Justices Deny Review in Seven Workplace Cases on March 19

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Following are summaries of seven labor- and employment-related cases in which the U.S. Supreme Court denied review on March 19, 2018:

Civil Procedure

17-225 Garco Constr. Inc. v. Speer

Ruling below (Fed. Cir., 856 F.3d 938, 2017 BL 153957): The decision of the Armed Services Board of Contract Appeals denying this damages claim arising out of a contract with the U.S. Army Corps of Engineers to build housing units on Malmstrom Air Force Base is affirmed. An agency’s construction of its own regulations is of controlling weight unless it is plainly erroneous or inconsistent with the regulation. The plaintiff failed to show that the board’s interpretation of the base access policy was plainly erroneous or inconsistent with the policy.

Question presented: Should Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997), be overruled?

17-972 Nordyke v. Howmedica Osteonics Corp.

Ruling below (3d Cir., 867 F.3d 390, 2017 BL 284704): The district court’s order is vacated. Because the district court clearly and indisputably erred in transferring this case in its entirety to the Northern District of California, this court will issue a writ of mandamus vacating the transfer order and instructing the district court on remand to sever the corporation’s claims against two of the plaintiffs under Federal Rule of Civil Procedure 21, to transfer those claims to the Northern District of California under 28 U.S.C. §1404(a), and to retain jurisdiction over the corporation’s claims against the five sales representatives.

Question presented: Does this court’s decision in Atlantic Marine Constr. Corp. v. U.S. Dist. Court for W. Dist. of Tex., 82 U.S.L.W. 4021, 2013 BL 333527 (Dec. 3, 2013), supplant the traditional transfer of venue analysis under 28 U.S.C. §1404(a) where some, but not all, parties to a litigation have agreed to a forum-selection contract?

Constitutional Law

17-1065 Lee-Walker v. N.Y.C. Dep’t of Educ.

Ruling below (2d Cir., 2017 BL 370749, unpublished): The opinion of the district court, that the petitioner was not engaged in protected speech under the First Amendment when she spoke about a pending criminal case to her ninth grade students, is affirmed on different grounds. The defendants, the petitioner’s supervisors, were entitled to qualified immunity for actions that led to the petitioner’s loss of her teaching job.

Questions presented: (1) Do state-employed pedagogues enjoy the protections of free speech in academia, given Justice Anthony Kennedy’s response to Justice David Souter’s point on that issue in Garcetti v. Ceballos, 547 U.S. 410 (2006)? (2) If not, does the First Amendment protect a teacher or professor in a public school or university?

Criminal Law

17-872 Walker v. Estate of Clark

Ruling below (7th Cir., 865 F.3d 544, 2017 BL 258527): The denial of summary judgment in a lawsuit alleging that prison employees violated a prisoner’s civil rights by acting with deliberate indifference toward his serious risk of suicide is affirmed. A prisoner committed suicide five days into his custody at the jail, despite being identified as posing a high risk of suicide. Two employees were found to have shown deliberate indifference in violation of the Eighth Amendment. Because one employee was technically a contractor rather than a government employee, she could not claim qualified immunity. Further, neither was entitled to qualified immunity because a clear right exists under the Eighth Amendment that they both violated.

Questions presented: (1) Did the court of appeals define the constitutional right in question at too high a level of generality, contrary to this court’s teachings on qualified immunity? (2) Did the court of appeals correctly hold that Johnson v. Jones, 515 U.S. 304 (1995), precluded its consideration of aspects of petitioner’s appeal from the denial of qualified immunity?

Employment and Labor

17-1102 Allen v. Chicago

Ruling below (7th Cir., 865 F.3d 936, 2017 BL 270398): In this Fair Labor Standards Act collective action, the plaintiffs did not demonstrate that the employer maintained an unwritten policy to deny them compensation for work they did off-duty on their mobile electronic devices when the employer had a reasonable system for reporting overtime work, supervisors were unaware that employees sometimes did not submit time slips for off-duty work and supervisors were not required to cross-reference their knowledge of overtime work with time slips to ensure that all hours worked were compensated, and there is no evidence of a consistent policy of discouraging submission of time slips.

Questions presented: (1) Under the FLSA, is the employer required to pay its employees for off-duty overtime if the employer has actual knowledge of that work? (2) Under the FLSA, is the employer required to pay employees off-duty overtime if the employer has constructive knowledge of that work because its written policies and procedures prevent or discourage its employees from reporting and being paid for that work?

Government Contracts

17-1027 U.S. ex rel Little v. Triumph Gear Systems, Inc.

Ruling below (10th Cir., 870 F.3d 1242, 2017 BL 327684): The ruling below, denying a gear manufacturer’s motion to dismiss a False Claims Act case, is reversed. A whistleblower began the lawsuit alleging the sale of defective gears to the government. Months later, his attorney filed an amended complaint that named himself and a third person as the sole whistleblowers. Those individuals intervened in the action when they filed the amended complaint. That intervention was barred by the FCA’s first-to-file rule.

Questions presented: (1) Did the Tenth Circuit commit reversible error in its dismissal of a case because original John Doe plaintiffs were considered intervenors and not original plaintiffs under pseudonyms? (2) Can an appellate court on an interlocutory review consider factual issues involving jurisdiction and proceed to the factual merits of an appeal when the matter under appeal was the denial of a motion to dismiss for the lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), which did not involve the consideration of factual issues by the district court?

Immigration

16-1180 Brewer v. Ariz. Dream Act Coal.

Ruling below (9th Cir., 2017 BL 31932): The district court’s grant of summary judgment against Arizona and in favor of individuals who received deferred action under the Deferred Action for Childhood Arrivals program, which protects noncitizens who were brought to the U.S. as children, is affirmed. Arizona’s policy that rejects the employment authorization documents issued to DACA recipients as proof of authorized presence in the U.S. for the purpose of obtaining a driver’s license is pre-empted by the federal government’s exclusive authority under the Immigration and Nationality Act to classify noncitizens.

Questions presented: (1) Did the U.S. Court of Appeals for the Ninth Circuit err in creating an immigration-specific rule under which state police power regulations that arrange federal immigration classifications are pre-empted, even if pre-emption wasn’t “the clear and manifest purpose of Congress”? (2) Did the Ninth Circuit err in assuming that the DACA program, an executive-branch policy of nonenforcement, was valid “federal law” capable of pre-empting a state police power regulation?

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