Friday, January 13, 2012

Observations Regarding the Latest Supreme Court Decisions

There has been a spate of opinion activity from the Court since the holidays.  There follows some observations regarding some of these opinions and a case the Court will consider at its conference today.  

1.     The “Ministerial Exception” Case 

Hosanna-Tabor Lutheran Church and Sch. v. EEOC, No. 10-553, 2012 U.S. LEXIS 578 (S.Ct. Jan. 11, 2012) is the much-discussed unanimous opinion adopting a “ministerial exception” to the anti-discrimination laws.  Rather than repeat here what has been said in many other blogs about the opinion, I note that the Chief Justice, in the final footnote of his opinion states: “District Courts have power to consider [discrimination] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”  Id. at *40-*41 n.4.  

2.      Is the Court Fixated on Causation?

In a non-employment case issued Wednesday, January 11, 2012, the Court, in Pac. Operators Offshore v. Valladolid,  No. 10-507, 2012 U.S. LEXIS 577 (S.Ct. Jan. 11, 2012), , interpreting a section of the Outer Continental Shelf Lands Act, Justices Scalia and Thomas resumed their debate over the appropriate articulation of “but-for” causation.  As this blog has noted in the past, Justice Thomas appears to have a more “liberal” view on the subject; whereas Justice Scalia seems steeped in the mire of traditional tort law debates about proximate cause and cause-in-fact.  In the Court’s RICO causation jurisprudence, this debate between the two Justices first reared its head.  See ANZA v. Ideal Steel Supply Corp., 547 U.S. 451 (2006).

In Pac. Operators Offshore v. Valladolid, the Court was addressing the statutory phrase “resulting from”.  Justice Thomas rejected an interpretation from the Third Circuit in Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805 (3d Cir. 1988), which had adopted a version of “but-for” causation.  Rather than embracing “but-for” causation, Justice Thomas articulated a “substantial nexus” test.  Justice Scalia, in a concurring opinion, criticized Justice Thomas’ test and stated that the standard used in negligence cases for proximate cause was the “substantial factor” test.  

One can but wonder whether this rather dry debate will someday be of meaningful significance to practitioners.  Nonetheless, it provides some insights into the Court’s thinking on causation issues, and such issues abound in employment cases, particularly after Gross. 

3.      When is Jurisdiction Jurisdictional?

In another non-employment case, the Court’s majority provided practitioners with some assistance in determining which requirements are jurisdictional in the sense that if one fails to fulfill the requirement, the case may be dismissed at any time.  And, the Court provided some significant guidance as to what are not jurisdictional requirements in that sense, but rather “non-jurisdictional claim-processing rules”.  In Gonzalez v. Thaler, No. 10-895, 2012 U.S. LEXIS 574 (S.Ct. Jan. 10, 2012) an Anti-Terrorism and Effective Death Penalty Act case, Justice Sotomayor, writing for the majority, stated that the “Court has endeavored in recent years to bring some discipline to the use of the term jurisdictional” and to make a “stricter distinction between truly jurisdictional rules” and “non-jurisdictional claim-processing rules.”  Justice Sotomayor proceeded to paint a “clear statement” from the legislature rule as a potential bright line in such disputes.  

Justice Scalia, in a dissent worth reading if only for his colorful rhetoric, mocks the majority’s assertion that the Court has sought to “bring some discipline to the use of the term jurisdictional,” stating that “[i]f that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction.”  Justice Scalia goes on to state: “[w]hat began as an effort to bring some discipline to the use of the term jurisdictional…shows signs of becoming a libertine, liberating romp through our established jurisprudence.”  And then, in a quite obvious swipe at Justice Breyer, whose new book Making Democracy Work, a Judge’s View, advocates a purposivist theory of statutory interpretation, Justice Scalia, in a footnote, states that “[t]he Court’s free-wheeling purposivism defies textual analysis.”  

4.      Arbitration Redux

On Tuesday, the Supreme Court handed down its opinion in CompuCredit Corp. v. Greenwood, No. 10-948, 2012 U.S. LEXIS 575 (S.Ct. Jan. 10, 2012), in which Justice Scalia wrote the opinion for an 8 Justice majority.  In CompuCredit, the Court reversed, yet again, the Ninth Circuit in yet another pre-dispute arbitration agreement case.  Here, the case involved arbitration of claims under the Credit Repair Organization Act, an act which contains a provision barring waiver of the cause of action.  That provision is probably the only difference between the statute at issue in this case and the statutes at issue in Gilmer (ADEA), McMahon (RICO), or Mitsubishi Motors (Clayton Act).  The majority, speaking through Justice Scalia, had no difficulty, despite the provision barring a waiver, in finding that claims under this statute may be subject to a pre-dispute arbitration agreement.  Justice Scalia’s answer to the waiver bar was stated as follows: “[I]f a cause-of-action provision mentioning judicial enforcement does not create a right to initial judicial enforcement, the waiver of initial judicial enforcement is not the waiver of a ‘right of the consumer’” sentences like the foregoing can only give all of us lawyers a bad name.  I think it is nothing but circular logic, which I would have thought was anathema to Justice Scalia.  

