Supreme Court Update: Hawkins v. Patterson (14-520), Tyson Foods v. Bouaphakeo (14-1146), Nebraska v. Parker (14-406), Sturgeon v. Frost (14-1209) and Caetano v. Massachusetts (14-10078)

March 25, 2016 Supreme Court Update

Greetings, Court Fans!

So many announcements since our last Update. The President announced D.C. Circuit Chief Judge Merrick Garland as his pick to take the late Justice Scalia's seat on the Court; Senate Republicans promptly announced that they didn't care; and, most importantly, Updater Kim Rinehart announced the birth of Baby Boy Rinehart #4. Congrats, Kim!

Meanwhile, The Nine Eight have sprung back into action, releasing five decisions this week, including the first of what will likely be several per curiam orders affirming a lower court judgment 4-4. Hawkins v. Patterson (14-520) concerned whether a "primarily and unconditionally liable" spousal guarantor counts as an "applicant" under the Equal Credit Opportunity Act (ECOA), such that she has standing to assert an ECOA violation, like marital-status discrimination. Apparently, that is a divisive question, for the case, which was argued on the first day of the term, went undecided for nearly six months before the Court gave up, announcing in a per curiam order that "[t]he judgment is affirmed by an equally divided Court." That means the Eighth Circuit's decision that a guarantor does not qualify as an "applicant" stands, but decisions in the Sixth Circuit and several state courts reaching the opposite conclusion are left standing as well, at least until the issue comes up again before a nine-member Court. If only the Judiciary Committee would set a hearing so we could hear Judge Garland's views on this critical question!

The Eight also had some difficulty finding agreement in Tyson Foods v. Bouaphakeo (14-1146), which presented issues relating to class actions under the Fair Labor Standards Act that were almost as difficult as the pronunciation of the lead respondent's name. The respondents work for Tyson in an Iowa pork-processing plant and are required to wear protective gear, which differs depending on which tasks they are required to perform on a given day. Tyson paid some, but not all, of these employees for the time spent donning and doffing their safety gear, but it didn't keep records of the time employees spent on these activities. The employees sued under the FLSA, claiming that they'd been denied overtime for time spent donning and doffing, which they claimed was an integral and indispensable part of their duties. To bring home the bacon, the employees had to show that they each worked more than 40 hours a week, including time spent putting on and taking off their gear. Because Tyson had failed to keep consistent records of the donning-and-doffing time, the employees relied on a study performed by an industrial-relations expert, who concluded that employees in the cut and retrim departments spent an average of 18 minutes a day putting on and removing their safety gear, while employees in the kill department spent 21¼ minutes.

The district court certified a Rule 23(b)(3) class, finding that the common question—whether donning and doffing protective gear is compensable under the FLSA—was susceptible to class-wide resolution and predominated over individual issues. The case went to trial and a jury awarded the class $2.9 million in unpaid wages. On appeal, Tyson argued that the varying amounts of time it took employees to don and doff made reliance on the expert's study improper and that using the study would allow individual class members who had not worked the requisite 40 hours to recover. The Eighth Circuit upheld the District Court's certification of the class, and the Supreme Court affirmed.

Writing for the majority, Justice Kennedy concluded that the common question whether donning and doffing gear is compensable under the FLSA predominated over other individual issues, making the class certifiable under Rule 23(b)(3). Moreover, because Tyson failed to keep records of donning-and-doffing time, the plaintiffs' only feasible means of establishing the time they spent working was to rely on "representative evidence," as permitted by Anderson v. Mt. Clemens Pottery Co. (1946). Tyson also argued that the class should not have been certified because the plaintiffs' failure to identify uninjured class members before trial meant that damages might be improperly disbursed to uninjured parties. But Justice Kennedy brushed this concern aside, noting that the jury's award had not yet been disbursed, so the question was not ripe for resolution; it remains a problem for the district court to resolve in the first instance.

