U.S. SUPREME COURT DOCKET CHART
2015 TERM
June 19 – June 25
Amicus cases = yellow highlight
Petitions scheduled for conference – green highlight
MOST RECENT PETITIONS FOR CERT. FILED
CASE/DOCKET
NO./LOWER
COURT
CITATION
Malcolm v. Honeoye
Falls-Lima Cent. Sch.
Dist., 15-1497,
unpublished (N.Y.)
ISSUE
Employment & Labor: (1) Is there a claim of race discrimination and
retaliation here under state and federal law; (2) Can an employer be liable
under Title VII and Exec. Law §296(1)(a)(6)(7) for numerous actions
against the petitioner because of complaints of its unlawful employment
practices and can the petitioner establish due process and equal protection
rights violations; (3) Did petitioner's former employer's action const itute a
material breach of the settlement agreement so that it's no longer binding
and petitioner may raise a disparate treatment claim
DATE
FILED
4/7/16
COMMENTS
DECISIONS
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
HOLDING
DATE OF
OPINION
Fisher v. University of Texas at
Austin, 14-981, 758 F.3d 633 (5th
Cir.)
Equity & Discrimination: Can the Fifth Circuit's reendorsement of the University of Texas at Austin's use of
racial preferences in undergraduate admissions decisions
be sustained under this court's decisions interpreting the
equal protection clause of the 14th Amendment,
including Fisher v. Univ. of Texas at Austin
Court, 4-3, held: “The race-conscious admissions
program in use at the time of petitioner’s
application is lawful under the Equal Prot ection
Clause.”
6/23/16
The majority stated: “The component with the
largest impact on petitioner’s chances of
admission was not the school’s consideration of
race under its holistic -review process but the Top
Ten Percent Plan. Because petitioner did not
challenge the percentage part of the plan, the
record is devoid of evidence of its impact on
diversity.”
Note: Justice Kagan
recused herself from
the case.
Legal Clips summary
of Fifth Circuit panel
decision on remand
from U.S. Supreme
Court available at
http://legalclips.nsba
.org/2014/07/24/fifth
-circuit-panelupholds-universityof-texas-raceconsciousadmissions-policy/
NSBA’s amicus brief
is available at
https://cdnfiles.nsba.org/s3fspublic/reports/Fisher
%20v%20%20UTA%
20%20NSBA%20Amicu
s%202015.pdf?mhac
cc5FEZ49NAhc401P.q
84cOn26oNJ
DECISIONS CONTINUED
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
HOLDING
DATE OF
OPINION
Green v. Brennan, 14-613, 760
F.3d 1135 (10th Cir.)
Employment & Labor: Under federal employment
discrimination law, does the filing period for a constructive
discharge claim begin to run when an employee resigns,
as five circuits have held, or at the time of an employer's
last allegedly discriminatory act giving rise to the
resignation, as three other circuits have held
Court, 7-1, held: Because part of the “matter
alleged to be discriminatory” in a constructivedischarge claim is an employee’s resignation, the
45-day limitations period for such action begins
running only after an employee resigns.
5/23/16
A constructive-discharge claim accrues—and the
limitations period begins to run—when the
employee gives notice of his resignation, not on
the effective date thereof. The Tenth Circuit is
left to determine, in the first instance, the date
that Green in fact gave notice.
CRST Van Expedited, Inc. v.
EEOC, 14-1375, 774 F.3d 1169
(8th Cir.)
Employment & Labor: Can a dismissal of a Title VII case,
based on the EEOC's total failure to satisfy its pre-suit
investigation, reasonable cause and conciliation
obligations, form the basis of an attorneys’ fee award to
the defendant under 42 U.S.C. § 2000e-5(k)
Heffernan v. City of Patterson,
14-1280, 777 F.3d 147 (3d Cir.)
Employment & Labor: Does the First Amendment bar the
government from demoting a public employee based on a
supervisor's perception that the employee supports a
political candidate
Tenth Circuit’s decision vacated and remanded.
