The Supreme Court of the United States announced decisions in three cases today:

Shelby County v. Holder, No. 12-96:  Section 4 of the Voting Rights Act of 1965 applies to “covered jurisdictions” – those States or political subdivisions that maintained tests or devices as prerequisites to voting, such as literacy and knowledge tests, and had low voter registration or turnout in the 1964 Presidential election (as originally enacted) and 1968 and 1972 Presidential elections (as reauthorized and amended in 1970 and 1975).  Subsequent reauthorizations in 1982 and 2006, however, did not alter this coverage formula.  For these covered jurisdictions, Section 5 of the Act states that no change in voting procedures can take effect until approved by federal authorities, a process called “preclearance.”  Petitioner Shelby County lies in the covered jurisdiction of Alabama, and brought suit, seeking a declaratory judgment that Sections 4(b) and 5 of the Act are facially unconstitutional.  The District Court upheld the Act, on the basis that evidence before Congress in 2006 was sufficient to justify reauthorization of Section 5 and Section 4(b)’s coverage formula, and the D.C. Circuit affirmed.  Today, the Court reversed, holding that Section 4(b) is unconstitutional because the formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.  The Court also made clear that its decision does not affect the permanent, nation-wide ban on racial discrimination in Section 2 of the Act, nor was the Court issuing any holding on Section 5 itself of the Act.

The Court's decision is available here.

Koontz v. St. Johns River Water Management Dist., No. 11-1447:  Petitioner sought permits from respondent St. Johns River Water Management District (District) to develop a section of his property.  Florida law requires such permit applicants seeking to build on wetlands to offset resulting environmental damage, and here, petitioner offered to do so by deeding the District a conservation easement on his property.  The District rejected that proposal and instead said it would approve construction if he reduced the size of his development and deeded to the District an easement on the larger remainder of his property, or else hired contractors to make improvements to other District-owned wetlands.  Petitioner filed suit under a Florida law permitting money damages for agency action that is an “unreasonable exercise of the state’s police power constituting a taking without just compensation.”  The District Court found the District’s actions failed the requirements of Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that any condition on the approval of a land use permit on the owner’s relinquishment of a portion of his property required a nexus and rough proportionality between the government’s demand and the effects of the proposed land use.  Although the District Court of Appeal affirmed, the State Supreme Court reversed, on the basis that unlike in Nollan and Dolan the District denied the application, as well as that a demand for money cannot give rise to a claim under those Supreme Court precedents.  Today, the Court reversed, holding that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.

The Court's decision is available here.

Adoptive Couple v. Baby Girl, No. 12-399:  This suit implicated the Indian Child Welfare Act of 1978 (IWCA), which, as the Court has previously stated, establishes federal standards to address “the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”  This includes barring involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely if there is “continued custody” by the parent, 25 U.S.C. §1912(f), requiring that remedial efforts have been made to prevent the “breakup of the Indian family,” §1912(d), and giving placement preferences for adoption to members of the child’s extended family, other members of the tribe, or other Indian families, §1915(a).  Here, Biological Father is a member of the Cherokee Nation, and while Birth Mother was pregnant, the relationship between Birth Mother and Biological Father ended, and he agreed to relinquish his parental rights.  Birth Mother selected a non-Indian couple to adopt Baby Girl.  Four months after Baby Girl’s birth, during which time Biological Father provided no financial assistance to Birth Mother or Baby Girl, Adoptive Couple served Biological Father with notice of the pending adoption.  During the adoption proceedings, Biological Father sought custody.  The South Carolina Family Court awarded custody to Biological Father, and the State Supreme Court affirmed, relying upon §§1912(d), 1912(f), and 1915(a) of the IWCA.  The Court today reversed, holding that even if Biological Father is a “parent” under the IWCA, §1912(f) is inapplicable because there has not been any “continued custody” where the Indian parent never had custody; §1912(d) is inapplicable because there is no relationship being “broken-up” in this case, and §1915(a) does not apply where no alternative party has sought to adopt the child.

The Court's decision is available here.

