Analysis

The Supreme Court settled two issues of workers’ benefits law on Monday, giving mostly clear directions to employee plan managers on how they are to deal with the consequences of divorce of a worker.  In general, the Court said, an administrator must simply ”look at the plan documents and records conforming to them” to find out who is to be paid the benefits; there is no need, it added, to go to court for the answer.

Along the way toward that ruling, the Court made these two rulings, both resolving conflicts that had built up in lower courts over spousal rights once divorce has occurred: first, the Court made clear that a former spouse can give up the right to benefits by agreeing to do so as part of a divorce decree; but, second, the ultimate question of whether the ex-spouse was entitled to the benefits is to be decided by the specific terms of the plan — in short, what the documents say.

The Court, however, did leave open for the future a related question: if an ex-spouse is handed the benefits by a plan manager, might they still have to be surrendered, once the payout was completed?  A footnote indicated that the Court on Monday was only resolving how federal benefit law applied to the initial distribution of plan payments, not their subsequent fate.

The case of Kennedy v. Plan Administrator for DuPont Savings and Investment Plan (07-636) was another in the Court’s ongoing attempts to sort out the sometimes vexing language of the Employee Retirement Income Security Act.  Although that law has been in effect for 34 years, not a Term of the Court seems to go by without a new test of what it actually means.

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The Supreme Court ruled unanimously on Monday that federal law protects a worker from being fired after telling investigators, in an internal probe, about sexual harassment on the job.  The Court said that the anti-retaliation provision of Title VII, a key workplace anti-bias law, extends to a worker who speaks out about discrimination not on her own, but in answering questions during an employer-ordered investigation. The ruling, written by Justice David H. Souter, came in Crawford v. Metro Government of Nashville (06-1595).  Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, wrote separately, supporting the judgment and part of the Court’s reasoning.

This was one of five rulings on the merits the Court issued before beginning a four-week recess.  Here, in brief, are the results in the other four:

** Ruling unanimously, the Court decided that police who have made a routine traffic stop of a vehicle may do a pat-down search — a “frisk” — of a passenger, even if they have no suspicion of any other crime, so long as the police believe the individual may be armed and dangerous and the search does not unduly prolong the traffic stop.  Justice Ruth Bader Ginsburg wrote for the Court in Arizona v. Johnson (07-1122).

** In another unanimous decision, the Court extended absolute legal immunity for line-prosecutors to damage lawsuits for their prosecution actions, so that it now also shields the policymakers in the top ranks of those who supervise and train those who actually pursue the criminal cases.  Justice Stephen G. Breyer wrote the opinion in Van de Kamp v. Goldstein (07-854).

** In another 9-0 ruling, written by Justice Souter, the Court decided that an employee benefit plan’s provisions control when there is a dispute over a divorced spouse’s pension payments under the Employee Retirement Income Security Act.  The opinion said that a plan administrator properly refused to enforce a waiver that a former wife had made in a divorce case of her pension rights, because that conflicted with what the former husband had provided in plan documents.  (Kennedy Estate v. DuPont Plan Administrator, 07-636).

** With Justice Souter again writing for a unanimous Court, the Justices upheld the Commerce Department’s authority to apply U.S. “anti-dumping” law when raw materials are sent abroad for re-processing into a manufactured product and then are returned to the U.S. in a finished product at a low price.  The ruling came in the consolidated cases of U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078), involving imports into the U.S. of a type of uranium used in the production of nuclear power.

The Court has released the opinion in Van de Kamp v. Goldstein (07-854), on whether supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants. The ruling below, which held for the criminal defendant, is reversed and remanded. Justice Breyer wrote the opinion for a unanimous Court. The opinion is available here.

The Court has released the opinion in Arizona v. Johnson (07-1122), on whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense. The ruling below, which held for the defendant, is reversed and remanded. Justice Ginsburg wrote the opinion for a unanimous Court. The opinion is available here.

The Court has released the opinion in Crawford v. Metropolitan Government of Nashville (06-1595), involving the extent that Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation. The ruling below, which held for the government of Nashville, is reversed and remanded. Justice Souter wrote the opinion for a unanimous Court, with Justice Alito concurring only in the judgment joined by Justice Thomas. The opinion is available here.

