November 5
Sturgeon v. Frost
No. 17-949, 9th Cir.
Preview by Clay Wild
At issue in this case is whether the Alaska National Interest Lands Conservation Act (“ANILCA”) prohibits the National Park Service (“NPS”) from regulating State, Native Corporation, and private land located within the National Park System in Alaska.
In 2007, NPS rangers found John Sturgeon repairing his hovercraft along a river that runs through the National Park System in Alaska. The rangers informed Sturgeon that it was against the law to operate a hovercraft in the area. In response, Sturgeon asserted that the prohibition did not apply because he was on an Alaska-owned waterway. Sturgeon acquiesced, though he eventually filed suit challenging the NPS’s authority to prohibit hovercrafts in the area.
ANILCA provides, in part, for NPS regulatory jurisdiction over “public lands” located in protected areas known as “conservation system unit[s]” (“CSU”). 16 U.S.C. § 3103(c) (2018). However, § 3103(c) of the statute excludes from NPS jurisdiction any land found within a CSU that is “conveyed to the State, to any Native Corporation, or to any private party.” Id.
Sturgeon’s primary argument is that ANILCA’s plain text forbids the NPS from exerting authority over Alaska-owned land physically located in a CSU. Pointing to § 3102, he says “public lands” are defined as those to which the federal government holds “title.” Id. § 3102(2)–(3). Sturgeon also relies on the statute’s history and structure to suggest its intent is to exclude State, Native Corporation, and private lands from federal jurisdiction, and suggests that allowing the NPS to regulate these lands would violate basic tenets of federalism. To counter the respondents’ argument that another statute authorizing broad NPS jurisdiction over all navigable waters supersedes § 3103(c), Sturgeon offers “that a specific statute controls over a general one.” Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961). He also disagrees with the respondents’ contention that NPS can rely on the Commerce Clause for authority because Congress did not expressly assert such authority in passing ANILCA.
The parties disagree about the Ninth Circuit’s reliance on the “reserved water rights” doctrine to uphold the NPS’s authority. See Sturgeon v. Frost, 872 F.3d 927 (2017). The doctrine, according to Sturgeon, only allows the federal government to use a certain amount of water to achieve specified federal objectives—an authorization that does not amount to holding title and therefore cannot be used to qualify such water as “public land.” The respondents counter that ANILCA’s definition of public lands includes those waters in which the United States has an interest under the doctrine, as it does here.
The respondents suggest that ANILCA’s original purpose was to protect and preserve rivers and waterways found in CSUs, and that denying the NPS jurisdiction here would thus pervert the statute’s intent. NPS’s authority to regulate the area in question, the respondents argue, is broadly conferred by Congress under 54 U.S.C. § 100751(b) (2018), which allows the federal government to make rules “relating to water located within [CSUs].” Finally, the respondents note that section 3103(c) was merely a technical correction to the original statute, and that Congress would not have stripped an agency of its authority through such a seemingly minor revision.
Virginia Uranium, Inc. v. Warren
No. 16-1275, 4th Cir.
Preview by Lindsey A. Ricchi
The issue before the Court is “[w]hether the Atomic Energy Act of 1954 [“AEA”] preempts Virginia’s moratorium on uranium mining.” Brief in Opposition at i, Va. Uranium, Inc. v. Warren, No. 16-1275 (U.S. filed Aug. 2, 2017).
In the late 1970s, significant uranium deposits were discovered throughout Virginia. In 1982, the Virginia General Assembly enacted a law establishing a uranium mining moratorium, which was extended indefinitely in 1983. Id. at 9–11. The petitioners, Virginia Uranium, Inc., et al, challenge this law as being preempted by the AEA.
The district court held that “the preempted field did not include conventional uranium mining on private land,” and that Virginia is thus “‘the paramount proprietor[] over its mineral lands.’” Brief for Respondents at 14, Va. Uranium, Inc. v. Warren, No. 16-1275 (U.S. filed Aug. 27, 2018) (quoting Va. Uranium, Inc. v. McAuliffe, 147 F.Supp.3d 462, 470 (W.D. Va. Dec. 2, 2015)). The Fourth Circuit affirmed. See Va. Uranium, Inc. v. Warren, 848 F.3d 590 (4th Cir. 2017).
