Perry v. Merit Systems Protection

Issues

What is the proper test for determining whether a case is a “mixed case,” and what is the proper forum for judicial review of the MSPB’s dismissal of a mixed case for lack of jurisdiction?

This case will allow the Supreme Court to decide the proper forum in which a federal employee may seek judicial review of a U.S. Merit Systems Protection Board (“MSPB” or “Board”) dismissal of their mixed case. A federal employee has a mixed case where they bring a claim based on both “significant adverse employment action[s]” and discrimination. The U.S. Court of Appeals for the District of Columbia (“D.C. Circuit”) previously held that a mixed-case appeal should be reviewed in the Federal Circuit if the MSPB’s dismissal is based on both a lack of jurisdiction and a failure to reach the merits of the discrimination claim. However, the Supreme Court later held in Kloeckner v. Solis that a U.S. district court would hear mixed cases if the MSPB dismissal is based on procedural (as opposed to jurisdictional) grounds, and the dismissal failed to decide the merits of the underlying discrimination claim. Here, the D.C. Circuit held that Kloeckner did not apply because the MSPB had dismissed the appeal based on a lack of jurisdiction. In addition to legal analysis, the Supreme Court might consider the arguments for and against providing a uniform court for judicial review for federal agency claims as well as a federal employee’s right to de novo review of discrimination claims in determining this case.

Questions as Framed for the Court by the Parties

Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

Anthony Perry is a former employee of the Census Bureau where he remained employed until his early retirement in April 2012. See Perry v. MSPB, 829 F.3d 760, 762 (D.C. Cir. 2016). In the mid-2000s, Perry developed osteoarthritis. See Petition for Writ of Certiorari at 5.

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California Public Employees’ Retirement System v. ANZ Securities, Inc., et al.

Issues

Does the timely filing of a class action lawsuit stop the running of the three-year time limit for individual class members to bring their claims under Section 13 of the Securities Act? 

This case presents the Supreme Court with an opportunity to clarify the applicability of the time limitations in Section 13 of the Securities Act of 1933 for individual claims brought after a class action lawsuit has been filed in the same matter. Petitioner California Public Employees' Retirement System (“CalPERS”) argues that Section 13 is a statute of limitation, which may be overridden by judge-made rule, as opposed to a statute of repose, which is not subject to judicial extension even in cases of extraordinary circumstances. Accordingly, CalPERS asserts that a prior Supreme Court decision, American Pipe, establishes that the filing of a class action tolls the statute of limitation as to all putative members of that class. Respondent ANZ Securities, however, argues that Section 13 is a statute of repose, and under the Second Circuit precedent the American Pipe tolling rule does not extend to statutes of repose. The outcome of this case could encourage litigation strategies that decrease court efficiency or, alternatively, benefit large investors at the expense of smaller ones. 

Questions as Framed for the Court by the Parties

Does the timely filing of a valid class action satisfy or toll the three-year filing period set by Section 13 of the Securities Act of 1933 with respect to subsequent opt-out suits by individual class members?

This case arose out of the 2008 collapse of Respondent Lehman Brothers Holdings Inc. (“Lehman Brothers”). See In Re Lehman Bros. Securities and ERISA Litigation, 799 F. Supp. 2d 258, 264 (S.D.N.Y. 2011). Lehman Brothers was a large investment bank, which traded its securities on the New York Stock Exchange.

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Michigan v. Environmental Protection Agency; Utility Air Regulatory Group v. Environmental Protection Agency; National Mining Association v. Environment Protection Agency

Issues

Is the EPA required to consider costs when determining whether it is appropriate and necessary to regulate hazardous air pollutants emitted by electric utilities?

 

The United States Supreme Court will consider whether the EPA acted reasonably based on the agency’s interpretation of its obligations under the Clean Air Act when it did not consider the costs, during rulemaking, of regulating the emissions of hazardous air pollutants from oil- and coal-fired electric utilities. The Petitioners argue that because the EPA did not consider  cost  of compliance as a factor in its decision, the EPA’s rule is an incorrect interpretation of the Clean Air Act and is unreasonable. The Respondents counter that the EPA acted reasonably and correctly interpreted the Clean Air Act by not considering  cost  of compliance as a factor in its decision to regulate hazardous air pollutants from electric utility plants. The Court’s decision will implicate the regulation of hazardous air pollutant emissions from electric  utilities,  and may have broader implications for the statutory interpretation of similar regulatory mandates to agencies.

