June 24, 2013 United States Supreme Court opinions

Vance v Ball State Uuniversity

Vance sued for face discrimination arguing her harasser was a supervisor. The district court ruled the alleged harasser did not have authority to hire, fire or otherwise make tangible employment decisions against Vance and granted judgment to Ball State. The 7th Circuit affirmed. Resolving a circuit split as to the test for “supervisors’, the Court, 5-4, affirmed. The majority held that supervisors are those with authority to hire, fire, reduce responsibilities and benefits or otherwise make tangible employment against the victim. The majority noted that “supervisor” is ambiguous and looked to the cases which established the “supervisor” label to limit the scope of vicarious liability for employers. Based on the majority’s reading of the facts and analysis, the majority concluded the tangible employment action test was proper. It rejected the government’s alternative as vague given the need to determine if another employee more than occasionally directed victim as to more than a few tasks. The majority noted that Vance and the government reached opposite conclusions as to the status of the alleged harasser illustrating the vagueness of the test. The majority also noted its concern that the government alternative would confuse juries and otherwise retard the settlement process. Justice Thomas added a concurrence arguing that vicarious liability for supervisor harassment should not be allowed and that of the two proposed rules, the majority rule is narrowest. The dissent argued that the cases establishing the “supervisor” regime intended to cover those who had day to day management of other employees. The dissent noted that the equal employment Opportunity commission adopted that reading and it is consistent with the reality of today’s’ workplace. The dissent argued that the majority’s rule will not be as easy to administer as the majority promises and will effectively free employers form liability for the horrible behavior of day to day managing employees. The dissent called upon Congress to rectify the majority’s erroneous decision.

Mutual Pharmaceutical Co., Inc. v Bartlett

Bartlett suffered serious injuries as a result of taking a generic medication manufactured by Mutual. She sued for design defect product liability. The jury found for Bartlett and eh 1st Circuit affirmed holding Mutual could have simply stopped manufacturing the drug and thus complied with both federal and New Hampshire law. The Court, 5-4, reversed. It held that federal law forbade Mutual from changing the drug label, New Hampshire common law required a different label to warn about the condition Bartlett experienced thus it was impossible to obey both rules and federal law controls based on impossibility preemption. The majority rejected the chose to exit ground holding that has never been required of drug manufacturers or any market participant and adopting it would effectively eliminate impossibility conflicts. Justice Breyer, joined by Justice Kagan, dissented arguing that Mutual could have either stopped selling the drug in New Hampshire or just pay damages. He noted that he would usually give significant weight to the views of the Food and Drug Administration, but, the FDA hasn’t developed any outside of conflicting views in briefs. Thus, he would have affirmed. Justice Sotomayor, joined by Justice Ginsberg, dissented arguing that the New Hampshire law did not require a new label. Instead, it required that Mutual not market drugs with unreasonably dangerous defects. Thus, Mutual could obey both state and federal law by paying compensation when someone like Bartlett is injured. This dissent argued that the correct approach is object preemption not impossibility as the state law here complements the object of drug regulation. This dissent also argued the majority approach effectively immunizes drug manufacturers without explicit direction from Congress to do so.

United States v Kebodeaux

Kebodeaux failed to register as a sex offender after a move within Texas. The 5th Circuit held the Sex Offender Registration and Notification Act, 42 USC 16901 et seq unconstitutional as to unconditionally released offenders as beyond Congress’ powers. The Court, 7-2 with two justices concurring in judgment, reversed. It held that Kebodeaux was subject to an earlier federal registry law and thus SORNA did not impose any new obligation on him. Additionally, it was within congress’s necessary and proper power to require military convicts to register to allay public safety concerns and to keep an eye on the released prisoners. Chief Justice Roberts concurred in judgment arguing that the majority opinion could be understood to adopt a general federal police power, which does not exist, he concurred in judgment only as the military rules and regulations provision and necessary and proper clause provide the power to adopt the and apply SORNA to Kebodeaux. Justice Alito concurred in judgment arguing SONA is justified under the military rules and regulations and necessary and proper clauses as states lack power to require military courts to report sex conditions and Congress can remedy the potentially dangerous situation where military sex offenders escape registration. Justice Scalia dissented arguing the earlier registration act was unconstitutional as it did not carry out any enumerated power. Justice Thomas dissented, joined in part by Justice Scalia arguing that no provision of the constitution authorized SRONA as spending money in states does create jurisdiction over sex offenders, sex crime is not commerce among states and Kebodeaux was not in the military at the time of his charge. Thus, there is no power under the necessary and proper clause to enact SORNA, protecting people form sex crimes is a state responsibility and the 5th Circuit should have been affirmed.

