First American Financial Corp. v. Edwards

Issues

Whether a plaintiff who identifies a violation of the Real Estate Settlement Procedures Act has standing under Article III when the plaintiff is among the category of victims that Congress sought to protect but does not allege a particular, concrete harm arising from the cause of action.

 

In this case, the Supreme Court will decide whether a plaintiff has Article III standing to sue under the Real Estate Settlement Procedures Act (“RESPA”) when the plaintiff alleges no injury-in-fact. Respondent Denise Edwards contends that she has standing because, through RESPA, Congress identified a specific harm resulting from a conflict of interest between title insurance service firms and title agents who enter exclusive agreements to exchange referrals for kickbacks. Edwards argues that Congress tethered that harm to a certain class of plaintiffs, which includes Edwards. Respondent First American Financial Corporation rejoins that a plaintiff must allege a personal and concrete harm to gain Constitutional standing. Under this standard, First American asserts that Edwards alleged no such harm and thus lacks standing to sue. The Court’s decision here has the potential to greatly enhance plaintiffs’ ability to organize class actions and obtain relief for statutory violations in various industries and differing legal frameworks.

Questions as Framed for the Court by the Parties

Section 8(a) of the Real Estate Settlement Procedures Act of 1974 ("RESPA" or "the Act") provides that "[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding ... that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person." 12 U.S.C. § 2607(a). Section 8(d)(2) of the Act provides that any person "who violate[s]," inter alia, § 8(a) shall be liable "to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service." Id. § 2607(d)(2). The questions presented are:

1. Did the Ninth Circuit err in holding that a private purchaser of real estate settlement services has standing under RESPA to maintain an action in federal court in the absence of any claim that the alleged violation affected the price, quality, or other characteristics of the settlement services provided?

2. Does such a purchaser have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)?

LIMITED TO QUESTION 2 PRESENTED BY THE PETITION.

To buy a house, an individual typically must obtain certain settlement services, such as title insurance. See 12 U.S.C.

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Filarsky v. Delia

Issues

Whether a private attorney retained by the government is entitled to the defense of qualified immunity when the attorney is working with government employees in an internal affairs investigation.

 

After petitioner Steve Filarsky, a private attorney retained by the City of Rialto to conduct an internal affairs investigation, prompted City officials to order respondent Nicholas Delia, a local firefighter, to consent to a warrantless search of his home, Delia brought a civil rights claim against both Filarsky and the City, alleging, among other things, a violation of his Fourth Amendment right to be free from unreasonable search and seizure. The district court granted a motion by Filarsky and the officials to dismiss the case on qualified immunity grounds, but the Ninth Circuit reversed in part, ruling that Filarsky, as a private attorney, could not enjoy immunity. Other circuit courts, however, have granted qualified immunity to private lawyers retained by the government. The Supreme Court must resolve the circuit split.

Questions as Framed for the Court by the Parties

Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee.

Firefighter Delia claimed to feel sick after helping to clean up a toxic spill. See Delia v. City of Rialto, 621 F.3d 1069, 1071 (9th Cir.

Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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Fernandez-Vargas v. Gonzalez

Issues

Where Congress has passed a law that bars individuals from adjusting their immigration status if they have been deported and then illegally reentered the country, should the law apply retroactively to an individual who illegally reentered the country before that law was passed?

 

Humberto Fernandez-Vargas is a Mexican citizen who has been deported from and illegally reentered the United States numerous times. In January of 1982, Fernandez-Vargas illegally reentered the United States, where he remained, living and working in Utah, until his most recent deportation in 2004. During those twenty years, Fernandez-Vargas began a relationship and had a child with an American woman whom he married in 2001. After marrying, Mr. and Mrs. Fernandez-Vargas applied to adjust his immigrant status so Fernandez-Vargas could legally remain in the United States. However, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which revised an earlier provision of the Immigration and Nationality Act and, consequently, might have eliminated Fernandez-Vargas’ ability to adjust his status. The Supreme Court must decide whether the revised law should apply to and eliminate relief for Fernandez-Vargas, who illegally reentered the country prior to the legislation’s enactment.