The petitioners argue that the AEA provides that the Nuclear Regulatory Commission (“NRC”) alone may regulate activities “for the protection of the public health and safety from radiation hazards.” Brief for Petitioners at 2, Va. Uranium, Inc. v. Warren, No. 16-1275 (U.S. filed July 19, 2018) (quoting 42 U.S.C. § 2021(b), (k) (2018)). The petitioners further assert that the Court must consider the state’s motivation for enacting the state law and whether the state’s rationale “falls squarely within the prohibited field.” Id. (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212–13 (1983)). The petitioners argue that because the respondents concede that the Virginia law seeks to protect against the radiological hazards of uranium milling, the state statute falls within the AEA’s field of preemption. Thus, the petitioners argue, the AEA preempts the Virginia statute, and its prohibition on uranium mining cannot stand.
The respondents, Warren, et al, argue that the Virginia law addresses “whether the uranium will be mined in the first place,” not what happens after the uranium is removed, which is what the AEA and NRC regulate. Brief for Respondents at 1, Va. Uranium, Inc. v. Warren, No. 16-1275 (U.S. filed Aug. 27, 2018) (emphasis omitted). The respondents further argue that if the Court considers the state legislators’ motives for enacting a statute when determining whether the federal law preempts the state law, it could lead to inconsistent results regarding identical statutes in other states. See id. at 2 (citing Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 404 (2010)). Finally, the respondents deny having ever conceded that radiological safety concerns underpin the state’s rationale for enacting the statute. Thus, the respondents argue, the state law lies outside the AEA’s field of preemption, and the state law prohibiting uranium mining should stand.
The Court’s decision will likely clarify the regulatory scope of the Atomic Energy Act with respect to uranium operations on private lands. In addition, given the respondents’ invocation of Shady Grove, the Court’s decision may contribute to the ever-evolving Erie Doctrine.
November 6
Bucklew v. Precythe
No. 17-8151, 8th Cir.
Preview by Mike Fischer
In March 1996, Russell Bucklew embarked on a brutal crime spree which ultimately landed him on death row in Missouri. Shortly after his girlfriend left him for another man, Bucklew broke into the trailer where she was staying and shot the man whom she recently started dating. He then kidnapped his ex-girlfriend using a stolen vehicle, driving over 100 miles from the crime scene before beating and raping her. Following a car chase and subsequent shootout which wounded a state trooper, Bucklew was apprehended by police. Michael Sanders, the man Bucklew shot at the trailer, died of blood loss from the gunshot wounds. Bucklew was convicted of murder, kidnapping, and rape, and was sentenced to death by lethal injection.
On appeal, the petitioner contends that Missouri’s lethal injection protocol, as applied to him, would violate the Eighth Amendment’s ban on cruel and unusual punishment. The petitioner suffers from a unique congenital medical condition known as cavernous hemangioma, which causes blood vessels in acute regions to dilate and potentially weaken. According to the petitioner, because his condition is particularly pronounced near his mouth, lethal injection would likely cause hemorrhaging in his airway and result in excruciating pain. He further contends that execution by lethal gas, which is still authorized in Missouri, would be a more humane method of execution. The U.S. Court of Appeals for the Eighth Circuit rejected the petitioner’s challenge to the constitutionality of his execution. The petitioner appealed to the Supreme Court, which delayed his execution and granted certiorari.
The issues before the Court primarily concern whether the petitioner satisfied the criteria for Eighth Amendment method-of-execution challenges set forth in Glossip v. Gross, 135 S. Ct. 2726 (2015), including: (1) “[w]hether, in asserting an as-applied challenge to Missouri’s method of execution, Bucklew must prove a known and available, readily feasible alternative method of execution”; (2) “[w]hether Bucklew met his burden of creating a genuine dispute of material fact . . . when he failed to identify an alternative method of execution with any specificity, proposed an untested alternative that has never been used, . . . and failed to rebut the State’s evidence that” its method will not cause him to suffer; and (3) “[w]hether petitioner met his burden . . . to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State’s method of execution.” Brief of Respondents at i, Bucklew v. Precythe, No. 17-8151 (U.S. filed Aug. 15, 2018). Additionally, the Court will decide whether a court evaluating an as-applied challenge to a state’s execution based on an inmate’s rare and severe medical condition “should assume that an execution will go as intended.” Brief for Petitioner at 25, Bucklew v. Precythe, No. 17-8151 (U.S. filed July 16, 2018).