Questions as Framed for the Court by the Parties

The Clean Air Act treats electric utilities differently from other sources of hazardous air pollutants. Other sources are required to limit their emissions if they exceed quantitative thresholds. 42 U.S.C. § 7412(c)(1) & (d)(1). By contrast, before EPA regulates hazardous air pollutants from electric utilities, it must first conduct a study of the hazards to public health resulting from those emissions even after imposition of all the other requirements of the Clean Air Act, and then decide whether it is "appropriate and necessary" to regulate such residual emissions under § 7412 after considering the results of the study. 42 U.S.C. § 7412(n)(1)(A).

The question for the Court is:

Whether EPA's interpretation of "appropriate" in 42 U.S.C. § 7412(n)(1)(A) is unreasonable because it refused to consider a key factor (costs) when determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

THE SUPREME COURT GRANTED CERT LIMITED TO THE FOLLOWING: Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Congress enacted the Clean Air Act (“CAA”) in 1970, including what is now § 7412, to address issue of air pollution, focusing on reducing hazardous air pollutants (“HAPs”). See White Stallion Energy Center, LLC v.

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Michigan v. Bryant

Issues

Whether statements to police, that are given by a witness experiencing a medical emergency while the perpetrator is still at large should be classified as “nontestimonial” under the exception to the Confrontation Clause for statements made with a “primary purpose” of enabling police to meet an “ongoing emergency?”

 

As Anthony Covington lay on the ground injured from a gunshot wound, he provided police officers on the scene with a description of his alleged shooter, before dying a few hours later. The police arrested the suspected shooter, Richard Bryant, based on Covington’s statements, and Bryant was subsequently convicted of second-degree murder after the Michigan trial court admitted Covington’s statements into evidence. Bryant claims that the admission of Covington’s statements violated his right to cross-examine an opposing witness, as guaranteed by the Sixth Amendment’s Confrontation Clause. The State of Michigan argues that Covington’s statements were obtained during the police’s response to an “ongoing emergency” and that its admission did not violate the Confrontation Clause. The Supreme Court’s decision in this case will likely offer further guidance on what statements are “nontestimonial” under its landmark decisions in Crawford v. Washington and Davis v. Washington, which redefined the ambit of the Confrontation Clause.

On April 29, 2001, Detroit police officers found Anthony Covington lying on the ground next to his car in a gas station, with a gunshot wound in his abdomen. Covington, in response to the officers’ immediate questions about what happened, replied that he had been shot by the Respondent, Richard Perry Bryant, at approximately 3 a.m. According to Covington, he was standing outside Bryant’s house having a brief conversation through the back door with Bryant when Bryant shot him through the wooden door. Although Covington did not see who shot him, he claimed that he recognized Br

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Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.

 
 
Peer-to-peer file sharing software has made the distribution of virtually any type of digital file uncomplicated and readily accessible. A user merely installs the software on his computer, thus allowing the computer to function both as a client and server. The file sharing software allows the user's computer to be accessed via the Internet by other users who may then retrieve digital files from the host computer.
 
The use of peer-to-peer file sharing software thrives in the area of music and motion pictures, where users easily share digitized music and movie files with one click of the mouse.  Copyright owners, such as songwriters, music publishers, and motion picture studios, have not gone unaffected and claim that the majority of peer-to-peer file sharing involves copyrighted material of which the users are benefiting without any monetary compensation accruing to the copyright owners. In Metro-Goldwyn-Mayer Studios Inc., v. Grokster, a group of copyright owners allege that peer-to-peer software distributors Grokster Ltd. and StreamCast Networks, Inc. are contributorily and vicariously liable for any copyright infringement committed by users of their software. The United States Supreme Court may likely rule in favor of the copyright owners, as the Court generally does not want to sanction the kind of lawless behavior which is undoubtedly taking place across these networks.  However, the Court would also like to avoid criticism for overstepping its power by censoring distributors, which may lead to a verdict in favor of the software distributors.

