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BP P.L.C. v. Mayor and City Council of Baltimore

Issues

Under 28 U.S.C. § 1447(d), may a court of appeals review any issue in an order to remand a case as long as one of the grounds for remand is federal-officer or civil-rights jurisdiction?

This case asks the Supreme Court to decide whether 28 U.S.C. § 1447(d) allows courts of appeals to review an entire order remanding a removed case back to state court. Normally, Section 1447(d) forbids courts of appeals from reviewing remand orders, except when a federal officer seeks removal or the case involves civil rights. Based on a plain reading of the text and the purpose of the exceptions, BP argues that if a defendant asserts either jurisdictional ground, Section 1447(d) permits a court to review the entire order. Baltimore contends that this reading contravenes the purpose and historical understanding of the proper scope of review. This case has implications for state and federal jurisdiction, climate change, and congressional delegation of power.

Questions as Framed for the Court by the Parties

Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.

In July 2018, the Mayor and City of Baltimore (collectively, “Baltimore”) filed suit in Maryland state court against twenty-six oil and gas companies, alleging that these companies knowingly contributed to climate change by “producing, promoting, and (misleadingly) marketing fossil fuel products long after learning the dangers associated with them.” Mayor & City Council of Balt. v.

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Federal Communications Commission v. Prometheus Radio Project

Issues

Did the Third Circuit correctly vacate three Federal Communication Commission orders because the Commission did not adequately justify how those orders would impact minority media ownership?

This case asks the Supreme Court to decide whether the United States Court of Appeals for the Third Circuit erred when it vacated several Federal Communications’ Commission orders that, among other things, relaxed agency cross-ownership restrictions. Prometheus Radio Project, which challenges the FCC’s orders, claims that the FCC acted arbitrarily and capriciously because it did not consider how repealing cross-ownership restrictions would affect minority and female ownership of broadcast services. The FCC counters that courts owe the agency substantial deference when it considers multiple policy factors in its rulemaking capacity. The Supreme Court’s decision could affect the scope of judicial review of administrative actions, the integrity of local news coverage, and the diversity of broadcast media.

Questions as Framed for the Court by the Parties

Whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.

The Federal Communications Commission (“FCC” or “Commission”) regularly issues orders to regulate broadcasting media. Prometheus Radio Project v. FCC at 573.

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AMG Capital Management, LLC v. Federal Trade Commission

Issues

What is the scope of the Federal Trade Commission’s authority to request a judicial finding that unfair business practices are unlawfully deceptive and demand monetary restitution damages under Section 13(b) of the Federal Trade Commission Act?

This case asks the Supreme Court to clarify whether the Federal Trade Commission’s authority to seek injunctive relief includes requests for monetary recovery as restitution. The FTC sued Petitioner Scott Tucker, his wife, Kim Tucker, and his various businesses (“AMG Capital Management, LLC, et al.”) for deceptive business practices. Tucker argues that the plain language of Section 13(b) does not support the Ninth Circuit’s interpretation to allow monetary restitution as relief. Tucker also contends that such an interpretation may disrupt procedural safeguards in the FTC Act and that the old case law emanating from Porter and its progeny does not control the current case. Citing equity law cases that treat monetary restitution as a part of injunctive relief, the FTC maintains that Tucker’s argument is misleading because it fails to consider that the FTC Act takes into consideration the dual enforcement system of the FTC. Lastly, the FTC argues that Porter and its progeny are still good law and hence control the current case. The outcome of this case has heavy implications for consumer protection, business norms, and adhering to court precedent.

Questions as Framed for the Court by the Parties

Whether Section 13(b) of the Federal Trade Commission Act, by authorizing “injunction[s],” also authorizes the Federal Trade Commission to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.

The Federal Trade Commission Act (“FTC Act”) grants Respondent Federal Trade Commission (“FTC”) authority to regulate deceptive “acts or practices.” Fed. Trade Comm’n v.

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Pham v. Chavez

Issues

Does 8 U.S.C. § 1231 or 8 U.S.C. § 1226 apply to a bond hearing for an individual who returned to the United States after being removed and claims that they faced death threats and torture in their country of origin? 

