SCOTUScast

On November 1, 2017, the Supreme Court heard argument in Artis v. District of Columbia, a case involving a dispute over the meaning of tolling as the term is used in the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d).In April 2009, Stephanie Artis, a temporary employee for DC’s Department of Health (DOH), filed a claim with the U.S. Equal Employment Opportunity Commission (EEOC) alleging discrimination by her supervisor, Gerard Brown. Artis followed the charge with a series of grievances challenging notices of proposed infractions against her and alleging other violations of employee rights by Brown. The DOH terminated her employment in November 2010, and she lodged a final grievance in January 2011, alleging the termination was unlawful retaliation.Artis filed suit against DC in federal district court in December 2011. She asserted a federal claim of unlawful termination in violation of Title VII of the Civil Rights Act of 1964, along with various other claims arising under DC statutes and the common law. In June 2014, the district court granted DC judgment on the pleadings and dismissed Artis’ sole federal claim under Title VII. Given the facial deficiency of that claim, the district court found no basis for exercising supplemental jurisdiction over Artis’ remaining non-federal claims. Fifty-nine days later Artis refiled those remaining claims in DC Superior Court. DC responded with a motion for dismissal on the grounds that the claims were time-barred based on the relevant statutes of limitations plus 28 U.S.C. § 1367(d) of the federal supplemental jurisdiction statute. The Superior Court agreed, concluding that § 1367(d) does not suspend state statutes of limitations at the time of an unsuccessful federal filing, but rather creates a thirty-day period for a claimant to file actions over which the U.S. District Court lacked jurisdiction. The language of 1367(d) provides that statutes of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” On appeal to the DC Court of Appeals, Artis argued that there were nearly two years remaining on the statute of limitations when she filed her suit in the federal district court, and under the language of 1367(d) she had that period (plus thirty days) to file her claims in the Superior Court after her case was dismissed. DC countered that “tolled” should merely mean that a thirty-day “grace period” applies if the limitations period for the non-federal claims expires (as it would have in Artis’ case) while the federal claim is pending in federal court. The DC Court of Appeals found DC’s “grace period” reading more persuasive. As Artis had failed to refile her remaining claims within that grace period following dismissal, the Court of Appeals deemed them time-barred and affirmed the judgment of the Superior Court.The U.S. Supreme Court granted certiorari to address the dueling interpretations of § 1367(d): whether that provision suspends the limitations period for a non-federal claim while the claim is pending and for 30 days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.To discuss the case, we have Misha Tseytlin, Solicitor General of Wisconsin.

On October 30, 2017, the Supreme Court heard argument in Wilson v. Sellers, a case regarding the standard of review federal courts should apply to a final state court denial of habeas relief.In 1996, Marion Wilson, Jr. was sentenced to death after being found guilty of a series of violent crimes culminating in the murder of Donovan Parks. At sentencing Wilson’s counsel argued that Wilson was not the triggerman and offered evidence of his troubled childhood; in response the state prosecutor highlighted Wilson’s criminal history and gang activity. Wilson’s conviction and sentence were affirmed on direct appeal. Wilson sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in his investigation of mitigation evidence during the trial phase of the murder trial. He offered lay testimony about his childhood and expert testimony regarding his judgment skills. The superior court denied habeas relief, concluding that the lay testimony was cumulative of other evidence offered at trial as well as inadmissible, and that the expert testimony would not have changed the outcome of the trial. In a one-sentence order, the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal.Wilson then sought habeas relief in federal district court. The district court denied relief, but granted a certificate of appealability on the issue of the effectiveness of Wilson’s trial counsel at sentencing. A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the denial of habeas relief. Treating the Georgia Supreme Court’s summary refusal to grant a certificate of probable cause to appeal as the final state court decision on the merits, the Eleventh Circuit applied the test outlined by the U.S. Supreme Court in the 2011 case Harrington v. Richter, asking whether there was any reasonable basis for the Georgia Supreme Court to deny relief. The panel answered that question in the affirmative. Wilson obtained rehearing en banc before the full Eleventh Circuit, however, arguing that under the 1991 decision of the U.S. Supreme Court in Ylst v. Nunnemaker, the panel should instead have looked “through” the Georgia Supreme Court’s ruling back to “the last reasoned decision” by the state courts. By a vote of 6-5 the Eleventh Circuit disagreed, holding that federal courts need not “look through” a summary decision on the merits to review the reasoning of the lower state court. The Supreme Court subsequently granted certiorari to address whether its decision in Harrington v. Richter abrogates the presumption set forth in Ylst v. Nunnemaker that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision.To discuss the case, we have Lee Rudofsky, Solicitor General of Arkansas.

