Due Process / Judicial Elections

Public Citizen filed an amicus brief in support of the cert. petition in this case. 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 filed this brief to 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 grant the petition in this case, as well as a petition on the same issue in 08-41 Dupre v. Texlon, 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 and violates due process.

View docket updates.

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

• Amicus Brief (08/01/2008)

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.

View docket updates.

Allison Zieve is co-counsel for the respondent.

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

Fourth Amendment

Was James and Karen Leach's back door impliedly open to the public?

View docket updates.

Adina Rosenbaum is assisting the respondents, from whom the Court requested a response.

The brief in opposition was filed 7/21/08.

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.

View docket updates.

Brian Wolfman is assisting the respondent.

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

Racial Profiling

Petitioner John D. Cerqueira sued respondent American Airlines under 42 U.S.C. § 1981 after American removed Cerqueira from a flight and refused to rebook him after the police cleared him for travel. American claimed that both decisions were based on safety concerns; Cerqueira claimed that the decisions were motivated by discrimination. Cerqueira presented direct evidence of discriminatory animus by lower-level employees who influenced the decisions, and circumstantial evidence of discrimination by the formal decisionmakers. A jury found for Cerqueira but the First Circuit reversed, holding that the discretion granted airlines in 49 U.S.C. § 44902(b), to refuse to transport a passenger for safety reasons, precludes airline liability for decisions motivated by a passenger's race unless there is direct evidence of discriminatory animus by the formal decisionmaker. The questions presented are:

1. Whether, and in what circumstances, a defendant is liable for discrimination if its decisionmaker relied on information tainted by a subordinate's discriminatory animus;
2. Whether, and in what circumstances, a plaintiff may use indirect evidence to prove discrimination in activities other than employment; and
3. Whether the statutory discretion granted to airlines in 49 U.S.C. § 44902(b), to refuse to transport a passenger for safety reasons, immunizes airlines from liability for denial-of-service decisions motivated by race.

View docket updates.

Michael Kirkpatrick represents the petitioner.

• Petition for Certiorari (05/29/2008)

• Brief in Opposition ()

Environmental Law: Clean Water Act

This case involves a permit issued by the Army Corps of Engineers that would have allowed a gold mine to discharge toxic wastes into an Alaska lake, killing all the fish and most other aquatic life in the lake. 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 have 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 explains that there is no conflict among the lower courts over the issues in the case, which have never before arisen because the Corps has never before purported to issue a permit for a discharge prohibited by an EPA effluent standard. The brief also explains why the Ninth Circuit's decision was correct. On behalf of the Corps of Engineers, the Solicitor General of the United States has also filed a brief opposing the petitions for certiorari, agreeing with us that there is 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 question presented is:

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?

View docket updates.

Scott Nelson is co-counsel for respondents.

Cert. granted 6/27/08.

• Brief in Opposition to Cert. (05/14/2008)

Fourth Amendment: Pat-Down Search of Passenger

In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, an offense?

View docket updates.

Bonnie Robin-Vergeer is assisting the respondent, from whom the Court requested a response.

The brief in opposition was filed 5/22/08.

Cert. granted 6/23.

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)

View docket updates.

Scott Nelson is assisting the respondent.

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

Cert. granted 4/14.

Federal Preemption and Cigarette Labeling

1. Does the Federal Cigarette Labeling and Advertising Act ("FCLAA") expressly preempt state law claims that a cigarette company violated the Maine Unfair Trade Practices Act by falsely representing its product to the public when: (a) the predicate state-law duty of such claims is the duty not to deceive; and (b) the Federal Trade Commission ("FTC") has not only refused to approve or authorize the alleged misrepresentations, but has prohibited their use in a consent decree with a third party?
2. Are such claims impliedly preempted even though: (a) no court has ever held such claims impliedly preempted; (b) this Court has held that there is no implied preemption under FCLAA; (c) the FTC has never exercised its rule making power to address the conduct at issue; and (d) the FTC prohibited the challenged conduct in a consent decree with a third party?

Brian Wolfman and Allison Zieve are assisting the respondents.

Respondents' brief in opposition was filed on 12/28/07.

Cert. granted 1/18/08.

Preemption of Consumer Remedy for Prescription Drug-Method Injury

Public Citizen is 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 quickly and irreversibly to the amputation of her right arm. Wyeth has filed a petition for a writ of certiorari to the U.S. Supreme Court claiming that Ms. Levine's claim is preempted by federal law. In Public Citizen's view, the Supreme Court should deny review because Ms. Levine's claim is not preempted by the FDA's regulation of drug labeling or marketing, and there is no conflict among the appellate courts. The question presented in the petition for certiorari is:

Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.

View docket updates.

Brian Wolfman and Allison Zieve assisted the respondent.

The Court called for the views of the Solicitor General on 5/21/07.

The SG's brief was filed on 12/21/07 (urging the Court to hold the case).

Cert. granted 1/18/08.

• 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.

The Supreme Court decided to accept the case, and it will be argued in October 2008.

The questions presented are:

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?

View docket updates.

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.

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

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.

View docket updates.

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.

View docket updates.

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?

View docket updates.

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)

Whether this petition for certiorari should be held pending this Court's disposition of the petition for certiorari previously filed in T-Mobile USA, Inc. v. Laster, No. 07-976 (filed Jan. 23, 2008), given that both cases present the same important issue:

Whether, under the Federal Arbitration Act, a court may refuse to enforce the terms of an agreement to arbitrate based upon a state-law policy that individual arbitration is unconscionable in cases involving small claims by a consumer.

Deepak Gupta and Scott Nelson are assisting the respondent.

Cert. denied 5/27/08.

Clean Water Act

Should this Court review the Ninth Circuit's affirmance of a trial court's determination that a municipal sewage treatment plant requires a National Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act before it may discharge partially treated wastewater into a pond that is part of an extensive system of wetlands adjacent to, and hydrologically connected with, the navigable-in-fact Russian River?

