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Supreme Court Previews
The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.
Cedar Point Nursery v. Hassid (No. 20-107)
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Oral argument: Mar. 22, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit
Question as Framed for the Court by the Parties
Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
Facts
In 1975, California passed the Agricultural Labor Relations Act (ALRA or Act), which established the Agricultural Labor Relations Board (ALRB or Board). The ALRB found that there were few opportunities for unions to communicate with agricultural workers. In response, the Board promulgated an access regulation which allowed union organizers to approach agricultural workers under limited circumstances while the workers were physically present on their employer’s property. Under the regulation, labor organizers can visit the employer’s property after providing the employer and a regional office with notice. Union organizers can visit an employer’s property for four thirty-day periods a year and only for three one-hour periods.
Two separate incidents led the two petitioners, Cedar Point Nursery (Cedar Point) and Fowler Packing Company (Fowler), to bring this action against the respondent, Victoria Hassid (Hassid) in her capacity as chair of the ALRB. Cedar Point raises strawberry plants that are sold to strawberry producers. Cedar Point has 400 seasonal workers and 100 full-time workers: the seasonal workers are housed at hotels, and none live onsite. On October 29, 2015, without providing the required notice, union organizers from the United Farm Workers of America (UFW) allegedly entered Cedar Point’s property early in the morning. Thereinafter, Cedar Point accused UFW’s organizers of using bullhorns to “disrupt[] work,” and “distract[] and intimidat[e] workers.” Cedar Point brought charges against UFW for violating the access regulation, and in turn, UFW brought charges against Cedar Point for unfair labor practices. Cedar Point states that it would like to exclude UFW organizers from its property in the future but is unable to under the access regulation.
The other petitioner, Fowler, is a “largescale shipper of table grapes and citrus” employing roughly 2,500 workers. Fowler’s employees do not live on the property. UFW’s organizers were allegedly unable to access Fowler’s property during three days in July 2015, and UFW brought an unfair labor practice charge against Fowler with the Board. While UFW withdrew the charges, Fowler also argues that it would prefer to exclude “union trespassers” from its property but cannot because of the access regulation.
Together, Cedar Point and Fowler (Growers) sued the Board for declaratory and injunctive relief under 42 U.S.C. § 1983, seeking an injunction to prevent the Board from enforcing the access regulation against them. They argued that by enforcing the access regulation against them, the Board is taking their property in violation of the Fifth Amendment, and that the Board also violated the Fourth Amendment’s guarantee against unlawful seizure. The Board dismissed their suit and Growers appealed to the district court, which also dismissed both claims. On Growers' appeal to the Ninth Circuit, the court affirmed the district court’s dismissal. First, the court found that Growers did not make out a claim that there was a per se physical taking of Growers' property when the access regulation was applied to Growers. Second, the court determined that Growers also did not make out a claim showing that the access regulation affected a Fourth Amendment seizure of Growers’ property.
The U.S. Supreme Court granted certiorari on Growers’ Fifth Amendment claim on November 13, 2020.
Legal Analysis
Growers argue that the access regulation, which gives a right of access to union organizers to meet with agricultural employees on the employer’s land during limited times and for specific reasons, qualifies as a physical taking and therefore is in violation of the Fifth Amendment. Specifically, Growers argue that the access regulation qualifies as an easement. There are two types of takings under the Fifth Amendment, physical and regulatory takings; the two types undergo different legal analysis. Growers argue that the easement here qualifies as a physical taking, rather than a regulatory taking. The rule that governs physical takings comes from Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, which establishes that the government has a “categorical duty to compensate” property owners when it has physically taken possession of their property interest. Regulatory takings, however, are not subject to this “categorical duty to compensate.”
Growers further elaborate that the access regulation qualifies as a physical taking for several reasons. First, Growers note that an easement in gross is recognized as a property interest in California, and the access regulation clearly qualifies as an easement. Growers also note that the Court has held that permanent physical intrusions onto property are a per se taking. Growers use Kaiser Aetna v. United States to show that the Court has required just compensation even
when the government’s physical invasion is only an easement. They also reference Nollan v. Cal. Coastal Comm’n to show that the Court has held that easements qualify as physical takings despite there being no permanent occupation.
Further, Growers claim that the access regulation’s time restriction does not change this analysis. Growers’ reasoning for this is: (1) limitations are part of the nature of easements and limiting the physical takings analysis to continuous occupation would remove all easements from this category, and (2) the Court has analyzed easements as physical takings before, despite the fact that some of these easements had time restrictions. Growers note that “time-limited easements” are still physical takings because “limitations are inherent to easements.”
Hassid argues that the access regulation is a regulatory taking, and the Court has refrained from creating a definitive test for determining when a regulatory taking violates the Takings Clause. Hassid points out that a physical taking has traditionally only been applied where the government directly takes the owner’s property for its own purpose. Although Hassid acknowledges that the Court has expanded from this traditional reading, they have mostly abstained from extending physical takings through applying concrete rules.
Hassid contends that there are few, narrow types of regulatory actions that can qualify as per se takings. The first is one of “permanent physical occupation” of an owner’s property. The second is a regulation that “deprives” a property owner “‘of all economically beneficial uses’ of his property.” Hassid claims that the access regulation does neither of these things. Additionally, Hassid argues that the Court has specifically rejected analogizing access regulations under the National Labor Relations Act (NLRA) (which the access regulation in California is modeled after) to a type of permanent physical occupation. Hassid argues that Loretto v. Teleprompter Manhattan CATV Corp. demonstrates that the Court has specifically laid out the extreme effects to which regulations rise to the level of takings. Hassid claims that regulations must effectively remove an owner’s rights to their property, including the loss of power to exclude individuals from the property and use the property, and deny a property owner’s power to control their property. Growers argue that the right to exclude is one of the most basic rights of property owners, and one which the access regulation blatantly defies. Indeed, Growers claim that the right to exclude is “deeply rooted” in the American legal framework. Therefore, even an occupation that does not take up much space or seriously interfere with the property owner’s use of the land requires compensation. Growers claim that the only way to protect the fundamental right to exclude is to qualify all easements that affect this right without compensation as a violation of the Fifth Amendment Takings Clause. Growers address the case PruneYard Shopping Center v. Robins, where the Court ruled that a regulation requiring a mall owner to allow speech (even speech he disagreed with) on his property was not a taking; in that case, a California statute required the property owner to allow “certain expressive speech” on his property. Additionally, the Growers claim that PruneYard has been limited to “publicly accessible” property. Growers also argue that since PruneYard, the Court has continuously reaffirmed the right to exclude as a fundamental property right. Therefore, Growers claim that PruneYard is an “anomaly” and one that the Court has subsequently limited in application.
