Supreme Court Update: Foster v. Chatman (13-8349), Green v. Brennan (14-613) and Wittman v. Personhuballah (14-1504)

May 31, 2016 Supreme Court Update

Greetings, Court Fans!

Just one new decision today (along with the first cert grant in ages). In United States Army Corps of Engineers v. Hawkes Co. (No. 15-290), the Court held that a jurisdictional determination by the Army Corps of Engineers that a body of water consists of "waters of the United States" (such that it is regulated by the Clean Water Act) is a final agency action that is judicially reviewable under the Administrative Procedure Act. We'll have a summary of that decision (and a few notable orders) in a jiffy, but this Update is a holdover from last week, which, due to some technical difficulties over the long weekend, went unsent.

Race was the unifying theme at the Court last week, and unifying it was. In three cases touching directly or indirectly on race-based discrimination, the Court ruled in favor of the party alleging discrimination by votes of 8-0, 7-1, and 7-1. (Obviously, none of these cases was Fisher v. University of Texas, the affirmative-action case that will likely split the court 4-3, with Kagan recusing, if indeed it is decided on the merits at all this term.)

First up, in Foster v. Chatman (No. 13-8349), seven justices found evidence of racial discrimination in jury selection so compelling that they resurrected a Batson challenge thirty years after it was first rejected by the state courts. Guess who dissented.

Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection, the State struck all but four black prospective jurors for cause and then used peremptory strikes against the remaining four. Foster challenged his conviction under the then-recently decided case of Batson v. Kentucky (1986), which held that the Constitution forbids the striking of a prospective juror for a discriminatory purpose and outlined a three-step, McDonnell-Douglas type process for determining when a strike is discriminatory. The trial court denied Foster's motion for a new trial under Batson, finding that the prosecution had proffered satisfactory race-neutral explanations for the strikes. The Georgia Supreme Court affirmed in 1989. Foster then sought a writ of habeas corpus under Georgia law and managed to get a hold of the prosecutor's case file, through a Georgia Open Records Act request. Records from the case file tended to show that prosecutors had a single-minded focus on race during jury selection, but the state habeas court nevertheless denied relief, noting first that the Georgia doctrine of res judicata barred the claim, given the earlier new-trial ruling, but proceeding to analyze the new evidence and concluding that the "renewed Batson claim is without merit" because Foster "fail[ed] to demonstrate purposeful discrimination." The Georgia Supreme Court declined to review the case on appeal, determining that the claim had no "arguable merit." Rather than pursuing a federal habeas claim, Foster petitioned for certiorari and the Supreme Court reversed.

Writing for the majority, Chief Justice Roberts catalogued the evidence that suggested the strikes were motivated by race: (1) copies of the venire list on which black jurors' names were highlighted in green with a legend indicating that highlighting "represents Blacks"; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, "If it comes down to having to pick one of the black jurors, [this one] might be okay"; (3) notes identifying black prospective jurors as "B#1," "B#2," and "B#3"; (4) notes with "N" (for "no") appearing next to the names of all black prospective jurors; (5) a list titled "definite NO's" containing the names of all of the black prospective jurors; (6) a document with notes on the Church of Christ that was annotated "NO. No Black Church"; and (7) the questionnaires filled out by five prospective black jurors, on which each juror's response indicating his or her race had been circled.

That pretty much decided the case for the majority. By the time the case reached the Supremes, the focus was on the strikes of two prospective jurors, Garrett and Hood. The Chief addressed the State's purported race-neutral grounds for striking each of these jurors, and systematically dismantled them. Prosecutors had testified that they were on the fence about Garrett but struck her at the last minute for a laundry list of reasons, including that she was too young, was divorced, and failed to disclose that she grew up near the crime scene. As the Chief noted, however, Garrett appeared on the "definite NO's" list (along with all the other black prospective jurors), so the "last minute" story was a lie. Moreover, prosecutors had not challenged several white jurors with the same traits (youth, divorced, familiarity with area of the crime). With respect to Hood, prosecutors initially said they struck him because he had a son about the same age as Foster who had been convicted of a misdemeanor, but later switched focus to the fact that he was a member of the Church of Christ. As Roberts noted, the shifting explanation itself is indicative of pretext. In any case, there were white jurors with children the same age who were not struck, and as the prosecutor's case file disclosed, the Church of Christ was suspect precisely because it was a "Black church." Having found that the strikes of both jurors were discriminatory, the Court concluded that "[t]wo peremptory strikes on the basis of race are two more than the Constitution allows."

Justice Alito concurred in the judgment, agreeing that Foster had satisfied his burden under Batson. He wrote separately, however, to note that there may be an independent and adequate ground for denying Foster's state habeas petition. As the state habeas court had observed, Georgia's res judicata doctrine may bar Batson's claims, depending upon whether he satisfies a "newly discovered evidence" exception. "To the extent that the decision of the Georgia Supreme Court was based on a state rule restricting the relitigation of previously rejected claims, the decision has a state-law component, and we have no jurisdiction to review a state court's decision on a question of state law." Thus, while the Georgia Supreme Court is bound by SCOTUS's ruling on the Batson issue, "whether that conclusion justifies relief under state res judicata law is a matter for [the state] court to decide."