The Court has released the opinion in Kennedy v. Plan Administrators for Dupont Savings (07-636), on whether ERISA’s Qualified Domestic Relations Order provision is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA. The ruling below, which held for the pension plan, is affirmed. Justice Souter wrote the opinion for a unanimous Court. The opinion is available here.

The Court has released the opinion in US v. Eurodif (07-1059), on whether contracts for uranium enrichment services are subject to federal anti-dumping laws. The ruling below, which held for Eurodif, is reversed and remanded.  Justice Souter wrote the opinion for a unanimous Court. The opinion is available here.

The Supreme Court on Monday ordered the D.C. Circuit Court to reconsider a ruling rejecting claims of torture and religious bias against detainees at Guantanamo Bay, Cuba. The Circuit Court is to take into account the Justices’ June 12 ruling on detainees’ rights in Boumediene v. Bush (06-1195). The Circuit Court had issued its ruling in Rasul, et al., v. Myers, et al., on Jan. 11 — five months before the Boumediene ruling came down.  The Supreme Court, acting Monday in case 08-235,  vacated the lower court’s ruling and told it to look again at the claims of four Britons who formerly were held at the U.S. military prison at Guantanamo.

The Justices’ action has at least two immediate effects: it will allow the new administration of President-elect Barack Obama to take a position on the years-long controversy over torture, and it raises the prospect that detainees might gain some rights other than the basic right — recognized in Boumediene — to go to court to challenge their long-term captivity.  The Britons claimed that they have a constitutional right not to be tortured, relying on the Eighth Amendment ban on cruel and unusual punishment and on the “Due Process Clause,” and they contended that their rights to practice their religion under the Religious Freedom Restoration Act were violated at Guantanamo.

In a decision on the merits issued Monday (see here), the only one of the day, the Court cleared the way for smokers to file lawsuits to challenge deceptive marketing of cigarettes as “light” and “low in tar and nicotine.”  The Court ruled that such lawsuits are not barred by federal law or the actions of the Federal Trade Commission. The 5-4 ruling, with Justice John Paul Stevens writing for the majority, was announced in his absence by Justice Anthony M. Kennedy, who was also in the majority. The case is Altria Group Inc., et al., v. Good, et al. (07-562).

In an order issued without explanation, the Court — for the fifth time in recent weeks — refused to hear a challenge to Barack Obama’s election to the presidency based on theories that he is not a “natural-born citizen.”  The new order came without any indication of dissent in Wrotnowski v. Bysiewicz (application 08A469), a Connecticut case.

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The court battle over a $402,000 pension payment, and over the larger issue of a divorced spouse’s right to pension benefits, resumed in the Supreme Court on Monday afternoon with the filing of three new briefs called for by the Court on Oct. 28.  The briefs discuss a statutory issue in Kennedy v. DuPont Savings Plan Administrator (07-636) that the Court had originally not agreed to hear — that is, the role of plan documents in interpreting rights to benefits.

In the supplemental brief of the daughter of a former DuPont Co. employee, the late William Patrick Kennedy, Kari Ellen Kennedy told the Court that it would be contradicting “the collective wisdom of 45 legislatures” if it now ruled that Mr. Kennedy’s divorced wife, Liv, is now entitled to a pension that she explicitly surrendered in a divorce decree.  “Divorced spouses do not knowingly enrich ex-spouses to the detriment of children,” the document contended. To fail to enforce the divorce decree, just because Mr. Kennedy did not change his designation of a beneficiary in plan documents, would “eviscerate a uniform concept of voluntary waiver,” multiply litigation, and “deny courts their ERISA-mandated role of creating a federal common law of benefits.”

In the supplement brief for DuPont and its plan administrator, they argued that Liv Kennedy had a clear entitlement to the pension benefits because her late husband had given her that status and never changed it between their divorce and his death seven years later.  “If the Plan had paid William’s account balance to his estate pursuant to the purported waiver in the divorce decree, rather than to Liv as his designated beneficiary, it would have violated the terms of the Plan,” the brief said. “Moreover, because the statute requires that benefits be paid to the designated beneficiary, there is no gap for courts to fill by creating common law directing payments to anyone else.”

The U.S. Solicitor General, supporting Liv Kennedy’s rights to the pension funds, argued in a supplemental brief that “a rule that required plan administrators to recognized a waiver contained in a state-court divorce decree, even when the participant has not taken the steps necessary to effectuate the waiver, would allow the state-court decree to trump the beneficiary designated according to the plan.  It therefore would conflict with the plan administrator’s duties under ERISA.”

