March 18
Virginia House of Delegates v. Bethune Hill
No. 18-281, E.D. Va.
Preview by Sean Lowry, Online Editor*
In Virginia House, the Court will re-examine a Virginia state electoral map for racial gerrymandering claims and hear new arguments about who has the standing to defend the map on appeal.
The initial controversy arose when voters challenged 12 new districts, drawn by the Republican-controlled state legislature following the 2010 census, as products of racial gerrymandering in violation of the Equal Protection Clause. A three-judge panel in the district court upheld all 12 districts, and the case was later granted certiorari, moving directly to the Supreme Court. (The Court has granted direct appeal in a number of redistricting cases.) In March 2017, the Court held that 11 of the districts had been upheld under the wrong legal standard and remanded the case to further evaluate those districts under the Court’s interpretation of relevant precedent. See Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788 (2017). (The Court affirmed the district court’s upholding of one of the electoral district boundaries.) The majority opinion, written by former Justice Anthony Kennedy, said that relevant case law requires plaintiffs alleging racial gerrymandering to show, in a district-by-district manner, evidence that the Virginia legislature used race as a predominant factor in drawing the electoral map, overriding other options driven by race-neutral factors. See id. at 797–800. Upon remand, the lower court panel, in a 2-1 decision, concluded in June 2018 that minimum thresholds of black voter concentrations were a primary factor driving the construction of the districts. See Bethune-Hill v. Va. State Bd. of Elections, 326 F.Supp.3d 128 (E.D. Va. 2018). On behalf of the Republican-controlled House of Delegates, Speaker M. Kirkland Cox intervened in defense of the map, and petitioned the Court for direct appeal and review of the district court’s analysis.
In addition to arguments about the district court’s gerrymandering analysis, the Court asked to be briefed on a standing challenge introduced by Democratic Attorney General (“AG”) Mark Herring. AG Herring filed a motion to dismiss the House’s appeal to the Court on the basis that under Virginia law, the AG’s office, and not a single house of the Virginia legislature, is entitled to represent the commonwealth’s interest in litigation and decide whether (or not) to defend the electoral map on appeal. The House argues that it does have standing under conventional Article III standards (e.g., a concrete and particularized injury) and that Virginia law authorizes the House to defend state statutes. Additionally, both parties argue that precedent in Karcher v. May, 484 U.S. 72 (1987) supports their position on standing. In Karcher, the Court held that heads of the New Jersey state House and Senate lacked standing to defend a school prayer law because their tenure in the leadership had expired. Instead, the authority, under state law, to defend the state’s interest in defending the statute had passed to their successors. Whether or not the Court will decide to revisit the meaning of its decision in Karcher remains to be seen.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
Smith v. Berryhill
No. 17-1606, 6th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
Petitioner’s request for review of an administrative law judge’s decision to deny his application for disability benefits was not received by the Social Security Administration on time and his attorney could not provide any evidence that the request was sent timely. The Appeals Council dismissed the appeal accordingly. When the petitioner filed a civil suit seeking review of the Appeals Council’s decision, the district court dismissed the case because (1) the decision was not a “final decision” that is reviewable, and (2) no other constitutional claim was made to allow review of the otherwise nonreviewable claim. In the brief to the Supreme Court, Petitioner only addressed the question of whether there was a “final decision.”
The Sixth Circuit affirmed the decision, holding, in relevant part, that the Appeals Council’s decision here was not a “final decision” that is subject to judicial review under the Social Security Act and regulations. The court cited similar cases such as Hilmes v. Secretary of Health & Human Services, 983 F.2d 67, 68 (6th Cir. 1993), which held that “the dismissal of a hearing request as untimely was unreviewable.” Smith v. Comm’r of Soc. Sec., 880 F.3d 813, 816 (6th Cir. 2018).
