Legal Docket: Undue hardship and Sabbath rest

MARY REICHARD, HOST: It’s Monday, April 24th, 2023. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time now for Legal Docket.

The justices of the U.S. Supreme Court have been busy of late, and not only with wrangling over abortion drugs: It handed down five opinions over the last 10 days; three of them about the power to hear and decide a case in federal courts. In legal parlance, the term is jurisdiction.

REICHARD: We’ll quickly run through those three jurisdiction disputes.

First, a unanimous win for Mall of America in its dispute with a former tenant.

Sears had leased space in the mall. After it filed for reorganization bankruptcy in 2018, Sears transferred its lease to another company, and a bankruptcy court okayed that. The question was whether appellate courts have jurisdiction to hear objections. The answer from all nine justices is yes. Case remanded for further proceedings.

EICHER: Alright, second unanimous opinion in another jurisdiction dispute.

This one involves a company that makes tasers and body cameras for police and military use, Axon Enterprise. Not the energy company Exxon, this is Axon. It acquired a failing competitor that the Federal Trade Commission said violated antitrust law. So Axon brought a constitutional challenge to what the FTC was doing—trying to make the case that the FTC was abusing its power.

Axon lost in the lower courts, because it hadn’t jumped through all the agency hoops first, before going to the courts.

But the justices ruled that agencies are not empowered to decide whether their own procedures are constitutional. That is a task for the courts.

REICHARD: In the third jurisdiction case, the federal government went after a bank owned by the Republic of Turkey in a criminal prosecution for money laundering. In its defense, the bank argued the law granting federal courts jurisdiction does not apply to foreign governments.

But a majority of seven justices said that law does apply in criminal prosecutions. Still, the case is remanded so the lower court can decide whether the bank has immunity under other principles such as common law.

EICHER: So those are the three opinions dealing with the question of jurisdiction. In all three cases, the parties who want to proceed with a lawsuit in federal court can do so because the federal courts have, as we have been talking about, jurisdiction.

REICHARD: The fourth opinion the court handed down is a win for a man on death row. Rodney Reed filed a challenge to the death penalty based on an item from the crime scene that wasn’t tested for his DNA.

He’s on death row for the murder of Stacey Stites. Reed claims he’s innocent, that he was in a consensual relationship with Stites. And that Stites’ fiancé, police officer Jimmy Fennell, is the real killer. Here’s Reed’s lawyer at oral argument:

PARKER RIDER-LONGMAID: Mr. Reed has a stay of execution from the Texas courts on his ninth subsequent habeas petition before the courts where he raised evidence that Fennell admitted to killing Stites because he discovered she was sleeping with a black man, that Fennell threatened to kill Stites if he caught her cheating, that Fennell made inculpatory statements at Stites' funeral and that Fennell and Stites' relationship was fraught.

When denied testing on the item, Reed sued in federal court, arguing that the Texas DNA law is unconstitutional. But the Fifth Circuit said he missed the two-year deadline to file.

The majority justices reversed, saying Texas got the timeline wrong. Texas started the time clock as soon as the state trial court denied the DNA testing request. But that’s not how it works: the clock starts ticking only whenall state appeals are over.

EICHER: And now for the final opinion of the day: a win for New Jersey. Seventy years ago, New Jersey and New York entered a contract to deal with crime at the states’ shared port. New Jersey wants to end the contract. New York doesn’t. The contract’s express terms are silent about whether a party can terminate. To resolve the dispute, the Supreme Court applied general contract law principles and found in favor of New Jersey.

So, that brings us up to date on court opinions. Now we’ll turn to two oral arguments the court heard recently. For that, our Washington, D.C., legal correspondent Jenny Rough will take it from here.

JENNY ROUGH: Last Tuesday morning, the sidewalks outside the Supreme Court seemed calm. Minimal crowds. Quiet conversation. A sunny, peaceful spring day. It almost felt restful. Fitting, given that the court heard a case about a former postal worker who wants to honor the Sabbath. Rest on Sundays, instead of work.

