judicial review

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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Bouarfa v. Mayorkas

Issues

Can a visa petitioner challenge an immigration visa revocation decision in court if the revocation is based on the incorrect application of non-discretionary criteria?

The questions for the Supreme Court to consider are: first, whether USCIS can revoke a visa petition on discretionary grounds based on non-discretionary reasoning; second, whether courts can examine this decision to revoke a visa petition; and third, whether an applicant can order a review of a court’s petition denial. Petitioner Amina Bouarfa argues that courts should be able to review discretionary USCIS decisions where the premise for the decision is non-discretionary, and that an applicant is entitled to a court review these decisions. Respondents Alejandro Mayorkas and the Department of Homeland Security counter that the plain statutory language of immigration law prohibits Article III court review of these discretionary decisions; and, instead, USCIS has control over reviewing and reversing immigration decisions. The outcome of this case will influence the balance of power between the executive and judicial branches.

Questions as Framed for the Court by the Parties

Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non-discretionary criteria.

In 2014, Petitioner Amina Bouarfa, a U.S. citizen, filed an I-130 immediate relative visa petition with U.S. Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland Security (“the agency”), on behalf of her husband, Ala’a Hamayel, a noncitizen from Palestine. Bouarfa v. Mayorkas at 2–3. Upon approval from USCIS, an I-130 petition allows a U.S.

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Conkright v. Frommert

Issues

Whether a district court must defer to an ERISA plan administrator’s proposed remedy for an ERISA violation, where the violation resulted from a prior interpretation by the plan administrator.

 

Courts generally give deference to discretionary decisions made by ERISA pension plan administrators. This case will test the limits of that deference and will decide if a court is obligated to defer to a plan administrator’s proposed remedy for an ERISA violation, when the cause of the violation itself was the administrator’s prior interpretation. Petitioners and their amici argue that allowing judges to involve themselves in ERISA pension plan determinations without deferring to decisions made by the plan administrator will increase the costs and uncertainty of maintaining pension plans. Respondents and their amici, on the other hand, argue that deferring repeatedly to a plan administrator will increase costs through more and prolonged litigation, and will be unfair to plan participants who justifiably rely on promised benefits to plan for retirement.

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Questions as Framed for the Court by the Parties

1. Whether the Second Circuit erred in holding, in conflict with decisions of thisCourt and other Circuits, that a district court has no obligation to defer to an ERISA plan administrator's reasonable interpretation of the terms of the plan if the planadministrator arrived at its interpretation outside the context of an administrativeclaim for benefits.

2. Whether the Second Circuit erred in holding, in conflict with decisions of other Circuits, that a district court has "allowable discretion" to adopt any "reasonable"interpretation of the terms of an ERISA plan when the plan interpretation issue arises in the course of calculating additional benefits due under the plan as a result of an ERISA violation.

 

The Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

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Additional Resources

•       FindLaw: Pension Plans and ERISA

•       United States Department of Labor: ERISA

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Department of Homeland Security v. Thuraissigiam

Issues

Under the Suspension Clause, is 8 U.S.C. § 1252(e)(2) constitutional as applied to noncitizens who have secretly entered the United States?

This case asks the Supreme Court to decide whether, under the Suspension Clause, 8 U.S.C. § 1252(e)(2) is constitutional as applied to noncitizens who have secretly entered the United States. Petitioner Department of Homeland Security argues that noncitizens entering clandestinely, treated properly as seeking initial admission to the United States, are entitled to no due process protections; that such noncitizens are not entitled to habeas corpus under the Suspension Clause; and that even if the Suspension Clause does apply, the statute’s provision of administrative review and limited judicial review are sufficient. Respondent Thuraissigiam counters that notwithstanding the Government’s misreading of applicable law, clandestinely entering noncitizens within the United States are entitled to due process under the Fifth Amendment; that the Suspension Clause does apply to individuals in immigration proceedings; and that the statute provides an inadequate substitute for habeas corpus. This case has implications for states’ resource spending, revenue collection, and citizen welfare. Additionally, this case’s outcome could impact federal courts’ work load, depending on whether federal courts must open up to a new class of alien-petitioners.