In his brief to the Supreme Court, the petitioner emphasized the importance of judicial review to prevent agencies’ arbitrary decisions and the Court’s “‘strong presumption’ favoring judicial review of administrative action.” Brief for Petitioner at 17, Smith v. Berryhill, No. 17-1606 (U.S. filed Dec. 19, 2018) (quoting Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1653 (2015)). Petitioner focused on the language of 42 U.S.C. § 405(g) that provides judicial review for “any” final decision and pressed the point that there is no other way for him to appeal after the decision.
Respondent changed her position from the previous proceedings, where she had asked the Sixth Circuit to affirm the district court’s decision that the Appeals Council’s action was not a “final decision.” Now, Respondent is suggesting that the precedents were wrong to hold an Appeals Council dismissal to be nonreviewable. Respondent pointed out similar facts as Petitioner did, concluding that this decision is significant to determining an individual’s right. That the Appeals Council’s decision was not about the merits of the claim also did not matter to Respondent. Instead, Respondent argues the scope of judicial review is limited in this type of case to whether the agency’s decision on a procedural matter was supported by “substantial evidence.” Brief for the Respondent at 29, 30, Smith v. Berryhill, No. 17-1606 (U.S. filed Dec. 19, 2018) (quoting 42 U.S.C. § 405(g)).
It will be interesting to see not only how the Court will rule, but also the reasoning of the decision in light of longstanding precedents and the change in the respondent’s position.
March 19
Cochise Consultancy Inc. v. United States, ex rel. Hunt
No. 18-315, 11th Cir.
Preview by Sean Lowry, Online Editor*
In Cochise, the Court will seek to clarify a three-way circuit split over interpretation of the False Claims Act’s (“FCA”) statute of limitations. The FCA enables individuals to bring suits on behalf of the government (i.e., qui tam) for claims such as fraud to the government. 31 U.S.C. § 3730(b) (2012). A successful plaintiff (or in FCA parlance, a “relator”) receives a share of any financial recoveries to the government. The U.S. government may investigate the claim and assume primary responsibility to litigate or it can choose not to intervene formally as a party in the case.
The controversy in Cochise concerns whether respondent/relator Hunt brought his FCA case too late under the FCA’s statute of limitations. Hunt alleges that his former employer, Parsons, and Cochise defrauded the United States for work they performed as defense contractors in Iraq, resulting in approximately $3.9 million of higher costs to the U.S. government. The defense contract was performed from February through September of 2006. Hunt first told the FBI about the alleged scheme on November 30, 2010 during an interview related to a separate fraudulent scheme. On November 27, 2013, Hunt formally filed an FCA complaint against his former employer and Cochise. The U.S. government declined to intervene.
The FCA’s statute of limitations provision says that a suit cannot be brought: “(1) more than six years after the date on which the FCA violation is committed, or (2) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances . . .”—whichever is later. 31 U.S.C. § 3731(b) (2012). The district court held that (b)(2) did not apply because the U.S. government declined to intervene and thus Hunt’s case was time-barred under (b)(1). The Eleventh Circuit reversed and remanded, holding that (b)(2) still applies even if the U.S. government chooses not to intervene. Hunt’s case could proceed because he (barely) filed it within three years of providing the facts to an “official of the United States charged with responsibility to act in the circumstances” (the FBI).
Parsons and Cochise petitioned for certiorari with the Court, asking whether the statute of limitations in (b)(2) applies even if the U.S. government does not intervene, and, if so, whether the relator constitutes an “official of the United States” under (b)(2). The Fourth and Tenth Circuits do not apply (b)(2) to cases where the U.S. government declines to intervene. See United States ex rel. Sanders v. North American Bus Industries, Inc., 546 F.3d 288, 295–96 (4th Cir. 2008); United States ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702, 725 (10th Cir. 2006). This was the interpretation applied by the district court to dismiss Cochise. The Third and Ninth Circuits interpret a relator as an “official of the United States” under (b)(2). See United States ex rel. Malloy v. Telephonics Corp., 68 F.App’x 270, 272–73 (3d Cir. 2003); United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1214–18 (9th Cir. 1996). Hunt’s case would also be barred under this interpretation because he learned about the facts in 2006 but did not file suit until 2013. The Eleventh Circuit’s decision in Cochise created a third possible option for the interpretation of the statute of limitations that does not consider when the relator learned of the material facts.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
March 20
Flowers v. Mississippi
No. 17-9572, Miss.