Hassid contends that the Court has not categorically defined easements as physical takings. Hassid notes that the fact that easements are real California property interests does not impact the analysis; if this fact did, it would empower states to define what is a physical taking merely through what qualifies as a real property interest. Hassid claims that the decision in PruneYard was not as limited as Growers suggest. Specifically, Hassid claims that the Court in PruneYard only viewed the openness to the public as one consideration in its very context-specific analysis of whether the regulation could qualify as a taking. Hassid also claims that the Court has upheld other regulations that have restricted a property owner’s right to exclude before.
Discussion
NECESSITY OF THE ACCESS REGULATION
Western Growers Association (Western) and other trade organizations, in support of the Growers, contend that the access rule was adopted when there were fewer methods of communication and is no longer necessary for unions to communicate with agricultural employees. Western supports this with statistics that show that agricultural workers no longer migrate as often and generally do not live on their employers' property. Further, Western asserts that agricultural employees have access to smartphones to communicate with union organizers and each other.
By contrast, California Rural Legal Assistance, Inc. and other advocacy organizations (Legal Assistance), in support of Hassid, argue that agricultural employees remain difficult to access. Legal Assistance points to Board findings that computers, cell phones, social media, and radio were “unworkable” communication methods because of language barriers. Legal Assistance contends that many agricultural workers are immigrants who speak different languages and read at fourth-grade to seventh-grade levels, rendering print communication challenging. Legal Assistance also argues that internet access and mobile phones remain luxuries for agricultural workers.
REGULATION’S IMPACT ON PROPERTY OWNERS
The Chamber of Commerce of the United States of America (Chamber of Commerce), in support of Growers, reasons that the Fifth Amendment’s prohibition on uncompensated government takings is crucial for business owners to invest confidently in their property, whereby they contribute to national prosperity. Therefore, Chamber of Commerce argues, the Takings Clause provides assurance that policymakers will consider the costs and benefits of public use to property owners, because the public must compensate property owners for their sacrifice.
Property Law Professors (Professors), in support of Hassid, contend that the Growers have retained their right to exclude. Professors argue that the Growers still own the farm, determine how the land is used, decide which parties can enter, with the only restriction coming from the access rule. Professors also express concerns that many government programs might become compensable takings if this case is decided in the Growers’ favor.
Written by Alyssa Ertel and Kathryn Rider. Edited by Kayla Anderson.
Full text available at https://www.law. cornell.edu/supct/cert/20-107.
National Collegiate Athletic Association v. Alston (No. 20-512)
Oral argument: Mar. 31, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit
Question as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the Ninth Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law.
Facts
The National Collegiate Athletic Association (NCAA) governs intercollegiate sports by administering rules related to its member schools’ student-athletes. The NCAA divides its school constituents into three separate divisions, with Division 1 (D1) schools sponsoring the most financial aid and athletic programs for student-athletes. In August 2014, the NCAA amended its D1 bylaws to impose limitations on the amount and type of compensation that student-athletes are entitled to. The amended bylaws included an “Amateurism Rule,” which sets forth that student-athletes are not eligible for intercollegiate competition if they use their sports skills for compensation not permitted by the NCAA.
In 2009, University of California, Los Angeles (UCLA) basketball player Ed O’Bannon filed an antitrust lawsuit against the NCAA for the unauthorized use of his “names, images, and likenesses” (NILs) in a video game, and for prohibiting himself or other similarly-situated players from receiving compensation for such use (including full cost of attendance). The district court in that case found for O’Bannon under the rule of reason and held that the NCAA’s long-held compensation system and bylaws operate as an unreasonable restraint of trade in violation of antitrust law. The case was appealed to the Ninth Circuit.
In 2014, while O’Bannon v. NCAA was still being litigated, a class of Football Bowl Subdivision and D1 student-athletes (collectively, Alston) filed separate antitrust actions against the NCAA in the U.S. District Court for the Northern District Court of California, challenging the NCAA’s compensation system. In 2015, following the Ninth Circuit’s decision in O’Bannon, the NCAA requested that the Northern District of California issue a judgment on the pleadings and preclude student-athletes from pursuing the matter further. In seeking the court’s judgment, the NCAA cited the Ninth Circuit’s O’Bannon proceedings, which only required that the NCAA member schools provide full education-related costs of attendance to their student-athletes. The NCAA additionally asserted that because the NCAA had already amended its bylaws to fulfill the O’Bannon requirement, the student-athletes’ antitrust challenges could not proceed further. The district court, however, denied the NCAA’s motion, finding that the matters at issue in the instant case were significantly different from those in O’Bannon.
Following the district court’s ruling, both parties filed for summary judgment, but the district court again denied the NCAA’s motion and granted student-athletes summary judgment. The NCAA subsequently appealed to the U.S. Court of Appeals for the Ninth Circuit. On appeal, the three-judge panel affirmed the district court’s decision, holding that the district court did not err in its conclusion that the NCAA compensation system violated the Sherman Antitrust Act. In response, the NCAA, together with the American Athletic Conference et al. (AAC), filed petitions to the Supreme Court to hear its appeal in October 2020. The Supreme Court granted a writ of certiorari on December 16, 2020, consolidating this case with American Athletic Conference v. Alston (20-520).
Legal Analysis
FRAMEWORK FOR ANALYZING UNREASONABLE RESTRAINT
Petitioner NCAA argues that the court should review its rules on the compensation of student-athletes deferentially and without detailed analysis under the rule of reason. The NCAA emphasizes that most restraints on trade are analyzed under the rule of reason—which assesses whether “the restrictive practice imposes an unreasonable restraint on competition.” According to the NCAA, application of the rule of reason does not always demand a detailed analysis, and courts can apply the rule to “prohibit anticompetitive restraints and promote procompetitive ones,” especially regarding to joint ventures. Accordingly, the NCAA argues that the Court generally defers to sports leagues when they define their own procompetitive restraints and upholds such restraints without detailed rule-of-reason analysis so long as the league offers some justification. The NCAA asserts that the Court applied these principles in Board of Regents v. University of Oklahoma, demonstrating that amateurism is essential to the “product” offered by the NCAA—amateur college sports—and that its procompetitive activity preserves that product. Therefore, the NCAA concludes, the Court should uphold the NCAA’s amateurism rules without detailed rule-of-reason analysis because they are designed to maintain the character of amateur college sports.
