U.S., Ex Rel. Eisenstein v. City of New York

Issues

If the United States decides not to intervene when a party files a qui tam action under the False Claims Act, should the party be allowed a 60-day time limit to file its notice of appeal because the United States is technically a party, or should they be subject to the standard 30-day time limit?

 

Fifty-four days after the Southern District of New York dismissed Irwin Eisenstein's qui tam action against the City of New York, Eisenstein filed a notice of appeal with the Second Circuit Court of Appeals. The Second Circuit asked the parties to brief whether the notice of appeal was timely filed. According to the Federal Rules of Appellate Procedure, parties only have 30 days to file a notice of appeal, and this will be extended to 60 days when the United States is a party.  Eisenstein claimed that, even though the United States declined to intervene, it was a "real party of interest" and therefore he was entitled to the 60 day limit. The City of New York conceded that, while the United States was a "party of interest", they were not a party for the purpose of measuring the timeline on appeal. The Supreme Court granted certiorari to determine whether the relator in a qui tam action is entitled to the extended 60 day time limit for appeal when the United States chooses not to intervene in the action.

    Questions as Framed for the Court by the Parties

    Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act, where the United States has declined to intervene in that action.

    Eisenstein's Underlying Complaint

    Irwin Eisenstein was an employee of the City of New York ("the City"), and during his employment he lived in both New Jersey and the City. See U.S. ex rel. Eisenstein v.

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    U.S. Army Corps of Engineers v. Hawkes Co.

    Issues

    Under the Administrative Procedure Act, are jurisdictional determinations by the U.S. Army Corps of Engineers that property contains “waters of the United States” (as defined by the Clean Water Act) subject to immediate judicial review?

     

    Peat miner Hawkes Co., Inc. owns property in Minnesota that contains wetlands. Hawkes requested a jurisdictional determination (“JD”) from the U.S. Army Corps of Engineers (the “Corps”) to determine if Hawkes could mine on new land. Under the Clean Water Act (“CWA”), the Corps can issue JDs to inform landowners if their land contains “waters of the United States” and are thus subject to certain licensure requirements. The Corps surveyed the property and issued an affirmative JD. The Supreme Court will decide whether JDs are final agency actions subject to judicial review under the Administrative Procedure Act (“APA”). To appeal an administrative decision under the APA, the decision must be final and impose legal obligations. The Corps asserts that JDs are not final agency actions because they are merely informational, and argues there are other options for landowners to obtain judicial review. Hawkes argues that other methods of review are prohibitively costly, and that JDs practically impose legal obligations on landowners. The Court’s decision could affect how often agencies defend their actions in court.

    Questions as Framed for the Court by the Parties

    Does the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, 33 U.S.C. 1362(7); see 33 U.S.C. 1251 et seq., constitute “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. 704, and is therefore subject to judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq.?

    Hawkes Co., Inc., is a mining company that excavates peat from wetland areas in Minnesota. Hawkes wanted to expand its operations to wetlands near its current operations. See Hawkes v. United States Army of Eng’rs, 782 F.3d 994, 998 (8th Cir. 2015). After purchasing an option on the new property, Hawkes met with the U.S.

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    Acknowledgments

    The authors would like to thank Jed Stiglitz, assistant professor of law and Jia Jonathan Zhu and Ruyin Ruby Ye Sesquicentennial Fellow, for his valuable insights about this case.

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    BNSF Railway Co. v. Loos

    Issues

    Are damages for lost wages in a personal injury suit brought under the Federal Employers Liability Act taxable as “compensation” under the Railroad Retirement Tax Act?

    In this case, the Supreme Court will decide whether time lost awards are taxable as “compensation” under the Railroad Retirement Tax Act. BNSF Railway Company argues that such awards are taxable because they fall within the employer-employee relationship, especially when the Railroad Retirement Tax Act is read in conjunction with the Railroad Retirement Act. Michael Loos counters that the plain text of the Railroad Retirement Tax Act does not include time lost awards in its definition of “compensation” and that regardless, Internal Revenue Code (“I.R.C.”) § 104(a)(2) excludes personal injury awards from taxation. The outcome of this case will determine the contours of the definition of “compensation” in the Railroad Retirement Tax Act as well as the extent to which the Railroad Retirement Tax Act and the Railroad Retirement Act should be interpreted as a unified statutory scheme.