Questions as Framed for the Court by the Parties

Whether and under what circumstances INA § 241(a)(5) (a.k.a. § 1231(5)) applies to an alien who reentered the United States illegally before the effective date of Illegal Immigration Reform and Immigrant Responsibility Act, April 1, 1997.

Over the last thirty years, Hernando Fernandez-Vargas, a native and citizen of Mexico, has illegally entered and been deported from the United States several times. Brief for the Petitioner at 5, Fernandez-Vargas v. Gonzalez, U.S. (No. 04–1376).

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FERC v. Electric Power Supply Association

Issues

May the Federal Energy Regulatory Commission (“FERC”) pay retail customers to consume less electricity in order to balance supply and demand in the wholesale-market electricity grid?

 

The Federal Power Act (“FPA”) empowers the Federal Energy Regulatory Commission (“FERC”) to regulate the transmission and sale of electric power in interstate commerce. See Electric Power Supply Ass’n v. FERC, 753 F.3d 216, 219 (D.C. Cir. 2014). FERC issued Order 745 to incentivize retail customers to reduce electricity consumption when economically efficient. See Electric Power Supply, 753 F.3d at 219. Under the new order, the cost of incentive payments to retail customers to encourage reduced energy consumption is subsidized by entities participating in the wholesale electricity market. See id. The Electric Power Supply Association (“EPSA”), along with four energy industry associations, brought suit under the Administrative Procedure Act alleging that the FERC’s Order 745 violates the  FPA,  because it invades the states’ exclusive jurisdiction to regulate the retail market. See id. at 218. The Supreme Court will consider whether (1) the FPA extends authority to the FERC to create a methodology that  wholesale-market  operators must use to calculate the compensation payments in the demand response scheme, and (2) whether the court of appeals erred in holding that Order 745 is arbitrary and capricious. See Petition for Writ of Certiorari, FERC v. Electric Power Supply Ass’n et al. at 35–36. The Court’s resolution of this case will impact the regulatory balance in the energy sector between federal and state governments. See Brief of Amici Curiae CES and Dr. Silkman, in Support of Respondent at 4.

Questions as Framed for the Court by the Parties

  1. Did the Federal Energy Regulatory Commission reasonably conclude that it has authority under the Federal Power Act, 16 U.S.C. 791a et seq., to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates?
  2. Did the Court of Appeals err in holding that the rule issued by the Federal Energy Regulatory Commission is arbitrary and capricious?

Under the The Federal Power Act (“FPA”), the Federal Energy Regulatory Commission (“FERC”) is charged with regulating the transmission and sale of electric power in interstate commerce. See Electric Power Supply Ass’n v. FERC, 753 F.3d 216, 219 (D.C. Cir.

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Federal Express Corporation v. Holowecki

Issues

Whether filing an “Intake Questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging illegal age discrimination under the Age Discrimination in Employment Act has the same legal effect as filing the EEOC’s form titled “Charge of Discrimination.”

 

In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination by her employer, Federal Express Corporation (“FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts. Five months later, Kennedy, along with thirteen other past and present FedEx couriers over the age of forty, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (“ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.

 

    Questions as Framed for the Court by the Parties

    Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

    The Federal Express Corporation (“FedEx”) engages in the business of package transportation and delivery. Brief in Opposition to the Petition for Writ of Certiorari at 1. FedEx implemented new employee policies in 1994 and 1995. Holowecki v. Federal Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). One of the policies required supervisors and couriers to set goals for the number of deliveries on each route. Id. Initially, couriers who met the goals received bonuses. Id.
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    Federal Election Commission v. Wisconsin Right to Life; McCain v. Wisconsin Right to Life

    Issues

    Is the Electioneering Communication prohibition of the Bipartisan Campaign Reform Act unconstitutional as applied to grassroots lobbying ads, such as those that Wisconsin Right to Life wanted to run in 2004?