Questions as Framed for the Court by the Parties

Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based "file sharing" services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services.

Brief Facts
 
There are many benefits of living in an increasingly high-tech world where innovations seem to emerge daily.  Digital services are becoming progressively faster and more convenient while modern devices continue to shrink and yet possess more functionality.
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MetLife v. Glenn

Issues

Given that an administrator of an ERISA plan has a conflict of interest because it both pays claims and determines whether claims are eligible for payment, how much weight should a court give that conflict of interest in deciding whether the administrator abused its discretion regarding a claim?

 

The Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., provides a private cause of action for employees challenging wrongful denials of benefits under an employee benefits plan. Under ERISA, Wanda Glenn challenged MetLife's discontinuation of her disability benefits on the ground that the company faced a conflict of interest by both determining eligibilities for benefits payments and making these same payments. The U.S. District Court for the Southern District of Ohio affirmed MetLife's discontinuation of benefits. The U.S. Court of Appeals for the Sixth Circuit, siding with five other Circuits, ruled that a court reviewing a claims-denial must consider whether and to what extent a plan administrator's conflict of interest may have affected its determination of benefits. In this case, the U.S. Supreme Court will determine whether and to what extent a plan administrator that both authorizes the payment of benefits and is responsible for the payment of those benefits has a conflict of interest that must be considered on judicial review.

Questions as Framed for the Court by the Parties

If an administrator that both determines and pays claims under an ERISA plan is deemed to be operating under a conflict of interest, how should that conflict be taken into account on judicial review of a discretionary benefit determination?

In 1989, Wanda Glenn's heart suddenly stopped. Glenn v. MetLife, 461 F.3d 660, 663 (6th Cir.

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Messerschmidt v. Millender

Issues

Under what circumstances are police officers granted qualified immunity from civil lawsuits under 42 U.S.C. § 1983 for an illegal search if they relied on a facially valid warrant later determined to be invalid and overbroad?

Should the Court reconsider the standard that the presumption that an officer acted reasonably by obtaining a warrant can be rebutted by showing that the warrant was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable”?

 

Petitioner, detective Curt Messerschmidt, obtained and executed a warrant to search Respondent Augusta Millender’s residence. Millender sued Messerschmidt and other law enforcement officers under 42 U.S.C. § 1983 alleging that Messerschmidt and other officers violated her Fourth and Fourteenth Amendment rights by executing an invalid search warrant and unreasonably searching her home. The court determined that the warrant was unconstitutionally overbroad. Messerschmidt contends that he is nonetheless entitled to qualified immunity from civil liability because he relied on a warrant and acted in good faith. Millender, on the other hand, maintains that the officers’ reliance on the warrant was unreasonable, and therefore, they are not entitled to qualified immunity. The decision will determine the scope of qualified immunity for officers who have, in good faith, relied on warrants later determined to be invalid.

Questions as Framed for the Court by the Parties

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon , 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335, 341, 344-45 (1986).

1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged over breadth in the warrant did not expand the scope of the search?

2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

Shelly Kelly decided to end her romantic relationship with Jerry Ray Bowen, but she feared that Bowen might become physically violent. See Millender v. Messerschmidt, 620 F.3d 1016, 1020 (9th Cir.

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Merrill Lynch, Pierce, Fenner & Smith, Inc.v. Dabit

Issues

Whether, as the seventh circuit held earlier this month and in direct conflict with the decision below, SLUSA preempts state law class action claims based upon allegedly fraudulent statements or omissions brought solely on behalf of  persons  who  were induced thereby to hold or retain (and not purchase or sell) securities?

 

The Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) preempts state law class action suits that allege misrepresentation “in connection with the purchase or sale” of securities.  In a state class action suit against Merrill Lynch for issuing biased recommendations of certain stocks, Respondent Dabit attempted to escape the preemption of SLUSA by filing a holder suit — alleging that he held and refrained from selling stocks based on Merrill Lynch’s misrepresentations, expressly avoiding any references to purchases or sales of stocks.  The court must resolve a conflict between the Second Circuit’s decision in this case, holding that such holder claims are not preempted by SLUSA and can be brought in state courts, and a recent seventh circuit decision that held otherwise.  This case will be closely watched by the corporate community, as allowing holder suits in state court would allow a new class of plaintiffs to sue corporations and also expose corporations to litigation in the more unpredictable and less experienced (with respect to securities class actions) state courts.

