agencies

Arellano v. McDonough

Issues

Does the rebuttable presumption of equitable tolling, which would allow a veteran to apply for disability benefits past the normal deadline, apply to 38 U.S.C. § 5110(b)(1), and if so, has the Government rebutted that presumption?

38 U.S.C. § 5110(b)(1) allows veterans who apply for disability compensation benefits within one year of discharge from the military to have retroactive disability compensation benefits counted from the date of discharge instead of the date of application for benefits. In this case, the Supreme Court will determine whether equitable tolling, an exemption to statutes of limitations under which plaintiffs who could not discover the basis to bring their lawsuits until after the expiration of the limitations period may bring a claim, applies to this one-year deadline. Although 38 U.S.C. § 5110(b)(1) does not have an explicit statute of limitation, Arellano argues that the statute functionally serves as a statute of limitations and that the Court has held that equitable tolling applies by default to functional statutes of limitations, including those applicable to suits against the government. McDonough counters that § 5110(b)(1) is not a statute of limitations, and that if Congress intended to allow equitable tolling to apply to the statute, it would have explicitly stated so in the law. The Court’s decision in this case will impact veterans’ welfare and the speed and procedure of disability claims administration.

Questions as Framed for the Court by the Parties

(1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

Congress has authorized disability benefits under 38 U.S.C. § 1110 for veterans who suffered disabilities during their service. Arellano v. McDonough at 1061. The size of the benefits is partly determined by the effective date of the award.

Acknowledgments

The authors would like to thank Professor Kevin M. Clermont for his guidance and insights into this case.

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Axon Enterprise, Inc. v. FTC

Issues

Does the FTC Act remove subject-matter jurisdiction from district courts to hear constitutional challenges to the FTC’s structure, procedures, and existence by providing for FTC administrative adjudication of antitrust issues and review of these decisions by the courts of appeals?

This case asks the Supreme Court to decide whether claims brought by parties like Axon Enterprise, Inc. (“Axon”) that challenge the structure of the Federal Trade Commission can be reviewed by district courts prior to the completion of agency proceedings. Axon contends that federal district courts should be able to hear constitutional challenges to agency structure concurrently with agency enforcement proceedings because enjoining such proceedings is necessary to avoid “here-and-now” constitutional injury. The FTC counters that the Federal Trade Commission Act implicitly strips district courts of subject-matter jurisdiction over these challenges, making judicial review available only in the courts of appeals and only after a final order by the FTC. The case carries significant implications for administrative law because allowing businesses subject to FTC regulation to preemptively challenge agency proceedings could significantly scale back the agency’s enforcement powers.

Questions as Framed for the Court by the Parties

Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the commission’s cease-and-desist orders.

The Federal Trade Commission Act (the “FTC Act”) empowers the Federal Trade Commission (“FTC”) to address the use of “unfair methods of competition” by initiating administrative proceedings and issuing cease-and-desist orders. Axon Enter. v. Trade Comm’n at 1189.

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Consumer Financial Protection Bureau v. Community Financial Services Ass’n of America

Issues

Does the Consumer Financial Protection Bureau’s funding structure violate the Constitution’s Appropriations Clause because it draws money directly from the Federal Reserve’s proceeds, and, if so, should the Court vacate its Payday Lending Rule?

This case asks the Supreme Court to decide whether the Consumer Financial Protection Bureau’s (“CFPB”) funding structure is constitutional under the Appropriations Clause. The CFPB argues that the text of the Appropriations Clause, in conjunction with its historical and modern understandings, supports its existing funding structure. Consumer Financial Services Association of America counters that the Appropriations Clause requires Congress to make a valid appropriation, and the current funding structure does not satisfy this requirement. The outcome of this case has serious implications for the regulation of financial markets and for consumers who borrow from financial institutions.

Questions as Framed for the Court by the Parties

Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. § 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.

After the financial crisis of 2008, Congress enacted the Consumer Financial Protection Act which created the Consumer Financial Protection Bureau (“CFPB”). 12 U.S.C. §§ 5481–5603.

Acknowledgments

The authors would like to thank Professor Jed Stiglitz for his guidance and insights into this case.

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Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board

Issues

Whether the Sarbanes-Oxley Act violates the Constitution’s separation of powers doctrine by stripping the President of authority to select or remove members of the Public Company Accounting Oversight Board (“Board”), and whether the Board members are properly categorized as “inferior officers”, the Securities and Exchange Commission (“SEC”) is properly categorized as a “Department”, and the five commissioners are properly the “Head” of the SEC, so as to be consistent with the Constitution’s Appointments Clause.

