Supreme Court Docket Report - July 1, 2014

Today (July 1, 2014), the Supreme Court granted certiorari in seven cases of interest to the business community:

Pregnancy Discrimination Act—Work Accommodations False Claims Act—Wartime Suspension of Limitations And The "First To File" Rule Natural Gas Act—Federal Preemption Of State-Law Antitrust Claims Lanham Act—Preclusive Effect Of Finding Of Likelihood Of Confusion By Trademark Trial And Appeal Board Railroad Revitalization And Regulatory Reform Act—Discriminatory State Taxation Bankruptcy—Powers Of Bankruptcy Courts Tax Injunction Act—Application To Suits Challenging State Notice And Reporting Requirements Pregnancy Discrimination Act—Work Accommodations

The Pregnancy Discrimination Act provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). Today, the Supreme Court granted certiorari in Young v. United Parcel Service, No. 12-1226, to decide whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are "similar in their ability or inability to work."

Peggy Young, an "air driver" for UPS whose job involved loading and delivering packages, claimed that UPS violated the Pregnancy Discrimination Act when it denied her request for a temporary alternate work assignment during her pregnancy. UPS denied her request based on the company's collectively bargained accommodations policy. The policy provides that temporary alternative work assignments are available only to: (1) employees who are unable to perform their regular jobs because of on-the-job injuries; (2) employees who have a condition or impairment that restricts performance and otherwise qualifies as a disability under the Americans with Disabilities Act; or (3) drivers who lose their Department of Transportation certifications. After exhausting her remedies with the Equal Employment Opportunity Commission, Young filed suit, alleging that UPS violated the Pregnancy Discrimination Act when it failed to provide her with the same accommodations that it provided to non-pregnant employees who were similar in their ability to work. The district court granted UPS's motion for summary judgment in part because the court concluded that Young had not shown direct evidence of discrimination and could not show that the UPS policy was a pretext for discrimination.

The Fourth Circuit affirmed, concluding that UPS's accommodations policy was "pregnancy-blind." Young v. United Parcel Service, 707 F.3d 437, 446, 450 (4th Cir. 2013). But the court acknowledged its disagreement with a decision of the Sixth Circuit, Ensley-Gaines v. Runyon, 1000 F.3d 1220 (6th Cir. 1996), that allowed a Pregnancy Discrimination Act claim based on a similar policy to proceed. In her petition for certiorari, Young argues that the Fourth Circuit's decision also conflicts with the Tenth Circuit's decision in EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000), but is in accord with decisions in the Fifth, Seventh, and Eleventh Circuits.

This case is of significant interest to the business community because it will determine whether the Pregnancy Discrimination Act requires employers to provide the same accommodations to pregnant and non-pregnant employees who are "similar in their ability or inability to work."

Barring extensions, which are likely, amicus briefs in support of the petitioner are due on August 22, 2014, and amicus briefs in support of the respondent are due on September 22, 2014.

False Claims Act—Wartime Suspension Of Limitations And The "First To File" Rule

The False Claims Act ("FCA") permits a private individual to bring a fraud claim on behalf of the United States government—a "qui tam" action—and to share in the damages if the suit succeeds. Qui tam actions must be brought within six years of the fraud or three years from when the government should have known about the fraud. See 31 U.S.C. § 3731(b). Under the Wartime Suspension of Limitations Act ("WSLA"), however, this period is suspended "[w]hen the United States is at war." 18 U.S.C. § 3287. The FCA also contains a "first-to-file" provision, which provides that once an individual brings a qui tam action, "no person other than the Government may . . . bring a related action based on the facts underlying the pending action." 31 U.S.C § 3730(b)(5). Today, the Supreme Court granted certiorari in Kellogg Brown & Root Services, Inc. v. Unites States ex rel. Carter, No. 12-1497, to decide two issues: (1) whether the WSLA applies to civil (as opposed to criminal) fraud claims; and (2) whether the first-to-file rule bars an individual from filing a qui tam suit when a similar qui tam suit has been filed but has been subsequently dismissed, and thus is no longer "pending."

In 2006, Benjamin Carter brought a qui tam action against a number of companies, including Kellogg Brown & Root Services, Inc., alleging that KBR fraudulently overbilled the government for work on water-purification projects in Iraq. The...