Previewing the Supreme Court’s Fall Term 2018

The Supreme Court has agreed to hear the following cases for the upcoming term. If Brett Kavanaugh is not confirmed by the Senate, the Court would have only 8 Justices and be at risk of having some split (4-4) decisions.

Cases with argument dates in October:

Mount Lemmon Fire District v. Guido (No. 17-587): This case involves a circuit split over a question of interpretation of the Age Discrimination in Employment Act (ADEA). The question is whether the 20 employee minimum that is applied to private employers under the Act also applies to a political subdivision of the state. The 6th, 7th, 8th, and 10th Circuits have held that it does, while the 9th Circuit in this case held that the ADEA applies to all state political subdivisions and does not have a size requirement.

In this case John Guido and Dennis Rankin began working for the Petitioner in 2000 and rose to the position of Captain by 2009. Both had previous experience and were, at the time, two of the oldest men in the department. Both men were terminated in 2009 at the time of a budget shortage and were told it was because they did not have wildland assignments. The men filed charges with the EEOC alleging discrimination under the ADEA. The Petitioner moved for summary judgment at the trial court, alleging that the ADEA only applied to employers with 20 or more employees and the court ruled in their favor. The 9th Circuit reversed the decision of the trial court (859 F.3d 1168).

Weyerhaeuser Company v. U.S. Fish and Wildlife Service (No. 17-71): This case involves claims under the Endangered Species Act (ESA). The questions presented are whether the ESA prohibits designation of private land as unoccupied critical habitat if it is not habitat or essential to the conservation of the species and whether an agency decision to exclude an area from designation as a critical habitat based on economic impact of the designation is subject to judicial review.

In this case, the FWS designated 1500 acres of private land as part of the critical habitat of the dusky gopher frog even though the land contains no dusky gopher frogs and is not suitable for their survival. The FWS concluded that this designation could cost $34 million in development value of the land but found that this cost was not disproportionate to biological benefits of the designation. The Fifth Circuit upheld the designation (827 F.3d 452).

Gundy v. U.S (17-6086): Cert. in this case was only granted on the fourth issue presented by the petitioner, which is whether the Sex Offender Notification and Registration Act (SORNA) delegation to the Attorney General to issue regulations under 42 U.S.C. § 16913(d) violates the non-delegation doctrine.

Gundy had been convicted of state sex offenses in Maryland that required his registration on the sex offender registry on October 3, 2005. For this he was sentenced to 20 years in prison with 10 years suspended. At the time of the conviction he was on federal supervised release for a drug crime in Pennsylvania and was sentenced to serve a 24 month consecutive sentence for the parole violation. He was paroled by Maryland in 2011 but remained in custody now by the federal bureau of prisons (BOP) for the parole violation sentence and was transferred to a prison in Pennsylvania. After being transferred to Pennsylvania the BOP determined that he could serve the last part of his sentence in a halfway house in NY and he was transferred through un-escorted commitment to the Bronx facility, where he stayed until August 2012 when he was released and then remained living in the Bronx. He was charged in October 2012 for not registering as a sex offender under 18 U.S.C. 2250(a) and traveling interstate. He asked the district court to dismiss the charges claiming that he could not be charged under that statute since he was under BOP custody with at least 30 days remaining and thus not required to register under SORNA. The district court dismissed the charges, but the 2nd Circuit reinstated them claiming the Attorney General applied SORNA to pre-Act offenders in 2008 and thus he needed to register before he was transferred to Pennsylvania. He was convicted in the district court after a bench trial and the Second Circuit upheld his conviction.

Madison v. Alabama (No. 17-7505): The questions presented in this case are whether the 8th Amendment and previous decisions of the Court in Panetti and Ford allow a state to execute a prisoner whose mental disability means that he no longer has memory of the commission of the offense and whether the 8th Amendment prohibition against cruel and unusual punishment bars the execution of a prisoner whose competency has been deteriorated by dementia, multiple strokes, and a degenerative medical condition that has left the prisoner with no memory of the crime or an understanding of the circumstances of his execution.

Madison was convicted and sentenced to death in Alabama and has been on death row for over 30 years. He is now 67 and suffers from vascular dementia, cannot remember the crime he was convicted of, has dead brain tissue, small vessel ischemia, slurred speech, can no longer walk on his own, and is incontinent. He previously argued that he was not competent to be executed. The Supreme Court previously reversed the 11th Circuits habeas relief and declined to address the merits of his claim outside of the antiterrorism and effective death penalty act (AEDPA) context.

