Extraterritoriality of Title VII and forum non conveniens, part 4: the federal courts’ duty to exercise jurisdiction.

One more, and maybe the final in the recent blast on the topic.

To review, I have been talking about the big law firm and the assertion they put forth, earlier this year, which basically guts discrimination protection for Americans working abroad for American-controlled companies. They said that, if a matter happens abroad, then it is a question that should be adjudicated in that foreign country. (This is the forum non conveniens (FNC) argument.) I have been asking, if Congress passed a statute that specifically said it applied to what amount to American actors abroad (not the stage kind), then isn’t forum non conveniens a frivolous argument?

What duty does a U.S. federal court have to hear cases under federal law? Well, this bit of dicta from a 1976 U.S. Supreme Court case says a lot:

Federal courts have a “virtually unflagging obligation … to exercise the jurisdiction given them.”

Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), as quoted in Sapient Corp. v. Singh, 149 F. Supp. 2d 55, 58 (S.D.N.Y. 2001).

So, what does “virtually unflagging obligation” mean, in the language of the mid 1970’s?

I suppose it sure as hell doesn’t mean let the defending party make every unreasonable argument for not doing what the law says. I see the root word “virtual” in there, which nowadays takes on the feeling of “not real”, as in the virtual world–i.e. the internet or some other computer-constructed simulation. But back in the day (and I was around in those days!), virtual meant, almost exlcusively, “near total”. To put it another way, virtual meant virtually always or absolutely.

Unflagging means not losing power or strength.

This means that, barring some extraordinary circumstance, the federal court has a near absolute obligation to hear a case for which Congress gave it jurisdiction. The jurisdiction, when given, is there and does not go away or become reduced.

Now, let’s review the behavior of the defendant.

1) When made aware of a situation where a Title VII administrative charge may be brought, ignores the communication;

2) When given notice of an administrative charge by a federal commission, sits on it for 90 days and then “responds” by saying it doesn’t feel that the Equal Employment Opportunity Commission has jurisdiction to investigate the charge;

3) Bickers with the Commission about jurisdiction for another 15 months;

4) Finally agrees to submit a substantive response, 18 months after first being given notice. But needs another three months to respond;

5) Needs several weeks after that to produce the written response;

6) Produces a written response that provides no additional information than could have been produced almost two years beforehand.

Mind you, all of the above was even before a matter became one for the federal court. This is, so to speak, “merely” screwing around with a government agency.

Up to the point of filing a case, the only unflagging thing the defendant had been doing was jerking around with something that should have been taken as serious. With that preface, it should be no surprise that the same company would argue FNC on a claim where Congress already said there was extraterritoriality.

It will be interesting to see if, and how, the “FNC on Extraterritoriality” defense develops. I have yet to find a case on point (probably because the argument is frivolous). But these days, when corporations go from being legal fictions to being considered like actual persons, you never know. Still, how does a Japanese court get jurisdiction and how does a cause of action arise on an American corporation that wasn’t the employer there?

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