U.S. Supreme Court Case Update

By: Elizabeth M. Sorokac

Published in the April edition of  Communiqué, the publication of the Clark County Bar Association.

This article summarizes a handful of the cases heard by the United States Supreme Court in the last year. As is always the case, the Supreme Court has heard a wide variety of cases ranging from age discrimination matters to jurisdictional appeals.

Statutory notice of appeal time frames are jurisdictional and cannot be waived Bowles v. Russell, 551 U.S. ____ (2007).

Procedural Posture
The petitioner failed to file a timely notice of appeal from the federal district court’s denial of his petition for habeas corpus and moved to reopen the time period for filing an appeal under Federal Rule of Appellate Procedure 4(a)(6). FRAP 4 implemented 28 U.S.C. §2107 and, in particular, FRAP 4(a)(6) allows the district court to extend the time period for filing an appeal for 14 days from the day the district court grants the order to reopen. The reopening of the appeal period is predicated on the satisfaction of the following conditions set forth in FRAP 4(a)(6): (A) the motion is filed within 180 days of the judgment or order is entered or within 7 days after the moving party receives notice of entry of order, whichever is earlier; (B) the court finds the movant was entitled to notice of entry of the judgment or order and did not received notice from the district court or from any other party within 21 days of entry; and (C) the court finds no party would be prejudiced.

The district court granted petitioner’s motion under FRAP 4(a)(6), however, the district court’s order incorrectly gave petitioner 17 days to file an appeal. Petitioner filed his notice of appeal within the 17 day period set forth in the court’s order, but outside of the 14 day period set forth in FRAP 4(a)(6) and §2107(c). The issue on certiorari is whether the Court of Appeals lacked jurisdiction to hear the appeal filed outside of the period set forth in §2107(c), but within the time period set forth by the district court in its order.

Holding
In a 5-4 split decision, the majority held “that when an appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.” Bowles at 8. The holding is based on the fact that Congress decides whether the federal courts have jurisdiction to hear cases and it also has the power to decide when and under what conditions federal courts hear cases. Petitioner’s failure to file his notice of appeal within the time period set forth by the congressionally enacted statute divested the Court of Appeals of jurisdiction and the Court of Appeals correctly held that it did not have jurisdiction to hear the appeal.

An appellate court should not presume the lower court reached an incorrect legal conclusion, nor should it substitute its judgment for the lower court’s regarding evidence admissibility Sprint/United Management Co. v. Mendelsohn, 552 U.S.____ (2008).

Procedural Posture
In an Age Discrimination in Employment Act of 1967 (ADEA) case, Respondent sought to use the testimony of five former Sprint employees to support her claims. Not one of the former employees was part of respondent’s working group, nor had any of them worked under respondent’s supervisors while employed at Sprint. Sprint filed a motion in limine to exclude the testimony of the former employees and the district court, through a minute order, excluded evidence of “discrimination against employees not similarly situated to plaintiff” (here, respondent). Sprint at 3. The district court’s order provided no explanation as to the basis for its ruling.

The Court of Appeals treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving an ADEA claim and the District Court abused its discretion for relying on Aramburu v. Boeing Co., 112 F. 3d 1398 (10th Cir. 1997). The Court of Appeals based the District Court’s abuse of discretion on its misapplication of the rule in Aramburu to this case because Aramburu addressed discriminatory discipline and not a company-wide policy of discrimination as alleged here. The Court of Appeals then determined the evidence was relevant and not unduly prejudicial under the Rules of Federal Evidence and reversed and remanded the case to the district court for a new trial. The issue on certiorari is whether, in an ADEA claim, the Federal Rules of Evidence permit the testimony of employees “alleging discrimination by persons who played no role in the adverse employment decision challenged by plaintiff.” Sprint at 4.

Holding
In a unanimous decision, the Court vacated the decision of the Court of Appeals and remanded the case back to the district court to clarify its evidentiary findings under the applicable Rules of Federal Evidence. Where the basis for a district court’s ruling is ambiguous (the district court’s order failed to indicate the basis for its ruling to exclude the evidence), the Court of Appeals should remand the matter to the district court for clarification. The appellate court should not presume the lower court reached an improper legal conclusion as it did when it presumed the lower court wrongly applied Aramburu. Further, the Court of Appeals improperly weighed factors of relevance and prejudice related to the admissibility of evidence which are for the district court to determine in the first instance. Sprint at 7, citing United States v. Abel, 469 U.S. 45, 54 (1984).