AARON STREETT: Hardison's de minimis test makes a mockery of the English language, and no party truly defends it today.

Aaron Streett represented Gerald Groff and argued the court should abandon an old test: Hardison’s de minimis test. Here’s a quick background:

Groff resigned from his part-time job at a post office in rural Pennsylvania when it no longer wanted to give him Sundays off. The post office wanted him to deliver Amazon packages on Sundays. Groff sued under Title VII of the Civil Rights Act.

That federal law requires employers to accommodate an employee’s religious practice, and this next is the crucial part unless doing so would impose an undue hardship on the business.

In the 1977 Hardison opinion, the court defined undue hardship as anything more than a de minimis cost to the employer.

Lawyer Streett for the former postal worker argued for a different test: a significant-difficulty -or- expense test. Lower courts already apply that test to other laws with the term “undue hardship.” Like the Americans with Disabilities Act that requires employers to make reasonable accommodation to individuals with disabilities.

Lawyer Streett explained why the government’s test isn’t consistent:

STREETT: Thus, under the government's test, a diabetic employee could receive snack breaks under the ADA but not prayer breaks under Title VII, for that might cause lost efficiency.

The justices wanted to know how Groff’s preferred test would play out. Justice Amy Coney Barrett could see how it might bring financial hardship. But what about non-monetary burdens?

JUSTICE BARRETT: What if it's just morale? Employees aren't as productive because they're grumbling. They're not willing to kind of go the extra mile, put their best foot forward. Those might be very difficult things to put a dollar amount on, or the dollar amount might be small. But why wouldn't they be things that affected the conduct of the business?

STREETT: We do not advocate for a dollar amount test. It just needs to be concrete evidence that the employer is not able to carry out its operations, and that is something that the employer has the burden to prove.

Solicitor General Elizabeth Prelogar argued on behalf of the United States.

ELIZABETH PRELOGAR: The lower courts correctly found an undue hardship on these facts.

She said Groff’s absences caused problems with the timely delivery of mail.

PRELOGAR: And it actually produced employee retention problems, with one carrier quitting, and another carrier transferring, and another carrier filing a union grievance.

Justice Neil Gorsuch pointed out that both parties agree that Hardison’s de minimis test can’t be taken too literally.

The government doesn’t go so far as to agree with Groff that the test needs to be abandoned. Just clarified.

Still, given the harmony, Gorsuch suggested a simple fix.

JUSTICE GORSUCH: If there is so much common ground here between the parties and really between the parties and Hardison that, you know, some courts have taken this "de minimis" language and run with it and say anything more than a trifling will get the employer out of any concerns here, and that's wrong and we all agree that's wrong, why can't we just say that and be done with it and be silent as to the rest of it?

If I were a justice, I’d clarify the burden the employer must show and remand the case for a jury trial. But if I were a jury member, I’m not sure where I’d fall. I’d want to hear more about how the Sabbath accommodation affected the post office’s financial woes. And whether it was Groff’s request, or the leadership’s handling of it, that played a role in the low morale.

One final case today: tax law. Remo Polselli owed the IRS money. On its paper chase to collect the tax debt, the IRS issued summonses to banks where his wife and his law firms had accounts. The IRS didn’t give notice to his wife or the firms—doing so might have caused them to tip off Polselli so he’d transfer his money to Switzerland or hide it elsewhere. The question in this case centers on whether the law permits the IRS to withhold notice. Here’s Justice Elena Kagan:

JUSTICE KAGAN: And, you know, basically, I read this language just to say, whoever we're collecting from, and it could be this group of people or it could be that group of people, if it's in aid of collecting, then we don't have to issue a notice.

The third parties have good policy arguments. Accessing their records without giving them notice is invasive. But the plain text of the law, while not limitless, gives the government a strong upper hand.

That’s this week’s Legal Docket. I’m Jenny Rough.

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