sovereign immunity

Allen v. Cooper

Issues

Did Congress have the power under Article I of the Constitution or Section 5 of the Fourteenth Amendment to pass the Copyright Remedy Clarification Act, which abrogated State’s sovereign immunity from violating federal copyright law?

This case asks the Supreme Court to determine whether Congress has the power to revoke States’ sovereign immunity from federal copyright infringement under the Copyright Remedy Clarification Act (“CRCA”). Frederick Allen, a videographer, and his video production company argue that the CRCA is a valid exercise of Congress’s enforcement power under the Intellectual Property Clause (“Clause”) of the Constitution. Allen and his company also argue that the CRCA is valid because it enforces his due process rights under Section 5 of the Fourteenth Amendment. Roy Cooper, the governor of North Carolina, argues that the CRCA is unconstitutional and that Congress’s Section 5 power to abrogate state sovereign immunity does not apply in this case. The outcome of this case has important implications for copyright holders and copyright enforcement, as well as for determining the extent of Congress’ power to abrogate state sovereign immunity.

Questions as Framed for the Court by the Parties

Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.

The Queen Anne’s Revenge is a former French merchant vessel that was captured by the pirate Edward Teach, more commonly known as Blackbeard, in 1717. Allen v. Cooper at 343. Teach abandoned the Revenge in 1718 when it ran aground off the coast of Beaufort, North Carolina.  Id.

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Bank Markazi v. Peterson et al.

Issues

Did Congress violate the constitutional principle of separation of powers by enabling plaintiffs in a single pending case to attach Iranian assets to satisfy their unpaid judgments?

 

In dozens of consolidated cases, Deborah D. Peterson and other plaintiffs (collectively, “Peterson”) representing terror victims collected billions of dollars in judgments against Iran for financing terrorist attacks. See Peterson v. Republic of Iran et al., 758 F.3d 185, 188 (2d Cir. 2014). In 2010, Peterson sued Bank Markazi, the government-owned Central Bank of Iran, under the Terrorism Risk Insurance Act (“TRIA”). See id. TRIA allows plaintiffs to attach or garnish the blocked assets of terrorists or their agents. While the action was pending, President Obama issued an executive order blocking the transfer of Bank Markazi’s assets from New York-based accounts, and Congress passed the Iran Threat Reduction and Syria Human Rights Act. See id. at 188–89. The Act’s relevant portion, section 8772, authorized the Peterson plaintiffs to execute against Bank Markazi’s assets to satisfy their unpaid judgments. The law was explicitly limited to Peterson’s action, pending in the District Court for the Southern District of New York. Based on section 8772, the district court granted Peterson Summary judgment, and the Second Circuit affirmed. The Supreme Court will decide whether Congress violated the constitutional principle of separation of powers by enacting laws that compelled a certain outcome in Peterson’s case. See Brief for Petitioner Bank Markazi, The Central Bank of Iran at i; Brief for Respondents Deborah D. Peterson, et al., at i. Bank Markazi argues that section 8772 impermissibly determines the outcome of a single pending case, which marks a Congressional expansion of power that is not supported by the Constitution or the Court’s precedent. See Brief for Petitioner at 26, 35. Peterson contends that Bank Markazi’s attack on the statute is unwarranted, because Congress has the constitutional authority to modify the governing law for pending civil litigation in in outcome-determinative ways. See Brief for Respondents at 16, 35–37. The outcome of this case will affect the balance of power between Congress and the courts, and clarify Congress’ power to affect pending litigation. See Brief of Amici Curiae Federal Courts Scholars, in Support of Petitioner at 11–13.   

Questions as Framed for the Court by the Parties

Does § 8772—a statute that effectively directs a particular result in a single pending case—violate the separation of powers?Does § 8772—a statute that effectively directs a particular result in a single pending case—violate the separation of powers?

Deborah D. Peterson and several individuals (collectively, “Peterson”) represent people killed in terrorist attacks sponsored by Iran. See Peterson v. Republic of Iran et al., 758 F.3d 185, 188 (2d Cir.

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Coleman v. Maryland Court of Appeals

Issues

Does the FMLA’s self-care provision abrogate states’ sovereign immunity from suits for damages?

