Thompson v. North American Stainless.

     It was a cold, crisp, clear morning at the United States Supreme Court today.  Flags were at half-mast for Pearl Harbor Day.  The U.S. Capitol Dome was gleaming white across the street, having just shrugged off the morning alpenglow.  The Court heard oral arguments in the case of Thompson v. North American Stainless.

     In Carroll County, Kentucky, Petitioner Eric Thompson worked as a metallurgical engineer for North American Stainless from 1997 until 2003, when he was fired from his job, allegedly for performance-based reasons.  Thompson surmised that he was fired in retaliation because his fiancée at the time (and current wife) - Miriam Regalado – had filed a complaint of gender discrimination against the company with the Equal Employment Opportunity Commission.  Stainless fired Thompson 3 weeks after Regalado filed her discrimination complaint.

     Thompson filed his employment discrimination claim under the Civil Rights Act of 1964.  The statute forbids an employer from retaliating against an employee for engaging in a protected activity.  Filing a complaint of gender discrimination, as Thompson’s fiancée did, with the Equal Employment Opportunity Commission is an example of a protected activity.

     Thompson was not engaged in a protected activity that resulted in retaliation.  The issue the Court must decide in this case is whether Thompson is protected from retaliation by Stainless due to Regalado’s protected activity and therefore, has a right to sue under the Civil Rights Act as a third party, based on his close association with Regalado, who was engaged in protected activity.

     The Justices were skeptical of who would be eligible for the kind of 3^rd party right to sue that Thompson is claiming.  At times, the hearing more resembled an episode of Seinfeld than of Law and Order.  Alito kept asking who would be eligible, someone you had lunch with, someone you dated, someone you tell secrets to – he seemed perplexed. 

     Justice Sotomayor also wondered who could sue as a 3^rd party under Thompson’s theory, asking what if they're just coworkers, but a coworker who has expressed sympathy for the discriminated person, has spoken about them in a favorable light, or has tried to defend them. Would that person be protected from being fired?

     Currently, there is a split among the federal courts on third-party retaliation claims under the Civil Rights Act – half of them do not recognize third party retaliation claims, while the rest allow this kind of lawsuit.   This case will give the Court the chance to resolve this discrepancy. 

Pepper v. United States.

     This morning, the U.S. Supreme Court heard oral arguments in Pepper v. United States, a case involving the Federal Sentencing Guidelines.

     Jason Pepper, a convicted meth dealer, tried to paint a sympathetic picture of himself.  While Pepper was in high school, his brother died.  Soon after, his mother died.  Then Pepper became depressed and tried to kill himself.  A good student high school, after going through so many ordeals, Pepper found himself nearly homeless.  He started using and selling meth, in an attempt to self-medicate and to support himself.

     Pepper was sentenced by the District Court to 2 years in prison for selling meth.  Under the Federal Sentencing Guidelines, Pepper’s conviction carried a 10 year mandatory minimum sentence.  Pepper received a reduced sentence because he had no prior convictions and because he provided evidence to the prosecution against other defendants.

     On appeal, the Circuit Court overturned Pepper’s sentence, ruling that the District Court abused its discretion by giving Pepper such a short sentence.  While the appeal was ongoing, Pepper completed his 2 year sentence, got married, stayed drug free, got a job, and got straight A’s in college.  Upon reconsideration of these developments, the District Court again sentenced Pepper to 2 years in prison.  The Circuit Court reversed this decision again, ruling that the District Court could not consider post-conviction rehabilitation evidence in giving Pepper a sentence below the Federal Guidelines.

     The U.S. Supreme Court must determine whether a federal district court judge may consider evidence of the defendant’s rehabilitation that occurred after conviction, or whether the judge must follow the Federal Sentencing Guidelines.

     Justice Sotomayor seemed to support allowing judges to consider this type of evidence in determining sentence, saying that when she was a district court judge, post sentencing criminal conduct would make her wonder if the person really was worthy of a lower sentence or not.

     Though the precise legal issue before the Court in this case is narrow, the justices could issue an opinion that has long-term consequences for the modern federal sentencing system.

Only in the U.S. (The United States of United Prisons.)

J.P. didn’t do well in school.  He worked as a general contractor in the home remodeling business in Houston. He received advance payments from the victims on remodeling and construction contracts. J.P. either completely failed to do the contracted work or performed below acceptable standards under the contracts. In December of 1994, J.P. declared bankruptcy and alleged the money he owed on the contracts was discharged in that proceeding.

In March of 1995, however, the State indicted J.P. for theft of funds he received in payment on some of the contracts.

