Supreme Court Watch: The Home Stretch

Decided Cases

Telecommunications

T-Mobile South, LLC v. City of Roswell, 574 U.S. ____ (Jan. 14, 2015), involves the question of what is required by the Telecommunications Act of 1996, which provides that a locality’s denial of an application to place or modify a cell phone tower “shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). In this case, T-Mobile, the applicant, had arranged to have a private transcript prepared of the public hearing regarding its application, and a month later, the city issued detailed meeting minutes containing the councilors’ discussions. But the denial letter itself, provided soon after the hearing, stated only that the application was denied, that the minutes could be obtained from the city clerk, and provided a contact person for any questions. T-Mobile alleged the city’s denial was not supported by substantial evidence in the record.

In a 6–3 decision, the Supreme Court held that in denying applications, local governments are required to provide reasons, but the reasons need not appear in the written denial letter or notice and could be contained in some other written record, so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice. “Substantial evidence” is a “term of art” in administrative law, and the use of this term by Congress required that the grounds on which the locality acted be clearly disclosed. This was not an especially high bar, however: the reasons “need not be elaborate or even sophisticated, but rather, . . . simply clear enough to enable judicial review.” Slip op. at 8. Relying, again, on the statutory text, the majority concluded that nothing in the legislation imposes an implicit or explicit requirement that the reasons be given in a particular form or document. (The sensible course for the locality is to issue a clear statement of reasons, if only to avoid possible prolonged litigation and expense to taxpayers caused by wrangles over what constitutes a record or reasons.) And, because an applicant is significantly time-restricted (30 days) in seeking judicial review of a denial, the written reasons have to be provided at essentially the same time as the denial. Applying this analysis to the facts, the Court held that the city failed to meet its statutory obligations. It had provided its reasons in writing and did so in the acceptable form of detailed meeting minutes, but those minutes were available 26 days after the date of the written denial—less than a week before T-Mobile’s time to seek judicial review was due to expire. The fact that the applicant had a transcript made (at its own expense) did nothing to offset or satisfy the city’s own obligations.

Employment

A unanimous Court held that the Fair Labor Standards Act (FLSA) does not require employers to pay overtime to employees who are required to stay after normal working hours to wait and undergo employer-mandated “security screening.” In Integrity Staffing Solutions v. Busk, 574 U.S. ____ (Dec. 9, 2014), employees who worked at an Amazon-related warehouse claimed they spent some 25 minutes after the end of a shift for mandatory searches aimed at reducing the euphemistic “shrinkage” (employee theft). The employees alleged the employer could have minimized this time by having adequate numbers of screeners or staggered shifts, and that the time spent was compensable under the FLSA, as amended by the Portal-to-Portal Act. Preliminary and postliminary activities to principal work are generally not compensable, but the Ninth Circuit had ruled that the screening was FLSA-compensable because it came within an exception for activity that was “integral and indispensable” to an employee’s principal work. This was the point on which the Ninth Circuit and the Supreme Court disagreed.

The Portal-to-Portal Act excluded, as compensable, time spent on work-related activities that are “postliminary to” principal activities. This means activities that are an “integral and indispensable part” of the principal activities. The screenings were not the “principal activities” the employees were hired to perform because their job was retrieving inventory and preparing it for shipment, as opposed to undergoing security screenings. Moreover, the screenings were not “integral and indispensable” to those job activities because “an activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities.” Slip op. at 7. The test was not whether the employer required the screenings (as the Ninth Circuit determined), but whether the screenings could have been eliminated entirely without impairing the employee’s ability to complete their work. As for whether the employer could or should have reduced the screening time, this issue was one more “properly presented to the employer at the bargaining table” and “not to a court on an FLSA claim.” Slip op. at 9.