On October 11, 2017, the Supreme Court heard argument in Jesner v. Arab Bank, PLC, a case regarding the validity of suits against corporate entities under the Alien Tort Statute. Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., (“Kiobel I”), which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability. The U.S. Supreme Court affirmed the Second Circuit’s judgment in Kiobel (“Kiobel II”) but for a different reason: the failure to rebut a presumption against extraterritorial application of the ATS to actions that took place in the territory of a sovereign other than the United States. The district court in Jesner acknowledged this, but concluded that nothing in the Supreme Court’s decision actually contravened the Second Circuit’s original rationale regarding corporate liability, which therefore remained the law applicable to district courts within the Second Circuit. On appeal, the Second Circuit affirmed the district court, agreeing that Kiobel II did not overrule Kiobel I on the issue of corporate liability under the ATS. Other federal circuit courts of appeals, however, have read Kiobel II differently with respect to the possibility of corporate liability, creating a split with the Second Circuit--and the Supreme Court has now granted certiorari to address whether the Alien Tort Statute categorically forecloses corporate liability.To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.

On October 11, 2017, the Supreme Court heard argument in National Association of Manufacturers v. Department of Defense, a case regarding the proper jurisdiction of federal circuit courts of appeals with respect to rules issued under the Clean Water Act.In 2015, the U.S. Army Corps of Engineers and U.S. Environmental Agency (the “Agencies”) issued a final rule intended to clarify the definition of “waters of the United States” as used in the Clean Water Act (the “Clean Water Rule”). Petitioner associations and companies filed suit in various federal district and appellate courts to challenge the Clean Water Rule, claiming that the definitional changes improperly expanded the Agencies’ regulatory jurisdiction and dramatically altered the existing balance of federal-state collaboration on water resource concerns. Many of the suits were eventually consolidated before the U.S. Court of Appeals for the Sixth Circuit. The Clean Water Rule, Petitioners contended, is inconsistent with Supreme Court precedent and was improperly adopted without satisfying the requirements of the Administrative Procedure Act. Petitioner National Association of Manufacturers (“NAM”), which had brought its challenge in federal district court, then intervened in the Sixth Circuit litigation and moved to dismiss for lack of jurisdiction, arguing that judicial review must first take place in district court and that this case did not fall within the judicial review provisions of the Clean Water Act. The Sixth Circuit ultimately rejected this argument and concluded that it could exercise jurisdiction over requests for review of the Clean Water Rule under 33 U.S.C. Sec. 1369(b)(1)(F). That provision provides for exclusive jurisdiction in the federal circuit courts of appeals to review an action “issuing or denying any permit under section 1342, [the National Pollutant Discharge Elimination System]....”The question presently before the U.S. Supreme Court is whether the Sixth Circuit erred in holding that it had jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to assess a Clean Water Rule that did not actually “issu[e] or den[y] any permit,” but rather defined the waters that fall within the scope of the Clean Water Act.To discuss the case, we have Jonathan Adler, Director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.

On October 3, 2017, the Supreme Court heard argument in Gill v. Whitford, a case involving claims of partisan gerrymandering. In Wisconsin’s 2010 elections, Republicans won the governorship and acquired control of the state senate. In 2011, the Wisconsin legislature adopted a redistricting plan, Act 43, for state legislative districts. With Act 43 in effect Republicans expanded their legislative control in subsequent elections, reportedly winning 60 of 99 seats in the State Assembly with 48.6% of the statewide two-party vote in 2012, and 63 of 99 seats with 52% of the statewide two-party vote in 2014. In 2015 twelve Wisconsin voters sued in federal court, alleging that Act 43 constituted a statewide partisan gerrymander in violation of the First and Fourteenth Amendments to the U.S. Constitution. Defendants’ motions to dismiss and for summary judgment were denied, and following trial a divided three-judge district court panel invalidated Act 43 statewide. Act 43, the majority concluded, impermissibly burdened the representational rights of Democratic voters by impeding their ability to translate their votes into legislative seats even when Republicans were in an electoral minority. The court enjoined further use of Act 43 and ordered that a remedial redistricting plan be enacted, but the United States Supreme Court stayed that judgment pending resolution of this appeal. The questions before the Supreme Court are as follows: (1) Whether the district court, in holding that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan instead of requiring a district-by-district analysis, ran afoul of the Supreme Court’s 2004 decision in Vieth v. Jubelirer; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in the Supreme Court’s 1986 decision in Davis v. Bandemer; (4) whether the defendants are entitled to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.To the discuss the case, we have David Casazza, Associate at Gibson Dunn & Crutcher.

On October 3, 2017, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing or determination that otherwise justified their continued detention. After several rounds of litigation in U.S. district court and the U.S. Court of Appeals for the 9th Circuit, the district court entered a permanent injunction in favor of the alien class members. Under the injunction, the government must provide any class member who is subject to “prolonged detention”—six months or more—with a bond hearing before an Immigration Judge (“IJ”). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. On subsequent appeal, the Ninth Circuit affirmed all aspects of the injunction except with respect to aliens detained under § 1231(a) (aliens who have been “ordered removed”). Although the Supreme Court heard argument on the case last term, it then requested supplemental briefing on the following questions and set the case for reargument this October: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.

