Kerry v. Din

Issues

Does the refusal of a U.S. citizen’s alien spouse’s visa application bestow upon the citizen an enforceable constitutionally protected interest?

The Supreme Court will decide whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. Secretary of State Kerry argues that a citizen’s liberty interests are not implicated because neither the Immigration and Nationality Act (“INA”) nor the Due Process Clause confer upon the citizen a legally cognizable interest in the consular officer’s determination, and consular officers’ determinations should not be challenged in court because judicial review would conflict with the consular nonreviewability doctrine and congressional intent in establishing the INA. In opposition, Din, a U.S. citizen, argues that the consular officer’s determination conflicts with the Court’s jurisprudence, which establishes a fundamental right to marry and to benefit from the associational interests in marriage, and that the consular officer’s determination should be subjected to judicial review in order to protect citizens’ liberty interests from arbitrary restrictions. The Court’s ruling in this case implicates the ability of the government to prevent disclosure of confidential information related to national security concerns and the ability of citizens to live with their alien spouse in the United States.

Questions as Framed for the Court by the Parties

  1. Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
  2. Whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Fauzia Din, a U.S. citizen, married Kanishka Berashk, an Afghani national, in September 2006. See Din v. Kerry, 718 F.3d 856, 858 (9th Cir. 2013). Din shortly thereafter filed a visa petition in order for Berashk to be admitted into the United States.

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Additional Resources

  • Lawrence Hurley: Supreme Court to Weigh Spouse Rights Over Denied Visa, Reuters (Oct. 2, 2014).
  • Ian R. Macdonald: SCOTUS Grants Certiorari to Two Immigration-Based Cases for 2015 Term: Will the Government Have to Explain its Exercise of “Discretion”?, The National Law Review (Oct. 15, 2014).
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Baker Botts v. ASARCO

Issues

Can bankruptcy lawyers recover compensation for fees incurred through defending a fee application against a bankruptcy client’s objections?

This case presents the Supreme Court with the opportunity to decide whether courts have the authority to grant defense-fee awards when a law firm defends itself against its bankruptcy client’s objections to legal fees. Brief for Petitioner Baker Botts at (i). ASARCO argues that § 330 of the Bankruptcy Code (“the Code”) does not permit awards for compensation to bankruptcy practitioners for successfully defending fee applications. Brief for Respondent at 16. In opposition, Baker Botts contends that § 330 gives courts broad discretion to award compensation for services that are necessary to the administration of bankruptcy cases, including successfully defending fee applications. Brief for Petitioners at 23. The Supreme Court’s decision in this case will impact the compensation of bankruptcy lawyers and the rights of bankruptcy clients. See Brief of Amicus Curiae the Committee On Bankruptcy and Corporate Reorganization of the Association of the Bar of the City of New York, The Business Law Section of the Florida Bar, et al. (“New York City and Florida Bar Associations”), in Support of Petitioners at 9; Brief of Amicus Curiae Bankruptcy Law Scholars, in Support of Petitioners at 25; Brief for Petitioners at 23 (quoting § 330(a)(C)).

Questions as Framed for the Court by the Parties

Section 330(a) of the Bankruptcy Code grants discretion to bankruptcy judges to award "reasonable compensation for actual, necessary services rendered by" an attorney or other professional employed by the estate. 11 U.S.C. §330(a)(1). Before any compensation may be awarded, the Code requires professionals to complete a detailed fee application, to which any party in interest may object. It is undisputed that the preparation of such a fee application is compensable. But the circuits have now divided over whether defending it is likewise compensable. The Ninth Circuit, like the vast majority of lower courts, has held that bankruptcy judges may award compensation for the defense of a fee application, at least when the defense is meritorious and successful. It so held in part because categorically denying compensation would undermine the statutory requirement that bankruptcy professionals' compensation not be diluted compared to that of non-bankruptcy practitioners. But the Fifth Circuit, in the judgment below, held that such compensation is never authorized by §330(a). 

The question presented is whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

In 2005, Respondent ASARCO, a copper mining company, filed for bankruptcy protection under Chapter 11 of the federal Bankruptcy Code (the “Code”) due to mounting cash-flow and litigation problems. In re ASARCO, 751 F.3d 291, 293 (5th Cir. 2014).