The second big employment decision, Young v. United Parcel Service, Inc., 575 U.S. ____ (Mar. 25, 2015), dealt with pregnancy bias and the duty to accommodate under the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k). The PDA mandates that pregnant women “be treated the same for all employment-related purposes” as “other persons” “similar in their ability or inability to work.” The question is, how far must an employer go to accommodate such employees, and who are these “other persons”?

Young, a pregnant UPS delivery driver, was under doctor’s orders not to lift over 20 pounds, which interfered with her job, which required lifting up to 70 pounds. Under a collective bargaining agreement, UPS provided “light duty work” to some nonpregnant workers with similar limitations (e.g., injured on the job or ADA-disabled), but refused to accommodate Young because she was in the same position as an employee who sustained an off-the-job injury or condition (and who was not entitled to accommodation). Young alleged that the existing accommodations showed that UPS discriminated against pregnant employees because it had a light-duty-for-injury policy for some employees, but not those who were pregnant and facing similar restrictions. UPS claimed it had treated Young exactly the same as “other” relevant “persons” (off-duty-injured employees). The Fourth Circuit found the policy was pregnancy-neutral and that the PDA did not create a distinct cause of action or a preferential treatment mandate.

On appeal, the Court, in a 6–3 decision, rejected Young’s proposed interpretation (which rested, in part, on a very recent guideline of the U.S. Equal Employment Opportunity Commission). The Court, likewise, rejected the employer’s suggested approach and instead, set out its own version of the correct analytical process before remanding the case based on unresolved factual issues. The factors that contributed to its decision were that Congress was unlikely to have intended to grant pregnant workers an “unconditional most-favored-nation status,” and that the July 2014 EEOC Guideline, without explanation, took a position contrary to those previously advocated by the government. The Court’s interpretation was most consistent with Title VII and required the following: a pregnant employee seeking to show disparate treatment could make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, sought and did not receive accommodation, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate by relying on “legitimate, nondiscriminatory” reasons, although these reasons cannot normally consist of a bare claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the employee may show that this is, in fact, pretextual, that the policy imposes a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reason is not sufficiently strong to justify the burden, but, when considered along with the burden imposed, gives rise to an inference of intentional discrimination. This would allow the employee to introduce evidence showing how a policy operated in practice. Using this approach, there was a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation could not reasonably be distinguished from Young’s.

Criminal

The Court also issued decisions in several criminal cases. Heien v. North Carolina, 574 U.S. ____ (Dec. 14, 2014), revolved around an outdated vehicle code requiring an operational “stop lamp” and whether a police officer’s mistake of law could provide the “reasonable suspicion” necessary for a traffic stop under the Fourth Amendment. (Under existing Supreme Court precedent, a reasonable mistake of fact can give rise to the reasonable suspicion necessary to uphold the search or seizure under the Fourth Amendment.) Police had stopped Heien’s vehicle because it had one nonfunctioning brake light, but the officer suspected that Heien was transporting drugs. Heien consented to a search, and cocaine was found. In the ensuing motion to suppress, the trial court concluded that the references to a “lamp,” singular, required that the vehicle have one working brake light, which it did; accordingly, there was no actual violation of the law and the traffic stop was unconstitutional. (This interpretation of the vehicle code was not challenged.) The Supreme Court, in an 8–1 decision, cited Michigan v. DeFillippo, 443 U.S. 31 (1979), in finding that reasonable mistakes of law, like mistakes of fact, were “no less compatible with the concept of reasonable suspicion.” Slip op. at 6. The officer’s mistake about the brake light was reasonable because a different provision of the vehicle code required that “all originally equipped rear lamps” of a vehicle be functional, and referred to a stop lamp “being incorporated into a unit with one or more other rear lamps.” N.C. Gen. Stat. Ann. §§ 20-129(d) and (g) (emphasis added). The officer could have reasonably but mistakenly interpreted this to mean that both brake lights had to be in good working order. The Court emphasized that the ruling would not excuse sloppy policing: it allowed for mistakes that were objectively reasonable only, regardless of the officer’s subjective understanding.

