U.S. SUPREME COURT DOCKET CHART 2016 TERM September 4 September 10. Amicus cases = yellow highlight Petitions scheduled for conference green highlight

Transcription

1 U.S. SUPREME COURT DOCKET CHART 2016 TERM September 4 September 10 Amicus cases = yellow highlight Petitions scheduled for conference green highlight CASE/DOCKET NO./LOWER COURT Gloucester Cnty. Sch. Bd. V. G.G., , 822 F.3d 709 (4th Cir.) MOST RECENT PETITIONS FOR CERT. Legal System: Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled; (2) If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very disput e in which deference is sought; (3)With or without deference to the agency, should the Department s specific interpretation of Title IX and 34 C.F.R be given effect COMMENTS 8/29/16 Legal Clips summary of Fourth Circuit panel s decision is available at th-circuit-panel-rules-that-transgenderstudent-stated-valid-title-ix-sexdiscrimination-claim-based-on-genderidentity-after-school-board-barred-himfrom-using-boys-restroom-facilities/

2 DECISIONS HOLDING OF OPINION

3 NO./LOWER COURT CASES DISMISSED COMMENTS

4 ARGUED GRANTED ARGUED

5 REVIEW GRANTED GRANTED OF ORAL ARGUMENT Fry v. Napoleon Cnty. Sch., , 788 F.3d 622 (6th Cir.) Ivy v. Morath, , 781 F.3d 250 (5th Cir.) McCrory v. Harris, , 2016 BL (N.C. Dist. Ct.) Trinity Lutheran Church of Columbia, Inc. v. Pauley, , 788 F.3d 779 (8th Cir.) Special Education & Disabilities: Does the Handicapped Children's Protection Act of 1986, 20 U.S.C. 1415(l), require exhaustion in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act, that seeks damages a remedy that is not available under the Individuals with Disabilities Education Act Special Education & Disabilities: Did the U.S. Court of Appeals for the Fifth Circuit err in deciding that the relationship between public and private actors does not invoke dual obligations to accommodate in any context other than an express contractual relationship between a public entity and its private vendor Equity & Discrimination: (1) Did the court below err in (i) presuming racial predominance from North Carolina's reasonable reliance on this court's holding in Strickland that a district created to ensure that African Americans have an equal opportunity to elect their preferred candidate of choice complies with the Voting Rights Act if it contains a numerical majority of African Americans? (ii) applying a standard of review requiring the state to demonstrate its construction of congressional district 1 was actually necessary under the VRA instead of simply showing it had good reasons to believe the district, as created, was needed to foreclose future vote dilution claims? (iii) relieving plaintiffs of their burden to prove race rather than politics predominated with proof of an alternative plan that achieves the legislature's political goals, is comparably consistent with traditional redistricting principles, and brings about greater racial balance than the challenged districts; (2) Regardless of any other error, was the threejudge court's finding of racial gerrymandering violations based on clearly erroneous fact-finding; (3) Did the court below err in failing to dismiss plaintiffs claims as being barred by claim preclusion or issue preclusion; (4) In the interests of judicial comity and federalism, should the court order full briefing and oral argument to resolve the split between the court below and the North Carolina Supreme Court, which reached the opposite results in a case raising identical claims Religion: Does the exclusion of churches from an otherwise neutral and secular aid program violate the free exercise and equal protection clauses of the U.S. Constitution when the state has no valid establishment clause concern 6/28/16 10/31/16 6/28/16 11/7/16 6/27/16 TBA 1/15/16 TBA

