Preemption

The McCarran-Ferguson Act, 15 U.S.C. § 1012(b), “precludes application of a federal statute” that would “invalidate, impair, or supersede” a state law “enacted * * * for the purpose of regulating the business of insurance.” The questions presented in this case are:

1. Whether a state workers’ compensation law that transfers the risk of workplace injuries to employers, and requires that employers secure their ability to assume those risks either by purchasing of insurance or by self-insuring, regulates the “business of insurance” within the meaning of the McCarran-Ferguson Act.
2. Whether a State’s exclusive, administrative remedial scheme for handling contested workers’ compensation benefit determinations is impaired within the meaning of the McCarran-Ferguson Act by the availability of suits under the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., contesting the denial of worker’s compensation claims.

Deepak Gupta and Allison Zieve of Public Citizen are co-counsel for the respondent.

The brief in opposition was filed 10/27/2009.

• Brief in Opposition (10/27/2009)

Copyright

The Copyright Act provides that a copyright holder has exclusive right to authorize the production, importation, and distribution of any copies. Under the first-sale doctrine, codified in the Copyright Act, the copyright holder exhausts those rights when he or she sells the material copies. The Ninth Circuit held here that the first-sale doctrine does not apply when the copy was produced abroad, unless the authorized first sale was in the United States.

The consequence is that any authentic material copy of a copyrighted work, including any ordinary good with a copyrighted label, that was produced and sold abroad cannot be resold, given as a gift, or donated in the United States. Because this holding, besides being unsupported by the Copyright Act, substantially undermines ordinary consumers' personal property rights, Public Citizen filed an amicus brief urging the Court to grant certiorari and overturn the Ninth Circuit's holding.

View docket updates.

Leah Nicholls, Adina Rosenbaum, Greg Beck, and Brian Wolfman are counsel for amicus curiae Public Citizen.

The amicus brief in support of the petitioner was filed 6/16/2009.

The Court issued a CVSG on 10/5/2009.

• Amicus Brief (Cert. Stage) (06/16/2009)

Attorney's Fees

The question presented is whether an attorney fee awarded under the Equal Access to Justice Act in an in forma pauperis Social Security case is invariably and as a matter of law property of the plaintiff subject to offset based on the plaintiff’s debts to the federal government, without regard to any property rights of the attorney in the fee.

Scott Nelson of Public Citizen is co-counsel for the respondent at the cert stage.

View docket updates.

Scott Nelson of Public Citizen is co-counsel for the respondent.

The brief in opposition was filed 6/25/2009.

Cert. granted 9/30/2009.

• Brief in Opposition (06/25/2009)

Civil Procedure: Class Actions

The questions presented are:

1. Can a state legislature properly prohibit the federal courts from using the class action device for state law claims?
2. Can state legislatures dictate procedure dictate procedure in the federal courts?
3. Could state-law class actions eventually disappear altogether, as more state legislatures declare them off limits to the federal courts?

The Supreme Court granted cert, and Scott Nelson of Public Citizen is counsel for the petitioner at the merits stage.

View docket updates.

Scott Nelson of Public Citizen is lead counsel for the petitioner.

The petition was filed 2/6/2009.

Cert. granted 5/4/2009.

The petitioner's brief on the merits was filed 7/10/2009.

Oral argument is scheduled for 11/2/2009.

• Petitioner's Reply Brief (09/01/2009)
• Brief for Petitioner (07/01/2009)

We represent Norman Carpenter, who alleges that Mohawk Industries, through its lawyers, tried to intimidate him and prevent him from giving truthful testimony in a pending class action against Mohawk over unfair labor practices. Mohawk tried to keep out evidence of the intimidation based on the attorney-client privilege, but the trial court overruled Mohawk's objection. The question before the Supreme Court is whether Mohawk can immediately appeal the privilege ruling.

View docket updates.

Deepak Gupta and Brian Wolfman of Public Citizen are co-counsel for the respondent.

The respondent's brief on the merits was filed 7/6/2009.

Oral argument is scheduled for 10/5/2009.

Arbitration

In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), this Court granted certiorari to decide a question that had divided the lower courts: whether the Federal Arbitration Act permits the imposition of class arbitration when the parties’ agreement is silent regarding class arbitration. The Court was unable to reach that question, however, because a plurality concluded that the arbitrator first needed to address whether the agreement there was in fact "silent." That threshold obstacle is not present in this case, and the question presented here--which continues to divide the lower courts--is the same one presented in Bazzle:

Whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

Brian Wolfman and Scott Nelson of Public Citizen assisted the resp. at the cert. stage.

Cert. granted 6/15/09.

Scott Nelson and Deepak Guptak filed an amicus brief for amicus curiae Public Citizen on 10/27/09.

Argument 12/9/09.

• Amicus Brief (10/27/2009)

Due Proces: Forfeiture

Plaintiffs, individuals whose property had been seized under Illinois’s Drug Asset Forfeiture Procedure Act (DAFPA), brought a class action § 1983 suit against Cook County State’s Attorney, the City of Chicago, and the Superintendent of Police, arguing that DAFPA violated their constitutional right to due process. The plaintiffs argued that the Act permitted plaintiffs to be deprived of their personal property, including vehicles, without any hearing for too long. The Seventh Circuit agreed. The question presented by the defendant city officials is:

In determining whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), or the three-part due process test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)?

The Supreme Court granted cert. Public Citizen provided cert-stage and merits-stage assistance to the respondents. The case is pending.

View docket updates.

Brian Wolfman of Public Citizen is assisting the respondents.

The brief in opposition, requested by the Court, was filed 1/9/2009.

Cert. granted 2/23/2009.

Oral argument is scheduled for 10/14/2009.

