The Supreme Court has dominated the news cycle lately, and yet none of it has had anything to do with the Court’s jurisprudence. Instead, all the attention has been focused on Judge Brett Kavanaugh, whose confirmation prospects have diminished in the wake of allegations of sexual misconduct. Following a set of extremely contentious hearings, some Senators called for the FBI to investigate the accusations. President Trump has granted this request and directed the FBI to conduct an inquiry into the matter.
All of this means that the Court will only have eight Justices when it convenes for the beginning of its term on October 1st, creating the possibility of 4–4 deadlocks for as long as Justice Kennedy’s former seat remains open.
Although it remains to be seen whether any such deadlocks will occur, we can at least say that the month of October will present a number of intriguing issues for the Court. Indeed, this month the Court will confront issues of environmental policy, arbitration agreements, and the death penalty, just to name a few. Accordingly, we invite you to continue reading below as we preview the Court’s October sitting.
Samuel E. Meredith
Senior Online Editor
October 1
Weyerhaeuser Co. v. U.S. Fish & Wildlife Service
No. 17-71, 5th Cir.
Preview by Emma Hutchison
Weyerhaeuser Co. v. United States Fish & Wildlife Service presents the Court with two questions: First, the Court must determine whether the Endangered Species Act (“ESA”) authorizes the U.S. Fish & Wildlife Service (the “Service”) to designate an area of land as “critical habitat” even if an endangered species does not live there and could not do so without modifications to the land. 16 U.S.C. § 1533(a) (2018). Second, the Court must decide whether a refusal by the Service to “exclude [an] area from critical habitat” is subject to judicial review. 16 U.S.C. § 1533(b)(2).
An endangered species called the dusky gopher frog (the “frog” or “frogs”) is only known to exist in Mississippi. Initially, the Service designated the frog’s current habitat in Mississippi as the frog’s sole critical habitat. After receiving criticism from the scientific community, the Service expanded the frog’s critical habitat to include a parcel of land in Louisiana, owned by the petitioner. Both parties agree that the frog has not been seen in the area in the last fifty years and that there are no frogs currently living in the area. However, the petitioner’s land was historically a breeding site for the frog. Although the area lacks a necessary feature of the frog’s habitat, an open canopy forest, the land contains a rare feature that the frog needs to breed: ephemeral ponds, i.e., ponds that are filled with water during some times of the year and dry during others.
The petitioner filed suit against the Service. The district court ruled in favor of the Service and the Fifth Circuit affirmed in a divided panel decision.
The petitioner challenges the Service’s decision to classify the land as critical habitat. The petitioner argues that the land cannot be critical habitat because it is not the current habitat for the frog and the frog could not survive there without modifications to the land. Moreover, the petitioner warns that if agencies are allowed this high level of discretion, valuable, private land all over the country will be designated critical habitat, despite the land not housing any endangered species.
The Service argues that the ESA empowers it to extend the critical habitat outside of the current habitat if it is “essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A)(i), (ii). This determination is made “on the basis of the best scientific data available” and the Service may consider “the economic impact” of critical habitat designations. 16 U.S.C. § 1533(b)(2). Although the Service estimated an economic impact of up to $34 million, it determined that this “critical habitat” designation was essential because disease or severe weather in the region could destroy the frogs’ current habitat and, as a result, the frogs themselves.
The Fifth Circuit held that the “critical habitat” designation is discretionary and is consequently subject to Chevron deference, meaning it can only be overturned if “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). The Court’s decision here will be highly impactful for property owners and federal agencies alike.
Mount Lemmon Fire District v. Guido
No. 17-587, 9th Cir.
Preview by Kayvon Ghayoumi
The Age Discrimination in Employment Act of 1967 (“ADEA”) prevents employers from discriminating against current or potential employees based on old age. Under the ADEA, “[t]he term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees.” 29 U.S.C § 630(b) (2018). The ADEA defines “person” as “one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.” Id. § 630(a). The ADEA further provides that “[employer] also means (1) any agent of such a person, and (2) a State or political subdivision of a State.” Id. § 630(b).
The respondents, Guido and Rankin, were the two oldest people employed full-time by the petitioner, Mount Lemmon Fire District. The Fire District terminated them at the ages of 46 and 54. Guido and Rankin filed age discrimination charges with the Equal Employment Opportunity Commission, which found reasonable cause. After Guido and Rankin filed suit, the district court granted summary judgement for the Fire District. Guido and Rankin appealed. The Ninth Circuit reversed and remanded.
At issue here is whether the 20-employee minimum applies to State political subdivisions or whether all State political subdivisions are employers under the ADEA. The petitioners argue that the language “[employer] also means . . . a State or political subdivision of a State” clarifies the definition of “person,” indicating that it includes States and their political subdivisions, but does not remove the 20-employee requirement. Brief for Petitioner at 2–3, Mount Lemmon Fire Dist. v. Guido, No. 17-587 (U.S. filed May 7, 2018). Respondents argue that “‘also means’ creates a distinct, freestanding category of employers” because the “explicit and unqualified nature of this provision dictates that the state’s nondiscrimination mandate applies to political subdivisions regardless of size.” Brief for Respondents at 7, Mount Lemmon Fire Dist. v. Guido, No. 17-587 (U.S. filed July 5, 2018).
October 2
Gundy v. United States
No. 17-6086, 2d Cir.
