• FALSE CLAIM ACT
• WARTIME SUSPENSION OF LIMITATIONS ACT
• Whistleblowers
• statute of limitations
• statute of repose

1) Does the Wartime Suspension of Limitations Act—which tolls the statute of limitations for an offense that involves fraud against the United States during wartime—apply to civil fraud claims and require a formal declaration of war?

2) Once a party files a suit, does the False Claim Act bar all subsequent suits based on similar facts indefinitely or only while the initial suit is pending before a court?

1) Whether the Wartime Suspension of Limitations Act—a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose—applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling.

2) Whether, contrary to the conclusion of numerous courts, the False Claims Act’s so called “first-to-file” bar, 31 U.S.C. § 3730(b)(5)—which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims—functions as a “one-case-at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

Kellogg Brown & Root (“KBR”) had a government contract to supply logistical services to the United States military in Iraq. See U.S. ex rel. Carter v. Halliburton Co., 710 F.3d 171, 174 (4th Cir. 2013). For about three months in 2005, Benjamin Carter worked for KBR as an operator of a water purification unit.

•   Amy Howe: Solicitor General files invitation briefs – Part 2, SCOTUS Blog (June 13, 2014).
•   Barbara Leonard: Halliburton Overbilling Case Faces Review by High Court, Courthouse News Service (July 1, 2014)
•   Greg Stohr: KBR, Halliburton Get Court Review in Iraq Billing Case, Bloomberg (July 1, 2014).

• FEDERAL TORTS CLAIM ACT
• equitable tolling
• JURISDICTIONAL REQUIREMENT
• SOVEREIGN
• immunity
• STATUTE OF LIMITATION

Is the Federal Tort Claims Act’s six-month time limit for filing suit in federal court subject to equitable tolling?

Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is subject to equitable tolling. 

In 1985, Respondent Kwai Fun Wong, a Hong Kong citizen, lawfully entered the United States and, as a Tao minister, soon became a leader within the Wu-Wei Tien Tao Association (“Tien Tao”), a religious organization. See Kwai Fun Wong v. United States, 373 F.3d 952, 957–958 (9th Cir.

The authors would like to thank Professor Kevin M. Clermont for his insights and assistance.

• Tim Hull: Striped-Searched Minister Can Press Tort Case, Courthouse News Service (Oct. 9, 2013).
• Carl Smith: Supreme Court’s Likely Review Of Rulings Equitably Tolling FTCA Claims May Impact Tax Refund Suits, Procedurally Taxing (May 1, 2014).

• Federal Torts
• Time Limits
• statutory interpretation
• Congressional intent
• equitable tolling

Can a two-year time limit for bringing a tort claim against the federal government be extended in situations where a claimant, despite exercising due diligence, could not have discovered the injury within that time window?

Whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is subject to equitable tolling.

The Respondent in this case is Marlene June. See Brief for Petitioner, the United States of America, at II. She brought suit on behalf of her grandchild, the surviving child of her deceased son Andrew Edward Booth.

• CONSOLIDATED CLAIMS
• LONDON INTERBANK OFFER RATE
• F.R.C.P 54(B)
• 28 U.S.C § 1291
• 28 U.S.C. § 1292(b)
• MULTIDISTRICT LITIGATION

In what circumstances may a party, under 28 U.S.C. § 1291, immediately appeal an order dismissing a claim arising from a case that has been consolidated with other suits for pretrial purposes?

Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?

The London Interbank Offered Rate (“LIBOR”) is an international method of calculating interest rates. See In re LIBOR-based Fin. Instruments Antitrust Litig., 935 F. Supp. 2d 666, 677 (S.D.N.Y. 2013). LIBOR is important because it is the rate that banks charge to other banks for short-term loans.

• Andrew Longstreth: U.S. Supreme Court to hear Libor antitrust appeal, Reuters (Jun. 30, 2014). 
• Linda O’Brien: High Court to consider when dismissal of consolidated LIBOR manipulation action is appealable final order, Antitrust Law Daily (Jun. 30, 2014). 

