded injunctive relief, only to be reversed by the U.S. Court of Appeals for the Tenth Circuit because of erroneous jury instructions. The 10th Circuit denied the EEOC's petition for rehearing in May 2015. The parties entered into a consent decree in December 2015, and the matter appears to be closed.