The trial court convicted J.P. of theft, sentencing him to ten years confinement.

That's a big either.  What are the acceptable standards?  Can't he just fix it?  Is prison the best option?

U.S. Government Workers Ordered Not to Read. (This is not the Onion. Unfortunately.)

This is not a joke?  The administration is a joke.


From the New York Times - the Obama Administration orders U.S. Government Workers not to read information posted on wikileaks.

Freedom of Information Act. (Don't torture the law.)

Milner v. Department of the Navy 

   This morning, the U.S. Supreme Court heard arguments in the case of Milner v. Department of the Navy.  Glen Milner, a resident of Indian Island in the Puget Sound of Washington State, is seeking access through the Freedom of Information Act to files describing the blast radius of Navy-managed munitions stored in a magazine on the island.  Among the information Milner is requesting is the Explosive Safety Quantitative Distance information.  Milner claims this information is in the public interest, as the munitions are located within proximity of residential dwellings.

      The Navy has not complied with Milner’s request, arguing that the information cannot be released because it circumvents the agency’s function.

     To advance his cause of action, Milner argues that the information should be released because it is related solely to internal rules and practices of the Navy. 

     The U.S. court seemed to accept Milner’s argument.  At one point, Chief Justice Roberts referred to Assistant Solicitor General Anthony Yang’s argument as “torturing” the language and spirit of the Freedom of Information Act.  The Navy’s argument that terrorists could get ahold of sensitive material was met with skepticism.  If that’s the case, Chief Justice Roberts queried, why not make it classified material?  Attorney Yang responded that if the Navy did that, they would not be able to share the information with first responders and other entities.

     If Milner prevails, the Navy will be required to release the information.

Schwarzenegger v. Plata. (California Prisons. Bad.)

     Prison, it’s a bad thing.  In California, it’s really bad.  So bad, that in October of 2005, the U.S. District Court in California ordered that California’s prison medical system be placed under the control of a court appointed receiver.  In May of 2005, a federal district court judge had described medical treatment in the California prison systems as “horrifying” and shocking.”  He described widespread medical malpractice and neglect.  The court found that the system was broken beyond repair, causing an unconscionable degree of suffering and death.  The court found that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days because of  grossly deficient medical care.

     This morning, in a rare 80 minute session, the United States Supreme Court heard oral arguments in the case of Schwarzenegger v. Plata.  The terminator seems to think that his prisons are hunky dory and doesn’t want to follow the orders of a federal 3-judge district court, set up as a result of a class action filed under the federal Prison Litigation Reform Act. 

     The court ordered in January of this year that California reduce its prison overcrowding to 137.5 percent of capacity.  Right now, California prisons house over 160,000 inmates.  That is nearly twice as many as the facilities are designed to hold.  The federal 3 judge court stayed the population reduction order, meaning that it will not take effect , until the U.S. Supreme Court decides the appeal that the terminator has filed in this case.

     The justices gave the state of California a shellacking this morning.  The terminator’s attorney, Carter Phillips, came out swinging but completely missed the mark.  His argument that the reduction order was premature was met with disbelief by Justice Ginsburg, who asked how much longer do we have to wait to do something.  She referred to the 70 orders made by the district court during the 20 years that this prison litigation has gone on.  

     Justice Sotomayor, once again, took control of the argument, asking what are the alternatives to inmate reductions?  She said there is no other option and asked Attorney Phillips for concrete steps that California would take, instead of reducing the prison population.  When Phillips began to refer to a statement the receiver had made about prison levels, Justice Sotomayor held up her hands for him to stop, saying “if that is all you are relying on.”

     Phillips tried to say that the constitutional violations taking place in the California prison system are a result of a culture of disregard of inmates, not overcrowding.  The Justices did not seem to place this argument in high regard. 

     In sharp contrast to Attorney Phillips, a high-priced hired gun, was Donald Spector, attorney for the inmates.  Spector is an attorney with the Prison Law Office in Berkeley, California.  He is a thoughtful, soft-spoken man who seemed committed to the cause.  The Justices asked him for information – about the history of the litigation and evidence.  Only Alito, concerned about public safety upon the release of 46,000 inmates, questioned if there was another way, besides releasing inmates, to remedy the constitutional violations in the prison system.  Attorney Spector made it clear that nothing else in the past 20 years had worked to improve conditions, and that population reduction was the only option.

     If California loses and has to comply with the district court order, the terminator will have to release 46,000 prisoners by 2011.  That’s a lot of Hasta la Vista, baby’s, that the terminator will have to say.