--------------------------------------------------------------- AN E-BULLETIN LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL lii@lii.law.cornell.edu --------------------------------------------------------------- The following decisions have just arrived via the LII's direct Project HERMES feed from the Supreme Court. These are not the decisions themselves nor excerpts from them, but summaries (syllabi) prepared by the Court's Reporter of Decisions. Instructions for accessing the full text of any of these decisions are provided at the end of this bulletin, as are instructions for subscribing in the event that this bulletin has been given you by a colleague and you'd like a subscription of your own. =============================================================== WEST v. GIBSON (98-238) Web-accessible at: http://supct.law.cornell.edu/supct/html/98-238.ZS.html Argued April 26, 1999 -- Decided June 14, 1999 Opinion author: Breyer =============================================================== In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination in the Federal Government, 42 U.S.C. sect. 2000e-16, to authorize the Equal Employment Opportunity Commission (EEOC) to enforce that prohibition through "appropriate remedies, including reinstatement or hiring . . . with or without back pay," sect. 2000e-16(b), and to empower courts to entertain an action by a complainant still aggrieved after final agency action, sect. 2000e-16(c). In 1991, Congress again amended Title VII in the Compensatory Damages Amendment (CDA), which, among other things, permits victims of intentional discrimination to recover compensatory damages "[i]n an action . . . under [sect. 2000e-16]," sect. 1981a(a)(1), and adds that any party in such an action may demand a jury trial, sect. 1981a(c). Thereafter, the EEOC began to grant compensatory damages awards in Federal Government employment discrimination cases. Respondent Gibson filed a complaint charging that the Department of Veterans Affairs had discriminated against him by denying him a promotion on the basis of his gender. The EEOC found in his favor and awarded him the promotion plus backpay. Gibson later filed this suit asking for compensatory damages and other relief, but the District Court dismissed the complaint. The Seventh Circuit reversed, rejecting the Department's argument that, because Gibson had failed to exhaust his administrative remedies with respect to an award of compensatory damages, he could not bring that claim in court. In the Seventh Circuit's view, the EEOC lacked the legal power to award compensatory damages; consequently there was no administrative remedy to exhaust. Held: 1. The EEOC possesses the legal authority to require federal agencies to pay compensatory damages when they discriminate in employment in violation of Title VII. Read literally, the language of the 1972 Title VII extension and the CDA is consistent with a grant of that authority. Section 2000e-16(b) empowers the EEOC to enforce sect. 2000e-16(a) through a "remedy" that is "appropriate." Although sect. 2000e-16(b) explicitly mentions only equitable remedies--reinstatement, hiring, and backpay--the preceding word "including" makes clear that the authorization is not limited to the remedies specified. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189. The 1972 Title VII extension's choice of examples is not surprising, for in 1972 (and until the 1991 CDA) Title VII itself authorized only equitable remedies. Words in statutes can enlarge or contract their scope as required by other changes in the law or the world. See, e.g., Browder v. United States, 312 U.S. 335, 339-340. The meaning of the word "appropriate" permits its scope to expand to include Title VII remedies that were not appropriate before 1991, but in light of legal change wrought by the 1991 CDA are appropriate now. Examining the purposes of the 1972 Title VII extension shows that this is the correct reading. Section 717's general purpose is to remedy discrimination in federal employment by creating a system that requires resort to administrative relief prior to court action to encourage quicker, less formal, and less expensive resolution of disputes. To deny that an EEOC compensatory damages award is, statutorily speaking, "appropriate" would undermine this remedial scheme. This point is reinforced by the CDA's history, which says nothing about limiting the EEOC's ability to use the new damages remedy or in any way suggests that it would be desirable to distinguish the new Title VII remedy from the old ones. Respondent's arguments in favor of depriving the EEOC of the power to award compensatory damages--that the CDA's reference to an "action" refers to a judicial case, not to an administrative proceeding; that an EEOC compensatory damages award would not involve a jury trial, as authorized by the CDA; and that any waiver of the Government's sovereign immunity to permit the EEOC to award compensatory damages must be construed narrowly--are unconvincing. Pp. 4-10. 2. Respondent's claims that he can proceed in District Court on alternative grounds include matters that fall outside the scope of the question presented in the Government's petition for certiorari. The case is remanded so that the Court of Appeals can determine whether these questions have been properly raised and, if so, decide them. Pp. 10-11. 