NATIONAL LAW JOURNAL
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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The justices return today for arguments in a Title VII dispute and a Freedom of Information Act case, and two of the advocates will give #AppellateTwitter a moment in the sun. We've asked several stars of the #AppellateTwitter tag to tell us what the group means to them. Scroll down for a snapshot of the issues in the Title VII case, which has drawn a fair number of amicus briefs. Plus: the new rules SCOTUS adopted means shorter briefs. Thanks for reading Supreme Court Brief. Contact us at tmauro@alm.com and mcoyle@alm.com, and follow us on Twitter at @Tonymauro and @MarciaCoyle.
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An #AppellateTwitter Moment at SCOTUS
Nearly three years after its Twitter debut in 2016, #AppellateTwitter will have its moment to shine at the Supreme Court today. Put another way, #AppellateTwitter’s mug runneth over.
By coincidence, two of the pillars of the #AppellateTwitter social media movement will be arguing before the court today. And many of its followers, who like to get together at the drop of a hat anyway, are attending the arguments and then later, rumor has it, repairing to The Brig, a Washington watering hole.
>> Raffi Melkonian, partner at Wright Close & Barger in Houston, minted the hashtag in a June 2016 tweet lamenting that he could not connect up with a gathering of appellate lawyers in Washington. He’ll be arguing his first Supreme Court case in Fort Bend County v. Davis, a Title VII employment discrimination case. (Scroll down for more on the case.)
>> Robert Loeb (at left), partner at Orrick Herrington & Sutcliffe in Washington, is arguing his second Supreme Court case, this time in Food Marketing Institute v. Argus Leader Media, an important Freedom of Information Act case.
Like many who follow #AppellateTwitter, Melkonian and Loeb are both prolific Tweeple, even as the eve of oral argument drew near. Melkonian urged friends to “bring umbrellas” because “there is a decent chance I go to the podium on Monday and spontaneously burst in a shower of US Report citations.” Loeb took time to wish everyone Happy Passover.
#AppellateTwitter is about much more than a hashtag. Lawyers stumped by an appellate rule or how to phrase something in a brief fire off tweets for advice, which is promptly given. Meet-ups in various cities have launched nurturing appellate communities, job openings are transmitted, and mentoring groups including law students have developed.
We asked Melkonian, Loeb and others what #AppellateTwitter meant to them:
>> West Virginia Chief Justice Beth Walker: “A lively forum where our discussions—both serious and silly—are all in good humor. It’s a totally transparent way for judges and lawyers to interact and share tips for improving appellate practice (and judging).”
>> Ruthanne Deutsch, founder of Deutsch Hunt in Washington: “This ‘virtual water cooler’ is especially important for me, because I am no longer part of a large firm. Lots of other reasons too: business referrals; answers to arcane procedural questions; the sheer joy of debating grammar and word choice. All part and parcel of a supportive community of appellate advocates.”
>> Loeb: “Foremost, it has helped build a community, ranging from experienced appellate practitioners, to law students interested appellate matters, and beyond. Unlike much of Twitter, this self-selecting appellate community is one where respect and support for one another is the rule.”
>> Melkonian: “It gives lawyers who are usually pretty solitary in their practice a place to talk to their colleagues. It’s a network of really excellent lawyers who can share their experiences with their contemporaries but also in a way that people trying to get into this field might be able to learn from.
He added, “I’m very proud of the fact that many judges also seem to find the community helpful and positive. I think that’s really it—it’s a community of like-minded lawyer who don’t always agree on legal or political topics, but we agree on the importance of honing our craft.” |
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Let's Get Jurisdictional: Title VII Time
The lone Title VII case on the court's argument docket this term is not as potentially path breaking as the pending petitions questioning Title VII coverage of discrimination against gays and transgender persons. But the issue raised is an example of how critical procedural steps can be to case outcomes.
The case Fort Bend County v. Davis gets an airing this morning and asks whether Title VII's "administrative exhaustion" requirement is a jurisdictional prerequisite to a suit and can't be forfeited or waived.
Fort Bend, after five years of litigation, including appeals, argued for the first time that Lois Davis's religious discrimination and retaliation claim was barred because she failed to exhaust her administrative remedies before the Equal Employment Opportunity Commission. The county contends that the administrative exhaustion requirement is a jurisdictional prerequisite and an employer-defendant can raise it as a defense at any point.
Hogan Lovells partner Colleen Roh Sinzdak will argue for Fort Bend and Raffi Melkonian of Houston's Wright Close & Barger will ague for Lois Davis.
The federal circuits have divided on the question. The Fourth, Ninth and Eleventh circuits say the administrative exhaustion requirement is jurisdictional, which means a federal court can't hear discrimination claims if the plaintiff failed to file an EEOC charge. The First, Second, Fifth, Sixth, Seventh, Tenth and D.C. circuits disagree.
