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2007 U.S. Supreme Court The United State’s Supreme Court’s 75 signed opinions disposed of high profile and other significant but less publicized disputes. The court decided questions ranging from EPA’s authority to issue a Rule reducing greenhouse gas emissions and thereby affect global warming to desegregation, discrimination, the National Bank Act, antitrust, tax, patent, qui tam, bankruptcy, telecommunications, preemption, dormant Commerce Clause, punitive damages, campaign finance reform, and the First, Fourth, Sixth, and Fourteenth Amendments. After briefly discussing the Roberts Court, its trends, and general outcomes, this article reviews key opinions[1] from the most recent term affecting Tennessee lawyers and concludes with reporting about increased hostility vented at courts and judges. The Court, Justices and Outcomes: Generally, Roberts Court’s opinions are more conservative than the Rehnquist Court’s, principally because Justice Alito replaced Justice O’Connor. While both justices are economic conservatives, unlike O’Connor, Alito has cast the fifth vote and joined with the court’s social conservatives in contentious decisions that signaled a retreat on schools’ voluntary efforts to combat desegregation and upheld a federal partial birth abortion law, thereby questioning the viability of a recent ruling on the same procedure. The court still often votes 5-4, and Justice Kennedy has become the swing vote, the role O’Connor played. Though justices strive to decide complex cases correctly and articulate workable principles for the bench and bar, currently most of them stress courts’ limited “role” in a democracy, hold that courts have little license to alter constitutional or statutory texts, defer to the views of regulators, government officials, and established private firms, and prize private property rights and freedom of contract. Those values translate into opinions that —
As a result, government and large firms usually prevail before this court, and small business, individuals, and civil rights immigrants, and habeas petitioners tend to lose. Desegregation: To promote diversity, school districts used race as a deciding factor in placing children at particular schools. In Parents Involved in Comm. Schools v. Seattle School Dist. No. 1,[2] a sharply divided court ruled that the districts did not meet their heavy burden to justify discriminating among individual students by relying upon racial classifications to make school assignments. Racial classifications are subject to strict scrutiny and must be “narrowly tailored” to achieve a “compelling” government interest. Remedying past intentional discrimination is a compelling interest, but one district was never segregated by law, and the decree against the other was dissolved. Narrow tailoring requires good faith consideration of race-neutral alternatives. In design and operation, the districts’ plans were directed to an illegitimate objective, racial balance: Schools worked backward to achieve a particular type of racial balance, rather than working forward to a level of diversity to provide the purported benefits, a fatal constitutional flaw. To find race-balancing is a compelling interest would unconstitutionally impose racial proportionality on society. Government classifications that divide by race promote notions of racial inferiority. In Brown v. Bd. of Educ.,[3] segregation deprived black children of equal education regardless of whether school facilities were equal: the classifications and resulting separation denoted inferiority. The dissent argued the majority had turned Brown on its head. Redress for Constitutional Torts: In Bivens v. Six Unknown Fed. Narcotics Agents,[4] the court held that a citizen could sue federal agents for violating his Fourth Amendment rights. In Wilkie v. Robbins,[5] the court declined to extend Bivens to a landowner’s claim for retaliation against Bureau of Land Management (BLM) officials for exercising his Fifth Amendment takings clause rights and not giving the BLM an easement to cross his ranch. As a result, BLM employees harassed and intimidated him by repeatedly investigating him, levying administrative sanctions, adversely treating him for permits, causing criminal charges to be filed, for which he was quickly acquitted, and committing torts against him and his property. Since the rancher did not fully pursue his available remedies, and federal employees’ hard bargaining for an easement was not an illegitimate purpose, the court held that the rancher could not sue under Bivens. The rancher lost. Preemption and National Banks: The National Bank Act (NBA), 12 U.S.C. § 1, governs national banks’ business activities, and the Comptroller of the Currency (OCC) extensively regulates national banks’ operations and customer interactions, largely excluding other federal or state