Questions as Framed for the Court by the Parties

Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.

Vijayakumar Thuraissigiam, a Sri Lanka native, is of the Tamil ethnic minority and backed a Tamil political candidate. Thuraissigiam v. USDHS at 11–12. In June 2016, Thuraissigiam fled Sri Lanka to Mexico. Id. at 11. In February 2017, he entered the United States through the Mexico-California border and was arrested by U.S.

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Food and Drug Administration v. R.J. Reynolds Vapor Co.

Issues

May a manufacturer file a petition for judicial review in a circuit (apart from the United States Court of Appeals for the District of Columbia) where it does not reside or have its principal place of business, if the petition is joined by someone who sell the manufacturer’s products with that circuit?

This case asks the Supreme Court to determine whether a manufacturer is allowed to file a petition for judicial review in a place besides the United States Court of Appeals for the District of Columbia, where it also does not reside or have its principal place of business, because the petition is joined by a seller of the manufacturer’s products that is located there. In this case, the Food and Drug Administration denied R.J. Reynolds Vapor Co.’s premarket tobacco product application, and R.J. Reynolds Vapor Co. sought judicial review of this administrative order along with certain retail sellers. The Food and Drug Administration argues that filing a petition for review based on a retail seller’s residence or principal place of business is improper because retail sellers are not covered within the Tobacco Control Act’s zone of interests, the Tobacco Control Act would prohibit retailers from obtaining judicial review, and venue must be proper for all petitioners. R.J. Reynolds Vapor Co. counters that their petition is proper because retail sellers are covered within the Tobacco Control Act’s zone of interests, the Tobacco Control Act would allow retail sellers to obtain judicial review, and venue only needs to be proper for a single petitioner. This case has important implications for the regulation of e-cigarettes, retail sellers of tobacco products, and forum shopping.

Questions as Framed for the Court by the Parties

Whether a manufacturer may file a petition for review in a circuit (other than the U.S. Court of Appeals for the District of Columbia Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit.

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act (“TCA”), giving the Food and Drug Administration (“FDA”) the authority to regulate tobacco products, including e-cigarettes. R.J. Reynolds Vapor Co. v.

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Kappos v. Hyatt

Issues

Whether a plaintiff whose patent has been denied by the United States Patent and Trademark Office ("PTO") may present new evidence to the district court reviewing this denial, and whether the court must give deference to the PTO’s prior decision. 

 

Petitioner Gilbert Hyatt initiated a civil action under 35 U.S.C. § 145 against Respondent David Kappos, Director of the Patent and Trademark Office, after the PTO's Board of Patent Appeals and Interferences sustained rejections for seventy-nine of Hyatt’s patent claims. The district court disregarded new evidence presented by Hyatt, because he failed to present such evidence before the PTO when it was available, and granted Kappos summary judgment. The Federal Circuit initially affirmed, but later reversed the district court's ruling. Kappos argues that § 145 only affords Hyatt a review that is deferential to PTO determinations, and that new evidence can only be introduced if such evidence becomes available after the PTO proceedings. Hyatt counters that § 145 authorizes the district court to decide patent application de novo, and generally allows introduction of new evidence. The Supreme Court’s decision will clarify the procedure for judicial review of the patent application process.

Questions as Framed for the Court by the Parties

When the United States Patent and Trademark Office ("PTO") denies an application for a patent, the applicant may seek judicial review of the agency's final action through either of two avenues. The applicant may obtain direct review of the agency's determination in the Federal Circuit under 35 U.S.C. 141. Alternatively, the applicant may commence a civil action against the Director of the PTO in federal district court under 35 U.S.C. § 145. In a § 145 action, the applicant may in certain circumstances introduce evidence of patentability that was not presented to the agency.