Preview by Michael Fischer, Online Editor
On July 16, 1996, the small town of Winona, Mississippi was rocked by the execution-style murders of four employees during an armed robbery of the Tardy Furniture Store. The next year, an AfricanAmerican man named Curtis Flowers was indicted for the crime and stood trial for what would be the first of six attempts by the state to convict him. At his first trial, Flowers was found guilty of murder but his conviction was reversed and remanded for a new trial on evidentiary grounds by the Mississippi Supreme Court. Flowers was again found guilty and his conviction was again reversed and remanded on the same grounds. Despite a third conviction, the Mississippi Supreme Court again reversed and remanded, this time finding that the prosecutor engaged in racial discrimination during jury selection. Mistrials were subsequently declared in Flowers’ fourth and fifth trials before he was finally convicted for a sixth time for all four murders and sentenced to death.
On appeal, Flowers argued that the State violated his Sixth and Fourteenth Amendment rights by using its peremptory strikes in a racially discriminatory manner during jury selection. The Mississippi Supreme Court denied his appeal, but the United States Supreme Court ordered reconsideration of the ruling given their recent decision in Foster v. Chatman, 136 S.Ct. 1737 (2016), wherein the Court found that prosecutors in a capital case had engaged in intentional discrimination during jury selection. On remand, the Mississippi Supreme Court again upheld the conviction and Flowers again appealed.
The question before the Court is whether the Mississippi Supreme Court erred in its application of Batson v. Kentucky, 476 U.S. 79 (1986) by finding that the prosecution had not engaged in racial discrimination during jury selection through its use of preemptory strikes. Flowers argues that the State failed to properly apply the three-step process established in Batson for detecting racial motivation, in which “first the defendant must establish a prima facie case of racial discrimination; second, the prosecutor may offer race-neutral reasons for the strike(s); and third, the court must determine whether the defendant has met his burden of proving purposeful discrimination.” Brief for Petitioner at 30, Flowers v. Mississippi, No. 17-9572 (U.S. filed Dec. 27, 2018). According to Flowers, Batson requires “careful consideration” of the cumulative evidence of racial discrimination, and the Mississippi Supreme Court failed to take into account the prosecutor’s history of repeated discrimination during jury selection in the previous trials and his disparate treatment of potential African American jurors before the trial at issue. Id. at 30–33, 44.
The State counters that Batson explicitly established that the defendant carries the burden of persuasion to prove the existence of purposeful discrimination and that Flowers failed to meet that burden. Brief for Respondent at 12, Flowers v. Mississippi, No. 17-9572 (U.S. filed Feb. 07 2019). They argue that Flowers’ lack of “inferential proof of racial animus,” combined with the Mississippi Supreme Court’s careful analysis of the valid race-neutral reasons for the peremptory strikes, establish that no error was committed in upholding the conviction. Id. at 22–26.
March 25
PDR Network, LLC v. Carlton & Harris Chiropractic Inc.
No. 17-1705, 4th Cir.
Preview by Michael Fischer, Online Editor
PDR Network (“PDR”) is the publisher of the Physicians’ Desk Reference, a compendium of prescribing information for prescription drugs, which compiles and reprints the drug labeling or package insert accompanying drug products. After launching a digital eBook version of the book in 2013, PDR sent a fax message to Carlton & Harris, a West Virginia chiropractic office, offering them a free copy. Carlton & Harris subsequently filed a putative class action lawsuit in federal court against PDR pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227 (2012), which creates a cause of action for consumers who receive unsolicited fax advertisements. PDR countered that the fax was not an unsolicited advertisement since they merely were offering a copy of the desk reference at no cost. However, Carlton & Harris note that in 2006 the Federal Communication Commission (“FCC”) interpreted the term “unsolicited advertisement” to include goods and services offered free of charge.