Court, unanimously, held: A favorable ruling on
the merits is not a necessary predicate to find
that a defendant is a prevailing party. Title VII’s
fee-shifting statute allows prevailing defendants
to recover whenever the plaintiff ’s “claim was
frivolous, unreasonable, or groundless.”
Christiansburg Garment Co. v. EEOC, 434 U. S.
412. Various Courts of Appeals likewise have
applied the Christiansburg standard when claims
were dismissed for nonmerits reasons. The Court
declines to decide the argument, raised by the
Commission for the first time during the merits
stage of this case, whether a defendant must
obtain a preclusive judgment in order to prevail.
Court, 6-2, held: When an employer demotes an
employee out of a desire to prevent the employee
from engaging in protected political activity, the
employee is entitled to challenge that unlawful
action under the First Amendment and §1983
even if, as here, the employer’s actions are based
on a factual mistake about the employee’s
behavior. To answer the question whether an
official’s factual mistake makes a critical legal
difference, the Court assumes that the activities
that Heffernan’s supervisors mistakenly thought
he had engaged in are of a kind that they cannot
constitutionally prohibit or punish.
5/19/16
4/26/16
DECISIONS CONTINUED
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
HOLDING
DATE OF
OPINION
Harris v. Ariz. Indep.
Redistricting Comm'n, 14-232,
2014 BL 119516 (D.Ariz.)
Equity & Discrimination: (1) Does the desire to gain
partisan advantage for one political party justify
intentionally creating over-populated legislative districts
that result in tens of thousands of individual voters being
denied equal protection because their individual votes are
devalued, violating the one-person, one-vote principle;
(2) Does the desire to obtain favorable preclearance
review by the Justice Department permit the creation of
legislative districts that deviate from the one-person,
one-vote principle; And, even if creating unequal districts
to obtain preclearance approval was once justified, is this
still a legitimate justification after Shelby Cnty. v. Holder,
2013 BL 167707, 81 U.S.L.W. 4572 (U.S. June 25, 2013)
(82 U.S.L.W. 15); (3) Was the Arizona redistricting
commission correct to disregard the majority-minority
rule and rely on race and political party affiliat ion to
create Hispanic “influence” districts
4/20/16
Friedrichs v. Cal. Teachers
Ass'n, 14-915, unpublished (9th
Cir.)
Employment & Labor: (1) Should Abood v. Detroit Bd. of
Educ., 431 U.S. 209 (1977) be overruled and public sector “agency shop” arrangements invalidated under the
First Amendment; (2) Does it violate the First
Amendment to require that public employees affirmatively
object to subsidizing nonchargeable speech by public sector unions, rather than requiring that employees
affirmatively consent to subsidizing such speech
Court, unanimously, held that the district court
did not err in upholding Arizona’s redistricting
plan. Appellants have failed to meet that burden
here, where the record supports the District
Court’s conclusion that the deviations
predominantly reflected Commission efforts to
achieve compliance with the Voting Rights Act,
not to secure political advantage for the
Democratic Party. Because this record well
supports the District Court’s finding that the
Commission was trying to comply with the Voting
Rights Act, appellants have not shown that it is
more probable than not that illegitimate
considerations were the predominant motivation
for the deviations. They have thus failed to show
that the plan violates the Equal Protection Clause.
Appellants’ additional arguments are
unpersuasive.
Court, 4-4, affirmed the judgment of the Ninth
Circuit upholding public sector “agency shop
arrangements per Abood v. Detroit Bd. of Educ.,
431 U.S. 209 (1977),
3/29/16
CASES DISMISSED
CASE/DOCKET
NO./LOWER
COURT
CITATION
ISSUE
DATE
COMMENTS
ARGUED
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
GRANTED
DATE ARGUED
REVIEW GRANTED
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
GRANTED
DATE OF ORAL
ARGUMENT
Trinity Lutheran Church
of Columbia, Inc. v.
Pauley, 15-577, 788 F.3d
779 (8th Cir.)