Preview by Mike Fischer
In response to growing concerns regarding potential deficiencies in existing sex offender registration and notification statutes, Congress established a comprehensive national system by passing the Sex Offender Registration and Notification Act (SORNA) in 2006. The statute sets forth uniform reporting requirements in addition to the criminal penalties associated with an offender’s failure to adhere to deadlines for registering or updating a registration. Recognizing the uncertainty and practical limitations associated with how these deadlines would apply to offenders convicted before the law’s enactment, SORNA directs the Attorney General to specify the applicability of these requirements to any such offenders and prescribe rules for compliance. 34 U.S.C. § 20913(d) (2018).
The petitioner here was convicted of sexual assault against a minor in 2004 while on supervised release for a prior drug conviction. Following the completion of his sentence for his sex offense charge, he was transferred to a Pennsylvania federal correctional facility to serve his sentence for violating the terms of his federal supervised release. During this time, the Bureau of Prisons authorized his unsupervised travel to New York, but he subsequently failed to register as a sex offender in accordance with § 2250(a) of SORNA. Petitioner was indicted and eventually convicted for this violation. The Second Circuit affirmed his conviction and sentence.
The question before the Court is whether the provisions in SORNA authorizing the Attorney General to issue regulations and specify applicability to pre-SORNA offenders violates the nondelegation doctrine. The petitioner contends that Congress failed to set forth any standard or policy that would supply an intelligible principle to which the Attorney General must adhere in exercising his authority under the statute. Furthermore, the petitioner argues, the lower court erred in applying the statute’s statement of purpose, legislative history, and prior case law to intuit such a principle. See generally Brief for Petitioner, Gundy v. United States, No. 17-6086 (U.S. filed May 25, 2018).
The government, however, contends that the petitioner’s argument ignores the rules of statutory construction by advocating for a heightened level of nondelegation scrutiny which is inconsistent with the Court’s precedent. Instead, respondent argues, the text and context of SORNA unambiguously declare Congress’s general policy of requiring all sex offenders to register to the maximum extent feasible. According to the government, the narrow scope of the authority delegated by SORNA confirms that the guidance supplied by Congress satisfies the intelligible principle requirement. See generally Brief for the United States, Gundy v. United States, No. 17-6086 (U.S. filed Aug. 2, 2018).
The ramifications of this case extend well beyond its potential impact on criminal sex offenders who would be subject to SORNA’s registration requirements. At a recent panel discussion at The George Washington University Law School, Professor Jonathan Turley noted that the nondelegation argument has been used as a vehicle to limit the discretion of executive agencies and this case could lay the foundation to make that application broader. “The nondelegation issue has been a sleeper,” Turley said, “but it’s been something that everyone talks about because if you wake this thing up, it could really rampage through existing case law.” GW Law Panel Previews Supreme Court’s Upcoming Term, Geo. Wash. U.L. Sch. (Sept. 18, 2018), https://www.law.gwu.edu/gw-law-panel-previews-supreme-courts-upcoming-term.
Madison v. Alabama
No. 17-7505, Ala. Cir. Ct.
Preview by Kelsey M. Stein, Senior Projects Editor
Madison v. Alabama could further limit the circumstances in which states can pursue capital punishment. In this case, the Court will evaluate its Eighth Amendment jurisprudence in the context of an aging death row population—particularly the constitutional issues surrounding competency, dementia, and deteriorating health. The timing is significant because the case will be evaluated by a Court that no longer includes Justice Anthony Kennedy—often a key fifth vote in death penalty cases. Moreover, the Justices remain sharply divided on capital punishment in an age when imposition and application of the death penalty is waning. See generally Brandon L. Garrett, Alexander Jakubow, and Ankur Desai, The American Death Penalty Decline, 107 J. Crim. L. & Criminology 561 (2017).
Vernon Madison has been on Alabama’s death row for more than three decades after his conviction in the 1985 murder of a police officer. His conviction was overturned twice for constitutional violations at trial, and he then was convicted in a third trial in 1998. The state of Alabama twice has scheduled Madison’s execution, resulting in two eleventh-hour stays. In 2016, the Eleventh Circuit Court of Appeals granted a stay to consider Madison’s competency claim. The state appealed to the Supreme Court, where a 4–4 decision left the stay in place. In 2017, the Eleventh Circuit reviewed Madison’s habeas petition and found him incompetent to be executed, but the Supreme Court later reversed that decision. Alabama subsequently set Madison’s execution date for January 2018.
Over the past several years, Madison has suffered a series of debilitating strokes, causing memory loss, brain damage, slurred speech, blindness, and an inability to walk independently. His attorneys presented evidence of his condition in state court, arguing that he has no memory of the crime for which the state plans to execute him. Madison was denied relief, and the case currently pending is an appeal challenging that ruling.
Madison is represented by attorneys from the Alabama-based Equal Justice Initiative. They first argue that a state should not be permitted to execute a prisoner whose mental disability leaves him with no memory of the offense that led to his death sentence. Their argument centers on the Eighth Amendment’s prohibition on “cruel and unusual punishment,” U.S. Const. amend. VIII, and seeks to advance the Court’s decisions in Panetti v. Quarterman, 551 U.S. 930 (2007), and Ford v. Wainwright, 477 U.S. 399 (1986). In their second line of argumentation, Madison’s attorneys are asking the Court for a broader finding that the Eighth Amendment’s reliance on human dignity and evolving standards of decency should prevent the execution of individuals with impaired mental competency. National professional groups of psychologists and psychiatrists filed an amicus brief in support of the argument that executing an individual with severe vascular dementia constitutes cruel and unusual punishment.