The Supreme Court also issued two decisions yesterday that were not included in Dorsey’s June 24, 2013 eUpdate:

University of Texas Southwestern Medical Center v. Nassar, No. 12-484:  Respondent brought a suit alleging two Title VII violations against his former employer:  (1) constructive discharge in violation of 42 U.S.C. §2000e-2(a), which prohibits discrimination “because of such individual’s race, color, religion, sex, and national origin;” and (2) retaliation in violation of §2000e-3(a), which prohibits retaliation “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.”  The jury found for respondent on both claims, with the Fifth Circuit vacating the constructive-discharge claim, but affirming the retaliation claim.  The Fifth Circuit’s affirmance was premised upon its determination that retaliation claims under §2000e-3(a), like claims brought under §2000e-2(a), did not require but-for causation, but rather, only a showing that retaliation was a motivating factor for the adverse employment action.  Today, the Court vacated that judgment and remanded, holding that a plaintiff making a retaliation claim under §2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.

The Court's decision is available here.

Ryan v. Schad, No. 12-1084:  Respondent Schad was sentenced to death for first-degree murder.  A series of appeals ended with the Supreme Court denying petitioners for certiorari and rehearing, after which, pursuant to Federal Rule of Appellate Procedure 41(d)(2)(D), the Ninth Circuit was required to issue its mandate.  The Ninth Circuit declined to do so here, and instead, sua sponte construed respondent’s motion to stay the mandate pending the Ninth Circuit’s decision in a separate case as a motion to reconsider a motion the court had denied six months previously, and upon reconsideration, issued a stay days before the scheduled execution.  The Court today, in a per curiam opinion, reversed the order and vacated the stay of execution, holding that even assuming Rule 41(d)(2)(D) admits exceptions, the Ninth Circuit’s failure to issue its mandate in this case constituted an abuse of discretion.

The Court's decision is available here.

The Court also granted review yesterday in nine cases:

Unite Here Local 355 v. Mulhall, No. 12-99:  Whether an employer and union may violate §302 of the Labor-Management Relations Act by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer's property and employees, and its freedom of contract by obtaining the union's promise to forego its rights to picket, boycott, or otherwise put pressure on the employer's business.

Michigan v. Bay Mills Indian Community, No. 12-515:  1. Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (IGRA) but takes place outside of Indian lands.  2. Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

Lozano v. Alvarez, No. 12-820:  Whether a district court considering a petition under the Hague Convention for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent.

Mayorkas v. De Osorio, No. 12-930:  1. Whether §1153(h)(3) of the Immigration and Nationality Act unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary.  2. Whether the Board of Immigration Appeals reasonably interpreted §1153(h)(3).

McCullen v. Coakley, No. 12-1168:  1. Whether the First Circuit erred in upholding Massachusetts' selective exclusion law, which is applicable only at abortion clinics, under the First and Fourteenth Amendments, on its face and as applied to petitioners.  2. If Hill v. Colorado, 530 U.S. 703 (2000), permits enforcement of this law, whether Hill should be limited or overruled.

EPA v. Eme Homer City, No. 12-1182 & American Lung Assn. v. Eme Homer City, 12-1183:  As set forth in the Petition, The Clean Air Act, 42 U.S.C. §7401 et seq. (Act or CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. §§7408, 7409. "[W]ithin 3 years" of "promulgation of a [NAAQS]," each State must adopt a state implementation plan (SIP) with "adequate provisions" that will, inter alia, "prohibit[]" pollution that will "contribute significantly" to other States' inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. §7410(a)(1), (2)(D)(i)(I). If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C §7410(k). After the EPA does so, it "shall promulgate a [f]ederal implementation plan" for that State within two years. 42 U.S.C. §7410(c)(1).  The questions are:  1. Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief.  2. Whether States are excused from adopting SIPs prohibiting emissions that "contribute significantly" to air pollution problems in other States until after the EPA has adopted a rule quantifying each State's interstate pollution obligations.  3. Whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind State's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State's physically proportionate responsibility for each downwind air quality problem.

Exec. Benefits Insur. Agency v. Arkison, No. 12-1200:  1. Whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether "implied consent" based on a litigant's conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III.  2. Whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a "core" proceeding under 28 U.S.C. §157(b).

UBS Financial Servs. V. Union De Empleados De Muelles, No. 12-1208:  Should, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit have reviewed for abuse of discretion the District Court's determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors?

NLRB v. Noel Canning, No. 12-1281:  1. Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.  2. Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.  3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.