An ADEA charge must meet the elements of 29 C.F.R. §1626.6 and must request EEOC action Federal Express Corp. v. Holowecki et al., 552 U.S. ____ (2008).

Procedural Posture
One should note the following case applies only to matters filed under the Age Discrimination in Employment Act of 1967 (ADEA) with the Equal Employment Opportunity Commission (EEOC). The statutory waiting periods and enforcement mechanisms for other statutes the EEOC enforces differs from ADEA claims.

The ADEA requires that “no civil action…be commenced…until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.” 29 U.S.C. §626(d). The statute does not define the term “charge,”. In December 2001, respondent filed an Intake Questionnaire with the EEOC and a detailed six page affidavit supporting her claims that FedEx’s programs were discriminatory against older couriers. In April 2002, respondent and others filed an ADEA suit in district court against petitioner claiming their programs were attempts to eliminate older couriers. Petitioner filed a motion to dismiss based on the contention that respondent failed to file a charge with the EEOC at least 60 days prior to filing suit as required by 29 U.S.C. §626(d). The District Court granted the motion and dismissed the case and the Second Circuit reversed. The issues on certiorari are what the definition of the term charge is and whether the respondent’s Intake Questionnaire and accompanying affidavit constitute a charge.

Holding
In a 7-2 decision, the majority affirmed the judgment of the Court of Appeals. The Court defined a charge to be a writing that names the respondent and generally alleges the discriminatory act (using the elements of 29 C.F.R. §1626.6) and the filing with the EEOC, when taken as a whole, “should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate their rights” (using the EEOC’s policies). Federal Express at 6. The Court left the responsibility to formulate clearer forms and processes to reduce future misunderstandings regarding whether a document is a charge, as defined, to the EEOC.

The question of whether the respondent’s filing meets the “request to act” test is a reasonable exercise of the EEOC’s authority to apply its own regulations in the routine administration of the statute it enforces. The respondent’s Intake Questionnaire contained all of the requirements of the more inclusive 29 C.F.R. §1626.8(a) (the name, address and telephone number of the person making the charge and the charged entity; a description of the discriminatory act; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings) and gave the EEOC consent to disclose her identity to her employer. The respondent’s affidavit accompanying the Intake Questionnaire asked the EEOC to “please force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High Velocity Culture Change.” Federal Express as 14. The Court agreed with the EEOC’s determination that these three things taken together satisfy the requirements of a charge.

The statute of limitations in the Court of Claims is an absolute bar to claims John R. Sand & Gravel Co. v. United States, 522 U.S. ____ (2008).

Procedural Posture
Petitioner filed an action in the Federal Court of Claims in May 2002 asserting that various Environmental Protection Agency activities on the land amounted to an unconstitutional taking of their leasehold rights. The statute of limitation states “every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim accrues.” 28 U.S.C. §2501. The government initially challenged the timeliness of the claim, but then waived the challenge by conceding that certain claims were timely. The government won on the merits of the case and petitioner appealed the judgment to the Court of Appeals for the Federal Circuit. The Court of Appeals considered the timeliness of the petitioner’s claim sua sponte and held the action was untimely. The issue on appeal is whether the Court of Appeals can ignore a party’s waiver of the statute of limitations affirmative defense and consider the timeliness of a claim sua sponte.

Holding
In a 6-3 decision (with Justice Ginsburg dissenting separately), the majority affirmed the judgment of the Court of Appeals. Statutes of limitation that facilitate the administration of claims or promote judicial efficiency are more absolute and require the court to decide “the timeliness question despite a party’s waiver or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period.” John R. Sand & Gravel at 3. The court of claims statute of limitation falls into this category and the Court upheld its long standing interpretation (dating from 1883) that the court of claims statute of limitation is an absolute limitation on claims that the court must consider.

Ms. Sorokac is an attorney with the law firm of Kummer Kaempfer Bonner Renshaw & Ferrario in the firm’s government affairs department. She has been practicing in Las Vegas for more than six years and specializes in zoning and land use matters before the local jurisdictions, including
Clark County, the City of Las Vegas, the City of Henderson, Nye County and the Town of Pahrump. Ms. Sorokac can be reached at (702) 792-7000 or by email at esorokac@kkbrf.com.

 Parallel Paths to Accomplishment
By: Tabitha Fiddyment and Stephanie Allen

Published in the May edition of  Communiqué, the publication of the Clark County Bar Association.