agencies. The NBA lets national banks engage in real estate lending, act through operating subsidiaries under the same terms that are applicable to banks, and exercise powers necessary or incidental to banking. Here, a national bank conducted its real estate lending via its wholly owned, state-chartered entity, an OCC-licensed operating subsidiary. Michigan tried to regulate the subsidiary. If its real estate business were conducted directly by a national bank, OCC had sole authority to regulate. In Watters v. Wachovia Bank, N.A.,[6] the court held that a national bank’s mortgage business, conducted by its operating subsidiary, is subject to OCC regulation, but not to oversight by states where the subsidiary does business. The court has long protected banks and their related businesses from competing state oversight. Commerce Clause: Particular flow control ordinances required trash haulers to deliver solid waste to a single particular waste processing facility. In C & A Carbone Inc. v. Clarkstown,[7] an ordinance forcing haulers to deliver waste to one private facility violated the dormant Commerce Clause, Art. I, § 8, cl. 3. Here, local ordinances were adopted to deal with legitimate local concerns and required haulers to bring waste to a publicly controlled facility. Where, as here, local law favors local governments in areas for which they traditionally have assumed responsibility, such as trash disposal, and treat all private business — in-state and out-of-state — the same local law does not discriminate against interstate commerce. In United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth.,[8] the court held that the ordinances did not violate the dormant Commerce Clause and rejected a challenge by waste haulers. Abortion: In 2000, by 5-4 vote, in Stenberg v. Carhart,[9] the court struck a Nebraska statute banning “partial birth abortion.” In 2006, Justice Alito replaced Justice O’Connor. In 2007, by 5-4 vote, in Gonzales v. Carhart,[10] the court upheld the similar federal 2003 “Partial-Birth Abortion Ban Act,” 18 U.S.C. § 1531. Detailing the “gruesome” “inhumane” procedure, the court distinguished Stenberg: the narrower federal law required scienter and banned a specific type of “D&E.” Deferring to congress, the court found the Act was not void for vagueness and did not place an undue burden on a woman’s right to choose. Punitive Damages: In Philip Morris USA v. Williams,[11] a jury awarded $821,000 in compensatory and $79.5 million in punitive damages against Philip Morris (PM) and found it engaged in deceit by falsely representing that smoking was safe. PM argued that a punitive damage award violated due process when a jury punished it for injury caused to persons not before the court. While punitive damages further a state’s interest in punishing and deterring unlawful conduct, unless a state properly limits jury discretion, the court found that punitive damages may deprive a defendant of fair notice, impose arbitrary punishment, and unlawfully take property. The Due Process Clause forbids a state from using punitive damages to punish a defendant for injury inflicted upon strangers to the litigation and bars states from punishing a person without first giving him an opportunity to offer defenses. Evidence of actual harm to nonparties may show the conduct that harmed plaintiff posed a substantial risk of harm to the public and was reprehensible, but a jury may not impose punitive damages to punish a defendant directly for harms visited on nonparties. To avoid unfairness, courts must assure that the jury will ask the right question. The court left open whether the near 100-to-1 ratio of punitive to compensatory damages was permissible. First Amendment: As of late, the court has been more willing to accept justifications to accept restrictions on speech set by government against an individual with whom it has special relationship. The TSSAA, a state athletic league, regulated high school sports. Its members — public and private high schools — including Tennessee’s Brentwood Academy (BA). BA’s football coach sent a letter to eighth-grade boys who had pre-enrolled at BA urging them to participate in summer drills. Under TSSAA rules, students are not “enrolled” until they attend classes. The TSSAA found the letter violated its “anti-recruiting rule,” which prohibits members from using “undue influence” in recruiting middle-schoolers, and sanctioned BA. After internal TSSAA review, BA sued under 42 U.S.C. § 1983, claiming TSSAA’s enforcement of the anti-recruiting rule was state action and violated the First and Fourteenth Amendments. In 2001, the court ruled that TSSAA was a state actor under federal civil rights laws and allowed BA’s suit to proceed. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n.