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Bittner v. United States

Issues

Does an individual commit a single violation or multiple violations under the Bank Secrecy Act when the individual fails to report multiple foreign accounts during a single reporting period?

This case asks the Supreme Court to decide an issue of statutory construction; specifically, on what basis should the Secretary of the Treasury evaluate taxpayer violations of the Bank Secrecy Act (“BSA”). The Bank Secrecy Act requires citizens with a financial interest in a foreign bank account to report that financial interest to the Commissioner of Internal Revenue for each year that the interest exists. Alexandru Bittner contends that evaluating violations under the Bank Secrecy Act on a per-form basis is consistent with the statute’s text, history, and purpose. The United States counters that the text of the Bank Secrecy Act clearly outlines that a violation occurs on a per-account basis, not a per-form basis, and that the statute’s history and purpose confirm this viewpoint. The outcome of this case has heavy implications for tax law, banking regulations, civil penalties for tax violations, and financial interests in foreign bank accounts.

Questions as Framed for the Court by the Parties

Whether a “violation” under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.

Petitioner Alexandru Bittner is a dual citizen of Romania and the United States. United States v. Bittner, at 1. Bittner emigrated to the United States in 1982, where he obtained his American citizenship and lived until 1990, when he moved back to Romania. Id.

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CompuCredit Corp. v. Greenwood

Issues

Does the plain language of the CROA create a non-waivable right to sue, thereby  voiding  a consumer contract’s binding arbitration agreement?

 

Respondents Wanda Greenwood, Ladelle Hatfield, and Deborah McCleese each applied for an Aspire Visa credit card that petitioner CompuCredit Corporation marketed. Petitioner Synovus Bank issued the Aspire Visas after each respondent signed an agreement containing a binding arbitration provision. When respondents were charged card-related fees, they filed a class-action lawsuit on behalf of themselves and others similarly situated alleging that petitioners engaged in deceitful marketing in violation of the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seq. (“CROA”). CompuCredit moved to compel arbitration pursuant to the pre-dispute arbitration agreement. The district court acknowledged the strong federal policy favoring arbitration, but held that the CROA created a non-waivable right for consumers to sue in court. On appeal, the Ninth Circuit upheld the decision that the arbitration agreements were unenforceable under the CROA. Petitioners argue that the contract between the parties should be honored and the binding arbitration clause enforced. Respondents contend, however, that Congress intended to preserve the right to bring a claim in court when it enacted the CROA. The Supreme Court’s decision will consider the balance between consumers’ right to contract and providing adequate protections for vulnerable consumers. This decision will affect the enforceability of consumer contracts’ pre-dispute arbitration agreements and the extent to which arbitration may act as an acceptable substitute for an individual’s access to court.

Questions as Framed for the Court by the Parties

Whether claims arising under the CROA are subject to arbitration pursuant to a valid arbitration agreement.

CompuCredit Corporation considered a credit repair organization for purposes of this case, marketed a subprime credit card called Aspire Visa to consumers with impaired credit records. See Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1205 (9th Cir. 2010). As the card’s exclusive marketer and advertiser, CompuCredit Corp.

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Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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Department of Homeland Security v. MacLean

Issues

Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who violated one of the agency’s regulations?

The Supreme Court will address whether employees may violate government agency regulations without losing their rights under the Whistleblower Protection Act (“WPA”). The Court’s decision will clarify whether certain regulations have the force and effect of law under the WPA, which will, in turn, influence the extent to which employees will be willing to disclose information involving perceived government missteps. The Department of Homeland Security argues that violations of legislatively mandated regulations are unprotected under the WPA. MacLean contends, however, that an agency regulation is not an exception to the WPA, and thus disclosures that violate an agency regulation are still protected under the WPA.

Questions as Framed for the Court by the Parties

Congress has directed that the Transportation Security Administration “shall prescribe regulations prohibiting” the “disclosure of information obtained or developed” in carrying out certain transportation security functions, if the agency “decides” that “disclosing the information would * * * be detrimental” to transportation security. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101(e), 115 Stat. 603; Homeland Security Act of 2002, Pub. L No. 107-296, Tit. XVI, § 1601(b), 116 Stat. 2312. Such information is referred to in the regulations as “Sensitive Security Information.” See, e.g., 67 Fed. Reg. 8351 (Feb. 22, 2002).

