Supreme Court Update: Thompson v. North American Stainless, LP (09-291), Ortiz v. Jordan (09-737), Harrington v. Richter (09-857) and Premo v. Moore (09-658)
Greetings, Court fans!
Today's Update will cover four cases: the biggie, Thompson v. North American Stainless, LP (09-291), holds that Title VII prohibits an employer from retaliating against an employee who reports discrimination by taking an adverse action against a person closely related to the complaining employee (here, firing the employee's fiancé); Ortiz v. Jordan (09-737), finding that the denial of summary judgment cannot be appealed after a trial on the merits; and Harrington v. Richter (09-857) and Premo v. Moore (09-658), two cases addressing the proper standard of deference accorded to state court determinations in later federal habeas proceedings. To break things up, we'll bring you three additional decisions released last week and the Court's recent orders in a separate Update.
Thompson v. North American Stainless, LP (09-291) involved a Title VII retaliation claim by Eric Thompson, who contended that he was fired because his fiancé – also an employee at North American Stainless ("NAS") – filed a sex discrimination claim with the EEOC. Two questions were presented by this fact pattern: (1) did NAS violate Title VII's retaliation prohibition; and (2) even if it did, could Thompson, who wasn't the complainant to the EEOC, bring suit for that violation. The district court and the Sixth Circuit, acting en banc, concluding that Title VII did not permit so-called "third party retaliation claims." Because Thompson did not engage in any protected activity, the lower courts reasoned, "he was not within the class of persons for whom Congress had created a retaliation cause of action." The Court (less Kagan, who did not participate) unanimously reversed in an opinion by Justice Scalia.
Title VII makes it an unlawful employment practice for "an employer to discriminate against any of his employees . . . because he has made a [discrimination] charge" and permits any person "claiming to be aggrieved" to file a charge with the EEOC. If the EEOC declines to file suit, "the person claiming to be aggrieved . . . by the allegedly unlawful employment practice" may do so. The Court had "little difficulty" determining that if NAS fired Thompson in retaliation for his fiance's EEOC charge, it would constitute unlawful retaliation. Title VII's antiretaliation provision has been broadly interpreted to prohibit any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination," and the potential firing of a fiancé certainly fit that description. (I'm not sure I recall the "well might" standard . . . . Is that somewhere between "might" and "likely," or is that just Southern?) The Court declined to draw a bright line rule to define when an adverse action taken against another person would qualify under this standard, but did note that the firing of a close family member would nearly always qualify, while a milder sanction against a mere acquaintance almost never would.
The harder question was whether Thompson could enforce that violation, but the Court didn't struggle much there either. The Court rejected the argument that only an employee who has engaged in protected activity qualifies as a person "claiming to be aggrieved," because the statute easily could have been written to limit suits to claimants, but was not. The Court also rejected the extreme position that anyone who could establish minimal Article III standing (i.e., actual injury) could sue, a position which might allow a shareholder to sue if a key employee were fired in retaliation for protected conduct. Instead, the Court found that a person must establish both Article III standing and that he falls within the zone of interests protected by the statute. Here, Thompson met both prongs of this test. He was certainly injured by his firing and the purpose of Title VII was to protect employee's from their employer's unlawful conduct. Thompson's firing was the intended means of harming his fiancé for reporting sex discrimination, which is exactly the type of conduct the retaliation provision was designed to prohibit.
Justice Ginsburg, joined by Breyer, concurred to point out that the EEOC's Compliance Manual also forbids "retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights." The EEOC's Manual should be accorded Skidmore deference, giving added support to the Court's conclusion.
Next up, in Ortiz v. Jordan (09-737), the Court answered an interesting procedural question: whether the denial of a motion for summary judgment can be appealed after a full trial on the merits. The answer: no. Ortiz was an inmate in an Ohio reformatory. She was sexually assaulted by a corrections officer, but notwithstanding her prompt report of the assault, was assaulted again by the same officer the next day. Pursuant to 42 U.S.C. § 1983, Ortiz sued the case manager to whom she reported the first assault for failing to protect her from the second assault. She also sued a prison investigator, who she claimed retaliated against her for reporting the assaults by placing her in solitary confinement, handcuffed and shackled, with insufficient heat, clothing, bedding or blankets. Defendants filed a motion for summary judgment based on qualified immunity. The district court denied the motion, finding disputed facts, and defendants did not attempt to file an interlocutory appeal. Trial proceeded on the merits. Defendants moved for judgment as a matter of law under Rule 50(a) at the close of plaintiff's case and after the close of their own evidence, which were not granted at that time. The jury later returned a verdict against both defendants. Defendants did not renew their motion for judgment as a matter of law by filing a motion under Rule 50(b) after the jury's verdict; nor did they request a new trial under Rule 59(a).
Defendants later attempted to appeal the trial court's decision denying their motion for summary judgment based on qualified immunity. The Sixth Circuit agreed with defendants and found that they were sheltered from suit by qualified immunity. The Court reversed, with all Justices agreeing in the result, though only six joined in the majority opinion, which was authored by Justice Ginsburg. The denial of summary judgment is ordinarily not appealable either interlocutorily or after final judgment. However, where qualified immunity is at issue, an interlocutory appeal may be had if questions of law are at issue. Where fact issues exist (like here), however, no interlocutory appeal is permitted. Moreover, defendants certainly can't forego attempting to appeal, sit through a lengthy trial and then attempt to seek review of a summary judgment denial. The summary judgment process is superseded by trial evidence. And Defendants motions for judgment as a matter of law were also insufficient because they were not renewed after the jury's verdict by way of a Rule 50(b) motion. Therefore, appellate review for sufficiency of the evidence was precluded.
