Tag Archives: United States Supreme Court

The Voting Rights Act

The Supreme Court ruled on Northwest Austin Municipal Utility District No. 1 NAMUDNO v. Holder, No. 08-322 (2013), answering the question of the whether a district (not the state) could seek the bailout provision under the Voting Rights Act.

The decision of the Supreme Court is important here because it did not rule on the issue of whether the Voting Rights Act was constitutional.

Instead, the Supreme Court ruled that the district could use the “bailout” provision under the Voting Rights Act, even if the state could not.  In holding this, the Supreme Court explained that the district fell under the definition of a “State of political subdivision,” and thereby could use the “bailout” provision.

Generally, the Voting Rights Act requires certain states to get pre-clearance before making any changes to elections.  One of these states includes Texas.  However, there is a provision (“bailout”) that states that the state can seek a declaratory judgment from a three-judge panel District Court in Washington, D.C.  42 USC 1973(b)(a)(1), 1973c(a).  The bailout provision requires:

  • The state has not used any forbidden voting test for the last 10 years;
  • The state has not been subject to a valid objection under the Voting Rights Act section 5;
  • The state has not been found liable for other rights act violations; and
  • The state has engaged in constructive efforts to eliminate intimidation and harassment of voters.

The Voting Rights Act only authorizes a bailout suit by a State or political subdivision.  42 USC 19873b(a)(1)(A).

Here, the government argued that under the statutory definition of the bailout provision, a district could not seek a bailout provision.  The Act provided that a “‘political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” Section 14(c)(2).  The government argued that because the district was not a county or parish and did not conduct its own voter registration, the district was not covered under the Act.

However, the Supreme Court disagreed.  Citing previous Supreme Court cases, the Supreme Court stated the definition of a “political subdivision” must be broad and not limited to the statutory definition.  The Supreme Court explained,

Our decisions have already established that the statutory definition in [section] 14(c)(2) does not apply to every use of the term “political subdivision” in the Act.  We have, for example, concluded that the definition does not apply to the pre clearance obligation of [section] 5.

There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of [section] 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in [section] 14(c)(2) of the Act… [O]nce a State has been designed for coverage, [section] 14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of [section] 5.

(markings in original).  Taking a broad approach, the Supreme Court ruled that a district was a political subdivision.

In addition, the Supreme Court noted that the 1982 amendments provided that even if the state could not bailout, a political subdivision might be able to assuming it met the bailout requirements.

via We gave you a chance: Today’s Shelby County decision in Plain English : SCOTUSblog.

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Donning and Doffing: paying for changing “work clothes”?

The U.S. Supreme Court agreed Tuesday to decide the Donning and Doffing issue as, how does Section 203(o) of the Fair Labor Standards Act (“FLSA”) define “changing clothes.”

In Sandifer v. U.S. Steel, a class of 800 members filed a collective action against U.S. Steel Corp.  The issue on the 7th Circuit Court was whether workers deserved overtime pay for the time spent changing into work clothes and walking from locker rooms to their work site.

The FLSA ordinarily requires that workers be paid at least the federal minimum wage for all hours worked, and time and a half for hours worked over 40 hours in a week.  However, Section 203(o) provides that any time spent changing “clothes” at the beginning or end of each workday may be excluded from working time by the express terms of, or custom or practice under, a bona fide collective bargaining agreement.  In Sandifer, the collective bargaining agreement did not require compensation for changing time.

In this collective action, the class argued that Section 203(o) exclusion was inapplicable because their work attire did not constitute “clothes,” but rather “safety equipment.”  The alleged work clothes in this case included: flame-retardant pants and jacket, work gloves, metatarsal boots, hard hats, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin, and the neck).

The district court held that the FLSA did not require compensation for clothes-changing time.  The 7th Circuit Court of Appeals affirmed.  The 7th Circuit explained that the articles seems to be clothing.  The 7th Circuit stated that the articles of clothing were both, clothing and personal protective equipment,

Protection – against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting – is a common function of clothing, and an especially common function of work clothes worn by factory workers.  It would be absurd to exclude all work clothes that have a protective function… and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.  Remember that the section covers not only clothes-changing time but also washing-up time, and workers who wear work clothes for self-protection in a dangerous or noxious work environment are far more likely to require significant time for washing up after work than a waiter.”

(emphasis added).

In addition, the 7th Circuit relied heavily on the fact that the collective bargaining agreement did not imply that workers were to be compensated for the time spent changing into work clothes, and washing up and changing back.

via Courthouse News Service.

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Filed under Appellate, civil rights, courts, employment, labor, legal decision, Supreme Court, union, wage

DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

  • The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
  • Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

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Sup. Ct. will hear retaliation mixed motives case

On Friday, the Supreme Court granted certiorari in the University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases.

The question the Supreme Court will address is:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

(emphasis added).