Arbitration

Under the Federal Arbitration Act, courts may vacate arbitration awards when arbitrators have “exceeded their powers.” 9 U.S.C. § 10(a)(4). Every circuit to squarely address the issue has held that arbitrators may exceed their powers under Section 10(a)(4) by manifestly disregarding the law, and no circuit has foreclosed that manifest-disregard standard. The questions presented are:

1. In the absence of a circuit split, should this Court grant certiorari to decide whether the manifest-disregard standard is consistent with Section 10(a)(4)?
2. Should the Court grant certiorari to decide whether, assuming the manifest-disregard standard is consistent with Section 10(a)(4), the decision below misapplied that standard to the facts of this case?

Deepak Gupta and Scott Nelson of Public Citizen are co-counsel for respondants at the cert stage.

View docket updates.

Deepak Gupta and Scott Nelson of Public Citizen are co-counsel for the respondents.

The brief in opposition was filed 8/25/2009.

Cert. denied 10/5/2009.

• Brief in Opposition (08/25/2009)

Title VII Employment Discrimination

Whether the evidence presented at trial permitted a reasonable jury to find that Monteagudo’s failure to invoke the employer’s reporting mechanism was reasonable, thus precluding petitioner from entitlement to the affirmative defense to liability for sexual harassment by supervisors under Title VII established by this Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

View docket updates.

Michael Kirkpatrick and Leah Nicholls of Public Citizen are assisting the respondent.

The brief in opposition was filed 7/27/2009.

Cert. denied 10/5/2009.

Class Action Fairness Act

The plaintiffs-respondents are West African men who worked on banana and pineapple plantations in the Ivory Coast. They suffer from infertility, sterility, and other serious health problems caused by exposure to a dangerous chemical, banned in the United States, in the pesticides used on the plantations. Seven groups of fewer than 100 workers each brought suit against Dow, the pesticide manufacturer, in California state court, alleging violations of state law. Dow seeks to remove the seven suits to federal court, claiming jurisdiction under the Class Action Fairness Act (CAFA).

CAFA provides for federal jurisdiction over "mass actions" of at least 100 plaintiffs, but also provides that a defendant may not join claims to reach the 100-plaintiff threshold. Dow argues that the seven suits here should be considered one "mass action" anyway because the plaintiffs allegedly structured their suits to avoid federal jurisdiction under CAFA. The plaintiffs contend, and the Ninth Circuit held, that the straightforward language of CAFA specifically addresses this question and preserves the decision of the plaintiffs to bring multiple smaller suits.

Leah Nicholls and Allison Zieve of Public Citizen are co-counsel for respondents at the cert stage.

View docket updates.

Leah Nicholls and Allison Zieve of Public Citizen are co-counsel for the respondents.

The brief in opposition was filed 7/24/2009.

Cert. denied 10/5/2009.

First Amendment: Employee Speech

Petitioners Cheek and Doty served as majors—second in command—in the 15-person Edwardsville, Kansas police department. The Kansas Attorney General’s office launched an investigation of corruption among Edwardsville officials and interviewed the two as witnesses. The City Council fired Cheek early in the probe and fired Doty after the Attorney General criminally charged the police chief and a council-member. The lower courts held that the speech of Cheek and Doty as witnesses lacked constitutional protection under Garcetti v. Ceballos, 547 U.S. 410 (2006). The questions presented are:

1. Whether a public employee’s statements made as a witness in an outside investigation enjoy First Amendment protection.
2. Whether a comprehensive standard for determining a public employee’s job duties typically would afford constitutional protection to statements the employee makes to external agencies, an issue expressly reserved in Garcetti.
3. Whether the court of appeals disregarded its obligation under Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 504–05 (1984), when it affirmed summary judgment against Cheek and Doty by substituting and then rejecting an inferior First Amendment argument for the one they actually presented.

Michael Kirkpatrick of Public Citizen is assisting the petitioners, and the petition is pending.

View docket updates.

Michael Kirkpatrick and Leah Nicholls of Public Citizen are assisting the petitioners.

The reply brief was filed 7/22/2009.

Cert. denied 10/5/2009.

First Amendment: Employee Speech

Joseph Densmore is a City of Maywood police officer. Densmore witnessed a more senior officer severely beat a handcuffed suspect, refused to lie about the incident as the senior officer requested, and went outside of the chain of command to report it. As a result, Densmore was treated poorly by his fellow officers and falsely accused of misconduct. Densmore brought this First Amendment retaliation suit.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that public employees' speech is not protected by the First Amendment if it was made pursuant to their official duties. The City of Maywood contends that Densmore's speech was made pursuant to his duties and therefore unprotected. The Court of Appeals found that there were disputed issues of material fact as to the scope of Densmore's job duties and denied summary judgment. Petitioners claim that there is a circuit split over whether the scope of a public employee's job duties is a question of law or a question of fact.

Adina Rosenbaum of Public Citizen is co-counsel for the respondent at the cert stage.

View docket updates.

Adina Rosenbaum of Public Citizen is co-counsel for the respondent.

The brief in opposition, requested by the Court, was filed 6/19/2009.

Cert. denied 10/5/2009.

Environmental Law: Clean Air Act

The question presented is: Whether the Sierra Club submitted sufficient evidence to show that one of its members, Barbara McKasson, would be injured by petitioners’ construction, without a valid Clean Air Act permit, of a large, coal-fired power plant three miles from a park that McKasson regularly visits; and, if so, whether McKasson’s injury is traceable to petitioners’ conduct and could be redressed by an injunction prohibiting construction of the plant until petitioners obtain a valid permit.

Greg Beck and Brian Wolfman were co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Greg Beck and Brian Wolfman of Public Citizen are co-counsel for the respondent.

The brief in opposition was filed 5/29/2009.

Cert. denied 6/29/2009.

ADA: Standing

The Best Western Encina Lodge & Suites does not comply with the accessibility requirements of the Americans with Disabilities Act (ADA). The question presented is whether Hollyn D'Lil has standing to assert an ADA claim for injunctive relief against the Best Western.