Justice Thomas, joined by Justices Scalia and Kennedy, filed an opinion concurring in the judgment. They agreed with the majority that a defendant could not attempt to appeal the denial of a motion for summary judgment after participating in a full trial on the merits, but they would not address the need for defendants to renew their motions for judgment as a matter of law after the jury's verdict because cert was not granted with respect to that question.
Finally, Justice Kennedy authored two decisions reversing the Ninth Circuit for failing to accord proper deference to state court determinations in federal habeas proceedings. Kennedy was joined by all other Justices, except Ginsburg, who wrote short opinions concurring in the judgment, and Kagan, who did not participate.
Both cases involved facts reminiscent of the movie Pulp Fiction. Harrington v. Richter (09-857) began with four men smoking marijuana, and ended with two of them shot, one fatally. The other two men were tried for murder and robbery. The surviving victim testified that he woke up to find Richter and the other defendant in his bedroom, whereupon they shot him. As they left, he heard more shots fired in the living room, and he later found the other victim bleeding on the living room couch. Richter's attorney tried to cast the surviving victim as a drug dealer and paranoid trigger-happy gun fanatic. Richter took the stand and testified that he entered the house only after shots were fired, that the surviving victim had been the initial aggressor, and that the other victim was killed in cross-fire while standing in the doorway of the bedroom, not on the living room couch. Richter did not convince the jury, and they convicted him on all counts. Richter later petitioned for state habeas relief, arguing that his counsel was deficient for failing to present expert testimony regarding the source of blood in the bedroom doorway. The California Supreme Court denied the petition in a one-sentence summary order.
Richter's federal habeas petition was also denied by the district court, and a Ninth Circuit panel. The Ninth Circuit agreed to hear the case en banc, however, and reversed. The Court reversed right back. First, the Court put to rest any doubt that the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) limitations on federal habeas review apply to state court decisions by summary order. AEDPA bars relitigation of any claim "adjudicated on the merits" in state court unless the state court's decision resulted from an unreasonable application of federal law or determination of facts. AEDPA does not require state decisions to come with a statement of reasons. Requiring a statement of reasons could undermine state judiciaries' ability to concentrate their resources on cases where opinions are most needed. Next, the Court admonished the Ninth Circuit for substituting its view of counsel's performance for that of the state court. Instead, under AEDPA, federal courts must determine "what arguments or theories supported or, as here, could have supported, the state court's decision," then ask whether "fair-minded jurists could disagree that those arguments or theories are inconsistent" with the Court's prior decisions. Finally, the Court disagreed with the Ninth Circuit's ineffective assistance of counsel analysis. In the Court's view, attorneys are entitled to "balance limited resources in accord with effective trial tactics and strategies." Richter's counsel could have reasonably determined it was better to cast doubt on the prosecution's theory than to prove his own theory through blood evidence, which could have backfired. Moreover, it was not clear that Richter was prejudiced by his counsel's failure to pursue blood evidence, given other evidence against him and several inconsistencies in his story.
Justice Ginsburg believed that Richter's counsel should have at least consulted blood experts, but concurred in the judgment because, given the strength of the prosecution's case, that lapse was not so serious as to deprive Richter of a fair trial.
In Premo v. Moore (09-658), Moore and two accomplices attacked the victim, threw him into the trunk of a car, and drove him to a remote area. Moore told police that he only meant to scare the victim and make him walk home, but his gun discharged accidentally, killing the victim. On advice of counsel, Moore pled no contest to felony murder in Oregon state court, in exchange for the minimum sentence of 300 months. Moore later filed for post-conviction relief, arguing that he had been denied effective assistance of counsel because his lawyer should have moved to suppress his confession before advising him to accept the plea offer. The Oregon court rejected the argument, after an evidentiary hearing in which Moore's counsel explained that he believed a motion to suppress would have been futile, as Moore and an accomplice had made the same confession to two other people who could testify.
The district court also rejected Moore's federal habeas petition, but the Ninth Circuit reversed. Again, the Court reversed. (Not a good day for the Ninth.) The Court found that the Ninth Circuit was "wrong to accord scant deference to counsel's judgment," and "doubly wrong" to conclude that the state court's ineffective assistance of counsel determination was unreasonable. In the Court's view, it is even more important for habeas courts to evaluate counsel's performance by an objective standard of reasonableness, and not merely "second guess," in plea bargained cases. A pre-trial record might not reflect all the considerations in play as a counsel weighed the risks and opportunities for his client. Also, prosecutors might become more reluctant to make deals if they could be easily unraveled on habeas petitions. In Moore's case, it was reasonable for his counsel to believe that there was little to gain from a motion to suppress, and much to lose, if the state uncovered more incriminating evidence or decided to take a more aggressive position. Moreover, it would not have been unreasonable for the state court to conclude that Moore failed to demonstrate prejudice; i.e. that he would not have pled guilty if he had won the motion to suppress. After all, two other witnesses could testify to the confession, and Moore would still have to convince the jury that the shooting was accidental—with a life sentence or the death penalty on the line. Justice Ginsburg also concurred in the judgment, noting that Moore had never declared that, but for his counsel's errors, he would have insisted on going to trial.
We'll be back soon with more decisions and orders!
Kim & Jenny