The petitioner argues that the known-and-available alternatives requirement set forth in Glossip should not be adopted in cases of as-applied challenges based on an inmate’s unique medical condition because “Missouri will remain free to use its standard injection protocol with other inmates . . . [a]nd Bucklew’s unique condition provides a straightforward predicate for evaluating the cruelty of his anticipated execution.” Id. at 36. He further argues that he met his evidentiary burden of creating a genuine dispute of material fact because the respondents “did not contest the availability and feasibility of [the petitioner’s proposed] alternative method of execution. Id. at 51. Finally, the petitioner asserts that lethal gas execution “will substantially reduce the risk of suffering he faces” from lethal injection, and that courts are required to “[c]onsider [t]he [o]bjectively [k]nown [r]isks” posed by an execution method for someone “[w]ith [a] [p]articular [m]edical [c]ondition.” Id. at 25.
The respondents contend that the alternative, feasible, readily available method of execution requirement is a “‘substantive element[]’ of all [method-of-execution] claims,” and that eliminating it “would encourage meritless claims that could impose additional years of delay before many executions.” Brief of Respondents at 23, 47, Bucklew v. Precythe, No. 17-8151 (U.S. filed Aug. 15, 2018) (quoting Glossip, 135 S. Ct. at 2739). According to the respondents, the petitioner failed to satisfy this element because he “has never identified any known and available ‘method’ or ‘procedure’ of execution by nitrogen gas.” Id. at 25. Additionally, the respondents assert that the petitioner failed to demonstrate that lethal injection will result in severe pain, and that “isolated mishaps, such as failed attempts to access [the petitioner’s] veins, . . . do[] not violate the Eighth Amendment.” Id. at 23.
Bucklew will serve as an early barometer for the course of Supreme Court death-penalty jurisprudence following the confirmation of Brett Kavanaugh. Justice Kennedy, who originally voted with the 5–4 majority to stay Bucklew’s execution, acted as the swing vote on many capital punishment cases.
BNSF Railway Co. v. Loos
No. 17-1042, 8th Cir.
Preview by Michelle Divelbiss, Online Editor
Two complementary acts, the Railroad Retirement Act (“RRA”) and the Railroad Retirement Tax Act (“RRTA”), govern the benefits and taxes of railroad employees. 45 U.S.C. §§ 231–231v (2018); I.R.C. §§ 3201–41 (2018). The taxes levied under the RRTA directly support the benefits provided to railroad employees under the RRA.
Respondent Michael Loos, a railroad employee, was injured at work and subsequently sued his employer, Petitioner BNSF Railway Co. (“BNSF”) to recover damages for time lost. A jury awarded Loos more than $120,000, including $30,000 for lost wages. BNSF had paid taxes on the $30,000—both the employer and employee portions. BNSF asked the district court to reduce the damages by $3765, the amount it had paid to the IRS on behalf of Loos. Although personal injury awards are not subject to income taxes, “compensation” under the RRTA includes lost wages and is otherwise subject to income tax. I.R.C. § 3231(e) The district court found that because personal injury awards are exempt from income taxes, this type of award should also be exempt from income taxes under the RRTA and denied the offset. The Eighth Circuit affirmed this decision.
BNSF explains that under the RRTA, “compensation” includes “any form of money remuneration paid to an individual for services rendered” and argues that payment for time lost falls under this definition of “compensation.” Id. Loos also points to the RRTA’s definition of “compensation” and argues that damages for time lost due to a workplace injury are not payment for “services rendered.” Id. Loos bolsters his argument by pointing out that “Congress had expressly removed ‘pay for time lost’ from the RRTA’s definition of compensation.” Brief of Respondent, at 13, BNSF Railway Co. v. Loos, No. 17-1042 (U.S. filed Sept. 10, 2018).
