Berger v. North Carolina State Conference of the NAACP

Issues

Do state legislators authorized under North Carolina law have a right to intervene to defend the constitutionality of the state’s voter-ID law, even though the Attorney General is representing the state in the litigation; and, must state legislators make a showing of inadequate representation to intervene?

This case asks the Supreme Court to determine whether state legislators have a right to intervene in a lawsuit filed against the state of North Carolina concerning the constitutionality of the state’s voter-ID law when the Attorney General is already representing the state in the matter. Petitioners Philip E. Berger, President Pro Tempore of the North Carolina Senate and Timothy K. Moore, Speaker of the North Carolina House of Representatives argue that Rule 24(a)(2) of the Federal Rules of Civil Procedure (“FRCP”) and North Carolina law grant state legislators the right to intervene on behalf of the state in judicial proceedings. Petitioners further maintain that Rule 24 only requires state agents to establish a minimum standard of inadequate representation to intervene in litigation involving their state’s interests. Respondents North Carolina State Conference of the NAACP and other North Carolina NAACP branches counter that Rule 24(a)(2) does not allow an additional party to join the case when its interests are identical to the existing party’s interests. Moreover, the Respondents argue that state legislators need to demonstrate a higher standard of inadequacy to show that the Attorney General is inadequately representing the state to join the case. The outcome of this case has important implications for the role of state governments in litigation, future parties that are or will be engaged in litigation with the states, and the judiciary.

Questions as Framed for the Court by the Parties

1. Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant?

2. Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion?

3. Whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation?

In 2018, North Carolina passed Senate Bill 824 (“the Bill”), which required voters to “present one of ten forms of authorized photographic identification” in order to vote. N. Carolina State Conf. of NAACP v.

Additional Resources

 

Submit for publication
0

West Virginia v. Environmental Protection Agency

Issues

Under a provision of the Clean Air Act, did Congress prohibit the EPA from issuing rules and standards of performance that could potentially reshape the country's electricity grids and unilaterally decarbonize any sector of the economy?

 

This case asks the Supreme Court to consider the statutory limitations imposed on the Environmental Protection Agency by the Clean Air Act when it attempts to regulate emissions emanating from stationary sources. Petitioner West Virginia argues that the Court should not allow the EPA to issue significant rules that can reshape the country’s electricity grids and thus expand the agency’s power to an unprecedented level. Respondent the Environmental Protection Agency (“EPA”) responds that the Court should not read into the text an artificial restriction because any qualification will be directed at the states, not the federal agency. The Court’s decision in this case has heavy implications for the scope of federal administrative power, climate change policy, and statutory interpretation.

Questions as Framed for the Court by the Parties

Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.

In 1963 Congress passed the Clean Air Act, which aimed to “protect and enhance” the quality of our air. Am. Lung Ass'n v. Envtl. Prot. Agency at 930. In 1970, Congress amended the Clean Air Act and granted the Environmental Protection Agency (“EPA”) additional powers to regulate any “new and existing” sources of air pollution originating from stationary sources. Id.

Additional Resources

Submit for publication
0

Ruan v. United States

Issues

Does a doctor who prescribed controlled substances outside of the usual standard of medical care violate federal drug distribution laws if the doctor believed in good faith that he was adhering to standard medical practice?

 

This case asks the Supreme Court to consider the requirements for criminal conviction under the Controlled Substances Act (“CSA”), 21 U.S.C. Section 841(a)(1). Two physicians, Petitioners Xiulu Ruan and Shakeel Kahn, were convicted of violating the CSA by prescribing medication without legitimate medical purposes. Both physicians brought good-faith defenses, arguing that they did not intentionally or knowingly violate the CSA. The physicians claim that a subjective lack of knowledge or intent is sufficient to maintain innocence under the CSA. At trial, juries were instructed to find the physicians innocent only if the physicians reasonably believed they were in compliance with the law. Respondent United States claims this objective standard is the correct reading of the statute, and Ruan and Kahn claim the objective standard creates an impermissibly low standard for conviction. This case has important implications for the future of medical practice, medical research, and mens rea requirements in criminal law.

Questions as Framed for the Court by the Parties

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice

Additional Resources

Submit for publication
0

Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc.