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Williams-Yulee v. Florida Bar

Issues

Does a Florida rule of judicial conduct that bars judicial candidates from personally soliciting campaign funds violate the candidates’ First Amendment right to freedom of speech?  

Court below

The Supreme Court will determine whether states may issue rules of judicial conduct that prohibit judicial candidates from personally soliciting campaign funds. Williams-Yulee contends that Canon 7C(1), a Florida rule of judicial conduct prohibiting judicial candidates from personally soliciting campaign funds, is unconstitutional because it restricts judicial candidates’ speech and fails strict scrutiny review since it is not narrowly tailored to serve a compelling state interest. The Florida Bar counters that the rule is constitutional because it serves the Florida’s interest in ensuring judicial impartiality and is narrowly tailored because candidates can exercise free speech and may raise funds through alternative means. The Supreme Court’s ruling in this case implicates the type of fundraising initiatives judicial candidates are permitted to take when running their campaigns. 

Questions as Framed for the Court by the Parties

Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?

Lanell Williams-Yulee became a candidate for a Florida County Court Judgeship in September 2009. See Fla. Bar v. Williams-Yulee, 138 So. 3d 379, 381 (Fla. 2014).

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Additional Resources

•    Current and Recent Cases of Interest, Fair Courts Litigation Task Force.

•    Williams-Yulee v. The Florida Bar, Brennan Center for Justice (Oct. 23, 2014).

•    Adam Liptak: Judges on the Campaign Trail, The New York Times (Sept. 27, 2014). 

•    Greg Stohr: Judicial Campaign Solicitations Get Supreme Court Review, Bloomberg (Oct. 2, 2014).

•    Stephen Wermiel: SCOTUS for law students: Financing judicial elections, SCOTUS Blog (Dec. 23, 2014).

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Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

Issues

Does the Fair Housing Act include a right of action for disparate-impact claims?

In this case, the Supreme Court will determine whether the U.S. Department of Housing and Urban Development (“HUD”)’s interpretation of the Fair Housing Act (“FHA”) to include disparate-impact claims is subject to Chevron deference, which would result in disparate-impact liability under the FHA. The Texas Department of Housing and Community Affairs argues that the Court should not defer to the HUD’s interpretation, which it claims is unreasonable because the language of the FHA differs from other statutes that explicitly allow disparate-impact liability. Inclusive Communities, on the other hand, argues that the HUD’s interpretation is entitled to deference because it is reasonable, and is in fact the most favorable interpretation, given that the FHA’s goal of “remedy[ing] existing effects of prior intentional segregation.” This case will ultimately determine the breadth of the rights of action under the FHA for discrimination in affordable housing. 

Questions as Framed for the Court by the Parties

1.    Are disparate-impact claims cognizable under the Fair Housing Act?

2.    If disparate-impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply?

NOTE: The Supreme Court has limited its inquiry to Question 1.

The Petitioner, Texas Department of Housing and Community Affairs (“TDHCA”), is a state agency that allocates Low Income Housing Tax Credits (“LIHTCs”) to housing developers. See Inclusive Communities Project, Inc. v.

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Additional Resources

•    Nicole Flatow: The Supreme Court is Poised to Cripple the Federal Ban On Housing Discrimination, Thinkprogress.org (Oct. 2, 2014).

•    Sam Hananel: Supreme Court to Hear Another Case On Housing Bias, Huffington Post (Oct. 2, 2014).

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Rodriguez v. United States

Issues

Does an officer’s continued detention of a driver, even after completion of the traffic stop, to conduct a canine sniff violate the Fourth Amendment when the officer lacks reasonable suspicion of criminal activity or some other legal justification to support the additional investigation?

The Supreme Court will determine whether an officer may extend a traffic stop, even after the stop has been completed, to conduct a canine sniff without reasonable suspicion of criminal activity or some other legal justification. Dennys Rodriguez claims that any extension of a completed stop to conduct further investigation, no matter how brief, violates the Fourth Amendment unless the extension is independently justified by reasonable suspicion. The United States counters that officers may lawfully engage in further investigations during a traffic stop so long as the officer does not unreasonably prolong the stop. The Supreme Court’s decision might curb law enforcement’s investigative powers with respect to routine traffic stops by potentially creating bright-line restrictions on those powers. 