It is surprising that a dispute over the payment of only a few thousand dollars would make its way up to the Supreme Court. Nevertheless, an interpretation of the term “compensation” is something that could impact the benefits on which railroad employees rely, and could have more pronounced effects for other tax-related regulations.
November 7
Republic of Sudan v. Harrison
No. 16-1094, 2d Cir.
Preview by Taylor Dowd
The U.S.S. Cole, a naval destroyer, was bombed in Port of Aden, Yemen on October 12, 2000, killing 17 American sailors and injuring 42. Al Qaeda claimed responsibility for the bombing. In 2010, injured sailors and their spouses brought suit against the Republic of Sudan (“Sudan”), alleging the country supported Al Qaeda. They served Sudan by certified mail requesting return receipt to Sudan’s Minister of Foreign Affairs, but addressed the service to the Embassy of the Republic of Sudan in Washington, DC. After a default judgment was entered against Sudan, the country claimed that the court lacked personal jurisdiction because of improper service.
The question before the court is whether under the Foreign Sovereign Immunities Act (“FSIA”) serving Sudan via its diplomatic mission was proper. The FSIA lists the acceptable methods of serving foreign states or their political subdivisions in U.S. courts. If there is not a special arrangement or convention with which to comply, plaintiffs must “send[] a copy of the summons and complaint and a notice of suit, together with a translation . . . by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3) (2018).
Whereas the Second Circuit concluded service was proper because § 1608(a)(3) of the FSIA is silent on location requirements, Sudan argues that a “natural reading” of the statute indicates that the head of the ministry of foreign affairs should be served in their “official office” in their country’s capital. Brief for Petitioner at 2–3, Republic of Sudan v. Harrison, No. 16-1094 (U.S. filed Aug. 15, 2018). Sudan also argues that the Vienna Convention provision stating that “[t]he premises of the mission shall be inviolable,” Vienna Convention on Diplomatic Relations and Optional Protocols art. 22, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, forbids service on or through a diplomatic mission. The respondents, however, assert that reports and foreign courts have found the Vienna Convention provision to not prevent service by mail on a diplomatic mission.
Although the Second Circuit found that the Embassy of the Republic of Sudan accepted the documents, Sudan challenges this with evidence that the documents were actually received in a Maryland town and that the identity of the signatory is not clear.
The implications of this case are intensified by the United States’ stance as amicus curiae that serving the embassy violated the Vienna Convention, and that holding otherwise could negatively affect U.S. foreign relations. According to the United States, upholding the service in this case would not only cause a treaty violation, but could also compromise the United States’ arguments for improper service in the future because it does not accept service through its embassies.
Culbertson v. Berryhill
No. 17-773, 11th Cir.
Preview by Michelle Divelbiss, Online Editor
Petitioner Culbertson was the attorney for four individuals challenging the Social Security Administration’s denial of disability benefits. After a finding that the individuals were wrongly denied disability benefits, Culbertson asked the court to award him attorney fees for all four cases. Culbertson now challenges the attorney fees amount calculated by the court.
Two subsections of 42 U.S.C. § 406 govern attorney fees: § 406(a) governs attorney fees for representation before the Commissioner of Social Security and § 406(b) governs fees for representation before a court. 42 U.S.C. § 406 (2018). Under § 406(a), a fee for representation before the Commissioner may “not exceed the lesser of . . . 25 percent of the total amount of such past-due benefits . . . or $4,000,” and under § 406(b), a fee for representation before a court may not be more than “25 percent of the total of past-due benefits.” Id. Attorney fees are also governed under the Equal Access to Justice Act (“EAJA”), which permits a separate statutory award of attorney fees. 28 U.S.C. § 2412(d) (2018).