[12] Here, in Tenn. Secondary School Athletic Ass’n v. Brentwood Acad.,[13] the court upheld the anti-recruiting rule. By voluntarily joining TSSAA, BA agreed to follow its rules. A league’s interest in enforcing its rules warrants limiting its voluntary members’ speech. TSSAA may only impose conditions on constitutional rights necessary to manage an efficient, effective state-sponsored high school league. The rule limited hard-sell tactics, protected middle-schoolers from exploitation, and fostered an environment that prized academics over athletics. The court also rejected BA’s contention that its due process rights were violated when the full TSSAA board, acting ex parte, heard from investigators. BA claimed prejudice based on its premise that it would have pursued another strategy at the board hearing if it could have cross-examined investigators, but BA already knew what the investigators told the board. TSSAA imposed the sanction after investigation, meetings, letters, a written determination, a hearing, and de novo review by the entire board. BA was notified of all charges against it, was represented by counsel, and given the opportunity to present evidence. Any due process violation was harmless. In Morse v. Frederick,[14] the principal saw students unfurl a large banner reading, “Bong Hits for Jesus.” She thought the message promoted illegal drug use at a high school-sanctioned and supervised event. School policy banned messages promoting drugs at school events. She told students to take it down, but one student refused. The principal confiscated the banner and suspended the student. While students do not shed free speech rights at the school door, Tinker v. Des Moines Independent Community School Dist.,[15] their constitutional rights in public school are not identical with adults’ rights in other settings, but are determined in light of a school environment’s special characteristics. The court ruled that the student’s First Amendment rights were not violated: schools may safeguard students in their care and ban speech reasonably regarded as promoting drugs. Standing, Establishment Clause: In Hein v. Freedom from Religion Foundation Inc.,[16] the court held that taxpayers had no standing to challenge an Executive Branch initiative that may violate the Establishment Clause and declined to extend Flast v. Cohen[17] (taxpayers have standing to challenge a law authorizing the use of specific congressionally appropriated funds that violate the Establishment Clause). Fourth Amendment: In Fourth Amendment cases, the court listens to enforcement officials’ concerns and upholds their actions. In Scott v. Harris,[18] a deputy flashed his lights to stop a 19-year-old driver traveling 73 miles per hour in a 55 miles-per-hour zone. Instead of stopping, the young driver sped away. A dangerous high-speed chase ensued. To end the chase, a deputy rammed the driver’s car. The driver lost control, wrecked and was rendered a quadriplegic. The court ruled that the deputy did not violate the driver’s Fourth Amendment rights, but that he acted reasonably by trying to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind even though it placed the fleeing driver at risk of serious injury or death. The driver lost his federal civil rights suit. In L.A County v. Rettele,[19] deputies had a valid warrant to search a home, but were unaware that the black suspects (one owned a handgun), had moved out three months earlier. The deputies entered the home and the bedroom where a white couple was naked and asleep. With guns drawn, they ordered them out of bed and made them stand a few minutes before letting them dress. The deputies realized their mistake, apologized and left. The couple’s civil rights suit claimed the deputies recklessly secured a warrant and conducted an unreasonable search and detention in violation of the Fourth Amendment. With a valid warrant, court precedent permits police to secure the area being searched and detain occupants to prevent flight and minimize risk of harm and loss of evidence. Since deputies did not prolong the search or use excessive force, objectively the search was not unreasonable or unconstitutional. The couple lost. Under the Fourth Amendment, when police make a “traffic stop,” the driver is seized. In Brendlin v. Cal.,[20] the court went further and “squarely” held that a passenger, too, is seized. Thus, like a driver, a passenger may challenge a traffic stop’s constitutionality. Though the court permitted a passenger to mount a challenge, it did not expand the Fourth Amendment’s substantive protections. Sixth Amendment, Sentencing, Juries: In Apprendi v. N.J.,[21] the court held that the Sixth Amendment bars a state from increasing a defendant’s sentence above the statutory maximum based upon fact-finding by a trial judge, not a jury. In Cunningham v. Cal.,[22] the court gave force to Apprendi. Under California’s determinate sentencing law (DSL), the trial judge, not the jury, may find facts exposing a defendant to an additional