Issues

Does a health insurance plan’s uniform classification of all dialysis providers as “out-of-network” violate the Medicare Secondary Payer Act by “tak[ing] into account” Medicare-eligibility of end-stage renal disease patients or “differentiat[ing]” in benefits eligible to Medicare-eligible end-stage renal disease patients?


This case asks the Supreme Court to decide what type of dialysis-reimbursement schemes are acceptable for group health plans considering that end-stage renal disease (“ESRD”) patients are eligible for Medicare. The Medicare Secondary Payer Act (“MSPA”) prohibits health plans from “tak[ing] into account” Medicare eligibility of ESRD patients and “differentiat[ing]” in benefits provided to Medicare-eligible ESRD patients. Marietta contends that its plan did not violate the “take into account” or “differentiation” provisions of the MSPA because the dialysis reimbursement applies equally to dialysis patients with and without ESRD and because the purpose of the MSPA is coordination-of-benefits for ESRD patients rather than anti-discrimination. DaVita counters that the design of Marietta’s plan is intended to induce ESRD-patient members to drop the Plan in favor of Medicare, and that the plan design differentiates based on the disparate impact that ESRD patients face when seeking dialysis reimbursement. The outcome of this case has heavy implications for ESRD access to care, dialysis-treatment reimbursement, and health insurance plan structuring.

Questions as Framed for the Court by the Parties

(1) Whether a group health plan that provides uniform reimbursement of all dialysis treatments observe the prohibition provided by the Medicare Secondary Payer Act that group health plans may not “take into account” the fact that a plan participant with end stage renal disease is eligible for Medicare benefits; (2) whether a plan that provides the same dialysis benefits to all plan participants, and reimburses dialysis providers uniformly regardless of whether the patient has end stage renal disease, observe the prohibition under the Medicare Secondary Payer Act that a group health plan also may not “differentiate” between individuals with end stage renal disease and others “in the benefits it provides”; and (3) whether the Medicare Secondary Payer Act is a coordination-of-benefits measure designed to protect Medicare, not an antidiscrimination law designed to protect certain providers from alleged disparate impact of uniform treatment.

DaVita and its subsidiary DVA Renal Healthcare (collectively “DaVita”) are well-known healthcare providers specializing in kidney care. DaVita, Inc. v. Marietta Mem. Hosp. at 2.

Additional Resources

Submit for publication
0

Egbert v. Boule

Issues

Does a plaintiff have a Bivens implied right of action against a federal officer under either the First Amendment or under the Fourth Amendment when the officer is engaged in immigration enforcement functions?


This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations.

Questions as Framed for the Court by the Parties

1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

Robert Boule is the owner of a bed and breakfast in Blaine, Washington. Boule v. Egbert at 1312. Boule’s property directly adjoins the United States-Canada border. Id. In March 2014, Boule encountered Erik Egbert, a Customs and Border Protection (“CBP”) agent. Id. Egbert asked Boule about guests staying at Boule’s inn.

Additional Resources

Submit for publication
0

Arizona v. City and County of San Francisco, California

Issues

May an interested state permissibly intervene to defend an immigration rule in court after the United States ceases to defend it and announces that a court ruling vacating the immigration rule will become effective nationwide?

 

This case asks the Supreme Court to consider whether states should be permitted to intervene to defend a rule when the United States ceases to defend it. Petitioner Arizona argues that the States fulfilled all the requirements for intervention of right and permissive intervention, and, therefore, should be permitted to intervene. Respondent San Francisco counters that the circumstances in this case do not justify intervention of right, and that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. The outcome of this case will impact government rulemaking as well as governmental and judicial resources.

Questions as Framed for the Court by the Parties

Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.

Under federal immigration law, 8 U.S.C.

Additional Resources

Submit for publication
0

Ysleta del Sur Pueblo v. Texas

Issues

Did the Fifth Circuit correctly interpret the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act to subject the Ysleta del Sur Pueblo to all Texas gaming regulations?

 

This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court's precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty.

Questions as Framed for the Court by the Parties

Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on their lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the Fifth Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.

The Ysleta del Sur Pueblo (“the Pueblo” or “the Tribe”) are a federally recognized Indian nation in Texas, with its 100-acre reservation near El Paso, Texas. Brief for Petitioners, Ysleta del Sur Pueblo at 5. In the 1980s, the Pueblo sought to obtain federal trust status from the federal government.