View docket updates.

Scott Nelson assisted the respondent.

Respondent's brief in opposition was filed 1/14/08.

Cert. denied 2/19/08.

Individuals with Disabilities Education Act: Specific School

1. Whether the Individuals with Disabilities Education Act, 20 U.S.C. § 1414(d)(1)(A)(i)(VII) (2004) ("IDEA") requires that the school identify a location where an individual education plan can be implemented when a private school is being recommended.
2. 2. Whether a substantive defect with an individual education plan results in a denial of a free and appropriate public education under the IDEA.

View docket updates.

Julia Graff and Brian Wolfman assisted the respondent.

Respondent's brief in opposition was filed 12/21/07.

Cert. denied 1/22/08.

Employment Discrimination: Peer Review Evidentiary Privilege

Whether federal courts should recognize an evidentiary privilege against compelled disclosure of confidential, internal medical peer review communications under Rule 501 of the Federal Rules of Evidence in federal civil rights actions that allege discrimination within the peer review process.

Julia Graff assisted the respondent.

The brief in opposition was filed 11/20/07.

Cert. denied 1/07/08.

Qualified Immunity

Whether the Eleventh Circuit erred in holding that a prison warden was not entitled to qualified immunity for abuse of an inmate by correctional officers under his supervision, where the warden assigned correctional officers about whose abuse of prisoners he had been warned to areas with direct contact with high-risk inmates; delegated abuse-of-force complaints to his secretary; and discontinued a procedure used by his predecessor to reduce problems during uses of force.

View docket updates.

Adina Rosenbaum was co-counsel for respondent, from whom the Court requested a response.

The brief in opposition to cert. was filed on 11/29/07.

Cert. denied 1/07/08.

• Brief in Opposition (11/29/2007)

In this case filed in the U.S. District Court for the District of Columbia, we argue that a law President Bush signed on Feb. 8, 2006 is invalid because he signed a version of the bill that was passed by the U.S. Senate but not the U.S. House of Representatives. The law, the Deficit Reduction Act of 2005, decreases student loan and Medicare spending, extends welfare cuts, and cuts federal funding of state child-support enforcement programs.

In fall 2005, the House and Senate passed different versions of the Deficit Reduction Act. To reconcile the differences between the two versions, the legislation was sent to a House-Senate conference committee. The bill was modified and the final conference version was filed on Dec. 19. On the same day, the House passed the conference report. The Senate, however, rejected the conference report and on Dec. 21 passed an amended version of the bill. The Senate clerk sent it back to the House to vote on. But before transmitting it, the Senate clerk made a substantive change to the bill by altering the duration of Medicare payments for certain durable medical equipment such as hospital beds and wheelchairs from 13 months, as passed by the Senate, to 36 months.

The House passed the version with the clerk's error. Bush then signed the legislation that was passed by the Senate — which did not contain the clerk's error — and not the version passed by the House, which did.

The Bicameral Clause of the United States Constitution states that "every bill [must] have passed the House of Representatives and the Senate" before it becomes a law. Because the president signed a bill that was passed only by the Senate, the act is unconstitutional.

The court of appeals affirmed the district court decision on May 29, 2007. We then filed a petiton for certiorari in the US SUpreme Court, which was denied

Allison Zieve, Adina Rosenbaum, Brian Wolfman, and Scott Nelson represented petitioner.

The Court denied cert. on 12/10/07.

• Supreme Court - Cert. Reply (11/15/2007)
• Supreme Court - Cert. Petition (08/06/2007)
• Appeals Court - Reply Brief (12/11/2006)
• Appeals Court - Opening Brief for Appellants (10/06/2006)
• District Court - Memorandum Opinion (08/11/2006)
• District Court - Reply Memorandum in Support of Motion for Summary Judgment (06/13/2006)
• District Court - Memorandum in Support of Summary Judgment (05/09/2006)
• District Court - Complaint (03/21/2006)
• Deficit Reduction Act of 2005 Fact Sheet (03/21/2006)

• 08/11/2006
• 03/21/2006

Whether the Court of Appeals correctly declined to vacate the judgment of the district court, thereby awarding fees to respondent as a "prevailing party," when factors unrelated to the litigation had mooted the appeal.

Brian Wolfman assisted the respondent, whose brief in opposition was filed 8/29.

The Court denied cert. on 11/26/07.

Qualified Immunity

1. Whether the district court properly denied petitioner's motion for summary judgment based on a claim of qualified immunity.
2. Whether the two-step framework for analyzing claims of qualified immunity, set forth in Saucier v. Katz, should be abandoned.
3. Whether the rule that an evenly divided appellate court affirms the lower court's judgment should not apply to interlocutory appeals challenging the rejection of a claim of qualified immunity.

View docket updates.

Michael Kirkpatrick, Julia Graff and Brian Wolfman were co-counsel for respondent, from whom the Court requested a response on 9/10/07.

Respondent's brief in opposition to cert. was filed 10/23/07.

Cert. was denied 11/26/07.

• Respondent's Brief in Opposition (10/23/2007)

Legislative Immunity: Retaliatory Elimination of State Poet Laureate Position

The questions presented are as follows:

1.     Are the former governor of New Jersey and former chairperson of the New Jersey State Council on the Arts entitled to absolute legislative immunity from suit in their individual capacities for orchestrating and directing the elimination of petitioner Amiri Baraka's position as Poet Laureate of New Jersey, and for their actions leading up to that elimination, in response to Baraka's public reading of a controversial poem written by him? Moreover, in determining whether state officials have engaged in legislative acts, must a court evaluate whether their acts are substantively, as well as formally, legislative, and if so, what test should be used to assess whether an act is substantively legislative?

2.     Even assuming that the former governor and former agency chairperson are entitled to absolute legislative immunity from suit in their individual capacities, does that immunity block Baraka's claims seeking prospective injunctive relief against these executive officials and their successors in their official capacities? In other words, can a personal immunity, such as absolute legislative immunity, ever bar a claim for prospective injunctive relief against a state official in his or her official capacity?