Plainly, the Supreme Court will opine about who has the burden of proof (who has to prove that retaliation was/or-is-not improper).

  • If the worker has to prove that the retaliation was improper, the worker has to show that the employer retaliated only due to the improper motive/reason (i.e. filing a lawsuit, making a complaint with HR, having a disability, due to race, gender, religion, etc.).
  • If the employer has to prove that the tangible employment action (i.e. discipline, firing, transfer, demotion) was not retaliation, the employer has to show that the improper motive/reason was part of many reasons.

The SCOTUSblog file with links to documents is here.

via Workplace Prof Blog: SCOTUS grants cert in retaliation mixed motives case.

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Wal-Mart Class Action: class not narrowed

I bring to you this legal decision in a sex discrimination class action against Wal-Mart because it provides an example of a class that was not narrowed by the Court.  This is the Dukes case that went up to the Supreme Court to discuss the issue of commonality.  This decision can be found here.

In a 2001 federal complaint led by Betty Dukes, a putative class claimed that Wal-Mart Stores received paid women less and offered them fewer promotions than it offered men in comparable positions.

Though a San Francisco federal judge initially certified a class that would cover estimated 1.5 million women, making it the largest civil rights case in U.S. history, the Supreme Court disbanded that class in 2011 on the basis of lacking commonality. On remand, the plaintiffs filed a fourth amended complaint that seeks to certify a narrower class than that rejected by the high court.

The Bentonville, Ark.-based company responded with a motion to strike the class allegations. It claims that the statute of limitations bars the claims, and that the newly proposed class still fails to meet the commonality requirement.

Denying that motion, the Northern District of California set a deadline of Jan. 11, 2013, for the class-certification motion.  Undeterred, Wal-Mart sought leave to file an interim appeal with the 9th Circuit.

Wal-Mart argued that the Dukes Supreme Court decision should be interpreted as a total rejection of plaintiffs’ theories.  The District Court disagreed.  The District Court held that the Dukes Supreme Court decision rested on plaintiffs’ “inadequacy of their proof.”

The District Court explained:

The Supreme Court’s decision foreclosed claims that delegated discretion -alone- is sufficient to state a common question for purposes of Rule 23.  It does not follow that any time a plaintiff alleges that a company has a policy involving some amount of delegated discretion, the plaintiff is precluded from showing a classwide pattern or practice of discrimination or a common mode of exercising delegate discretion susceptible to classwide relief.  That is why the Supreme Court reached the question whether the plaintiffs had evidence on those points sufficient to establish a common question under Rule 23.

In his conclusion, Judge Breyer denied the interlocutory appeal “on the grounds that (1) immediate appeal would not, at this time, materially advance the ultimate termination of the litigation in light of the impending certification motion, and (2) no substantial grounds for difference of opinion exist regarding the commonality issue.”

via Courthouse News Service.

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Who is a “supervisor” in a sexual harassment case? Supreme Court will decide

On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit.  The issue in this case centers around the word “supervisor.”

In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor.  In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.

The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.

What’s so interesting about this case, you may ask?  The fact that courts all throughout the US are split on this definition.  Will this definition be broadly construed, narrowly construed?  If so, what would the consequences be of this decision.  Will sexual harassment claims be significantly reduced?  Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?

As it is, civil rights have traditionally been limited.  The purpose of Title VII is to be broadly construed in order to provide civil rights protection.  The purpose of Title VII appears to be eaten away slowly.  It really does remind me of ADA before Congress enacted the ADAA.

In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act.  Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant.  When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.

Is it time for Congress to act once again?

via Vance v. Ball State University : SCOTUSblog.

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Sup. Ct argument for Oct, Nov, and Dec.

I am listing the 3 released calendars for this year.  If you are interested in a specific case, please let me know and I will make sure to follow it closely and report on it.

October calendar, day by day:

Mon., Oct. 1

10-1491 — Kiobel v. Royal Dutch Petroleum — application of Alien Tort Statute to human rights abuses on foreign soil; if the ATS is found to extend beyond the U.S., the issue will be whether aliens may sue corporations in U.S. courts for such overseas abuses

11-626 — Lozman v. City of Riviera Beach — definition of “vessel” for maritime law as applied to a floating structure not capable of navigation

Tues., Oct. 2:

11-184 — Kloeckner v. Solis (Labor Secretary) – appeal rights of federal government worker claiming discrimination in the workplace

11-192 — U.S. v. Bormes — liability of federal government for illegal disclosure of private credit information about a private citizen

Wed., Oct 3:

11-465 — Johnson v. Williams — federal habeas court duty to defer to state court ruling on a federal constitutional issue, if the state court has ruled without mentioning the issue (grant limited to Question 1)

11-597 — Arkansas Game & Fish Commission v. U.S. — government liability for damage from flooding following release of water from a federal dam; “takings” issue (Justice Elena Kagan is recused)

Tues., Oct. 9:

11-218 — Tibbals v. Carter — delay of habeas case until mental competency is regained

11-930 — Ryan v. Gonzales — delay of habeas case until mental competency is regained (The issue is the same, but the cases are not consolidated for argument and decision.)