Michael Kirkpartrick and Adina Rosenbaum of Public Citizen were co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Michael Kirkpatrick and Adina Rosenbaum of Public Citizen are co-counsel for the respondent.

The brief in opposition, requested by the Court, was filed 5/12/2009.

Cert. denied 6/22/2009.

Class Actions

The question presented is whether a counterclaim defendant may remove a class action to federal court under the Class Action Fairness Act, which provides that a qualified class action may be removed by "any defendant." The Fourth Circuit had held that a counterclaim defendant may not remove the class action.

Brian Wolfman of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Brian Wolfman of Public Citizen is assisting the respondent.

The brief in opposition, requested by the Court, was filed 5/22/2009.

Cert. denied 6/22/2009.

CERCLA

Whether a state statute providing that an action for negligence may not be brought “more than 10 years after the act or omission complained of” establishes a “limitations period” that is subject to a provision in the Comprehensive Response, Compensation, and Liability Act, 42 U.S.C. § 9658, establishing a uniform discovery rule for the commencement of limitations periods applicable to state-law causes of action for personal injury or property damage resulting from the release of a hazardous substance, pollutant, or contaminant from a facility.

Allison Zieve was co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Allison Zieve of Public Citizen is co-counsel for the respondents.

The brief in opposition was filed 5/21/2009.

Cert. denied 6/22/2009.

Arbitration: Public Policy Defense

The Illinois Court of Appeals held that nursing-home arbitration agreements are contrary to Illinois's public policy and did not enforce a nursing home's arbitration agreement against the estate of a deceased resident. The question presented is whether the Federal Arbitration Act preempts Illinois's public policy, as expressed in a statute, that nursing-home arbitration agreements are prohibited. In her opposition to certiorari, Carter argued that because the next-of-kin's wrongful death claim would not be subject to the arbitration agreement, litigation would continue regardless of the Court's ruling.

Scott Nelson, Leah Nicholls, and Deepak Gupta of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Scott Nelson, Leah Nicholls, and Deepak Gupta of Public Citizen are assisting the respondent.

The brief in opposition, requested by the Court, was filed 4/30/2009.

Cert. denied 6/1/2009.

Employment Law: Title VII

The questions presented are:

1. To what extent may an employment discrimination plaintiff survive a motion for judgment as a matter of law based on nothing (or little) more than a comparison of his or her qualifications to that of the person selected for the position?
2. Whether an employment discrimination plaintiff proceeding under the mixed-motive theory may overcome summary judgment without establishing a prima facie case of discrimination, and by merely producing “some” evidence of discriminatory intent.

Adina Rosenbaum of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Adina Rosenbaum of Public Citizen is assisting the respondent.

The brief in opposition was filed 4/1/2009.

Cert. denied 5/18/2009.

Preemption: Medical Marijuana

The question presented is:

Does the federal Controlled Substances Act preempt the provision of California’s Medical Marijuana Program Act that requires counties to issue identification cards to help state law enforcement officers distinguish between conduct that is criminal and conduct that is not criminal under state law?

In opposing certiorari, we argued that the county lacks standing to challenge the Act.

Brian Wolfman of Public Citizen was co-counsel for the respondents at the cert stage, and the Supreme Court denied cert.

Brian Wolfman of Public Citizen is co-counsel for the respondents.

The brief in opposition, requested by the Court, was filed 4/14/2009.

Cert. denied 5/18/2009.

First Amendment: Prior Restraint

The City of Chicago grandfathers some, but not all, lawfully established but now nonconforming outdoor signs. The grandfather status is predicated upon prior compliance with Chicago’s former sign permitting requirement, which violated the First Amendment as an invalid prior restraint on speech. The questions presented are:

1. Whether a municipality violates the First Amendment when, by reason of an individual’s past exercise of his First Amendment right to ignore an unconstitutional sign permitting requirement, it prohibits the continued display of a lawfully established but now non-conforming outdoor sign.
2. Whether a municipality’s prohibition of future speech for some speakers otherwise violates the First Amendment, when such prohibition is imposed on the sign owner or operator for having in the past engaged in a certain kind of lawful speech, an issue upon which there is a conflict between federal courts of appeal.
3. Whether an outdoor sign ordinance and a separate grandfathering provision modifying that sign ordinance are to be treated as a combined single regulation of speech for purposes of determining content-neutrality and constitutionality under the First Amendment, an issue upon which there is a circuit split.

Bonnie Robin-Vergeer of Public Citizen assisted the petitioner at the cert stage, and the Supreme Court denied cert.

Bonnie Robin-Vergeer of Public Citizen is assisting the petitioner.

The brief in opposition, requested by the Court, was filed 3/11/2009 and the reply was filed 3/20/2009.

Cert. denied 4/20/2009.

First Amendment: Email Spam

Virginia Code § 18.2-152.3:1(A) prohibits an individual from falsifying his identity to circumvent e-mail security measures and send unsolicited bulk e-mail. Although the statute is constitutional as applied to commercial e-mail spam, the Supreme Court of Virginia found that it was unconstitutional as applied to hypothetical political and religious e-mail spam. Without comparing the constitutional applications to the unconstitutional applications, Virginia’s highest court declared that the statute was substantially overbroad and, thus, facially unconstitutional. The question presented is:

When confronted with a claim that a statute is substantially overbroad and, thus, facially unconstitutional, is a court required to compare the statute’s constitutional applications to the statute’s actual unconstitutional applications?

In the opposition to certiorari, assisted by Paul Levy of Public Citizen, Jaynes argued that Virginia failed to preserve the issue, and the Supreme Court denied cert.

Paul Levy of Public Citizen is assisting the respondent.

The brief in opposition was filed 2/23/2009.

Cert. denied 3/30/2009.