 

In 2002, Congress passed the Sarbanes-Oxley Act in reaction to the perceived failures of the self-regulatory system for accounting procedures that led to the infamous Enron and WorldCom scandals. The Act established the Public Company Accounting Oversight Board to supervise the audit of public companies. Although the Board is under the authority of the Securities and Exchange Commission, its members are not subject to direct removal or appointment by the President and it retains the power to set and raise its own budget. In this case, the Supreme Court will determine whether the Act’s establishment of the Board is an unconstitutional violation of separation of power principles and whether the Board’s structure violates the Appointments Clause. Petitioners argue that the Act violates  separation  of powers by diminishing the President’s ability to control or supervise Board members. Respondents argue that the Act does not violate  separation  of powers because Congress can grant exclusive appointment and removal authority to the Heads of Departments. Petitioners additionally argue that the Board’s structure violates the Appointment Clause because Board members are Principal Officers and, even if they were to be construed as Inferior Officers, their appointment is still unconstitutional, because the SEC is not a “Department” and its Commissioners are not the SEC’s “Head,” as required by the Clause. In response, Respondents argue that Board members are inferior officers because they are controlled directly by the  SEC,  and that the SEC  is in fact  a “Department” over which the President can exercise broad control and the Commission is its “Head” because it exercises the SEC’s collective powers. The case will ultimately determine the permissibility of the scheme currently in place that regulates US financial markets.

Questions as Framed for the Court by the Parties

1. Whether the Sarbanes-Oxley Act of 2002 violates the Constitution's separation of powers by vesting members of the Public Company Accounting Oversight Board ("PCAOB") with far-reaching executive power while completely stripping the President of all authority to appoint or remove those members or otherwise supervise or control their exercise of that power, or whether, as the court of appeals held, the Act is constitutional because Congress can restrict the President's removal authority in any way it "deems best for the public interest."

2. Whether the court of appeals erred in holding that, under the Appointments Clause, PCAOB members are "inferior officers" directed and supervised by the Securities and Exchange Commission ("SEC"), where the SEC lacks any authority to supervise those members personally, to remove the members for any policy-related reason or to influence the members' key investigative functions, merely because the SEC may review some of the members' work product.

3. If PCAOB members are inferior officers, whether the Act's provision for their appointment by the SEC violates the Appointments Clause either because the SEC is not a "Department" under Freytag v. Commissioner, 501 U.S. 868 (1991), or because the five commissioners, acting collectively, are not the "Head" of the SEC.

The notorious financial accounting scandals involving Enron and Worldcom demonstrated the inadequacies of the self-regulatory reporting requirements governing many public companies. See Free Enterprise Fund v.

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Additional Resources

• Wex: Law about Securities

• Wex: Law about Separation of Powers

• Securities Prof Blog, Law Professor Blogs Network: Securities

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National Association of Manufacturers v. Department of Defense

Issues

Do federal district courts have broader jurisdiction under 33 U.S.C 1369(b)(1) over challenges to rules promulgated under the Clean Water Act than that statute expressly enumerates?

This case presents the Supreme Court with the opportunity to review whether the Clean Water Act grants broad original and exclusive jurisdiction to the United States Courts of Appeals. Under the Administrative Procedure Act, agency actions are judicially reviewable by the federal district courts unless otherwise provided by congressional statute. One such provision—Section 1369(b) of the Clean Water Act—enumerates classes of agency actions that are originally and exclusively reviewable by the Courts of Appeals. In June 2015, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency jointly adopted a new rule redefining the phrase “waters of the United States.” The National Association of Manufacturers argues that challenges to this rule fall outside of the classes enumerated in Section 1369(b) and thus are not directly reviewable by the Courts of Appeals. The Department of Defense and U.S. Environmental Protection Agency, on the other hand, argue that Section 1369(b) should be read broadly and functionally as to include the rule. The outcome of this case will implicate judicial efficiency and thoroughness concerns.

Questions as Framed for the Court by the Parties

Whether the United States Court of Appeals has original jurisdiction under 33 U.S.C. 1369(b)(1) over a petition for review challenging a regulation that defines the scope of the term “waters of the United States” in the Clean Water Act. 

In June 2015, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (“EPA”) jointly adopted the “Waters of the United States” Rule (“WOTUS Rule”) as published in the “Clean Water Rule.” See In re U.S. Dep’t of Def. et al., 817 F.3d 261, 264 (6th Cir. 2016); Brief for Petitioner, National Association of Manufacturers (“NAM”) at 2.

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Rudisill v. McDonough

Issues

Does the post-9/11 GI Bill limit education benefits for a veteran who qualifies for both the Montgomery and Post-9/11 GI Bills, by requiring that the veteran first exhaust their Montgomery benefits or make a 38 U.S.C. § 3327(a) election between educational benefits, or is a veteran entitled to both benefits due to two distinct service periods?

This case asks the Supreme Court to decide whether the Federal Circuit erred in holding that a veteran who switched from using Montgomery GI Bill educational benefits to Post–9/11 GI Bill benefits is limited to only accessing his remaining Montgomery benefits. Petitioner James Rudisill asserts that the Federal Circuit improperly reads § 3327(a) as mandatory and wrongly applies it to certain classes of veterans in a manner not intended by Congress, and in conflict with the pro-veteran canon. The respondent, the Secretary of Veterans Affairs Denis McDonough, counters that § 3327(a) remains elective and is applicable to all veterans, and that Rudisill’s invocation of the pro-veteran canon is improper. This case could impact the educational benefits of millions of veterans, as well as the application of the veterans’ canon, an interpretive tool by which courts assume Congress intends interpretations of ambiguous statutory text that favor veterans.

