Procedural Barriers to Court

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • May 30, 2013
    Guest Post

    by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

    This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

    In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

  • May 3, 2013

    by E. Sebastian Arduengo

    Last month, U.S. Senator Patrick Leahy (D–Vt.) reintroduced the Gideon’s Promise Act of 2013 to address the problems plaguing the indigent defense system which have left the promise of Gideon v. Wainwright increasingly hollow for the poorest people in our society. The act would require states to use existing federal funds to improve the administration of criminal justice in a comprehensive, strategic way, and to collaborate with the Department of Justice and local authorities to devise a plan for adequately addressing indigent defense needs. If states refuse to comply then the Department of Jusice would have the power to take them to court to make sure that they are meeting their constitutional obligations.

    But Leahy’s bill doesn’t go nearly far enough to address budget-related failings in our criminal justice system. With sequestration at the federal level, and years of budget cutbacks at the state level, we’re now to the point where years of political indifference to funding the judicial branch has affected the basic operation of the courts and the services that we expect them to provide.

    This is a crisis that’s reached such endemic proportions that Chief Justice John Roberts made it a focus of last year’s state of the judiciary report, where he made the case that the federal courts were already being as cost-effective as they could possibly be, and warned that “significant and prolonged shortfall[s] in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

    That scenario is already playing out in state and local courts across the country.

    The effect of over a billion dollars of cuts in the last four years has been nothing short of devastating to the Los Angeles Superior Court system. Court officials plan to shutter a dozen courthouses and make an indeterminate number of staff layoffs. The only thing these courthouses will be used for now is for collecting traffic fines and administrative functions. The actual business of dispensing justice will be triaged at the remaining courthouses in the county, “where certain types of cases are heard at each remaining courthouse.”

  • April 17, 2013

    by Jeremy Leaming

    In another victory for corporate interests, the U.S. Supreme Court limited the scope of a 224-year-old law used by human rights groups and lawyers to sue corporations over human rights violations committed overseas.

    The case involved a lawsuit leveled against Royal Dutch Petroleum, which owns Shell Oil, alleging that the company was complicit in the murder and torture of Nigerians opposed to the company’s exploration of the Niger Delta and thereby in violation of the law of nations. The Nigerian government executed many of the activists -- and their families, represented by human rights lawyers, lodged a lawsuit in federal court pursuant to the Alien Tort Statute (ATS). The 1789 federal law states that federal courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

    In Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts Jr. asked the parties to address, “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

    The question is not, Roberts wrote in the majority opinion, “whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

    Roberts, joined by the high court’s other conservatives, maintained that the ATS “covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside the United States.”

    The Court’s conservatives concluded the ATS does not reach extraterritoriality claims, in this case.

    “On these facts, all the relevant conduct took place outside the United States,” Roberts wrote. “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

    The high court’s left-of-center justices “believed that the statute could still be used in some cases,” Robert Barnes reported for The Washington Post.

    Justice Stephen G. Breyer, Barnes highlighted, wrote that the ATS should reach conduct by corporations overseas that “substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.