One of Culbertson’s clients was awarded $4107.27 in attorney fees under the EAJA and the Social Security Commissioner withheld $8595.75, 25 percent of the client’s total award for attorney fees under § 406(b). Culbertson calculated his fees for this client to be the 25 percent withheld minus the EAJA fees already awarded, totaling $4488.48. The district court found that Culbertson failed to subtract the attorney fees awarded under § 406(a) for the representation before the Commissioner and limited the award of attorney fees to $1623.48. The district court explained that this method of calculation ensures that an attorney does not recover fees twice and that a client is not charged duplicative fees.
Culbertson claims that the court below erred in the calculation of attorney fees. He argues that the court erred by placing the 25 percent cap of § 406(b) on attorney fees collected under both § 406(a) and (b) combined. Further, Culbertson argues, the plain language of the statute indicates that attorney fees for representation before the Commission and before a court are to be calculated separately and not jointly subjected to the 25 percent maximum. To illustrate this point, if the 25 percent cap were instituted for both § 406(a) and (b) together, an attorney representing a claimant before the Commissioner could use up the entire award, and a different attorney representing the same claimant before a court would not be awarded any attorney fees.
Somewhat uniquely, Respondent, the Acting Commissioner of Social Security, agrees with Culbertson. Respondent argues that “Congress has not imposed a 25% cap on the aggregate amount of attorney’s fees” under § 406 (a) and (b) and has instead “vested the agency and the courts with adequate authority to ensure that such fees are not excessive in particular cases.” Brief for the Respondent Supporting Reversal and Remand at 25–26, Culbertson v. Berryhill, No. 17-773 (U.S. filed July 16, 2018).
Several of the circuit courts are split on this issue. The Sixth, Ninth, and Tenth Circuits have held that the 25 percent cap applies only to § 406(b), as Culbertson argues, while the Fourth, Fifth, and Eleventh Circuit have held that the 25 percent cap applies to both § 406(a) and (b).
November 26
Apple Inc. v. Pepper
No. 17-204, 9th Cir.
Preview by Sean Lowry*
In Apple Inc. v. Pepper, the Court will consider whether consumers have standing to sue for antitrust damages against a party that delivers goods to them (Apple) even if the prices for the products are set by third parties (application developers). Aside from the direct effect of giving consumers a chance to take a bite out of Apple’s profits, the Court’s decision could shape future antitrust litigation against other tech giants.
Under section 4 of the Clayton Act, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue” for treble antitrust damages. 15 U.S.C. § 15(a) (2018). The Court has limited standing for antitrust damages only to “the overcharged direct purchaser, and not others in the chain of manufacture or distribution.” Illinois Brick Co. v. Illinois, 431 U.S. 720, 729 (1977) (emphasis added).
The facts of the case revolve around a class action concerning Apple’s iPhone and App Store. Apple prohibits the sale and development of iPhone applications from sources outside of the App Store, where it charges a 30% commission from any third-party-developer sales. In 2012, consumers filed a class action lawsuit in California alleging that Apple has monopolized or attempted to monopolize the App Store, thereby increasing the price of iPhone applications set by third-party developers.
Apple moved to dismiss the complaint, arguing that the consumers lacked statutory standing to sue because they were not “direct purchasers” of applications sold in the App Store. The district court granted Apple’s motion to dismiss, but the Ninth Circuit reversed because it concluded that Apple was a distributor of iPhone apps, selling them directly to consumers through its App Store.
The parties’ arguments are based on different conceptions of the market and supply chain for iPhone applications. Under Apple’s interpretation of the law, third-party software developers can sue Apple for allegedly monopolistic commissions that it charges but consumers cannot. Even if consumers pay Apple directly for applications purchased through the App Store, Apple argues that it simply “delivers” the applications based on prices set by the third-party developers. Under the consumers’ argument, Apple was able to extract their 30% commission by monopolizing the distribution of iPhone Apps to be sold solely through the App Store. Because the consumers purchased the applications priced in an allegedly noncompetitive market, they argue that they have standing to sue Apple.