137 F.3d 992, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. =============================================================== CUNNINGHAM v. HAMILTON COUNTY (98-727) Web-accessible at: http://supct.law.cornell.edu/supct/html/98-727.ZS.html Argued April 19, 1999 -- Decided June 14, 1999 Opinion author: Thomas =============================================================== When petitioner, an attorney representing a plaintiff, failed to comply with certain discovery orders, the Magistrate Judge granted the respondent's motion for sanctions against petitioner under Federal Rule of Civil Procedure 37(a)(4). The District Court affirmed the sanctions order and also disqualified petitioner as counsel. Although the District Court proceedings were ongoing, petitioner immediately appealed the order affirming the sanctions award. Because federal appellate court jurisdiction is ordinarily limited to appeals from "final decisions of the district courts," 28 U.S.C. sect. 1291 the Sixth Circuit dismissed for lack of jurisdiction. It held that the sanctions order was not immediately appealable under the collateral order doctrine, which provides that certain orders may be appealed, notwithstanding the absence of final judgment, but only when they are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from the final judgment in the underlying action, e.g., Swint v. Chambers County Comm'n, 514 U.S. 35, 42. The court found these conditions unsatisfied because the issues involved in petitioner's appeal were not completely separate from the merits. Regarding petitioner's disqualification, the court held that a nonparticipating attorney, like a participating attorney, ordinarily must await final disposition of the underlying case before filing an appeal. It avoided deciding whether the order was effectively unreviewable absent an immediate appeal, but saw no reason why, after final judgment in the underlying case, a sanctioned attorney should be unable to appeal a sanctions order. Held: An order imposing sanctions on an attorney pursuant to Rule 37(a)(4) is not a "final decision" under sect. 1291, even where the attorney no longer represents a party in the case. Although the Rule 37 sanction imposed on petitioner would not ordinarily be considered a "final decision" because it neither ended the litigation nor left the court only to execute its judgment, see, e.g., Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, this Court has interpreted sect. 1291 to permit jurisdiction over appeals that meet the conditions of the collateral order doctrine. Respondent conceded that the sanctions order was conclusive, so at least one of those conditions is presumed to have been satisfied. Appellate review of a Rule 37(a) sanctions order, however, cannot remain completely separate from the merits. See, e.g., Van Cauwenberghe v. Biard, 486 U.S. 517, 521-522. Here, some of the sanctions were based on the fact that petitioner provided partial responses and objections to some of the defendants' discovery requests. To evaluate whether those sanctions were appropriate, an appellate court would have to assess the completeness of her responses. Such an inquiry would differ only marginally from an inquiry into the merits. Petitioner's argument that a sanctions order is effectively unreviewable on appeal from a final judgment suffers from at least two flaws. First, it ignores the identity of interests between the attorney and client. The effective congruence of those interests counsels against treating attorneys like other nonparties, since attorneys assume an ethical obligation to serve their clients' interests even where they might have a personal interest in seeking vindication from the sanctions order. See Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 434-435. Second, unlike a contempt order, a Rule 37(a) sanctions order lacks any prospective effect and is not designed to compel compliance. To permit an immediate appeal would undermine the very purposes of Rule 37(a), which was designed to protect courts and opposing parties from delaying or harassing tactics during discovery, and would undermine trial judges' discretion to structure a sanction in the most effective manner. Finally, a Rule 37 sanction's appealability should not turn on an attorney's continued participation, as such a rule could not be easily administered and may be subject to abuse. Although a sanctions order may sometimes impose hardship on an attorney, solutions other than an expansive interpretation of sect.1291's "final decision" requirement remain available. Pp. 4-12. 144 F.3d 418, affirmed. Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion. =============================================================== GREATER NEW ORLEANS BROADCASTING ASSN., INC.v. UNITED STATES (98-387) Web-accessible at: http://supct.law.cornell.edu/supct/html/98-387.ZS.html Argued April 27, 1999 -- Decided June 14, 1999 Opinion author: Stevens =============================================================== Title 18 U.S.C. sect. 1304 and an implementing Federal Communications Commission (FCC) regulation prohibit, inter alia, radio and television broadcasters from carrying advertising about privately operated commercial casino gambling, regardless of the station's or casino's location. In United States v. Edge Broadcasting Co., 509 U.S. 418, this Court upheld the constitutionality of sect. 1304 as applied to advertising of Virginia's lottery by a broadcaster in North Carolina, where no such lottery was authorized. Petitioners--representing New Orleans area broadcasters--wish to run advertisements for private commercial casinos that are lawful and regulated in Louisiana and Mississippi, and they filed this suit for a declaration that sect. 1304 and the FCC's regulation violate the First Amendment as applied to