Additional Resources

Submit for publication
0

Denezpi v. United States

Issues

Does the Double Jeopardy Clause bar the prosecution of a crime in a federal district court when the defendant was previously convicted for the same incident in a Court of Indian Offenses?

This case asks the Supreme Court to decide whether prosecution of the same conduct, first in a Court of Indian Offenses (“CFR court”), a federally-constituted Article I trial court with jurisdiction over cases arising on Indian reservations, and then in a federal court, is permissible under the dual sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment. Petitioner Merle Denezpi argues that his prosecution in a federal district court following his conviction in the Ute Mountain Ute CFR court violates the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive prosecutions of the same offense, because the CFR court derives some of its judicial power from the federal sovereignty of the United States government. Respondent the United States counters that Denezpi’s crime falls within the dual sovereignty exception to the Double Jeopardy Clause because the Ute Mountain Ute CFR court is an extension of tribal, not federal, sovereignty and, as Denezpi’s conduct violated both tribal and federal law, he can be prosecuted successively under each law by the two separate sovereigns. The outcome of this case has implications for tribal sovereignty and public safety in tribal communities.

Questions as Framed for the Court by the Parties

Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.

In the 19th century, in response to the growing federal policy of assimilating Native American tribes into Anglo-American society, Congress created special Article I courts across the country known as Courts of Indian Offenses. United States v. Denezpi, at 782.

Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

Additional Resources

Submit for publication
0

Cassirer v. Thyssen-Bornemisza Collection Foundation

Issues

Must a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act apply the forum state’s choice-of-law rules or federal common law to determine what substantive law governs the claims at issue?

This case asks the Supreme Court to consider whether a federal court should apply the forum state's choice-of-law rules or federal common law in cases brought against a foreign state under the Foreign Sovereign Immunities Act (“FSIA”). Petitioner David Cassirer contends that the forum state's choice-of-law rules should apply, arguing that Congress intends state law to apply so that results in cases against a foreign national and against a foreign state are the same. Thus, Cassirer argues that, in this case, California substantive law should apply. In response, Respondent Thyssen-Bornemisza Collection Foundation (“TBCF”) contends that federal common law should apply because jurisdiction under FSIA is more analogous to federal question jurisdiction rather than diversity jurisdiction. In this case, TBCF argues that Spanish law should govern. This case has important policy implications for foreign relations, international justice, and the separation of powers.

Questions as Framed for the Court by the Parties

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice of law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

In Nazi Germany, in 1939, Lilly Neubauer—David Cassirer’s great-grandmother—was forced to “sell” a Pissarro painting to a Berlin art dealer. Cassirer v. Thyssen-Bornemisza Collection Foundation  at 6. The Nazi government demanded that Lilly sell the painting under threat of imprisoning her in Germany. Id. Both parties and the district court have concluded that the painting was forcibly taken from Lilly.

Additional Resources

Submit for publication
0

Concepcion v. United States

Issues

Whether drug offenders that are eligible for a sentencing reduction based on Section 404(b) of the First Step Act are entitled to have intervening legal factors and developments considered at their resentencing?

This case asks the Supreme Court to determine whether the First Step Act requires or merely allows courts to consider post-sentencing developments during First Step Act sentence modifications. Petitioner Carlos Concepcion argues that the First Step Act requires courts to consider post-sentencing legal and factual developments during sentence modifications. Respondent United States counters that the First Step Act grants courts the discretion to consider post-sentencing developments during sentence modifications. The outcome of this case will impact the sentencing of many low-level drug offenders as well as a court’s authority over resentencing under Section 404 of the First Step Act.

Questions as Framed for the Court by the Parties

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments?

In 2006, Petitioner Carlos Concepcion (“Concepcion”) was arrested on felony drug charges. Concepcion v. United States at 283. Federal investigators alleged Concepcion was involved in the illegal sale of at least 27.5 grams of crack cocaine and 186.34 grams of powdered cocaine. Id. In 2008, Petitioner Carlos Concepcion pled guilty to one count of possessing with intent to distribute or distributing at least 5 grams of crack cocaine. Id.

Additional Resources

 

Submit for publication
0
Subscribe to