The amici curiae filing briefs in support of Apple include the Chamber of Commerce, other industry associations, and the Solicitor General (who has also moved to participate in oral arguments). The business and industry associations argue that increasing potential classes of antitrust plaintiffs could reduce investment, particularly in innovative e-commerce platforms. A group of antitrust scholars, including treatise coauthor Herbert Hovenkamp, filed a brief on behalf of the consumers. They argue that Apple’s interpretation of who has standing in the case is not supported by the broad wording of the Clayton Act and its legislative history. They further assert that Apple’s proposed construction of the law would encourage companies to draft contractual licensing arrangements to narrow the pool of potential antitrust plaintiffs. Here, the scholars argue that third-party developers have little economic leverage against the provider of the sole supply outlet for iPhone applications and might even have an economic incentive to cooperate with Apple and share in the monopoly profits extracted from a non-competitive market. A brief filed by 31 states and the District of Columbia goes even further, arguing that Illinois Brick should be overruled in order to allow indirect purchasers to bring suit (as many states modified their antitrust statutes in the wake of Illinois Brick) and enhance private antitrust enforcement efforts.
*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.
Nieves v. Bartlett
No. 17-1174, 9th Cir.
Michelle Divelbiss, Online Editor
The Supreme Court has previously held that a First Amendment retaliatory prosecution claim is defeated by probable cause. See Hartman v. Moore, 547 U.S. 250 (2006). Now the Court will address whether probable cause also defeats a First Amendment retaliatory arrest claim.
Respondent Russell P. Bartlett attended Arctic Man, a festival and ski race in Alaska, which is known for excessive alcohol consumption. Petitioners, Sergeant Luis Nieves and Bryce Weight, are Alaska Troopers who were tasked with policing the event. Bartlett was intoxicated and confronted the troopers: Bartlett confronted Sgt. Nieves when he was approaching an RV and shortly thereafter confronted Weight when he was investigating whether a teenager had been drinking. Bartlett allegedly acted aggressively and was intoxicated; the parties dispute each other’s characterization of the events. At one point, Weight used a sanctioned “open-palm push” and pushed Bartlett away from him. When Sgt. Nieves saw the encounter become physical, he arrested Bartlett because he thought he was a threat.
Bartlett sued Sgt. Nieves and Weight for retaliatory arrest and other alleged violations. Bartlett claims that probable cause does not defeat a claim of retaliatory arrest if he can prove “‘that the officers’ desire to chill his speech was a but-for cause’ of the officers’ action.” Brief for Respondent at 1–2, Nieves v. Bartlett, No. 17-1174 (U.S. filed Oct. 2, 2018) (quoting Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013)).
Will the Supreme Court overturn another Ninth Circuit case? If probable cause for any offense can defeat a retaliatory arrest claim, individuals may have an even more difficult time successfully bringing such a claim. On the other hand, it might be good public policy to require an individual charging officers with retaliatory arrest to have clean hands.
November 27
Nutraceutical Corp. v. Lambert
No. 17-1094, 9th Cir.
Preview by Christopher Lin
Troy Lambert (“Lambert”) purchased an aphrodisiac dietary supplement manufactured by Nutraceutical Corp. (“Nutraceutical”) that alleged it would enhance sexual performance. Lambert later contended that the product was not in fact approved by the FDA and had not undergone clinical testing as required by 21 C.F.R. § 310.528(b) and (c).
Lambert filed a consumer class action against Nutraceutical under Federal Rule of Civil Procedure 23(b)(3), alleging violation of California consumer fraud, false advertising, and unfair competition law. The district court initially granted class certification, but after discovery, on February 20, 2015, granted Nutraceutical’s motion to decertify class. On March 2, 2015, ten days after the decertification, Lambert expressed his intention to file a motion for reconsideration at a status conference, and the court set the deadline for his motion at ten days from the conference—twenty days in total after the order decertifying class. Lambert timely filed his motion on March 12, 2015 as the court had instructed, moving for reconsideration and asking for recertification. Three months later, the court denied Lambert’s motion on the merits, and Lambert subsequently filed a petition for permission to appeal the decertification order under Rule 23(f), which imposes a filing deadline of “14 days after the order is entered.”