Knick v. Township of Scott, Pennsylvania (17-647): This case asks whether the Court should reconsider Williamson County Regional Planning Commission, v. Hamilton Bank, which required homeowners to exhaust state court remedies before federal claims would ripen. In the alternative, the petitioner asked the Court to consider if Williamson County’s ripeness doctrine bars review of takings claims that assert a law causes an unconstitutional taking on its face as the 3rd, 6th, 9th, and 10th Circuits have held or if facial claims are exempt from Williamson County as the 1st, 4th, and 7th Circuits have held.

The case involved a dispute over an ordinance in Pennsylvania that required public and governmental access to private property with burial grounds. It is important to note that Pennsylvania does not have a law against backyard burials, so it is not uncommon for there to be small family burial plots on private land. The petitioner claimed that she did not have any cemeteries on her land. A Township Code Enforcer came onto her property and identified gravestones/markers on her land and said it was a cemetery making the land fall under the ordinance. The appellate court decision is available at 862 F.3d 310.

New Prime Inc. v. Oliveira (17-340): The questions before the Court in this case are whether the Federal Arbitration Act (FAA) section 1 exemption for employment contracts of seamen, railroad, or other workers engaged in foreign or interstate commerce applies only to employment contracts or is it also applicable to independent contractor agreements. The other question is whether a dispute over whether section 1 applies should be decided in arbitration according to a valid delegation clause.

New Prime is an interstate trucking company. The company has an apprentice program, which includes a four day training program followed by training in a vehicle with an experienced truck driver who provides on the job training. After completing 10,000 miles as either a driver or passenger, the student takes the Commercial Driving License Test and then drive 30,000 more miles as a driver trainee and have one more week of classes. After finishing the program, drivers can choose to become an independent contract driver with the company or a company driver and as long as the student spends one year in either position, tuition for the program does not need to be paid. The respondent was a part of this program and chose to become an independent contractor at the end of the apprenticeship. He was unhappy as an independent contractor and felt that the company was short changing him so he left, but was hired back a month later as a company driver. He felt he was being treated the same as a company driver and brought a class action suit against petitioner. Appellate court decision is available at 857 F.3d 7.

Stokeling v. U.S. (17-5554): This case involves the Armed Career Criminal Act (ACCA) and whether a robbery offense that includes the element of “overcoming victim resistance” is a violent felony under the Act even if the state appellate courts have interpreted the provision as only requiring slight force to overcome resistance.

Stokeling has been convicted in an unarmed robbery, armed robbery, and sale and manufacture of cocaine charges in Florida back in 1997 on three separate dockets. He plead guilty to possession of a firearm and ammunition in 2016. The issue was that at sentencing, the recommendation was to include both the unarmed and armed robberies as ACCA predicates requiring stiffer sentencing. The district court did not include the unarmed robbery in its calculation. The 11th Circuit vacated his sentence and remanded to the district court to include the unarmed robbery as an ACCA predicate as originally suggested since U.S. v. Fritts held that a robbery conviction under the Florida statute is a violent felony under the elements of ACCA (684 Fed.Appx. 870).

U.S. v. Sims: (17-766): This case asks the court to decide if burglary of a non-permanent/mobile structure that has been adapted for overnight accommodation is burglary under the Armed Career Criminal Act. The issue for Sims is that the Arkansas burglary statute he was convicted under includes vehicles adapted for overnight use, which he claims was too broad to be included for consideration under ACCA. The appellate court decision is available at 854 F.3d 1037.

U.S. v. Stitt: (17-765): This case was consolidated with U.S. v. Sims. Stitt was convicted under a Tennessee statute that also includes vehicles adapted for overnight accommodation for the crime of burglary. The appellate court decision is available at 860 F.3d 854.

Air and Liquid Systems Corp. v. Devries (17-1104): The issue is whether defendants can be held liable under maritime law for injuries from products they did not make, sell, or distribute.

The Circuit Court consolidated two separate lower court cases where plaintiffs alleged health defects caused by asbestos containing parts added on to petitioner’s products and used on ships (873 F.3d 232).

Nielsen v. Preap (16-1363): The issue before the Court is whether a criminal alien can become exempt from mandatory detention if the Department of Homeland Security does not take him into immigration custody immediately upon his release from criminal custody. The appellate decision is available at 831 F.3d 1193.

Cases with argument dates in November:

Lamps Plus Inc. v. Varela: (17-988): The issue is whether the Federal Arbitration Act (FAA) bars a state law interpretation of an arbitration agreement that would authorize class arbitration based only on general language commonly used in arbitration agreements.

The respondent is an employee of the petitioner and signed an arbitration agreement that includes a provision that the company and employee mutually consent to arbitration to settle all claims arising between the parties in connection with the employee’s employment. The claims in this case arise from a phishing attack where the email of a high level company employee was spoofed to make it seem that he was requesting W2 forms from employees and the respondent replied. The appellate decision is available at 701 F.Appx. 670.