or upper term sentence. By allowing the judge to up a sentence based upon facts he determines, the DSL violated a defendant’s right to trial by jury. A jury verdict limited defendant’s sentence to 12 years. The trial judge found additional facts increasing his sentence by four years. This judicial fact-finding denied defendant his right to a jury trial. Apprendi spawned numerous challenges to federal and states sentencing laws and schemes, including Tennessee’s. After the Tennessee Supreme Court in State v. Gomez[23] rejected Apprendi/Cunningham type challenges and upheld Tennessee’s pre-2005 sentencing law, the high Court decided Cunningham. Thereafter in Gomez v. State,[24] the high court granted certiorari, summarily reversed the Tennessee Supreme Court and remanded for further consideration in light of Cunningham. The Tennessee Court of Criminal Appeals[25] already has given effect to the recent high court pronouncement. In U.S. v. Booker,[26] the court previously ruled that Apprendi applied to the federal Sentencing Guidelines (SG). Accordingly, juries, not judges, must determine facts increasing jail time above the statutory maximum, and the court struck two parts of the federal Sentencing Reform Act that had made the SG mandatory for sentencing, but permitted their use. In Rita v. U.S.,[27] the court held appellate courts may apply a presumption of reasonableness to a lower court’s sentence that fits within the SG’s upper and lower range. In Uttecht v. Brown,[28] a jury imposed the death penalty. During voir dire, a juror responded equivocally about his ability to follow the law and vote for the death penalty. At the state’s request, he was excused for cause. Under Witherspoon v. IIl.,[29] the court has applied the following rules for strikes for cause: By selective “cause” challenges, a prosecutor may not tilt the venire to favor imposing the death penalty and violate a defendant’s right to an impartial jury. The state has a strong interest in jurors being capable of applying capital punishment, but a juror substantially impaired in his ability to impose that penalty may be excused for cause. If the juror is not substantially impaired, removal is not allowed. To find if a potential juror’s removal furthers the state interest without violating a defendant’s right, reviewing courts defer to the trial judge. Striking the juror here did not violate defendant’s Sixth Amendment rights. Fourteenth Amendment: Due Process and Equal Protection guarantees secure a criminal defendant’s right to a fair trial. In Carey v. Musladin,[30] at trial, family members wore buttons showing the victim’s face, which defendant claimed marked him guilty to the jury and deprived him of a fair trial. Since no high court decision directly controlled, the court upheld the state-court conviction under the deferential federal habeas standard: Federal courts cannot disturb state court convictions unless they run contrary to or unreasonably apply federal law as determined by actual high court holdings, not dicta. Title VII of the 1964 Civil Rights Act: Under Title VII, the time for filing an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) begins when the discriminatory act occurs, 42 U.S.C. § 2000e-5(e)(1). Depending upon the state, a charge must be filed within 180 or 300 days of the discriminatory act. This rule applies to each “discrete act” of discrimination, for example, termination. Here, a 20-year female employee was paid much less than her male counterparts for the same job. In Ledbetter v. The Goodyear Tire & Rubber Co.,[31] the court ruled that since she failed to file a charge with the EEOC within 180 days after receiving each paycheck, her Title VII suit was barred. Antitrust: For a generation, antitrust plaintiffs have fared poorly in the high court. During the Term, the trend continued, and the court reversed earlier precedent and narrowed antitrust law’s reach. In Leegin Creative Leather Prods. v. PSKS Inc.,[32] the court reversed the venerable rule that deemed per se illegal under the Sherman Act, 15 U.S.C. § 1, resale price maintenance (RPM) or vertical price fixing agreements: A manufacturer and his distributors set minimum prices at which the manufacturer’s goods may be sold. By 5-4 vote, the court overturned its 1911 decision, Dr. Miles Medical Co. v. John D. Park & Sons Co.