The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

In 2001, Respondent Robert J. MacLean became a Federal Air Marshal (“Air Marshal”). See MacLean v. Dep't of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. 2013).

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Acknowledgments

The authors would like to thank Professors Cynthia Farina and Aziz Rana of Cornell Law School for their insights into this case.

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Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc.

Issues

Does the Puerto Rico Oversight, Management, and Economic Stability Act abrogate the sovereign immunity of the Financial Oversight and Management Board for Puerto Rico by granting general jurisdiction to federal courts over claims against the Board?

This case asks the Supreme Court to consider whether the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), which created the petitioner, the Financial Oversight and Management Board for Puerto Rico (“the Board”), abrogates the Board’s sovereign immunity by granting general jurisdiction to federal courts over claims against the Board. The Board argues that PROMESA does not abrogate its sovereign immunity, since the statutory language of PROMESA does not explicitly revoke its sovereign immunity. In contrast, the Centro de Periodismo Investigativo, Inc. (“CPI”) contends that PROMESA abrogates the Board’s sovereign immunity because the statutory language, read in conjunction with prior case law regarding the abrogation doctrine as well as the legislative history of PROMESA, implicitly revokes the Board’s sovereign immunity. The outcome of this case will profoundly impact the Board’s operations and public oversight of the Board’s financial decisions.

Questions as Framed for the Court by the Parties

Whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.

In 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”) to facilitate Puerto Rico’s economic recovery and debt restructuring. Centro De Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd.

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Glossip v. Oklahoma

Issues

Does due process require the reversal of a conviction where the state suppressed evidence that a key witness was under psychiatric care and failed to correct false testimony about that care?

Court below
Oklahoma Court of Criminal Appeals

This case asks the Supreme Court to determine when a prosecutor’s nondisclosure of information requires retrial of a death row case. Richard Eugene Glossip, a death row inmate, asserts that the state hid information that a key witness in the case was under psychiatric care and failed to correct that witness’s lies about his psychiatric care. He argues that these actions, along with other failures to turn over information, violate his due process rights under Brady v. Maryland and Napue v. Illinois. Christopher G. Michel, the court-appointed amicus curiae arguing in support of the judgment in the lower court, argues that the undisclosed information was too unclear to vindicate Petitioner or affect the jury. He also argues that the court cannot hear this case, as held by the lower court on an adequate and independent state ground. The outcome of this case has significant implications for public confidence in the criminal justice system and the role of prosecutors.

Questions as Framed for the Court by the Parties

(1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

On January 14, 1997, Justin Sneed bludgeoned Barry Van Treese to death. Glossip v. State at 223. Sneed pled guilty to this murder, for which he received a sentence of life without parole, and agreed to testify regarding the involvement of Richard Glossip in the crime.

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U.S. Fish and Wildlife Service v. Sierra Club

Issues

Does the deliberative process privilege exemption under the Freedom of Information Act protect a federal agency’s draft documents from disclosure when those documents were created for an interagency consultation and ultimately altered an agency’s decision-making process and subsequent agency action?

This case asks the Supreme Court to determine whether the deliberative process privilege under Exemption 5 of the Freedom of Information Act protects interagency draft documents. The documents in question are draft biological jeopardy opinions produced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act during an environmental consultation with the Environmental Protection Agency regarding a proposed agency regulation. The Sierra Club contends that the requested documents do not fall within the scope of the deliberative process privilege exemption because the jeopardy decision within the draft opinion was final, not tentative, and the documents shaped later agency decisions by requiring the Environmental Protection Agency to discontinue, modify, or seek an exemption for its proposed action. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service argue that the requested documents fall within the scope of the deliberative process privilege exemption because the exemption aims to encourage effective governmental decision-making and must protect inter-agency documents and memoranda that have not been adopted as final to further this goal. By granting certiorari in this case, the Supreme Court will determine the extent to which government agencies can invoke the deliberative process privilege and the correlative scope of the public’s right of access to information under the Freedom of Information Act.

Questions as Framed for the Court by the Parties

Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.

In 2012 and 2013, the Environmental Protection Agency (EPA) consulted with the U.S.

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