Henry Schein Inc. v. Archer and White Sales, Inc. (17-1272): The issue is whether the Federal Arbitration Act allows a court to decline to enforce an agreement that delegates questions of arbitrability to an arbitrator if the court concludes that the grounds for arbitrability are wholly groundless.

The petitioner manufactures and distributes dental equipment and the respondent distributed, sold, and repaired dental equipment on behalf of many companies including petitioner’s. The respondent was suing on antitrust claims and the petitioner claimed that the distribution agreement compelled arbitration. The lower court decision is available at 878 F.3d 488.

Washington State Department of Licensing v. Cougar Den, Inc. (16-1498): The issue is whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on commercial activities off the reservation that make use of public highways.

The treaty provides the tribe members with the right to travel on all public highways. Respondent is a wholesale fuel distributor owned by a Yakama Nation member and imports fuel into Washington but does not pay state tax on fuel. The Washington Supreme Court ruled that any trade, traveling, or importation that requires the use of public roads cannot be taxed under the Treaty (392 P.3d 1014).

Garza v. Idaho (17-1026): The issue is whether the presumption of prejudice from Roe v. Flores-Oretga applies when a criminal defendant instructs his trial counsel to file a notice of appeal, but the counsel does not because the defendant’s plea deal included an appeal waiver.

The defendant entered a plea to aggravated assault and possession of a controlled substance in 2015. Both plea agreements included appeal waiver clauses. At sentencing the court notified the defendant of his right to file an appeal and his right to counsel if he chose to file an appeal. The Supreme Court of Idaho noted that there is a Circuit split over whether Flores-Ortega applies when a plea deal includes an appeal waiver but decided that the presumption would not apply (405 P.3d576).

Frank v. Gaos (17-961): The issue is in what circumstances would a cy pres award of class action proceeds that provide no direct relief to class members supports class certification and complies with the requirement that a settlement binding class members must be fair, reasonable, and adequate.

Respondent filed a class action lawsuit in the Northern District of California against Google alleging damages from disclosure of her search terms to third party websites. Her case was originally dismissed for failure to state an injury that would support Article III standing, but after an amended complaint, the parties stipulated that her action would be consolidated with a similar one for settlement proceedings. Class counsel and Google proposed an $8.5 million settlement in which the class members would receive nothing other than incentive awards of a few thousand dollars to the named plaintiffs and the money would go to organizations that agreed to devote money to promote public awareness and research into protecting privacy on the internet. The petitioners objected to the proposed settlement. The 9th Circuit approved the settlement (869 F.3d 737).

Jam v. Int’l Finance Corp. (17-1011): The issue is whether the International Organizations Immunities Act, which provides international organizations immunity from suit much like foreign governments provides the same immunity to international organizations that foreign governments have under the Foreign Sovereign Immunities Act.

The case involves a power plant development project in India financed by the respondent. The power plant has damaged the surrounding environment and the petitioners are farmers and fishermen who have been damaged by the power plant. The D.C. Circuit affirmed the holding of the district court that respondent was immune from suit (860 F.3d 703).

Virginia Uranium v. Warren (16-1275): The issue in the case is whether the Atomic Energy Act preempts state law that on its face regulates activity under its jurisdiction, but has the effect of regulating activities entrusted to the Nuclear Regulatory Commission.

The Commonwealth of Virginia banned uranium development out of radiological safety considerations. Petitioners filed an action to enjoin enforcement of the ban. The district court dismissed the complaint and held that the ban was not preempted and the 4th Circuit affirmed (848 F.3d 590).

Sturgeon v. Frost (17-949): The issue in the case is whether the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the National Park Service (NPS) from exercising regulatory control over state, native corporation, and private land located within the boundaries of the national park system in Alaska.

ANILCA expanded the national park system in Alaska by over 43 million acres. It also included an assurance that the lands newly surrounded by the expansion would be free from federal control unless they were public lands. So state, private, or native lands that were now within the boundary of federal lands were not to be subject to regulation by the federal government. In 1996 NPS changed course and decided to extend its regulations to all non-federal lands in Alaska. Petitioner has hunted moose in the non-federal area for 40 years but uses a hovercraft on the Nation River (which includes federal lands) to get there. Alaska law permits his use of the hovercraft on the river. NPS officers told him he could not use a hovercraft on the river within the federal area. Petitioner filed suit against the NPS to enjoin the agency from enforcing its hovercraft regulations on the river. The district court granted summary judgment for the NPS and the 9th Circuit affirmed holding that since the hovercraft ban applies to all federal owned lands and waters administered by the NPS and all navigable waters within national parks it is not solely regulating public lands and even if the land under the waters was conveyed to the state, NPS would still have the right to regulate activities on the waters that lie within the federally owned land (872 F.3d 927).