[33] Like other vertical restraints, RPM now will be adjudged under the rule of reason. The upshot: Under federal law, these agreements on price virtually always will be permitted. Relying upon current economic theory, the court found that RPM is pro-competitive, reduced “free riders” and ensured that product information reaches consumers. The effect: Consumers will pay retail higher prices, and manufacturers may terminate retailers who price their goods below manufacturers’ suggested retail price. In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.,[34] a sawmill claimed Weyerhaeuser drove it out of business by a predatory bidding scheme that raised the price of saw-logs (inputs) to a level that kept it from being profitable and monopolized the market in violation of the Sherman Act, 15 U.S.C. §2. To show competitive injury resulting from a rival’s low prices, a plaintiff must prove that (1) prices are below cost, and (2) the competitor had a dangerous probability of recoupment. Requiring below-cost pricing is necessary to establish antitrust liability because the exclusionary effect of prices above cost may reflect an alleged predator’s lower cost structure and represent competition on the merits. The court reasoned that allowing an antitrust plaintiff to recover for price cutting when the rival’s prices remain above its costs may chill legitimate price cutting, which benefits consumers. Absent a dangerous probability of recoupment, the court concluded that no firm will engage in predatory pricing. Proving a predatory bidding scheme is difficult. Reversing a jury verdict, the court applied the standards for predatory pricing announced in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.[35] to predatory bidding schemes. In Credit Suisse Sec. (USA) LLC v. Billing,[36] buyers of newly issued shares of Initial Public Offerings (IPOs) sued underwriters under the Sherman Act, alleging that they unlawfully agreed among themselves not to sell shares of IPOs unless the buyers committed to (1) buy more shares later at escalating prices (“laddering”), (2) pay high commissions on later purchases from them, and (3) buy other less desirable securities from them (“tying”). Federal securities law does not exempt securities firms from antitrust laws, but rather broadly subjects them to all laws. The Securities and Exchange Commission nonetheless regulated the activities alleged in the investors’ pleadings. To permit an antitrust suit created risks of incompatible standards of conduct. Thus, the court found a “plain repugnancy” between antitrust and federal securities law and held the securities laws implicitly precluded applying antitrust law to these claims. The investors lost. Pleading: In Bell Atlantic Corp. v. Twombly,[37] the court dismissed a Sherman Act, 15 U.S.C. § 1, conspiracy claim for failure to state a claim for relief. A complaint alleged that defendants’ “conscious parallelism” showed an antitrust conspiracy’s possibility. Possibility however is not “plausibility.” Rule 8(a)(2) requires an antitrust plaintiff to allege “enough factual matter” suggesting that conspirators made an unlawful agreement, and the court reiterated that a plaintiff satisfies Rule (a)(2)’s pleading standard by alleging a “short and plain statement of the claim,” adhering to Conley v. Gibson’s[38] holding. Since the court has narrowed substantive antitrust law, a pleader must state sufficient facts in its claim for relief that the alleged conduct violates the law. Notice of Appeal: Fed. Rule App. Proc. Rule 4(a)(6) permits a district court to extend the time for filing a notice of appeal for 14 days. In Bowles v. Russell,[39] a district court granted a habeas petitioner’s order to extend the time for filing a notice of appeal, but the order gave him 17 days, not 14 days. The notice of appeal was filed after 14, but within 17 days. The court ruled that the time period for filing a notice of appeal in a civil case is jurisdictional and it had no authority to create an exception. Thus, the petitioner filed an untimely notice of appeal, and his case was dismissed. Bankruptcy: The debtors’ estate in bankruptcy consists of all his property “wherever located and by whomever held.” In verified schedules, the debtor made misleading statements about his assets. While the Bankruptcy Code gives a “fresh start” to the “honest” “unfortunate debtor” and lets insolvent persons discharge certain debts, in Marrama v. Citizens Bank,[40] by 5-4 vote, the court ruled that when a debtor acts in bad faith before or during bankruptcy by fraudulently concealing significant assets, he forfeits his bankruptcy protection. In Travelers Cas. & Sur. Co. of Am. v. PG&E,[41] the court ruled that the Code did not preclude an unsecured creditor from recovering attorney’s fees authorized by a pre-petition contract and incurred in post-petition litigation. Environmental Law: EPA refused to issue a Rule limiting greenhouse gas emissions from motor vehicles. By 5-4 vote, in Mass. v. EPA,[42] the court held that Massachusetts had standing to challenge EPA’s decision not to regulate, found the Clean Air Act authorized EPA to regulate greenhouse gas emissions from motor vehicles, and rejected EPA’s policy reasons — not directly tied to the statutory language — not to issue the rule, limiting the rationale of FDA v. Brown & Williamson Tobacco Corp.