    Questions as Framed for the Court by the Parties

    Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

    Respondent Michael Loos (“Loos”) is a former employee of Petitioner, BNSF Railway Company (“BNSF”). Loos v. BNSF Railway Company at 3. During his employment with BNSF, Loos incurred a number of attendance policy violations, some of which Loos attributed to “flare-ups” of a workplace injury. Id. at 4–6. Due to repeated attendance policy violations, BNSF terminated Loos’s employment on November 29, 2012. Id.

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    Bucklew v. Precythe

    Issues

    When an inmate with a rare and severe medical condition brings an as-applied challenge to a state’s method of execution, should the court assume that the execution will go as planned? And is the inmate constitutionally required to prove an alternative method of execution? Here, did Russell Bucklew meet his burden to prove the procedures of his proposed alternative method and the degree of pain he would likely suffer, and did he show how they compare to the method he challenges?

    This case asks the Supreme Court to determine whether a death row inmate challenging an execution method must prove a feasible alternative execution method when the challenged method will allegedly inflict an unconstitutional level of pain as applied to the inmate’s medical condition. Russell Bucklew argues that the state should bear the burden of proving an alternative method in such an “as-applied” challenge. He reasons that because there is no risk that the challenged execution method will be outlawed in its entirety and because the state is in the best position to evaluate the effect of existing execution methods on the inmate’s medical condition, the Court should place the burden on the state. The Department of Corrections (“DOC”) argues that the inmate in an “as-applied” challenge case should bear this burden. The DOC notes that the inmate would be able to obtain an exemption from capital punishment and needlessly delay their execution by bringing meritless claims if the Court placed the burden on the state rather than on the inmate. The Supreme Court’s decision in this case will impact the ability of inmates to challenge execution methods, the administrability of common execution methods such as lethal injection, and the effect of the capital punishment process on drug regulators, physicians, and state corrections officers.

    Questions as Framed for the Court by the Parties

    1. Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that the procedure will go as intended;
    2. Whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate;
    3. Whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and
    4. Whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

    In March 1996, Russell Bucklew followed his former girlfriend, Stephanie Ray, to the trailer home of Michael Sanders, where she was living. Bucklew v. Precythe (“Precythe”) at 1–2. Bucklew entered the trailer and shot Sanders. Id. While Sanders bled to death, Bucklew handcuffed Ray, dragged her into his car, and drove away.

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    Republic of Sudan v. Harrison

    Issues

    Can a plaintiff suing a foreign state under the Foreign Sovereign Immunities Act properly serve that foreign state by mailing the service package to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s embassy located in the United States?

    This case asks the Supreme Court to decide whether plaintiffs can serve a foreign state under the Foreign Sovereign Immunities Act (“FSIA”) by addressing the service of process package to the state’s foreign minister and sending it to the foreign state’s embassy located in the United States. The plaintiff, the Republic of Sudan (“Sudan”), maintains that, under the FSIA, plaintiffs must serve a foreign state by sending the service of process package to the foreign minister at the ministry of foreign affairs located in that foreign state’s capital. Sudan contends that Article 22 of the Vienna Convention supports this interpretation because it precludes service “via” or “through” a diplomatic mission. However, the respondents—a group of victims of an al-Qaeda attack including named party Rick Harrison (“Harrison”)—contend that, although the FSIA requires plaintiffs to address and send their service of process mail to a state’s foreign minister, it does not direct plaintiffs to send the package to a particular location. Harrison asserts that, because the FSIA’s text unambiguously allows service through an embassy, the Vienna Convention does not apply in this case. This case has large implications for foreign relations, especially as regards to terrorism. A decision for Harrison may better compensate victims of terrorist attacks and restrict state-sponsored terrorism, whereas a decision for Sudan may better protect the United States as a foreign litigant and aid the effective function of embassies.