Questions as Framed for the Court by the Parties

Whether, as the seventh circuit held earlier this month and in direct conflict with the decision below, SLUSA preempts state law class action claims based upon allegedly fraudulent statements or omissions brought solely on behalf of persons who were induced thereby to hold or retain (and not purchase or sell) securities?

In 2000, New York Attorney General Eliot Spitzer (“Spitzer”) investigated Merrill Lynch, a global financial services firm, for allegedly issuing biased investment recommendations and illegitimately hyping up stocks to obtain business. Dabit v. Merrill Lynch, 395 F.3d 25, 28 (2d cir. 2005), cert. Granted, 126 S.Ct.

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Merrill Lynch, et al. v. Greg Manning, et al.

Issues

Does Section 27 of the Securities Exchange Act of 1934 give federal courts exclusive jurisdiction over state law claims based on violations of the Exchange Act, or may state courts hear those state law claims?

 

In this case, the Supreme Court will decide whether Section 27 of the Securities Exchange Act of 1934 (“Exchange Act”) provides federal courts with exclusive jurisdiction over state law claims based on violations of the Exchange Act or whether state courts are permitted to hear such state law claims. See Brief for Petitioner, Merrill Lynch, et al. at i. Merrill Lynch argues that Manning relies on Regulation SHO, a federal regulation, and therefore federal courts have exclusive jurisdiction under the Exchange Act. See id. at 19. On the other hand, Manning argues that, because his claims are based on state law, state courts have jurisdiction over this case, even if some elements of his claim rely on federal law. See Brief for Respondent, Greg Manning, et al. at 25. Ultimately, the Court’s decision has the potential to affect whether uniformity in decision-making is necessary to enforce Regulation SHO and whether state courts can govern duties arising under federal regulations. See Brief of Amicus Curiae The Chamber of Commerce of the United States of America, in Support of Petitioner at 8–9.

Questions as Framed for the Court by the Parties

Does Section 27 of the Securities Exchange Act of 1934 provide federal jurisdiction over state law claims  seeking  to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations?

Greg Manning and others (hereinafter “Manning”), brought a lawsuit against Merrill Lynch Pierce Fenner & Smith, Inc., Knight Capital Americas L.P., UBS Securities LLC, 

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Meredith v. Jefferson County Board of Education,

Issues

Can school districts constitutionally use percentage-based range plans to assign students to public schools based on race in order to capture the benefits of educational diversity?

 

The Jefferson County Public School District in Jefferson County, Kentucky, requires that 15 to 50 percent of all students in each school be African-American. Petitioner Crystal Meredith claims that the district violated the Fourteenth Amendment when it rejected her application to enroll her son at a nearby school on the basis of race. To decide this case, the Supreme Court will have to determine whether racial diversity in K–12 public education is a compelling state interest and whether the district’s racial range mandate is narrowly tailored to further that interest. The decision will determine the extent to which schools are permitted to consider race in school assignment policies.

Questions as Framed for the Court by the Parties

  1. Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 265 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County Public Schools?
  2. Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 15% nor greater than 50% of African American students without individually or holistic review of any student, meets the Fourteenth Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny.
  3. Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the Public Schools of Jefferson County, Kentucky?

Desegregation of Schools in Jefferson County

The backdrop for this case was set in 1954. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court mandated the desegregation of public schools. Over subsequent decades, federal courts ordered school districts with institutionalized segregation plans to desegregate through a system of redistricting and busing. See Swann v. Charlotte-Mecklenburg Bd.

Acknowledgments

The authors would like to thank Professors Sherri Lynn Johnson, Trevor Morrison, and Michael Heise for their insights into this case.

The Supreme Court will hear this case in tandem with a companion case, Parents Involved in Community Sch. v. Seattle Sch. District ,  which involves a student assignment plan that uses race as a tiebreaker to balance high schools that differ by more than 15 percent from the racial  make up  of the Seattle public school system.

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