[43] (Congress’s long history in regulating product confirmed that agency was unauthorized to regulate). Separately, in Cooper Industries Inc. v. Aviall Services Inc.,[44] the court held that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), at § 113, did not permit a firm that had voluntarily settled with a state to seek contribution from another Potentially Responsible Party. In U.S. v. Atlantic Research Corp.,[45] at its own expense a firm liable for the cleanup re-mediated a site contaminated by Defense Department waste and sought to recover its costs from the U.S under another CERCLA provision, § 107(a). The court ruled that § 107(a)’s plain language allowed the firm to sue the U.S. and recover its clean-up costs. Taxes: Pursuant to 26 U.S.C. § 7426(a) (1), a Trust challenged an IRS levy on Trust property to collect taxes owed by another; however the Trust missed § 7426(a)(1)’s nine-month deadline to challenge the levy and tried to challenge the levy by a tax refund suit under 28 U.S.C. § 1346(a)(a1), which gives a taxpayer two years to file an administrative challenge and two more years to file suit in district court. Relying upon the statutory language in the limitations periods as well as the purposes of suit to challenge a wrongful levy versus a tax refund, in EC Term of Years Trust v. U.S.,[46] the court ruled against the Trust and in favor of the IRS. In a second tax case, Hinck v. U.S.,[47] the court ruled that only the Tax Court had jurisdiction to review the Secretary denial of a taxpayer’s request to abate interest when the IRS was responsible for delay in assessing it. Under 26 U.S.C. § 6404(e)(1), if the interest assessment for the deficiency is due in part or whole to unreasonable error or delay by the IRS, the U.S. may abate it. Section 6404(h) allows judicial review of the secretary’s decision refusing relief. After subsection (e)(1)’s passage, courts ruled that the secretary’s discretion was not reviewable. Subsection (h) was enacted and gave the “Tax Court” jurisdiction over “any” “taxpayer” suit to determine if the secretary abused his discretion by failing to “abate interest.” A taxpayer has 180 days to sue after a final determination. When the secretary refused to abate interest, taxpayers filed a claim administratively and then in the court of Federal Claims, which was dismissed. Subsection (h) is a precisely drawn, detailed statute and preempts more general remedies. The exclusive new specific remedy limited the time for filing, and only the Tax Court was authorized to hear those claims. False Claims Act (FCA): The FCA, 31 U.S.C. §§ 3729-3733, gives federal courts jurisdiction to hear claims filed by persons with knowledge that a firm received payments from the U.S. based on a false statement, but withdraws federal jurisdiction based on public disclosure of allegations “unless” the attorney general (AG) brings the “action” or by an “original source” of the information. In Rockwell Int’l Corp. v. U.S.,[48] Rockwell made concrete mixed with toxic pond sludge. Before manufacturing the concrete, the relator reviewed the proposed process and concluded it would deteriorate and leak toxic sewage. Rockwell proceeded anyway; toxic material leaked. The relator told the FBI and Rockwell pleaded guilty to federal crimes. The relator, an original source of some — not all — of the claims, filed a FCA suit, and the media uncovered other violations. The court held that the relator could pursue claims for which he was the original source, but federal courts would not have jurisdiction as to him for claims over which he was not the original source; however, since the AG intervened, federal courts had jurisdiction to hear the case. The AG may represent the U.S.’s interest. The holding affects relators’ incentives to come forward. Fair Credit Reporting Act (FCRA): The 1970 FCRA requires a firm to notify a consumer subjected to “adverse action” based on “information contained in a consumer credit report.” 15 U.S.C. §1681m(a). A firm that “willfully” or “recklessly fails” to give notice is liable to the consumer. §1681n(a). Because of differing lower court rulings and uncertain regulatory interpretations about the FCRA’s applicability, in Safeco Ins. Co. of America v. Burr,[49] the court ruled that insurers did not act willfully or recklessly by not notifying insureds that they paid higher premiums based upon information gleaned from reports. Individuals with Disabilities Act (IDEA): In Winkelman v. Parma City Sch. Dist.,[50] the court held parents may file a pro se complaint in federal court to protect their own and their child’s interests under the IDEA, 20 U.S.C. § 1400. Their disabled son was covered by the IDEA. Following its procedures, the parents claimed their son would not receive a “free appropriate public education” (FAPE) in public school and asked the school district to pay his private school tuition. The district won administratively, and the pro se parents appealed to federal court. Under 28 U.S.C. §1654, a party may represent himself pro se in federal court. Though the Act was silent on that point, the court looked at IDEA’s interlocking provisions and concluded that they made parents real parties in interest to an IDEA action. Accordingly, they could litigate pro se. Fair Labor Standards Act (FLSA): The FLSA exempts minimum wage and maximum hours rules for an “employee employed in domestic service employment” who provides “companionship services” to people because of “age or infirmity … are unable to care for themselves” as defined by the Secretary of Labor. 