The AAC, as co-petitioner, further argues that the NCAA player-eligibility rules should have been upheld under the quick look doctrine. The AAC maintains that the Court has demonstrated that some agreements are legal on a limited “quick look,” and so the courts should defer to restraints “reasonably related” to the distinct product of a sports league or other joint venture. In determining whether a restraint is legal under a quick look, the AAC argues, the court assesses whether the restraint is procompetitive. According to the AAC, any rules that are required for a sports league to exist enjoy a presumption of pro-competitiveness and lawfulness. Moreover, the AAC contends that Board of Regents has already determined that the amateurism rules are valid and procompetitive. Therefore, the AAC concludes that the district court should have dismissed the case on a quick look, and the Court should reverse the district court’s decision or dismiss the case.
Respondent Alston responds that the NCAA misconstrues the reasoning of Board of Regents, arguing that the NCAA overstates the amount of latitude that the case affords the NCAA as a joint venture in setting competitive rules. Alston argues that the NCAA overlooks a critical feature of the decision: although the Court recognized the need for “ample latitude,” the Court decided that a rule of reason analysis would still govern the claims. Even if a rule of reason inquiry were not supported by Board of Regents, Alston asserts that changed factual circumstances justify not giving Board of Regents, decided in 1984, stare decisis effect. Alston notes that college athletics are significantly larger commercial enterprises than they were when the Court decided Board of Regents. Thus, Alston concludes that the NCAA’s rules must be assessed under the rule of reason,
not some presumptions based on forty-yearold dicta.
Alston further contends that the quick look doctrine supports a finding of illegality in this case. Alston first refutes the AAC’s contention that the quick look doctrine could be used to uphold a restriction on trade. Instead, Alston argues that the quick look doctrine can only be used to prove that a restriction on trade violates antitrust laws and cannot be “turned on its head” to prove a restriction is lawful. Alston emphasizes that the Court’s cases have described the quick look doctrine as a method to denounce anticompetitive restrictions more quickly. But even if the lower courts had applied the quick look doctrine to decide whether the NCAA’s rules violated antitrust laws, Alston maintains that his claim would have still succeeded. According to Alston, the NCAA’s restrictions were “so plainly anticompetitive” that only a “quick look” was needed to show that the restrictions were an illegal restraint on trade.
RULE OF REASON ANALYSIS: GRANULARITY IN STEP ONE AND STEP TWO
The NCAA argues that the district court erred by applying different levels of generality in the first and second step of its rule of reason analysis. The NCAA explains that under the rule of reason, a plaintiff must first prove that restraints have significant anticompetitive effects, then the burden shifts to the defendant to prove that those restraints have procompetitive effects. If the defendant proves that the restraints do, the NCAA maintains, the burden shifts back to the plaintiff to show that those procompetitive effects could have been achieved by a “substantially less restrictive alternative.” The NCAA claims that because at Step 1 Alston successfully challenged “the NCAA’s entire compensation framework” as anticompetitive, the burden at Step 2 of the rule of reason analysis should have only required the NCAA to prove that its rules as a whole produced procompetitive benefits. Instead, the NCAA notes, the district court required the NCAA to prove that every one of the challenged rules had procompetitive effects. By requiring different levels of generality at the first and second steps of the rule of reason analysis, the NCAA claims, the district court eased the burden on the party challenging the alleged restraint while making it more difficult for the party defending against the claim to show that each challenged rule had a procompetitive effect.
Alston refutes the claim that the district court applied a different level of generality to claims at the first and second step of the rule of reason analysis. Rather, Alston argues that neither the district court nor the Ninth Circuit required the NCAA to justify each individual rule. According to Alston, the district court instead based its holding on the fact that the NCAA had not shown a procompetitive explanation for its rules in aggregate. Alston points to the testimony of the NCAA’s witnesses in the district court who testified that the challenged rules allow athletes to be compensated in ways inconsistent with the principle of amateurism. Based on this and other evidence, Alston maintains that the district court, examining “all aspects of the rules in aggregate,” rejected the NCAA’s single “sweeping theory” of amateurism as lacking a clear definition. Alston also asserts that the Ninth Circuit’s decision confirmed this analysis, claiming that the court granted the NCAA even greater flexibility at the second step than otherwise required. In particular, Alston references language in the concurring opinion mentioning that the district court allowed the NCAA to justify its amateurism rules by showing they had a procompetitive effect on the product market where college sports compete with professional sports rather than on the labor market for student-athletes that the rule directly affects.
Discussion
CHILLING EFFECT ON BUSINESS CONDUCT
Antitrust economists, in support of the NCAA and AAC, contend that the Ninth Circuit’s decision will impede the creativity and freedom of economic actors in designing their own products and business models. Antitrust economists assert that the NCAA’s product—amateur college sports—is just one such business product, and that its ability to develop its business product in its own way promotes consumer welfare. Thus, the Ninth Circuit’s decision, the antitrust economics argue, will inhibit innovative product design and lead entrepreneurs to “forego experimentation with product design that would otherwise benefit consumers.” The representatives of the plaintiff class in O’Bannon (Class Representatives), in support of Alston, counter that the NCAA’s dire projections about the business of college sports are unsupported and therefore should not be accepted. The Class Representatives argue that the NCAA has repeatedly warned of the potential “peril to college athletics” posed by economic competition as an excuse whenever the NCAA’s compensation system has been challenged in previous antitrust cases. However, the Class Representatives contend, permitting schools to freely engage in commercial and trade activities has had “zero impact” on the consumer demand for college sports, which still flourish.
Written by Jin-Taek Hong and Daniel McCarthy. Edited by Prachee Sawant.
Full text available at http://www.law. cornell.edu/supct/cert/20-512.
City of San Antonio, Texas v. Hotels.com, L.P. (No. 20-334)
Oral Argument: Apr. 21, 2021
Court below: U.S. Court of Appeals for the Fifth Circuit
Question as Framed for the Court by the Parties
Whether, as the U.S. Court of Appeals for the Fifth Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Federal Rule of Appellate Procedure 39(e).
Facts
In 2006, the City of San Antonio filed a class action lawsuit against online travel companies (OTCs), including Hotels.com, Hotwire, Orbitz, and Travelocity, for failure to pay municipal hotel occupancy taxes in full. The lawsuit was brought on behalf of 173 Texas municipalities and claimed that the OTCs were underpaying hotel occupancy taxes included in hotel reservations facilitated by the online services. In 2011, a federal district court ordered the OTCs to pay occupancy taxes on the hotel reservations they facilitated, and found that the hotel occupancy tax applies to the retail room rate, not the negotiated discounted room rate. The district court denied the OTCs’ motion to amend its decision and entered a final judgment against the OTCs. After the OTCs requested appeal bonds, the district court approved the amount requested and stayed the judgment until the resolution of all post-judgment motions. Between May 2013 and November 2014, the OTCs filed their appeal bonds three times. In 2016, the district court resolved the matter by denying
the OTCs’ remaining post-judgment motions and entering a judgment of $84,123,089 in penalties, unpaid taxes, and interest against the OTCs.
