Publications
Arbaugh v. Y&H Corp. (04-944), Domino’s Pizza, Inc. v. McDonald (04-593), Oregon v. Gruzek (04-928) and Dolan v. United States Postal Service (04-848)
Greetings, Court fans, and welcome to Part II of this week’s Update!
To recap, there were nine opinions in total this week – we’re five down with four to go (none involving new Justice Alito) . In Arbaugh v. Y&H Corp. (04-944), Justice Ginsburg, writing for a unanimous Court, found that Title VII’s definition of employer, which excludes entities with fewer than 15 employees, is not an unwaivable jurisdictional threshold. Instead, it’s an element of a Title VII claim that can be waived if not asserted before judgment. Admitting that courts have given the term “jurisdictional” far too many meanings and that the Court itself has been “profligate in its use of the term,” the Court adopted a bright-line rule for threshold limitations on the scope of statutes: If Congress does not say the requirement is jurisdictional, it’s not. This case demonstrates the virtues of this approach. Y&H waited until two weeks after an adverse judgment to claim that the District Court lacked jurisdiction over the plaintiff’s Title VII claim because Y&H did not have 15 employees. Discovery then ensued as to the number of individuals providing services to Y&H and whether they counted as “employees” under the law. The Court found this approach both unfair and a waste of judicial resources given that Congress had not clearly indicated that the 15-employee threshold was jurisdictional. Further, whether or not Y&H had 15 employees was a factual matter that properly belonged to the jury. Since the 15-employee requirement is not jurisdictional, Y&H waived its claim by not raising it earlier, and Arbaugh will keep her judgment. And courts and Congress finally have clarity on this nettlesome issue of statutory construction.
Next, in another 8-0 decision, Domino’s Pizza, Inc. v. McDonald (04-593), the Court (Scalia, J.) found that John McDonald, the sole shareholder and president of JWM Investments, could not sue under 42 U.S.C. § 1981 (which protects the right of all persons to make and enforce contracts without respect to race) for Domino’s breach of contracts with JWM because of alleged racial animus toward McDonald. The Court held that it would upend the law of corporations and agency to allow a shareholder to sue for breach of a contract to which the company – not the shareholder – was a party. Section 1981 is not as a panacea for all racial injustice, but only provides a cause of action to those whose rights under a contract (or whose right to make contracts in the first place) are violated. Under general principles of corporate law, McDonald had no rights or responsibilities under the Domino’s contracts, so he had no claim under Section 1981.
In Oregon v. Gruzek (04-928), a Breyer-led Court held that a state can limit the innocence-related evidence a capital defendant can offer in his sentencing proceeding to the evidence he offered in the guilt phase. Gruzek was convicted of capital murder and sentenced to death; after a series of appeals in which he obtained new sentencing hearings due to procedural faults (each time only to be sentenced to death yet again), the Oregon Supreme Court made a number of evidentiary rulings to govern what it would hoped would be the final hearing. Among other things, Gruzek wanted to offer live alibi testimony from his mother, who testified during the guilt phase that Gruzek was with her at the time of the murders. The Oregon court held that the Eighth and Fourteenth Amendments gave Gruzek a federal constitutional right to introduce this evidence at sentencing. The Court disagreed, vacated the Oregon ruling and remanded the case. The Court first rejected Gruzek’s motion to DIG the case (that is, dismiss the writ of cert as improvidently granted); he argued that state law gave him the right anyway, but the Court found that this was only a possibility that did not stand in the way of reviewing a decision that rested on federal law. As to the case itself, the Court held that nothing in the Constitution gives a capital defendant who has been found guilty the right to introduce new evidence on his guilt during sentencing – the issue at sentencing is how, not whether. Even if the Eighth Amendment gave capital defendants some right to introduce “residual doubt” evidence at sentencing (a question the Court ultimately, and maddeningly, left open), that right would not cover Gruzek’s case, because the Amendment still allows states to set reasonable limits on mitigating evidence. Gruzek sought to make a collateral attack on his verdict, which is discouraged; also, Oregon law still allows him to offer transcripts from his guilt phase, which would allow him to put in his mother’s testimony. Justice Scalia (with Thomas) concurred with the Court’s judgment but not its reasoning – he would address what the Court left open and reject all Eighth Amendment residual-doubt claims.
Lastly, in Dolan v. United States Postal Service (04-848), the Court held 7-1 that you can sue the Postal Service if you trip over a package it negligently leaves on your porch. The Third Circuit held that Dolan’s suit was barred by a provision of the Federal Tort Claims Act, which makes the U.S. government liable “to the same extent as a private person in like circumstances” but preserves sovereign immunity from suit for the “loss, miscarriage, or negligent transmission of letters or postal matter.” In an opinion by Justice Kennedy, the Court reversed, holding that context and precedent required it to construe “negligent transmission” narrowly to mean only negligence causing mail to be lost, delayed or damaged. In a previous decision, Kosak v. United States, the Court noted that negligent operation of postal trucks did not fall within the exception – they may be “transmitting” mail, but you can still sue if the truck collides with your car. The current Court found that reasoning controlling. Also, construing FTCA exceptions too generously would defeat the purpose of the statute, which waives sovereign immunity in “sweeping language.” Justice Thomas dissented. He would read “negligent transmission” broadly to exempt any claim arising out of negligent mail delivery, and would limit Kosak to auto accidents. He also would construe any ambiguity in favor of sovereign immunity, which is the general rule of construction (but which the majority rejects for the FTCA).
That’s finally it for the week. In case you’re keeping track, the Court is twelve opinions ahead of its pace from last Term (if it means a slightly calmer June, we won’t complain). Thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
