Dear Rusty,

I realize that my jibber-jabber in the last few posts might not make sense to anyone who hasn’t spent any time in in RAW SCHOOL. Quick overview – and I realize you’re a pretty informed layperson, so apologies for that which is a recap. Oh also this ignores like decades and decades of theories and criticisms.

Tort: “Civil wrong not arising from contract.”  Whatever. It’s basically what we think of when we thing of lawsuits. Like a slip and fall – there’s probably no statute law about how often you have to de-ice your steps such that you could be prosecuted under it. And you certainly don’t have an explicit contract with say, the Fuller Brush Man that you will keep your steps de-iced for his personal safety.

Negligence: But upon bumping his head, the Fuller Brush Man may say you, the Reasonable Man, should have known that guests and peddlers alike would be using those steps, and would fall and injure themselves if you failed to de-ice. You were negligent. But negligence isn’t enough for some torts, in particular harm-to-reputation type stuff, for those you need either intent (which means like what it sounds like it means) or

Recklessness: There are all sorts of doctrinal definitions of exactly how unreasonable a Reasonable Man you have to be to be reckless. Basically = hella negligent.

Ok. So we got the tort part down. We understand where our defamation suit might come from, ditto our tortious interference suit. But you were also wondering about the USDA as plaintiff, and I started being like oh, EEOC NLRB Title VII yadda.

Basically, we are an “administrative state” – federal agencies with at least theoretical expertise promulgate and enforce regulations in their ones of competence. So, for example, when you, permitless, open up your bar Colt 45 and Colt 45s, you may find yourself in trouble with the bureau of Alcohol, Tobacco and Firearms, which has its own agents who can arrest you. A court’s going to give a regulatory agency a lot of deference.

ANYWAY, a lot of employment law actually falls under the scope of various agencies. The NLRB  (National Labor Relations Board) does union stuff and also Sarbanes-Oxley whistleblower protections (has this changed with SOX changes)? The office of Equal Employment Opportunity handles workplace discrimination. What it boils down to is that when you have a claim that falls to one of these agencies, you have to bring it before them before you can even think about appealing the result to a federal court. And the federal court may well look at the agency determination and be like, yeah, seems good.

Also, in the case of the EEOC least, you have to demonstrate that you expended all internal procedures before bringing the claim to the EEOC. They’ll look at your claim, and either take it up themselves, or in all likelihood, find insufficient wrongdoing/evidence thereof, and issue you a “right to sue” letter. Which means you can bring your case in Federal court. But unless you have a really interesting argument under fed law as distinct from agency law, I mean, you’re kind of hobbled by the fact that the EEOC didn’t think it was worth looking into.

Now I don’t think Sherrod has a tenable discrimination claim under the EEOC (the NLRB might be another matter? But that would likely be her union bringing the claim if she were in one.)  Could she say the USDA somehow violated its own guidelines? And what sort of ajudication powers does the USDA have?

Anyway, does any of this make sense to you and explain why I was like, USDA suit UNLIKELY?

I get my Westlaw access back tomorrow.



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