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Justices Add Class Actions, Redistricting to Docket; Decline Gun Case

8 June 2015
The National Law Journal

The U.S. Supreme Court on Monday agreed to hear next fall significant challenges to how workers prove class action damages and how three-judge courts are formed to consider redistricting lawsuits.

The justices said they would decide next term whether the government's seizure or restraint of criminal defendants' property before trial—including untainted assets they need to hire an attorney—violates the Sixth Amendment.

And the high court, over two dissents and in what has become a familiar pattern, declined to hear a Second Amendment gun challenge, this time to a local ordinance regulating firearms in the home.

In Tyson Foods v. Bouaphakeo, workers at the company's meat processing plant in Storm Lake, Iowa, sued Tyson for undercompensating them for time spent walking to their worksites and donning and doffing protective equipment necessary to perform dangerous jobs. A class was certified on behalf of 3,000 workers.

During the trial, the workers used average donning, doffing and walking times calculated from 744 employee observations and applied this evidence to class members individually using timesheets and pay data from Tyson. The company itself kept no records of actual donning/doffing time.

The workers won a $5.8 million judgment that the U.S. Court of Appeals for the Eighth Circuit affirmed.

Tyson, backed by national business organizations, urged the high court to answer two questions: whether, in class and collective actions for wage-hour violations, damages may be calculated by using a sampling of evidence from a segment of the class; and whether a class may be certified when it contains members who may not have been injured.

Similar questions were raised in a pair of petitions filed by Wal-Mart Stores Inc. challenging a $158 million judgment in a class action brought by its Pennsylvania workers. Those petitions likely will be held pending a decision in the Tyson case.

The Tyson petition was filed by Carter Phillips of Sidley Austin and was opposed by Scott Michelman of Public Citizen Litigation Group.

In Shapiro v. Mack, a bipartisan group of Maryland residents who want to make a First Amendment challenge to that state’s congressional redistricting plan are asking the justices to clarify the standard for convening three-judge courts under the century-old federal Three-Judge Court Act.

The act requires three-judge district courts to hear reapportionment challenges and cases brought under the Voting Rights Act, the Bipartisan Campaign Reform Act, the Prison Litigation Reform Act, the Child Internet Protection Act and other laws.

The judge to whom the Maryland suit was initially assigned refused to recommend a three-judge court and dismissed the lawsuit because, in his view, the First Amendment claim "is not one for which relief can be granted"—the standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Fourth Circuit agreed.

The Maryland challengers, represented by Mayer Brown's Michael Kimberly, contend Rule 12(b)(6) is the wrong standard.

"We’re thrilled that the court has agreed to hear the case," Kimberly said. "In our view, Maryland's redistricting map—widely regarded as one of the most gerrymandered in the nation—violates the First Amendment rights of Marylanders across the state by punishing them based on their voting histories and political-party affiliations. All we're asking for is an opportunity to present that claim to a district court of three judges, which is what Congress intended for nonfrivolous cases like this."

In Jackson v. City and County of San Francisco, the high court once again turned away a Second Amendment petition seeking to flesh out the justices' landmark 2008 decision in District of Columbia v. Heller, which found an individual right to keep arms in the home for self-defense.

In Jackson, the National Rifle Association and others challenged a San Francisco law requiring that handguns kept in residences be stored in a locked container or disabled with a trigger lock.

The challengers, represented by Paul Clement of Bancroft, argued that the ordinance conflicted with the justices' Heller decision. The Ninth Circuit disagreed, reasoning that the ordinance was not a "severe burden" because a "modern gun safe may be opened quickly."

Justice Clarence Thomas (left), joined by Justice Antonin Scalia, said he would have granted review to the challengers because the Ninth Circuit's decision was "in serious tension withHeller." There was "no question," he wrote, that the ordinance burdened the core of the Second Amendment right and "that burden is significant."

"The court should have granted a writ of certiorari to review this questionable decision and to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights," wrote Thomas, adding that the denial of review was difficult to understand when the court had repeatedly agreed to review other decisions involving violations of other constitutional rights and where there were no circuit splits.

Reprinted with permission from the June 8, 2015 edition of Supreme Court Brief © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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