Religion: Does the exclusion of churches from an otherwise neutral and secular aid
program violate the free exercise and equal protection clauses of the U.S. Constitution
when the state has no valid establishment clause concern
1/15/16
TBA
REVIEW DENIED
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
DENIED
COMMENT
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
Bauer v. Lynch, 15-1489,
812 F.3d 340 (4th Cir.)
Employment & Labor: Does the FBI's physical fitness test, which requires that men
complete a minimum of 30 push-ups while women must only complete 14, and which is
used as a pass/fail job requirement for a position that requires the same physical tasks
of both men and women, constitute a prima facie violation of 42 U.S.C. §2000e-16(a),
which prohibits employment discrimination based on sex generally, or a prima
facie violation of 42 U.S.C. §2000e-2(l), which expressly prohibits the use of different
cutoff scores on employment tests on the basis of sex
Employment & Labor: Is the U.S. Court of Appeals for the Sixth Circuit's “ancillary to a
production activity” test inconsistent with the regulations implementing the
administrative exception to the Fair Labor Standards Act
6/6/16
Special Education & Disabilities: Are parents prevailing parties, entitled to attorneys’
fees under the Individuals with Disabilities Education Act, when they obtain an order
that remedies a violation of 20 U.S.C. §1415(j) by requiring that the student be
returned to his lawful stay-put placement
5/23/16
Employment & Labor: (1) Does the anti-retaliation provision of the Fair Labor Standards
Act, 29 U.S.C. §215(a)(3), protecting any employee who has “filed any complaint,”
extend to a manager who communicates with other managers and executives regarding
what she believes are FLSA violations and potential liability exposure, without ever
taking a position adverse to the interests of the employer, which four circuits have held
it does not, or does her advocacy for FLSA compliance reach the “requisite degree of
formality” to be protected, as the U.S. Court of Appeals for the Ninth Circuit held below;
(2) Can a federal court rely solely on a plaintiff's written testimony by affidavit and
interrogatory answer regarding her beliefs, impressions, suspicions and arguments as
the evidentiary basis for finding a genuine issue for trial precluding summary judgment,
including when doing so would require the court to draw inferences that are blatantly
contradicted by the remainder of the record
Employment & Labor: (1) Did the appeals court's reliance on an arbitrary 10-month
period between the petitioner's whistleblowing activity and his termination nullify the
expanded protection Congress intended to provide whistleblowers under the Sarbanes Oxley Act and create a circuit split on the issue; (2) Was the appeals court entitled to
disbelieve petitioner's proof on summary judgment that all his supervisors were aware
of his earlier whistleblowing activities when they decided to investigate him and then
use it as an opportunity to terminate him because of his protected conduct
5/23/16
Lutz v. Huntington
Bancshares, Inc., 151453, 815 F.3d 988 (6th
Cir.)
Tina M. v. St. Tammany
Par. Sch. Bd., 15-1438,
816 F.3d 57 (5th Cir.)
Globaltranz Enters., Inc.
v. Rosenfield, 15-1431,
811 F.3d 282 (9th Cir.)
Wiest v. Tyco Elecs.
Corp., 15-1429, 812 F.3d
319 (3d Cir.)
ADDITIONAL
INFORMATION
5/31/16
5/23/16
Legal Clips summary of Fifth
Circuit panel decision available at
http://legalclips.nsba.org/2016/03
/21/fifth-circuit-panel-rules-thatobtaining-stay-put-orderpursuant-to-idea-does-not-qualifyparty-as-a-prevailing-party-forpurposes-of-recovering-attorneysfees/
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
Bagwe v. Sedgwick
Claims Mgmt. Servs.,
Inc., 15-1428, 811 F.3d
866 (7th Cir.)
Williams v. Bd. of Educ.
of Prince George's Cnty.,
15-1422, unpublished (Md.
Ct. App.)