6 REVIEW DENIED DENIED COMMENT

7 Morriss v. BNSF Ry. Co., , 817 F.3d 1104 (8th Cir.) COPE v. Kan. State Bd. of Educ., , 821 F.3d 1215 (10th Cir.) Foster v. Vilsack, , 820 F.3d 330 (8th Cir.) Scorpio Gold (US) Corp. v. Jones, , 637 Fed. Appx. 333 (9th Cir.) Henry v. Regents of the Univ. of Cal., San Francisco, , unpublished (9th Cir.) Wynn Las Vegas, LLC v. Cesarz, , 816 F.3d 1080 (9th Cir.) PENDING PETITIONS FOR CERTORARI Employment & Labor: (1) Under the Americans with Disabilities Act and its expansive coverage provided by its amendments, is morbid obesity alone, absent an underlying cause, a physiological disorder or condition affecting the body systems (i.e. an actual impairment); (2) Under the ADA and its expansive coverage provided by its amendments, may morbid obesity be a perceived impairment when a defendant believes and acts as if a plaintiff's obesity affects his or her body systems Religion: Do theistic parents and school children have Article III standing to challenge their state's establishment of a 13-year K-12 program of education designed to supplant the children's theistic religious beliefs with non-theistic religious beliefs that are materialistic/atheistic in violation of their rights under the establishment and free exercise clauses of the First Amendment and the equal protection clause of 14th Amendment Legal System: (1) Should federal courts defer, under Auer v. Robbins, 519 U.S. 452 (1997), to an agency construction of an interpretive field manual, as have the U.S. Courts of Appeals for the Sixth Circuit and the Eighth Circuit decision below, or not, as the Fifth Circuit has held; (2) Does the use of a remote comparison site, preselected ten years prior and without notice to the petitioners or an opportunity to be heard, as the sole means of determining that their land supports wetland plants, violate their rights to due process of law under the Fifth Amendment Employment & Labor: (1) Can a letter to the Equal Employment Opportunity Commission from an aggrieved individual's attorney that merely attaches a draft court complaint, indicates a belief that the draft complaint outlines facts necessary to prepare a charge of discrimination, and lacks information required for a charge, be deemed a charge ; (2) If so, does the relation back doctrine in 29 C.F.R (b) and Edelman v. Lynchburg College, 535 U.S. 106 (2002), permit an aggrieved individual who is represented by an attorney to submit information needed for a valid charge after the charge-filing deadline Employment & Labor: Is an operational hangman's noose intentionally placed in an African-American employee's work area by his non-african-american supervisor sufficiently severe as a matter of law to constitute race harassment under Title VII Employment & Labor: (1) Does the Fair Labor Standards Act impose restrictions, enforceable in private suits, on tip-pooling arrangements by employers who don't seek to count tips toward their minimum wage obligations; (2) Did the U.S. Court of Appeals for the Ninth Circuit err in holding that a federal agency purporting to implement a statute may create entitlements and requirements that the statute doesn't, so long as the statute doesn't expressly prohibit the agency's regulation 8/17/16 8/16/16 8/8/16 8/1/16 8/2/16 8/1/16 ADDITIONAL INFORMATION

8 C.C. v. Hurst-Euless Bedford Indep. Sch. Dist., , unpublished (5th Cir.) Advanced Tech. Bldg. Sols., LLC v. City of Jackson, , 817 F.3d 163 (5th Cir.) Szeinbach v. The Ohio State Univ., 16-73, 820 F.3d 814 (6th Cir.) Lapaz v. Barnabas Health Sys., 16-61, 634 Fed. Appx. 367 (3d Cir.) Callahan v. City of Chicago, 16-56, 813 F.3d 658 (7th Cir.) Pa. Dep't of Educ. v. King, 16-49, unpublished (3d Cir.) Barnum v. Ohio State Univ. Med. Ctr., 16-19, unpublished (6th Cir.) Mammaro v. N.J. Div. of Child Prot. & Permanency, 16-2, 814 F.3d 164 (3d Cir.) PENDING PETITIONS FOR CERTORARI Special Education & Disabilities: What are the correct standards of review for courts when construing claims of discrimination based upon disability, when a student is a victim of a conspiracy by school district officials to steer the student out of the public schools and into the criminal justice system Legal System: (1) Does a delegation of policymaking authority under 42 U.S.C occur when the official with delegated power is constrained only in name, not in fact, by policies made by another, because there is no right to review that official's discretionary decisions? (2) Did the U.S. Court of Appeals for the Fifth Circuit view facts with all reasonable inferences to petitioners Employment & Labor: (1) May an award for economic harm be based upon lost economic opportunity in the labor market, where the unlawful retaliatory conduct caused the victim to reasonably cease seeking alternative employment before receiving any offer of alternative employment? (2) Does Professor Schondelmeyer's testimony support the jury award of $213,368 Employment & Labor: (1) Were there substantial material issues in dispute that were disregarded by the district court? (2) Did the court disregard the prima facie case of retaliation? (3) Did the court ignore the defendants failure to establish a legitimate business reason that then supported an inference of race, age and national origin discrimination Employment & Labor: (1) Did the U.S. Court of Appeals for the Seventh Circuit create a rule contrary to U.S. Supreme Court precedent in rate-setting cases by refusing to apply Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591 (1944), to taxi drivers; (2) Did the Seventh Circuit depart from long-established precedent under the Fair Labor Standards Act by severely limiting the suffer or permit standard Finance: (1) Does application of the doctrine of equitable offset include the discretionary analysis of the grant recipient's underlying conduct in determining whether an adjustment to its repayment obligation is warranted; (2) May the U.S. Department of Education counter an otherwise appropriate offset with what amounts to an unclean hands defense Employment & Labor: (1) What is the standard of proof required under the Americans With Disabilities Act when an employer regards an employee as impaired and then demands she take a medical examination to determine her fitness for duty; (2) Should the U.S. Supreme Court to resolve a circuit split formulate a new standard founded not only on job relatedness and business necessity but also on substantial, objective, non-hearsay facts showing a pattern of conduct that presents an immediate physical threat to co-workers or customers/clients Legal System: Is there a Fourteenth Amendment parental right to be free from state seizure of their children unless the state has reasonable and articulable evidence that a child has been abused or is in imminent danger of abuse 7/25/16 7/22/16 7/13/16 7/8/16 5/17/16 7/8/16 6/28/16 6/20/16 ADDITIONAL INFORMATION

