U.S. Supreme Court Opinions: July 7, 2008

Daily Record, The (Baltimore), Jul 7, 2008

In increasing Greenlaw's sentence sua sponte, the 8th Circuit did not advert to the procedural rules setting firm deadlines for launching appeals and cross-appeals. See Fed. Rules App. Proc. 3(a)(1), 4(b)(1)(B)(ii), 4(b)(4), 26(b).

The strict time limits on notices of appeal and cross-appeal serve, as the cross-appeal rule does, the interests of the parties and the legal system in fair warning and finality. The time limits would be undermined if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed.

Nothing in the instant opinion required courts to modify their current practice in "sentencing package cases" involving multi- count indictments and a successful attack on some but not all of the counts of conviction. The appeals court, in such cases, may vacate the entire sentence on all counts so that the trial court can reconfigure the sentencing plan.

On remand, trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts, but yielding an aggregate sentence no longer than the aggregate sentence initially imposed. That practice is not at odds with the cross-appeal rule, which stops appellate judges from adding years to a defendant's sentence on their own initiative.

In any event, this was not a "sentencing package" case. Greenlaw was unsuccessful on all his appellate issues. The 8th Circuit, therefore, had no occasion to vacate his sentence and no warrant, in the absence of a cross-appeal, to order the addition of 15 years to his sentence.

Labor & Employment

Age discrimination

BOTTOM LINE: Kentucky's retirement system did not discriminate against workers who become disabled after becoming eligible for retirement based on age.

CASE: Kentucky Retirement Systems, et al. v. Equal Employment Opportunity Commission, No. 06-1037 (decided June 19, 2008) (Justices Roberts, Stevens, Souter, Thomas & BREYER) (Justices Scalia, Kennedy, Ginsburg & Alito, dissenting).

FACTS: Kentucky permits "hazardous position" workers, e.g., policemen, to receive normal retirement benefits after working either 20 years or five years and attaining age 55, and pays "disability retirement" benefits to workers meeting specified requirements.

Kentucky's "Plan" calculates normal retirement benefits based on actual years of service. The Plan calculates disability benefits by adding to an employee's actual years of service the number of years that the employee would have had to continue working in order to become eligible for normal retirement benefits, adding no more than the number of years the employee had previously worked.

Charles Lickteig, who continued working after becoming eligible for retirement at age 55, became disabled and retired at age 61. He filed an age discrimination complaint with respondent (EEOC) after the Plan based his pension on his actual years of service without imputing any additional years.