Justice Thomas dissented. In his view, the Court erred both in considering the Batson claim (because there were likely independent and adequate state grounds for dismissal) and by holding the Batson claim had merit. On the procedural issue, Thomas would have sought clarification from the Georgia Supreme Court on whether it denied review of Foster's claim "on the merits" or under state res judicata law. With respect to the merits, Thomas found it "flabbergasting" that the Supreme Court would not defer to the state habeas court's conclusion that the prosecutors' race-neutral explanations for striking Garrett and Hood were credible. Notwithstanding the new evidence catalogued by the majority, Thomas argued that Batson demands a deferential framework, recognizing that the claim ultimately turns on credibility, something the trial court is in a far better position to evaluate. The prosecutors said they didn't rely on race; the state court found them to be credible. For Justice Thomas (and Thomas alone), that's the end of the story.

Next up, in Green v. Brennan (14-613), the Court handed down a plaintiff-friendly ruling concerning the limitations period for Title VII constructive-discharge claims, i.e. claims that an employer's discriminatory treatment made an employee's working conditions so awful that a reasonable person would have felt compelled to resign.

That was the claim made by Marvin Green, a former postmaster in Englewood, Colorado. Green had worked for the U.S. Postal Service for decades, but his relationship with his employer quickly deteriorated after he was denied a promotion in 2008. Green complained that the reason he wasn't promoted was because he was black. In turn, his employer accused him of the crime of intentionally delaying the mail. Eventually, Green and the Postal Service signed an agreement: the Postal Service agreed not to pursue criminal charges, while Green would leave his job in Englewood to either retire or take a job in Wyoming that paid far less. A couple months later, Green chose to retire and submitted his resignation.

Green then reported an unlawful constructive discharge to the Equal Employment Opportunity Commission ("EEOC"), an administrative prerequisite to filing a Title VII complaint. In the case of a federal employee such as Green, the employee "must initiate contact with [an EEOC] Counselor within 45 days of the date of the matter alleged to be discriminatory." Green initiated contact with the EEOC 41 days after his resignation, but 96 days after signing the agreement. When Green eventually filed suit, the District Court dismissed the case as untimely because Green contacted the EEOC more than 45 days after a discriminatory act by his employer. The Tenth Circuit affirmed, finding that the "matter alleged to be discriminatory" encompassed only the Postal Service's discriminatory actions and not Green's later decision to resign.

In a seven-to-one decision, the Supreme Court reversed. Writing for the majority, Justice Sotomayor concluded that the phrase "the matter alleged to be discriminatory" includes the employee's resignation. In other words, the 45-day clock to contact the EEOC counselor doesn't start running until the employee actually resigns. Because the text of the regulation was not helpful, Sotomayor applied the "standard rule" for limitations period, which provides that a limitations period will start only when a plaintiff has a "complete and present cause of action." Because a claim for constructive discharge requires a resignation, the employee does not have a "complete and present cause of action" for constructive charge until he or she actually resigns. To the majority, applying the standard rule made "a good deal of practical sense." A different rule would require a person who suffered discrimination to go through a two-step process: filing a discrimination complaint after the employer's discriminatory conduct and later amending the complaint to allege constructive discharge after he or she resigns.

Justice Alito concurred in the Court's judgment. Alito agreed that Green's action was timely, but he disagreed with the majority's bright-line rule that an employee's resignation always starts the limitations clock for constructive charge claims. According to Alito, the employer's intent is the determinative consideration. The limitations period commences when the employer's last discriminatory act occurs. If the employer subjected the employee to intolerable working conditions with the discriminatory intent to force the employee to resign, then the employee's resignation will be considered a discriminatory act of the employer to start the limitations period. That was the case here, according to Alito. However, Alito would hold that a resignation cannot be considered a discriminatory act to start the limitations period when the employer does not have a discriminatory intent to force the employee to resign.

The former chairman of the EEOC (Justice Thomas) dissented, arguing that only an employer's actions can be "a matter alleged to be discriminatory." In Thomas's view, the employee's own decision to resign can never be considered a discriminatory act. Under this approach, Green could not prevail. The 45-day period would have begun running when the Postal Service asked Green to sign the agreement, and Green was too late when he went to the EEOC counselor 96 days later.

The Eight finally achieved unanimity in Wittman v. Personhuballah (14-1504), a case far more about standing than race. In 2013, the Commonwealth of Virginia enacted a new congressional redistricting plan based on the 2010 census. Some voters from Congressional District 3 challenged the Enacted Plan on the ground that its redrawing of their district's lines was an unconstitutional racial gerrymander. Several Republican members of Congress intervened to defend the plan, but a three-judge district court agreed with the challengers, eventually appointing a special master to draw up a new plan (the Remedial Plan). Three of the original intervenors challenged the Remedial Plan on appeal.

In a brief opinion by Justice Breyer, the Court unanimously concluded that the intervening congressmen lacked standing to challenge the Remedial Plan. As Justice Breyer noted, the need to satisfy Article III's standing requirements "persists throughout the life of the lawsuit." Regardless of whether the congressmen had standing when they originally intervened, circumstances had changed such that none of the remaining intervenors continue to have standing now because none of them were running in, or desired to run in, affected districts and there was no record evidence that any portion of their "base electorate" had been replaced with "unfavorable Democratic voters," as they'd contended. "Given the lack of evidence that any of the three Representatives has standing," the Court concluded that it lacked jurisdiction and therefore dismissed the appeal.

That'll do it for now. Stay tuned for a summary of today's decision and orders.