The Court heard argument in the case on Oct. 7.  Its interest in the plan documens’ role arose during that argument, leading to the post-argument request for added briefs.  The Justices will now resume their private deliberations on the case, with the new briefs in hand.

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

• Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.
• United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”
• Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

On Tuesday, the Court will be closed in observance of Veterans’ Day.

On Wednesday, the Court will hear argument in:

• Pleasant Grove City, UT v. Summum (07-665), on whether donated monuments displayed in public parks qualify as private speech, thus requiring municipalities to display monuments from all other donors.
• Bell v. Kelly (07-1223), on whether the deferential standard in the federal habeas statute should be applied to claims a state court did not consider.

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Monday. To view our list of petitions to watch at Friday’s conference, click here.

On Monday, both sides in Kennedy v. DuPont Savings Plan Administrator (07-636) are to file supplemental briefs on the role of plan documents in interpreting the scope of ERISA benefits. A post discussing the Court’s call for added briefs can be read here.  The case was argued on Oct. 7.

No petitioners’ merits briefs are due this week.  The respondent’s brief is due Wednesday in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615).

The Supreme Court on Tuesday ordered lawyers to file new briefs by Nov. 10 on a new issue in a pending case testing a divorced spouse’s right to the other spouse’s pension benefits.  The question was posed in Kennedy v. DuPont Savings Plan Administrator (07-636) — a case heard by the Justices on Oct. 7.  The new question tests the application to the case of a part of federal benefit law that requires benefit plan administrators to operate the plan as dictated by plan documents — an issue that the Court appeared previously to have declined to hear.  (A legal blog’s post discussing some of the Justices’ concerns, at oral argument, about not having granted review earlier of this issue can be read here.)

The Court had agreed on Feb. 19 to hear a single issue in the case — whether the Employment Retirement Income Security Act provided only one way for a waiver of the divorcing spouse’s right to the other’s pension — that is, a waiver would be found only if it had been made in a specific form of domestic relations order.   That in turn posed an underlying question of whether a state divorce decree, in which a spouse had waived a right to the benefits, was a valid form of waiver of those benefits.  The Fifth Circuit Court had ruled in favor of the spouse, Liv Kennedy of Houston, finding that the absence of a qualified domestic relations order meant that she was still entitled to the benefits as the sole beneficiary of the estate of her former husband, William Patrick Kennedy, a former DuPont Co. employee who died in 2001.

Kari Kennedy, administrator of her father’s estate, wrote to DuPont and demanded that the remaining balance in his pension plan be paid to the estate, claiming that Liv Kennedy’s beneficiary status was no longer valid under Texas family law.  DuPont refused, and Liv Kennedy ultimately collected about $402,000.  The estate then sued the administrator of the DuPont plan, claiming the benefits had been wrongly distributed.  A District Court ruled in favor of the estate, but the Fifth Circuit reversed.  Kari Kennedy and the estate then appealed to the Supreme Court, arguing that the Circuit Court was wrong in finding that a domestic relations order under ERISA was the only valid way for a divorcing spouse to waive the other’s pension payments.  A split in the lower courts on that question probably led the Justices to grant review.

The Court granted review only of that specific issue on the proper way to waive benefit entitlement.  The appeal had raised three other questions, one of which tested whether the plan documents of an ERISA pension plan governed distributions.  Even so, both sides discussed the plan documents section of ERISA in their briefs, and the U.S. Solicitor General, joining in the case as an amicus taking a seemingly neutral stance, said that “consideration of the plan documents is critical in evaluating whether the court of appeals reached the correct result in this case.”  The Solicitor General argued further: “ERISA requires a plan administrator to distribute benefits to the beneficiary designated by the participant under the terms of the plan.  A waiver that is not given effect consistent with the provisions of the plan documents cannot trump the terms of the plan.  Thus, the appropriate mechanism for eliminating the beneficiary interest of an ex-spouse is for the participant to change the beneficiary designation in accordance with plan terms.  That process is generally not difficult.  But in all events, the entry of a divorce decree purporting to waive the non-participant spouse’s interest is neither necessary nor sufficient to accomplish that end.”