    Questions as Framed for the Court by the Parties

    Whether the Second Circuit erred by holding – in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

    On October 12, 2000, the U.S.S. Cole was refueling in Aden, Yemen when it was bombed by members of al-Qaeda. Harrison v. Republic of Sudan (“Harrison II”), at 4. In 2010, the Respondents, Rick Harrison, other victims of the attack, and their families (“Harrison”) sued the Petitioner, the Republic of Sudan (“Sudan”) in the United States District Court for the District of Columbia (“D.C.

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    Richard Culbertson v. Nancy Berryhill

    Issues

    Does 42 U.S.C. § 406(b) limit attorney’s fees to 25 percent for fees incurred in representing a claimant before a court and before the Social Security agency; or, does the 25-percent limit only apply to fees related to representation before the agency?

    This case asks the Supreme Court to decide how to calculate attorney’s fees for representation in court and before the Social Security Administration (“SSA”) under 42 U.S.C. § 406(b). Richard Culbertson sought an attorney’s fee of 25 percent of the past-due benefits awarded to the Social Security claimants whom he represented in court. Culbertson contends that § 406(b)’s 25-percent cap applies only to his representation before a court. The Court of Appeals applied § 406(b)’s 25-percent cap to the sum of attorney’s fees under § 406(a) and § 406(b). Berryhill agrees with Culbertson’s position, while the Supreme Court-appointed amicus curiae supports the Court of Appeals. This case will impact Social Security claimants’ protections from overbilling and the financial incentives allowing claimants to access competent legal representation.

    Questions as Framed for the Court by the Parties

    Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th, and 11th Circuits hold, also fees for representation before the agency.

    This case consolidated four actions brought by Richard Culbertson, who represented claimants Katrina Wood, Celalettin Akarcay, Bill Westfall, and Darleen Schuster, each of whom was denied disability benefits by the Commissioner of Social Security (“Commissioner”). Wood v.

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    Virginia Uranium, Inc. v. Warren

    Issues

    Does the Atomic Energy Act preempt Virginia’s ban on uranium mining where that ban on its face regulates an activity falling under state jurisdiction but could potentially regulate radiological safety hazards falling under federal jurisdiction?

    This case asks the Supreme Court to discern the scope of the Atomic Energy Act of 1954 (“AEA”) and determine whether the federal law preempts a state ban on uranium mining. The AEA regulates nuclear materials and facilities in order to promote the safe development and use of atomic energy. Virginia Uranium contends that the AEA preempts a Virginia state ban on uranium mining. The Commonwealth of Virginia counters that the AEA is silent on uranium deposits situated on nonfederal land. The outcome of this case has broad implications for the United States’ nuclear industry, national security, and national economy, as well as the future of the preemption doctrine.

    Questions as Framed for the Court by the Parties

    Does the AEA preempt a state statute that on its face regulates an activity within the regulatory jurisdiction of the States (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities within the jurisdiction of the Nuclear Regulatory Commission (here, the milling of uranium ore after it is mined and the management of the resulting uranium tailings)?

    Shortly after the second World War, Congress enacted the Atomic Energy Act of 1954 (the “AEA”), which regulates both civilian and military uses of nuclear materials in the United States and promotes the safe use of atomic energy. Virginia Uranium, Inc. v.

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    Henry Schein, Inc. v. Archer and White Sales, Inc.

    Issues

    If a court determines that a claim of arbitrability is “wholly groundless,” may a court refuse enforcement of an agreement conferring the authority to determine questions of arbitrability to an arbitrator under the Federal Arbitration Act?