Questions as Framed for the Court by the Parties

This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

On the night of March 27, 2012, police officer Morgan Struble saw a vehicle briefly drive onto the shoulder of a Nebraska highway in violation of Nebraska law. See United States v. Rodriguez, 741 F.3d 905, 906 (8th Cir. 2014); Brief for Respondent, the United States at 2. Struble stopped the vehicle at 12:06 A.M.

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Armstrong v. Exceptional Child Center, Inc.

Issues

Does section (30)(A) of the Medicaid Act provide a private right of action for Medicaid providers against states under the Supremacy Clause, even when Congress has not explicitly created the right? 

The Supreme Court will consider whether individual Medicaid providers have a private right of action under the Supremacy Clause to enforce section (30)(A) of the Medicaid Act (“§ (30)(A)”), which requires state Medicaid agencies to take provider costs into account when setting reimbursement rates, when Congress has not explicitly granted a private right of action. Richard Armstrong, the Director of Idaho’s Department of Health and Welfare, argues that individuals do not have a private right of action under § (30)(A) or the Supremacy Clause because a private remedy cannot exist without congressional intent and private litigants should not play a role in determining whether a state gets federal funding. According to Exceptional Child Center, however, when a state law conflicts with federal law, individuals have a private right of action under the Supremacy Clause to bring an injunction and prevent harm that would result from the conflicting state statute. The Court’s ruling will impact the right of individuals to recover under the Supremacy Clause as well as the administration of Medicaid and other statutory schemes that provide funding to states as long as they comply with federal law. 

Questions as Framed for the Court by the Parties

Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress did not expressly create enforceable rights under that statute?

Exceptional Child Center, Inc., and four other companies (collectively, “ECC”) offer in-home healthcare and other services for those who are Medicaid-eligible in Idaho. See Inclusion, Inc. v. Armstrong, 835 F. Supp. 2d 960, 961 (D.

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Additional Resources

•    Robert Pear: As Medicaid Rolls Swell, Cuts in Payments to Doctors Threaten Access to Care, The New York Times (Dec. 27, 2014). 

•    Peyton M. Sturges: High Court to Review Medicaid Dispute, Providers' Rights to Force Higher Payments, Bloomberg BNA's Health Law Reporter (Oct. 9, 2014). 

•    Steve Vladeck: Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong, PrawfsBlawg (Dec. 23, 2014). ​

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Mach Mining v. EEOC

The Supreme Court will determine the extent to which courts can review efforts by the Equal Employment Opportunity Commission (“EEOC”) to informally mediate discrimination claims before filing a lawsuit. Mach Mining, LLC argues that judicial review of the EEOC’s pre-suit conciliation efforts is permissible pursuant to the statutory language of 42 U.S.C. § 2000e-5(b). Contrarily, the EEOC asserts that Congress did not intend for judicial review of the EEOC’s pre-suit conciliation efforts. The Supreme Court will have the opportunity to resolve a circuit split regarding judicial review of the EEOC’s pre-conciliation efforts. Further, the Supreme Court will clarify the boundaries of the EEOC’s responsibilities in the conciliation process. 

Questions as Framed for the Court by the Parties

Whether the court can impose the mandatory requirement of conciliation on the EEOC before the organization to file a civil discrimination suit?

In 2008, a woman filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). See EEOC v. Mach Mining Inc., 738 F.3d 171, 173 (7th Cir. 2013). The woman alleged that Mach Mining, LLC (“MM”) denied her a job because of her sex.

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Wellness International Network v. Sharif

Issues

1.    Do bankruptcy courts have constitutional authority to make a final judgment on state law claims?

2.    May a bankruptcy court resolve claims otherwise outside its jurisdiction so long as the litigants consent expressly or impliedly?

This case presents the Supreme Court with an opportunity to clarify the constitutionality of the allocation of power between federal district courts and bankruptcy courts, as well as an opportunity to clarify the role of the Stern v. Sullivan decision in this power struggle. The parties first dispute the extent of a bankruptcy court’s authority to decide a state law issue, namely one based on an alter ego theory. On the one hand, Wellness contends that an alter ego claim should not be distinguished from the necessary process in any bankruptcy filing of determining which of the debtor’s assets are available to the creditor. Sharif disagrees and believes that adjudicating an alter ego claim is a common law claim, i.e., not a core bankruptcy proceeding, and therefore is exclusively within the jurisdiction of an Article III court. The parties also dispute whether, notwithstanding the outcome of the preceding issue, a party can consent to the bankruptcy court adjudicating an alter ego claim. Wellness believes the right to Article III adjudication here protects personal interests and is therefore subject to waiver by litigants. By contrast, Sharif characterizes this as a separation of powers (i.e., structural) issue that may not be waived. 

