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Author: Howard M. Wasserman

By on Apr 26, 2016 at 4:59 pm
Heffernan v. City of Paterson reduces to a simple question: is “[d]emoting a dutiful son who aids his elderly, bedridden mother” merely callous? Or, when based on an erroneous factual belief about what the dutiful son was doing, does it also violate the First Amendment? Writing for a six-person majority, Justice Stephen Breyer concluded it is unconstitutional, granting at least a temporary victory, and an opportunity for further litigation, to demoted police officer Jeffrey Heffernan. Dissenting, Justice Clarence Thomas, joined by Justice Samuel Alito, insisted Heffernan’s demotion was merely callous and perhaps “misguided or wrong,” but not unconstitutional.

By on Jan 20, 2016 at 7:08 am
In Tuesday’s argument in Heffernan v. City of Paterson, the Justices considered a case that Justice Samuel Alito called a law school hypothetical -- whether a public employee can show a violation of his right to political association when he was demoted explicitly because his employer believed he was holding a campaign sign as a show of support for the challenger in the mayoral race, even when the employee was not expressing support and had taken no position in the election. This question required the Justices to tangle with core questions of what the First Amendment does in the public-employment context. Does it create a right not to be subject to a test of political affiliation? Is there a meaningful difference between political neutrality and political agnosticism? Does it protect only those people who actively engage in expressive or associational activity? Or does it protect all people against government decisions made with an improper motive of suppressing disfavored political beliefs?

By on Jan 12, 2016 at 1:53 pm
The First Amendment limits, although does not preclude, patronage in public employment. A public employer cannot take adverse action against a non-political, non-policy-making employee -- one holding a position for which political affiliation is not required for effective performance of the public office -- because of that employee’s political and associational activity, such as voting for or supporting a candidate for office. But what if the employee suffered adverse action because of what the employer believed to be his political and associational activity, even though he was not actually engaged in any such activity? What if the employer, while explicitly intending to retaliate against the employee because of his political activity, was wrong about that activity? The Supreme Court will resolve that question in Heffernan v. City of Paterson, to be argued January 19.

By on Dec 8, 2015 at 5:14 pm
The outcome in Shapiro v. McManus, considering when a case must be referred for a three-judge district court, seemed preordained from oral argument. The Justices asked fewer questions than usual, but all seemed highly skeptical of the state of Maryland’s positions. And Justice Antonin Scalia found himself able to say only “Wow” about some implications of the government’s argument. Unsurprisingly, the Court today ruled unanimously, in an opinion by Scalia, that a three-judge district court must be convened in any action challenging the constitutionality of the apportionment of congressional districts, and that single judges do not have discretion to decline to refer an otherwise-qualifying case.

By on Nov 5, 2015 at 10:29 am
Lawyers for both sides in yesterday’s argument in Shapiro v. McManus encountered an unusually subdued Court. In a case considering whether a single district judge can dismiss, for failure to state a claim, an action that otherwise must be decided by a three-judge district court, the Justices asked fewer questions than in many arguments and allowed both attorneys to speak for long stretches without interruption. Many of the questions were less about challenging the attorney than about understanding the three-judge district court process generally and as it applies in reapportionment cases. But many questions, particularly from Justices Antonin Scalia and Elena Kagan, indicated a likely victory for the voters challenging Maryland’s legislative redistricting, allowing them to have their claims heard by a three-judge court.

By on Oct 19, 2015 at 1:14 pm
Congress created the three-judge district court in 1910; the procedure directly responded to the Supreme Court’s decision in Ex Parte Young, which allowed a federal district court, presided over by a single judge, to enjoin enforcement of an unconstitutional state law. By moving such cases to three-judge district courts, Congress sought to achieve several things: to limit the power of a single district judge to enjoin enforcement of state (and later federal) laws; to make it more difficult for plaintiffs to obtain such injunctions; to ensure that any injunction is more authoritative, better reasoned, and more likely correct because multiple judges, many from outside the local area, were involved in the deliberation and decision; and to ensure that such injunctions receive expeditious and final Supreme Court review. Screen Shot 2015-10-19 at 2.00.03 PM

By on Apr 23, 2015 at 9:34 am
In United States v. Wong, decided together with United States v. June, the Court concluded, yet again, that a statute of limitations is a “claim-processing rule” and subject to equitable tolling, rather than a limit on the court’s adjudicative jurisdiction which allows for no tolling. But because these cases involved the Federal Tort Claims Act and waiver of federal sovereign immunity, it produced a five-to-four split, unusual for the Court’s recent, generally unanimous jurisdictionality jurisprudence. Although June and Wong were not consolidated, the United States filed substantially identical briefs in both cases and everyone agreed that the same arguments applied in both and that the outcomes of both must necessarily be the same. At issue in Wong’s case was a wrongful imprisonment claim arising from her detention by the INS in 1999; she failed to file the claim in federal court within six months after the INS had denied her administrative complaint. Jones’s case involved a wrongful death action and a claim that the Federal Highway Administration had approved the installation of median crash barriers that had never been properly crash tested; the plaintiff filed the administrative claim with the FHWA more than two years after the fatal car accident. The Ninth Circuit had held that neither claim was necessarily untimely because both limitations periods were potentially subject to equitable tolling.

By on Jan 21, 2015 at 4:17 pm
Two things stand a good chance of happening when the Supreme Court resolves cases dealing with procedure and jurisdiction. One is that the Court will be unanimous or close to unanimous in its decision. The other is that Justice Ruth Bader Ginsburg will write for the Court. Such was the case on Wednesday in Gelboim v. Bank of America, in which a unanimous Court, in an opinion by Justice Ginsburg, held that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL.

By on Dec 12, 2014 at 10:43 am
On Wednesday, a subdued Court spent two hours hearing oral arguments in United States v. Wong and United States v. June, considering whether the limitations periods under the Federal Tort Claims Act are jurisdictional or subject to equitable tolling. The Justices asked relatively few questions, allowing all four attorneys to speak uninterrupted for long stretches and to provide lengthy answers to many questions. The Court heard Wong first, considering the six-month limitations period for filing tort claims against the United States in federal district court following presentment of the claim to an administrative agency. Arguing for the United States, Assistant to the Solicitor General Roman Martinez emphasized that Congress “transplanted” or “cut-and-pasted” the language from the Tucker Act’s limitations period for non-tort monetary claims against the United States into the FTCA’s limitations period. And although neither period uses the word “jurisdiction,” because Congress enacted the FTCA against numerous decisions holding the same language in the Tucker Act jurisdictional and not subject to equitable tolling, it necessarily understood itself to be incorporating that same settled jurisdictional meaning into the FTCA. Martinez repeatedly returned to this point. He also called the FTCA the “second great waiver of sovereign immunity,” on which Congress was very careful to protect government from late claims by enacting a strict limitation on when the government can be sued.

By on Dec 11, 2014 at 11:57 am
Lawyers for both parties faced skeptical questioning in Tuesday’s arguments in Gelboim v. Bank of America. Tasked with deciding the appealability of a decision dismissing all claims in an action that is part of a consolidated MDL action, the Court considered competing approaches that exposed questions about the meaning and scope of particular rules and that may or may not make much practical difference. sSC141209wide_Goldstein