Pleading Requirements: Identity of Employer

David Ellis brought suit for violations of the Family and Medical Leave Act against Bradley County, for whom Ellis ostensibly worked and from whom Ellis received paychecks and benefits. The district court dismissed the suit for failure to state a claim based on the County's assertion that the State, not the County, was Ellis's employer, and the Sixth Circuit affirmed. The questions presented are:

1. Whether the court of appeals incorrectly affirmed the dismissal of Petitioner David Ellis's complaint exclusively under Federal Rule of Civil Procedure 12(b)(6) "for failure to state a claim for relief" where the complaint exceeded the pleading requirements of Federal Rule of Civil Procedure 8(a) such that this Court should exercise its supervisory authority and reverse the judgment of the court of appeals.
2. Alternatively, whether the court of appeals improperly decided an important and unsettled question of state law itself where Petitioner Ellis had requested that it certify the question to the Supreme Court of Tennessee and where the district court had acknowledged that the applicable authority was "conflicting" and "split" such that this Court should certify the question to the Supreme Court of Tennessee or direct the court of appeals to do so.

Brian Wolfman and Leah Nicholls of Public Citizen assisted the petitioner at the cert stage, and the Supreme Court denied cert.

Brian Wolfman and Leah Nicholls of Public Citizen are assisting the petitioner.

The petition was filed 12/17/2008.

Cert. denied 3/23/2009.

First Amendment: Employee Speech

Robert Reilly, an Atlantic City police officer for twenty-five years, was forced into retirement ostensibly because he created a hostile work environment. The neutral hearing officer only recommended a four-day suspension, and Reilly maintains that the much more severe penalty he received was retaliation for his earlier testimony in a police-corruption trial. The Third Circuit held that Reilly's testimony was protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), The questions presented are:

1. Whether a public employee's truthful trial testimony is citizen speech protected by the First Amendment.
2. Whether the Third Circuit erred in denying qualified immunity on the ground that it is clearly established that retaliation for truthful trial testimony violates the First Amendment.
3. Whether the Third Circuit erred by declining to resolve a fact dispute as to whether Petitioners would have treated the respondent the same way absent his protected conduct.

Michael Kirkpatrick and Leah Nicholls were co-counsel for the respondents at the cert stage, and the Supreme Court denied cert.

Michael Kirkpatrick and Leah Nicholls of Public Citizen are co-counsel for the respondent.

The brief in opposition, requested by the Court, was filed 1/22/2009.

Cert. denied 2/23/2009.

• Brief in Opposition (01/22/2009)

First Amendment: Libel

Monroe Mann brought a libel suit against a local newspaper and its editors after it criticized him in an editorial. A jury found the newspaper liable and awarded damages to Mann. The intermediate appellate court affirmed, but the New York Court of Appeals reversed, reasoning that under New York state constitutional law, the speech was protected. Mann argues that the Court of Appeals improperly applied federal constitutional First Amendment law, and the newspaper argues that there is no federal issue in dispute: The Court of Appeals based its decision only on state free speech jurisprudence, which is explicitly more protective of speech than federal First Amendment law.

Paul Levy of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Paul Levy of Public Citizen is assisting the respondents.

The brief in opposition was filed 1/5/2009.

Cert. denied 2/23/2009.

Qualified Immunity

After Cincinnati police officers used force to handcuff Nathaniel Jones and hold him prone on the ground, Jones stopped breathing. Nevertheless, the officers waited for additional emergency personnel to arrive before changing his position or providing any first aid or medical assistance to Jones, and Jones died. Jones's estate brough a section 1983 suit against the officers, and the officers moved to dismiss on the basis of qualified immunity. The Sixth Circuit denied the motion. The questions presented are:

1. Whether the “for all purposes” mandate of Federal Rule of Civil Procedure 10© requires that federal courts accept as true the facts stated in exhibits to a complaint for purposes of evaluating a motion to dismiss.
2. Whether the rule of Scott v. Harris, 550 U.S. 372 (2007) (requiring summary judgment reliance on incontrovertible facts established by a public record videotape), also applies to Rule 12(b)(6) motions to dismiss asserting public employees’ qualified immunity defense.
3. Whether the substantive due process “malice and intent to harm” standard, rather than the “deliberate indifference” standard, governs judicial review of police officers’ on-the-scene immediate reaction to a suspect’s need for medical care.

Brian Wolfman and Leah Nicholls of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Brian Wolfman and Leah Nicholls of Public Citizen are assisting the respondents.

The brief in opposition was filed 11/13/2008.

Cert. denied 1/12/2009.

EMTALA

The Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd(a), prohibits hospital emergency rooms from refusing treatment to a patient who “comes to” an emergency room, even if the patient lacks health insurance and cannot afford to pay for medical care. Carolina Morales was suffering severe pain and acute blood loss resulting from an ectopic pregnancy when an ambulance transporting Morales to the hospital requested emergency treatment for her and that the hospital turned the ambulance away because Morales lacked health insurance. The question presented is:

Whether EMTALA covers the hospital’s refusal to treat Morales even though the ambulance in which she was riding had not yet reached hospital property at the time she was turned away.

Greg Beck of Public Citizen was co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Greg Beck and Brian Wolfman of Public Citizen are co-counsel for the respondent.

The brief in opposition, requested by the Court, was filed 11/21/2008.

Cert. denied 1/12/2009.

• Brief in Opposition (11/21/2008)

Environmental Law: Clean Water Act

Whether the issuance of a permit for an open-pit mine that would discharge copper into Pinto Creek—a river already severely impaired from excessive copper pollution—was inconsistent with 40 C.F.R. § 122.4(i), an EPA regulation under the Clean Water Act.

Deepak Gupta and Brian Wolfman of Public Citizen were co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Deepak Gupta and Brian Wolfman of Public Citizen are co-counsel for the non-federal respondents.