• separation of powers
• administrative law
• NONDELEGATION DOCTRINE
• RAILROAD REGULATION

Does section 207 of the Passenger Rail Investment and Improvement Act, which allows Amtrak and the government to cooperate in developing railroad-related metrics and standards, give Amtrak unconstitutional regulatory power under the non-delegation doctrine?

Section 207(a) of the Passenger Rail Investment and Improvement Act of 2008, Pub. L.

No. 110-432, Div. B, 122 Stat. 4916, requires that the Federal Railroad Administration (FRA) and Amtrak “jointly * * * develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak's passenger trains that is required by 49 U.S.C. 24308(c) (Supp. V 2011). In the event that the FRA and Amtrak cannot agree on the metrics and standards within 180 days, Section 207(d) of the Act provides for the STB to “appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” 122 Stat. 4917. The question presented is whether Section 207 effects an unconstitutional delegation of legislative power to a private entity.

In 1970, Congress adopted the Rail Passenger Service Act of 1970 (“RPSA”), which was intended to aid in maintaining a national passenger railway system. See Assoc. of Am. Railroads v. United States Dept. of Transp., 721 F.3d 666, 668 (D.C. Cir.

The authors would like to thank Professor Cynthia R. Farina for her perspective and insights on this case. 

• Vikram David Amar: Whether and Why Delegations of Government Power to Private Actors Are Problematic, Verdict (Oct. 24, 2014).
• Alexander Volokh: The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, Harvard Journal of Law and Public Policy (June 1, 2014). 

• comity
• federalism
• tax
• SUBJECT-MATTER JURISDICITON
• TAX INJUNCTION ACT

Does the Tax Injunction Act prohibit federal courts from hearing cases where a tax-exempt, out-of-state entity brings suit to challenge an in-state law that does not impose a tax on the exempt entity but does impose notice and reporting requirements?

Whether the TIA bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration?

Colorado requires that all retailers pay a 2.9 percent tax on the sale of all tangible goods within the state. Direct Marketing Ass’n v. Brohl, 735 F.3d 904, 906 (10th Cir. 2013). The Commerce Clause and the Supreme Court’s decision in Quill Corp. v.

• Kelvin Adkins-Heljeson: U.S. Supreme Court to Hear Appeal in Colorado “Amazon Tax” Case, Thomson Reuters (July 3, 2014).
• Lawrence Hurley: U.S. top court takes up challenge to Colorado sales tax law, Reuters (July 1, 2014).

• tax
• TAXATION
• interstate commerce
• competition

Does a state discriminate against railroads when competing forms of commercial transportation are exempt from a diesel fuel tax that remains applicable to rail-based carriers?

Whether a State “discriminates against a rail carrier” in violation of 49 U.S.C. §11501(b)(4) when the State generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads' competitors.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. §11501(b)(4), a court should consider other aspects of the State’s tax scheme rather than focusing solely on the challenged tax provision.”

In 1976, Congress enacted the Railroad Revitalization and Regulatory Reform Act, known as the 4-R Act. Railroad Revitalization and Regulatory Reform Act, 49 U.S.C. § 11501. This act makes it illegal for a state to “impose a tax that discriminates against a rail carrier.” Id.

• Jacqueline Bendert & Rachel Sparks Bradley: CSX Transportation, Inc. v. Alabama Dept. of Revenue, LII Supreme Court Bulletin (2010). 
• Ama Sarfo: Tax Cases To Watch As Supreme Court Term Kicks Off, Law360 (Oct. 3, 2014).

• employment
• discrimination
• labor
• civil rights
• disability
• SEX
• GENDER
• PREGNANCY

Does the Pregnancy Discrimination Act require employers who accommodate certain non-pregnant workers with work limitations to similarly accommodate pregnant workers?

Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

In 1999, Respondent United Parcel Service, Inc. (“UPS”) hired Petitioner Peggy Sue Young. Young v. United Parcel Service, Inc., 707 F.3d 437, 440. In 2002, Young started driving UPS’s delivery trucks.