When reviewing the timeliness of the petition, the Ninth Circuit held that Rule 23(f) was procedural and not jurisdictional, and that equitable exceptions such as tolling could thus apply. It also held that Lambert’s expression of his intent to move for reconsideration was sufficient to toll the Rule 23(f) deadline, and that after the district court denied Lambert’s motion for reconsideration, he filed his petition within the 14-day deadline. With this reasoning, the Ninth Circuit held that Lambert timely filed his petition, although it also acknowledged that other circuits would likely reach a different conclusion.
The central issue that the Supreme Court will address is whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules and that Lambert timely filed a petition for permission to appeal under Rule 23(f) because the deadline to file was tolled.
Nutraceutical contends that claim-processing rules are mandatory and unalterable in nature, and that the Ninth Circuit had the duty to dismiss Lambert’s appeal under Supreme Court case law. It further contends that the Ninth Circuit could not have extended the deadline for a petition for permission to appeal because Federal Rule of Appellate Procedure Rule 26(b) expressly prohibits it.
In response, Lambert argues that “equitable tolling to Rule 23(f) does not constitute an ‘extension,’” but “simply recalibrates the date from which the 14-day deadline begins to run.” Brief for Respondent at 6, Nutraceutical Corp. v. Lambert, No. 17-1094 (U.S. filed Oct. 1, 2018). He further contends that his petition for permission to appeal was timely regardless of whether the Ninth Circuit reached the issue of equitable tolling because his oral representation at the status conference constituted a formal motion under Federal Rule of Civil Procedure Rule 7(b)(1) that recalibrated the deadline to appeal to run from the date that the district court disposed of his motion.
Carpenter v. Murphy
No. 17-1107, 10th Cir.
Michelle Divelbiss, Online Editor
The background of Carpenter v. Murphy reads like a gruesome true crime novel, but the case hinges on jurisdiction over Indian reservations in Oklahoma and whether the reservation of the Muscogee Creek Nation (“Creek Nation”) still exists or was disestablished by Congress. For a vivid description of the gruesome events, see Brief for Petitioner at 16, Carpenter v. Murphy, No. 17-1107 (U.S. filed July 23, 2018).
Respondent Patrick Murphy, a member of the Creek Nation, was convicted of murdering “his girlfriend’s former lover,” George Jacobs—another member of the Creek Nation. Id. at 15–16. Although he was tried and convicted by the state of Oklahoma, Murphy later argued that the state did not have jurisdiction because the crime was committed on the Creek reservation and because Murphy is a member of the Creek Nation. Under the Major Crimes Act, “[a]ny Indian who commits . . . murder . . .shall be subject to the same law and penalties as all other persons committing [it], within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a) (2018) (emphasis added). The parties and the courts have disagreed about whether the Congress disestablished the 1866 boundaries of the Creek reservation and therefore dispute whether the state had jurisdiction to convict Murphy.
Under a test developed in Solem v. Bartlett, 465 U.S. 463 (1984), the Tenth Circuit evaluated whether statutory “text ‘expressly’ disestablished or diminished the boundaries of the Creek Nation.” Brief for Petitioner at 18, Carpenter v. Murphy, No. 17-1107 (U.S. filed July 23, 2018). The Tenth Circuit found that there was no disestablishment of the Creek Nation territory.
Here, Petitioner argues that the creation of the State of Oklahoma expressly and necessarily disestablished the reservation’s boundaries. Further, Petitioner argues that if the reservation’s boundaries still existed, the reservation would effectively split Oklahoma in two, with the Indian reservation comprising nearly one-half of the state. Respondent Murphy describes a series of complicated negotiations and decisions between Congress and the Creek Nation and argues that there is no statutory text that disestablishes the reservation. It will be interesting to see how the Supreme Court analyzes the statutory text in light of complicated negotiations between the Creek Nation and Congress more than 150 years ago.
November 28
Timbs v. Indiana
No. 17-1091, Ind.