Wed., Oct. 10:

11-702 — Moncrieffe v. Holder — state law conviction for possessing small amount of marijuana as a basis for deportation

11-345 — Fisher v. University of Texas — constitutionality of using race as a factor in admissions to public colleges and universities (Justice Kagan is recused)

 

November calendar, day by day:

Mon., Oct. 29:

11-1029 — Clapper v. Amnesty International USA — right to sue to challenge constitutionality of global terrorism wiretapping program

11-697 — Kirtsaeng v. John Wiley & Sons, Inc. — right to bring into the U.S. for resale a copyrighted item purchased abroad

Tues., Oct. 30:

11-820 — Chaidez v. U.S. — retroactivity of Padilla v. Kentucky on required legal advice to immigrants facing deportation after committing a crime

11-770 — Bailey v. U.S. — whether, if police have a warrant to search a home, they may detain the suspect elsewhere while they do the search

Wed., Oct. 31:

11-564 — Florida v. Jardines — scope of Fourth Amendment application to police use of a drug-sniffing dog on the exterior of a private home (grant limited to Question 1)

11-817 — Florida v. Harris — drug-sniffing dog’s “alert” as probable cause to search a car or truck

Mon., Nov. 5:

11-864 — Comcast v. Behrend — court power to allow a class-action lawsuit if the possibility of class-wide damages award is in doubt (grant limited to question as rewritten by the Court)

11-1085 – Amgen Inc. v. Connecticut Retirement Plans — proof needed by investors in order to take advantage of a short-cut method of pursuing a securities fraud claim by a class-action lawsuit

Tues., Nov. 6 (this is election day, but the Court will hold arguments as usual):

11-8976 — Smith v. U.S. — does the prosecution or defense have the burden of proving to a jury whether an accused withdrew from a conspiracy and thus could not be prosecuted for a role in the plot

11-1327 — Evans v. Michigan — does a judge’s directed verdict of acquittal in mid-trial, based on a legal error, bar a new trial because of double jeopardy

Wed., Nov. 7:

11-982 — Already LLC v. Nike, Inc. — scope of federal judge’s authority to rule on the validity of a federally registered trademark

11 -1175 — Marx v. General Revenue Corp. — right of debt collector under federal law to recover its court costs if it wins a lawsuit against it over its collection practices (grant limited to Question 1)

 

December calendar, day by day:

Mon., Nov. 16

11-1160 – FTC v. Phoebe Putney Health Sys, – whether Georgia clearly articulated and affirmatively expressed a state policy to displace competition in the market for hospital services, and whether the state policy would be sufficient to validate the anticompetitive conduct in this case

11-556 – Vance v. Ball State Univ. – whether the Faragher/Ellerth supervisor liability rule applies to (1) harassment by those whom the employer vests with authority to direct and oversee their victim’s fail work, or (ii) is limited to those harassers who have the power to hire, fire, demote, promote, transfer, or discipline their victim

Tues., Nov. 27

11-1285 – US Airways, Inc. v. McCutchen – Whether ERISA 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even when the plan’s terms give it an absolute right to full reimbursement

Wed., Nov. 28

11-9307 – Henderson v. United States – whether the appellate court may correct a trial court’s plain error when the issue is unsettled at trial, but clarified when the appeal is pending.

Mon., Dec. 3

11-1059 – Genesis Healthcare Corp. v. Symczyk – whether a case becomes moot when the lone plaintiff receives an offer from defendants to satisfy all of the plaintiff’s claims

11-338 – Decker v. Nw. Envt’l Defense Ctr. – Whether a citizen may bypass judicial review of an NPDES permitting rule under 33 USC 1369 and instead challenges the validity of the rule in a citizen suit to enforce the CWA; and whether stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules

11-347 – Georgia-Pacific W. v. Nw. Env’l Ctr. – Whether the government should defer to EPA’s interpretation that stormwater discharges are not industrial stormwaters subject to NPDES

Tues., Dec. 4

11-1231 – Sebelius Sec. of H&Hs v. Auburn Regional Medical – whether the 180 statute of limitations for filing an appeal with the Provider Reimbursement Review Board is subject to equitable tolling

11-460 – Los Angeles Cty. Floor Control v. Natural Resources – whether there is a “discharge” from an “outfall” under the Clean Water Act when there is a transfer of water from a river to an engineered improvement (second question only)

Wed., Dec. 5

11-1347 – Chafin v. Chafin – Whether an appeal becomes moot when the child is returned to his/her country of habitual residence under the Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention

 

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