In response, attorneys for the state of Alabama argue that the Eighth Amendment does not prohibit states from executing someone who cannot recall committing an offense. The state asserts that Madison’s lack of a personal, independent recollection of committing the specific act is irrelevant, as it is distinct from his knowledge that his impending execution is pursuant to a capital murder conviction. The state asserts that Madison does not meet the constitutional standard requiring that he lack a rational understanding of the reasons for his execution, and that his execution would not subvert societal values and conceptions of decency. They also argue that Madison’s execution would comport with the societal goals of capital punishment, primarily retribution and deterrence.
October 3
Knick v. Township of Scott
No. 17-647, 3d Cir.
Preview by Alex Davis
In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court held that a property owner seeking just compensation from a local government must exhaust state court procedures before bringing a takings claim in federal court. In this case, Petitioner urges the Court to reconsider that holding.
Knick v. Township of Scott arises from a local ordinance regulating cemeteries. The ordinance requires property owners to allow public access to private cemeteries during daytime hours. The township issued a notice of violation to the petitioner and ordered that she open her land to the public. The petitioner sought injunctive relief in federal court, alleging that the ordinance violated the Fifth and Fourteenth Amendments. The district court dismissed the claim because the petitioner failed to exhaust state court procedures before filing in federal court. The Third Circuit affirmed.
The petitioner argues that the Court should overturn Williamson County’s ripeness doctrine for two reasons: First, the petitioner asserts that just compensation suits in state court trigger issue and claim preclusion, which bar federal courts from ruling on any related takings claims. Second, the petitioner argues that even if a property owner files in state court, the government can remove the action to federal court, where the action must either be dismissed or remanded to state court under the ripeness doctrine. Petitioner’s Brief on the Merits at 11–14, Knick v. Township of Scott, No. 17-647 (U.S. filed May 29, 2018). Thus, the petitioner argues that the current ripeness doctrine is unworkable and “ban[s] property owners from asserting their federal constitutional rights in federal court.” Id. at 24.
The township presents a narrower interpretation of Williamson County. It argues that the decision provides a reasonable interpretation of 42 U.S.C. § 1983 (2018), which allows plaintiffs to sue in federal court if they are constitutionally harmed. See Brief for Respondents at 2, 7, Knick v. Township of Scott, No. 17-647 (U.S. filed July 30, 2018). The township argues that since the petitioner, like the property owner in Williamson County, had an opportunity to seek just compensation through state court procedures, she suffered no constitutional harm that could authorize a § 1983 suit. Id. at 19–20.
The government has filed an amicus brief in this case. It argues, like the township, that Williamson County merely provides an interpretation of § 1983. Like the petitioner, however, it also argues that Williamson County is unworkable in practice because of claim and issue preclusion. It asks the Court to either (1) clarify that under Williamson County local property owners can file suit in federal court under federal question jurisdiction; or (2) reconsider Williamson County’s interpretation of § 1983 and allow local property owners to bring suit under the statute without exhausting state court procedures. Brief for the United States as Amicus Curiae in Support of Vacatur and Remand at 6–8, Knick v. Township of Scott, No. 17-647 (U.S. filed July 30, 2018).
Thus, Knick gives the Court an opportunity to clarify complex precedent. The case could also provide insight into the Court’s willingness to overturn settled precedent.
New Prime Inc. v. Oliveira
No. 17-340, 1st Cir.
Preview by Michelle Divelbiss, Online Editor
The Federal Arbitration Act (“FAA”) has received a lot of attention in recent years in cases like American Express Co. v. Italian Colors Restaurant, AT&T Mobility v. Concepcion, and, just last term, Epic Systems Corp. v. Lewis. The FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1 (2018). The respondent is an independent contractor with the petitioner New Prime, Inc., an interstate trucking company. At issue is the respondent’s employment agreement with the petitioner, which contains a mandatory arbitration provision.
The petitioner contends that the First Circuit erred by interpreting “contracts of employment” broadly and by construing the term to mean not only contracts with employees, but also contracts with non-employees (e.g., independent contractors). The petitioner supports its position by pointing to a previous Supreme Court decision that found that “the Section 1 exemption must be given a ‘precise reading’ and ‘a narrow construction.’” Brief for Petitioner at 3, New Prime, Inc. v. Oliveira, No. 17-340 (U.S. filed May 14, 2018) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118–19 (2001)).
The respondent, however, argues that “contract of employment” means “any work agreement—including that of an independent contractor”—because the FAA explicitly provides that it does not apply to “any other class of workers engaged in foreign or interstate commerce.” Brief for Respondent at 1, New Prime, Inc. v. Oliveira, No. 17-340 (U.S. filed July 18, 2018); 9 U.S.C. § 1 (emphasis added). It is also of note that the petitioner’s drivers are classified either as employees or are paid a $100 bonus and classified as independent contractors. Both types of drivers perform identical work, blurring the line between employee and independent contractor.
The Court will look to (1) whether a dispute over the applicability of § 1 should be disputed in a court or should be resolved in arbitration, and (2) the meaning of the term “contracts of employment”—whether it applies to any “agreements to perform work” or only to those agreements between employers and employees. Brief for Respondent at i.
October 9
Stokeling v. United States
No. 17-5554, 11th Cir.
