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SCOTUS News, Week of February 6th, 2017

The Gorsuch nomination has found firm footing in the headlines, less so in the actual Senate for confirmation. The Senate is not likely to fill the vacant ninth seat until some time this summer.

But the gears of justice doth continue to spin. Starting on Tuesday, February 21st, the Justices will hear arguments in the next slew of cases on the docket. This week and next, we will delve a little deeper into the circumstances of each upcoming case. Here we go.

Hernandez v. Mesa is a case we’ve briefly spoken about before. It concerns the cross-border shooting of a Mexican national by a U.S. Border Patrol officer. The main question in the case is whether the Fourth Amendment protection from excessive deadly force applies outside the U.S. Along with that question, the Supreme Court must decide whether qualified immunity applies to the Border Patrol officer. (The officer, Mesa, was unaware of Hernandez’s citizenship when he fired the shots). A third issue in this case relies in part on the widely cited Bivens case, over whether federal agents can be sued for damages when they violate the Fourth Amendment.

– On the same day Mesa is argued, the Court will also hear arguments in McLane Company v. EEOC. The EEOC issued several subpoenas to McLane over alleged discrimination of one of McLane’s employees. At issue in this case is not the discrimination suit itself, but what happened next in the proceedings. The EEOC subpoenaed McLane for information on several employees. Some of this information was relevant to the case (such as job title and grade on a stress test). The EEOC also requested so-called personal “pedigree information”, such as Social Security numbers, of employees at McLane. The district court ruled during that case that the subpoena of SSNs, along with other pedigree information, was not necessary to the case and that the release of that information to the public could in fact be detrimental to the case, and to the privacy concerns of the individuals involved. The EEOC appealed that district court ruling, and the matter was brought to the Ninth Circuit.

In its ruling, the Ninth Circuit stated that the district court erred in blocking the EEOC’s access to the pedigree information. Their reasoning cited precedent to explain that necessity does not govern the EEOC’s need for information, but rather, the relevance of that information to the case. This de novo reversal by the Ninth led McLane to appeal the case to the Supreme Court. The issue before the Court is whether or not the Ninth’s de novo ruling – that is, that the Ninth reversed the district court’s judgment without recourse to precedent – should be upheld.

– The following day, Wednesday, February 22nd, the Supreme Court will hear argument in Kindred Nursing Centers v. Clark. Patients at Kindred nursing home gave power of attorney to family members. When the family members brought suit against Kindred for alleged abuse, Kindred referred to their attorney agreements which, although they gave power of attorney to patients’ families, did not confer authority to arbitrate disputes. On these grounds, the Kentucky Supreme Court did not enforce the arbitration agreements. The Supreme Court will rule on this particular aspect of arbitration litigation.

The Supreme Court has a conference next Friday, February 17th. We will be back then with updates, and to run down the cases slated for the end of the month and the beginning of March.