Nov 30 & December cases

The Court returns after Thanksgiving week with a number of major cases, some of which are getting a great deal of attention and others are deserving of more attention. [This blog took a brief hiatus for the early November cases, for personal reasons and because the ACA and other cases were getting plenty of coverage. But I’m back now.]

Monday, November 30 – Trump v. NY

Trump v. New York is partially about the census but most importantly about representation in the House of Representatives. Scotusblog pithily sets the context:

Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.

Amy Howe, Court fast-tracks census appeal, SCOTUSblog (Oct. 16, 2020, 7:13 PM), https://www.scotusblog.com/2020/10/court-fast-tracks-census-appeal/

In 2016, the Court considered a related but distinct issue in a case brought by voters who wanted to require their state to draw voting districts such that each would include a roughly equal number of eligible voters (rather than roughly equal total population). The Court rejected that claim in Evenwel v. Abbott, but held only that basing districts on total population was a permissible system that did not violate the principle of one person, one vote. The Court did not consider whether a state had to choose such a system (“we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population”).

Beyond the issues in Evenwel, this case raises additional important issues regarding the role of the federal government and the census specifically. I recommend perusing at least a few amici briefs in addition to the Scotusblog overview linked above. The briefs collected here notably include NAACP LDEF, Former Directors of the US Census Bureau, and Common Cause.

The second case today involves the Computer Fraud and Abuse Act — a broad law that makes for strange ideological alignments and opposition. In Van Buren v. United States, a police officer is accused of taking money in order to look up license plate information on a system he had legal access to for work purposes. The Electronic Privacy Information Center supports the prosecution, while Electronic Frontier Foundation opposes this reading of the statute.

Tuesday, December 1

First up is an argument that should be getting more public attention:

Nestlé USA and Cargill are alleged to have contributed to a system of child slavery and forced labor in the Ivory Coast for decades. Plaintiffs are six people who were trafficked from Mali and formerly enslaved as children on cocoa plantations in the Ivory Coast as part of this system.

https://ccrjustice.org/home/what-we-do/our-cases/doe-et-al-v-nestl-usa-inccargill-inc-amicus

The case is brought under the Alien Tort Claims Act — a law passed by the first Congress, creating a right for non-citizens to sue for violations of international law that occurred abroad. There has been much controversy in recent decades over the intent and scope of the law. Arguments based in the history of the law run the gamut from a claim that this was really about piracy on the high seas and nothing more, to claims that this was a desire to make the US a place where victims of human rights abuse could come for refuge and to seek justice, to something of a mid-point that we at least did not want the US to be a place where bad international actors could have refuge from accountability. Some human rights advocates have used the ATCA, but the Court has been severely limiting its scope over the past several years. Take a look at this interesting amicus brief by professors of legal history, and at this one by smaller cocoa producers (“Amici are at a competitive disadvantage to companies that source cocoa produced with forced and trafficked child labor”).

The two cases, Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, are consolidated for one hour of argument.

[The second case today, CIC Services LLC v. IRS, involves the Anti-Injunction Act and challenges to tax regulations, and is not one I would recommend for the casual observer.]

Wednesday, December 2

The first argument today is a major case involving House committee access to grand jury materials from the Mueller investigation: Dept. of Justice v. House Committee on the Judiciary. I needn’t say more here; see the Scotusblog overview (or probably a huge amount of news coverage to come closer to the arguments).

The second argument today will likely be overshadowed but is an important and interesting criminal law case. It was only in 2020 that the Court held that criminal convictions require a unanimous verdict. Ramos v. Louisiana. In today’s case, Edwards v. Vannoy, the Court will decided whether that decision “applies retroactively to cases on federal collateral review.”

Monday, December 7

On this anniversary of Pearl Harbor Day, the Court will hear two cases involving property taken during World War II. The legal issues in both cases involve whether the Foreign Sovereign Immunities Act bars lawsuits against Hungary and Germany under these circumstances. The factual contexts in the two cases are summarized by Oyez:

Republic of Hungary v. Simon

Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law.

https://www.oyez.org/cases/2020/18-1447

The Court has accepted cert. on “Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.”

Republic of Germany v. Phillip

In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then.

In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection.

https://www.oyez.org/cases/2020/19-351

For this case, the Court has accepted cert. on:

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Both cases have been consolidated for a total of 90 minutes of oral argument.

Tuesday, December 8

The first case today, Facebook v. Duguid, involves whether Facebook violated federal law by sending automated text messages. Facebook users can enter a cell phone number to be alerted of authorized access attempts. Duguid never signed up for Facebook but started receiving such text messages and could not make them stop. He sued under the 1991 Telephone Consumer Protection Act (TCPA), which prohibits using an autodialer (or automatic telephone dialing system (ATDS)).

TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The case today is essentially a grammatical issue — whether it’s a fair reading to define an autodialer as something that can “store . . . numbers to be called” or only one that can “store . . . numbers to be called, using a random or sequential number generator.” The 9th Circuit held that Facebook’s automated system fit that definition. On the contrary, “Facebook asserts that a system lacking the capacity to randomly or sequentially generate numbers cannot be an ATDS, even if it can store and automatically dial them.” See this useful overview of the legal and commercial issues.

Next up is arbitration agreements — a subject of many Supreme Court decisions in recent years, including in earlier stages of this same dispute, Henry Schein, Inc. v. Archer and White Sales, Inc. In general, the Supreme Court has been interpreting the Federal Arbitration Act to require courts to send many disputes to arbitration if the parties had agreed to arbitrate such disputes. But an open question is who decides if the parties have agreed to arbitration, especially if the contract contains a provision that otherwise appears to grant the arbitrator authority to interpret the meaning of the contract. This dispute in particular involves agreements that incorporate the rules of the American Arbitration Association, which some courts have held is sufficient to constitute agreement to have the arbitrator decide “questions of arbitrability,” but which the Fifth Circuit held was not controlling in this case. This is an important case because of the sheer number of contracts (including online terms of service for which people reflexively hit “agree”) that include arbitration clauses, but the arguments may be a little difficult to follow. The amicus brief by a group of arbitrators and arbitration scholars may help.

Wednesday, December 9

The last set of December cases involves the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis. The legal issues start with the structure: a single agency head who could be removed by the President “for cause,” raising separation of powers issues. Then there is the question of severability; can other agency powers survive if the appointment provisions are unconstitutional? And then there are various factual details surrounding exactly what the FHFA did and how it impacted the Fannie Mae shareholders. (And don’t get excited about all the mention of the “Third Amendment” — it’s not about quartering soldiers, but renegotiated terms between FHFA and Treasury!) In short, an important set of cases but it could be difficult to follow. Oyez has a useful start, then see the Fifth Cir. opinion.

April cases – final arguments of the year

This month, the Court completes oral arguments on all cases scheduled for this term.  I particularly recommend cases involving offensive trademarks, access to corporate information via FOIA, and the addition of a “citizenship question” to the Census.

Monday, April 15

The first case today reopens debates about offensive trademarks.  In 2017, the Supreme Court held in Matel v. Tam that the clause in the 1946 Lanham Act prohibiting registration of marks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” 15 U. S. C. §1052(a), was unconstitutional. It is possible to engage in commerce and even sue to protect your brand without registering the mark with the Patent and Trademark Office, and this is commercial (rather than political) speech so a lesser standard arguably applies, but the Court held that under any possible standard, the government has no legitimate interest in suppressing speech merely because it is offensive.

The vote was 8-0 to strike down the clause, but there were two opinions joined by 4 Justices each, so there is some confusion about how far a majority is willing to go in undoing other aspects of the Lanham Act.  Which is where this case, Iancu v. Brunetti, comes in.  Monday’s argument involves a dispute involving the apparel company FUCT, which was denied registration based on a similar provision, pertaining to “immoral” or “scandalous” trademarks.  It is a potentially closer case because obscene material gets less First Amendment scrutiny. There is useful background here and an argumentative recitation of parties’ positions here.

Today’s second case is not one I would ordinarily recommend to a casual observer, but may be worth staying for. Emulex Corp. v. Varjabedian involves interpretation of the various clauses in the Securities and Exchange Act’s § 14(e): “[i]t shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer.” 15 U.S.C. § 78n(e). Most Circuits have held that the final clause’s explicit mention of fraud should be imported to require that the misconduct described in the earlier clauses also are actionable only if there was deliberate deception, but the 9th Circuit in his case held that negligence was sufficient.

[Cases on Tuesday and Wednesday are not one’s I would recommend for most observers.]

Monday, April 22

The Freedom of Information Act’s “exemption 4” provides that government agencies should not release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Circuits have come to different conclusions about what is required for information to be deemed “confidential.” The court has suggested it may resolves those splits in Food Marketing Institute v. Argus Leader Media.  A useful overview of the case is here, but I also recommend at least glancing at a couple of amicus briefs from each side — the case has, predictably, drawn considerable interests from watchdog groups and trade associations.

Today’s second argument is a technical procedural question but an important one: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.” Fort Bend County, Texas v. Davis.

Tuesday, April 23

The addition of a “citizenship question” to the Census is before the Court today. Department of Commerce v. New York is one of the more contentious cases this term; I won’t say much about it here since it has received so much publicity. The Court first accepted 2 issues:

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;
(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis;

But in March it added another question:

The parties are directed to brief and argue the following additional question: Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the U.S. Constitution, art. I, §2, cl. 3.

The case has generated an extraordinary number of amicus briefs.  Scotusblog offers a useful symposium with a range of views.

There is also an afternoon (1pm) case today that involves an important issue:  Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. Mitchell v. Wisconsin.