Justice Ginsburg wrote a dissent, in which she recognizes that the Federal Arbitration Act, “standing alone,” favors the enforcement of arbitration agreements, but argued that no “unmistakably clear” statement by the legislature is necessary to proscribe the arbitration clause that CompuCredit sought to enforce.  

Justice Sotomayor, joined by Justice Kagan, wrote a concurring opinion in which the two found that the statutory debate between the Justice Scalia majority and Justice Ginsburg in dissent was a draw, articulated as being “in equipoise.”  As the arguments were equally compelling, Justice Sotomayor justified joining the majority on the ground that “opponents of arbitration…bear the burden of showing that Congress disallowed arbitration.”  

5.      No Bivens Remedy Implied Where State Tort Law Authorizes Adequate Alternative Damages

In Minneci v. Pollard, No. 10-1104, 2012 U.S. LEXIS 573 (S.Ct. Jan. 10, 2012), on Tuesday, the Supreme Court, Justice Breyer writing for an 8 Justice majority, held that there was no need to extend Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) to an Eighth Amendment-based damages action against employees of a privately operated federal prison as state tort law authorizes adequate alternative damages actions that will provide both significant deterrence and compensation.  The Court refrained from providing a new and free-standing remedy in damages, even though state tort law may sometimes prove less generous than would a Bivens action, holding that the state remedy “need not be perfectly congruent.”  The Court further noted that “Bivens actions, even if more generous to plaintiffs in some respects, may be less generous in others.”  In general, the Court found that state tort law remedies provide “roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations.”  Finally, the Court stated that “we can decide whether to imply a Bivens action in a case where the Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises.  The possibility of such a different future case does not provide sufficient grounds for reaching a different conclusion here.”  

Justice Scalia, joined by Justice Thomas, wrote a separate, concurring, opinion in which they stated that the Court had abandoned the power to create implied claims in the statutory field, citing Alexander v. Sandoval, 532 U.S. 275, 287 (2001), and then stating that the Court should do the same in the constitutional field, “where (presumably) an imagined ‘implication’ cannot even be repudiated by Congress.”  Justice Scalia refers to Bivens, as he did in Corr. Servs. Corp. v. Melsko, 534 U.S. 61, 75 (2001) (Scalia, J., Concurring), as “a relic of the heady days in which this Court assumed common-law powers to create causes of action”.  

Justice Ginsburg wrote a dissenting opinion. 

6.      FLSA Tip-Credit May Go To The Supreme Court

Today, the Court has its first Friday the 13th conference of 2012 (there are three Friday the 13th’s this year – April 13 and July 13), and one of the petitions which it may take certiorari on is Applebee’s Int’l, Inc. v. Fast, Doc. No. 11-425, petition for cert. pending from 638 F.3d 872 (8th Cir. 2011).  The dispute in the case revolves around the tip credit rule set forth in 29 U.S.C. § § 203(m),(t) which permit employers to take a “tip-credit” towards their minimum-wage obligation for “tipped employees” engaged in an “occupation” in which they customarily and regularly receive more than $30/month in tips.  The U.S. Department of Labor has internal guidance that an employer loses the benefit of the tip credit if a tipped employee performs duties that, while related to such employee’s occupation, are not by themselves purportedly directed towards producing tips if such time exceeds more than 20% of the employee’s total work time. 
Here, the Eighth Circuit deferred to the DOL’s informal interpretation.  In contrast, the Eleventh Circuit in Pellon v. Bus. Representation Int’l, Inc., 291 Fed. Appx. 310 (11th Cir. 2008) (per curiam) rejected the 20% rule.

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Monday, January 9, 2012

Robert Fitzpatrick Quoted by the ABA Journal

Robert B. Fitzpatrick has been quoted in the January 2012 edition of the ABA Journal.  In an article by Brian Sullivan entitled “The Last Word”, Mr. Fitzpatrick discusses the potentially game-changing effect that a simple apology can have on the course of litigation.  The Article ends with a clarion call towards civility as a positive-sum strategy for both sides of a litigation, both monetarily and emotionally.  The article may be found on Robert B. Fitzpatrick, PLLC at

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