9 Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist., , unpublished (N.Y.) Bauer v. Lynch, , 812 F.3d 340 (4th Cir.) Lutz v. Huntington Bancshares, Inc., , 815 F.3d 988 (6th Cir.) Tina M. v. St. Tammany Par. Sch. Bd., , 816 F.3d 57 (5th Cir.) Globaltranz Enters., Inc. v. Rosenfield, , 811 F.3d 282 (9th Cir.) PENDING PETITIONS FOR CERTORARI Employment & Labor: (1) Is there a claim of race discrimination and retaliation here under state and federal law; (2) Can an employer be liable under Title VII and Exec. Law 296(1)(a)(6)(7) for numerous actions against the petitioner because of complaints of its unlawful employment practices and can the petitioner establish due process and equal protection rights violations; (3) Did petitioner's former employer's action constitute a material breach of the settlement agreement so that it's no longer binding and petitioner may raise a disparate treatment claim Employment & Labor: Does the FBI's physical fitness test, which requires that men complete a minimum of 30 push-ups while women must only complete 14, and which is used as a pass/fail job requirement for a position that requires the same physical tasks of both men and women, constitute a prima facie violation of 42 U.S.C. 2000e-16(a), which prohibits employment discrimination based on sex generally, or a prima facie violation of 42 U.S.C. 2000e-2(l), which expressly prohibits the use of different cutoff scores on employment tests on the basis of sex Employment & Labor: Is the U.S. Court of Appeals for the Sixth Circuit's ancillary to a production activity test inconsistent with the regulations implementing the administrative exception to the Fair Labor Standards Act Special Education & Disabilities: Are parents prevailing parties, entitled to attorneys fees under the Individuals with Disabilities Education Act, when they obtain an order that remedies a violation of 20 U.S.C. 1415(j) by requiring that the student be returned to his lawful stay-put placement Employment & Labor: (1) Does the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. 215(a)(3), protecting any employee who has filed any complaint, extend to a manager who communicates with other managers and executives regarding what she believes are FLSA violations and potential liability exposure, without ever taking a position adverse to the interests of the employer, which four circuits have held it does not, or does her advocacy for FLSA compliance reach the requisite degree of formality to be protected, as the U.S. Court of Appeals for the Ninth Circuit held below; (2) Can a federal court rely solely on a plaintiff's written testimony by affidavit and interrogatory answer regarding her beliefs, impressions, suspicions and arguments as the evidentiary basis for finding a genuine issue for trial precluding summary judgment, including when doing so would require the court to draw inferences that are blatantly contradicted by the remainder of the record 4/7/16 6/6/16 5/31/16 ADDITIONAL INFORMATION 5/23/16 Scheduled for Conference 9/26/16 5/23/16 Legal Clips summary of Fifth Circuit panel decision available at /21/fifth-circuit-panel-rules-thatobtaining-stay-put-orderpursuant-to-idea-does-not-qualifyparty-as-a-prevailing-party-forpurposes-of-recovering-attorneysfees/