Preview by Michelle Divelbiss, Online Editor
The Armed Career Criminal Act of 1984 (“ACCA”) was enacted to focus on repeat offenders and mandates a 15-year sentence for anyone convicted of possession, transportation, or receipt of a firearm under 18 U.S.C. § 922(g) who has three or more prior convictions for “violent felony” or “serious drug offenses.” 18 U.S.C. § 924(e)(1) (2018). Violent felony is defined, in part, as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B) (emphasis added). Precedent indicates that “physical force,” as used in the statute, means “violent force” and that “violent” means a “substantial degree of force.”
The petitioner pled guilty to a violation of 18 U.S.C. § 922(g)(1). The petitioner had previous convictions, including a robbery that occurred in 1997. Florida law defines robbery as “the taking of money or property . . . from the person or custody of another, . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. § 812.13(1) (2018) (emphasis added).
The sentencing court found that the factual background of the petitioner’s 1997 robbery lacked sufficient force for the petitioner’s sentence to be enhanced under the ACCA. On appeal, the Eleventh Circuit found that “Florida robbery is categorically a crime of violence” and that the court below erred by looking to the specific facts of the robbery instead of looking to the statutory language and elements of the crime. United States v. Stokeling, 684 F. App’x 870, 871–72 (11th Cir. 2017).
The ACCA requires “violent felony” convictions, and the petitioner claims that robbery can occur in Florida with “no pain or injury.” Brief for Petitioner at 36, Stokeling v. United States, No. 17-5554 (U.S. filed June 11, 2018). The petitioner argues that because violent force is not necessarily an element of robbery, he should not have received an enhanced sentence under the ACCA. The United States responds that “[t]he history of the ACCA confirms that robbery offenses like Florida’s satisfy the elements clause” because when originally enacted, the ACCA initially included robbery as one of “only two predicate offenses.” Brief for the United States at 7, Stokeling v. United states, No. 17-5554 (U.S. filed Aug. 3, 2018).
The outcome of this case could potentially affect not only the sentences of convicted individuals, but also the legal strategy employed in defending a client charged with a crime that could potentially fall within the provisions of the ACCA.
United States v. Stitt
No. 17-765, 6th Cir.
Preview by Madeline Greathouse
The issue to be resolved in United States v. Stitt is the definition of “burglary” under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(2)(B)(ii) (2018). The Court will be forced to consider whether burglary under Tennessee’s aggravated burglary statute, Tenn. Code Ann. § 39-14-403 (2017), which expands the offense to unlawful invasions of vehicles adapted into dwellings, is consistent with the burglary that counts as an underlying offense in the ACCA.
The ACCA increases the penalties for felons in possession of firearms when they have three past convictions related to certain enumerated offenses. 18 U.S.C. § 924(e)(2)(B)(ii). One of these underlying offenses is burglary, which the ACCA originally defined as “unlawfully entering or remaining in a building with the intent to commit a crime.” Brief for Respondent at 1, United States v. Stitt, No. 17-765 (U.S. filed Aug. 14, 2018). Following a series of amendments, the definition of burglary was removed from the text of the ACCA in 1986. Id. at 8. Immediately thereafter, in Taylor v. United States, 495 U.S. 575 (1990), the Court was forced to consider whether the ACCA’s treatment of burglary changed as a result of the removed language. In Taylor, the Supreme Court maintained that the removal of the definition did not signify a change in burglary’s meaning. 495 U.S. at 589–90.
The government claims that Taylor was determined at a time when the majority of state penal codes took expansive views on burglary: “‘[M]ost States’ had at least one burglary statute protecting . . . mobile or nonpermanent homes.” Reply Brief for the United States at 1–2, United States v. Stitt, No. 17-765 (U.S. filed Sept. 13, 2018). The government posits that Taylor must be considered in light of this fact and in consideration of burglary’s underlying meaning: invasion of someone’s home regardless of what form that home takes. The government argues that if the Court affirms the Sixth Circuit’s restrictive definition, it will be removing burglary as a viable underlying offense in the ACCA. As a result, the government seeks a reversal of the Sixth Circuit’s decision, which would allow the case to proceed using the expanded definition of burglary.
The respondent’s argument rests on the notion that Congress would have explicitly expanded the scope of burglary under the ACCA if that was its intent. Instead, the respondent argues, Congress provided no new definition of burglary and the Court accordingly continued to make rulings based on the belief that burglaries can only occur in buildings and not in vehicles. The respondent notes that there have been multiple congressional proposals to recodify burglary’s definition under the ACCA, and that none of these proposals deviated from the traditional view, even though the Model Penal Code and several state codes expanded their meanings of burglary during this time. The respondent further asserts that even if the Court supports expanding the definition of burglary under the ACCA, it should not do so to the same extent as Tennessee, which includes invasion of “places ‘appurtenant to’ buildings or vehicles” in its burglary definition. Brief for Respondent at 6 (quoting Tenn. Code Ann. § 39-14-401(1) (2017)). In the alternative, the respondent asserts that the ACCA violates his right to a jury trial by giving judges the discretion to adjust penalties based on factual determinations, which fall outside of their judicial scope of authority and are reserved for jury deliberation.
If the Court decides to explicitly address the issue of the definition of burglary, the Court’s decision will resolve a split within and across circuits. The Court’s decision will also effectively determine whether the respondent will be sentenced to a maximum of 10 years in prison or, under the ACCA, a minimum of 15 years. Stitt was consolidated with the related case of United States v. Sims, and will be heard on October 9th in an abbreviated format.