In 2007, the City of Houston similarly sued OTCs seeking damages and penalties for unpaid hotel occupancy taxes on the retail rates that exceed the discounted rates that hotels invoiced OTCs for listing hotel rooms on their website. In contrast to the City of San Antonio case, the state trial court granted the OTCs’ summary judgment against the City of Houston. The City of Houston appealed the trial court’s legal finding that the ordinance and resolution imposing hotel occupancy taxes applied to the discounted rate instead of the retail rate of the hotel reservation. In 2011, the Court of Appeals for the Fourteenth Circuit concluded that the trial court correctly interpreted the local ordinance and resolution at issue and affirmed the trial court’s judgment in favor of the OTCs.
In 2017, the Court of Appeals for the Fifth Circuit vacated the district court’s judgment against the OTCs and found the state court’s decision controlling on the tax issue. The Fifth Circuit ordered the City of San Antonio to pay the OTCs the “costs on appeal to be taxed by the Clerk of this Court.” The district court subsequently entered a final judgment for the OTCs, “releasing all supersedeas bonds, and awarding costs to the OTCs as the prevailing parties.” The OTCs filed a bill of costs in the district court, including $2,008,359 for the OTCs’ appeal bond premiums and “post-judgment interest” to be paid by the non-prevailing party. The City of San Antonio urged the district court to reduce the amount of premiums from the bill of costs. The district court denied the City of San Antonio’s request for a payment reduction and entered a bill of costs against the city for $2,226,724.37. The City of San Antonio appealed the appeal bond cost amount to the Fifth Circuit. In May 2020, the Fifth Circuit affirmed the district court’s denial.
The City of San Antonio then petitioned for a writ of certiorari to appeal the issue before the Supreme Court of the United States, and on January 8, 2021, the Court granted certiorari.
Legal Analysis
TEXT AND STRUCTURE OF RULE 39
Petitioner City of San Antonio (San Antonio) argues that the text and structure of Rule 39(e) of the Federal Rules of Appellate Procedure afford district courts discretion to “reduce or deny cost awards.” San Antonio argues that the word “taxable” in Rule 39(e) is permissive, as it denotes the possibility of being taxed but “does not compel a district court to award anything.” Citing the Fifth Circuit in Sioux, San Antonio argues that the Fifth Circuit relied on an outdated version of Rule 39(e) that explicitly stated that costs “shall be taxed in the district court.” However, since such mandatory language was removed by Rule 39(e)’s 1998 amendment, San Antonio argues that there is no ground to justify the Fifth Circuit’s ruling in Sioux. Hence, San Antonio contends that the advisory committee responsible for drafting the amendment preserved the district court’s discretionary power by selecting a permissive term in the Rule and omitting a mandatory one. Pointing to Rule 54(d) (1) and Section 1920, San Antonio further asserts that there are multiple ways to grant courts discretion over costs. San Antonio argues that Rule 39(e) confers district courts discretion over costs even without the permissive phrase “unless the court orders otherwise” found in Rule 54(d)(1) because including such phrase would have posed problems unique to Rule 39(e). Specifically, San Antonio argues that including “unless the court orders otherwise” in Rule 39(e) would have unnecessarily disrupted its purpose by (1) overpowering district courts, and (2) permitting litigants to seek appellate costs at appellate courts, which would upset the appellate court’s Rule 39(a) determination concerning which parties are taxed. In other words, San Antonio contends that inserting such a clause in Rule 39(e) would have impermissibly granted district courts power to award costs to parties not entitled to those costs under Rule 39(a).
Respondent Hotels.com counters that the inclusion of the word “taxable” in Rule 39(e) does not confer district courts discretion over costs. Hotels.com argues that the lack of an express mandatory term in Rule 39(e) is not evidence of a conferral of discretion over costs. Instead, Hotels.com asserts that a lack of discretion can be inferred by looking at other language in the Rule, such as mention of the appellate court’s “sole authority” to determine award of full appellate costs, the district court’s duty to act “for the benefit of the party entitled to costs,” and lack of the phrase “unless the court orders otherwise.” Hotels.com argues that district courts do not have discretion to determine costs because Rule 39(a) and other Federal Rules of Appellate Procedure include a default rule: the entitlement determined in district court depends on the outcome of the appeal. Hotels.com therefore contends that appellate courts possess the sole authority to decide whether a party is entitled to costs. Hotels.com also argues that San Antonio overestimates the weight of the 1998 amendment following the decision in Sioux because the advisory committee responsible for drafting the amendment stated the change in language was intended only to be “stylistic” and not substantive. Hotels. com also contends that Rule 39(e) omits the permissive phrase “unless the court orders otherwise,” despite its presence in other subdivisions of Rule 39, which strongly suggests that the drafters of the rule did not intend that discretionary authority over costs be vested in district courts.
ROLE DIVISION BETWEEN APPELLATE COURTS AND DISTRICT COURTS
San Antonio argues that Rule 39(a) was not intended to vest appellate courts with sole discretionary authority over costs because it would leave district courts with largely perfunctory tasks in awarding costs. Specifically, San Antonio contends that if Rule 39(a) is understood to only authorize appellate courts to award Rule 39(e) costs, then there would be no reason to remand the issue to the district courts to enter a ministerial order over the costs. San Antonio asserts that Hotels.com ignores the structure of Rule 39, which proceeds in two distinct stages: (1) Rule 39(a) gives appellate courts authority over determining who receives cost awards (2) and then Rules 39(c)-(e) authorize courts in collateral proceedings to decide “what costs are available and how those costs must be taxed.”
Hotels.com argues that the district court only has a ministerial duty to judicially determine the correct amount of the prevailing party’s costs under Rule 39(e). Hotels.com asserts that because the language in Rule 39(e) uses “taxed in the district court,” rather than “taxed by the district court,” the role of district courts regarding costs is a modest one and is limited to a “clerical matter that can be done by the court clerk.” Specifically, Hotels.com contends that district courts play a “largely ministerial role” confined to merely determining “the amounts incurred in each Rule 39(e) category,” which may
require no involvement whatsoever by the district court judge. Hotels.com also argues that the logical extension of the division between Rule 39(a) and Rule 39(e) only leads to the conclusion that district courts should not upset the appellate court’s decision on cost entitlement. Hotels.com maintains that appellate courts have the authority to determine entitlements to costs and district courts have no authority to object to or decline those assessments.
