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with cases in the Supreme Court.


Public Citizen in the Supreme Court

To preserve public-interest victories in the lower courts, Public Citizen Litigation Group lawyers often offer assistance to counsel for individuals opposing petitions for certiorari. Our assistance ranges from drafting the opposition to the petition, to editing the lawyer’s draft, to providing strategic advice, to simply answering questions about Supreme Court procedure. In the Supreme Court’s 2013 Term, which ended on June 30, 2104, Public Citizen Litigation Group provided substantial assistance at the petition stage in more than 20 cases. Among the cases in which we helped successfully to oppose certiorari are –

Swift Transportation Co. v. Van Dusen

Truck drivers who were employed by the Swift Transportation Company sued Swift, claiming that it had violated wage and hour laws. Claiming that the drivers were not employees but “independent contractors,” Swift sought to compel them to arbitrate their claims individually rather than to allow them to proceed collectively in court. A federal district court compelled arbitration, but the Ninth Circuit Court of Appeals reversed. The court held that because the Federal Arbitration Act (FAA) does not apply to arbitration agreements contained in transportation workers’ employment agreements, the lower court first had to decide whether the plaintiffs were employees or independent contractors before it could compel arbitration under the FAA. Swift filed a petition for certiorari, arguing that because the agreements provide that the arbitrator is supposed to determine questions of “arbitrability,” the court was required to compel arbitration of the issue whether the FAA requires arbitration. Public Citizen assisted counsel for the plaintiffs in preparing a brief in opposition to the petition, pointing out that the Supreme Court’s decisions make clear that the FAA cannot require arbitration of any issue in a case to which it does not apply, and that a court must therefore determine whether a case falls within the FAA’s exception for employment agreements before it can compel arbitration under the FAA. The court denied the petition.

City of Burbank v. Dahlia

Burbank police officer Angelo Dahlia told an outside agency and his union president that his fellow officers abused suspects and subsequently threatened Dahlia himself to keep him quiet. As a result, Dahlia was placed on administrative leave, with the consequence that he forfeited holiday and on-call pay and lost the opportunity to take a promotion examination. Dahlia sued the officers who threatened him, the police chief, and the City of Burbank for retaliation based on his speech. The district court found that Dahlia’s speech was unprotected by the First Amendment, holding that his speech was within the scope of his job duty to report crime. An eleven-judge panel of the Ninth Circuit reversed, holding that Dahlia’s reports outside the regular chain of command might be protected by the First Amendment. Burbank then sought review in the Supreme Court. We took the lead in drafting the opposition, which argued that the lower courts did not disagree on the application of the law, but came to differing conclusions solely based on different facts. The Supreme Court denied the petition.

Family Dollar v. Scott

A group of female store managers sued their employer, retail chain Family Dollar Stores, Inc., for employment and pay discrimination in violation of federal law. After the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, the plaintiffs sought to amend their complaint to expand on the class-action allegations in their initial complaint regarding Family Dollar’s centralized decisionmaking. Specifically, the plaintiffs’ proposed amended complaint pointed out, among other things, that discrimination resulted from Family Dollar’s policy of basing store managers’ salaries on past salaries (thereby perpetuating the effects of past discrimination), and the company’s policy of paying laterally-hired store managers (a group alleged to be predominately male) more than those who obtained the position by promotion (a group alleged to be predominately female). The district court dismissed the class allegations in the original complaint and denied leave to amend. The court of appeals agreed that the class could not be certified based on the original complaint but held that the district court erred in denying leave to amend because plaintiffs’ proposed amended complaint alleged specific company-wide policies and decisions made at corporate headquarters that resulted in discrimination. Family Dollar petitioned the Supreme Court to review the case. We took the lead in preparing the opposition, defending the employees’ right to amend their complaint and seek class-action status for discrimination claims based on company-wide policies and decisions made at corporate headquarters. The Court denied the petition.

GenOn Power Midwest v. Bell

Plaintiffs live near a power plant that releases chemicals, odors, and particulates onto their properties, which lowers their property values and interferes with their enjoyment of their land. They sued the power plant’s operator under state common law, alleging nuisance, negligence, and trespass. The district court dismissed the lawsuit, finding that the Clean Air Act’s regulation of emission standards preempts state tort claims. The Third Circuit reversed, holding that the Clean Air Act sets a floor emission standard, not a ceiling, and allows states to regulate in-state emissions more stringently. GenOn sought review by the Supreme Court. We assisted in drafting the opposition, and the petition was denied.

Medtronic, Inc. v. Stengel

This case arose from Medtronic’s failure to inform physicians and patients about a known risk of a medical device, which caused severe injury to Richard Stengel. Although the Food and Drug Administration initiated enforcement action against Medtronic for failing to inform its customers about the risk, and although Medtronic then sent an “urgent” letter to physicians to notify them and, soon thereafter, changed the warnings provided with the product through a recall, Medtronic argued that the Stengels’ state-law claims based on failure to warn about the risk are expressly and impliedly preempted by the Medical Device Amendments of 1976 to the Food, Drug, and Cosmetic Act. After the Ninth Circuit Court of Appeals rejected Medtronic’s preemption arguments, Medtronic petitioned the Supreme Court for review. We served as co-counsel in the Supreme Court. The opposition to the petition argued that Medtronic’s petition should be denied because the appellate court’s decision is correct on the merits under this Court’s precedents and implicates no conflict among the circuits. After considering the petition at its first Conference of the 2013 Term, the Supreme Court requested that the Solicitor General file a brief expressing his views about whether to grant or deny the petition. Both sides met with the Solicitor General's office to argue their position, and the government later filed a brief recommending that the Court deny the petition. The Court denied the petition.

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