The brief in opposition, requested by the Court, was filed 11/21/2008.

Cert. denied 1/12/2009.

• Brief in Opposition (11/21/2008)

FLSA: Fire Service Paramedics

Section 207(k) of the Fair Labor Standards Act (FLSA) sets forth when overtime pay is due for public employees engaged in “fire protection activities.” Section 203(y) defines such employees to include not only firefighters, but also paramedics who are trained in fire suppression, have the legal authority and responsibility to engage in fire suppression, are employed by a municipal fire department, and are engaged in responding to emergency situations where life, property, or the environment is at risk.

Did the Third Circuit err in concluding, contrary to other circuits, that “responsibility” to engage in fire suppression under section 203(y) requires that fire-trained paramedics, who in that role may be called upon to engage in fire suppression activities on a fireground, also be cross-utilized and dispatched regularly as firefighters solely to control and extinguish fires?

Brian Wolfman assisted the respondent at the cert stage, and the Supreme Court denied cert.

Brian Wolfman of Public Citizen is assisting the respondent.

The brief in opposition was filed 11/10/2008.

Cert. denied 12/15/2008.

Price-Anderson Act: Government Contractor Defense

During World War II, DuPont contracted with the federal government to run its Hanford plutonium-production facility, which produced the plutonuim used for the atomic bomb dropped on Nagasaki. A by-product of the production process is the emission of radioiodine, which can cause serious medical problems in humans, particularly in the thyroid. After the government released a report outlining the extent of the radioiodine emissions, individuals who had been living in the vicinity of the Hanford facility and who had suffered medical problems brought this suit. The questions presented are:

1. Whether the Ninth Circuit erred by holding that the federal common law government-contractor defense does not apply as a matter of law to claims under the Price-Anderson Act (PAA), which provides the exclusive cause of action for all injuries allegedly caused by nuclear emissions.
2. Whether Ninth Circuit erred by holding that petitioners may be held strictly liable under the Price-Anderson Act for federally authorized nuclear emissions.
3. Whether the Ninth Circuit erred, and deepened an acknowledged circuit split, by holding that a putative class member who files an individual lawsuit while a motion for class certification is pending is nonetheless entitled to class action tolling.

Bonnie Robin-Vergeer and Brian Wolfman of Public Citizen were co-counsel for the respondents at the cert stage, and the Supreme Court denied cert.

Bonnie Robin-Vergeer and Brian Wolfman of Public Citizen are co-counsel for the respondents.

The brief in opposition was filed 11/10/2008.

Cert. denied 12/15/2008.

• Brief in Opposition (11/10/2008)

First Amendment: Employee Speech

Five correctional officers were suspended from their jobs after discussing union-related business while on duty. The officers brought a section 1983 suit bringing a free speech retaliation claim against the sheriff. The jury found favor of the officers, and the First Circuit affirmed. The questions presented are:

1. Must deference be given to prison administrators when reviewing an employee disciplinary decision for purposes of the test set forth in Pickering v. Board of Education, 391 U.S. 563?
2. When applying the test set forth in Pickering v. Board of Education, must the potential disruption that could result from the employee's behavior be expressly considered?

Brian Wolfman of Public Citizen assisted the respondent at the cert stage, and the Surpeme Court denied cert.

Brian Wolfman of Public Citizen is assisting the respondents.

The brief in opposition was filed 11/3/2008.

Cert. denied 12/8/2008.

Statutory Interpretation: Chevron Deference

After the Court called for a response, Public Citizen served as co-counsel for respondent Kentucky Resources Council, Inc., which is an intervenor in the litigation. The Surface Mining Control and Reclamation Act prohibits surface mining in a number of areas, including near schools and graveyards and in National Parks, unless the mining rights were "valid existing rights" prior the enactment of the statute. The Office of Surface Mining issued a final agency rule which provided that mining companies had to have had mining permits, or made a good faith effort to obtain them, at the time of the enactment in order to have valid existing rights to mine. The National Mining Association challenged the rule, and the D.C. Circuit upheld it under Chevron analysis. The questions presented are:

1. Whether the D.C. Circuit correctly held that a statutory phrase is necessarily ambiguous and triggers Chevron deference because a single word within the phrase is itself ambiguous.
2. Whether the D.C. Circuit correctly declined to narrow the Office of Surface Mining Reclamation and Enforcement's statutory construction even though its interpretation will trigger takings claims.

The Supreme Court denied cert.

Adina Rosenbaum and Scott Nelson of Public Citizen are co-counsel for respondent Kentucky Resources Council, Inc.

The brief in opposition, requested by the Court, was filed 10/27/2008.

Cert. denied 12/1/2008.

• Brief in Opposition (10/27/2008)

Preemption: Medical Marijuana

Public Citizen is assisting the real party in interest, Felix Kha, who is represented by Americans for Safe Access. After Kha was pulled over for running a red light, local police officers seized Kha's medical marijuana. The trial court judge ordered the City to return Kha's marijuana, which he validly possessed under California law, but the City refused, arguing that the return of the marijuana was preempted by federal law. The Supreme Court requested a response. The brief in opposition argues that the City lacks standing and that federal law does not preempt the City from returning Kha's property.

The questions presented are:

1. Does the Due Process Clause of the 14th Amendment require the return of “medical marijuana” when the person from whom the drug was seized is not prosecuted under state drug laws, despite the fact that the Controlled Substances Act provides that there is no protected property right in marijuana?
2. If California’s medical marijuana laws are interpreted to require that police return marijuana seized from a “qualified patient” as defined by state law, does that requirement conflict with federal drug laws which generally make the distribution and possession of any amount of marijuana illegal?

Brian Wolfman and Leah Nicholls of Public Citizen were co-counsel for Kha at the cert stage, and the Supreme Court denied cert.