Congratulations to the William S. Boyd School of Law on ten successful years. The last ten years may seem to many of us like a lifetime, but it has really been no time at all for the law school. We remember our decision to attend Boyd and the enthusiasm surrounding the opening of the school. Now, ten years later, we find ourselves examining our professional lives and comparing how the professional accomplishments of ours have paralleled the law school’s success over that same ten year period. We are grateful for many things in our lives and in our careers. It is only appropriate to thank the law school, and the community that invested in the law school, for also investing in us.

A lifetime for us and ten short years for the law school
Ten years ago, when the law school first opened its doors, we were juniors in college at the University of Nevada, Reno. We had already decided that law school was the next step in our academic careers, but we had not yet identified our school of choice. Then, just barely twenty-one years of age, the next ten years of our lives would ultimately shape our future. We went from young college students struggling to make ends meet to young professionals struggling to pay off student loans. We would take the bar exam, we would get married, we would buy our own homes and we would become successful practicing lawyers. Those ten years seemed like a lifetime.

In those same ten years, Nevada’s only law school opened its doors at a temporary facility in the former Paradise Elementary School, built a notable law library, gained accreditation in its first five years, funded, built and relocated into a state-of-the-art facility on the main University of Nevada, Las Vegas campus, developed writing programs and dispute resolution clinics that are among the most reputable in the Country, received a U.S. News and World report ranking in the top one hundred law schools in the Nation and graduated over one thousand jurists.

See http://gradschools.usnews.rankingsandreviews.com/grad/law/search. 
Boyd’s accomplishments in ten short years are incredible. What seemed like a lifetime to us was record time for the Boyd School of Law.

A leap of faith for us and contagious enthusiasm for Boyd
Looking back, when we chose Boyd for our legal education, we took a leap of faith on a new and unaccredited law school. In fact, the American Bar Association’s suggested top consideration for choosing a law school is that it be ABA-Accredited.

See http://www.abanet.org/child/choosinglawschool.pdf.  Virtually every state requires graduation from an ABA-Accredited law school in order to sit for the bar exam.

See http://www.abanet.org/child/choosinglawschool.pdf.  We understood this risk, but we were committed to Nevada, and we believed that the law school would succeed.  The enthusiasm surrounding the law school was contagious. Everyone with whom we discussed the law school had no doubt it would be a success. The founding Dean, Richard Morgan, traveled the state advocating for the school and its ability to graduate talented, capable jurists invested in Nevada. Similarly, Nevada lawyers and judges were excited by the thought of working with and training local graduates. They believed in the depth of knowledge it would add to the legal community, and they welcomed a new perspective. Business owners and executives alike were anxious for another post graduate academic institution that would help attract quality individuals to Nevada. They too promised their support and encouraged us to attend Boyd. The community as a whole was committed to doing everything it took to establish a state-of-the-art school for Nevada. The financial backing was phenomenal. The professors were, and continue to be, top notch. The legal community was ready and willing to welcome the law school it never had. The last component was to attract quality students to the school. With all the factors in place, success for the law school was inevitable.

Examining how our professional lives have paralleled the law school’s success
We took that leap of faith and, on a hot August morning in 2000, we packed all of our combined belongings into a twenty-four foot long U-Haul and left our Northern Nevada families and friends in Reno and Carson City for Las Vegas. We were both encouraged by our parents, college professors, local prominent business people, judges and other lawyers in Nevada to attend the Boyd School of Law. It was impressed upon us that if we believed in our own abilities and in the potential of the Law School, our success was certain. We were leaving most of what we knew behind, but we had the support of lasting friendship that began at Carson High School, an investment in and connection to the State we grew up in, and the youthful hope of being part of something great.

The law school experience was humbling for both of us. Although we initially attended class in an elementary school setting, the lessons were profound and thought-provoking. We struggled with different aspects of the experience, but nonetheless, we grew as individuals, as future lawyers and as friends.

We are now senior associates at the statewide law firm of Kummer Kaempfer Bonner Renshaw & Ferrario and practice together with some of the most esteemed and well-regarded government affairs lawyers in Nevada. Building on the foundation provided by Boyd, we have developed reputations as specialists in the area of land use and zoning. We have had the opportunity to participate in some of the largest projects in the history of development in Las Vegas.

In addition to our land use and zoning practice, we both serve the community, through active involvement in the State Bar and community organizations and through pro bono service.  Today, the law school’s accomplishments have been recognized not just locally but nationally. The law school became fully accredited within five years and became a member of the Association of American Law Schools shortly thereafter. The law school’s legal writing program is ranked third in the Nation. See Best Graduate Schools, (visited April 9, 2008) . 