Fisher v University of Texas at Austin

University adopted an admissions plan which considered applicants race. Fisher applied for admission and was denied. She sued arguing the admissions program violated the equal protection clause. The district court granted summary judgment to University. The 5th Circuit affirmed holding the plan was adopted in good faith. The Court, 7-1 with Justice Kagan recused, reversed and remanded. The majority held that the 5th Circuit failed to apply the correct standard and so remand was necessary. On remand, the Court directed that the admission plan be subjected to strict scrutiny as to whether the program is narrowly tailored to achieve a diverse student body in that there is no race neutral alternative which also achieves a diverse student body. Justice Scalia added a concurrence noting his view that consideration of race in admissions is unconstitutional, but, no one argued that so he joined the majority opinion. Justice Thomas added a concurrence arguing that race based admissions violate the equal protection clause and cases allowing such programs should be overruled. Based on the school desegregation cases, he argued University should be ordered to either stop using race based admissions or close. He based this conclusion on the fact that University’s arguments were the same as segregationist arguments, that states have been stripped of the power to do race based education, the mismatch theory and stigma imposed on the beneficiaries of affirmative action. Justice Ginsberg dissented arguing that University’s plan is based on court approved plans and should be applauded not remanded for additional scrutiny.

University of Texas Southwestern Medical Center v Nasser

Nasser sued Center alleging retaliation for his national orientation complaint. He prevailed at trail and the 5th Circuit affirmed holding Nasser only needed to prove that the complaint was a motivating factor. The Court, 5-4, reversed. The majority held that “because he has opposed” in 42 USC 2000e-3 requires factual but for causation. It relied on a 2009 case interpreting the Age Discrimination Act and the background principle in law that causation must be proven. It rejected the government’s argument that a provision in 2000e-2 which allows motivating factor causation based on the plain language of the provision which does not apply to retaliation claims, the structure of the statute which placed the provision in a place which does not mention retaliation and distinguished form cases involving broad bans on discrimination as Title VII is detailed. The majority declared Congress knows how to treat active discrimination and retaliation synonymously if it wants to do so. Here, it sis not do so. The majority also reasoned that the motivating factor standard would increase the number of retaliation claims and force employers to try cases as the standard would be less likely to be met at summary judgment. The majority finally rejected EEOC guidance manual adoption of motivating factor as contrary to the statutory text and circular in reasoning. The dissent argued that retaliation claims are a form of discrimination claim and that court cases had recognized this fact until today’s decision. It further argued that Congress intended the motivation factor language to control all types of claims including retaliation claims as demonstrated by the legislative history. It also pointed to the EEOC guidance manual in support of its argument. Textually, the dissent argued that “because” should be given the same meaning in 2000e-3 as in 2000e-2 as both provisions are part of one statute and normally the same term is defined the same way in the same statute. The dissent concluded with a call for Congress to correct the majority’s erroneous construction

Ryan v Schad

The 9th Circuit refused to issue its mandate after Schad’s petition for certiorari was denied. Instead, it granted a previously rejected motion to stay. The Court reversed and remanded for immediate issuance of mandate without further proceedings in a per curium opinion. It held that courts of appeals are required to issue mandates once certiorari is denied absent extraordinary circumstances. As the motion for stay was previously denied and there was no new law or facts in the case, the 9th Circuit abused its discretion.

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