     

    In July 2004, Wisconsin Right to Life aired a series of advertisements encouraging Wisconsin voters to urge their U.S. Senators, Russell Feingold and Herb Kohl, to oppose efforts to filibuster President Bush’s federal judicial nominees. The ads came into conflict with the limitations of the Bipartisan Campaign Reform Act because they coincided with Senator Feingold’s November 2004 re-election bid. The provision at issue prohibits corporations and unions from running ads targeted at a specific candidate within 30 days of a primary or 60 days of a general election. WRTL argues that the Act should not be applied to its ads because they were grassroots “issue ads,” and not “electioneering ads” covered by this Act. The Federal Election Commission contends that the WRTL ads were intended to sway voters in the federal election, and thus the Bipartisan Campaign Reform Act should be applied. The Supreme Court’s decision in this case will have an important effect on the delicate balance between the free speech rights guaranteed by the First Amendment and the interests of campaign finance reformers seeking to limit the electoral involvement of special interests, such as corporations and unions, which may improperly influence the electoral process.

    Questions as Framed for the Court by the Parties

    F.E.C. v. Wisconsin Right to Life

    Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.

    McCain v. Wisconsin Right to Life

    Whether the three-judge district court erred in holding that Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, is unconstitutional as applied to the three advertisements that appellee Wisconsin Right to Life, Inc. sought to broadcast in 2004.

    In 2004, many political experts anticipated that members of the U.S. Senate would try to further delay a Senate vote on President George Bush’s judicial nominees with continued filibustering.

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    FCC v. AT&T Inc.

    Issues

    Whether a corporation, like an individual, has “personal privacy” that could be violated by disclosure of facts obtained during a law enforcement investigation.

     

    The Freedom of Information Act (“FOIA”) generally allows access to, and disclosure of, federal information and records to those who requested them, subject to some exceptions, including one for a disclosure that would constitute an invasion of “personal privacy.” Following a recent investigation of Respondent AT&T Inc. (“AT&T”) by Petitioner the Federal Communications Commission (“FCC”), Respondent CompTel, a non-profit trade association, requested under FOIA all of the records and information pertaining to the FCC’s investigation. In allowing disclosure of some of the information, the FCC rejected AT&T’s argument that such disclosure would constitute an invasion of “personal privacy,” holding that this exception was strictly limited to individuals. AT&T appealed to the Third Circuit, which held that a corporation may have “personal privacy” interests and remanded to the FCC. AT&T argues that the term “personal privacy” applies to corporations as well as individuals, and the FCC argues that such a term is limited to individuals. The Supreme Court’s  decision in this case  will determine the amount of protection given to corporations under FOIA and will likely affect the amount of access the public has to certain private corporate information.

    Questions as Framed for the Court by the Parties

    Exemption 7(C) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C), exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The question presented is: Whether Exemption 7(C)'s protection for "personal privacy" protects the "privacy" of corporate entities.

    Under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, federal agencies must disclose records to anyone who requests them, subject to certain exemptions. See AT&T v. FCC, 582 F.3d 490, 492 (3d 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

    · Time, Adam Cohen: Why Companies Don’t Deserve Personal Privacy Rights (Dec. 15, 2010)

    · Inside Counsel, Melissa Maleske: Supreme Court Will Decide if "Personal Privacy" under FOIA Applies to Corporations (Nov. 30, 2010)

    · United States Department Of Justice: FOIA Request Handbook

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    FAA v. Cooper

    Issues

    Whether a plaintiff suing under an invasion of privacy theory can recover for emotional and other nonpecuniary damages when the relevant statute’s language is ambiguous about the types of damages it covers.

     

    A joint criminal investigation carried out by the Department of Transportation and the Social Security Administration revealed that Respondent Stanmore Cawthon Cooper failed to disclose that he had HIV to one agency, while simultaneously collecting medical benefits from the other. Upon being convicted for making these misrepresentations, Cooper brought suit against the Federal Aviation Administration, the Department of Transportation, and the Social Security Administration under the Privacy Act of 1974, arguing that the Government had unlawfully disclosed his HIV status. The district court dismissed the suit, holding that the Privacy Act’s language, which imposes liability on federal agencies only in cases where an individual suffered “actual damages,” does not cover Cooper’s allegations of emotional harm. The Ninth Circuit Court of Appeals reversed, holding that the term “actual damages” encompasses mental or emotional harm suffered. The FAA now appeals, arguing that the term “actual damages” is ambiguous and must be construed in favor of the federal government to exclude noneconomic damages. The Supreme Court’s decision in this case will address whether emotional and other noneconomic damages are “actual damages,” raising broad implications for future suits under the Privacy Act.

