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Monthly Archives: February 2008

Friday morning docket: leap day edition

Here’s a look at what is happening on this 2008 bonus day:

The Senate is in session today, but the House is not. The justices of the U.S. Supreme Court meet this morning in a private conference, and if any orders are issued we’ll let you know.

Meanwhile,

House Speaker Nancy Pelosi yesterday asked the Justice Department to pursue contempt charges against former White House chief counsel Harriet Miers and chief of staff Josh Bolten for failing to produce documents about the firings of U.S. attorneys. The White House called Pelosi’s request “truly contemptible.” We think the pun was intended. (AP).

The United States hits an all-time high incarceration rate – more than one in every 100 Americans is behind bars. (NYT).

Fighting a disorderly conduct plea isn’t cheap. For Sen. Larry Craig, the legal fees are approaching $250,000. (ABA Journal).

Food and Drug Administration officials said the agency needs more inspectors and a comprehensive computer database to better ensure the safety of products entering the United States. (AP)

The head of the EPA refused to tell lawmakers whether the White House influenced his decision to deny California and 12 other states the right to impose tougher greenhouse gas emissions standards. (AP).

The head of the FTC is stepping down to become vice president and general counsel of Procter & Gamble. (WaPo).

The funniest justice: Scalia is still funny

February oral arguments are over, so it’s time for our monthly check on who, so far, is the Supreme Court’s funniest justice.

Neither the order of funniness nor Justice Antonin Scalia’s commanding lead has changed since last month. But the race for second place is getting tighter and tighter. Justices David Souter and Stephen Breyer got some laughs this month, and are catching up to Chief Justice John G. Roberts, Jr., who didn’t grab any laughs over the past two weeks.

Here are the current standings, reflecting the number of laughs each justice has earned so far this term (according to DC Dicta’s review of Court transcripts):

Justice Antonin Scalia: 51
Chief Justice John G. Roberts, Jr.: 14
Justice David Souter: 12
Justice Stephen Breyer: 12
Justice John Paul Stevens: 6
Justice Anthony Kennedy: 6
Justice Samuel Alito, Jr.: 3
Justice Ruth Bader Ginsburg: 2
Justice Clarence Thomas (silent as always during arguments): 0

In other news: Sox and subprime

The pause in the busy oral argument schedule at the Supreme Court gives DC Dicta a chance to catch up on news from across the street at the Capitol, and from across town at the White House. As a member of Red Sox Nation (it’s ok, we root for the Nats too!) the appearance by Big Papi, Jason Varitek and the rest of the World Champion team at the White House was the big news of the week for us. But there is actual legal news to get to as well:

After advisors to President Bush on Tuesday urged the veto of a bill aimed at curbing the subprime-fueled mortgage¬†meltdown by changing bankruptcy law, Senate Majority Leader Harry Reid urged Bush to work with Democratic lawmakers to pass the “The Foreclosure Prevention Act.”

The proposed bankruptcy law change in the bill has drawn opposition not only from the White House, but also the banking industry, which has lobbied Congress hard to drop the language.

But in a letter to the president regarding the advisors’ opinion, Reid urged Bush to “to reject their advice and work with us to enact legislation that will address the housing crisis facing millions of American families.”

Addressing the bankruptcy law provision, Reid wrote:

“We understand your advisors specifically expressed concern about Title IV of the bill, which would change federal bankruptcy law to allow judges to modify mortgages on primary residences. Current law allows bankruptcy judges to assist individuals who are unable to fully meet almost any type of obligation – including loans for luxury yachts or vacation homes – yet it prohibits similar assistance for those struggling to stay in their own homes. That makes no sense, particularly during an economic crisis that avoiding foreclosures could help mitigate.”

Earlier in the day, at an event with other Senate Democrats and civil rights leaders to discuss the impact of the mortgage crisis on African American communities, Reid also pushed for passage of the bill, and blamed Republicans for stalling it. “Democrats are committed to addressing the housing crisis and to helping families threatened with foreclosure stay in their homes – it is the right thing to do for struggling homeowners and the right thing to keep communities afloat,” Reid said. “We are asking for Republicans to work with us.”

