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Author: Howard M. Wasserman

By on Oct 3, 2017 at 10:18 am
October 10 will be Hamer Time at the Supreme Court. In Hamer v. Neighborhood Housing Services of Chicago, the justices will consider whether a rule limiting court-granted extensions of time to file a notice of appeal to 30 days beyond the original appeal date creates a limit on the jurisdiction of the court of appeals or is a nonjurisdictional claim-processing rule that was waived, forfeited or subject to equitable exception. Facts and legal background In 2012, Charmaine Hamer was terminated from her position as intake specialist for the Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center. She filed a pro se action in federal district court, alleging violations of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964; the district court appointed counsel to represent her. The district court granted summary judgment for the defendants on September 14, 2015. Under 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), Hamer had 30 days, until October 14, to appeal the decision to the U.S. Court of Appeals for the 7th Circuit.

By on Jun 26, 2017 at 6:24 am
The late Justice Byron White used to say that every new justice created a “new” Supreme Court. Perry v. Merit Systems Protection Board, decided on Friday, may be remembered as the opening salvo in the battle over statutory interpretation on the “new” Roberts court featuring Justice Neil Gorsuch (who, appropriately, clerked for White). A seven-justice majority held that “mixed cases” should be reviewed in full in federal district court even when the MSPB dismissed the Civil Service Reform Act claims for lack of jurisdiction. That conclusion flowed from the court’s unanimous 2012 decision in Kloeckner v. Solis and reflected the “more sensible” reading of the statute that best served “the CSRA’s objection of creating an integrated scheme of review.” But Gorsuch authored a sharp dissent, calling out the majority for “offer[ing] little in the way of traditional statutory interpretation,” for failing to “grapple with the statute’s text and structure,” and for refusing to follow the “perfectly good law” that Congress had written.

By on Jun 5, 2017 at 2:14 pm
Asked to decide whether an intervenor-of-right must show Article III standing, a unanimous Supreme Court in Town of Chester v. Laroe Estates today seized on the narrowest point of agreement among the parties and the United States as amicus curiae to answer the question in the affirmative and return the case to the lower court to perform the critical analysis, all in a compact eight pages-plus-four-lines. In 2001, the late land-developer Steven Sherman purchased 400 acres of land in the town of Chester, New York, with the intent of building a housing subdivision called MareBrook. His plan ran into the town’s “ever-changing labyrinth of red tape” that pushed Sherman to the brink of personal bankruptcy. In 2003, Sherman received $6 million in payments from Laroe Estates, secured by a mortgage on the development and an agreement to sell Laroe some parcels upon approval of Marebrook; Laroe paid more than $2.5 million of that promised $6 million. The property ultimately was foreclosed on by TD Bank, although the agreement between Laroe and Sherman remained in effect.

By on Apr 18, 2017 at 1:26 pm
Goodyear Tire & Rubber Co. v. Haeger presented the court with an oddity – both sides agreed about the legal rules in play, but argued about what those rules mean in this case. Writing for a unanimous eight-person court (in a case that was argued in January, before Justice Neil Gorsuch joined the court), Justice Elena Kagan held that a court can impose attorney’s fees as a sanction for bad-faith discovery conduct under its inherent powers, but that any award must be “limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.” Because the lower courts did not abide by that standard, the award of $2.7 million in attorney’s fees for the plaintiffs could not stand.

By on Apr 18, 2017 at 12:51 pm
All sides faced sharp questioning from many corners of the Supreme Court on Monday in Town of Chester v. Laroe Estates on the question of whether intervenors as of right under Federal Rule of Civil Procedure 24 must have Article III standing. Representing Chester, Neal Katyal began by arguing that an intervenor-of-right is a “full-blown party” with the “full suite of powers” of the judiciary, from issuing subpoenas to seeking summary judgment. Because “standing is not dispensed in gross” (a phrase Katyal used twice), those assertions of judicial power must be grounded in Article III. And because intervenors must show that existing parties do not represent their interests, they, by definition, are doing something different than the parties, necessitating a standing inquiry. [caption id="attachment_254798" align="aligncenter" width="570"] Neal K. Katyal for petitioner (Art Lien)[/caption]