On Tuesday, the Court posed this new question: “Whether 29 U.S.C. 1104(a)(1)(D), mandating administration of a plan in accordance with plan documents, required that the distribution in question be made to Liv Kennedy, even on the assumption that a waiver of her interest was not otherwise subject to statutory bar.”

The ERISA section at issue reads: ”[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and…in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.”

Briefs by both sides are due by 2 p.m. on Nov. 10; amicus briefs are due at the same time.

In taking the case to the Supreme Court, the Kennedy estate had cited the very provision that the Court’s order on Tuesday listed, and argued that the Circuit Court was wrong in failing to consider the overall effect of Section 1104 of ERISA.  The “prime directive” of ERISA, the petition contended, is “to protect the interests of participants and beneficiaries.”  Enhancement of the convenience of plan administrators, the petition said, has always been only a secondary objective of the law.  The appeal argued that courts should follow a common law approach, to ensure that plan funds are distributed for the benefit of family members who are actually entitled to them, and have not volutarily surrendered them.

The transcript of today’s argument in Herring v. United States (07-513) is now available here.

The transcript of today’s argument in Arizona v. Gant (07-542) is now available here.

The transcript of today’s argument in Kennedy v. Plan Adm. for Dupont Savings (07-636) is now available here.

At 10 a.m., the Court will hear argument in Herring v. United States (07-513), on whether courts must suppress evidence seized during an arrest made as a result of faulty information provided by another law enforcement agency. Pamela Karlan of Palo Alto, Calif., will argue for the petitioner, and Deputy Solicitor General Michael Dreeben will argue for the respondent.

At 11 a.m., the Court will hear argument in Arizona v. Gant (07-542), on whether police must show a threat to their safety or the preservation of evidence to conduct a warrantless search of a car whose occupant was recently arrested. Joseph Maziarz of the Arizona Attorney General’s office and Anthony Yang of the Solicitor General’s office will argue for the petitioner, and Thomas Jacobs of Tucson, Ariz., will argue for the respondent.

At 1 p.m., the Court will hear argument in Kennedy v. Plan Adm. for Dupont Savings (07-636), on whether a specific ERISA provision is the only way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under the Act. David Furlow of Houston will argue for the petitioner, Mark Levy of Washington, D.C., will argue for the respondent, and Leondra Krueger of the Solicitor General’s office will argue in support of neither party.

We will provide links to the transcripts of the arguments as soon as they are available.

The Supreme Court will officially begin the October 2008 term this week.

On Monday, the Court will hear argument in:

• Altria Group v. Good (07-562), on whether federal law preempts state tort claims against tobacco manufacturers over the marketing of “light” cigarettes;
• Locke v. Karass (07-610), on whether public sector unions may use non-member agency fees for litigation expenses outside the bargaining unit; and
• Vaden v. Discover Bank (07-773), on whether federal courts have jurisdiction over motions to compel state-law arbitration claims that do not themselves raise questions of federal law.

In advance of the arguments, the Clerk will release the remaining orders from the Justices’ private conference of Sept. 29. We will provide coverage of all developments via our LiveBlog.

On Tuesday, the Court will hear argument in:

• Herring v. United States (07-513), on whether courts must suppress evidence seized during an arrest made as a result of faulty information provided by another law enforcement agency;
• Arizona v. Gant (07-542), on whether police must show a threat to their safety or the preservation of evidence to conduct a warrantless search of a car whose occupant was recently arrested; and
• Kennedy v. Plan Adm. for Dupont Savings (07-636), on whether a specific ERISA provision is the only way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under the Act.

On Wednesday, the Court will hear argument in:

• Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239), on whether the Navy was improperly enjoined from conducting training exercises employing a type of sonar reportedly harmful to whales;
• Summers, et al. v. Earth Island Institute, et al. (07-463), on whether the Forest Service was improperly enjoined from implementing various regulations, and whether the underlying challenge was ripe for judicial review; and
• Crawford v. Metropolitan Government of Nashville (06-1595), on whether Title VII bars retaliation against workers who cooperate as witnesses during an employer’s internal investigation of sexual harassment.
  

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Tuesday, the day after Columbus Day. To view our list of petitions to watch at the conference, click here.

No merits briefs for petitioners or respondents are due this week. Links above direct to case pages on SCOTUSwiki.