October 10
Nielsen v. Preap
No. 16-1363, 9th Cir.
The Immigration and Nationality Act reads in relevant part that “[t]he Attorney General shall take into custody any alien who [meets the criteria listed in (A)–(D)] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” 8 U.S.C. § 1226(c) (2018).
One group of the respondents in Nielsen v. Preap filed a class action for habeas relief in the Northern District of California. Another group of the respondents similarly filed in the Western District of Washington. All are legal permanent residents whom immigration authorities took into custody, sometimes years after they had served out their sentences for criminal offenses that could lead to removal.
Thus, the issue before the Court is whether noncitizens who have been released from criminal custody become exempt from mandatory detention under 8 U.S.C. § 1226(c) if, following their release from criminal custody, the Department of Homeland Security does not immediately take them into immigration custody.
The district courts in California and Washington both certified the class and held “that Section 1226(c) unambiguously requires that individuals be detained immediately upon release from custody.” Preap v. Johnson, 303 F.R.D. 566, 577–88 (N.D. Cal. 2014); see also Khoury v. Asher, 3 F. Supp. 3d 877, 883–92 (W.D. Wash. 2014). The Ninth Circuit affirmed both decisions, furthering the circuit split regarding whether immigration detention under § 1226(c) must occur promptly after the noncitizen’s release from criminal custody.
The petitioners argue that that the Board of Immigration Appeals (“BIA”) in In Re Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc), interpreted the language in question to identify “when the Secretary’s duty . . . is triggered” and not as limiting paragraph (2)’s bar on releasing detained individuals “during their removal proceedings.” Brief for the Petitioners at 4, Nielsen v. Preap, No. 16-1363 (U.S. filed June 1, 2018). The petitioners argue that this is consistent with Congress’s purpose to “detain[] and remov[e] all criminal aliens.” Brief for the Petitioners at 23 (quoting Rojas, 23 I. & N. Dec. at 122). Petitioners further argue that the Court should defer to the BIA’s interpretation pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The respondents contend that the Ninth Circuit correctly interpreted § 1226(c), arguing that the conclusion reached below “is supported by the purpose of the statute” as well as the statute’s “plain meaning and structure.” Brief for Respondents at 11–12, Nielsen v. Preap, No. 12-1336 (U.S. filed Aug. 6, 2018).
The Court’s decision in this case should resolve the circuit split. Furthermore, because both sides claim their interpretation follows the plain language and construction of the statute, the Court’s decision may clarify the standard for statutory construction in similar instances where the statute at issue does not specify a timeframe for government action.
Air & Liquid Systems Corp. v. Devries
No. 17-1104, 3d Cir.
Preview by Ian K. Bryant-Smith
This case seeks to resolve a circuit split regarding tort liability in admiralty law. In Lindstrom v. A-C Liability Trust, 424 F.3d 488 (6th Cir. 2005), the Sixth Circuit adopted a bright-line rule holding that a manufacturer may not be held liable for damage caused by materials added to a product by a third party. In In re Asbestos Products Liability Litigation, 873 F.3d 232 (3d. Cir. 2017), the decision being appealed here, the Third Circuit adopted a fact-specific rule allowing manufacturers to be held liable for damage caused by materials added to a product by a third party if such an addition was reasonably foreseeable.
The respondents are the estates of two Navy sailors who were eventually diagnosed with cancer after being exposed to asbestos while working on Navy ships between the late 1950s and early 1980s. The petitioners are the manufacturers of shipboard equipment.
The equipment had internal parts made of asbestos, and also had to be insulated with asbestos surrounding it. The petitioners shipped the equipment with the internal asbestos, but the external asbestos was provided by the Navy. In addition, by the time the respondents were exposed to the equipment, even the internal asbestos had been replaced on numerous occasions by the Navy. Both the internal and external asbestos were necessary for the equipment to function properly, and the maintenance guide provided by the petitioners explained how to install it. Nothing in the materials provided by the petitioners indicated that asbestos was a hazard, even though it had been known that there were some dangers associated with asbestos as early at 1922.
The petitioners argue that traditional tort doctrine does not make manufacturers liable for materials that they did not produce, sell, or distribute. This would prevent them from being held liable for the asbestos, installed by the Navy, that made the respondents sick. There is no duty to protect others from harm done by third parties, they argue, and so they cannot be held responsible for the respondents developing cancer as a result of toxic substances that they did not provide. Further, they argue that the foreseeability-based test adopted by the Third Circuit is unworkable. The petitioners argue that requiring every manufacturer whose equipment might interact with asbestos to post a warning of its dangers would result in over-warning, especially on a ship where many systems are interconnected.
The respondents counter that the focus in determining liability should be on the conduct of the manufacturers rather than on their specific products. In this case, they argue, the petitioners clearly intended their equipment to be used with asbestos; it was shipped with internal asbestos already in place, and the maintenance guides provided guidance both for replacing the internal asbestos and for installing external asbestos. Because this intended use was known to be dangerous, the respondents argue, the petitioners had a duty to warn. The respondents further contend that the concept of foreseeability is far from an unworkable standard because it is at the core of common law tort doctrine and is used throughout maritime law. In order to keep admiralty law uniform, they contend, the fact-specific, foreseeability-based rule adopted by the Third Circuit should be affirmed.
October 29
Henry Schein Inc. v. Archer & White Sales Inc.
No. 17-1272, 5th Cir.