The district court granted PDR’s motion to dismiss, holding that PDR’s fax did not have a commercial aim and that they were not bound to follow the FCC’s interpretation of the term “commercial advertisement.” On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s decision, finding that the Hobbs Act, 18 U.S.C. § 1951 (2012), requires district courts to adhere to orders like the FCC’s 2006 ruling. PDR appealed and the Supreme Court granted certiorari on November 13, 2018. The question before the Court is whether the Hobbs Act required the district court to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.
Petitioner PDR argues that the district court was not precluded from offering their interpretation of the term in question since the Hobbs Act only addresses suits brought against the government for relief from unlawful agency action and because the Administrative Procedure Act allows a defendant to challenge agency actions in a judicial enforcement proceeding. Brief for Petitioner at 18–24, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705 (U.S. filed Jan. 8, 2019). Alternatively, they assert that the FCC’s determination amounted to an interpretive rule, not a legislative rule, and as such was not binding on the courts. Id. at 45. In response, Respondent Carlton & Harris Chiropractic contends that the district court was in fact obligated to follow the FCC’s interpretation since the plain language of the Hobbs Act prohibits a district court from deciding the validity of a final order like the one issued by the FCC in 2006. Brief for Respondent at 11, PDR Network v. Carlton & Harris Chiropractic, No. 17-1705 (U.S. filed Feb. 7, 2019). Furthermore, Respondent argues that the Hobbs Act’s jurisdictional limitations are not limited to actions against the government since the Court, in Chicago & N.W. Transp. Co. v. Brick & Tile Co., 450 U.S. 311, 322 (1981), has applied it in lawsuits between private entities. Id. at 24.
The Dutra Group v. Batterton
No. 18-266, 9th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
Before this case reached the Supreme Court, the sole question before the Ninth Circuit was, “whether punitive damages are an available remedy for unseaworthiness claims.” Batterton v. Dutra Group, 880 F.3d 1089, 1091 (9th Cir. 2018). The appellee was a seaman who was working on a vessel owned and operated by the appellant. The appellee got injured because of the appellant’s unseaworthy vessel, and brought a lawsuit seeking damages, including punitive damages. The appellant filed a motion to strike the prayer seeking punitive damages, the United States District Court for Central District of California denied the motion, and the Ninth Circuit affirmed.
The question came down to whether the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which held “wrongful death damages are limited to ‘pecuniary loss’ and because ‘[t]he Jones Act/[Federal Employers’ Liability Act] survival provision limits recovery to losses suffered during the decedent’s lifetime,’” Id. at 1091 (citations omitted), implicitly overruled the Ninth Circuit decision in Evich v. Morris, 819 F.2d 256 (9th Cir. 1987) where the court held “[p]unitive damages are available under general maritime law for claims of unseaworthiness, and for failure to pay maintenance and cure.” Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) (citations omitted). The Ninth Circuit held that Evich remained good law under the Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003), and Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009), which is about maintenance and cure actions, provides alternative grounds to affirm.
Petitioner’s emphasis is on the uniformity of maritime law, arguing that the same principle that prohibits punitive damages in the Jones Act applies to general maritime law as well. It also distinguishes the maintenance and cure claim in Townsend from the unseaworthiness claim in this case based on that the former is a separate and ancient doctrine, and the latter is a judicially created alternative to the Jones Act. Furthermore, the petitioner proposed an extension of the logic applied to the wrongful death claim in Miles to this case, asserting there is no sound basis for limiting the application.
In response, Respondent argues that Petitioner’s points—including the overlap between an unseaworthiness claim and how the maintenance and cure standard evolved—are immaterial in determining the applicability of Townsend. He also asserts that the petitioner did not use proper reasoning to distinguish Townsend and apply Miles in this case, and further emphasized the policy reasons for awarding punitive damages in unseaworthiness claims.