Discussion
TAXABLE APPELLATE COSTS
A group of organizations affiliated with local governments (collectively local government organizations), in support of the City of San Antonio, contend that reductions of taxable appellate costs are appropriate in light of the financial burden large appellate bond premiums impose on litigants. The local government organizations assert that local governments are frequently a party to litigation and thus subject to substantial taxable appellate costs that include sizeable appellate bond premiums. The local government organizations contend that significant considerations unique to litigation at the trial court level may compel a court to reduce or deny appellate costs, such as parties’ relative abilities to pay and the public policy concerns for indigent litigants. The local government organizations argue that many of these considerations arise only in district court after testimony and evidence have been introduced before the fact finder and that these considerations bear directly on the amount of appellate costs a party has the ability to pay. The local government organizations specifically argue that the district court should retain discretion in taxing appellate costs to parties after firsthand consideration of the cost amounts, the losing party’s good faith, the strength and importance of the unsuccessful legal positions, the reasons for the incurred costs, and the losing party’s ability to pay.
Hotels.com argues that the substantial appellate bond premiums are appropriately included in taxable appellate costs because each party in this case knew that if the district court judgment was reversed on appeal, the bond premiums would be recovered as litigation costs. Hotels.com asserts that San Antonio “insisted” that the appellee purchase the hefty appeals bond and assumed the risk of potentially paying the full amount on appeal. Hotels.com further argues that San Antonio missed its opportunity to raise this issue before the appellate court when it was determining the cost award amount, so it is inappropriate for the U.S. Supreme Court to reconsider the issue now. Hotel. com also contends that appellate courts already weigh equitable considerations, including “the nature and significance of the result of the appeal,” when awarding appellate costs, so subsequent appellate cost adjustments would be a “recipe for wasteful litigation.” Specifically, Hotels.com argues that San Antonio’s approach would unnecessarily require the case go to the appellate court a second time so it can decide the “propriety of the trial court’s exercise of discretion.”
Written by William Kwon and Christine Yuan. Edited by Zora Franicevic.
Full text available at http://www.law. cornell.edu/supct/cert/20-334.
Mahanoy Area School District v. B.L. (20-255)
Oral argument: Apr. 28, 2021
Court below: U.S. Court of Appeals for the Third Circuit
Question as Framed for the Court by the Parties
Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.
Facts
Respondent B.L., a student at Mahanoy Area High School (MAHS), tried out for the cheerleading team during her freshman year of high school and made the junior varsity (JV) squad. She tried out again as a sophomore and was again assigned to JV. B.L. was especially frustrated after failing to make the varsity squad a second time when she saw that a freshman had been promoted to the varsity team instead. Frustrated by her relegation to the JV squad, school exams, and struggles on her softball team, B.L. posted a picture of herself and her friend with their middle fingers raised, with the caption “Fuck school fuck softball fuck cheer fuck everything” on her Snapchat story. B.L. subsequently added another post to her Snapchat story, with the caption “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”
Several students expressed concerns about B.L.’s posts to MAHS’s cheerleading coaches. The coaches told B.L. that her post violated team and school rules, including rules mandating that cheerleaders show respect towards the team and others, refrain from posting “negative information” about cheerleading on the internet, and behave in a way that does not harm the image of the Mahanoy Area School District. Consequently, the coaches removed B.L. from the JV cheerleading team. B.L. and her parents appealed to school authorities to reinstate B.L. on the cheerleading team, but the authorities upheld the coaches’ decision to suspend B.L.
B.L. and her parents then sued Petitioner Mahanoy Area School District (Mahanoy) in the U.S. District Court for the Middle District of Pennsylvania. B.L. made three arguments: first, that her suspension from the cheerleading team violated the First Amendment; second, that the school rules she was accused of breaking were unacceptably broad and discriminated against certain viewpoints; and third, that the school’s rules were unconstitutionally vague. The district court granted B.L. summary judgment, ruling that the school district could not regulate B.L.’s Snapchat post as it was off-campus speech, and that the snap had not caused a “substantial disruption of the school environment.” Consequently, the district court held that the school district violated B.L.’s First Amendment rights.
Mahanoy subsequently appealed to the U.S. Court of Appeals for the Third Circuit. Affirming the district court’s opinion, the appellate court decided that B.L. did not waive her First Amendment rights by agreeing to abide by school rules, and that her post was fully protected by the First Amendment. Mahanoy then appealed to the Supreme Court.
Legal Analysis
SHOULD OFF-CAMPUS SPEECH BE REGULATED ON SCHOOL CAMPUSES?
Mahanoy Area School District (Mahanoy) argues that historically, schools have had authority to regulate off-campus behavior that disrupts school operations; Mahanoy notes that public schools share authority with parents to regulate student conduct and exercise “near-plenary authority over student discipline.” Mahanoy, agreeing with the Court’s decision in Tinker v. Des Moines Independent Community School District, acknowledges that public schools do not pos-
sess absolute authority over students and that students possess First Amendment speech protections at school so long as the students’ expression does not become substantially disruptive to the proper functioning of school. Mahanoy insists, however, that the Court intended for Tinker to extend beyond the schoolhouse gates and include not just on-campus speech, but any type of speech that was likely to result in on-campus harm.
Mahanoy further argues that the Court’s post-Tinker decisions support regulation of off-campus speech that causes on-campus harm; Mahanoy explains that in Grayned v. City of Rockford, the Court held that a city could punish an adult protester for expressive conduct that occurred off campus but was audible and visible from school grounds and capable of disrupting school order. From this, Mahanoy reasons that if adults can be punished for off-campus conduct that disrupts school operations, then schools and municipalities should be able to punish their own students for similar off-premise conduct. Further, Mahanoy argues that the Court has allowed schools to enforce broader restrictions on student speech where the restrictions relate to protecting certain pedagogical purposes. Mahanoy explains that in Bethel School District No. 403 v. Fraser, the Court allowed for a school to punish a student for using vulgar language even though the student caused no substantial disruption specifically because the school had an interest in teaching students socially acceptable behavior. Mahanoy further points to another case, Morse v. Frederick, where the Court allowed schools to discipline students who advocate for illegal drug use when the speech occurred at a school event because schools have a unique interest in teaching students the dangers of illegal drug use. Further, Mahanoy contends that schools already have authority to regulate off-campus activities in furtherance of pedagogical goals, particularly through homework, summer reading assignments, discussion of test answers with peers, and group project communications. Therefore, Mahanoy argues, if schools can regulate this off-campus conduct and speech that does not have a harmful impact on the school, then it would follow that schools should be permitted to regulate off-campus conduct that does harm school operations.