The questions presented are as follows:

1. Whether the plaintiff in a § 145 action may introduce new evidence that could have been presented to the agency in the first instance.

2. Whether, when new evidence is introduced under § 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO.

Petitioner Gilbert P. Hyatt applied to the United States Patent and Trademark Office (“PTO”) in 1995 to patent his invention of a “computerized display system for processing image information.” See Hyatt v. Kappos, 625 F.3d 1320, 1323 (Fed. Cir.

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Additional Resources

Orin Kerr, The Volokh Conspiracy: Standards of Review in Patent Law: A Comment on Kappos v. Hyatt (December 20, 2011)

Gene Quinn, IP Watchdog: Jump the Shark Patent Style: The Supremes Take Kappos v. Hyatt (June 30, 2011)

Patent and Trademark Office: Board of Patent Appeals and Interferences

Patent and Trademark Office: How to Get a Patent

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Kisor v. Wilkie

Issues

Should the Supreme Court overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation?

This case asks the Supreme Court to determine whether Auer deference—a rule that requires a court to defer to an agency’s reasonable interpretation of its own ambiguous regulation—ought to be overruled. James Kisor contends that the Auer doctrine is not part of the lawmaking authority that Congress has delegated to agencies, but it instead circumvents the limits that Congress has placed on their authority, is inconsistent with the U.S. Constitution, and lacks any policy justification. Robert Willkie, the Secretary of Veterans Affairs, counters that, while there should be significant limitations on Auer deference, altogether discarding the doctrine would have heavy practical consequences for both agencies and regulated parties. The outcome of this case will affect the ability of regulated individuals and entities to comply with agency regulations and to challenge agency interpretations of their own regulations.

Questions as Framed for the Court by the Parties

Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

Petitioner James L. Kisor is a veteran who served on active duty in the Marine Corps from 1962 to 1966. Kisor v. Shulkin at 1361. Kisor filed a claim for disability compensation benefits with the Department of Veteran Affairs (“VA”) Regional Office in Portland, Oregon in 1982, claiming that he suffered from post-traumatic stress disorder (“PTSD”).

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Knowles v. Mirzayance

Issues

1. What is the proper application of the Supreme Court's test for ineffective assistance of counsel when the state court opinion summarily denies habeas relief but does not explain its reasoning, where the Antiterrorism and Effective Death Penalty Act of 1996 statutorily denies federal habeas relief unless the state court proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"?

2. Did the Ninth Circuit improperly substitute its own findings of fact for those of the district court?

 

During his trial for first-degree murder, Alexandre Mirzayance's attorney advised him to withdraw his insanity plea on the morning the insanity phase of the trial was to begin. After he was sentenced to twenty-nine years to life, Mirzayance initiated a habeas petition, claiming that his attorney's advice to withdraw his insanity plea constituted ineffective assistance of counsel. The California Court of Appeals and the California Supreme Court both summarily dismissed the petition without explanation. Mirzayance appealed to the federal court system. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court is barred from granting habeas relief unless the prior state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." After a remand from the Ninth Circuit to conduct a factual hearing, the district court granted the petition, apparently misapprehending the test the Ninth Circuit dictated. The Ninth Circuit applied the facts surrounding the withdrawal of the defense and found ineffective assistance of counsel under the Strickland test. Knowles argues that the Ninth circuit failed to adhere to AEDPA's rule requiring deference to state courts. He argues that it should have reviewed the state-court decision based on whether there was any way that the state court could have ruled the way it did. Mirzayance argues that when a state court has no published reasoning for its decision, a federal court is entitled to conduct its own fact-finding on review.