Questions as Framed for the Court by the Parties

1. Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor's possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action.

2. Whether Article III permits the bankruptcy courts to exercise the judicial power of the United States over claims against a debtor where the debtor has consented to the exercise of such judicial power by voluntarily filing for bankruptcy relief.

In addition, this case also presents the two questions currently before the Court in Executive Benefits Insurance Agency v. Arkison, 133 S. Ct. 2880 (2013) (No. 12-1200). Because of the procedural posture of Executive Benefits-there the district court reviewed the bankruptcy court's summary judgment order de novo-it is possible that the Court may conclude that no constitutional violation occurred and thus, not reach the issues on which certiorari was granted. In such event, this case presents the opportunity to address those questions, about which there is also a split among the circuits:

3. Whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

4. Whether bankruptcy courts have the statutory authority to submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. § 157(b).

The facts of this case stem from a “decade-long saga” involving Richard Sharif, the debtor, and Wellness International Network, Ltd., (“Wellness”), the creditor. See Wellness Int’l Network, Ltd. v. Sharif, 727 F.3d 751, 754 (7th Cir. 2013).

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Additional Resources

•    Supreme Court to Reconsider Authority of Bankruptcy Judges, The Knowledge Effect (July 22, 2014).

•    Jeff Elkin: Wellness International Network v. Sharif: A Return to a Formalist Reading of Article III?, The Legislation & Policy Blog (Oct. 29, 2014).

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Reed v. Town of Gilbert

Issues

Does a town’s sign ordinance that assigns different size and posting requirements based on the type of noncommercial speech displayed violate the First Amendment?  

The Supreme Court granted certiorari to address a circuit split regarding the constitutionality of sign ordinances that treat signs differently depending on the type of noncommercial speech displayed. The Town of Gilbert’s Sign Code stipulated size requirements and posting times that differed depending on if the signs were classified as political, ideological, or “temporary directional signs” for religious or non-profit events. The latter category’s size and timing requirements were more restrictive than those for political or ideological signs. Good News Community Church and its pastor, Clyde Reed, argue that Gilbert’s sign code violates the First Amendment. Conversely, Gilbert contends that the Sign Code does not violate the Constitution since it does not favor certain viewpoints or ideas over others and serves an important government interest in regulating safety and aesthetics. The Court’s ruling could have important consequences for free speech as well as for local governments’ ability to manage community safety and aesthetics.

Questions as Framed for the Court by the Parties

Does Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign code content-neutral and justify the code’s differential treatment of Petitioners’ religious signs?

Respondent Town of Gilbert’s (“Gilbert”) sign ordinance (“Sign Code”) requires that individuals obtain a permit to post signs within the city limits. See Reed v. Town of Gilbert, 707 F.3d 1057, 1061 (9th Cir.

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Oneok v. Learjet

Issues

Does the Natural Gas Act, which regulates wholesale prices of natural gas, preempt state antitrust liability when accusations concern not wholesale, but retail prices?

The Supreme Court will decide whether the Natural Gas Act (“NGA”) preempts state laws that regulate the retail of natural gas. Oneok and other sellers of natural gas argue that the NGA preempts the claims that these sellers of natural gas violated antitrust laws by illegally manipulating the retail price of natural gas and engaging in wash sales. Learjet, however, contends that while wholesale rates are regulated by the NGA, the NGA does not preempt state law that regulates retail rates. The Supreme Court’s resolution of this case could impact federalism concerns as well as the future of the natural gas market. 

Questions as Framed for the Court by the Parties

Does the Natural Gas Act preempt state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions?

Starting in 2005, Respondents Learjet, Inc. and other retail gas purchasers (collectively, “Learjet”), filed claims in both federal and state court alleging that Petitioners Oneok, Inc. and other natural gas traders (collectively, “Oneok”), skewed the market for natural gas and inflated gas prices by “engaging in wash

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