Brian Wolfman and Leah Nicholls are co-counsel for the real party in interest.

The brief in opposition, requested by the Court, was filed 10/23/2008.

Cert. denied 12/1/2008.

• Brief in Opposition (10/23/2008)

In this civil rights case, we challenged an airline's denial of service to a passenger. Public Citizen, together with private co-counsel, represented the passenger who was removed from an American Airlines flight and denied further transportation services. The passenger alleged that American Airlines discriminated against him because the airline mistakenly believed that he was of Arab, Middle Eastern, or South Asian descent. The passenger sought damages and injunctive relief under 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, and M.G.L. c. 272, § 98.

This case went to jury trial in early January 2007, and on January 12, 2007, the jury decided in our favor, awarding our client $400,000 in compensatory and punitive damages.

American Airlines appealed the decision. On January 10, 2008, the U.S. Court of Appeals for the First Circuit issued a decision vacating the jury verdict in favor of the plaintiff.

We filed a petition for certiorari in the Supreme Court, and it was denied.

• Petitioner's Reply (08/06/2008)
• Petition for Writ of Certiorari (05/29/2008)
• Petition for Rehearing en Banc (01/24/2008)
• Court of Appeals Decision (01/10/2008)
• Defendant-Appellant American Airlines's Reply Brief on Appeal (10/02/2007)
• Amicus Brief of Civil Rights Organizations (09/19/2007)
• Plaintiff-Appellee Cerqueira's Brief on Appeal (09/10/2007)
• Amicus Brief of Air Transport Association in Support of Defendant-Appellant (08/02/2007)
• Defendant-Appellant American Airlines's Brief on Appeal (07/23/2007)
• Joint Pretrial Memorandum (11/27/2006)
• Reply Memorandum (11/01/2006)
• Brief in Support of Partial Summary Judgment (09/22/2006)
• Amended Complaint (09/20/2005)

• 01/12/2007

First Amendment / Prisoners' Rights

1. Whether allegations that prison officials repeatedly opened incoming mail from an inmate's attorney outside of his presence, in violation of the prison's own regulations and without a legitimate penological purpose, state a claim for violation of the inmate's free speech rights.
2. Whether, for purposes of qualified immunity, Eleventh Circuit law clearly established that an inmate has a right not to have attorney mail opened outside his presence without a legitimate penological purpose.

Allison Zieve of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Allison Zieve is assisting the respondent.

The brief in opposition was filed 7/30/08.

Cert. denied 10/6/2008.

State Insurance Regulation

Whether the Fourth Circuit erred by refusing, contrary to longstanding principles of federalism and administrative law, to defer to the South Carolina Department of Insurance's interpretation of an insurance contract provision, where Congress has left the regulation of the insurance industry to the province of the States, and where the South Carolina legislature has entrusted that agency with statutory authority to approve and interpret insurance contracts, as well as to regulate, supervise, investigate and institute civil actions against insurers doing business within the state.

Brian Wolfman of Public Citizen assisted the respondent at the cert stage, and the Supreme Court denied cert.

Brian Wolfman is assisting the respondent.

The brief in opposition was filed 7/18/08.

Cert. denied 10/6/2008.

Collateral Order Doctrine: Corporate Responsibility / Human Rights

Whether the collateral order doctrine should be expanded to allow a private U.S. corporation sued in a federal district court for its tortious actions to appeal from an order that, in response to Statements of Interest by the Executive Branch notifying the court of potential U.S. foreign policy concerns, grants in part and denies in part the corporation's motion to dismiss the plaintiffs' claims under the political question doctrine.

Bonnie Robin-Vergeer of Public Citizen was co-counsel for the respondents at the cert stage, and the Supreme Court denied cert.

Bonnie Robin-Vergeer is co-counsel for respondents.

The brief in opposition to cert. was filed 10/9/07.

The Solicitor General filed an amicus brief urging denial on 5/16/08.

Cert. denied 6/16/08.

• Brief in Opposition (10/09/2007)

Fair Labor Standards Act: Compensation for "Donning and Doffing"

Whether the court of appeals was correct in holding that workplace activities required by an employer and performed for the employer's benefit constitute "work" under the Fair Labor Standards Act even if the activities do not require a significant level of exertion.

Brian Wolfman and Greg Beck of Public Citizen were co-counsel for the respondent at the cert stage, and the Supreme Court denied cert.

Greg Beck and Brian Wolfman are co-counsel for the respondents, from whom the Court requested a response.

The brief in opposition was filed 5/7/08.

Cert. denied 6/9/08.

• Brief in Opposition to Cert. (05/07/2008)

The Federal Arbitration Act (FAA) provides that arbitration agreements are enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Class-action bans -- contract provisions that prohibit classwide proceedings, whether in litigation or arbitration -- have been held to be unconscionable in some circumstances under the generally applicable contract law of some states.

Is such state law preempted by the FAA when the class-action ban to which it is applied is embedded in an arbitration agreement?

Deepak Gupta, Scott Nelson, and Bonnie Robin-Vergeer were co-counsel for the respondents at the cert stage, and the Supreme Court denied cert.

Deepak Gupta, Scott Nelson and Bonnie Robin-Vergeer are co-counsel for respondents, from whom the Court requested a response.

The brief in opposition was filed 4/25/08.

Cert. denied 5/27.

• Brief in Opposition to Cert. (04/25/2008)

Special Education: Tuition Reimbursement

Whether the Individuals with Disabilities Education Act permits an award of private-school tuition reimbursement as “appropriate relief” for a child with a disability who had been enrolled in public school but had not “previously received special education and related services under the authority of a public agency,” 20 U.S.C. § 1412(a)(10)©(ii), when the reason the child had not previously received such services was that the school district wrongly determined that the child was ineligible for special education services and thus failed to make a free appropriate public education available to the child.