B.L. counters that Tinker was meant to act as a narrow exception to First Amendment principles and only meant to apply to speech that occurs on school grounds, at school-related events, or on the way to and from school. B.L. arrives at this conclusion by noting that Tinker “plainly distinguishe[d]” on-campus and off-campus speech when it used the explicit language of “at the schoolhouse gate.” B.L. further posits that young people must have full First Amendment rights outside of school because Tinker’s reasoning rested on, and was limited to, the uniqueness of the academic environment in public schools. Quoting Morse, B.L. maintains that the Court’s jurisprudence in school-speech cases has always rested on the notion that the schools’ ability to restrict speech within schools rests against the backdrop that “the government could not censor similar speech outside the school.” B.L. illustrates its argument further by comparing two additional cases: Hazelwood School District v. Kuhlmeier and Papish v. University of Missouri Board of Curators. In the first case, B.L. explains, the Court held that official school newspapers could censor student speech on the basis of content while, in the second, the Court reasoned that schools could not censor students in underground newspapers distributed on campus because the newspaper was produced independent of the school. Additionally, B.L. asserts that Tinker’s rationale only works specifically because off-campus speech was left untouched, which left open ample “alternative channels” for free speech.
B.L. contends that expanding Tinker to off-campus speech that occurs outside the supervision or sponsorship of the school would make the substantial-disruption standard unconstitutionally vague because it would premise a student’s liability on the subjective reaction of those in charge—to wit, the standard would effectively be swallowed whole by allowing punishment of practically anything. B.L. thus takes issue with Mahanoy’s assertion that schools may act “in loco parentis,” or in the place of a parent, even outside the school gates because allowing such regulation abrogates the constitutional right of parents to decide the manner in which to raise their children. After all, B.L. maintains, it is not the duty of the government to impose restrictions on any First Amendment principle—including speech and religion—simply based on what it believes a reasonable parent “ought to want.”
Discussion
The Cyberbullying Research Center and other organizations (CRC et al.), in support of Mahanoy, assert that allowing the Third Circuit’s ruling to stand will severely impair schools’ ability to curtail bullying that occurs off campus. Bullying, CRC et al. explain, causes significant harm to already-marginalized groups of students, and schools must be able to regulate bullying that occurs outside of school in order to protect student welfare. Mahanoy contends that the Third Circuit’s ruling would undermine schools’ ability to ensure that students or teachers are not harassed at extracurricular functions occurring off school grounds. Massachusetts and other states (Massachusetts et al.), also in support of Mahanoy, further explain that schools must be able to intervene when bullying causes harm to students. Limiting disruptive bullying speech, Massachusetts et al. argue, does not constitute a restriction of students’ First Amendment free speech rights.
On the other hand, the National Women’s Law Center and additional organizations (NWLC et al.), in support of B.L., contend that a ruling in B.L.’s favor would not dismantle schools’ authority to punish off-campus bullying, nor should it. However, according to NWLC et al., a rule allowing schools to regulate all off-campus speech that may cause a “substantial disruption” to the school environment extends far beyond the realm of bullying. NWLC et al. assert that under such a rule, students in historically marginalized groups would be more likely to be disciplined for “disruptive” behavior due to racial or other forms of discrimination. Further, NWLC et al. argue, such an overbroad rule would infringe on the rights of students to organize and protest against harmful aspects of the school environment—conduct that would otherwise enjoy constitutional protection.
Written by Thomas Shannan and Allison Franz. Edited by Gabriela Markolovic.
Full text available at https://www.law. cornell.edu/supct/cert/20-255.
United States v. Cooley (No. 19-1414)
Oral argument: Mar. 23, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to rule on whether a tribal police officer has authority
to temporarily stop and search a non-Indian on public rights-of-way within Indian jurisdiction based on a potential violation of state or federal law. Petitioner United States argues Indian tribes have broad sovereign authority to protect people and property within its borders, which includes the authority to temporarily stop and search non-Indians in Indian jurisdiction for potential state- or federal-law violations. Respondent Cooley counters that Indian tribes have no such authority because they do not have inherent sovereign authority to conduct this type of stop and search; in addition, neither Congress nor the courts have given tribal officers the authority to do so. The outcome of this case has significant policy implications raising concerns of the proper balance between public safety and individual rights on Indian jurisdiction. The case also implicates the scope of tribal sovereignty and the proper role of Congress and the courts in delineating the extent of tribal authority over non-Indians within tribal territory.
Full text available at https://www.law. cornell.edu/supct/cert/19-1414.
Caniglia v. Strom (No. 20-157)
Oral argument: Mar. 24, 2021
Court below: U.S. Court of Appeals for the First Circuit
This case asks the U.S. Supreme Court to determine whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. The community caretaking exception allows for the warrantless seizure of evidence that police find while fulfilling their community caretaker role, which is unrelated to the “detection, investigation, or acquisition of evidence” of criminal activity. Petitioner Edward Caniglia argues that this exception applies only to vehicular searches and seizures, given that the Fourth Amendment affords significantly greater protection to the home over automobiles. Respondents, including the City of Cranston, the police department, and city officials, counter that the community caretaking doctrine applies to the home based on the Fourth Amendment’s reasonableness analysis, which permits warrantless searches and seizures when community safety interests outweigh privacy interests. The outcome of this case will affect the balance between privacy concerns and public safety concerns. The outcome will also affect police incentives in exercising their role as community caretakers.
Full text available at https://www.law. cornell.edu/supct/cert/20-157.
Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System (No. 20-222)
Oral Argument: Mar. 29, 2021
Court below: U.S. Court of Appeals for the Second Circuit This case asks the Supreme Court to clarify whether a defendant in a securities class action may rebut the Basic presumption by pointing to the generic nature of the misstatements and by showing that those misstatements did not affect the price of the defendant’s securities. Goldman Sachs Group Inc. argues that courts must consider evidence of the generality of alleged misstatements when determining whether to certify a shareholder class in a securities class action suit. Goldman further argues that defendants only bear the burden of producing some proof that their misstatement did not negatively impact the stock price, while plaintiffs bear the burden of persuading the Court that investors relied on the defendant’s alleged misstatements. The Arkansas Teacher Retirement System (ATRS) counters that the lower courts properly weighed the evidence presented at the class certification stage of the litigation, including the generic nature of the misstatements, when it decided to grant certification of plaintiffs’ shareholder class. ATRS also argues that the defendants implicitly bear both the burden of production and the burden of persuasion when rebutting the presumption because they must make a showing that the particular misrepresentation at issue did not affect the stock’s market price. The outcome of this case will have implications on the availability of class-action lawsuits for investors and the risk of class-action litigation for corporate defendants.