Employment & Labor: Does application of the stray remarks doctrine to Title VII cases
conflict with this court's unanimous decision in Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133 (2000)
5/23/16
Employment & Labor: (1) Did the Prince George's County Circuit Court deny petitioner
due process when it granted summary judgment before affording her a hearing; (2) Did
the lower courts’ finding that petitioner didn't file her notice of appeal on time conflict
with governing law and violate her due process rights? (3) Did the appeals court's
finding that the issues presented weren't desirable and in the public interest a due
process violation; (4) Was petitioner's right to select her own legal representation
violated when the state appointed Damon Felton to appeal her unsatisfactory
evaluation; (5) Did the circuit court err in accepting Felton's assertion that he was her
attorney and in not finding the date in the letter from the local board of education had
been manipulated? (6) Did the court err in not recognizing that the school board denied
petitioner her due process rights
Legal System: Does the decision in Walker v. Sons of Confederate Veterans, Inc., 83
U.S.L.W. 4453 (U.S. June 18, 2015), allow the government to place an imprimatur on
private advertising and thereby render the advertisement government speech, stripping
it of all First Amendment protection
Religion: Does applying a Blaine Amendment to exclude religious organizations from a
state textbook lending program violate the First and Fourteenth Amendments
5/19/16
Legal System: (1) For the purpose of establishing the deliberate indifference element of
a failure-to-train civil rights claim under the “single incident” exception, has the
definition of “deliberate indifference” been so irreparably muddied by deviation among
the federal circuits as to require clarification by the U.S. Supreme Court; (2) If in lieu of
hiring on-site medical staff, a county instead instituted a policy requiring lay jailers to
summon outside medical assistance for medical emergencies, but the county failed to
train those jailers on how to recognize a medical emergency and forbade them from
reviewing detainees' medical records, then should the county have predicted that jailers
would unconstitutionally deny medical care to detainees
Employment & Labor: (1) Can a state university deny a teaching candidate's
advancement to student teaching based upon the candidate's expressions of personal
opinions in class and assignments which university officials perceive are not in
alignment with standards of conduct for professional teachers without violating the First
Amendment; (2) Can a state university deny a teaching candidate's advancement
without any evidence demonstrating that he cannot or will not conform his teaching to
standards for professional teachers without violating the First Amendment
5/13/16
Mech v. Sch. Bd. of Palm
Beach Cnty., 15-1412, 806
F.3d 1070 (11th Cir.)
N.M. Ass'n of Nonpublic
Sch. v. Moses, 15-1409,
367 P.3d 838 (N.M.)
Anderson v. Marshall
County, 15-1400, 2016 BL
7849 (5th Cir.)
Oyama v. Univ. of Hawaii,
15-1349, 813 F.3d 850 (9th
Cir.)
5/18/16
5/16/16
5/13/16
ADDITIONAL
INFORMATION
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
Sterling Jewelers Inc. v.
EEOC, 15-1329, 801 F.3d
96 (2d Cir.)
Employment & Labor: Did the U.S. Court of Appeals for the Second Circuit err in
concluding that the Supreme Court's standard for judicial review of the Equal
Employment Opportunity Commission's statutory duty to conciliate, described in Mach
Mining LLC v. EEOC, 83 U.S.L.W. 4283, 2015 BL 123508 (U.S. April 29, 2015), applies
equally to the EEOC's statutory duty to investigate, despite the significant and material
differences between the duty to attempt conciliation and the duty to conduct an
investigation
Employment & Labor: Did the lower courts err and deny the petitioner due process
when they upheld a jury verdict against him in his suit for race-based salary
discrimination, hostile work environment and unlawful retaliation against his employer
Employment & Labor: (1) Can a district court's decision to quash or enforce an EEOC
subpoena be reviewed de novo, which only the U.S. Court of Appeals for the Ninth
Circuit does, or should it be reviewed deferentially, which eight other circuits do,
consistent with the U.S. Supreme Court's precedents concerning the choice of standards
of review; (2) Does the Ninth Circuit's decision to enforce an EEOC subpoena,
depending upon a notion of relevance so broad that it effectively abrogates statutory
limits on the EEOC's investigative powers, conflict with EEOC v. Shell Oil, 466 U.S. 54
(1984), and the holdings of at least three other circuits
Employment & Labor: Does the standard of proof established in Reeves v. Sanderson
Plumbing Prods., Inc.—that a plaintiff may ordinarily prove the existence of an unlawful
motive by establishing a prima facie case and demonstrating the falsity of the
employer's proffered explanation for the disputed employment —apply in a Title VII
action
4/29/16
Ayissi-Etoh v. Fannie
Mae, 15-1303, 621 Fed.