BNSF Railway Company v. Loos (17-1042): The issue in the case is whether a railroad’s payment to an employee for time lost from work is subject to taxes under the Railroad Retirement Tax Act (RRTA).

Respondent received a jury verdict for lost wages stemming from a workplace injury. The petitioner asked the district court to reduce the award by the amount necessary to cover payroll taxes owed under the RRTA, but the district court refused saying that the award was not taxable compensation under the RRTA. The 8th Circuit affirmed (865 F.3d 1106).

Bucklew v. Precythe (17-8151): There are four issues presented in this case. First, should a court hearing an as applied challenge to a state’s execution method based on the inmate’s rare medical condition assume that medical personnel are competent to handle the inmate’s condition and insure that the procedure go as planned. Second, must evidence comparing the proposed execution method to an alternative proposed by the inmate be offered through a single witness or should the court look at the record as a whole to determine if a factfinder could conclude that the methods pose significantly different risks to the inmate. Third, is whether the 8th Amendment requires the inmate to propose an adequate alternative method of execution when making an as applied challenge to the state’s execution method based on his severe and rare medical condition. Finally, the issue is whether the petitioner has met the burden under Glossip v. Gross to prove what procedure would be used to administer the proposed alternative method of execution, the severity and longevity of pain likely to be produced, and how they compare to the state’s proposed method.

The petitioner suffers from cavernous hemangioma which is a condition where blood-filled tumors grow in his head, neck, and throat and the tumors can rupture and bleed easily. He also suffers from damage to his veins. Execution by lethal injection would likely cause extended suffering and the feeling of suffocation from obstruction of his airway. The 8th Circuit ruled that the execution would not be cruel and unusual solely because petitioner failed to prove that his proposed alternative would substantially reduce his likelihood of suffering (883 F.3d 1087).

Culbertson v. Berryhill (17-773): The issue in the case is whether fees subject to a statutory 25% cap apply only to fees for representation in court as held by the 6th, 9th, and 10th Circuits; or, whether it also applies to fees before the agency as held by the 4th, 5th, and 11th Circuits.

Petitioner represented a client filing for Social Security Disability benefits. The Administrative Law Judge determined that his client was not disabled and the Appeals Council denied review. The district court reversed and remanded the agency’s decision and awarded $4107.27 in attorney’s fees under the Equal Access to Justice Act (EAJA). At this point petitioner and his client entered into a fee agreement where any future work would be 25% of any past due benefits minus the EAJA award. The agency awarded his client $35,211 for past due benefits and pursuant to the statute awarded petitioner $2865 in attorney’s fees for representing her, which would come out of the past due award. The client then asked the district court to authorize $4488.48 in attorney’s fees. The district court determined that there was a 25% cap on attorney’s fees both before the agency and the court and would only award $1623.48. Petitioner also represented another client and had a similar decision from the district court. On appeal, the 11th Circuit affirmed the district court orders (861 F.3d 1197).

Republic of Sudan v. Harrison (16-1094): The issue is whether the 2nd Circuit erred in ruling that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act (FSIA) can serve the foreign state by mail, addressed to the head of the ministry of foreign affairs via or in care of the foreign state’s diplomatic mission in the U.S. despite U.S. requirements under the Vienna Convention to preserve mission inviolability.

Sailors injured in the bombing of the U.S.S. Cole sought to hold the government of Sudan responsible for the terrorist attack in which they were injured. They asked the clerk of the court to mail the summons and complaint to the Minister of Foreign Affairs at the Sudanese embassy in Washington, D.C. The government of Sudan never appeared in the District of D.C. court and a default judgment was awarded, which was registered in the Southern District of New York for execution. In the 2nd Circuit the government of Sudan argued that the default judgment should be vacated since the government was not properly served under FSIA. However, the 2nd Circuit ruled that mailing via or through the diplomatic mission was authorized (802 F.3d 399). This ruling conflicts with the D.C., 5th, and 7th Circuits.

Cases not yet scheduled for argument:

Apple, Inc. v. Pepper (17-204)

Merck Sharp & Dohme Corp. v. Albrecht (17-290)

Dawson v. Steager (17-419)

Herrera v. Wyoming (17-532)

Fourth Estate Public Benefit Corp. v. (17-571)

Gamble v. U.S. (17-646)

Lorenzo v. SEC (17-1077)

Tombs v. Indiana (17-1091)

Nutraceutical Corp. v. Lambert (17-1094)

Royal v. Murphy (17-1107)

Nieves v. Bartlett (17-1174)

Biestek v. Berryhill (17-1184)

Healsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. (17-1229)

Franchise Tax Board of California v. Hyatt (17-1299)

Obduskey v. McCarthy Holthus LLP (17-1307)

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