Since there were splits not only within the circuit but also among the circuits, and because this is quite an important issue in maritime law, the case will draw a lot of attention.
March 26
Rucho v. Common Cause
No. 18-422, M.D.N.C.
Preview by Boseul (Jenny) Jeong, Online Editor
During the last term, there were two partisan gerrymandering cases before the Supreme Court. Yet, the Court did not provide clear answers and two new partisan gerrymandering cases are in front of the Court again, including Rucho v. Common Cause.
North Carolina’s 2016 Congressional Redistricting Plan (“2016 Plan”) is in question here. When the issue first came before the U.S. District Court for the Middle District of North Carolina, the court held the 2016 Plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I of the Constitution. Common Cause v. Rucho, 318 F.Supp.3d 777 (M.D.N.C. 2018). The court then enjoined the use of the 2016 Plan after the general election on November 6, 2018. Id. at 942.
Appellants argue appellees lack standing because their purported injuries are even less discernable than those of plaintiffs in Gill v. Whitford, 138 S.Ct. 1916 (2018), who were found to lack standing. Appellants further argue that the partisan gerrymandering claims are nonjusticiable because (1) federal courts are improper entities for resolving this issue because of the delegation of federal oversight power to Congress regarding states’ regulations on Congressional elections, and (2) there are no justiciable standards to adjudicate partisan gerrymandering claims. In their opinion, the district court’s test only showed that there cannot be a manageable standard, especially when the framers left the power to district to those who are susceptible to partisan politics. Lastly, they argue that the 2016 Plan is constitutional under traditional districting criteria.
Appellees focus on the concept of “cracked” or “packed” districts described by the Court in Gill v. Whitford. They argue that their residencies in “cracked” or “packed” districts affect the weight of their votes and are sufficient bases for their standing in this claim. Appellees respond to the justiciability argument by drawing comparison to racial gerrymandering, which results from cracking and packing and is justiciable. They also assert that federal courts can adjudicate this issue because the Election Clause actually authorizes the courts to review states’ regulations and partisan gerrymandering is not an exception. Lastly, appellees argue that the 2016 Plan is unconstitutional because the district was drawn with the explicit intention to affect the Democratic Party’s representation.
This case raises some familiar issues that the Court saw in previous partisan gerrymandering cases, and now it is again up to the Court to decide these questions. Many eyes will be on this case, especially after the Court has dodged the core issue in their last term.
Lamone v. Benisek
No. 18-726, D. Md.
Preview by Sean Lowry, Online Editor*
Like Virginia House of Delegates v. Bethune-Hill, Benisek involves review of a gerrymandering case that was granted certiorari for the 2017 October term.
The controversy in Benisek centers around the boundaries of Maryland’s sixth congressional district, which were redrawn and approved by the Democratic governor and state legislature after the 2010 census. The plaintiffs, a set of sixth district Republican voters, claimed that the state government retaliated against the exercise of their freedom of association and representational interests under the First Amendment. The voters allege that the legislature redrew the boundaries as a means to dilute their votes, discourage fundraising, and diminish voter participation in the historically Republican district, therefore enabling the incumbent in the U.S. House of Representatives to lose to a Democrat in the 2012 election. The procedural history of the case took a complicated set of zigs and zags up and down the federal courts from 2013 through 2016 before pretrial discovery began before a three-judge panel in the district court.