Preview by Allison Baker
In 2012, Archer and White Sales, Inc. (“Archer”), a distributor of medical equipment, brought suit against its business competitors Henry Schein, Inc., Danaher Corporation, and subsidiaries of Danaher Corporation (“Henry Schein”). In its complaint, Archer alleged that Henry Schein violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (2018), and the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Com. Code Ann. § 15.05 (West 2017), by engaging in price fixing and attempting to reduce industry competition. Archer sought monetary damages and injunctive relief from Henry Schein.
Henry Schein moved to compel arbitration pursuant to a contractual clause between the parties that referred disputes arising under the contract to arbitration consistent with rules promulgated by the American Arbitration Association (“AAA”). Archer argued that arbitration was inappropriate because the arbitration clause specifically excluded claims for injunctive relief. Henry Schein argued that under AAA rules it is the arbitrator, and not the court, who decides questions of arbitrability. In Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., the Fifth Circuit held that reference to AAA rules in an arbitration clause “presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.” 687 F.3d 671, 675 (5th Cir. 2012). However, when confronted with the question of arbitrability in Archer & White Sales, Inc. v. Henry Schein, Inc., the Fifth Circuit found that the express exclusion of claims for injunctive relief from the arbitration clause left the question of arbitrability “wholly groundless,” and that the court thus was not required to submit the question to an arbitrator. 878 F.3d 488, 497 (5th Cir. 2017); see generally Douglas v. Regions Bank, 757 F.3d 460 (5th Cir. 2014) (explaining and applying the “wholly groundless” test). Henry Schein appealed.
The question before the Supreme Court is whether courts may refuse to enforce a contractual arbitration clause under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16 (2018), if the question of arbitrability is “wholly groundless.”
Henry Schein contends that the Supreme Court should reject the “wholly groundless” standard because courts are prohibited from interfering once contracting parties agree to arbitration and the statutory text of the FAA does not recognize any such exception to the enforcement of arbitration clauses. Archer responds by arguing that, contrary to Henry Schein’s assertion, there is statutory support for the “wholly groundless” standard in the FAA, and that enforcing such an exception “avoids needless expense and delay.” Brief for the Respondent at 11, Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272 (U.S. filed Sept. 18, 2018).
The Chamber of Commerce of the United States filed an amicus brief supporting Henry Schein, arguing that the “wholly groundless” standard is inconsistent with precedent, and that finding otherwise would create uncertainty about the enforceability of arbitration clauses.
Lamps Plus Inc. v. Varela
No. 17-988, 9th Cir.
Preview by Aaron J. Aber
The issue presented in Lamps Plus, Inc. v. Varela is whether an employee waived his right to class arbitration when he signed an agreement that that did not explicitly prohibit class arbitration. The case arose after an employee of Lamps Plus, Frank Varela, filed a class action suit against the company for damages associated with a computer hack.
The district court denied Lamp Plus’s motion to compel bilateral arbitration, finding that the arbitration agreement Varela signed “[was] a contract of adhesion and ambiguous as to class arbitration.” Varela v. Lamps Plus, Inc., 701 F. App’x 670, 671 (9th Cir. 2017). The Ninth Circuit affirmed, relying on the holding of Stolt Nielsen S.A. v. AnimalFeeds International Corp. that a party “may not be compelled under the [Federal Arbitration Act] to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” 559 U.S. 662, 684 (2010). Applying California state contract law that “require[d] construction against Lamps Plus, the drafter,” the Ninth Circuit concluded the language of the agreement was ambiguous and supported an interpretation that a contractual basis existed for an agreement to class arbitration. Lamps Plus, Inc., 701 F. App’x at 673.
On appeal, Lamps Plus argues the Ninth Circuit erred by interpreting “language found in virtually any standard arbitration clause” as an agreement by Lamps Plus to engage in class arbitration. Brief for Petitioners at 3, Lamps Plus Inc. v. Varela, No. 17-988 (U.S. filed Jan. 10, 2018). They argue that the language on which the Ninth Circuit relied was not enough to support the “contractual basis” for agreeing to class arbitration that the Supreme Court required in Stolt Nielsen. Id. at 8–9. Varela argues the Ninth Circuit acted appropriately when it used “ordinary state-law principles” to interpret the arbitration agreement. Brief for Respondent at 54, Lamps Plus Inc. v. Varela, No. 17-988 (U.S. filed Mar. 14, 2018) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
This case purports to “reflect[] the Supreme Court’s continuing interest in arbitration,” and could “decide whether the [Federal Arbitration Act] trumps the National Labor Relations Act so as to allow class action waivers in employment agreements.” Alan S. Kaplinsky & Mark J. Levin, U.S. Supreme Court Decision in Lamps Plus Will Shed More Light on Class Arbitration, Nat’l L. Rev. (May 3, 2018), https://www.natlawreview.com/article/us-supreme-court-decision-lamps-plus-will-shed-more-light-class-arbitration.
October 30
Washington State Department of Licensing v. Cougar Den Inc.
No. 16-1498, Wash.
Preview by Sean Lowry*
The Washington State Department of Licensing (the “Department”) asks the Court to determine whether “the right . . . to travel upon all public highways” pursuant to the Yakama Treaty of 1855 (the “Treaty”) allows tribal members to avoid state fuel taxes on off-reservation commercial activities that use public highways. Treaty with the Yakimas art. III, June 9, 1855, 12 Stat. 951, 953.