See http://grad-schools.usnews.rankingsandreviews.com/grad/law/writing. The Saltman Center for Conflict Resolution is ranked ninth in the Nation. See Best Graduate Schools, (visited April 9, 2008) http://grad-schools.usnews.rankingsandreviews.com/grad/law/dispute.  The Wiener-Rodgers Law Library is the biggest in the state and has over 300,000 volumes or volume equivalents. See http://www.law.unlv.edu/library.html. The faculty comes from all over the country with stellar reputations and credentials.

In addition, the law school maintains a curriculum that requires all first-year law students to “participate in a Community Service Program and spend substantial time providing legal information to people in the community that do not have access to lawyers. In partnership with Clark County Legal Services and the Clark County Pro Bono Project, law students prepare and present workshops at numerous locations in our community, on basic legal matters such as small claims court procedure, family law and procedure, bankruptcy, guardianship and paternity/custody matters.”  

See http://en.wikipedia.org/wiki/William_S._Boyd_School_of_Law citing Richard Morgan, Public/Private Partnerships Are Not The Only Kind of Important Collaboration; There Is Another Significant Sort Of Partnership-That I Will Refer to As A “Public/Public Partnership”-From Which The Boyd School Of Law Has Benefited Greatly, Nev. Law, Feb. 2006, at 28.

The speed with which the law school obtained accreditation and accomplished all of this is remarkable and has been matched by few other law schools. In just ten short years, the law school has met and exceeded everyone’s expectations.

We are grateful to the law school
We are grateful for those who believed in and financially supported the law school. We value the incredibly talented law school faculty who have spent, and continue to spend, tireless and sometimes thankless hours focused on the law school’s success and on the success of its students. In just ten short years, the Boyd School of Law has become a deep-seated and highly respected part of the Nevada legal community. We are proud to be alumni of the Boyd School of Law and are grateful to the law school for providing us with the necessary tools to succeed. We have been fortunate to share a parallel path to accomplishment with the law school.

Tabitha Fiddyment and Stephanie Allen have been friends for nearly twenty years. They graduated high school together. They went to the University of Nevada, Reno together. They attended law school together, and they are now both senior associates in the Land Use & Government Affairs Department of Kummer, Kaempfer, Bonner, Renshaw & Ferrario. They did not marry the same man.  

Casino Tax News: Casino’s Complimentary Meals Are Not Subject to Sales or Use Tax.

On March 27, 2008, the Nevada Supreme Court ruled that complimentary meals provided to patrons and employees of casinos are not subject to Nevada’s sales tax or use tax. Prior to this holding, casinos were required to pay “use tax” on complimentary meals. Below is a summary of the court’s opinion.

Nevada imposes a sales tax on the “retail sale of tangible personal property . . . .” When an item “escapes” sales tax, Nevada law imposes a use tax when the item is used, stored or consumed. Article 10, Section 3(A) of the Nevada Constitution provides for an exemption of “food for human consumption” from sales or use taxes. However, excluded from the definition of “food for human consumption” is “[p]repared food intended for immediate consumption.” The same types of provisions are found in NRS 372.284 and NRS 374.289. Prior to this decision, the casino, Sparks Nugget, Inc. (the “Casino”) paid no sales tax for its initial purchase of the food, but was required to pay a use tax when the food was complimentarily served to patrons or employees.

The court held that the initial purchase of food by the Casino was properly exempt from sales tax as “food for human consumption” that was not “prepared food intended for immediate consumption.” The later use of the food to provide complimentary meals was not subject to a use tax because the Casino’s “‘use’ did not follow an otherwise taxable purchase that had ‘escaped’ sales tax liability.” The Casino did not “escape” liability; rather, the Casino was “exempt” from liability. Nevada’s Constitution clearly “exempts all food for human consumption” unless the food is “‘prepared food intended for immediate consumption’ at the time it was sold.”

The court pointed out that the Casino is entitled to a refund for taxes paid on the complimentary meals in question. A copy of the opinion may be found on the Nevada Supreme Court’s website at http://www.nvsupremecourt.us/documents/advOpinions/124NevAdvOpNo15.html.

Questions or Additional Information
With questions or requests for additional information, please contact Eric Willis at 702.792.7000 or ewillis@kkbrf.com or John Brewer at 702.792.7000 or jbrewer@kkbrf.com.

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