June 18, 2012
Supreme Court Action: Indian Affairs, FLSA Overtime Rules, and a Very Messy Expert Witness Case
The Supreme Court issued four cases this morning, drawing headlines not because of their holdings, but because none of them involved health care or state attempts to control illegal immigration. Expect them and other controversial cases to come down next week. And while we’re on the subject, Justice Ginsburg gave a hint of what to expect without revealing the substance behind the expectations. She is quoted in CNN as saying:
"As one may expect, many of the most controversial cases remain pending," she noted. "So it is likely that the sharp disagreement rate will go up next week and the week after."
The first of the four cases is Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (11-246). The case involves the power of the Secretary of the Interior to acquire land under the Indian Reorganization Act (IRA) and whether nearby property owners to that land had standing to sue over that acquisition. The Secretary in this case acquired property for the tribe to use for a casino. David Patchak sued to reverse the acquisition alleging that the tribe was not federally recognized when the IRA was passed in 1934. The tribe did receive recognition in 1999. Patchak also alleged different types of harm that would ensue if the Band was allowed to operate a casino.
The District Court ruled that Patchak did not have prudential standing to challenge the Secretary’s decision. The Court of Appeals for the District of Columbia reversed, rejecting the argument that sovereign immunity barred the suit. The Supreme Court affirmed the Court of Appeals. The Tribe and the Government argued that the Quiet Title Act (QTA) contained an exception the Administrative Procedure Act’s general waiver of the Government’s immunity from suit. That Act allows suit asserting a “right, title, or interest” in real property that conflicts with a claim by the United States. The Act contains an exception to suit for “trust or restricted Indian lands.”
The Court rejected the exception as Patchak was not asserting a claim to the property. His standing is derived from a broader set of claims, such as environmental, aesthetic, and other types of impact for the envisioned use of the land. Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito. Justice Sotomayor filed a dissenting opinion.
The second case is Salazar v. Ramah Navajo Chapter (11-551). The case involves the interpretation of the Indian Self-Determination and Education Assistance Act (ISDA). The Act allows the Secretary of the Interior to enter into contracts with tribes to provide educational and law enforcement services that the Government would otherwise provide. The ISDA requires the Secretary to pay the full amount of contract support costs. Tribal contractors are entitled to seek money damages under the Contract Disputes Act when a breach occurs. The Department asserted that Congress did not appropriate enough money in several fiscal years to pay all contractors. The Secretary then paid them on a pro rata basis. The contractors sued. The District Court granted summary judgment to the Government. The Tenth Circuit reversed, holding that the Government had to pay the full amount to each contractor. The Supreme Court affirmed the Tenth Circuit.
The Court held that Congress allocated enough money for purposes of paying the contractors and that the Department could not shift funding to other purposes under the Act. Essentially, paying contractors is the priority when Congress makes lump sum appropriations that adequately fund the contracts under the Act. The Court cited several cases it had decided years earlier to reach this conclusion. Justice Sotomayor delivered the opinion of the Court, joined by Justices Scalia, Kennedy, Thomas, and Kagan. Chief Justice Roberts filed a dissenting opinion joined by Justices Ginsburg, Breyer, and Alito.
The third case is Christopher v. SmithKline Beecham Corp. (11-204). It concerns whether pharmaceutical workers who perform promotional work with doctors are considered to be an “outside salesman” under the Fair Labor Standards Act (FSLA) and regulations of the Department of Labor. If so, they would not be eligible for overtime under the terms of the Act. Each worker in this case spent about 40 hours in the field promoting products to physicians who made nonbinding commitments to prescribe company products. The workers spent an additional 20 hours attending events and performing other tasks. They were paid a base salary and had incentives built in based on the sales performance of the drugs in their portfolio.
The workers sued for overtime and the District Court granted summary judgment to the SmithKline Beecham. The workers filed a motion to amend the judgment based on the Department of Labor’s interpretation of the regulations that would favor their position. The District Court denied the motion and the Ninth Circuit affirmed, holding that the Department’s interpretation was not entitled to deference. The Supreme Court affirmed, holding that the workers were outside salesman under the most reasonable interpretation of the Department’s regulations.
The Court notes that a Department is generally entitled to deference in interpreting its own ambiguous regulations. The Department filed amicus briefs in lower courts advocating the position that a sale for purposes of the regulation involves a consummated transaction directly involving the employee. Once the Court accepted the case for argument the Department changed its argument, stating that a sale only occurred when a worker actually transfers title to the property at issue. The change in position would impose massive liability on the company for conduct that was in place well before the position was announced. Moreover, the Department never initiated enforcement actions against any pharmaceutical manufacturer for any alleged unlawful conduct.
Further, the way the Department announced its position, via brief, did not give the public opportunity to comment. The statutory text is not definitive, though it offers clues within the context of particular industries as to what is a sale. These workers qualify as outside salesmen for their promotional activities under the Act and the regulations. Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas. Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.
The fourth case is Williams v. Illinois (10-8505). It concerns the level of testimony necessary to set a foundation for DNA evidence in a criminal case, and whether the Confrontation Clause is satisfied with a state technician testifies to the work of an outside lab. In this case Illinois State Police lab forensic specialist Sandra Lambatos testified in William’s criminal trial that she matched a DNA profile produced by outside laboratory Cellmark to a profile the state lab produced using a sample of William’s blood. Cellmark used swab samples taken from the victim.
The defense argued that Lambatos did not testify as to how Cellmark handled those samples nor could she vouch for Cellmark’s accuracy in their work on the profile. As such, the defense argued that her testimony should be excluded under the Confrontation Clause as Lambatos was not competent to testify about Cellmark’s work. The prosecution successfully argued that the testimony was admissible and any deficiencies went to weight and credibility. Williams was found guilty and his conviction was affirmed by the Illinois Court of Appeals and the Illinois Supreme Court. Those courts held that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because the Cellmark report was not offered into evidence to prove the truth of the matter asserted.
The Supreme Court affirmed the conviction in a pluraity where no five justices could agree on the rationale. Justice Alito, joined by Chief Justice Roberts, and Justices Kennedy and Breyer concluded that the form of testimony did not violate the Confrontation Clause. Experts may testify about facts known to them even if those facts are not in evidence. One factor is that Williams’ trial was a bench trial rather than a jury trial. The Court assumes the trial judge could understand that the testimony was not admissible to prove the truth of the matter asserted, or chain of custody evidence.
Essentially, the qualifications a judge may have to make to a jury are understood by the judge in a bench trial. The plurality further states that the purpose of the Cellmark report was to help identify an at-large individual rather than to build a case against someone already in custody. The plurality attempts to reconcile this case with recent precedent that has excluded scientific testimony in similar circumstances.
Justice Thomas added his vote to affirm the conviction strictly because Cellmark’s out-of-court statements lacked the requisite “formality and solemnity” to be considered testimonial. His opinion concurring in the judgment considers at length the meaning of what is and is not testimony for purposes of the Confrontation Clause. Justice Breyer wrote a concurring opinion. Justice Kagan filed a dissenting opinion and was joined by Justices Scalia, Ginsburg, and Sotomayor. [MG]