By on Apr 17, 2017 at 8:41 pm
Aggressive questioning and a singular perspective from the Supreme Court’s newest member, along with complaints from Justice Samuel Alito about the incomprehensibility of the Civil Service Reform Act, highlighted Monday’s argument in Perry v. Merit Systems Protection Board. Both livened up a complex statutory case that appeared to be a likely win for the petitioner. At issue is the handling of “mixed cases,” alleging both adverse employment actions against federal civil-service employees and statutorily prohibited discrimination, when the Merit Systems Protection Board concludes that it lacks jurisdiction because the employee was not subject to an appealable action. Perry argues that review should be in the district court, as with all mixed cases; the government argues that review of the single issue should be in the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over MSPB appeals. The highlight of the argument was the aggressive questioning by Justice Neil Gorsuch, hearing his first case on his first argument day on the court. In questions for both sides, Gorsuch seemed skeptical of the notion of a mixed case singularly heard in the district court, suggesting that district courts are granted authority only to hear the discrimination portion of the case, but not to review the determinations of the MSPB, which remain within the exclusive purview of the Federal Circuit. To the extent that necessitates splitting claims, the splitting is supported by the statute, which does not provide for district court review of MSPB decisions. When Christopher Landau, arguing for Perry, insisted that district courts already review substantive and procedural decisions of the MSPB and that this case does not require the court to break any new ground, Gorsuch responded that Landau instead was asking the court “just to continue to make it up.” Gorsuch later pushed Assistant to the Solicitor General Brian Fletcher to follow the language of the statute to a simpler approach, even if it means splitting claims. Justice Elena Kagan intervened, arguing that the court’s decision in Kloeckner v. Solis and cases from all courts dating back to 1983 establish that full merits review in mixed cases rests with the district court. To change course, she insisted, “would be kind of revolution, I mean, in -- in -- to the extent that you can have a revolution in this kind of case.”

By on Apr 10, 2017 at 3:23 pm
In Town of Chester v. Laroe Estates, to be argued on April 17, the Supreme Court will consider an issue that it expressly declined to decide in 1986, that has split courts of appeals and that has played a silent role in some significant constitutional litigation, most recently the first round of marriage-equality cases: the connection between intervention as of right under Federal Rule of Civil Procedure 24 and Article III standing. The question is whether a party seeking to intervene as a plaintiff as a matter of right under Rule 24(a)(2) must show that he has standing to sue – that he has suffered a concrete, particularized, impending and non-conjectural injury that is traceable to the defendant’s conduct and redressable by a judicial order.

By on Apr 10, 2017 at 10:05 am
[caption id="attachment_254534" align="alignright" width="168"] Courtesy of Anthony Perry[/caption] When the Supreme Court resolves a legal issue, lower federal courts must determine the scope of that resolution, square it with existing lower-court precedent, and apply both to new contexts. Sometimes, the Supreme Court has to re-enter the fray to determine the proper scope of its precedent. In 2012, in Kloeckner v. Solis, the court appeared to resolve the question of the appropriate forum for federal civil-service employees appealing decisions of the Merit Systems Protection Board in “mixed cases” (cases alleging an adverse employment action that also violated a federal anti-discrimination statute), holding that those decisions must be challenged in federal district court. But in Perry v. Merit Systems Protection Board, to be argued April 17, the court returns to the issue to decide whether, as the U.S. Court of Appeals for the District of Columbia Circuit held, the answer is different when the MSPB rejects the employee’s claim for lack of jurisdiction because the adverse employment action is not appealable, rather than on the merits or on some procedural ground.

By on Jan 11, 2017 at 6:37 am
Locomotively questionable train analogies and a bench skeptical of the petitioner’s position marked Tuesday’s argument in Goodyear Tire & Rubber Co. v. Haeger, in which the court considered the validity of a $2.7-million award of attorney’s fees against Goodyear for its bad-faith litigation conduct in failing to produce certain documents relating to a defective tire. Arguing for Goodyear, Pierre Bergeron argued that sanctions require a showing of “direct causation,” which he treated as synonymous with a “but-for” standard. Under this standard, however phrased, fees are available for excess or incremental costs incurred because of steps taken by the plaintiff that would not have been taken without the misconduct. In this case, that includes the costs to the Haegers from Goodyear’s non-disclosure of a “Heat Rise” test showing that the tire reached temperatures above 200 degrees at highway speeds.

By on Jan 3, 2017 at 1:20 pm
640px-nascarphx16 In Goodyear Tire & Rubber Co. v. Haeger, to be argued on January 10, the court will consider whether an award of attorney’s fees and costs, imposed under a district court’s inherent authority as a sanction for bad-faith conduct in discovery, must be limited only to fees and costs “directly caused” by the bad faith conduct. Leroy, Donna, Barry and Suzanne Haeger were seriously injured when one of the Goodyear G159 tires on their motor home failed while the car was traveling on a highway in Arizona. The Haegers sued in Arizona state court in 2005, one of several lawsuits against Goodyear throughout the country over alleged defects in the G159. Goodyear removed the case to federal court, where discovery commenced. Over the next five years, until the parties settled in April of 2010, the parties wrangled over discovery, particularly the Haegers’ requests for production of the results of various federally mandated tests that Goodyear performed on the tire. The current dispute centers on a “Heat Rise” test (showing that the tire operated in excess of 200 degrees at highway speeds) that was not produced in the Haegers’ case, although it was produced in other G159 cases.