The Chief, joined in part by Justice Alito, concurred in full but wrote separately to voice a concern that the district court may not be able to fashion a method for awarding damages only to those class members who suffered an actual injury. Problematically, the jury awarded $2.9 million in damages when the plaintiffs' expert's calculated that the damages amounted to $6.7 million. It is impossible to tell, from the jury's lump-sum award, how much donning and doffing time the jury found had actually concurred. For that reason, the Chief cautioned, it is not possible to tell who was injured and who was not, and the jury verdict on damages may therefore be vulnerable on remand.

Justice Thomas, joined by Alito, dissented, arguing that the class should not have been certified because the individual issue of determining who was actually injured and who was not (in other words, who had and had not worked at least 40 hours per week) was too significant to be predominated over by the common question of whether donning and doffing time is compensable. He questioned the majority's reliance on Mt. Clemons, which he argued was distinguishable because the plaintiffs in that case alleged that they had all worked over 40 hours per week, meaning the employer was presumptively liable for unpaid overtime. In Justice Thomas's view, plaintiffs can rely on representative evidence only if the employer's liability is certain, which was not the case here.

The Eight continued to show love for the Eighth (which went 3 for 3 this week) in Nebraska v. Parker (14-406), a case asking whether the village of Pender, Nebraska, lies within the boundaries of the Omaha Indian Reservation, or whether an 1882 Act empowering the Secretary of the Interior to sell some of the Tribe's land "diminished" the reservation's boundaries, thereby freeing Pender and surrounding land of its reservation status. While it may seem that this question should have been answered sometime in, say, 1883, it didn't come to a fore until 2006, when the Tribe sought to impose a 10% tax on liquor sales and Pender's bowling alley, two bars, and seven liquor stores cried foul. Federal law permits Tribes to regulate liquor sales on reservations and in "Indian country," so long as the Tribe's regulations are certified by the Secretary of the Interior, as they were here. But Pender (along with the aforementioned retailers) argued that the village doesn't fall within Indian Country, owing to an 1882 Act that authorized the Interior Secretary to sell 50,000 acres of reservation land west of a railroad right of way with proceeds placed in trust for the Tribe. (Pender falls west within that 50,000 acres.) Both the District Court and the Eighth Circuit held that the 1882 Act did not diminish the reservation's boundaries, and the Supreme Court affirmed.

Writing for a unanimous Court, Justice Thomas framed the issue as follows. If Congress "diminished" the Omaha Indian Reservation in 1882, then Nebraska now has jurisdiction over the disputed land, including Pender; if it instead only enabled non-Tribe members to purchase land within the reservation, "then federal, state, and tribal authorities share jurisdiction "over these ‘opened' but undiminished reservation lands." To answer this question, Justice Thomas looked first to the text of the 1882 Act, noting that Congress's intent to divest a reservation of its land must be clear. The 1882 Act bears none of the hallmarks of diminishment, such as language providing for the "total surrender" of tribal claims or restoring land to "the public domain." Instead, it empowered the Secretary to survey and appraise the land now in dispute, which could then be purchased in 160-acre tracts by nonmembers. "From this text," Justice Thomas concluded, "it is clear that the 1882 Act falls into another category of surplus land Acts: those that merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians' benefit." Such schemes allow non-members to own land on a reservation, but they do not diminish the reservation's boundaries. Without a clear textual signal that Congress intended to diminish the Reservation's boundaries, and given the "mixed historical evidence," the Court concluded that the Reservation remained undiminished even though the Tribe had largely been absent from the disputed land for 120 years. (Justice Thomas noted that the petitioners had not advanced any equitable claims relating to laches or acquiescence.) Accordingly, the Court held (more or less), Pender's peddlers of potent potables will have to pay the piper.