View docket updates.

Bonnie Robin-Vergeer was co-counsel for petitioner.

The Court called for a response, but denied cert. on 11/13/07.

• Cert. Reply (10/23/2007)
• Cert. Petition without Appendix (07/19/2007)
• Cert. Petition with Appendix (07/19/2007)
• Full Case Description (07/19/2007)

Individuals With Disabilities Education Act: Tuition Remedy

Whether the Individuals with Disabilities Education Act permits a court to order, as "appropriate" relief, that public school authorities reimburse parents for private school tuition for a disabled child who had never been enrolled in public school and thus had not "previously received special education and related services under the authority of a public agency," 20 U.S.C. § 1412(a)(10)(c)(ii), where the public school district conceded that it had not made a free appropriate public education available to the child, and the child's private school placement was appropriate under the Act.

View docket updates.

Bonnie Robin-Vergeer served as co-counsel for Respondents.

Held for 06-637, NYC Board of Educ. V. Tom F., decided 4-4 for respondent on 10/10/07 (Kennedy recused).

Cert. denied 10/15/07 (Kennedy recused).

• Brief in Opposition to Certiorari (12/27/2006)

6th Amendment Right to Counsel: Enhancement of Subsequent Criminal Charge

If an uncounseled misdemeanant is fined and sentenced to suspended jail time in violation of Alabama v. Shelton, 535 U.S. 654 (2002), is the underlying conviction valid for purposes of enhancing a subsequent criminal charge?

View docket updates.

Brian Wolfman assisted respondent, from whom the Court requested a response.

Cert. denied 10/01/07.

Federal Employers' Liability Act: Fear of Cancer Damages

Whether a defendant in an action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., in which the plaintiff seeks damages for fear of cancer is entitled to an instruction requiring the jury to find that the plaintiff's alleged fear is genuine and serious.

View docket updates.

Class Action Fairness Act: Removal to Federal Court

1. Whether, for purposes of determining the $5 million amount in controversy requirement for cases removed to federal court under the Class Action Fairness Act of 2005 (CAFA), the removing party must establish that amount by a "preponderance of the evidence" standard, or whether instead the defendant must meet a higher standard and establish the minimum amount in controversy "to a legal certainty"?
2. Whether a plaintiff should be able to defeat federal jurisdiction by relying on a non-binding damages cap in its complaint, or on post-removal statements of counsel?

View docket updates.

Brian Wolfman assisted respondent.

Cert. denied 10/01/07.

1. Whether a university is liable for damages to a student-athlete in an action for sexual harassment under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, for mere emotional distress that did not have any concrete, negative effects and did not have the systemic effect of denying her equal access to an educational program or activity?
2. Whether in an action for sexual harassment under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, a student-athlete can prove that the university was "deliberately indifferent" to discrimination against her when the only notice she gave to the university pertained to her coach's comments to and interactions with other players who had not complained.

Freedom of Information Act / Attorney's Fees for Substantially Prevailing Party

Public Citizen has filed an amicus brief on behalf of itself, the Electronic Frontier Foundation, Judicial Watch, and the National Security Archive, arguing that the Supreme Court should hear this case and allow people to get attorney's fees if they sue and successfully receive documents they have requested from the government under FOIA. After the Department of Justice initially waived filing a brief in opposition, on March 26, the Supreme Court called for a response from the Department of Justice regarding this petition.

The question presented is:

Does the holding in Buckhannon Board & Home Care, Inc. v. West Virginia Department of Health & Human Resources, 534 U.S. 598 (2001), that the term "prevailing party" requires a judicially sanctioned change in the relationship of the parties in order to be eligible for an award of attorney's fees and costs in two civil rights statutes extend to the Freedom of Information Act, 5 U.S.C. Sec. 552(a)(4)(E), which provides that a plaintiff who "substantially prevails" is eligible for fees?

View docket updates.

Adina Rosenbaum and Brian Wolfman represented amici curiae, supporting petitioner.

The Court called for the Government's response.

Cert. Denied 6/25/07.

• Amicus Brief Supporting Grant of Certiorari (03/16/2007)

Antitrust Law: Generic Drug Exclusion Agreements / Tamoxifen Case

Under what circumstances is an agreement by a brand pharmaceutical manufacturer (and patent holder) to share a portion of its future profits with a generic market entrant (and alleged patent infringer), in exchange for the generic's agreement not to market its product, a violation of the antitrust laws?

View docket updates.

Brian Wolfman assisted petitioners.

The Court called for the views of the Solicitor General on March 19.

Cert. Denied 6/25.

4th Amendment: Police Ruse

Whether the 4th Amendment permits the police to use a ruse with regard to their purpose to obtain a voluntary consent to search.

View docket updates.

Allison Zieve was co-counsel for respondent, from whom the Court requested a response.

Cert. Denied June 18, 2007.

• Respondent's Brief in Opposition to Certiorari (05/21/2007)

Preemption: Savings Clause

1. Whether a federal regulatory scheme such as the Mine Safety & Health Act (MSHA) that on its face preempts only conflicting state laws, may so occupy a limited field within that scheme that it reflects an intent to preempt any state law purporting to regulate in that discrete area.
2. Whether a federal regulatory scheme such as the MSHA, that permits states to impose health and safety standards more stringent than the federal requirements, contemplates the creation of the more stringent standards through tort litigation rather than by positive legislative enactments.

View docket updates.

Brian Wolfman assisted respondents.

Cert. denied June 11, 2007.

Due Process: Punitive Damages

In light of State Farm and Philip Morris v. Williams, did the trial court deprive defendant CSXT of due process at trial by permitting the jury to punish CSXT for harm to non-parties and did the Supreme Court of South Carolina perpetuate that denial of due process in its ruling below?

View docket updates.

Brian Wolfman assisted respondent.

Cert. Denied June 4, 2007.