10 Wiest v. Tyco Elecs. Corp., , 812 F.3d 319 (3d Cir.) Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., , 811 F.3d 866 (7th Cir.) Williams v. Bd. of Educ. of Prince George's Cnty., , unpublished (Md. Ct. App.) Mech v. Sch. Bd. of Palm Beach Cnty., , 806 F.3d 1070 (11th Cir.) N.M. Ass'n of Nonpublic Sch. v. Moses, , 367 P.3d 838 (N.M.) Anderson v. Marshall County, , 2016 BL 7849 (5th Cir.) PENDING PETITIONS FOR CERTORARI Employment & Labor: (1) Did the appeals court's reliance on an arbitrary 10-month period between the petitioner's whistleblowing activity and his termination nullify the expanded protection Congress intended to provide whistleblowers under the Sarbanes- Oxley Act and create a circuit split on the issue; (2) Was the appeals court entitled to disbelieve petitioner's proof on summary judgment that all his supervisors were aware of his earlier whistleblowing activities when they decided to investigate him and then use it as an opportunity to terminate him because of his protected conduct Employment & Labor: Does application of the stray remarks doctrine to Title VII cases conflict with this court's unanimous decision in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) Employment & Labor: (1) Did the Prince George's County Circuit Court deny petitioner due process when it granted summary judgment before affording her a hearing; (2) Did the lower courts finding that petitioner didn't file her notice of appeal on time conflict with governing law and violate her due process rights? (3) Did the appeals court's finding that the issues presented weren't desirable and in the public interest a due process violation; (4) Was petitioner's right to select her own legal representation violated when the state appointed Damon Felton to appeal her unsatisfactory evaluation; (5) Did the circuit court err in accepting Felton's assertion that he was her attorney and in not finding the date in the letter from the local board of education had been manipulated? (6) Did the court err in not recognizing that the school board denied petitioner her due process rights Legal System: Does the decision in Walker v. Sons of Confederate Veterans, Inc., 83 U.S.L.W (U.S. June 18, 2015), allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection Religion: Does applying a Blaine Amendment to exclude religious organizations from a state textbook lending program violate the First and Fourteenth Amendments Legal System: (1) For the purpose of establishing the deliberate indifference element of a failure-to-train civil rights claim under the single incident exception, has the definition of deliberate indifference been so irreparably muddied by deviation among the federal circuits as to require clarification by the U.S. Supreme Court; (2) If in lieu of hiring on-site medical staff, a county instead instituted a policy requiring lay jailers to summon outside medical assistance for medical emergencies, but the county failed to train those jailers on how to recognize a medical emergency and forbade them from reviewing detainees' medical records, then should the county have predicted that jailers would unconstitutionally deny medical care to detainees 5/23/16 5/23/16 5/19/16 5/18/16 ADDITIONAL INFORMATION 5/16/16 Scheduled for Conference 9/26/16 5/13/16

11 Sterling Jewelers Inc. v. EEOC, , 801 F.3d 96 (2d Cir.) McLane Co. v. EEOC, , 804 F.3d 1051 (9th Cir.) Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, , 798 F.3d 1329 (10th Cir.) Colo. State Bd. of Educ. v. Taxpayers for Pub. Educ., , 351 P.3d 461 (Colo.) PENDING PETITIONS FOR CERTORARI Employment & Labor: Did the U.S. Court of Appeals for the Second Circuit err in concluding that the Supreme Court's standard for judicial review of t he Equal Employment Opportunity Commission's statutory duty to conciliate, described in Mach Mining LLC v. EEOC, 83 U.S.L.W. 4283, 2015 BL (U.S. April 29, 2015), applies equally to the EEOC's statutory duty to investigate, despite the significant and material differences between the duty to attempt conciliation and the duty to conduct an investigation Employment & Labor: (1) Can a district court's decision to quash or enforce an EEOC subpoena be reviewed de novo, which only the U.S. Court of Appeals for the Ninth Circuit does, or should it be reviewed deferentially, which eight other circuits do, consistent with the U.S. Supreme Court's precedents concerning the choice of standards of review; (2) Does the Ninth Circuit's decision to enforce an EEOC subpoena, depending upon a notion of relevance so broad that it effectively abrogates statutory limits on the EEOC's investigative powers, conflict with EEOC v. Shell Oil, 466 U.S. 54 (1984), and the holdings of at least three other circuits Special Education & Disabilities: What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C et seq. Privatization & School Choice: Does requiring a state to categorically deny otherwise neutral and generally available public aid on the basis of religion violate the U.S. Constitution 4/29/16 4/4/16 ADDITIONAL INFORMATION 12/22/15 Solicitor General invited to file brief 10/28/15 Legal Clips summary of Colorado Supreme Court decision available at /06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/

12 Douglas Cnty. Sch. Dist. v. Taxpayers for Pub. Educ., , 351 P.3d 461 (Colo.) Doyle v. Taxpayers for Pub. Educ., , 351 P.3d 461 (Colo.) PENDING PETITIONS FOR CERTORARI Privatization & School Choice: Can Colorado's Blaine Amendment, which the unrebutted record plainly demonstrates was born of religious bigotry, be used to force state and local governments to discriminate against religious institutions without violating the religion clauses of the First Amendment and the equal protection clause of the Fourteenth Amendment Privatization & School Choice: Does it violate the religious clauses or equal protection clauses of the U.S. Constitution to invalidate a generally-available and religiouslyneutral student aid program simply because the program affords students the choice of attending religious schools ADDITIONAL INFORMATION 10/28/15 Legal Clips summary of Colorado Supreme Court decision available at /06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/ 10/27/15 Legal Clips summary of Colorado Supreme Court decision available at /06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/ 2016 the National School Boards Association. All Rights Reserved.