Cougar Den, a tribal corporation (organized under the Yakima Nation), sells motor fuel to other Yakima-owned gas stations, which then sell the fuel to the public. In 2013, Cougar Den hired a non-tribal contractor to transport fuel across the Oregon-Washington border and into the Yakima Indian Reservation. In December 2013, the Department issued $3.6 million in tax assessments, penalties, and fees against Cougar Den for transporting the fuel across state lines without paying the state’s wholesale excise tax on motor fuel.
The Washington Supreme Court, sitting en banc, ruled 7–2 in favor of Cougar Den, holding that, under the Treaty’s right to travel, tribal corporations are entitled to import fuel without holding an importer’s license and without paying state fuel taxes.
In its petition for certiorari, the Department makes three general arguments. First, it argues that Ninth Circuit precedent provides that the treaty’s “right to travel” clause exempts activity related to the use of public highways, but does not establish uninhibited trade among tribal entities. The Department relies on King Mountain Tobacco Co. v. McKenna, 768 F.3d 989 (9th Cir 2014), which upheld Washington’s requirement for tribal tobacco manufacturers to contribute escrow payments to reimburse the state for public health costs. Second, the Department argues that the Washington Supreme Court’s decision conflicts with Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), which stated that tribal members going beyond reservation boundaries are subject to nondiscriminatory state taxes absent express federal law to the contrary. Third, the Department contends that such a tax exemption will cost Washington hundreds of millions of dollars in fuel tax revenue. The U.S. Solicitor General has filed an amicus brief in support of the Department and has asked to participate in oral arguments.
In its reply brief, Cougar Den makes two main arguments. First, it argues that the Washington Supreme Court’s interpretation of the Treaty’s specific “right to travel” clause is consistent with Ninth Circuit precedent. Cougar Den mostly relies on United States v. Smiskin, in which the Ninth Circuit held that a Washington regulation requiring unlicensed wholesalers to notify officials before transporting untaxed cigarettes into the state violated the Treaty’s “right to transport goods to market without restriction.” 487 F.3d 1260, 1266 (9th Cir. 2007). Cougar Den argues that the taxes and fees in the instant case are more like the notice requirement in Smiskin rather than the escrow payments in King Mountain because they were both triggered when tribal corporations traveled across the Washington border. Second, Cougar Den argues that Court precedent says that treaties should be interpreted in a historical context as the tribes viewed them because they had no choice but to consent to the terms. See Choctaw Nation v. Oklahoma, 397 U.S. 620, 630–31 (1970). Cougar Den cites district and appellate decisions within the Ninth Circuit that upheld a historical understanding of a broad “right to travel” based on government promises to Yakima members when the Treaty was signed.
Other states encompassing tribal reservations are eyeing Cougar Den. Associations representing state tax administrators and the attorneys general of several states have filed amicus briefs in support of the Department. In their brief, the states declare that “[t]his is not a parochial controversy affecting only one State and one tribe or its members.” Brief Amicus Curiae of the States of Idaho et al. at 2, Wash. State Department of Licensing v. Cougar Den, Inc., No. 16-1498 (U.S. filed July 17, 2017).
*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.
Garza v. Idaho
No. 17-1026, Idaho
Preview by Clay Wild
In Strickland v. Washington, the Supreme Court delineated a two-part test for assessing a criminal defendant’s claim of ineffective assistance of counsel. 466 U.S. 668 (1984). Under Strickland, the defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant. Id. at 688, 692.
Sixteen years later, the Court applied this test to an ineffective assistance claim where counsel failed to file a notice of appeal, reiterating its longstanding principle that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores‑Ortega, 528 U.S. 470, 477 (2000). Importantly, the Court in Flores-Ortega held that a failure to appeal amounts to a total forfeiture of a judicial proceeding, and that the defendant is accordingly presumed to have suffered prejudice.
In the present case, Gilberto Garza, Jr., entered into plea agreements with the government on two charges. Because the agreements included appeal waivers, his attorney refused his request to file notice of an appeal. Garza claimed ineffective assistance and petitioned for postconviction relief, which was summarily denied. Garza’s appeal to the Court raises the question of whether Flores-Ortega’s “presumption of prejudice,” id. at 483, applies in cases where the trial attorney disregards a criminal defendant’s express desire to appeal specifically because the defendant waived his right to do so as a condition of a plea agreement.
Eight circuits have held that the presumption applies while two others have held it does not. Garza argues that the majority rule is justified by three primary underpinnings of Flores‑Ortega. First, Garza argues that failure to file an appeal causes the forfeiture of the entire proceeding. Second, he contends that not filing an appeal robs the defendant of a “‘fundamental decision’ entrusted to him alone.” Brief for Petitioner at 1, Garza v. Idaho, No. 17-1026 (U.S. filed Aug. 10, 2018) (quoting Flores-Ortega, 428 U.S. at 477). Third, Garza asserts that refusing the presumption would be unfair to a pro se defendant who would be forced to specify in great detail the prejudice he suffered. Garza points out that appeal waivers do not exclude all appeals, such as those for breach of the plea agreement or involuntary submission to the agreement, and that not presuming prejudice is both impractical and inefficient.
The state notes that Garza’s appeal challenges his sentence, for which the right to appeal is clearly waived by his plea agreements, and suggests that counsel’s refusal to appeal the sentence was not deficient performance. Rather, the state argues, it was a strategic choice intended to prevent the defendant from putting his agreement at risk by breaching its terms. The state further suggests that counsel’s inaction in this case did not prejudice Garza because Garza could not establish that he had a right to the appeal sought. Finally, the state refutes Garza’s belief that practical considerations support his position.