4th Amendment — Qualified Immunity for School Officer who Handcuffed 9-Year Old Girl

1. Whether The Decision in the Court Below Misinterprets TLO and Ignores the Clear Precedent Established by this Court in Whren and Other Decisions.
2. Whether The Court of Appeals Decision Completely Ignores this Court's Decisions in Whren, Graham v. Connor, Davenpeck v. Alford and Others.

View docket updates.

Greg Beck and Brian Wolfman were co-counsel for the respondent, from whom the Court called for a response.

Cert. Denied May 21, 2007.

• Respondent's Brief in Opposition to Certiorari (04/17/2007)

1. Whether § 207(a) of the Fair Labor Standards Act (FLSA) applies to employee firefighters.
2. Whether the FLSA requires the employee claiming the overtime to actually work the excess hours.

Brian Wolfman assisted respondents. Cert. Denied 5/14.

State Immunity from Suit After Removal to Federal Court

Is the United States v. Lapides waiver-by-removal rule limited to state-law claims for which the State has waived its sovereign immunity in state court, as the 4th, 7th, and D.C. Circuits have held, or does the Lapides waiver-by-removal rule extend to all claims generally, as the 5th, 9th and 10th Circuits have held? (The claims in this case were brought by disabled drivers required by Texas to pay a surcharge for reserved parking tags under Title II of the Americans With Disabilities Act).

View docket updates.

Brian Wolfman assisted respondents.

Cert. Denied April 30.

Federal Arbitration Act: Class Waiver

1. Whether the NJ Supreme Court erroneously ruled, in conflict with the Federal Arbitration and this Court's precedent, that a class arbitration waiver in an otherwise enforceable arbitration agreement is unenforceable and must be stricken;
2. Whether the court's ruling violates Petitioners' right to due process because it applies a interpretation of NJ law retroactively to the parties; and
3. Whether the court's ruling unduly burdens interstate commerce by seeking to impose special requirements on arbitration agreements that are contrary to the Federal Arbitration Act.

View docket updates.

Brian Wolfman assisted respondent.

Cert. denied 4/16/07.

Maritime Torts: In Rem

Whether the three-year statute of limitations for maritime tort actions bars a suit filed more than three years after the claim arose, when the plaintiff filed a prior, timely suit asserting the same claim but failed to pursue the claim in that prior suit.

View docket updates.

Bonnie Robin-Vergeer assisted respondents.

Cert. denied 4/16/07.

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?

View docket updates.

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?

View docket updates.

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)

Section 1981: Retaliation

Is a race retaliation claim cognizable under § 1981?

Brian Wolfman assisted the respondent, to whom we also provided a moot court.

Cert. was granted 9/25/07.

The case was argued 2/20/08.

Decided 7-2 in respondent's favor.

This Section 5 litigation involves two decisions of the Supreme Court of Alabama, Stokes v. Noonan, 534 So. 2d 237 (Ala. 1988), and Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2005). Those decisions concern the manner of filling vacancies on the Mobile County Commission and are based on valid, race-neutral, generally applicable principles of law. The three-judge district court held that both decisions required preclearance to be enforceable. The State submitted the decisions for preclearance, and the Attorney General of the United States interposed an objection. The district court then entered a remedy order vacating a gubernatorial appointment that had relied on these State court decisions to fill a vacancy that had arisen. This appeal presents the following questions:

1. Whether the decision of a covered jurisdiction's highest court that a precleared State law is unconstitutional and, thereby, invalid as a matter of State law is a change that affects voting that must be precleared before it can be enforced.
2. Whether the preclearance of a trial court's ruling that affects voting while that ruling is on appeal and subject to possible reversal establishes a baseline such that the reversal of that decision is a change that must be precleared before it may be enforced.

We provided a moot court for the respondents.

Decided in petitioner's favor on 5/27/2008.

1. Whether the mixed-motive defense to liability is available under 42 U.S.C. § 1981.
2. Whether retaliation claims are cognizable under 42 U.S.C. § 1981.

Brian Wolfman is assisting the respondent, from whom the Court requested a response.

Petition dismissed pursuant to Rule 46.

1. Whether this Court should dismiss respondents' soon to be amended claims in the first instance based on case specific deference to the political branches where the United States does not seek review on this question and no lower court has decided the issue.
2. Whether, in the absence of any conflict in the circuit courts on this issue, aiding and abetting liability is unavailable in the abstract under the Alien Tort Statute regardless of the claims respondents will make in their soon to be amended complaints on remand.
3. Whether claims for direct liability for genocide are actionable under the Alien Tort Statute in the abstract, given that respondents may not pursue this claim on remand, and that neither the district court nor the court of appeals decided this issue.

Bonnie Robin-Vergeer assisted the respondents.

The judgment below was affirmed on 5/12/08 for lack of quorum.

First Amendment / Elections

In California Democratic Party v. Jones, this Court recognized that, consistent with the First Amendment rights of political parties, a state may adopt a primary election system in which all voters may participate and the top vote recipients advance the general election, so long as "primary voters are not choosing a party's nominee." California Democratic Party v. Jones, 530 U.S. 567, 585-86 (2000). Washington voters adopted a primary election system in which all qualified voters are allowed to vote for any candidate, and the two candidates receiving the most votes for a given office qualify for the general election ballot, without regard to party affiliation.

Does Washington's primary election system in which all voters are allowed to vote for any candidate, and in which the top two candidates advance to the general election regardless of party affiliation, violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?

We provided a moot court for the petitioners.

Decided 7-2 in petitioners' favor, 3/18/08.