Court hears Exxon case

Before a capacity crowd that included Alaskan fishermen and others affected by the 1989 the Exxon Valdez oil spill, the Supreme Court heard arguments in a case that will determine whether Exxon Shipping Company should pay $2.5 billion in punitive damages for the conduct of the ship’s captain, a relapsed alcoholic who was inebriated and violated protocol before the ship ran aground and spilled 11 million gallons oil off the Alaskan coast.

The punitive damage issue in Exxon Shipping Co. v. Baker, No. 07-219, remains in dispute nearly 14 years after a jury awarded $287 million in compensatory damages and $5 billion in punitive damages to the fishermen who suffered economic loss from the spill. Years later on appeal, the punitive award was reduced to $2.5 million by the 9th Circuit Court of Appeals, working out to roughly $75,000 per plaintiff.

Walter Dillinger, representing the oil company, argued that there is no basis in maritime law for imposing punitive liability on a company based on the actions of a ship’s captain because he is too far down the corporate chain. Chief Justice John G. Roberts, Jr., like other justices, wondered just where that line fell.

“Do you have to have a shareholder driving the boat before you can assess liability?” Roberts asked Dillinger. “Where do you draw the line between the CEO and the cabin boy?”

“One has to be in authority to set company policy,” Dillinger argued.

Justice Anthony Kennedy noted the autonomy vested in ship captains. “A captain can decide when [the ship] leaves,” Kennedy said. “He decides the course.”

But, Dillinger said, “he is unable to set the policy” for any of these issues. You are a company actor, he argued, “when you are advancing the policies of the company.”

Jeffrey L. Fisher, arguing on behalf of the plaintiffs in the case, argued that the captain of a supertanker like the Exxon Valdez essentially “runs a business unit” of the company.

“He was the person in charge of deciding it was safe to leave,” Fisher said, adding later: “I don’t think [the issue] should rest on [job] labels.”

Justice Antonin Scalia seemed skeptical. “I doubt that a captain is high enough” on the corporate ladder to be a corporate actor, he said.

More on this case later on this blog, tomorrow on the Lawyers USA website, and in the next issue of Lawyers USA.

Court rules on EEOC ‘charge’ standard

Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

If you recall, it was during oral arguments in this case, Federal Express Corp. v. Holowecki, that justice Antonin Scalia expressed his serious dismay at the agency for failing to make clear to claimants what a “charge” is, and admonished the agency to “get its act in order.”

Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”

As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”

Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”

The opinion can be found on the Court’s website here.

Court rules on EEOC ‘charge’ standard

Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

If you recall, it was during oral arguments in this case, Federal Express Corp. v. Holowecki, that justice Antonin Scalia expressed his serious dismay at the agency for failing to make clear to claimants what a “charge” is, and admonished the agency to “get its act in order.”

Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”

As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”

Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”

The opinion can be found on the Court’s website here.

Scalia’s lessons of appellate advocacy

We know Justice Antonin Scalia is writing a book that is essentially a “how to” manual on appellate advocacy.

Perhaps one of the chapters will be titled, “Make sure you put all relevant information about your case in your brief.”

That may sound self evident. But just days after an attorney miffed the justice for not including relevant statutory language in his brief, today an attorney hinted during oral argument that the Court may have improvidently granted review of the case – something he maybe should have mentioned in his brief.

Let’s back up – the case, Allison Engine Co. v. U.S. Ex Rel. Sanders, No. 07-214, stems from a qui tam action brought under the False Claims Act by whistleblowers against a subcontractor to a company building guided-missile destroyers for the Navy. The project was federally funded.

The whistleblowers alleged that the company submitted invoices for payment even though the work did not meet contractual or Navy requirements. The invoices were submitted to the contractor – not the government – but the whistleblowers contend that an invoice seeking federal funds, even if not submitted to the government, qualifies under the Act. The subcontractor contends that it does not.

But during the last 15 minutes of oral argument, James B. Helmer, Jr., the attorney representing the whistleblowers, caused a stir when he claimed that certificates of conformity were sent to the Navy – something that would have clearly fallen under the Act, rendering the Supreme Court’s review of the case unnecessary.