Appx. 677 (D.C. Cir.)
McLane Co. v. EEOC, 151248, 804 F.3d 1051 (9th
Cir.)
Flowers v. Troup Cnty.,
Ga., Sch. Dist., 15-1144,
803 F.3d 1327 (11th Cir.)
4/19/16
4/4/16
3/10/16
ADDITIONAL
INFORMATION
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
Meisner v. ZymoGenetics,
Inc., 15-895, 612 F. App'x
182 (4th Cir.)
Employment & Labor: (1) Does this court's recent decision in EEOC v. Abercrombie and
Fitch that religious observance and practice, as well as beliefs pursuant to 42 U.S.C.
§2000e(j) can be brought as disparate treatment claims apply to religious conversations
between employees at off-site work locations when the district court ruled that a failure
to accommodate claim cannot be brought as a disparate treatment claim; (2) Does not
applying South Carolina's tolling statute, S.C. Code Ann. §15-3-30, or equitable tolling
to per se slander claims by an out of state defendant involved in an employment
investigation violate the portion of Amendment XIV, Sec. 1 of the U.S. Constitution that
provides “nor deny to any person within its jurisdiction the equal protection of the laws”
when the district court, contrary to a previous South Carolina district court ruling,
predicted the South Carolina Supreme Court would not apply the tolling statute; (3)
Given the totality of the circumstances, was the grant of summary judgment on the
gender discrimination, hostile work environment and retaliation claims proper according
to the court's ruling in Anderson v. Liberty Lobby; (4) Did the U.S. Court of Appeals for
the Fourth Circuit accurately apply South Carolina law to the violation of the Payment of
Wages Act when the South Carolina Court of Appeals ruled that a targeted payment
date coupled with the requirement of being employed at the time of payment violates
the Payment of Wages Act
1/11/16
Batton v.
Communications Workers
Local 2202, 15-879, 618
Fed. Appx. 175 (4th Cir.)
Employment & Labor: (1) Did the U.S. Court of Appeals for the Fourth Circuit incorrectly
affirm the district court's holding that the petitioner failed to show “excusable neglect”
under Federal Rule of Civil Procedure 6(b)(1)(B) with respect to the filing of her fourday-late supplemental summary judgment response, where the district court's holding
rested upon pre-Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'Ship., 507 U.S. 380
(1993), legal authority, and, contrary to the flexible equitable standard adopted
in Pioneer and in conflict with published decisions from at least two courts of appeals,
applied a strict application of excusable neglect ; (2) Did the Fourth Circuit incorrectly
affirm the district court's holding that respondents were entitled to summary judgment
in petitioner's hybrid action under Section 301(a) of the Labor Management Relations
Act, 29 U.S.C. §185, where the only items submitted by respondents in support of
summary judgment were three unsworn documents
Special Education & Disabilities: What is the level of educational benefit that school
districts must confer on children with disabilities to provide them with the free
appropriate public education guaranteed by the Individuals with Disabilities Education
Act, 20 U.S.C. §1444 et seq.
1/6/16
Endrew F. v. Douglas
Cnty. Sch. Dist. RE-1, 15827, 798 F.3d 1329 (10th
Cir.)
12/22/15
ADDITIONAL
INFORMATION
Solicitor General invited to file
brief
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
Home Care Ass'n of Am.
v. Weil, 15-683, 799 F.3d
1084 (D.C. Cir.)