Bonnie Robin-Vergeer of Public Citizen was co-counsel for the respondent at the cert stage. The Supreme Court granted certiorari and decided in the respondent's favor.

Bonnie Robin-Vergeer of Public Citizen was co-counsel for the respondent at the cert. stage.

Cert. granted 1/16/2009.

Oral argument 4/28/2009.

Decided 6-3 in favor of the respondent 6/22/2009.

• Brief in Opposition (12/03/2008)

Environmental Law: Clean Water Act

This case involved a permit issued by the Army Corps of Engineers that allowed a gold mine to discharge wastes into an Alaska lake, killing all the fish and most other aquatic life in the lake. The Corps claimed authority to permit the discharge because the material to be discharged met the definition of “fill material,” and the Corps has authority to issue permits for the discharge of fill. Because the Environmental Protection Agency has an effluent discharge standard that flatly prohibits the specific type of discharge involved in the case, the United States Court of Appeals for the Ninth Circuit held that the Corps lacked authority to permit the discharge. The mining company and the state of Alaska asked the U.S. Supreme Court to review that ruling.

Working as co-counsel with EarthJustice, we filed a brief on behalf of the plaintiffs in the case (the Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation), opposing the state's and mining company's petitions for certiorari. The brief explained that there is no conflict among the lower courts over the issues in the case, which had never before arisen because the Corps had never before purported to issue a permit for a discharge prohibited by an EPA effluent standard. On behalf of the Corps of Engineers, the Solicitor General of the United States also filed a brief opposing the petitions for certiorari, agreeing with us that there was no conflict among the lower courts and no important reasons for the Supreme Court to address the issue, but disagreeing with us about the correctness of the decision of the Court of Appeals.

The Court nonetheless granted certiorari, and we assisted EarthJustice’s attorneys in writing their brief on the merits defending the correctness of the Ninth Circuit’s holding, and in preparing for oral argument. After oral argument, the Court issued an unusual order requesting supplemental briefing from the parties on additional questions, and we assisted EarthJustice in responding to that order and filing two additional post-argument briefs on an expedited basis.

The question presented was:

Did the Army Corps of Engineers have authority under section 404 of the Clean Water Act to grant a "fill material" permit for an industrial process wastewater discharge that is prohibited by the Environmental Protection Agency's effluent limitations?

On June 22, 2009, the Supreme Court issued its opinion reversing the Ninth Circuit’s decision. See 129 S.Ct. 2458. The Court held that even though EPA regulations forbade the discharge and the Clean Water Act appears unequivocally to prohibit any discharges in violation of EPA standards, the Act’s provisions allowing the Corps of Engineers to issue permits for discharges of fill material created enough of an ambiguity in the statute to require the Court to defer to the agencies’ view that the EPA standard did not apply to discharges that meet the regulatory definition of “fill.”

Scott Nelson is co-counsel for respondents.

Cert. granted 6/27/08.

Oral argument 1/12/2009.

Decided 6-3 in favor of the petitioner 6/22/2009.

• Opinion (06/22/2009)
• Brief in Opposition to Cert. (05/14/2008)
• Brief on the Merits ()
• Supplemental Brief for Respondent ()
• Supplemental Reply Brief ()

Due Process / Judicial Elections

Public Citizen filed amicus brief in support of the cert. petition in this case and, after the Court granted the petition, in support of the petitioners. The petition in this case asks whether judicial campaign contributions can ever form the basis for recusal of a judge and, if so, under what circumstances recusal may be required. Public Citizen's briefs highlight the breadth of the problem, which extends well beyond cases involving eye-catching contribution amounts or multi-million dollar verdicts. We urged the Court to address the circumstances under which judicial campaign contributions can create an appearance of impropriety that threatens the public's and litigants' faith in the judicial system.

The Supreme Court decided in favor of the petitioner.

Allison Zieve, Brian Wolfman, and Leah Nicholls of Public Citizen are counsel for amicus Public Citizen.

Cert. granted 11/14/2008.

Oral argument 3/3/2009.

Decided 5-4 in favor of Petitioner 6/8/2009.

• Amicus Brief (Merits Stage) (01/02/2009)
• Amicus Brief (Cert. Stage) (08/01/2008)

Environmental Law: Clean Water Act

1. Whether the court of appeals properly remanded the Environmental Protection Agency's Phase II cooling water intake structure regulations for further rulemaking because of uncertainty as to whether EPA based its determination of "best technology available" ("BTA") on cost-benefit analysis rather than on economic availability, cost-effectiveness, or other considerations permissible under the plain language of Clean Water Act section 316(b). (07-588 Q3; 07-589 Q1; 07-597 Q1)
2. Whether the court of appeals correctly followed its Phase I decision and remanded a provision in EPA's Phase II cooling water intake structure regulations that would have allowed compliance with section 316(b) through "restoration measures." (07-589 Q2; 07-597 Q2)
3. Whether section 316(b) of the Clean Water Act applies to both new and existing facilities, as its plain language makes clear and as the courts and EPA have consistently recognized since the statutory provision was enacted in 1972. (07-588 Qs1&2)

Scott Nelson of Public Citizen assisted the respondents. The Supreme Court granted cert and decided in favor of the petitioners.

Scott Nelson is assisting the respondent.

The brief in opposition was filed 2/29/08.

Cert. granted 4/14.

Oral argument 12/2/2008.

Decided 6-3 in favor of Petitioners 4/1/2009.

Public Citizen was co-counsel for respondent Diana Levine, a professional musician, who went to the hospital for treatment of a headache and, after being injected with a drug manufactured by Wyeth, left with injuries that led to the amputation of her right arm. Ms. Levine prevailed in a jury trial, and the verdict was sustained byt e Vermont Supreme Court. Wyeth petitioned to the Supreme Court, which took the case to consider whether approval by the Food and Drug Administration of a drugs label preempts state-law product-liability claims for failure to provide adequate warnings or instructions for use. Upholding the jury's verdict, the Supreme Court held in a 6-3 decision that Ms. Levine's claims were not preempted.