The last time that Benisek was before the Court, the appellants were the Republican plaintiffs seeking appeal of the district court panel’s 2017 denial for a motion for preliminary injunction to prevent the state from using the map while litigation was proceeding. In a per curiam decision, the Court found that the district court panel did not abuse its discretion in denying the preliminary injunction and affirmed the lower court’s decision. See Benisek v. Lamone 138 S.Ct. 1942, 1945 (2018). Subsequently, the district court panel granted the plaintiffs’ motion for summary judgement on the claims that the state legislature intentionally diluted their votes and burdened their First Amendment representational interests based on their party identity, and it required a redrawing of the sixth district’s boundaries before the 2020 elections. See Benisek v. Lamone, 348 F.Supp.3d 493 (D. Md. 2018). This time at the Court, though, the Maryland Attorney General’s office is the party petitioning for appeal.
This case stands out among other high-level gerrymandering cases because the Court has not directly addressed the district court’s theory that a redistricting plan could violate the First Amendment rights of voters. Both sides will try to argue the limits to this theory. Alternatively, the Court could rule on whether summary judgment was appropriately granted and send this case back down to the district court for further deliberation.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
March 27
Kisor v. Wilkie
No. 18-15, Fed. Cir.
Preview by Michael Fischer, Online Editor
James Kisor served as an active member of the United States Marine Corps in the Vietnam War from 1962 to 1966. During this time, he saw combat in Operation Harvest Moon, wherein over 500 soldiers from each side died in battle. For his service, Kisor was awarded a Combat Action Ribbon and a Vietnam Service Medal. Unfortunately, his service also left him mentally and emotionally scarred, and he was eventually diagnosed with severe service-connected Post-Traumatic Stress Disorder (“PTSD”). In December 1982, Kisor filed a claim for disability benefits with the Office of Veterans Affairs (“VA”) based on his diagnosis, but a subsequent psychiatric evaluation concluded that he instead suffered from a personality disorder and his claim was denied. This new diagnosis was rendered despite the fact that the VA psychiatrist at the time did not have access to a portion of Kisor’s combat record, but in 2006 Kisor renewed his request, and the VA gained access to such records. The VA subsequently granted his request under 38 C.F.R. § 3.156(a), which allows a petitioner to reopen a benefits petition by submitting “new and material evidence,” but declined to award him retroactive benefits.
Kisor filed a notice of disagreement, arguing that he was entitled to retroactive benefits authorized under 38 C.F.R. §3.156(c). The VA found that the additional service documents relating to Kisor’s combat history did not qualify as “relevant” for the purpose of establishing that he had PTSD as a current disability, as required under the statute. The Court of Appeals for Veterans Claims affirmed the VA’s decision, as did the Federal Circuit. The question before the Court is whether the rule announced in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) and affirmed in Auer v. Robbins, 519 U.S. 452 (1997), which declares that an administrative construction of an ambiguous regulation is controlling unless “plainly erroneous or inconsistent with the regulation,” Seminole Rock, 325 U.S. at 414, should be abandoned.
On appeal, Kisor argues that Seminole Rock and Auer were wrongly decided since their core holdings circumvent the checks on agency rulemaking set forth in the Administrative Procedure Act (“APA”). Brief for Petitioner at 26, Kisor v. Wilkie, No. 18-15 (U.S. filed Jan. 24, 2019). Additionally, he contends that Chevron deference, which applies when an agency uses its delegated authority as Congress prescribed, highlights the problems with Auer since Auer is not constrained by the APA. Id. at 45–46. In response, the VA counters that Seminole Rock and Auer “have come to stand for a degree of deference to agencies that . . .raises significant concerns under the APA.” Brief for Respondent at 14, Kisor v. Wilkie, No. 18-15 (U.S. filed Feb. 25, 2019). However, instead of overruling these cases, the VA argues that they should instead be clarified and narrowed by subjecting agency deference to certain prerequisite requirements, including a determination as to whether the interpretation is consistent with prior agency determinations. Id. at 27.
This case represents the first major encounter between the Court’s jurisprudence on agency deference in regulatory interpretation and the recently reconstituted Roberts Court. Justices Gorsuch and Kavanaugh have each expressed deep consternation toward Chevron and its attendant doctrines, and their influence within the conservative majority could have far-reaching implications for the future of the administrative state.