• Supreme Court opinion (03/18/2008)

Preemption: FDA Approval / State Consumer Remedy

Traditional state tort law allows a manufacturer, alleged to have sold a defective product, to use compliance with federal standards or regulations as evidence that the product was not defective or that the manufacturer acted non-negligently. In most states, such evidence is not controlling. However, in 1995, Michigan enacted a statute providing that, with respect to drug manufacturers, federal approval and compliance with Food and Drug Administration approval requirements generally precludes liability for injuries caused by their products. The Michigan legislature chose not to extend this defense to situations in which it lacked confidence that the federal approval could be relied on as dispositive evidence that the manufacturer satisfied state-law duties of care. Accordingly, the statute also provides an exception to the defense such that, if a drug manufacturer did not comply with FDA disclosure requirements and the noncompliance affected the FDA's approval decision, the statutory defense does not apply.

The question before the Supreme Court is whether the exception to the statutory defense is impliedly preempted.

View docket updates.

Allison Zieve, Brian Wolfman, and Scott Nelson are co-counsel for respondents.

Cert. granted 9/25/07.

The case was argued 2/25/08.

On 3/3/08, the Court affirmed the decision of the 2d Circuit by an equally divided court.

• Supreme Court opinion (03/03/2008)
• Waner-Lambert v Kent Brief for Respondents (01/11/2008)
• Warner-Lambert v Desiano Decision (10/05/2006)

Age Discrimination in Employment Act

Whether the Second Circuit erred in concluding that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

We provided a moot court to respondent.

Decided 7-2 in respondent's favor on 2/27/08.

• Supreme Court opinion (02/27/2008)

ADEA: Proof of Discrimination

This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

We provided a moot court for the respondent.

Decided in petitioner's favor, 2/26/08.

• Supreme Court opinion (02/26/2008)

Preemption: Food, Drug & Cosmetic Act

After suffering serious injury when a balloon catheter burst while he was undergoing an angioplasty procedure, Charles Riegel and his wife sued the catheter's manufacturer, Medtronic, Inc. Medtronic moved to dismiss the lawsuit, arguing that the Food, Drug, and Cosmetic Act expressly preempts state-law damages actions brought by patients who have been injured by medical devices that received premarket approval from the Food and Drug Administration. The court agreed and dismissed the case.

Public Citizen represented the Riegels on appeal and before the U.S. Supreme Court. In February 2008, the Supreme Court ruled for the manufacturer, holding that the express preemption provision of the Act preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the FDA.

View docket updates.

Allison Zieve and Brian Wolfman are co-counsel for Petitioner.

Cert. Granted June 25, 2007.

The case was argued on 12/4/07.

Decided in respondent's favor 2/20/08.

• Supreme Court opinion (02/20/2008)
• Supreme Court - Petitioners' Reply Brief on the Merits (11/15/2007)
• Supreme Court - Petitioners' Brief on the Merits (08/27/2007)
• Supreme Court - Supplemental Brief for Petitioners (06/04/2007)
• Supreme Court - Petitioners' Reply Brief (10/01/2006)
• Supreme Court - Petition for Certiorari (08/03/2006)
• Appeals Court - Appellants' Reply Brief (05/26/2005)
• Appeals Court - Appellants' Opening Brief (03/05/2005)

Section 502(a)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. 1132(a)(2), provides that a "civil action may be brought * * * by a participant * * * for appropriate relief under section 1109 of this title." 29 U.S.C. 1109 states that "a fiduciary with respect to a plan who breaches any * * * duties imposed upon fiduciaries * * * shall be personally liable to make good to such plan any losses to the plan resulting from each such breach."

The First Question Presented is:

1. Does §502(a)(2) of ERISA permit a participant to bring an action to recover losses attributable to his account in a "defined contribution plan" that were caused by fiduciary breach?

Section 502(a)(3) of ERISA, 29 U.S.C. 1132(a)(3), provides that a "civil action may be brought * * * by a participant * * * to obtain other appropriate equitable relief * * * to redress * * * violations" of the statute.

The Second Question Presented is:

2. Does §502(a)(3) permit a participant to bring an action for monetary "make-whole" relief to compensate for losses directly caused by fiduciary breach (known in premerger courts of equity as "surcharge")?

We provided a moot court for the petitioner.

Decided in petitioner's favor on 2/20/08.

• Supreme Court opinion (02/20/2008)

FTCA / Prisoners' Rights

Under 28 U.S.C. 2680(c), the Federal Tort Claims Act's waiver of sovereign immunity does not extend to "[a]ny claim arising in respect of * * * the detention ofany goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." The question presented, over which ten circuits are divided six-to-four is:

Whether the term "other law enforcement officer" is limited to officers acting in a tax, excise, or customs capacity.

We provided a moot court for the petitioner.

Decided 1/22/08 for respondent.

• Supreme Court opinion (01/22/2008)

18 U.S.C. §924(c)(1)(A) criminalizes the "use" of a firearm during and in relation to a drug trafficking offense and imposes a mandatory consecutive sentence of at least five years' imprisonment. In Bailey v. United States, 516 U.S. 137 (1995), this Court held that "use" of a firearm under § 924(c) means "active employment." Id. at 144. The question presented in this case is:

Whether mere receipt of an unloaded firearm as payment for drugs constitutes "use" of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c)(l)(A) and this Court's decision in Bailey.

We provided a moot court for petitioner.

Decided 9-0 in petitioner's favor on 12/10/07.

• Supreme Court opinion (12/10/2007)

In this case, a Wisconsin anti-abortion group is challenging the constitutionality of the electioneering communications provisions of the Bipartisan Campaign Reform Act as applied to its television and radio ads attacking Senator Feingold shortly before the 2004 election. Public Citizen Litigation Group assisted in the representation of Senator John McCain and Representatives Christopher Shays, Martin Meehan, and Tammy Baldwin, who intervened to defend the law. A three-judge district court held the law unconstitutional as applied in December 2006, and the case was appealed to the U.S. Supreme Court. The Supreme Court decided on June 25 that the Wisconsin Right to Life ads constituted "genuine issue advocacy" and thus could be paid for from corporate treasury funds. The Court let stand the remained of BCRA, but held that many types of electioneering communications may be genuine issue ads, and thus not subject to the prohibition on paying for the ads with corporate or union money ("soft money"). The Court did not address the disclosure requirements for all electioneering communications.