Brian Wolfman and Allison Zieve assisted the respondent.

The SG's brief, requested by the Court, was filed 12/21/07 (urging the Court to hold).

Oral argument 11/3/2008.

Decided 6-3 in favor of Levine 3/4/2009.

• Respondent's Supplemental Brief in Response to Brief of the United States (01/02/2008)
• Respondent's Brief in Opposition to Certiorari (04/20/2007)

Administrative Law: Final Agency Action/Nationwide Injunction

Public Citizen Litigation Group is assisting in representing a coalition of environmental groups in the Supreme Court of the United States in this case, in which the federal government seeks to limit dramatically the ability of citizens to challenge unlawful government regulations. The environmental groups filed the case originally to challenge the Forest Service’s promulgation of a regulation that deprives them of their statutory right to comment on and administratively appeal decisions of the Forest Service that implement forest plans. The lower courts ruled that the regulation was unlawful. Without challenging that determination, the federal government sought review by the Supreme Court, arguing that the lower courts should not have decided the case because it was not “ripe” for review and/or because the environmental groups lacked standing to challenge the rule. The government also argued that the lower courts should not have set aside the rule nationwide even if they were correct in determining that it was unlawful.

We assisted in the preparation of a brief opposing the granting of certiorari, and, when the Court nonetheless determined to hear the case, we assisted in preparing the respondents’ brief on the merits and helped respondents’ counsel prepare for argument in the case.

The questions presented were:

1. Did the Court of Appeals err in allowing a facial challenge to one set of regulatory provisions and dismissing challenges to seven others on ripeness grounds, where there is no dispute that the one set of rules allowed to be reviewed had been applied countless times by the Forest Service, including an application of the rules to a site-specific action challenged in the district court?
2. Did the respondents have standing, where it is undisputed that the challenged regulations had been applied to them countless times, including an application of the rules to a site-specific action challenged in the district court for which standing was not challenged?
3. Did the facial rule challenge become moot, where the site-specific action was preliminarily enjoined and then the challenges to it were settled, but there is no dispute that the agency continued to apply the regulations to countless other site-specific actions that adversely affected respondents?
4. Did the Ninth Circuit err in finding that the district court did not abuse its discretion in completely setting aside the challenged regulations instead of limiting relief to the Eastern District of California, where respondents are organizations affected by the challenged regulations throughout the country?

On March 3, 2009, the Supreme Court decided the case. See 129 S. Ct. 1142. The Court reversed the Ninth Circuit on only one of the issues raised by the government, holding that the respondents lacked standing because the declarations they filed in the district court did not specifically enough allege injuries resulting from the application of the regulation in particular national forests. The ruling did not significantly alter the law of standing and did not adopt the government’s broad theories that facial challenges to regulations are generally unavailable under the Administrative Procedure Act and that the Act does not authorize nationwide relief against unlawful regulations.

Scott Nelson is co-counsel for the respondents.

The brief in opposition to cert. was filed on 12/5/2007.

Cert. granted 1/18/08.

Oral argument 10/8/2008.

Decided 5-4 in favor of Petitioner 3/3/2009.

• Respondents’ Brief on the Merits (06/01/2008)
• Brief in Opposition (12/05/2007)

Due Process: Virtual Representation

Can a party be precluded from bringing a claim, under a theory of "virtual representation," and thereby denied the due process right to a day in court, when the party had no legal relationship with any party to the previous litigation and did not receive notice of that litigation?

The Supreme Court decided in favor of the petitioner, represented by Adina Rosenbaum of Public Citizen.

Adina Rosenbaum, Brian Wolfman and Scott Nelson are co-counsel for petitioner.

Cert. granted 1/11/08.

The case was argued 4/16/08.

Decided for petitioner on 6/12/08 (9-0).

• Reply Brief (04/08/2008)
• Opening Brief (02/20/2008)
• Petitioner's Reply (12/18/2007)
• Petition for Certiorari (09/17/2007)

Equal Access to Justice Act: Paralegal Fees

In this case concerning the scope of fee shifting under the Equal Access to Justice Act (EAJA), the Federal Circuit held that fees for paralegal services may only be awarded to prevailing parties at cost, rather than at market rates as four circuits have held. The Supreme Court held in a 1989 decision that paralegal services are compensable at market rates under the Civil Rights Attorney's Fees Awards Act, and EAJA is a federal fee-shifting statute generally interpreted similarly. In light of the division among the courts of appeals, and the Federal Circuit's failure to follow Supreme Court precedent, Public Citizen argues that the Supreme Court should grant certiorari and reverse the Federal Circuit's erroneous ruling.

In cases subject to EAJA, if paralegal services are recoverable only at cost, all other things being equal, firms will be less likely to use paralegals for appropriate tasks under the direction of an attorney, and more likely to use attorneys when unnecessary, creating both much greater litigation costs and inefficiency in the legal market.

The question presented is:

Under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1) and 28 U.S.C. § 2412(d)(1)(A), may a prevailing party be awarded attorney fees for paralegal services at the market rate for such services, as four circuits have held, or does EAJA limit reimbursement for paralegal services to cost only, as the Federal Circuit panel majority below held?

The Supreme Court decided in favor of the petitioner, represented by Brian Wolfman of Public Citizen.

Brian Wolfman and Scott Nelson represent petitioner.

The Court granted cert. on 11/13/07, and the case was argued 3/19/08.

Decided for the petitioner on 6/2/08 (9-0).

• Petitioner's Reply Brief - Supreme Court (03/08/2008)
• Petitioner's Brief on the Merits (01/04/2008)
• Petitioner's Reply Brief (10/23/2007)
• Petition for Certiorari (06/25/2007)