    The Supreme Court will decide how courts should treat agreements delegating gateway questions of arbitrability to arbitrators—questions of whether an arbitrator has the authority to hear a case. Henry Schein, Inc. (“Henry Schein”) argues that, to honor such an agreement, the court must allow the arbitrator to decide gateway questions of arbitrability, even if the case clearly belongs in the court.  In support of their argument, Henry Schein contends that under the Federal Arbitration Act (“FAA”), courts must allow arbitrators to decide the merits of claims delegated to arbitrators by contract, even if the merits are not arguable. Archer and White Sales, Inc. (“Archer and White”) counters that if a claim to arbitrability is “wholly groundless,” the court does not have to make the arbitrator evaluate the claim. Archer and White assert that the FAA does not ask courts to compel arbitration when plaintiffs file claims where they clearly belong—in court. From a policy perspective, this case asks the Court to balance the FAA’s strong policy in favor of arbitration with the need to protect the parties to an arbitration clause from arbitration proceedings they did not agree to.

    Questions as Framed for the Court by the Parties

    Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

    On August 31, 2012, Archer and White Sales, Inc. (“Archer and White”) sued Henry Schein, Inc. and Danaher Corp. (“Henry Schein”) in the United States District Court for the Eastern District of Texas. Archer and Whites Sales, Inc. v.

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    Lamps Plus, Inc. v. Varela

    Issues

    Does the Federal Arbitration Act preclude using state law principles of contract interpretation to understand commonly used language in a standard form arbitration agreement as authorizing class arbitrations? 

    Lamps Plus, Inc. (“Lamps Plus”) and Frank Varela (“Varela”) executed an arbitration agreement which contained a clause waiving Varela’s right to sue his employer or institute any other civil action or proceeding concerning his employment at Lamps Plus. After a data breach caused by an internet phishing incident, Varela sued Lamps Plus alleging negligence, breach of contract, and invasion of privacy. Lamps Plus moved to compel arbitration of Varela’s individual claims, but the district court decided to dismiss Varela’s claims without prejudice and to compel class arbitration of the claims. Lamps Plus appealed, arguing that, as the Federal Arbitration Act (“FAA”) requires a contractual basis showing the parties’ intent to arbitrate class actions, the court could not read in an agreement to class arbitration based on language relating to personal disputes. Further, the company argues that even if the agreement is ambiguous as to that intent, Supreme Court precedent indicates that courts must resolve such ambiguity in favor of arbitration. Varela counters that issues of jurisdiction and standing prevent the Supreme Court from deciding this case and that, even if the Court were to examine the case on the merits, California contract-law interpretive principles used by the lower court were neutral, applied properly, and, thus, permissible. The Supreme Court’s decision has implications for the employment sector and will likely influence the decision of employers to expressly exclude class actions from future arbitration agreements to maintain the efficiency and informality of arbitration.

    Questions as Framed for the Court by the Parties

    Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

    Respondent Frank Varela (“Varela”) is an employee of Petitioner Lamps Plus Inc. (“Lamps Plus”). Brief for Petitioners, Lamps Plus, Inc. et al. at 3.

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    Washington State Department of Licensing v. Cougar Den, Inc.

    Issues

    Does a Washington State fuel tax violate an 1855 treaty between the Yakama Nation and the United States that protects the Yakama’s “right to travel” when the tax is applied to a Yakama corporation that uses a public highway to transport fuel into Washington?

    In this case, the Supreme Court will determine whether the Yakama Treaty of 1855 (“the Treaty”), which guarantees to the Yakama Indians the right to travel upon Washington public highways, creates a right for tribal members to avoid the Washington State fuel tax, which imposes a tax on fuels used for the propulsion of motor vehicles on Washington highways. Petitioner Washington State Department of Licensing (“the State”) argues that the tax applies because the Treaty does not expressly preempt the tax and because the tax attaches to the possession of fuel, not the transportation of fuel. Respondent Cougar Den, Inc. contends that, according to well-established rules of Indian treaty interpretation, the Treaty preempts the fuel tax and, further, the tax is an importation tax necessarily implicating the Yakama Indians right to travel. From a policy perspective, the Court’s decision in this case will have potential implications on Washington tax revenues, environmental concerns, and competitiveness in the fuel market.

    Questions as Framed for the Court by the Parties

    Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.

    The Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”) is an Indian Tribe recognized by the federal government. Brief for Respondent, Cougar Den, Inc. at 2. The Yakama Nation and the United States entered into a treaty (“the Treaty”) in 1855.

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