Not surprisingly, employer and employee groups also are divided:
>> Rae Vann of NT Lakis LLP, who represents the Center for Workplace Compliance, U.S. Chamber of Commerce, National Federation of Independent Business and other business advocates, writes: "Title VII’s detailed administrative and enforcement scheme thus is both premised and dependent upon the exhaustion of administrative remedies. Treating that requirement as anything less than jurisdictional would diminish its role in the statutory scheme and be inconsistent with many of the purposes underlying Title VII, such as empowering the EEOC to investigate and attempt to resolve discrimination claims informally, reserving litigation as an avenue of last resort.
>> Michael Foreman of the Penn State Law Civil Rights Appellate Clinic, counsel to the National Employment Lawyers Association, counters: "Interpreting Title VII’s administrative investigative process as a jurisdictional requirement would unjustly limit the available paths to remedy employment discrimination. Because Title VII’s procedures are intricate and initiated by laypersons, the accompanying Title VII administrative process initiating those procedures should continue to be flexible and one that can be navigated by workers unsophisticated in legal technicalities."
The U.S. solicitor general has weighed in on the side of Davis and argues that "Congress did not channel Title VII claims to the EEOC for adjudication. It merely directed individuals alleging employment discrimination to give the EEOC a right of first refusal before bringing suit."
Now about those pending Title VII petitions: Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, which question whether Title VII's ban on discrimination because of sex includes sexual orientation, have been relisted for conference by the justices 10 times, as has R.G. and G.R. Harris Funeral Homes v. EEOC, which asks if Title VII bars discrimination because of gender identity or transsexual status.
Could today be the day the justices finally reveal their plans for those petitions? Keep an eye on this morning's orders list.
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Supreme Court Headlines: What We're Reading
>> Neal Katyal on Whether the Mueller Report Went Far Enough. "I think the most important thing to understand about the Mueller report that was obscured by Barr’s letter and his press conference was that Mueller was guided by two things, and Barr’s press conference mentioned neither of them. One is that, if I have all the evidence that shows you, Trump, to be guilty as sin, I am still not going to say so, because I can’t indict a sitting President, and fairness concerns counsel against calling you criminal if you have no way of clearing your name, because there is no criminal process. And the second is that, if I have no evidence you have committed a crime, I will say so in the report and exonerate. Everything about the obstruction of justice needs to be read in light of those two things." [ The New Yorker]
>> US Supreme Court Tells Lawyers: Write Tighter. The changes, which take effect July 1, will limit briefs on the merits to 13,000 words, down from the current 15,000-word limit. Amicus briefs filed by nongovernmental entities will shrink from 9,000 to 8,000 words. Vinson & Elkins partner John Elwood said, “While the rule change is not ideal for practitioners, I think it’s a solution that they can live with. The reduction from 15,000 to 13,000 makes the word limit in the Supreme Court tighter than in many courts of appeals. But issues are frequently more narrowly focused in the Supreme Court than in the courts of appeals, and savvy practitioners will be able to cope with the change by writing more economically.” [ NLJ]
>> John Roberts Rejects Requests for Same-Day Audio of Census Citizenship Arguments. "Chief Justice John Roberts denied a request from CNN and other news outlets to release same-day audio of oral arguments next week in a highly anticipated case concerning the Trump administration's decision to add a citizenship question to the 2020 census." [ CNN]
>> Appeal To Census Lawsuit Ruling Adds Uncertainty To Citizenship Question's Fate. "For the final months of 2020 census preparations to continue as planned, the Census Bureau says it's counting on the U.S. Supreme Court to resolve the legal battle over the citizenship question by June. But a new appeal filed by plaintiffs in one of the Maryland lawsuits over the question could complicate that timeline." [ NPR]
>> The Next Robert Mueller … Or a Liberal Brett Kavanaugh? "If all the world is a stage, then [Elizabeth] Prelogar is poised to become one of its major players. The 39-year-old fluent Russian speaker worked as a top prosecutor for special counsel Robert Mueller in his investigation into Moscow’s meddling in the 2016 election while on loan from the U.S. Solicitor General’s office, reportedly tasked with research and interviewing key witnesses." [ Ozy]
>> Justices May Allow More Time to File False Evidence Cases. "The justices’ heads were 'spinning' during oral argument April 17 in a case about when a defendant must file a false evidence claim, according to Justice Samuel Alito. Part of the confusion for the justices was that the court hasn’t yet officially recognized a claim for using fabricated evidence." [ Bloomberg Law]
>> SCOTUS Focuses on Income Distributions in Trust Tax Debate. "The scope of state authority in taxing trusts was at the center of April 16 Supreme Court oral arguments. Several justices questioned whether states should be able to tax trusts if the trust beneficiary hasn’t yet received the money and isn’t guaranteed to do so." [ Bloomberg Tax]
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