Employment & Labor: (1) Did the Supreme Court intend in Long Island Care at Home,
Ltd. v. Coke, 551 U.S. 158 (2007) to allow the Department of Labor to deprive all thirdparty home care employers (who employ more than 90 percent of all home care
employees) of their statutory right to avail themselves of exemptions to overtime under
the Fair Labor Standards Act; (2) Did the D.C. Circuit err in finding that Congress
intended to exclude employees of third party employers from the home care
exemptions, thereby conflicting with Coke’s contrary reading of congressional intent and
creating a conflict in the circuits; (3) Is the Department of Labor's new rule
unreasonable due to the agency's failure to meaningfully address the relevant factors of
unaffordability and lack of adequate state funding of the increased costs of home health
care under the new rule
Legal System: (1) Did King County create a public forum by accepting for display on its
property a wide array of controversial political and public -issue ads, including ads that
address the same subject matter as petitioners' anti-terrorism ad, and thus violate the
First Amendment by rejecting petitioners' ad based on its message; (2) Regardless of
the nature of the forum, does King County's rejection of petitioners' advertisement
based on a claim that this public -issue ad was false or misleading violate the First
Amendment; (3) Must petitioners demonstrate that there are no alternative ways to
express their public -issue message in order for the court to find irreparable harm based
on King County's rejection of their ad
Privatization & School Choice: Does requiring a state to categorically deny otherwise
neutral and generally available public aid on the basis of religion violate the U.S.
Constitution
11/18/15
10/28/15
Legal Clips summary of Colorado
Supreme Court decision available
at
http://legalclips.nsba.org/2015/07
/06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/
Privatization & School Choice: Can Colorado's Blaine Amendment, which the unrebutted
record plainly demonstrates was born of religious bigotry, be used to force state and
local governments to discriminate against religious institutions without violating the
religion clauses of the First Amendment and the equal protection clause of the
Fourteenth Amendment
10/28/15
Legal Clips summary of Colorado
Supreme Court decision available
at
http://legalclips.nsba.org/2015/07
/06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/
American Freedom Def.
Initiative v. King Cnty.,
15-584, 796 F.3d 1165 (9th
Cir.)
Colo. State Bd. of Educ. v.
Taxpayers for Pub. Educ.,
15-558, 351 P.3d 461
(Colo.)
Douglas Cnty. Sch. Dist.
v. Taxpayers for Pub.
Educ., 15-557, 351 P.3d
461 (Colo.)
ADDITIONAL
INFORMATION
PENDING PETITIONS FOR CERTORARI
CASE/DOCKET
NO./LOWER COURT
CITATION
ISSUE
DATE
FILED
ADDITIONAL
INFORMATION
Doyle v. Taxpayers for
Pub. Educ., 15-556, 351
P.3d 461 (Colo.)
Privatization & School Choice: Does it violate the religious clauses or equal protection
clauses of the U.S. Constitution to invalidate a generally-available and religiouslyneutral student aid program simply because the program affords students the choice of
attending religious schools
10/27/15
Fry v. Napoleon Cnty.
Sch., 15-497, 788 F.3d 622
(6th Cir.)
Special Education & Disabilities: Does the Handicapped Children's Protection Act of
1986, 20 U.S.C. §1415(l), require exhaustion in a suit, brought under the Americans
with Disabilities Act and the Rehabilit ation Act, that seeks damages—a remedy that is
not available under the Individuals with Disabilities Education Act
Special Education & Disabilities: Did the U.S. Court of Appeals for the Fifth Circuit err in
deciding that the relationship between public and private actors does not invoke dual
obligations to accommodate in any context other than an express contractual
relationship between a public entity and it s private vendor
10/15/15
Legal Clips summary of Colorado
Supreme Court decision available
at
http://legalclips.nsba.org/2015/07
/06/colorado-supreme-courtstrikes-down-districts-privateschool-voucher-program-on-stateconstitutional-grounds/
Solicitor General invited to file
brief
Ivy v. Williams, 15-486,
781 F.3d 250 (5th Cir.)
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10/14/15