The Court unanimously resolved another land dispute in Sturgeon v. Frost (14-1209), this time addressing whether federal or state law applies in a portion of the Nation River in Alaska, which runs through the Yukon-Charley Rivers National preserve. John Sturgeon, an inaptly named moose hunter, was piloting up the Nation in his hovercraft (that's right) one day in 2007, when he stopped to make a repair on a gravel bar that fell within the preserve. National Park Service (NPS) rangers ordered Sturgeon to remove his hovercraft from the preserve pursuant to NPS regulations banning hovercraft within the "boundaries of federally owned lands and waters" and on "[w]aters subject to the jurisdiction of the United States," inside a national park. Sturgeon complied, but then sued for declaratory and injunctive relief, arguing that the NPS in fact had no authority to apply its regulations to the Nation River thanks to the Alaska National Interest Lands Conservation Act (ANILCA), which limits NPS authority over "conservation system units" in Alaska to "lands, waters, and interests therein," to which the United States has "title."

Sturgeon argued that ANILCA creates an Alaska-specific exception to the NPS's general authority over boating and related activities in federally managed conservation areas. NPS cannot regulate "non-public" land in Alaska, and the Nation River is not "public land" under ANILCA because Alaska has "title" to it under the Alaska Statehood Act, which granted it ownership of the submerged lands beneath the State's navigable waters. NPS countered that the U.S. has title to an interest in the water of the Nation River under the "reserved water rights" doctrine, by which the U.S. retained the rights to use the water inside the Yukon-Charley preserve when it created the conservation area. Thus, in NPS's view, the federal government has an interest in the Nation River, making it "public land." The NPS also argued that, because the hovercraft ban applies to both "public lands" and "[w]aters subject to the jurisdiction of the United Sates located within the boundaries" of conservation areas, it is not "solely" applicable to public lands and, therefore, ANILCA does not prohibit its application to the River.

The Ninth Circuit declined to resolve the question whether the Nation River is "public" or "non-public." Rather, it held that "regulations applicable solely to public lands" within conservation areas distinguishes between NPS regulations that apply solely to "public lands" in Alaska, and NPS regulations that apply to federally managed conservation areas across the country. Under this interpretation, the word "solely" means "in Alaska only," not "applicable to public lands only". Thus, NPS can enforce nationally applicable regulations on both public and non-public property in Alaska, because those regulations do not apply "solely to public lands within" Alaskan conservation areas. Conversely, NPS cannot apply Alaska-specific regulations to "non-public" lands within those units.

Not so fast, said the Supreme Court, in a unanimous opinion authored by the Chief. While the Ninth Circuit's theory was "plausible in the abstract," it is "ultimately inconsistent with both the text and the context of the statute as a whole." The Ninth Circuit violated the fundamental canon of statutory construction that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." ANILCA consistently highlights that Alaska is different; it is the exception, not the rule. The Ninth Circuit's reading would produce the absurd result that NPS could only regulate "non-public" Alaskan land only through rules that apply outside Alaska. Furthermore, ANILCA contemplates the possibility "that all the land within the boundaries of conservation system units in Alaska may be treated differently from federally managed preservation areas across the country," a result that is impossible under this reading of the statute. ANILCA, the Court said, did not adopt this "topsy-turvy approach".

Accordingly, the Court vacated and remanded the judgment without itself resolving any of the other questions at hand, preferring to send the questions of proper statutory interpretation and the validity of NPS's interpretation of its own authority downstream to the lower courts. Try again, CA9.

Finally, in Caetano v. Massachusetts (14-10078), the Court unanimously confirmed that the holding of District of Columbia v. Heller (2008) that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," means that non-lethal "stun guns" also fall within its protection. The Court therefore GVR'd a decision of the Massachusetts Supreme Judicial Court upholding a Massachusetts law banning stun guns because they were not "the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." That wasn't enough for Justices Alito and Thomas, who concurred separately, apparently to underscore just how wrong the MA court was in affirming the conviction of a woman who'd brandished a stun gun to protect herself from an abusive ex-boyfriend "on the flimsiest of grounds." To Alito and Thomas, the "reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense" and it required more than a "grudging per curiam" sending the case back to the very court that had ignored Heller the first time.

That'll do it for this week's opinions. There are a few stragglers from the last decision day, which we'll have for you next time, along with recent cert grants. Until then!