Greetings Court fans!
One new decision today (the first substantive decision from the December sitting), and a few other items of interest. Before I get to the decision, though, let me offer two minor “corrections”: First, in an earlier email, I suggested that the Court still needed approximately 3 or 4 cases to fill out its Term. It seems I miscounted. As of now, it looks like they have only one more opening on their argument calendar. Second, yesterday I chastised Justice Breyer for taking too long to issue a relatively simple and straightforward opinion. I take back all my nasty comments, because Breyer issued another opinion today, his third for the Term. That’s more than any other Justice, and probably (although not certainly) all of the majority opinions he has been assigned this year. So, kudos to Breyer for fast opinion-writing.
Breyer issued an opinion for the unanimous Court in Meyer v. Holley (01-1120), another case in the line of “9th Circuit error correction.” (It makes you wonder if Breyer did something to make the Chief angry. After all, 2 of his 3 assignments this Term have been simple error correction cases.) In Meyer, the Court held that the Fair Housing Act imposes vicarious liability only in accordance with traditional agency principals, i.e., it imposes vicarious liability on corporations but not corporate officers or owners. The Fair Housing Act forbids racial discrimination with respect to the sale or rental of housing. Respondents in this case, an interracial couple, claim that Grove Crank (I’m not making this name up), a salesman for Triad, Inc., prevented them from obtaining a house for racially discriminatory reasons. They sued Crank, Triad, and David Meyer. With respect to Meyer, they claimed that he was vicariously liable for Crank’s actions as Triad’s sole shareholder, president, and licensed officer/broker. The district court dismissed the claims against Meyer because it believed that the FHA did not impose vicarious liability on him. The Ninth Circuit reversed, and the Supreme Court reversed that court.
The Court began by noting that while the FHA does not address vicarious liability, it is well-established that it provides for vicarious liability. An action for compensation by a victim of housing discrimination is in effect a tort action, and the Court has assumed that when Congress creates a tort action, it incorporates traditional rules of tort liability, including rules on vicarious liability. Under traditional rules for vicarious liability, principals and employers are liable for the acts of their agents or employees in the scope of their authority or employment. Moreover, absent special circumstances, the corporation (and not the corporate officer or owner) is the principal or employer that is subject to vicarious liability. The Court noted that the Ninth Circuit’s holding extended vicarious liability well beyond these traditional rules, and held that it would not interpret the Act in that way.
The Court offered several reasons for its reluctance to extend vicarious liability: (1) Congress said nothing (in the text or legislative history) about extending vicarious liability beyond traditional rules. Congressional silence permits an inference that Congress intended to adopt traditional rules, but it cannot show that Congress intended to modify those rules. In other cases, the Court has applied unusual or strict rules only when Congress has specified that that was its intent. (2) The Department of Housing and Urban Development, the agency charged with implementation of the FHA has specified that ordinary vicarious liability rules apply, and its views are entitled to deference under Chevron. (3) The Ninth Circuit offered no convincing arguments in support of its position. (In fact, respondents did not even attempt to defend that decision in the Supreme Court!) The Ninth Circuit’s decision was based on the HUD regulation, but that court failed to read the entire HUD regulation. Moreover, the cases cited by the Ninth Circuit do not support the kind of nontraditional vicarious liability that that court applied. Finally, the Ninth Circuit claimed that an owner or officer had a “non-delegable duty” not to discriminate in light of the FHA’s societal importance, but the Supreme Court considered this an “extra” duty that goes beyond traditional vicarious liability principles. It found nothing in the text or legislative history to impose this type of “extra” duty on owners and officers.
The Court concluded by declining to consider respondents’ other arguments because the Ninth Circuit had not considered below. The Court noted, however, that the Ninth Circuit remains free to consider those issues on remand.
In other news, the Court “GVR’d” a case yesterday, with dissents from Scalia (joined by the Chief and Thomas) and Kennedy. “GVR” is shorthand for “grant, vacate, and remand.” This sort of disposition is usually reserved for those cases that come up to the Court in the immediate aftermath of a new decision, where there is some chance that had the lower court had the benefit of the Court’s new decision, it would have reached a different result. Usually, the order just says something along the lines of “the petition is granted, the judgment of the lower court is vacated, and the case is remanded for reconsideration in light of [new case here].” Usually, because these orders aren’t that interesting, I don’t report them. I report on the GVR from yesterday, because it generated two dissents. (I will simplify my discussion, however, as the facts and law cover issues that only a prosecutor could love.)
In Price v. United States (01-10940), the Court GVR’d in light of a 1997 case (United States v. LaBonte) and in light of the Solicitor General’s concession that the lower court had erred below. The defendant was convicted of possession of cocaine in violation of 21 USC 844(a) and “using and carrying” a firearm during a drug trafficking crime in violation of 21 USC 924(c). After his sentence was upheld on direct appeal, he filed a federal habeas petition claiming, among other things, that he was not eligible for conviction under 924(c) because his drug possession conviction was not a “drug trafficking crime” under that statute. The Fifth Circuit upheld his 924(c) conviction, concluding that drug possession was a drug trafficking crime in light of the defendant’s 2 earlier drug convictions. In the Supreme Court, the defendant argued that the lower court could not consider the earlier convictions because the government had failed to provide notice that it intended to rely on those convictions as required by LaBonte. In response, the Solicitor General conceded that the Fifth Circuit erred in its reasoning that upheld the 924(c) conviction on that basis.
The Court GVR’d, and Scalia dissented. According to Scalia, even if the Fifth Circuit’s reasoning was incorrect, the judgment — upholding the conviction — was correct, and thus there was no basis for a GVR. (Scalia goes on to explain why the judgment was correct. I won’t bore you with the details.) Kennedy also dissented, in one paragraph. He believes that LaBonte has no impact on the decision below and thus, there is no basis for a GVR.
Finally, in one other item of interest, Justice Stevens stayed an execution in Indiana yesterday. The fact that Stevens acted alone is a little unusual — in death penalty cases, stay applications are almost always referred to the full Court — but is probably explained by the fact that Indiana had scheduled an execution before the defendant had a chance to file a federal habeas petition. My information on this is gleaned from press accounts, which are very sketchy, so I could be wrong, but that’s my best guess.
Thanks for reading. As always, please feel free to send me any comments, questions, or corrections.
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.