In two per curiam opinions, the Court touched on the “knock and talk” exception to the Fourth Amendment’s warrant requirement and a satellite-based monitoring program for sex offenders. In the “knock and talk” case, Carroll v. Carman, 574 U.S. ____ (Dec. 10, 2014), police investigating the theft of a car and firearms went to the Carmans’ home after being told the male suspect might go there. The home was on a corner lot, but, because there was no parking along the front, the officers parked in the back, looked into a shed, and decided that a sliding glass door at the back was a “customary entryway.” Before they knocked, though, Andrew Carman came outside to confront them. The officers identified themselves and alleged Carman tried to leave without responding to their inquiries. Officer Carroll grabbed him. Karen Carman came out, identified the man as her husband, told the officers the suspect was not there, and consented to a home search. The Carmans later sued Carroll under 42 U.S.C. § 1983, alleging that he unlawfully entered in violation of the Fourth Amendment when he went into their backyard and onto a deck without a warrant. Carroll relied on the “knock and talk” exception, but that covers property that the general public is allowed to enter on, and not all parts of a home or yard. The Third Circuit denied the officer qualified immunity on the basis that under “knock and talk,” it was “clearly established” law that police, like other visitors, had to begin at the front door, where they had an implied invitation to go. The Supreme Court determined that Carroll was entitled to qualified immunity, without addressing the underlying legal rule. The rule applied by the Third Circuit was not clearly established, as other cases (including a Second Circuit case with similar facts) had concluded that the Fourth Amendment was not implicated when police officers approached a door, other than the front door, in the reasonable belief that it was the principal means of access to a dwelling.

North Carolina imposed a civil, satellite-based monitoring (SBM) program on recidivist sex offenders, which required the offender to wear a tracking device “for the duration of his natural life.” Grady, a sex offender who had served out his sentence, was ordered to participate in the program, and he claimed that the warrantless and constant GPS monitoring (and the imposition of the GPS equipment for that purpose) used in SBM violated his constitutional protections against unreasonable searches and seizures. The North Carolina courts rejected his challenges, in part because the program was civil in nature. The Supreme Court reversed, finding this was a search that was clearly within the scope of the Fourth Amendment. Grady v. North Carolina, 575 U.S. ____ (Mar. 30, 2015). “The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.” Slip op. at 4–5. But, because the court below did not address the nature and purpose of the search and the extent to which the search intruded on reasonable privacy expectations, the Court declined to do so at first instance and remanded.

Rulemaking Process

One case that hadn’t attracted much attention but is likely to have an immediate impact is Perez v. Mortgage Bankers Association, 575 U.S. ____ (Mar. 9, 2015), in which the Court restricted the applicability of the notice-and-comment rulemaking process in the Administrative Procedure Act. Under the APA, rules (“legislative rules” that have the force and effect of law) are subject to notice-and-comment rulemaking when proposed and modified, but the definition of “rule” excludes “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” “Interpretive rule” is not otherwise defined, but interpretive rules do not have the same legal effect as rules because they are not required to go through notice-and-comment rulemaking. But, in a 1997 case, Paralyzed Veterans, the D.C. Circuit concluded that a federal agency subject to the APA was required to follow the extensive notice-and-comment rulemaking process before it could issue a new interpretive rule about a regulation if the new interpretive rule deviated significantly from one the agency had previously adopted. In an unrelated dispute over whether mortgage-loan officers were covered by the FLSA, the Mortgage Bankers Association (MBA) relied on the Paralyzed Veterans doctrine and claimed that the federal Department of Labor had failed to comply with the APA in 2010 by issuing an Administrator’s Interpretation of the FLSA regulation, one that deviated from a 2006 opinion letter, without going through notice-and-comment.