29 U.S.C. § 213(a)(15). A Labor Department regulation (“interpretation”) provided that the exemption included “companionship” workers” who were “employed by an employer or agency other than the family or household using their services.” 29 CFR § 552.109(a). By examining the FSLA’s text and history and affording Chevron[51] deference to the agency in spite of a conflicting regulation, the court upheld the “interpretation” in Long Island Care at Home, Ltd. v. Coke.[52] Telecomm Act and Private Right of Action: FCC Rules required long-distance carriers to compensate a payphone operator when a caller used a payphone to get free access to the carrier’s lines by dialing an access code. The FCC found a carrier’s refusal to pay compensation was an unjust or unreasonable practice under the Communications Act, 47 U.S.C. § 201(b). Under § 207, a person injured by a § 201(b) violation may sue for damages. In Global Crossing Telecomm. Inc. v. Metrophones Telecomm. Inc., the court upheld the FCC Rule interpreting §201(b). Thus, payphone operators may sue carriers for damages when for refusing to compensate them. Forum Non Conveniens: The doctrine of forum non conveniens allows federal courts to dismiss a suit on the ground that a court abroad is a more appropriate and convenient forum to hear the dispute. In Sinochem Int’l Co. v. Malaysian Int’l Shipping Corp.,[53] the court held that when a foreign tribunal plainly is more suitable to decide the merits of the case, a federal court has the discretion to dismiss a suit on forum non conveniens grounds before deciding whether it has subject-matter or personal jurisdiction. Declaratory Judgment Act (DJA): Under the DJA, 28 U.S.C. § 2201(a), a federal court may “declare” an “interested party’s rights regarding an “actual controversy” when a dispute is definite, concrete, real, substantial, capable of judicial resolution, not based upon hypothetical facts or an advisory opinion, and affects adverse parties’ legal relations. In MedImmune Inc. v. Genentech Inc.,[54] with notice, either party could terminate a licensing agreement for a prescription drug covering two patent matters. The licensee was required to pay royalties. Later, the licensor made additional demands, and the licensee faced a dilemma. By continuing to pay royalties and acceding to the licensor’s demands, it could avoid breaching the agreement, but by caving to the demands, it may forfeit its rights. The DJA provided a method to resolve this dilemma, and the licensee’s suit for declaratory relief could proceed. Briefly Noted: In other term decisions this year, the court —
Defending Courts: With a growing frequency, detractors are bitterly denouncing the court and the justices, demonizing lower court and judges, and angrily decrying rulings. While criticism is healthy at times and disappointment with outcomes is inevitable, few voices rise to support the independent judiciary and explain its pivotal role in securing basic rights. Judges are not well positioned to respond to ad hominem attacks. The bar, historically, has long defended courts, judges, and the legal system, and explained the rule of law. Lawyers should note these attacks and stand ready to respond. • • • PERRY A. CRAFT and MICHAEL G. SHEPPARD are friends and partners in the law firm of Craft & Sheppard PLC. Craft, a former deputy attorney general, regularly lectures on developments and trends in the Supreme Court, constitutional law and federal practice. He has practiced law for nearly 30 years and litigated cases ranging from personal injury to class actions, trade regulation, commercial practices, administrative and regulatory law to constitutional law, and federal and state statutory causes of action in state and federal courts. Sheppard, a former insurance executive, has more than 30 years’ experience in personal injury and insurance law. He has served as general counsel, has practiced in state and federal courts and is admitted in Tennessee and Ohio. He has managed litigation for a number of companies and now practices in the areas of ERISA, medical malpractice, product liability, workers’ compensation, personal injury and business transactions. Either may be reached at (615) 309-1707 or through their Web site, www.craftsheppardlaw.com. • • • Notes
Tennessee Bar Journal
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