Scott Nelson was co-counsel for Senator Appellants.

Decided for Appellee 5-4 on June 25, 2007.

• Supreme Court Opinion (06/25/2007)
• Brief for Appellants (02/23/2007)
• Jurisdictional Statement filed by Appellants (01/12/2007)
• District Court Decision (12/21/2006)

Endangered Species Act & Clean Water Act

1. Can a court append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species?
2. Does § 7(a)(2) of the Endangered Species Act constitute an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency's enabling statutes preclude such action?
3. Did the Ninth Circuit incorrectly apply the holding of Department of Transp. V. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA's approval of Arizona's NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from future private land use activities?
4. Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency's discretion by other Acts of Congress.

In addition to the questions presented by the petitions, the parties are requested to brief and argue on the following question:

• "Whether the court of appeals correctly held that the Environmental Protection Agency's decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U. S. C. § 1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of § 7(a)(2) of the Endangered Species Act of 1973, 16 U. S. C. § 1536 (a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of § 7(a)(2)."

We provided a moot court for respondents.

Decided 5-4 for petitioners 6/25/07.

• Supreme Court opinion (06/25/2007)

H.S. Principal's Liability for Violating the First Amendment

1. Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. Sec. 1983 when, pursuant to the school district's policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.

Supreme Court Opinion

We provided a moot court for respondent.

Decided 5-4 for petitioners 6/25/07.

1st Amendment: Electioneering/Lobbying

1. Whether the district court erred in dismissing this case as moot, not ripe, and not within the exception to the mootness doctrine for matters that are capable of repetition yet evading review.
2. Whether the prohibition [on grassroots lobbying ads during the electioneering communication period of time] is narrowly tailored to a compelling governmental interest as applied to the League's proposed ad or violates its constitutional rights to free expression, association, and petition.
3. Whether the prohibition is narrowly tailored to a compelling governmental interest as applied to genuine grassroots lobbying…or violates the constitutional rights to free expression, association, and petition.

View docket updates.

Scott Nelson assisted congressional appellees.

Granted, vacated and remanded in light of 06-969 FEC/McCain v. Wisconsin Right to Life, where Scott Nelson was co-counsel for congressional appellants (lost 6/25).

Appeal of a District Court's Remand to State Court After Incorrect Removal

Public Citizen filed an amicus brief on behalf of Law Professors Arthur R. Miller, Erwin Chemerinsky, et al. supporting respondents. The brief addressed the question that the Supreme Court asked the parties to brief: whether the Court of Appeals had jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. Sec. 1447(d) (removing appellate jurisdiction over district court decisions to remand cases back to state court during an early stage in litigation). The brief explained why Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), which found limited grounds for appeal of a district court's remand order, should be overruled or limited to its facts.

The Supreme Court ruled for respondents finding the appellate court should not have reviewed the district court's decision to remand due to lack of subject matter jurisdiction.

Greg Beck and Brian Wolfman were co-counsel for Amici Curiae Law Professors, supporting respondents on appellate jurisdiction question.

Decided June 18 for respondents on this question.

• Supreme Court Opinion (06/18/2007)
• Amicus Brief Supporting Respondents (03/23/2007)

Antitrust Immunity

Plaintiffs accuse defendants, 16 of the country's largest underwriters and institutional investors, of a vast antitrust conspiracy to manipulate the aftermarket prices of some 900 technology stocks sold in initial public offerings.

The question presented is:

Whether, in a private damages action under the antitrust laws challenging conduct that occurs in a highly regulated securities offering, the standard for implying antitrust immunity is the potential for conflict with the securities laws or, as the Second Circuit held, a specific expression of congressional intent to immunize such conduct and a showing that the SEC has power to compel the specific practices at issue.

Supreme Court Opinion

We provided a moot court for respondents.

Decided for petitioners June 18, 2007.

Federal Rules: Time to Appeal

Whether an appellate court may sua sponte dismiss an appeal which has been filed within the time limitations authorized by a district court after granting a motion to reopen the appeal time under Rule 4(a)(6) of the Federal Rules of Appellate Procedure.

Supreme Court Opinion

We provided a moot court for petitioner.

Decided 5-4 on June 14 for respondent.

In this case, the U.S. Court of Appeals for the Eighth Circuit, in an astonishing and unprecedented decision, held that cigarette manufacturer Philip Morris is entitled to "remove" cases filed against it in state courts to federal courts, under a statute designed to protect federal officers and employees. We filed an amicus curiae brief in support of the plaintiffs' petition for rehearing in the Eighth Circuit, which was denied with two judges dissenting. The plaintiffs filed a petition for certiorari in the Supreme Court, and we filed another amicus brief supporting their petition. On December 15, the Solicitor General filed an invitation brief agreeing with the Petitioners on the merits, but opposing a grant of certiorari. The Supreme Court granted certiorari, agreeing to hear the case, on January 12, 2007.

Public Citizen filed an amicus brief supporting the Petitioners, in coalition with the AARP, National Association of Consumer Advocates, U.S. PIRG, Consumer Federation of California, Congress of California Seniors, and Public Health Advocacy Institute. The brief emphasized the importance of protecting the rights of consumers harmed not only by tobacco companies but also by companies in other industries highly regulated by the federal government, such as those providing prescription drugs and medical devices, long term care, and nursing home services, for example.

On June 11, 2007, the Supreme Court ruled unanimously that Philip Morris could not receive the protection of the federal officer removal statute. The Court held that compliance with federal agency regulation simply is not equivalent to "acting under" a federal officer. Watson lays to rest any claim that removal is in order merely because the defendant claims that it acted under the compulsion or influence of federal regulation. After this decision, a plaintiff's choice of state court as the forum for a tort or injury case against a highly regulated corporation will be more secure.

Question presented:

Whether a private actor doing no more than complying with federal regulation is a "person acting under a federal officer" for the purpose of 28 U.S.C. 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law.