The Supreme Court found no support for the doctrine in the APA: “The Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions, and it improperly imposes on agencies an obligation beyond the ‘maximum procedural requirements’ specified in the APA . . . [the] exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans.” Slip op. at 6–7. Justices Alito’s, Thomas’s and Scalia’s concurrences note the real problem the Paralyzed Veterans court was responding to—the fact that agencies themselves write the regulations that are the object of the interpretative rules; the interpretive rules that fill out the gaps left by regulations are unchecked by procedural rulemaking requirements and are entitled to substantial deference by the courts, which leads to the ever-increasing aggrandizement of administrative agencies’ power. In the words of Justice Thomas: “Although on the surface [this case] require[s] only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath.”

Invocational Prayers, Redux

In an echo of last Term’s decision in Town of Greece v. Galloway, 572 U.S. ____ (2014), the Supreme Court of Canada recently addressed invocational prayers by a local government. Alain Simoneau, an atheist, attended the public meetings of the municipal council of the City of Saguenay, Quebec. Each meeting began with the councilors participating in a Christian prayer. Simoneau asked that the prayer be discontinued. Instead, the city passed a bylaw that referred to the fact that it was traditional for meetings to be preceded by a prayer and that the individual councilors wished it to continue on the basis of their individual rights and freedoms, but specifying that no one was obligated to recite the prayer or attend, and imposing a two-minute delay between the end of the prayer and the start of the council proceedings. Simoneau sought relief before the provincial human rights tribunal, alleging that the prayer practice violated his freedom of conscience and religion, contrary to the Quebec Charter (protecting freedom of religion and stating that it was discrimination when a distinction, exclusion, or preference based on religion had the effect of nullifying or impairing such right). The tribunal held the prayer was incompatible with the state’s duty of neutrality on belief and rejected arguments of reasonable accommodation or that it was justified on the basis of respect for tradition. It ordered the city to stop the prayer practice and awarded C$30,000 in compensatory and punitive damages to Simoneau. The matter ultimately reached the highest court.

A unanimous Supreme Court of Canada upheld the decision of the tribunal and held that the prayer practice was unconstitutional. Mouvement laïque québécois v. Saguenay (City), 2015 SCR 16 (Apr. 15, 2015). Although neither the Quebec Charter nor the Canadian Charter of Rights and Freedoms expressly imposed a duty of religious neutrality on the state, this duty resulted from an “evolving interpretation of freedom of conscience and religion” of many countries that share Western democratic traditions. Id. ¶ 71. A duty of neutrality meant that a state and its institutions could not make use of its powers to promote or impose a religious belief or nonbelief. This duty did not require the state to abstain from celebrating and preserving its traditional or religious heritage, but this could not be used to justify engaging in a discriminatory practice for religious purposes. In this case, the solution adopted by the council, requiring citizens to physically leave the chamber and return after the prayer, had the effect of accentuating their exclusion and underscored the religious nature of the bylaw.

Still Pending

The Supreme Court heard arguments on the four same-sex marriage cases (Tanco v. Haslam, DeBoer v. Snyder, Bourke v. Beshear, Obergefell v. Hodges) on April 28. At the time of writing, a huge number of legal briefs have been filed in the cases, which involve four states’ bans on same-sex marriages, including a brief by 226 U.S. mayors, the National League of Cities, and various major municipalities in support of the petitioners.

Several important argued cases remain undecided at this point, including Los Angeles v. Patel (ordinance requiring police access to hotel guest registry, privacy, and Fourth Amendment); Reed v. Town of Gilbert (sign code, temporary locational signs, and content neutrality); Sheehan v. City & County of San Francisco (police, ADA, and mentally ill suspects); Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (Fair Housing Act and disparate-impact claims); Elonis v. United States (social media expression, threats, and 18 U.S.C. § 875(c)), and of course, the Affordable Care Act case on subsidies and exchanges, King v. Burwell.

Conclusion

For state and local government lawyers, many key cases are still undecided this spring. My next column, following the Court’s recess at the end of June, will have a summary of the rulings in these remaining cases.