 

After respondent Maryland Court of Appeals denied petitioner Daniel Coleman’s request for medical leave and terminated his employment, Coleman filed this suit against the State of Maryland under the self-care provision of the Family and Medical Leave Act (“FMLA”), which provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position,” 29 U. S. C. §2612(a)(1) (D). Coleman argues that the Act’s medical leave provisions should be considered as a unified effort against gender discrimination that permits state employees to sue state employers under the self-care provision, and that the purpose of preventing gender discrimination abrogates state immunity. The state responds that the FMLA’s provisions address discrete forms of discrimination that should be examined individually and that the states’ Eleventh Amendment immunity bars lawsuits against a state employer under the self-care provision. By deciding whether a state employee has legal recourse for a violation of the self-care provision, this case will clarify the scope of state exposure to employment lawsuits seeking money damages under the FMLA.

Questions as Framed for the Court by the Parties

In passing the FMLA, as the Court recognized in Nevada Department of Human Resources v. Hibbs, 538 U. S. 701, Congress intended to eliminate gender discrimination in the granting of sick leave. The legislative record supports its purpose and findings. The question presented for review is:

Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the FMLA’s self-care leave provision.

From March 2001 through August 2007, Coleman worked at the Maryland Court of Appeals. See Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir.

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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.

Additional Resources

Constitutional Law Prof Blog, Ruthann Robson: On Floors, Ceilings, Federalism and Constitutional Law Exams: West Virginia Weekend (Apr. 9, 2011)

National Organization for Women: The Provisions of the Family and Medical Leave Act (Feb. 5, 2007)

Stanford Law Review, Reva B. Siegel, You’ve Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, (Apr. 2006)

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Department of Agriculture Rural Development Rural Housing Service v. Kirtz

Issues

Do the Fair Credit Reporting Act provisions 15 U.S.C. §§ 1681n and 1681o waive sovereign immunity and allow for suits against the United States government for claims brought under the act?

This case asks the Court to determine whether the Fair Credit Reporting Act (FCRA) waives the United States’ sovereign immunity to suits brought against it under the statute. The Department of Agriculture Rural Development Rural Housing Service (USDA) argues that the FCRA contains no waiver of sovereign immunity because the statute neither explicitly waives sovereign immunity nor creates a cause of action that expressly authorizes suits against the government. The USDA further contends that Congress’s intentions are unclear because the FCRA does not clearly state whether the definition of “person” includes the federal government within §§ 1681n and 1681o. Respondent Reginald Kirtz counters that the FCRA unambiguously creates a cause of action authorizing suits against federal agencies under §§ 1681n and 1681o because the FCRA’s definition of “person” in § 1681a(b), which includes government agencies, applies to §§ 1681n and 1681o. This case touches on important questions regarding what constitutes a waiver of sovereign immunity and whether courts may interpret congressional intent when making such a determination.

Questions as Framed for the Court by the Parties

Whether the civil-liability provisions of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. unequivocally and unambiguously waive the sovereign immunity of the United States.

Reginald Kirtz took out loans from the United States Department of Agriculture Rural Development Rural Housing Service (“USDA”) and the Pennsylvania Higher Education Assistance Agency (“AES”). Kirtz v. Trans Union, LLC at 1. Kirtz closed his AES account with a balance of zero on or about June 7, 2016, and closed his USDA account with a balance of zero on or about June 7, 2018, both of which were reflected in his Trans Union credit report. Id. at 1–2.

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Dolan v. United States Postal Service

Issues

Does the Federal Tort Claims Act's exception for "negligent transmission" of mail by employees of the United States Postal Service apply to claims of physical harm to individuals due to employee negligence in delivering mail, or is it limited to claims of mail damaged by employee negligence?

 

Petitioner Barbara Dolan sustained serious injuries when she tripped over a stack of letters, packages, and other mail that an employee of the United States Postal Service left on her porch. She sued the United States Postal Service and the United States in federal court under the Federal Tort Claims Act, alleging that the United States Postal Service employee's negligence that led to her fall made them responsible for her injuries. The district court dismissed Dolan's complaint for lack of subject matter jurisdiction and found that the "negligent transmission" exception to the Federal Tort Claims Act barred claims for physical injury, as well as those for damaged or delayed mail. In granting certiorari, the United States Supreme Court must determine the scope of the statutory exception to the Federal Tort Claims Act, and whether it truly extends to "any claim" arising out of negligent transmission, including those for physical injury to individuals, or whether it is limited to claims for damaged mail.

Questions as Framed for the Court by the Parties

Does not this case – which involved a determination of whether the district court had jurisdiction over the claim of plaintiff when her injury was caused by the negligent placement of mail at the place of delivery – call for an exercise of this Court's supervisory power where there is a dispute between the circuits of the Court of Appeals as to whether the exception to the Federal Tort Claims Act, 28 U.S.C. ? 2680(b) barred this lawsuit and where the Third Circuit narrowly construed the Act?