Public Citizen submitted an amicus brief, written by Scott Nelson, in support of a grant, and an amicus brief on the merits supporting petitioner.

We also provided a moot court for petitioner.

Decided June 11, 2007 for petitioner.

• Supreme Court Ends Philip Morris Farce by Scott Nelson (06/13/2007)
• Supreme Court Opinion (06/11/2007)
• Amicus Brief on the Merits (02/23/2007)
• Amicus Brief at the Certiorari Stage (05/01/2006)
• Amicus Curiae in Support of Appellants' Petition for Rehearing En Banc (09/28/2005)

Habeas Corpus Standard of Review

If constitutional error in a state trial is not recognized by the judiciary until the case ends up in federal court under 28 U.S.C. Sec. 2254, is the prejudicial impact of the error assessed under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)? Does it matter which harmless error standard is employed? And, if the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?

Supreme Court Opinion

We provided a moot court for petitioner.

Decided for respondent June 11.

DOL Interpretations: Labor Standards for Home Care Workers

1. Whether the Second Circuit erred in refusing to give deference under Chevron, U.S.A., Inc. v. Natural Res. Def Council, Inc., 467 U.S. 837 (1984), to a thirty-year old Department of Labor regulation — a regulation that has twice been upheld by the Tenth Circuit — on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed "Interpretations."
2. Whether, in holding that a longstanding Department of Labor regulation was not persuasive and thus undeserving of any deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Second Circuit erred by failing to address the governing provisions of the Fair Labor Standards Act and by declining to give any weight to the Department's interpretation of its own regulations.

Supreme Court Opinion

We provided a moot court for respondent.

Decided June 11, 2007 for petitioner.

In this case, the United States Court of Appeals for the Ninth Circuit held that consumers who were quoted higher insurance premiums after insurance companies reviewed their credit scores could pursue lawsuits against the companies for "willful" violation of the Fair Credit Reporting Act's requirement that consumers receive notice of adverse actions taken on the basis of credit reports. The court of appeals held that the companies could be found to have acted willfully if they recklessly disregarded the requirements of the law, and sent the case back to a lower court to determine whether the violations were in fact willful. Two of the companies, Safeco and Geico, sought Supreme Court review of the Ninth Circuit's definition of "willfulness" as well as an assortment of other issues. Public Citizen assisted attorneys for the plaintiff in attempting to persuade the Supreme Court to uphold the Ninth Circuit's decision.

The Supreme Court's June 4, 2007 decision upheld the Ninth Circuit's legal ruling that companies who show "reckless disregard" for FCRA's requirements may be held accountable for "willful" violations. The Court also rejected Safeco's principal defense of its failure to give notice, which had been that the consumers hadn't been treated adversely because they were first-time customers and therefore hadn't had their premiums "increased." However, the Court still held that Safeco's failure to give notice was not willful, because it was not clear enough that the company's legal theory was wrong. And the Court found that Geico had not even violated the law, because it had not charged the consumer more than it would have charged him if it had not checked his credit at all (even though it did deny him a preferred rate because his credit was not good enough to qualify).

The Court's decision is a mixed result for consumers. The court's acceptance of "reckless disregard" of the law (rather than a knowing violation) as the standard for showing willfulness will make it possible for more plaintiffs to obtain statutory penalties against companies that violate the law. And the Court's rejection of Safeco's argument that first-time customers are never protected by FCRA's adverse-action notice requirement avoids creation of a major loophole in the law. But the Court's holding that Geico did not violate the law creates a loophole at least as gaping as the one Safeco's argument would have created, and will prevent thousands of consumers from receiving notice even when their credit scores are used to deny them favorable rates in the marketplace.

Questions presented:

1. Whether the 9th Circuit erred in holding that a defendant may "willfully violate Sec. 616 of the Fair Credit Reporting Act, 15 U.S.C. 1681n, by acting merely in "reckless disregard" of statutory obligations, rather than by acting with knowledge that its conduct violates FCRA.
2. Whether the 9th Circuit erred in creating new and open-ended disclosure requirements for adverse action notices beyond the discrete list expressly set forth in Sec. 615 of FCRA.

Other merits and amicus briefs in this case

Scott Nelson was co-counsel for Respondents.

Decided June 4 for petitioners on the notice question, but holding for respondents on the legal question.

• Thoughts on Safeco v. Burr Decision, by Scott Nelson (06/06/2007)
• Supreme Court Decides FCRA Cases, by Deepak Gupta (06/04/2007)
• Supreme Court Opinion (06/04/2007)
• Respondents' Joint Brief on the Merits (12/01/2006)
• Supreme Court Grants FCRA Petitions, by Scott Nelson (09/26/2006)
• Respondents' Brief in Opposition to Certiorari (08/11/2006)

Habeas Corpus: Standard of Review

Did the Ninth Circuit err by not deferring to the trial judge's observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law?

View docket updates.

Supreme Court's Opinion

We provided a moot court for respondent.

Decided June 4 for petitioner.

Preliminary Injunction Relief: Attorney's Fees

Public Citizen filed an amicus brief supporting respondents and arguing that plaintiffs who win a preliminary injunction should be entitled to attorney's fees. The petitioner in the case urged the Court to adopt a rule that a plaintiff who wins a preliminary injunction without a final judgment on the merits or analogous relief is never entitled to attorney's fees. On June 4, the Supreme Court decided that a plaintiff whose preliminary injunction is reversed, dissolved, or otherwise undone by the final decision in the same case is not a prevailing party entitled to attorney's fees. Because this ruling is explicitly limited to this narrow category of cases, it should not affect plaintiffs' eligibility for attorney's fees in the majority of preliminary injunction cases.