On March 22, 2017, the Supreme Court decided Endrew F. v. Douglas County School District, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” (FAPE) to disabled children by means of a tailored “individualized education program” (IEP). In its 1982 decision Board of Ed. of Hendrick Hudson Central School Dist., Westchester County. v. Rowley (Rowley), the Supreme Court indicated that the FAPE requirement is satisfied when an IEP is “reasonably calculated to enable the [disabled] child to receive educational benefits.” Endrew F. is a student with autism who received annual IEPs from the Douglas County School District from preschool through the fourth grade. At that point, however, his parents felt his progress to be stagnating, and when the school district proposed a similar IEP for the fifth grade, Endrew’s parents moved him to a specialized private school where he made significant progress. School district officials thereafter presented Endrew’s parents with a revised IEP, but the parents considered it little better than the previous version. The parents sought reimbursement of private school tuition costs by filing an IDEA complaint with the Colorado Department of Education. Their claim was denied, however, and the denial was affirmed by both a federal district court and the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit concluded that under Rowley, the FAPE requirement was satisfied so long as the IEP conferred more than a minimal educational benefit. By a vote of 8-0, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case. Writing for a unanimous Court, Chief Justice Roberts indicated that to meet its substantive obligation under the IDEA, a school must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” a more demanding standard than the Tenth Circuit’s de minimis one. The Court then remanded the case for further proceedings under the corrected standard. To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.

On March 28, 2017, the Supreme Court decided Moore v. Texas, a habeas corpus dispute regarding the scope of the Supreme Court’s 2002 decision in Atkins v. Virginia that the execution of a mentally disabled person would violate the Eighth Amendment’s proscription on “cruel and unusual punishments.” Bobby James Moore was convicted of capital murder and sentenced to death for fatally shooting a sales clerk during a failed robbery attempt. Finding Moore to be intellectually disabled under current medical diagnostic standards set forth in the latest editions of the American Association of Intellectual and Developmental Disabilities (AAIDD) manual and the Diagnostic and Statistical Manual of Mental Disorders, and invoking Atkins, a state court recommended granting Moore habeas relief in the form of life imprisonment or a new trial. The Texas Court of Criminal Appeals, however, rejected that recommendation based on its 2004 decision in Ex Parte Briseno, which relied on standards set forth in a predecessor manual to the AAIDD and a series of evidentiary factors. The Court of Criminal Appeals ultimately determined that Moore had failed to establish significantly subaverage intellectual functioning, and denied relief. By a vote of 5-3, the Supreme Court vacated the judgment of the Court of Criminal Appeals and remanded the case. In an opinion authored by Justice Ginsburg, the Supreme Court held that the Court of Criminal Appeals had failed to comply with the requirements of the Eighth Amendment and Supreme Court precedents. By rejecting the habeas court’s application of contemporary medical guidance and clinging to the outdated and nonclinical factors set forth in Briseno, the Supreme Court indicated, the Court of Criminal Appeals had failed adequately to inform itself of the medical community’s diagnostic framework as required by the Supreme Court’s 2014 decision in Hall v. Florida. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Thomas and Alito. To discuss the case, we have Joanmarie Davoli.

On April 18, 2017, the Supreme Court decided Coventry Health Care of Missouri, Inc., v. Nevils. Under the Federal Employees Health Benefits Act of 1959 (FEHBA), the Office of Personnel Management (OPM) may contract with private carriers to provide federal employees health insurance. FEHBA expressly provides, however, that the terms of any such contract relating to “the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)” will “supersede and preempt any State or local or law, or any regulation issued thereunder” relating to health insurance or plans. Here, OPM’s contracts with private insurance carriers provide, among other things, for reimbursement and subrogation. When Jodie Nevils, a former federal employee insured under a FEHBA plan offered by Coventry Health Care of Missouri (Coventry) was injured in an automobile accident, Coventry paid Nevils’ medical expenses. Nevils sued the driver who caused his injuries and obtained a settlement award. Coventry, invoking its OPM contract, then asserted a lien of approximately $6,600 against Nevils’ settlement proceeds to cover the medical bills Coventry had paid for Nevils. He paid off the lien, but then filed a class action suit against Coventry in Missouri state court, claiming the insurance company had unlawfully obtained reimbursement and noting that Missouri law does not permit subrogation or reimbursement in this context. The trial court granted judgment for Coventry on the grounds that FEHBA allowed Coventry’s contract terms to override state law prohibitions. The Missouri Supreme Court, however, reversed, relying on a “presumption against preemption” that excluded subrogation and reimbursement from FEHBA’s preemptive scope. By a vote of 8-0, the Supreme Court reversed the judgment of the Missouri Supreme Court and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that Missouri’s prohibitions on contractual subrogation and reimbursement “relate to … payments with respect to benefits,” and are therefore preempted by FEHBA. The Court further held that FEHBA’s preemption regime comports with the Constitution’s Supremacy Clause, because the statute itself and not the OPM contract triggers federal preemption. All other justices joined Justice Ginsburg’s opinion for the Court except Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion. To discuss the case, we have George Horvath, a Post-Doctoral Fellow and Lecturer at Berkeley Law.

On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature. -- The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement. By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. -- To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.