This case asks the Supreme Court to consider if 8 U.S.C. § 1231 or 8 U.S.C. § 1226 applies to the bond hearing of a noncitizen who was previously deported from the United States, subject to a removal order, and returned to the United States with the request of a deferral of the deportation order. Petitioners Pham et al., on behalf of the United States, contend that 8 U.S.C. § 1231, which would prevent the bond hearing from occurring and require the detention of Chavez, applies to this case. Respondent Chavez contends that 8 U.S.C. § 1226, which would allow her to receive a bond hearing, should apply to this case. The outcome of this case has implications for immigration and detention policies for noncitizens that travel to the United States without authorization. 

Questions as Framed for the Court by the Parties

Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.

Maria Angelica Guzman Chavez and her fellow respondents are a group of noncitizen individuals that were removed from the United States based on an order of removal. Chavez v.

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Uzuegbunam v. Preczewski

Issues

Does a subsequent change of an unconstitutional policy moot plaintiffs’ claims that the policy violated their constitutional rights when their only remaining claims are for nominal damages?

This case asks the Supreme Court to decide whether a college’s change of an unconstitutional speech policy moots a claim that the original policy violated the plaintiffs’ constitutional rights when their claims are only for nominal damages. Petitioner Chike Uzuegbunam argues that a claim for nominal damages is not mooted by a subsequent policy change because nominal damages serve to vindicate plaintiffs’ past injuries. Uzuegbunam also argues that nominal damages serve an important function because they are distinct from declaratory judgments and there are no alternative remedies for victims of unconstitutional government conduct. Respondent Stanley C. Preczewski counters that nominal damages merely serve a prospective purpose, and therefore nominal-damages claims are moot when a constitutional violation is not reasonably expected to continue. Preczewski also argues that when a constitutional violation is completed, nominal damages only serve to provide declaratory relief and that other remedies, such as declaratory judgments, injunctions, and compensatory damages, can be used to address government violations of a victim’s constitutional rights. This decision will impact how governments respond to constitutional challenges and the administrative burdens imposed on the courts and government defendants.

Questions as Framed for the Court by the Parties

Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.

 

Chike Uzuegbunam and Joseph Bradford were both students attending Georgia Gwinnett College (“GGC”) who shared similar religious beliefs and a desire to express those beliefs publicly. Uzuegbunam v. Preczewski at 3–4. In July 2016, Uzuegbunam was distributing literature that promoted his religious beliefs in an outdoor plaza on campus when a campus police officer approached him. Id. at 3.

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Collins v. Mnuchin

Issues

Does the structure of the Federal Housing Finance Agency (“FHFA”) violate the separation of powers; and if so, must the Court invalidate FHFA’s conservatorship of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation?

This case asks the Supreme Court to determine whether the structure of the Federal Housing Finance Agency (“FHFA”) is unconstitutional. If so, this structure may render the placement of the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) into FHFA’s conservatorship void. Respondent Secretary of the Treasury Steven T. Mnuchin argues that the succession and anti-injunction clauses of the Housing and Economic Recovery Act of 2008 (“Recovery Act”) bar Collin’s claim because that claim is derivative. Mnuchin asserts the Recovery Act’s removal clause does not invalidate the challenged amendment to the FHFA’s agreement with the Treasury Department and that the court should sever the removal clause from the rest of the statute. Petitioner Patrick J. Collins counters that neither the succession clause nor the anti-injunction clauses bar a direct suit under the Administrative Procedure Act (“APA”). Collins contends that the Court’s response to the removal clause should set aside both the challenged amendment to FHFA’s agreement with the Treasury and the Recovery Act’s conservatorship clause. This case's outcome has implications for the separation of powers and protections for “for-cause” removal. The case could impact private individuals' incentives to bring constitutional challenges to the court and the government’s ability to intervene in moments of economic crises. 

Questions as Framed for the Court by the Parties

(1) Whether the Federal Housing Finance Agency’s structure violates the separation of powers; and (2) whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

Congress established the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) to stabilize the housing market and to increase the public’s access to mortgage credit in 1938 and 1970, respectively. Collins v. Mnuchin at 564.

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Duguid v. Facebook, Inc.

Issues

Does the Telephone Consumer Protection Act of 1991 prohibit the use of a system that stores phone numbers and dials them automatically?