Barbara Dolan ("Dolan") was injured when she tripped over a stack of mail that a United States Postal Service ("USPS") employee had left in front of her house. Brief for the Respondents at 2.

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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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Franchise Tax Board of California v. Hyatt

Issues

Should Nevada v. Hall, which held that a sovereign state can be sued in another state’s courts without its consent, be overruled?

Court below

The Supreme Court will determine whether or not to overrule Nevada v. Hall, which held that states do not enjoy immunity from suit in the courts of their sister states. Petitioner Franchise Tax Board of California (“Franchise Tax Board” or “the Board”) contends that historical evidence and Hall’s inconsistency with the Court’s other precedent regarding sovereign immunity require that the Court overrule Hall. Franchise Tax Board further argues that preserving Hall’s holding, thereby allowing states to be sued in the courts of other states, infringes on state sovereignty and unfairly burdens state tax collection practices. Respondent Gilbert Hyatt (“Hyatt”) counters that the Constitution does not grant states sovereign immunity in each other’s courts and that Hall is consistent with the Court’s jurisprudence on sovereign immunity. Hyatt also asserts that states have a vested interest in protecting their citizens and providing them with a forum to vindicate their rights—if Hall were overruled, individuals similarly situated to Hyatt would have no means of litigating this type of dispute. From a policy perspective, this case is important because it will determine whether states can be sued in the courts of other states without their consent.

Questions as Framed for the Court by the Parties

Whether Nevada v. Hall, which permits a sovereign state to be hailed into another state’s courts without its consent, should be overruled.

Respondent Gilbert P. Hyatt filed suit against Petitioner Franchise Tax Board of California (“Franchise Tax Board”) in 1998, alleging that it had committed certain intentional torts, causing him damages, and claiming that its tax auditors acted in bad faith while auditing Hyatt’s 1991 and 1992 state tax returns.

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Franchise Tax Board of the State of California v. Hyatt

Issues

May a private citizen sue a state agency in a foreign state’s court? If so, must that state’s court treat the foreign state agency at least as favorably as it would a similar agency from its own state?

Court below

 

The Supreme Court must determine the boundaries of Eleventh Amendment sovereign immunity and comity as applied to a state that has been unwillingly brought into another state’s courts. See Brief for Petitioner, Franchise Tax Board of the State of California at 1. The Franchise Tax Board of the State of California (“FTB”) looks to reverse Nevada v. Hall by expanding sovereign immunity to suits brought by private citizens in other states or, alternatively, to find that Nevada violated principles of full faith and credit, comity, and equality, by treating the FTB differently than it would a similar Nevada agency. See id. at 25. Conversely, Hyatt argues that Nevada v. Hall must be upheld as a matter of stare decisis and that the privilege of comity does not require the forum state, in all circumstances, to treat another state’s agency the same as the forum state’s equivalent agency. See Brief for Respondent, Gilbert P. Hyatt at 17. The Supreme Court’s decision will determine where states may be haled into court by a private citizen and to what degree states can be civilly liable for violating the law. See Brief of Amicus Curiae Multistate Tax Commission in Support of Petitioner at 4, 6.

Questions as Framed for the Court by the Parties

  1. May Nevada refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts?
  2. Should Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent, be overruled?

In 1991, Gilbert P. Hyatt (“Hyatt”) began to receive large amounts of income from licensing fees for a computer chip patent. See Franchise Tax Board v. Hyatt, 335 P.3d 125, 131 (Nev.

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Hencely v. Fluor Corporation

Issues

Can state-law tort claims be brought against an otherwise-immune federal military contractor where that contractor’s conduct breached its contract with the military and violated military orders?

 

This case asks the Supreme Court to decide whether a federal military contractor can be sued on state-law tort claims provided that the contractor breached its contract and violated military orders. Winston Hencely, a veteran who was injured in a suicide bombing at Bagram Airfield in Afghanistan, argues that Boyle v. United Technologies Corporation, which created federal military contractor immunity, does not apply in such circumstances, and that Boyle’s reasoning should not be extended to apply in such circumstances. Fluor Corporation counters that the federal interests at stake in bold military operations require broad immunity for military contractors. The outcome of this case will determine the scope of military contractors’ liability and the Supreme Court’s willingness to rely upon and expand doctrines made by courts rather than Congress. This case will also impact future military safety and defense contracting.

Questions as Framed for the Court by the Parties

Whether Boyle v. United Technologies Corporation should be extended to allow federal interests emanating from the Federal Tort Claims Act’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders.

Winston T. Hencely, the Petitioner, was an active-duty soldier stationed at Bagram Airfield in Afghanistan. Hencely v. Fluor Corp.

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