Questions as Framed for the Court by the Parties

Concluding that defense counsel was ineffective in advising petitioner to withdraw his not-guilty-by-reason-of-insanity plea, the Ninth Circuit Court of Appeals granted habeas relief to petitioner without analyzing the state-court adjudication deferentially under "clearly established" law as required by 28 U.S.C. § 2254(d) and by supplanting the district court's factual findings and credibility determinations with its own, opposite factual findings. This Court vacated the Ninth Circuit decision and remanded the case for further consideration in light of Carey v. Musladin, 127 S. Ct. 649 (2006). On remand, the Ninth Circuit conceded that "no Supreme Court case has specifically addressed a counsel's failure to advance the defendant's only affirmative defense" but nonetheless concluded that its original decision was "unaffected" by Musladin and subsequent § 2254(d) decisions of this Court.

The questions presented are:

1. Did the Ninth Circuit again exceed its authority under § 2254(d) by granting habeas relief without considering whether the state-court adjudication of the claim was "unreasonable" under "clearly established Federal law" based on its previous conclusion that trial counsel was required to proceed with an affirmative insanity defense because it was the only defense available and despite the absence of a Supreme Court decision addressing the point?

2. May a federal appellate court substitute its own factual findings and credibility determinations for those of a district court without determining whether the district court's findings were "clearly erroneous?"

The facts as presented here are drawn from the party briefs.

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Kucana v. Holder

Issues

Whether the decision by the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding is a decision that is “specified”  within  the Attorney General’s discretionary authority under 8 U.S.C. § 1252(a)(2)(B)(ii).

 

Agron Kucana, an Albanian immigrant, missed his immigration hearing and, in absentia, was ordered to be removed. The Board of Immigration Appeals (the “Board”) denied Kucana's motion to reopen his case. Kucana appealed the decision to the Seventh Circuit Court of Appeals, which ruled that the Board’s decision was not subject to judicial review. In relevant part, 8 U.S.C. § 1252(a)(2)(B)(ii) specifies that certain matters subject to the Attorney General’s discretion are not subject to judicial review. The dispute in this case centers on the scope and proper interpretation of the statute — in particular, on whether it allows judicial review of decisions not to reopen cases, or whether these decisions are outside the realm of judicial review, because they are the subject to the Attorney General’s discretion. The outcome of this case will determine the ability of immigrants to challenge denials of their motions to reopen through the regular judicial process.

Questions as Framed for the Court by the Parties

Judicial review of immigrants’ legal claims is addressed 8 U.S.C. § 1252(a)(2)(B)(ii), which provides that no court shall have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security. The question presented is whether the court of appeals has the jurisdiction to review an immigrant’s petition to reopen an immigration proceeding.

In this case, the Supreme Court will address the statutory interpretation of 8 U.S.C. § 1252(a)(2)(D), which determines the scope of judicial review on certain discretionary decisions.

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Additional Resources

·  Wex: Law about Immigration

·  ImmigrationProf Blog: Supremes Grant Cert in Motion to Reopen Case

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Mach Mining v. EEOC

The Supreme Court will determine the extent to which courts can review efforts by the Equal Employment Opportunity Commission (“EEOC”) to informally mediate discrimination claims before filing a lawsuit. Mach Mining, LLC argues that judicial review of the EEOC’s pre-suit conciliation efforts is permissible pursuant to the statutory language of 42 U.S.C. § 2000e-5(b). Contrarily, the EEOC asserts that Congress did not intend for judicial review of the EEOC’s pre-suit conciliation efforts. The Supreme Court will have the opportunity to resolve a circuit split regarding judicial review of the EEOC’s pre-conciliation efforts. Further, the Supreme Court will clarify the boundaries of the EEOC’s responsibilities in the conciliation process. 

Questions as Framed for the Court by the Parties

Whether the court can impose the mandatory requirement of conciliation on the EEOC before the organization to file a civil discrimination suit?

In 2008, a woman filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). See EEOC v. Mach Mining Inc., 738 F.3d 171, 173 (7th Cir. 2013). The woman alleged that Mach Mining, LLC (“MM”) denied her a job because of her sex.

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