United States v. Banks (02-473), Raytheon Co. v. Hernandez (02-749) and order list

December 2, 2003 Supreme Court Update

Greetings Court fans!

While we were all out eating turkey, the Court was busy, granting cert in 6 cases and issuing 2 opinions. Here's the rundown:

Both opinions are unanimous reversals of the 9th Circuit. The first, United States v. Banks (02-473) is a Fourth Amendment case. The police had a warrant to search Banks's apartment for cocaine. When they arrived at his apartment, they knocked and called out "police search warrant." After waiting 15-20 seconds with no response, they used a battering ram to break open the door. The Ninth Circuit held that the police violated the Fourth Amendment because they failed to wait long enough before they rammed the door. The Ninth Circuit reached this conclusion after outlining a complicated classification scheme designed to identify the reasonableness of police intrusion after knock-and-announce. Even if I hadn't already told you that the Court reversed the Ninth Circuit, you probably could have guessed the outcome. The Court (in a remarkably short opinion for Souter) rejected the Ninth Circuit's classification scheme, emphasizing yet again that "reasonableness" under the Fourth Amendment requires a case-by-case inquiry. Here, the entry into Banks's apartment was reasonable because during the 20 seconds after the police announced their presence, Banks could have been flushing his drugs. (For those of you without experience in drug dealing, Souter helpfully notes that "a "prudent dealer" will keep his drugs near a sink or commode.) There's not much more to this opinion, so we'll just move on.

In the second opinion, Raytheon Co. v. Hernandez (02-749), the Court again reversed the Ninth Circuit. Here, Hernandez was forced to resign from his job with Hughes Missile Systems when he failed a drug test, a violation of the company's workplace conduct rules. When he applied to be rehired 2 years later, Hughes refused to hire him, citing a policy against rehiring employees who were terminated for workplace misconduct. Hernandez filed suit under the ADA claiming that Hughes had discriminated against him on the basis of his drug addiction. The district court granted summary judgment to Hughes, but the Ninth Circuit reversed. According to the Ninth Circuit, Hughes's policy against rehiring employees who violate company policy is unlawful because it had a disparate impact on recovering drug addicts. The only problem with this conclusion, as noted by Thomas in his opinion for the Court, is that Hernandez had not properly preserved a "disparate impact" claim. Hernandez's only claim was a "disparate treatment" claim, and under the McDonnell Douglas burden shifting framework used in such cases, a neutral, no-rehire policy is a legitimate reason for the employer's action. The Ninth Circuit thus erred by using a "disparate impact" analysis to evaluate a "disparate treatment" claim. Chalk this case up to error correction.

Now for the cert grants from Monday:

1. Central Laborers' Pension v. Heinz (02-891): Just from the title, you know this is an ERISA case. ERISA allows pension plans to amend their provisions, but they cannot reduce benefits already accrued. The question here is whether an amendment that expands the types of post-retirement employment that trigger suspension of early retirement benefits violates this anti-cutback rule.

2. Sosa v. Alvarez-Machain (03-339) & United States v. Alvarez-Machain (03-485): The Court granted both of these cases and consolidated them for argument. Both cases arise out of the arrest and detention in Mexico of a Mexican national by Mexican civilians at the behest of the DEA. These cases promise to be interesting, especially in our post-9/11 world, as they will explore, inter alia, the reach and scope of federal criminal authority outside our borders. The Sosa petition has 3 questions: (1) Is the Alien Tort Claims Act a grant of jurisdiction or does it also provide a cause of action? (2) If the ATCA provides a cause of action, are the actions it authorizes limited to suits for violations of jus cogens norms of international law? (3) Does a detention that lasts less than 24 hours, results in no physical harm to the detainee and is undertaken by private individual under instructions from senior US law enforcement officials constitute a tort in violation of the law of nations actionable under the ATCA? The United States petition has 2 questions: (1) Do DEA agents have authority to enforce federal criminal statute that applies to acts perpetrated against US official in foreign country by arresting indicted criminal suspect in foreign country? (2) May individual arrested in foreign country bring action under Federal Tort Claims Act for false arrest notwithstanding FTCA's exclusion of "any claim arising in a foreign country" because the arrest was planned in the United States?

3. Schriro v. Summerlin (03-526): In this case, the Court will decide whether its decision in Ring v. Arizona (jury, not judge, must impose death sentence) applies retroactively.

4. Johnson v. California (03-6539): The Court granted cert to decide the following question: Whether to establish a prima facie case under Batson v. Kentucky, the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias?

5. Pennsylvania State Police v. Suders (03-95): This is an employment discrimination case with the following question presented: When hostile work environment created by supervisor culminates in constructive discharge, may the employer assert affirmative defense recognized in Burlington Industries v. Ellerth and Farragher v. Boca Raton, Fla.?

6. Nelson v. Campbell (03-6821): Question: Whether a complaint brought under 42 USC 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 USC 2254?

That's all for now. Thanks for reading.

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.