    Questions as Framed for the Court by the Parties

    Whether a plaintiff who alleges only mental and emotional injuries can establish "actual damages" within the meaning of the civil remedies provision of the Privacy Act, 5 U.S.C. 552a(g)(4)(A).

    In 1985, Stanmore Cawthon Cooper, an airline pilot, was diagnosed with human immunodeficiency virus (“HIV”). See Cooper v. FAA, 596 F.3d 538, 541 (9th Cir.

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    Shannon Nelson and Louis Alonzo Madden v. Colorado

    Issues

    Is Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence after reversal of conviction of a crime, in order to have various monetary penalties returned to them, consistent with due process?

    This case presents the Supreme Court with an opportunity to decide the constitutionality of a statute requiring a defendant to initiate a civil case to obtain reimbursement of costs, fees, and restitution after the reversal of conviction of a crime. This case arises out of Shannon Nelson’s conviction for sexual assault, which was overturned after she served prison time and paid various fees. The Colorado Supreme Court found that due process did not require a refund because a defendant could receive compensation by filing a civil suit under the Exoneration Act. Nelson argues that Colorado’s requirement improperly places the burden of proof on the defendant to prove his or her innocence in order to recover fees paid for a conviction that was later overturned. Colorado asserts that Nelson did not necessarily have an automatic right to the refund of her criminal penalties and that, even if she did, Colorado’s requirement satisfies due process. This case poses questions about a state’s ability to affect the presumption of innocence through statutes that influence the scope of due process.

    Questions as Framed for the Court by the Parties

    Colorado, like many states, imposes various monetary penalties when a person is convicted of a crime. But Colorado appears to be the only state that does not refund these penalties when a conviction is reversed. Rather, Colorado requires defendants to prove their innocence by clear and convincing evidence in a separate civil proceeding to get their money back. The Question Presented is whether this requirement is consistent with due process.

    Petitioner Shannon Nelson was convicted in 2006 of sexual assault offenses against her children for which she began serving a prison term and incurred monetary charges, which the state of Colorado imposes on defendants who have been convicted. See Colorado v. Nelson, 2015 CO 68, No. 13SC495 (Colo. Dec. 21, 2015) at ¶2.

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    Lewis v. Clarke

    Issues

    Does a lawsuit against a tribal employee for an act he committed within the scope of his employment by the tribe violate tribal sovereign immunity?

    With Lewis and Clarke, the Supreme Court will venture into the relatively unfamiliar legal territory of tribal sovereign immunity for individuals employed by Indian tribes. The case arises out of an automobile accident between Brian and Michelle Lewis and William Clarke, an employee of the Mohegan Sun Casino, which is owned by the Mohegan tribe. In a lawsuit brought by the Lewises, Clarke successfully convinced the Connecticut Supreme Court that he was entitled to tribal sovereign immunity. The Lewises argue that sovereign immunity does not apply when a tribal employee is sued in his individual capacity because the finances of the tribe are not formally at risk. Clarke counters that the finances of the tribe are at risk in this suit, and thus, the sovereign immunity of the tribe should extend to him because he was acting within the scope of his tribal employment. To some, the voyage of Lewis and Clarke into the obscure realm of tribal sovereign immunity for individuals imperils tribal coffers; to others, the regulatory power of the states is at stake.

    Questions as Framed for the Court by the Parties

    Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

    Lewis and Clarke’s five-year voyage to the Supreme Court began on October 22, 2011 with the chance encounter of Brian and Michelle Lewis (“Lewis”) and William Clarke (“Clarke”) in Norwalk, Connecticut. See Lewis v. Clarke, 135 A.3d 677, 679 (Conn. 2016). At the time, Clarke was an employee of the Mohegan tribe and was responsible for transporting patrons of the Mohegan Sun Casino in a limousine to their homes.

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