UPDATE: Court grants no new cases

By Lyle Denniston
on Nov 9, 2009 at 10:02 am

NOTE TO READERS: The following is a 6:20 p.m. update of a post that appeared earlier today on the Supreme Court’s orders of the day.  The orders are linked in this post.

——————

The Supreme Court on Monday added no new cases to its decision docket.  It asked for the federal government’s views on the so-called “cat’s paw theory” in employment law — testing the liability of an employer if an employee discriminates but is not the one who makes the actual decision to fire or deny a promotion.  The Court had agreed previously to hear the issue, but that case ended without a ruling.  The new case is Staub v. Proctor Hospital (09-400).  There is no deadline for the Solicitor General to respond.

The “cat’s paw theory” is traced back to a 17th Century French poet and his story about a monkey who persuaded a cat to pull chestnuts out of a fire, only to be burned in the process.  For years, federal courts have been divided on how to apply that theory in employment discrimination cases.  In January 2007, the Court had agreed to sort out the issue in the case of BCI Coca-Cola Bottling v. Equal Employment Opportunity Commission (06-341).  But that case ended in April of that year when the two sides agreed to have it dismissed.

Since that time, the Court has refused to hear three other cases seekng to raise the issue, including one in which the Seventh Circuit Court had laid down its own strict limitation on the “cat’s paw theory.”  That Circuit Court has held that the motives of a company official or employee other than the formal decision-maker cannot subject an employer to liability, unless the biased individual had so dominated the decision-maker as to be the functional decision-maker personally.

All 12 of the regional Circuit Courts have confronted the issue repeatedly.  The case on which the Justices on Monday sought the federal government’s views involves Vincent E. Staub of Peoria, Ill., who lost his job as a medical technician at Proctor Hospital after prolonged disputes with supervisors over the time he spent to fulfill his duties as a member of the Army Reserve.  He contended that his immediate supervisors resented his military service, and ultimately arranged to get him fired by a higher hospital executive.

Although Staub complained of discrimination under the federal law that assures job protection for members of the military services, his petition said that the provisions of that law are similar to protections available under the Family and Medical Leave Act, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and some federal civil rights laws.  Lowers courts have assumed that the standard they use on the “cat’s paw theory” is the same for all of these statutes, as well as for job bias cases involving public employers under the Constitution.

In the Court’s summary decision Monday — that is, a decision on the merits, without full briefing and oral argument — the Court overturned a decision of the Sixth Circuit Court on the standards to be used in determining whether a defense lawyer was ineffective in the sentencing phase of a death penalty case.  In the ten-page, unsigned decision in Bobby v. Van Hook (09-144), the Court sternly cautioned lower courts not to apply rigidly the American Bar Association’s guidelines on when a lawyer performs inadequate professional services. 

The opinion was sharply critical of the Sixth Circuit for treating the ABA’s 2003 guidelines “as inexorable commands with which all capital defense counsel must fully comply.”  Repeating what it had said earlier on the issue, the Court said the ABA’s views were “only guides.”

In a separate opinion, Justice Samuel A. Alito, Jr., was even more harsh in his reaction to the ABA’s views. While he said the ABA “is a venerable organization with a history of service to the bar,” it was “after all, a private group with limited membership.”  Its views, he added, did not necessarily reflect the views of the American bar “as a whole.”  So, he concluded, the ABA guidelines on lawyers’ performance should not have “special relevance” on the performance question.

His views were something of a reminder of conservative critiques of the often-liberal positions the ABA takes on legal questions.  The former Bush Administration, in a similar reaction to the ABA on the separate question of federal judicial appointments, denied the ABA any special advisory role in evaluating potential nominess for such judgeships although the Association had long exercised that role. The Obama Administration has resumed a reliance on the ABA’s evaluations of potential federal judges.