Preview by Ian K. Bryant-Smith
This case seeks to determine whether the Excessive Fines Clause of the Eighth Amendment is incorporated against the states by the Fourteenth Amendment. Nearly every provision of the Bill of Rights has been incorporated at this point. If the Excessive Fines Clause were to be incorporated, only “the Third Amendment’s protection against quartering of soldiers[,] . . . the Fifth Amendment’s grand jury indictment requirement, [the Sixth Amendment right to a unanimous jury verdict, and] the Seventh Amendment right to a jury trial in civil cases” would remain exclusively applicable to the federal government. See McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010).
The parties fundamentally disagree on the scope of the question presented. Timbs seeks a broad ruling holding that the Clause as a whole applies to the states, while Indiana seeks a narrower holding that the Clause does not apply to the states in the context of in rem seizures of property. The case will settle this dispute in part by clarifying the scope of the Court’s decision in Austin v. United States, 509 U.S. 602 (1993), which applied the Clause to two specific provisions of federal law involving in rem seizures relating to drug offenses.
Tyson Timbs became addicted to hydrocodone after being prescribed the drug to treat his persistent foot pain. When his prescription ran out, he began buying pills from drug dealers. Eventually, he transitioned to heroin. Looking for ways to fund his heroin purchases, he became involved in drug dealing and ultimately made two sales to undercover police officers: two grams of heroin each time for a total of $385. While driving to make a third sale, Timbs was pulled over. He was arrested, and his $42,000 Land Rover was seized. He pleaded guilty to one count each of dealing in a controlled substance and conspiracy to commit theft. The jury sentenced him to a year of house arrest, five years of probation, a drug treatment program, and assorted fees totaling $1,203.
In separate proceedings, Indiana initiated a civil claim for the forfeiture of Timbs’s Land Rover. The trial and appellate courts found that the Land Rover had been used to illegally transport heroin but that its seizure would be grossly out of proportion to the offense in violation of the Excessive Fines Clause. This was in part because the maximum fine for Timbs’s offenses would have been just $10,000 (although Indiana notes that this is in fact the maximum fine for all felonies, including murder). The Indiana Supreme Court reversed, holding that the Excessive Fines Clause had not been incorporated against the states and so Indiana was free to seize the Land Rover.
Timbs’s primary argument rests on the Due Process Clause of the Fourteenth Amendment. He argues that the Excessive Fines Clause is incorporated because the rights it guarantees are “fundamental to our scheme of ordered liberty” and are “‘deeply rooted in this Nation’s history and tradition.’” McDonald, 561 U.S. at 767 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). He traces the Clause’s guarantees through the Anglo-American legal history to even before the Magna Carta and argues that this continuous presence in our tradition indicates that they are fundamental to the American legal system at both the state and federal levels. The portions of the Eighth Amendment relating to cruel and unusual punishments and excessive bail have already been incorporated, he claims, and there is no meaningful reason to distinguish the Excessive Fines Clause. Alternatively, Timbs claims that the right to be free from excessive fines is one of the privileges and immunities covered by the Fourteenth Amendment that no state may abridge.
Indiana seeks to narrow the question presented, focusing specifically on whether the Excessive Fines Clause applies to in rem civil asset forfeiture. They make the historical argument that civil asset forfeiture proceedings have been brought against property used in breaking the law since before the revolution, and that throughout its history civil asset forfeiture has frequently been used in draconian and disproportionate—but still perfectly legal—ways. No court until the late 20th century had ever held the Excessive Fines Clause could possibly apply to a civil forfeiture. In 1992, the Second Circuit held that the Excessive Fines Clause could be applied to such a forfeiture but went on to decline to do so because the forfeiture was not sufficiently disproportionate. See United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir. 1992). Indiana also leans heavily on the distinction between civil asset forfeiture and punishments, asserting that the Eighth Amendment regulates only punishments, and that civil forfeiture is not considered one. Alternatively, Indiana argues that even if the Clause does apply to in rem seizures on the federal level, there is not enough historical evidence to apply it to the states.
The overwhelming amount of outside pressure in this case is on behalf of Timbs. He is being supported by amici ranging from the ACLU to the Chamber of Commerce. Of the 20 amicus briefs submitted, just one, written by the National Association of Counties, supports Indiana.