Questions as Framed for the Court by the Parties

Whether a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill and the Post–9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post–9/11 benefit.

Appellee James Rudisill (“Rudisill”) is a veteran who served in active–duty three separate times, amounting to almost 8 years of active service between 2000 and 2011. Rudisill v.

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Salinas v. United States Railroad Retirement Board

Issues

Can annuity benefits claimants under the Railroad Retirement Act seek judicial review when the Railroad Retirement Board denies a claim to reopen a decision under Section 5(f) of the Railroad Unemployment Insurance Act, or does such a determination fail to represent a final decision?

This case asks the Supreme Court to interpret the judicial review provision of the Railroad Unemployment Insurance Act, and to determine whether the statute provides for broad review of agency decisions, such as decisions to reopen or deny a reopening of past outcomes through the “any final decision” language of Section 355(f). Manfredo Salinas argues that the Supreme Court should construe the Railroad Unemployment Insurance Act’s provision broadly to permit judicial review of a United States Railroad Retirement Board decision not to backdate disability benefits. The United States Railroad Retirement Board counters that the statute grants the United States Railroad Retirement Board broad internal review and limits judicial review only to those decisions encompassed by the express language of the surrounding statutory framework. This case has important implications on the finality and reviewability of decisions that impact the duration and dollar amount of federally funded annuities.

Questions as Framed for the Court by the Parties

Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review.

On February 28, 2006, Petitioner Manfredo M. Salinas (“Salinas”), a railroad worker, applied to Respondent United States Railroad Retirement Board (the “Board”) for a disability annuity under 45 U.S.C. § 231(a)(1). See Salinas v. U.S. R.R. Ret. Bd. at 1–2. The Board denied Salinas’s application on August 28, 2006.

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Santos-Zacaria v. Garland

Issues

Does 8 U.S.C § 1252(d)(1) prevent an appellate court from reviewing a claim regarding impermissible factfinding by the Board of Immigration Appeals when a petitioner fails to first file a motion to reconsider?

This case asks the Supreme Court to determine whether a petitioner must file a motion to reconsider with the Board of Immigrant Appeals to satisfy the exhaustion requirement (8 U.S.C. § 1252(d)(1)) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and whether this requirement is jurisdictional or a waivable claims-processing rule. Leon Santos-Zacaria argues that the exhaustion requirement is a claims-processing rule because the statute does not mention jurisdiction, and Congress must clearly state that a procedural requirement is jurisdictional for it to be so. Santos-Zacaria further argues that the exhaustion requirement pertains only to remedies available to the alien as of right, which Santos-Zacaria asserts does not include reconsideration. U.S. Attorney General, Merrick Garland, counters that the exhaustion requirement is jurisdictional because the statute is written with language like that which is used to define the scope of appellate jurisdiction. Garland further asserts that the exhaustion requirement encompasses issue exhaustion, which includes reconsideration, because the applicant must give the agency a chance to correct its own mistakes before resorting to appellate review. The outcome of this case will determine the accessibility of judicial review of asylum application decisions.

Questions as Framed for the Court by the Parties

Whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider.

Santos-Zacaria, a transgender woman from Guatemala, was assaulted at the age of 12, in part due to her sexuality. Santos-Zacaria v. Garland at 2. Santos-Zacaria traveled to the United States and began the process of seeking asylum a few years after the assault in Guatemala. Id.

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Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

Issues

Does the Fair Housing Act include a right of action for disparate-impact claims?

In this case, the Supreme Court will determine whether the U.S. Department of Housing and Urban Development (“HUD”)’s interpretation of the Fair Housing Act (“FHA”) to include disparate-impact claims is subject to Chevron deference, which would result in disparate-impact liability under the FHA. The Texas Department of Housing and Community Affairs argues that the Court should not defer to the HUD’s interpretation, which it claims is unreasonable because the language of the FHA differs from other statutes that explicitly allow disparate-impact liability. Inclusive Communities, on the other hand, argues that the HUD’s interpretation is entitled to deference because it is reasonable, and is in fact the most favorable interpretation, given that the FHA’s goal of “remedy[ing] existing effects of prior intentional segregation.” This case will ultimately determine the breadth of the rights of action under the FHA for discrimination in affordable housing. 

Questions as Framed for the Court by the Parties

1.    Are disparate-impact claims cognizable under the Fair Housing Act?

2.    If disparate-impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply?

NOTE: The Supreme Court has limited its inquiry to Question 1.

The Petitioner, Texas Department of Housing and Community Affairs (“TDHCA”), is a state agency that allocates Low Income Housing Tax Credits (“LIHTCs”) to housing developers. See Inclusive Communities Project, Inc. v.

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•    Nicole Flatow: The Supreme Court is Poised to Cripple the Federal Ban On Housing Discrimination, Thinkprogress.org (Oct. 2, 2014).

•    Sam Hananel: Supreme Court to Hear Another Case On Housing Bias, Huffington Post (Oct. 2, 2014).

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