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Monday, January 08, 2007

Aaron Streett on Supreme Court Today

[Ed. Just a reminder: Prawfs, with Aaron's permission, will often reproduce his Supreme Court Today updates. If you want access to the archive of them, you can find them here.]

Greetings, sportsfans! Hope y’all had a merry Christmas/happy Hanukah and a happy New Years. For its part, the Court started out 2007 with a bang, granting 7 cases to fill out much of its spring docket. That’s 15 grants in the last three conferences, so it looks like the Court is trying to avoid the “do-nothing” moniker after all. Off to the cases!

Panetti v. Quarterman, 06-6407

Petitioner Panetti once tried to subpoena John F. Kennedy and Jesus Christ. But Panetti is not a newly installed congressional committee chairman, he is a delusional death-row prisoner seeking to forestall his impending execution. You see, Panetti believes that the real reason the State of Texas wants to execute him is to stop him from preaching the gospel, and he thinks that Jesus and JFK can help him avoid that fate. Panetti’s lawyers argue that this kind of reasoning indicates that it would be unconstitutional to execute Panetti under Ford v. Wainwright (1986), because he does not comprehend the reason the state is planning to execute him (e.g., the brutal double-murder of his in-laws in 1992). According to the 5th Circuit, however, it’s enough that Panetti understands that he’s about to be executed as a result of a criminal sentence, notwithstanding his delusions about the state’s “real” motivation. This case gives the Court an opportunity to clear up the mess that has resulted from the lack of a majority opinion in Ford.

Tellabs, Inc. v. Makor Issues & Rights, 06-484

This case involves the heightened pleading standards for intent enacted by the Private Securities Litigation Reform Act. To wit, how heightened are those pleading standards anyway? The PSLRA tells us that a plaintiff must create a “strong inference” that the defendant acted with fraudulent intent. The 7th Circuit interprets that to mean that a securities fraud plaintiff need only plead facts that could lead a “reasonable person” to infer that the defendant acted with fraudulent intent. The 6th Circuit has a higher standard: A plaintiff must plead facts that make fraudulent intent the “most plausible conclusion.” This is one of those classic tensions in the law: “reasonable persons” don’t always reach the “most plausible conclusions.” The Supreme Court’s choice between the two standards will have an enormous impact on the number of securities lawsuits that survive motions to dismiss in the coming years.

Tennessee Secondary School Athletic Association v. Brentwood Academy, 06-427

This case first went up to the Supreme Court in 2001, when the Court held that the petitioner Association—an ostensibly private and voluntary group that regulates high school sports—is a “state actor” because of the pervasive “entwinement” of state officials in its governance. On remand, the 6th Circuit held that the Association’s ban on recruiting violates the First Amendment because it prohibits school officials from communicating with prospective student-athletes. Petitioner not only challenges this First Amendment ruling, arguing that Brentwood Academy freely chose to join the Association and abide by its rules, it also asks the Court to overrule its earlier holding on the state-actor issue. The 2001 ruling was 5-4, with O’Connor and the four liberals in the majority, so it is certainly possible that the newly constituted Court could overrule it. This will be a very interesting early test of the new Justices’ views on stare decisis. As a Texan, I’d like to say that high school football recruiting is protected by substantive Due Process, if not the First Amendment, but I’m going to have to go on record predicting a reversal in this one.

National Association of Home Builders v. Defenders of Wildlife, 06-340

EPA v. Defenders of Wildlife, 06-549

These highly complicated cases address an arguable conflict between the Clean Water Act and the Endangered Species Act. To greatly simplify, the CWA requires the EPA to delegate the administration of pollution permits (known as NPDES permits) to the states if certain criteria are satisfied. EPA tried to delegate this authority to Arizona. The ESA, however, enacted several years after the CWA, generally requires federal agencies to insure that their actions do not adversely affect endangered species. Relying on the ESA, the 9th Circuit held that the EPA could not transfer NPDES permitting to Arizona because it had not considered whether that transfer could hurt endangered species, even though the EPA had satisfied all of the CWA’s criteria for the transfer. Judge Kozinski and 5 other judges dissented from the denial of rehearing en banc. The Supreme Court granted cert on the question of whether the ESA’s general rule supersedes the CWA’s more clearly applicable criteria for delegation decisions. But the Court also asked for additional briefing on whether the 9th Circuit should have given the EPA another chance at explaining its interpretation of the ESA rather than invalidating the EPA’s interpretation altogether. On whichever ground the Court relies, it looks like the CA9 is heading for yet another reversal.

BCI Coca-Cola Bottling Co. v. EEOC, 06-341

This case should finally resolve longstanding circuit-court confusion over when a corporation may be held liable for employment discrimination based on the discriminatory conduct of a subordinate employee (sometimes known as “cat’s paw” liability). In this case, for example, the plaintiff’s direct supervisor allegedly made racist statements, mistreated the plaintiff, and ultimately convinced the regional human resources manager to fire him for insubordination. The manager, however, did not even know that the employee was black and thus did not himself have racial motives for the firing. The 10th Circuit (Judge McConnell) held that the employer could nonetheless be held liable if the supervisor’s discriminatory actions directly caused the ultimate decisionmaker to terminate the employee. However, in an interesting parallel to sexual-harassment caselaw, the CA10 held that the employer could avoid liability if it independently investigated the situation before termination. It’s anybody’s guess how this one comes out.

Long Island Care at Home v. Coke, 06-593

The question here is whether in-home healthcare workers employed by outside agencies are covered by the Fair Labor Standards Act and thus entitled to minimum wage and overtime pay. The Labor Department said that they are not in a 1975 regulation. The 2nd Circuit refused to give Chevron deference to that view (because it was contained in an “interpretative rule,” as opposed to a “legislative rule”) and disagreed with Labor’s interpretation of the FLSA. The Labor Department promptly issued a new advisory memorandum explicitly stating that it intended to issue a legislative rule back in 1975. Following a GVR from the Supreme Court so that the CA2 could rethink its opinion, the CA2 nonetheless reaffirmed its original holding. This case should provide important guidance on when Chevron deference is due, and secondarily, on what deference is due to an agency’s present-day explanation of what it was doing 30 years ago.

Altadis USA, Inc. v. Sea Star Line, LLC, 06-606

QP: “Whether the Carmack Amendment applies to the inland leg of a multimodal shipment to a place in the United States from a place in a territory of the United States even if the inland carrier does not issue a separate bill of lading for the inland leg.” Enough said.

The Court also CVSG’d in a case from the 1st Circuit (Rowe v. New Hampshire Motor Transport Association, 06-457), asking whether the Federal Aviation Administration Authorization Act preempts a state law that regulates the shipment of tobacco products to ensure that they are not ultimately sold to minors.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on January 8, 2007 at 07:40 PM in Constitutional thoughts | Permalink


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