Questions Presented are:

1. Whether the 11th Circuit decision in Wyner v. Struhs, 179 F. App'x 566 (11th Cir. 2006) is correct in holding that a preliminary injunction is relief on the merits, or whether the Fourth Circuit decision in Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002), is correct in holding that a preliminary injunction is not a ruling on the merits and thus cannot be the basis for prevailing party status?
2. Whether the Eleventh Circuit was incorrect in affirming the district court's order finding that Respondents are prevailing parties where their request for permanent injunctive relief was denied, although at an abbreviated hearing Respondents were awarded interim relief?

View docket updates.

Adina Rosenbaum and Brian Wolfman served as co-counsel on an amicus brief filed by a coalition of nonprofits, in support of respondents. We also provided a moot court to respondents before argument.

Decided June 4, 2007 for petitioners.

• Supreme Court Opinion (06/04/2007)
• Amicus Brief Supporting Respondents (03/23/2007)

Whether, and to what extent, a court must consider or weigh competing inferences in determining whether a complaint asserting a claim of securities fraud has alleged facts sufficient to establish a "strong inference" that the defendant acted with scienter, as required under the Private Securities Litigation Reform Act of 1995.

Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.

Supreme Court Opinion

We provided a moot for Petitioner.

Decided for respondent on May 29, 2007.

1. Does the Speech or Debate Clause of the U.S. Constitution, U.S. CONST. art. I, § 6, cl. 1, bar federal court jurisdiction of an action brought under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000), by a congressional employee whose job duties are part of the due functioning of the legislative process?
In addition to the question presented, counsel directed to brief and argue:
2. Was the Office of Senator Mark Dayton entitled to appeal the judgment of the Court of Appeals for the D.C. Circuit directly to this Court?
3. Was this case rendered moot by the expiration of the term of office of Senator Dayton?

Habeas Corpus: Due Process Violation

Since this court has neither held a prosecutor's penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under 28 U.S.C. Sec. 2254(d)(l) by overturning a capital sentence on the ground that the prosecutor's penalty phase closing argument was "unfairly inflammatory?"

Supreme Court Opinion

We provided a moot court for respondent.

Whether a complaint states a claim under Section 1 of the Sherman Act, if it alleges that the defendants engaged in parallel conduct and adds a bald assertion that the defendants were participants in a "conspiracy," without any allegations that, if later proved true, would establish existence of a conspiracy under the applicable legal standard.

Supreme Court Opinion

We provided a moot for respondents.

Decided for petitioners on May 21, 2007.

Unconstitutional Search & Seizure

1. Is it clearly established that an officer must immediately call off a valid warrant calling for the arrest of African Americans merely because he observes one or more Caucasians in the house to be searched?
2. Is it clearly established that, in lawfully executing a search warrant at a residence, it is an unnecessarily painful and/or degrading and/or undue invasion of privacy for officers to order people — who are in bed and who claim to be naked — to show their hands and get out of bed?
3. Can a Circuit Court of Appeals find that the law is "clearly established" so as to foreclose a finding of qualified immunity under Saucier v. Katz, 533 U.S. 194 (2001) when even the circuit judges cannot agree on whether a constitutional violation occurred?

View docket updates.

Scott Nelson is co-counsel for Respondents.

The Court called for a response on 1/03/07.

On 5/21/07, the Court summarily reversed the 9th Circuit's opinion, finding no 4th Amendment violation.

• Respondents' Brief in Opposition to Certiorari (03/02/2007)

Whether, and if so, under what circumstances, non-lawyer parents of a disabled child may prosecute an Individuals with Disabilities in Education Act, 20 U.S.C. 1400 et seq., case pro se in federal court.

Supreme Court Opinion

Brian Wolfman assisted petitioners.

We also provided a moot court for petitioners.

The Supreme Court ruled in favor of petitioners on May 21, 2007.

1. Whether a law enforcement officer's conduct is "objectively reasonable" under the Fourth Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect's vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death.
2. Whether, at the time of the incident, the law was "clearly established" when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight.

Supreme Court Opinion

We provided a moot for respondent.

Decided for petitioner April 30, 2007.

1. Whether the 10th Circuit erred by affirming the entry of judgment in favor of a qui tam relator under the False Claims Act, based on a misinterpretation of the statutory definition of an "original source" set forth in 31 U.S.C. Sec. 3730(e)(4)?
2. Whether the judgement must be reversed because the qui tam provisions of the FCA either on their face or as applied in this case, violate the Appointments and Take Care Clauses of Art. II of the Constitution?

Supreme Court Opinion

We provided a moot for Relator respondent.

Decided for petitioner 3/27/07.

1. Whether the 4th Circuit's decision violated the Clean Air Act, which provides that CAA regulations are subject to challenge "only" in the D.C. Circuit by petition for review filed within 60 days of their promulgation, and "shall not be subject to judicial review" in enforcement proceedings.
2. Whether the Act's definition of "modification" which turns on whether there is an "increase" in emissions and applies both to the NSPS and PSD programs, rendered unlawful EPA's longstanding regulatory test defining PSD "increases" by reference to actual, annual emissions.

Oral Argument: Nov. 1, 2006. We provided a moot for Petitioners.

The Supreme Court decided the case 9-0 for the Petitioners on April 2, 2007. Supreme Court Opinion.

This is an important Supreme Court case about the extent to which a federal agency — the Office of the Comptroller of the Currency (OCC) — can promulgate rules that expand its own authority to preempt the reach of state consumer protection laws. Over the past few years, the OCC has sought to immunize state-chartered operating subsidiaries of national banks from the reach of numerous state laws and law enforcement relating to predatory lending and other abuses. Public Citizen, together with a coalition of twelve non-profit public interest organizations and seventeen law professors led by the Center for Responsible Lending, joined this amicus brief. The brief argues that courts shouldn't defer to the agency's own self-aggrandizing interpretation of its powers, an interpretation that is not supported by statutory text or congressional policy.

Questions presented:

1. Is the interpretation of the Comptroller of the Currency that 12 CFR 7.4006 preempts Michigan's laws regulating mortgage lending as applied to State chartered nonbank operating subsidiaries, entitled to judicial deference under Chevron USA, Inc. v. Natural R