Full text available at http://www.law. cornell.edu/supct/cert/20-222.
TransUnion LLC v. Ramirez (No. 20-297)
Oral argument: Mar. 30, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to determine whether Article III or the typicality requirement of Federal Rule of Civil Procedure 23 (FRCP) should allow a class action claiming statutory damages when most of the class members did not suffer actual injury, or an injury similar to that of the class representative. Petitioner TransUnion, LLC (TransUnion) argues that in order for a class in a statutory damages action to have standing under Article III, each absent class member must show common concrete injury and, if future risk constitutes the injury, must demonstrate that such risk is certainly impending. TransUnion asserts that to achieve typicality under FRCP 23, a class representative’s facts must be substantially shared with those of the rest of the class. Respondent Sergio L. Ramirez (Ramirez) counters that a class may show Article III injury by demonstrating that the harm caused by a statutory violation is analogous to that of common law claims. Ramirez also asserts that the typicality requirement is satisfied when a class representative shares the same interest and has suffered injury common to the absent class members. This case involves questions of how the Court should weigh the role of class actions and statutory damages in protecting consumers against the due process rights of litigants.
Full text available at http://www.law. cornell.edu/supct/cert/20-297.
Sanchez v. Mayorkas (20-315)
Oral argument: Apr. 19, 2021
Court below: U.S. Court of Appeals for the Third Circuit
This case asks the Supreme Court to determine whether noncitizens residing in the United States under Temporary Protected Status (TPS) are eligible to receive lawful permanent resident (LPR) status if they were not formally inspected and admitted into the United States. Jose Santos Sanchez and Sonia Gonzalez are a married couple from El Salvador who received TPS in 2001 after entering the United States unlawfully in the late 1990s. The couple argues that they are eligible to apply for permanent residency because TPS recipients are deemed, by definition and by Congress, as having met the requirements of formal inspection and admission for the purposes of changing residency status. The government counters that individuals who initially entered the country unlawfully cannot apply for permanent residency because they cannot overcome the requirement of being formally inspected and
admitted into the United States, even if they were eventually granted TPS. The outcome of this case has important implications for resolving inconsistent application of the law by federal courts and for understanding the qualifications needed to receive permanent residency in the United States.
Full text available at http://www.law. cornell.edu/supct/cert/20-315.
Yellen v. Confederated Tribes of the Chehalis Reservation (No. 20-543)
Oral argument: Apr. 19, 2020
Court below: U.S. Court of Appeals for the District of Columbia Circuit
This case asks whether the Alaska Native Corporations (ANCs) are entitled to relief provided to “Indian Tribes” under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act incorporates the definition of “Indian tribe[s]” from the Indian Self-Determination and Education Assistance Act. Petitioners U.S. Treasury and ANCs argue that Congress expressly included the Alaska Native Corporations in the definition of Indian tribes and that the plain-meaning of the term “recognition” in the statute supports this inclusion. Respondent Confederated Tribes of the Chehalis Reservation and Ute Indian Tribe of the Uintah and Ouray Reservation argue that the ANCs do not qualify as Indian tribes because they are not formally recognized by a governmental authority or Congress as a sovereign tribe. The Supreme Court’s decision will impact the ability of Alaska Native Corporations to access funding through federal programs.
Full text available at http://www.law. cornell.edu/supct/cert/20-543.
Greer v. United States (No. 19-8709)
Oral argument: Apr. 20, 2021
Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to consider the proper evidentiary scope of plain-error review under Rule 52(b) of the Federal Rules of Civil Procedure, and the bounds of the reviewing court’s discretion to provide the defendant remedy for such an error. A jury found the petitioner, Gregory Greer, guilty of possessing a firearm as a felon. However, the prosecution did not prove to the jury that Greer knew about his felony status—a fact that the Supreme Court subsequently held is an element that the prosecution must prove. On review, the appellate court found that there was no plain error in Greer’s case because he had stipulated to his felony status before the jury trial. Greer contends that the appellate court could not consider evidence on plain-error review that was not presented to the jury at trial, given the text of Rule 52 and Greer’s constitutional rights to trial by jury and due process. The United States responds that a reviewing court may look to matters outside the trial record in order to determine whether an error at trial meets the requirements that allow the court to exercise its remedial discretion, such as whether the error prejudiced the outcome of the trial or adversely affects the reputation of the judicial proceedings. The outcome of the Supreme Court’s decision will have important implications for matters of fundamental fairness and the balance between judge and jury.
Full text available at http://www.law. cornell.edu/supct/cert/19-8709.
United States v. Gary (No. 20-444)
Oral argument: Apr. 20, 2021
Court below: U.S. Court of Appeals for the Fourth Circuit
This case asks the Supreme Court to decide whether a defendant who has pled guilty to the possession of a firearm should receive automatic plain-error relief if the defendant was not advised that an element of the offense is that he knew of his status as a felon. Petitioner United States argues that the guilty plea should not be reversed because plain-error review applies and insists that the respondent did not make the requisite showing of case-specific prejudice. Respondent Michael Andrew Gary counters that the guilty plea should be reversed because plain-error review does not apply in this case and that in the event that it does apply, case-specific prejudice is not required due to the error’s classification as “structural.” The outcome of this case will affect the obligations and strategies of criminal defendants and prosecutors, as well as the burden on the judicial system.
Full text available at http://www.law. cornell.edu/supct/cert/20-444.
Minerva Surgical Inc. v. Hologic Inc. (No. 20-440)
Oral argument: Apr. 21, 2021
Court below: U.S. Court of Appeals for the Federal Circuit
This case asks the Supreme Court to rule on the validity of the assignor estoppel doctrine. Under this doctrine, an assignor of a patent may not, in a suit against the assignee, claim that the patent is invalid. Petitioner Minerva Surgical Inc. argues assignor estoppel is not supported in the Patent Act and Court precedent favors the doctrine’s abolition. Respondent Hologic Inc. counters that assignor estoppel is implicit in the Patent Act and that stare decisis dictates that the Court uphold assignor estoppel. The outcome of this case has significant policy implications regarding the proper balance of the public interest in challenging potentially invalid patents and the interest in promoting equity and fair dealing in the assignor–assignee relationship.
Full text available at http://www.law. cornell.edu/supct/cert/20-440.