them. The District Court utilized the test for assessing commercial speech restrictions set out in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 566, and granted the Government's cross-motion for summary judgment. The Court of Appeals affirmed. Held: Section 1304 may not be applied to advertisements of lawful private casino gambling that are broadcast by petitioners' radio or television stations located in Louisiana, where such gambling is legal. Pp. 9-22. (a) Central Hudson's four-part test asks (1) whether the speech at issue concerns lawful activity and is not misleading and (2) whether the asserted governmental interest is substantial; and, if so, (3) whether the regulation directly advances the governmental interest asserted and (4) whether it is not more extensive than is necessary to serve that interest. The four parts of the Central Hudson test are not entirely discrete; all are important and, to a certain extent, interrelated. While some advocate a more straightforward and stringent test, Central Hudson, as applied in the Court's more recent commercial speech cases, provides an adequate basis for decision in this case. Pp. 9-10. (b) All parties agree that petitioners' proposed broadcasts constitute commercial speech, and that they would satisfy the first part of the Central Hudson test: Their content is not misleading and concerns lawful activities, i.e., private casino gambling in Louisiana and Mississippi. In addition, the interests asserted by the Government are "substantial": (1) reducing the social costs associated with casino and other forms of gambling; and (2) assisting States that restrict or prohibit casino and other forms of gambling. However, that conclusion is by no means self-evident, since, in the judgment of both Congress and many state legislatures, the social costs that support the suppression of gambling are offset, and sometimes outweighed, by countervailing policy considerations. The Court cannot ignore Congress' unwillingness to adopt a single national policy that consistently endorses either interest asserted by the Government. See, e.g., Edenfield v. Fane, 507 U.S. 761, 768. Considering both the quality of the asserted interests and the information sought to be suppressed, the crosscurrents in the scope and application of sect.1304 become more difficult to defend. Pp. 10-14. (c) As applied to petitioners' case, sect. 1304 cannot satisfy the third and fourth parts of the Central Hudson test. With regard to the Government's first asserted interest -- alleviating casino gambling's social costs by limiting demand -- the operation of sect. 1304 and its regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it. See Rubin v. Coors Brewing Co., 514 U.S. 476, 488. For example, federal law prohibits a broadcaster from carrying advertising about privately operated commercial casino gambling regardless of the station's or casino's location, but exempts advertising about state-run casinos, certain occasional commercial casino gambling, and tribal casino gambling even if the broadcaster is located in or broadcasts to a jurisdiction with the strictest of antigambling policies. Coupled with the FCC's interpretation and enforcement of the statute, it appears that the Government is committed to prohibiting certain accurate product information, not commercial enticements of all kinds, and then only for certain brands of casino gambling. The most significant difference identified by the Government between tribal and other classes of casino gambling is that the former are heavily regulated; but Congress' failure to institute such direct regulation of private casino gambling undermines the asserted justifications for the speech restriction before the Court. There may be valid reasons for imposing commercial regulations on non-Indian businesses that differ from those imposed on tribal enterprises, but it does not follow that those differences justify abridging non-Indians' freedom of speech more severely than the freedom of their tribal competitors. For the power to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct. To the extent that federal law distinguishes among information about tribal, governmental, and private casinos based on the identity of their owners or operators, the Government presents no sound reason why such lines bear any meaningful relationship to the Government's asserted interest. Pp. 14-20. (d) Considering the manner in which sect.1304 and its exceptions operate and the scope of the speech proscribed, the Government's second asserted interest--"assisting" States with policies that disfavor private casinos--provides no more convincing basis for upholding the regulation than the first. Even assuming that the state policies on which the Federal Government seeks to embellish are more coherent and pressing than their federal counterpart, sect.1304 sacrifices an intolerable amount of truthful speech about lawful conduct when compared to the diverse policies at stake and the social ills that one could reasonably hope such a ban to eliminate. Pp. 20-21. 149 F.3d 334, reversed. Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment. --------------------------------------------------------------- These and all other recent Supreme Court decisions are archived in full text at http://supct.law.cornell.edu/supct/ (in hypertext versions prepared by the LII and the original word-processing files received from the Court) To subscribe, send the one-line message SUBSCRIBE LIIBULLETIN Your Name to listserv@listserv.law.cornell.edu ---------------------------------------------------------------