“Allison was required . . . to give a certificate of conformance that all of these rigid requirements had been satisfied, and that certificate of conformance had to be given to the United States Navy,” Helmer said.

“I thought it was not established that anything from this defendant got to the Navy,” said Justice Antonin Scalia.

“You were told that earlier this morning [by opposing counsel], Your Honor,” Helmer said. “I don’t believe that’s correct.”

“Well, then there’s less to this case than we had thought,” Scalia said. “My goodness, even under the Petitioner’s theory, you win . . . What is all this fuss about, then?”

“This case is not an outlier on the ends of this statute,” Helmer said. “It is squarely in the middle.”

Then came the lesson. “I wish you had said that in your brief, because we could have saved ourselves a lot of reading,” Scalia said to Helmer.

“Your Honor, anything that I can do to help the Court,” Helmer said. “I apologize if I didn’t write the brief better than I could have.”

Scalia’s lessons of appellate advocacy

We know Justice Antonin Scalia is writing a book that is essentially a “how to” manual on appellate advocacy.

Perhaps one of the chapters will be titled, “Make sure you put all relevant information about your case in your brief.”

That may sound self evident. But just days after an attorney miffed the justice for not including relevant statutory language in his brief, today an attorney hinted during oral argument that the Court may have improvidently granted review of the case – something he maybe should have mentioned in his brief.

Let’s back up – the case, Allison Engine Co. v. U.S. Ex Rel. Sanders, No. 07-214, stems from a qui tam action brought under the False Claims Act by whistleblowers against a subcontractor to a company building guided-missile destroyers for the Navy. The project was federally funded.

The whistleblowers alleged that the company submitted invoices for payment even though the work did not meet contractual or Navy requirements. The invoices were submitted to the contractor – not the government – but the whistleblowers contend that an invoice seeking federal funds, even if not submitted to the government, qualifies under the Act. The subcontractor contends that it does not.

But during the last 15 minutes of oral argument, James B. Helmer, Jr., the attorney representing the whistleblowers, caused a stir when he claimed that certificates of conformity were sent to the Navy – something that would have clearly fallen under the Act, rendering the Supreme Court’s review of the case unnecessary.

“Allison was required . . . to give a certificate of conformance that all of these rigid requirements had been satisfied, and that certificate of conformance had to be given to the United States Navy,” Helmer said.

“I thought it was not established that anything from this defendant got to the Navy,” said Justice Antonin Scalia.

“You were told that earlier this morning [by opposing counsel], Your Honor,” Helmer said. “I don’t believe that’s correct.”

“Well, then there’s less to this case than we had thought,” Scalia said. “My goodness, even under the Petitioner’s theory, you win . . . What is all this fuss about, then?”

“This case is not an outlier on the ends of this statute,” Helmer said. “It is squarely in the middle.”

Then came the lesson. “I wish you had said that in your brief, because we could have saved ourselves a lot of reading,” Scalia said to Helmer.

“Your Honor, anything that I can do to help the Court,” Helmer said. “I apologize if I didn’t write the brief better than I could have.”

No per se rule on “me too” discrimination evidence

In employment discrimination suits, evidence of discriminatory conduct by company managers who supervised other employees, but not the plaintiff, is neither per se admissible nor per se inadmissible, the U.S. Supreme Court ruled today.

In the opinion in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, Justice Clarence Thomas wrote that the “question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and the theory of the case.”

The Court vacated the ruling by the 10th Circuit Court of Appeals that held that the district court abused its discretion by excluding so-called “me too” evidence. The Court’s decision can be found here.

No per se rule on “me too” discrimination evidence

In employment discrimination suits, evidence of discriminatory conduct by company managers who supervised other employees, but not the plaintiff, is neither per se admissible nor per se inadmissible, the U.S. Supreme Court ruled today.

In the opinion in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, Justice Clarence Thomas wrote that the “question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and the theory of the case.”

The Court vacated the ruling by the 10th Circuit Court of Appeals that held that the district court abused its discretion by excluding so-called “me too” evidence. The Court’s decision can be found here.

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