The decision in this case will not only resolve a lopsided circuit split but also could draw a bright-line rule for assessing whether a presumption of prejudice should apply for a defendant whose counsel disregarded his instruction to appeal when his plea agreement waived his right to do so.
October 31
Jam v. International Finance Corp.
No. 17-1011, D.C. Cir.
Preview by Michelle Divelbiss, Online Editor
As we saw last term in cases such as WesternGeco LLC v. ION Geophysical Corp. and Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd., the Supreme Court continues to address issues of international importance. Before the Court in October is the issue of immunity for the commercial acts of international organizations.
The respondent, International Finance Corporation (“IFC”), is an international organization that provides loans to businesses in developing countries. The IFC provided a loan to a company to build a power plant in India. Due to potential environmental harm, the IFC supervised the project and conditioned the loan on compliance with certain standards. The petitioners are Indian farmers and fishermen, along with other affected entities. The petitioners allege that the IFC failed to adequately supervise the construction and, as a result of that failure, caused foreseeable environmental harms.
This case hinges on an interpretation of the International Organizations Immunities Act (“IOIA”) and whether the IFC has immunity under the IOIA for its actions. The IOIA provides international organizations with the same immunity afforded to foreign governments. At the time the IOIA was passed, foreign governments received “virtually absolute immunity.” Samantar v. Yousuf, 560 U.S. 305, 311–13 (2010). Passed some decades after the IOIA, the Foreign Sovereign Immunities Act (“FSIA”) provides immunity to foreign governments, but the immunity is not absolute—there is an exception for commercial activity.
The petitioners argue that because the IOIA provides for the same immunity given to foreign governments, the IOIA’s immunity provisions are subject to any exceptions in the FSIA. Therefore, the petitioners argue, the IFC is not entitled to immunity for commercial activity under the IOIA.
The IFC, however, claims that despite any alleged wrongdoing, the IOIA provides immunity from suit. The IFC explains that immunity derived from the IOIA must be interpreted as the immunity afforded to foreign governments at the time the IOIA was enacted. That is, the immunity derived from the IOIA is “virtually absolute.” Respondent argues that because the FSIA and the commercial activity exception did not exist when the IOIA was enacted, Congress did not intend for such an exception to apply.
Whatever the outcome, this case is likely to affect international organizations and their projects all over the world.
Frank v. Gaos
No. 17-961, 9th Cir.
Preview by Michelle Divelbiss, Online Editor
In the world of remedies, the doctrine of cy pres permits money from a class action settlement to be distributed, in whole or in part, to a charitable organization. The basis for this type of award is rooted in the law of equity, and cy pres is derived from a phrase that translates to “as close as possible.” Democratic Cent. Comm. v. Washington Metro. Area Transit Comm’n, 84 F.3d 451, 455 n.1 (D.C. Cir. 1996). A cy pres award may be deemed appropriate when it is not possible to put wronged individuals back in a rightful position. In some situations, class members may receive their share of the damages but there may be extra money that was not distributed. The extra money is then distributed to one or more charitable organizations related to the class plaintiffs’ alleged injuries. In other situations, the amount of money may be too small to justify its distribution to class members, and the entire sum is donated to one or more charitable organizations.
Paloma Gaos filed a putative class action against Google, alleging invasion of privacy and other causes of action. The parties entered into settlement negotiations and ultimately agreed that Google would pay $8.5 million. The attorneys for the class sought more than $2 million in legal fees (despite a lodestar of less than half that amount). Unnamed class members would receive none of the $8.5 million and, after attorneys’ fees, the remainder would be paid as a cy pres award to charitable organizations. The class attorneys and Google selected six organizations, some of which are associated with Chicago-Kent College of Law, Stanford Law School, and Harvard University.
In bringing this appeal, the petitioners and unnamed class members Theodore H. Frank and Melissa Holyoak object to the class certification, the settlement, and the attorneys’ fees. Frank and Holyoak also allege that the selection of the organizations was improper because both Google and the attorneys failed to disclose their personal connections to the cy pres recipients and the aforementioned educational institutions are alma maters of the class attorneys. Further, the Ninth Circuit did not take issue with the fact that Google has existing connections to and business arrangements with these institutions.
Under Federal Rule of Civil Procedure 32(e)(2), a class action settlement may be approved by a court only if it is “fair, reasonable, and adequate.” Respondents claim that the cy pres award is proper because it meets the three required criteria. They argue that (1) direct distribution to class members is not feasible because it would provide for only four cents to each class member; (2) that the organizations meet the nexus requirement because they focus on internet and privacy rights; and (3) that the organizations are independent of the parties and the petitioners have failed to prove otherwise.
The Circuits are somewhat split on this issue. Distribution of class action settlements to class members is required in the Third, Fifth, Seventh, and Eighth Circuits before any settlement money can be used for other purposes. The Ninth Circuit found that distributing the award to charitable organizations under the cy pres doctrine and not to class members satisfied the “fair, reasonable, and adequate” requirement.
It seems that the Supreme Court has been waiting for the right cy pres case in order to address multiple issues associated with class action remedies. In a denial of certiorari for Marek v. Lane in 2013, Chief Justice Roberts hinted that the Court was waiting for a case that would allow it to weigh in on equitable remedies and provide criteria for the use of such remedies. This case presents a prime opportunity for the Supreme Court to finally do just that.