• Scott Flaherty: Biz Groups Back UPS in Pregnancy Accommodation Case, Law360 (Nov. 4, 2014).
• Brigid Schulte: Lawmakers, civil rights leaders tell Supreme Court to support pregnant workers, Washington Post (Sept. 11, 2014).
• Debra Cassens Weiss: UPS driver’s pregnancy-bias case to get SCOTUS review, ABA Journal (July 3, 2014). 

• criminal law
• FORCED ACCOMPANIMENT
• BANK ROBBERY
• rule of lenity

Does a federal bank robbery statute’s forced-accompaniment offense require substantial movement of a victim?

A conviction under the federal bank robbery statute carries a maximum sentence of 20 years in prison, but no minimum sentence. 18 U.S.C. § 2113(a). If the bank robber forces another person “to accompany him” during the robbery or while in flight, however, that additional offense carries a minimum sentence of ten years in prison and a maximum sentence of life imprisonment. 18 U.S.C. § 2113(e).

The question presented is whether § 2113(e)’s forced-accompaniment offense requires proof of more than a de minimis movement of the victim. 

On September 26, 2008, Larry Whitfield and Quanterrious McCoy attempted an armed robbery of the Fort Financial Credit Union in Gastonia, North Carolina. See United States v. Whitfield, 695 F.3d 288, 292–93 (4th Cir. 2012). Whitfield and McCoy’s weapons triggered an alarm system that prevented them from entering the bank, so they fled in their car.

• Michael Doyle: A Fleeing Bank Robber, a Heart Attack and a ‘Vexing’ Law Get Supreme Court’s Attention, McClatchy DC (June 25, 2014).
• Caroline Vandergriff: Supreme Court Will Hear Gastonia Bank Robber Case, Time Warner Cable News (June 25, 2014).

• administrative law
• Administrative Procedure Act
• Procedure
• labor
• Workers’ Compensation
• employment

Is a federal agency required to engage in notice-and-comment rulemaking before it can alter an interpretive rule that articulates an interpretation of the agency’s regulation?

Perez v. Mortgage Bankers Assn.

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally provides that “notice of proposed rule making shall be published in the Federal Register,” 5 U.S.C. 553(b), and, if such notice is required, the rulemaking agency must give interested persons an opportunity to submit written comments, 5 U.S.C. 553(c). The APA further provides that its notice-and comment requirement “does not apply * * * to interpretative rules,” unless notice is otherwise required by statute. 5 U.S.C. 553(b) (A). No other statute requires notice in this case. The question presented is:

Whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

Nickols v. Mortgage Banker Assn.

The Administrative Procedure Act, 5 U.S.C. §§ 551-59, “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978). Section 553 of the Act sets forth notice-and-comment rulemaking procedures, but exempts “interpretative rules,” among others, from the notice-and-comment requirement. 5 U.S.C. § 553(b). The D.C. Circuit, in a line of cases descending from Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), has created a per se rule holding that although an agency may issue an initial interpretative rule without going through notice and comment, “[o]nce an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking.” Id. at 586. In this case, the D.C. Circuit invoked the Paralyzed Veterans doctrine-which is contrary to the plain text of the Act, numerous decisions of this Court, and the opinions of the majority of circuit courts-to invalidate a Department of Labor interpretation concluding that mortgage loan officers do not qualify for the administrative exemption under the Fair Labor Standards Act.

The question presented is: 

Whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and- comment rulemaking.

Under the Fair Labor Standards Act (“FLSA”), Congress established federal overtime guarantees for employees who work more than forty hours per week. See Mortgage Bankers Association v. Harris (“Harris”), 720 F.3d 966, 968 (D.C. Cir. 2013). At the same time, the FLSA exempts certain employees from its overtime requirements, including those “employed in a bona fide executive, administrative, or professional capacity[,] . . .

The authors would like to thank Professor Cynthia Farina of Cornell Law School for her helpful insight into the issues of this case.

• Allison Frankel: Business Groups Swarm Against Federal Agency Rulemaking in SCOTUS Case, Reuters (Oct. 22, 2014).
• Lawrence Hurley: U.S. Supreme Court To Hear Mortgage Loan Officers’ Pay Case, Reuters (June 16, 2014).