Americans for Prosperity Foundation v. Rodriquez (No. 19-251)
Oral argument: Apr. 26, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit This case asks the Supreme Court to determine whether a state charitable donor disclosure regulation unconstitutionally infringes on donors’ and charitable organizations’ free speech and association rights. California recently started enforcing its Schedule B regulation, which requires charitable organizations to provide the confidential names of their financial donors. Petitioners Americans for Prosperity Foundation and Thomas More Law Center argue that this compelled disclosure is facially unconstitutional because it fails “exacting” scrutiny and unconstitutional as applied to them because of the extreme risks to their political minority donors. Respondent Matthew Rodriquez, the Attorney General of California, argues that the regulation is necessary to enforce charitable fraud laws and that California can meet its regulatory objectives while simultaneously protecting donors’ confidential data. The Supreme Court’s decision will determine whether charities in California must disclose the names of their donors to state regulators and will also determine the bounds of organizational free association rights.
Guam v. United States (No. 20-382)
Oral argument: Apr. 26, 2021
Court below: U.S. Court of Appeals for the D.C. Circuit
This case asks the Supreme Court to determine how two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allocate responsibility for cleaning up environmental sites. CERCLA Section 107 allows a party to recover direct costs of cleaning up a site from responsible parties, while Section 113 allows a party who has already settled its own responsibility to recover “contribution” from other responsible parties. The territory of Guam, which owns a toxic waste dump, sued the United States to help fund the dump cleanup under both Sections 107 and 113. However, the lower court found that the availability of Section 113 barred Guam’s Section 107 claim based on a previous settlement between Guam and the federal government unrelated to CERCLA. Petitioner Guam argues that a settlement that does not mention CERCLA and disclaims any liability determination cannot force a party to bring a Section 113 claim instead of a Section 107 claim. Respondent United States counters that Section 113 broadly encompasses settlements that resolve liability under other laws besides CERCLA. This case has implications for prompt cleanups of environmental hazards across the United States.
Full text available at http://www.law. cornell.edu/supct/cert/20-382.
HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association (No. 20-472)
Oral argument: Apr. 27, 2021
Court below: U.S. Court of Appeals for the Tenth Circuit
This case asks the Supreme Court to decide whether the EPA’s Renewable Fuel Standards (RFS) requires small refineries to have continuously received the hardship exemption since 2011 to qualify for a hardship exemption under Section 7545(o)(9)(B) (i). Specifically, the Court must determine whether the statutory phrase “extension” acquires one of two definitions: a narrow definition, preferred by the Tenth Circuit and Respondent Renewable Fuels Association (RFA), which supports the case for continuity; or a broad reading, supported by Petitioner HollyFrontier Cheyenne Refining (Cheyenne), which effectively means to “grant” or “make available.” In selecting the appropriate definition, the Court must decide if and to what extent it should read “extension” apart from its broader statutory context or consider other factors such as congressional purpose and whether the EPA’s interpretation receives deference. This case has policy implications for the finances of local refineries, economies of local communities, and environmental health.
Full text available at http://www.law. cornell.edu/supct/cert/20-472.
United States v. PalomarSantiago (20-437)
Oral argument: Apr. 27, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit
The case asks the Court to determine whether a defendant can challenge the validity of a removal order for unlawful reentry solely by showing that the order was based on a criminal conviction that is no longer a removable offense without having to meet the procedural requirements of demonstrating administrative exhaustion and no opportunity for judicial review. Respondent Refugio Palomar-Santiago was removed in 1998 for a DUI, and in 2001, DUIs were re-classified as a nonremovable offense. Palomar-Santiago was then found living in the United States in 2017 and was charged with unlawful reentry by Petitioner United States. Palomar-Santiago asserts, as a defense, that the original removal order was unlawful. The United States contends that Palomar-Santiago cannot challenge the validity of the original removal order absent the procedural requirements of administrative exhaustion and judicial review of the original order. Palomar-Santiago counters that procedural rights should not obstruct substantive rights, and that he should be able to challenge the legality of the removal order even absent judicial review. The Supreme Court’s decision in this case will implicate immigration procedure and the ability of noncitizens to challenge unlawful removal orders.
Full text available at http://www.law. cornell.edu/supct/cert/20-437.
PennEast Pipeline Company, LLC v. State of New Jersey, et al. (No. 19-1039)
Oral argument: Apr. 28, 2021
Court below: U.S. Court of Appeals for the Third Circuit
This case asks the Supreme Court to consider whether a private company can exercise the federal government’s eminent-domain power and also considers the scope of a federal court’s jurisdiction. Once the Federal Energy Regulatory Commission has issued a certificate of public convenience and necessity, the Natural Gas Act authorizes private parties to exercise the federal government’s eminent-domain power to secure rights-ofway and compensation to the landowner. Petitioner PennEast Pipeline Company, LLC argues that the Natural Gas Act’s delegation is necessary and ministerial, and there is no insult to state sovereignty in suits such as this. By contrast, Respondent New Jersey et al. contend that this delegation violates the Eleventh Amendment’s guarantee of sovereign immunity to the states. Both PennEast and New Jersey argue that the Third Circuit properly exercised its jurisdiction over the case. The outcome of this case has implications for siting new natural gas pipelines, eminent domain, and states’ rights.
Full text available at http://www.law. cornell.edu/supct/cert/19-1039.
Terry v. United States (20-5904)
Oral argument: May 4, 2021
Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to interpret the meaning of “covered offense” under Section 404(a) of the First Step Act to determine which crimes fall under its definition, and thus, may be subject to retroactive reduced sentencing. Petitioner Tarahrick Terry pled guilty to possessing with the intent to distribute an unspecified amount of cocaine base (or “crack cocaine”) in violation of 21 U.S.C. § 841(b)(1)(C) in 2008. In 2010, Congress enacted the Fair Sentencing Act, which amended parts of 21 U.S.C. § 841 to adjust the difference in sentencing between crimes involving crack cocaine and those involving powder cocaine. In 2018, Congress enacted the First Step Act, which made the Fair Sentencing Act’s amendments retroactive. Terry, in support
of vacatur, argues that violations of Section 841(b)(1)(C) are “covered offenses” under Section 404 of the First Step Act, based on the text of Section 404(a), as well as the statute’s design and history. Adam K. Mortara, as amicus curiae in support of the judgment below, argues that Terry’s offense is not a “covered offense” under Section 404(a) based on a proper construction of the statute and the meaning of the phrases “violation of a Federal criminal statute” and “statutory penalties.” The case has implications for future retroactive sentencing statutory amendments, as well as inmates currently in custody for low-level crack-cocaine offenses before Congress passed the Fair Sentencing Act of 2010.
Full text available at http://www.law. cornell.edu/supct/cert/20-5904.
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