This case asks the Supreme Court to interpret the definition of an automated telephone dialing system (“ATDS”) as set forth under the Telephone Consumer Protection Act of 1991 (“TCPA”). The statute defines an ATDS as equipment that “has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Employing a grammatical analysis, Respondent Facebook contends that a system is an ATDS only when it can automatically call phone numbers that were produced or stored using a random number generator. Also using a grammatical analysis, Petitioner Noah Duguid counters that an ATDS encompasses a system that can store and automatically call phone numbers, irrespective of whether the system uses a random number generator. The outcome of this case has significant implications in determining the type of devices and systems that could qualify as an ATDS and what callers could be subject to the $1,500-per-call statutory liability under the TCPA. 

Questions as Framed for the Court by the Parties

Whether the definition of an "automatic telephone dialing system" in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Responding to the rise of unsolicited and intrusive robocalls, Congress passed the Telephone Consumer Protection Act of 1991 (“TCPA”). Duguid v. Facebook, Inc., (9th Cir.

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Federal Republic of Germany v. Philipp

Issues

Does the Foreign Sovereign Immunities Act allow United States courts to assert jurisdiction over claims that a foreign country took the property of its own citizens “in violation of international law” and, if so, is international comity available as a defense to that jurisdiction?

This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent United States courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (“FSIA”) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether United States courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in United States courts.

Questions as Framed for the Court by the Parties

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Around 1929, three art dealer firms, J. & S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch, formed a Consortium (the “Consortium”) in Frankfurt, Germany. Philipp v. Fed. Republic of Germany, (D.D.C. 2017) at 64. The owners were German Jews and the ancestors or predecessors-in-interest of Respondents Alan Philipp, Gerald G. Stiebel, and Jed R. Leiber.

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Acknowledgments

The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.

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

Issues

Does an arbitration agreement containing a provision that excludes certain claims from arbitration negate a provision in the same agreement that delegates the question of whether an issue should be heard by an arbitrator, rather than a court?


This case asks the Supreme Court to consider whether an arbitration agreement that incorporates the American Arbitration Association’s (“AAA”) rules delegates the question of arbitrability to the arbitrators, in light of an express exclusion clause for injunctive relief, where the plaintiff sought both damages and injunctive relief. The arbitration agreement at issue in this case includes a “carve-out” provision excluding from arbitration any claims seeking injunctive relief. Rule 7(A) of the AAA’s rules states that the arbitrator has the power to rule on the arbitrability of any claim or counterclaim. Petitioner Henry Schein, Inc. argues that the incorporation of the AAA rules “clearly and unmistakably” delegates all questions of arbitrability to the arbitrator, and that, because some issues are delegated to the arbitrator, the presumption of arbitrability should be read to delegate to the arbitrator the question of the application of the exclusion clause. On the other hand, Respondent Archer and White Sales, Inc. contends that the question of arbitrability should remain for the court to decide because of the explicit carve-out exemption. The outcome of this case has heavy implications for the efficiency and fairness of dispute resolution.

Questions as Framed for the Court by the Parties

Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.

The dispute in this case originates from 2016. Respondent Archer and White Sales, Inc. ("Archer") is a distributor of dental equipment, purportedly nationally recognized for its low prices and quality service. Archer & White Sales, Inc. v. Henry Schein, Inc., (E.D. Tex. 2017) at 1. Archer competed directly against Petitioner Henry Schein, Inc. ("Henry Schein"), the country’s largest distributor of dental equipment.

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Republic of Hungary v. Simon

Issues

Do district courts have the discretion to abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons pertaining to international comity?

 This case asks the Supreme Court to decide whether the common-law doctrine of international comity provides federal courts with the discretion to dismiss claims under the Foreign Sovereign Immunities Act (“FSIA”). Respondent the Republic of Hungary argues that the FSIA must be construed in light of international comity doctrine, and that the federal court should defer to Hungary as Hungary’s interests in hearing this case outweigh those of the United States. Petitioners Rosalie Simon and other Hungarian Holocaust survivors argue that the FSIA has displaced common law and that federal courts should exercise jurisdiction in cases such as this one, where a sovereign state has failed to provide an adequate alternate forum. The outcome of this case will have implications on foreign policy, the extraterritorial reach of U.S. law, and the remedies available to the victims of Holocaust.

Questions as Framed for the Court by the Parties

Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.

During World War II, Hungary undertook a systematic campaign to eradicate its Jewish population. Simon v. Republic of Hungary, (D.C. Cir. 2018) at 1175. As part of this campaign, the Hungarian government stripped Jews of their belongings. Id. Government officials went “home to home, inventorying and confiscating Jewish property.” Simon v.

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