November 29, 2021

Volume XI, Number 333

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Supreme Court Update: Republican National Committee v. Democratic National Committee (No. 19A1016), Babb v. Wilkie (No. 18-882), Kansas v. Glover (No. 18-556)

Greetings, Court Fans!

Two more decisions in argued cases this week, both 8-1 opinions on narrow grounds, though in widely different contexts. But it was the Court’s sharply divided 5-4 decision granting an emergency stay application that garnered the most attention.

In Republican National Committee v. Democratic National Committee (No. 19A1016), the Court stayed a lower-court order that would have extended the deadline for absentee ballots to be submitted in Wisconsin’s April 7th election, which included the state’s Democratic primary, as well as hundreds of state and local races. The DNC and other plaintiffs sought an extension of the absentee-ballot deadline to permit more voters to participate in the election without exposing themselves to COVID-19 by voting in person. A district judge agreed and went one further, extending not only the deadline for clerks to receive absentee ballots, but also sua sponte extending the deadline for voters to mail and postmark their ballots. That order necessitated a second order enjoining the public release of election results for six days following election day. The RNC asked the Supreme Court to stay the lower court’s order and, by a 5-4 vote, the Court obliged. “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the conservative majority wrote. In this instance, the majority appeared to accept the lower court’s (unchallenged) extension of the deadline for absentee ballots to be received (which effectively extended the deadline for them to be mailed from April 4th to April 7th). But extending the deadline to mail (and potentially cast) constituted a fundamental change of standard election rules. “By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions,” the majority held, “the District Court contravened this Court’s precedents and erred by ordering such relief.” The majority stressed, however, that its “decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate.”

Justice Ginsburg—joined by Justices Breyer, Sotomayor, and Kagan—dissented. In her view, the District Court’s order was justified by the extraordinary circumstances presented. While she did “not doubt the good faith of [her] colleagues,” Justice Ginsburg predicted that the Court’s order would “result in massive disenfranchisement.” Due to the “public health crisis” presented by COVID-19, an unprecedented number of voters (with the encouragement of public officials) had sought absentee ballots, creating a severe backlog of ballots requested but not promptly mailed. And, as Justice Ginsburg pointed out, “[a] voter cannot deliver for postmarking a ballot she has not received.” Therefore, “tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote.” This consequence, she maintained, was in no way justified by the majority’s stated concerns.

Now on to opinions. First up this week, in Babb v. Wilkie (No. 18-882), the Court held delivered a lopsided victory to age-discrimination plaintiffs in the federal sector, holding that they need not show that discrimination was the but-for cause of an adverse employment action in order to recover under the federal-sector provision of the Age Discrimination in Employment Act (ADEA).

Noris Babb was a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center. In 2014, at the age of 54, she sued the Secretary of the VA, alleging age discrimination in several adverse personnel actions. The VA moved for summary judgment, citing several non-discriminatory reasons for the challenged actions. The District Court, applying the McDonnell Douglas burden-shifting framework, found that Babb had established a prima facie case of discrimination, but that the VA had proffered legitimate non-discriminatory reasons for its actions, and that no reasonable jury could conclude that these reasons were pretextual. Babb appealed, arguing that the court should not have used the McDonnell Douglas framework because, under the terms of the ADEA’s federal-sector provision, section 633a(a), a personnel action is unlawful if age is a factor in the challenged decision, even if it is not a but-for cause. Citing circuit precedent, the Eleventh Circuit affirmed the District Court’s judgment, and the Supreme Court granted cert to resolve a circuit split over the meaning of section 633a(a).

In a 8-1 decision, the Supreme Court reversed. Writing for the majority, Justice Alito concluded that the plain language of section 633a(a) makes clear that personnel actions affecting employees who are at least 40 years of age “shall be made free from any discrimination based on age.” That language necessarily means that age need not be a but-for cause of an employment decision in order for there to be a violation of section 633a(a). To support that conclusion, Justice Alito broke out his old grammar primer. The phrase “based on age” in section 633a(a) is an adjectival phrase modifying the noun “discrimination,” not the phrase “personnel actions.” Therefore, while age must be a but-for cause of discrimination, it need not be a but-for cause for the personnel action at issue. And, since “free from any discrimination” is an adverbial phrase modifying the verb “made,” any personnel action must be made in a way that is not tainted by any differential treatment based on age. Putting this altogether, Justice Alito concluded that the “straightforward meaning” of section 633a(a)’s terms is that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Instead, if age is a factor in the employment decision, the statute has been violated. That said, but-for causation remains an important factor in determining the appropriate remedy for a 633a(a) violation. Under traditional tort principles, remedies must be tailored to the injury; therefore, plaintiffs cannot obtain compensatory damages or other forms of relief without showing that age discrimination was a but-for cause of the adverse employment action. They can, however, seek injunctive or other forward-looking relief.

