Thursday, January 12, 2012
This week the Supreme Court issued its decision in CompuCredit Corp. v. Greenwood, covered earlier here. The issue, begins Justice Scalia’s majority opinion, is "whether the Credit Repair Organizations Act (CROA), 15 U. S. C. §1679 et seq., precludes enforcement of an arbitration agreement in a lawsuit alleging violations of that Act."
Answer: It does not. “Because the CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the [Federal Arbitration Act] requires the arbitration agreement to be enforced according to its terms.”
Justice Ginsburg is the lone dissenter. Justice Sotomayor authors a concurring opinion, joined by Justice Kagan, which begins:
Claims alleging the violation of a statute, such as the Credit Repair Organizations Act (Act), 15 U. S. C. §1679 et seq., are generally subject to valid arbitration agreements unless Congress evinces a contrary intent in the text, history, or purpose of the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26 (1991). I agree with the Court that Congress has not shown that intent here. But for the reasons stated by the dissent, I find this to be a much closer case than the majority opinion suggests.
For more coverage, check out this analysis at SCOTUSblog by Prof. Ronald Mann (Columbia).
Wednesday, January 11, 2012
Yesterday the Supreme Court issued an 8-1 decision in Minneci v. Pollard. The majority opinion by Justice Breyer begins:
The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [the Fourth Amendment] by a federal agent . . . gives rise to a cause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so.
Justice Scalia authored a short concurring opinion that was joined by Justice Thomas; Justice Ginsburg authored a short dissent. The Scalia and Ginsburg opinions essentially restate their respective positions from Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001). From Justice Scalia’s concurrence:
Bivens is “a relic of the heady days in which this Court assumed common-law powers to create causes of action” by constitutional implication. Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., concurring); see also Wilkie v. Robbins, 551 U. S. 537, 568 (2007) (THOMAS, J., concurring). We have abandoned that power in the statutory field, see Alexander v. Sandoval, 532 U. S. 275, 287 (2001), and we should do the same in the constitutional field, where (presumably) an imagined “implication” cannot even be repudiated by Congress. As I have previously stated, see Malesko, supra, at 75, I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U. S. 228 (1979), and Carlson v. Green, 446 U. S. 14 (1980)) to the precise circumstances that they involved.
From Justice Ginsburg’s dissent:
Were Pollard incarcerated in a federal- or state-operated facility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429 U. S. 97 (1976) (42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61, 75–83 (2001) (opinion of Stevens, J.), I would not deny the same character of relief to Pollard, a prisoner placed by federal contract in a privately operated prison. Pollard may have suffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that same aggravated conduct, when it is engaged in by official actors, also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a federal sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment).
Today the Supreme Court will hear oral argument in Coleman v. Maryland Court of Appeals. This is an FMLA case with a very interesting federal courts dimension, namely, the question of whether the federal government, via congressional statute, can subject state employers to money damages under the FMLA.
Note that the defendant here is the Maryland Court of Appeals because the plaintiff actually worked there, not for some fancy reason of writs or the like.
Monday, January 9, 2012
The NLRB recently ruled that AT&T v. Concepcion does not apply to arbitration agreements waiving class action rights in certain employment contexts. Corporate Counsel reports here.
It will be interesting to see continuing interpretations of this case from institutions other than Article III tribunals.
Sunday, January 8, 2012
SCOTUSblog has a great post on the amicus brief by Robert Long on why the Anti-Injunction Act means that the Supreme Court should postpone hearing the ACA challenge cases until after the individual mandate goes into effect in 2014.