The Supreme Court issued its third and final round of summer recess orders on Friday, but the Justices announced no action on the plea to reconsider its ruling in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of child rape.  The state of Louisiana on July 11 asked the Court to reopen the case to consider the effect, if any, of the fact that the Court had overlooked a federal military law on that death sentencing issue.  The Justice Department has asked the Court to allow it to join Louisiana in its plea for rehearing. The Court did not act on that motion, either, on Friday. 

While action on the rehearing issue could come at any time, the next scheduled point for releasing orders is the week of Sept. 29, following the Court’s first private Conference of the new Term.  It is unclear whether the Court has yet actually focused on the rehearing request, since the Justices have been in summer recess.  They have acted on a list of other rehearing requests, but most of those appeared to be without significant legal impact; the Court rarely grants rehearings of decided cases. Kennedy v. Louisiana was decided by a 5-4 vote; to grant rehearing, five Justices — including at least one from that majority — would have to approve a rehearing petition.

Monday’s Orders List can be found here.

Among the items on the list, the Court agreed to allow the office of the U.S. Solicitor General to take part in oral argument in five cases to be heard in the new Term: Arizona v. Gant (07-542), Hedgpeth v. Pulido (07-544), 14 Penn Plaza v. Pyett (07-581), Kennedy v. DuPont Savings Plan Administrator (07-636), and Van de Kamp v. Goldstein (07-854).

Here in summary are the issues involved in each of those cases: Arizona v. Gant, police authority to search a vehicle following arrest of occupants, set to be heard Oct. 7; Hedgpeth v. Pulido [formerly titled Chrones v. Pulido], scope of structural error in general jury verdicts, argument on Oct. 15; 14 Penn Plaza v. Pyett, enforcement of arbitration clause in labor contract, not yet set for argument; Kennedy v. DuPont Savings Plan Administrator, surrender of divorced spouse’s claim to pension benefits, argument on Oct. 7, and Van de Camp v. Goldstein, legal immunity for supervisors of prosecutors at the trial level, argument on Nov. 5.

The Court, however, denied the Solicitor General’s office request to take part in oral argument in Locke v. Karass (07-610), a case scheduled to be heard on Oct. 6; the issue is whether workers who are not members of the union that represents them are exempt from paying dues to finance the union’s lawsuits.  The Court gave no explanation for turning down the Acting Solicitor General’s motion to participate and to hold divided argument in that case, but the group representing the non-union workers had opposed that motion. The National Right to Work Legal Defense Foundation argued that most of a friend-of-Court brief filed by the SG’s office took sides against the non-union position even though that brief was said not to be supporting either side. (The blog discussed that opposition in this post.)

The Court is in recess for the summer. The opening conference for next term is scheduled for September 29, and oral arguments will resume October 6.

On Tuesday, the first federal court hearing on habeas cases in the wake of the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195) will be held by U.S. District Senior Judge Thomas F. Hogan. On Thursday, a second hearing on a block of the cases will be held by U.S. District Judge Richard J. Leon. The blog will provide coverage of both, if the sessions are open to the public.

The Heritage Foundation will host a Supreme Court review panel on Tuesday, and Legal Times will sponsor a panel on Wednesday at Georgetown University Law Center. For more information on the events, click here.

No petitioners’ merits briefs are due this week. The respondent’s brief is due Monday in Penn Plaza LLC v. Pyett (07-581) and Tuesday in Kennedy v. Plan Adm. for Dupont Savings (07-636). (Links direct to case pages on SCOTUSwiki.)

The Supreme Court on Monday released the schedule of cases to be argued in the opening weeks of the new Term – the session that begins Oct. 6.  On four of the five days in this session, the Court will be hearing three cases a day, instead of the more recent custom of two a day.  The morning sessions begin at 10 a.m., the afternoon sessions at 1 p.m.   A PDF of the calendar is here.

The schedule is after the jump, with brief summaries of the issues at stake.

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No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week.

On Thursday, the Justices are scheduled to hold a private conference, orders from which are expected to be released the following Monday.

Petitioners’ merits brief are due Monday in Penn Plaza LLC v. Pyett (07-581), Locke v. Karass (07-610), and Kennedy v. Plan Adm. for Dupont Savings (07-636), and Friday in Herring v. United States (07-513). The respondent’s merits brief is due Friday in Crawford v. Metropolitan Government of Nashville (06-1595).

(Above links direct to case pages on SCOTUSwiki.)

The Order List is available here.

UPDATE: The cert. filings in all four granted cases can be found after the jump.

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