Tuesday, October 4, 2011


Yesterday the Supreme Court issued an 89 page "Order List", taking care of much of the administrative housekeeping that accrued during their recess.  USA v. Arizona, the SB 1070 case on appeal from the Ninth Circuit was not on that list. 
Here is a sample of the actions the Court took.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition. This is a Fair Labor Standards Act and a Class Action Rule 23 case,

In Dukes the Court said:

1. The certification of the plaintiff class was not consistent with Rule 23(a).
(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature thatit is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to thevalidity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

 (b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the sameinjury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14. (c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short.

2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2).

(a) Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to therequested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule because, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out.
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition. This is a sad case about an honorable man who served our nation well in World War II and Korea as a combat pilot. In 1959 he was placed on "Retired Reserve" status. That status, Murphy contends, kept him from receiving promotions and earning full retirement benefits. In 1992 he began his legal crusade and seems unable to accept that he has lost his case. He accuses all of the judges who have had any part in the decisions of his case with judicial malpractice. The case comes from the Middle District of Tennessee.
The motion for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record is granted. Justice Alito took no part in the consideration or decision of this motion.  This is an antitrust action invoking both the Sherman Act and the Robinson-Patman Act.  The Sherman Act was a favorite tool for President Teddy Roosevelt in the 1890's.  The Robinson-Patman hearkens back to the laws following the Great Depression and prohibits certain anticompetitive practices.  Moundridge is on US Highway 81 between Newton, Ks. and McPherson, Ks; making it Northeast of Hutchinson, Kansas.

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