Justice Sotomayor, joined by Justice Ginsburg, concurred in the opinion and wrote separately to make “two observations.” First, she stressed that the Court’s decision does not foreclose section 633a claims arising from discriminatory processes. And second, while the Court held that plaintiffs cannot obtain compensatory damages for violations of section 633a without showing but-for cause, Justice Sotomayor noted that damages could be available if, for example, the plaintiff incurred out-of-pocket costs as a result of the federal employer’s discriminatory action.   

Justice Thomas dissented, all alone. In his view, the majority’s holding departed from the general rule for antidiscrimination claims: “A plaintiff ha[s] to plausibly allege that discrimination was the but-for cause of an adverse action, unless the statute’s text unequivocally replaced that standard with a different one.” Section 633a(a), he maintained, did not unequivocally replace the but-for standard, and it was a mistake for the majority to establish a novel test that puts the federal-sector provision of the ADEA out of step with other anti-discrimination statutes.

Next up, in Kansas v. Glover (No. 18-556), another lopsided majority held that an investigative traffic stop made after running a vehicle’s license plate and learning that the register owner’s driver’s license had been revoked is reasonable under the Fourth Amendment, absent information negating an inference that the owner is driving the vehicle.

The facts of the case are relatively straightforward. Sheriff’s Deputy Mark Mehrer was on a routine patrol when observed a 1995 Chevy pickup truck and ran its license plate through the Kansas Department of Revenue’s file service. That search revealed that the truck was registered to Charles Glover and that Glover’s driver’s license had been revoked. Assuming (correctly) that the person driving the truck was its registered owner, Deputy Mehrer pulled Glover and ultimately charged him with being a habitual violator. Glover moved to suppress all evidence seized in the stop, arguing that Mehrer had no reasonable basis for pulling him over, other than his “hunch” that he was the registered owner of the vehicle. In ping-pong fashion, the trial court agreed with Glover and granted his motion to suppress, only to be reversed by the Court of Appeals, which was then reversed by the Kansas Supreme Court, only to be reversed right back by the supreme Supremes.

Writing for a majority of 8, Justice Thomas noted that the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has a “particularized and objective basis” to suspect legal wrongdoing. This level of suspicion requires less than that necessary for probable cause (needed for an arrest) and turns on “commonsense judgments and inferences about human behavior.” Here, Deputy Mehrer made a commonsense inference that the owner of a vehicle was likely to be the vehicle’s driver. Just because that isn’t always the case, does not make the inference unreasonable. Moreover, while the deputy’s commonsense judgment was sufficient to justify the stop, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive, making it reasonable to conclude that the owner of a vehicle is its driver, even if his license is suspended. Justice Thomas emphasized, however, that “the scope of this holding is narrow.” Reasonable suspicion depends on the totality of the circumstances, and any number of additional facts might dispel reasonable suspicion in other circumstances. Here, however, because there was nothing in the record to rebut the reasonable inference the deputy made, the traffic stop was reasonable under the Fourth Amendment.

Justice Kagan, joined by Justice Ginsburg, concurred. For her, the crucial fact was the Deputy Mehrer knew that Glover’s license had been revoked due to serial driving offenses. In Kansas at least, “a person with a revoked license has already shown a willingness to flout driving restrictions.” Therefore, in Justice Kagan’s view, it remained reasonable to infer that Glover was the one behind the wheel even though he was prohibited from driving. The analysis would be different, she explained, if Glover’s license had merely been suspended for reasons having nothing to do with his “penchant for ignoring driving laws.” In particular, Justice Kagan noted, “most license suspensions do not relate to driving at all; what they most relate to is being poor.” She would not be comfortable, therefore, with a per se rule that it is always reasonable to infer—notwithstanding a license suspension—that the owner of a vehicle is its driver. Under the particular circumstances of this case, however, which turned on a  “barebones stipulation” of facts, she agreed that it was reasonable to infer that Glover was behind the wheel.

Justice Sotomayor was unconvinced. Dissenting alone, she argued that the majority’s opinion “ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof.” By permitting an officer to make a traffic stop so long as he lacks “information negating an inference,” the Court had effectively flipped the burden of proof and absolved officers from any responsibility to investigate the identity of a driver where feasible. “The majority,” she argued, “has paved the road to finding reasonable suspicion based on nothing more than a demographic profile. Its logic has thus made the State’s task all but automatic. That has never been the law, and it never should be.”

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume X, Number 105
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Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT
Partner

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

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David Roth Litigation lawyer Wiggin Dana
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David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...

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