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.

View docket updates.

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

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

• Brief in Opposition (06/25/2009)

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 Garceti 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.

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.

• Brief in Opposition (06/19/2009)

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.

• Amicus Brief in Support of Petitioner (06/16/2009)

Public Citizen and leading national consumer groups filed objections in the federal bankruptcy court in New York that is overseeing the Chrysler bankruptcy proceeding, asking the court to preserve the rights of consumers who have suffered or will suffer injury or loss caused by defects in Chrysler vehicles to seek compensation from Chrysler. The groups argued that Chrysler could not be sold “free and clear” of product liability claims, and that eliminating the future claims of people who have not yet been injured violates the Constitution.

After the bankruptcy court approved the sale, the consumer organizations appealed. On June 5, the Second Circuit heard the case and, that afternoon, affirmed the sale. The consumer organizations sought a stay of the sale from the Supreme Court on June 7, and on June 8 filed a petition for a writ of certiorari, asking the Supreme Court to hear the case. On June 9, the Supreme Court denied the stay, allowing the sale to go through.

The groups' objection was filed jointly with three individuals who have cases pending against Chrysler for injuries and deaths caused by Chrysler vehicles. The individual objectors are represented by the law firms Lieff Cabraser Heimann & Bernstein in San Francisco, and Stichter, Riedel, Blain & Prosser in Tampa, Fla..

View docket updates.

Adina Rosenbaum of Public Citizen is counsel for the petitioner consumer organizations.

The petition was filed 6/9/2009.

• Petition for Writ of Certiorari (06/09/2009)
• Application to Stay Sale (06/07/2009)
• Second Circuit Appeal Brief (06/04/2009)
• Notice of Appeal (06/02/2009)
• Opening Statement of Tort Claimant and Consumer Organization Objectors (05/26/2009)
• Objection of Tort Claimant and Consumer Organization Objectors (05/19/2009)

• 06/08/2009
• 05/19/2009

Arbitration: Class Arbitration

In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), the Court granted certiorari to decide a question that had divided the lower courts: whether the Federal Arbitration Act (FAA) 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 th 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 on presented in Bazzle: Whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the FAA.

View docket updates.

Brian Wolfman and Scott Nelson of Public Citizen are assisting the respondent.

The brief in opposition was filed 5/11/2009.

Cert. granted 6/15/2009.

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?

View docket updates.

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

The petition was filed 2/6/2009.

Cert. granted 5/4/2009.

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)?

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.

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)

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.

View docket updates.

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.

• Brief in Opposition (05/29/2009)

Preemption: 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.

View docket updates.

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.

• Brief in Opposition (05/21/2009)

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.

View docket updates.

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.

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.

View docket updates.

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.

• Brief in Opposition (05/12/2009)

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.

View docket updates.

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.

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, the respondents argue that the county lacks standing to challenge the Act.

View docket updates.

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.

• Brief in Opposition (04/14/2009)

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.

View docket updates.

Adina Rosenbaum of Public Citizen is assisting the respondent.

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

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.

View docket updates.

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.

Preemption: FDCA

In this case, petitioner Chicken-of-the-Sea contends that Deborah Fellner's claims that she was not adequately warned about the dangers of mercury in tuna fish are impliedly preempted by the FDA's "approach" to mercury in seafood. In its brief on behalf of Ms. Fellner, Public Citizen explains that the FDA's few informal actions on mercury in seafood — a brochure and backgrounder giving advice to pregnant and nursing women and young children on how much seafood is safe to eat, and non-binding guidance to its enforcement division — do not preempt Ms. Fellner's state-law claims.

View docket updates.

Adina Rosenbaum, Allison Zieve, and Brian Wolfman of Public Citizen are counsel for the respondent.

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

Cert. denied 4/20/2009.

• Brief in Opposition (03/20/2009)

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, Jaynes argued that Virginia failed to preserve the issue.

View docket updates.

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.

View docket updates.

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: 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.

View docket updates.

Paul Levy of Public Citizen is assisting the respondents.

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

Cert. denied 2/23/2009.

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.

View docket updates.

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)

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.

View docket updates.

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)

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.

View docket updates.

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)

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(c) 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.

View docket updates.

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.

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.

View docket updates.

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)

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?

View docket updates.

Brian Wolfman of Public Citizen is assisting the respondent.

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

Cert. denied 12/15/2008.

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?

View docket updates.

Brian Wolfman of Public Citizen is assisting the respondents.

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

Cert. denied 12/8/2008.

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?

View docket updates.

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)

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.

View docket updates.

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)

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.

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.

View docket updates.

Brian Wolfman is assisting the respondent.

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

Cert. denied 10/6/2008.

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.

Cert. denied 10/6/2008.

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.

Cert. denied 10/6/2008.

• 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)

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)

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.

Oral argument 1/12/2009.

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

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

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)(c)(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.

View docket updates.

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)

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.

View docket updates.

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)

View docket updates.

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.

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 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.

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.

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)

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.

Oral argument 12/9/2008.

Decided 9-0 in favor of Arizona 1/26/2009.

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?

View docket updates.

Brian Wolfman and Allison Zieve are assisting the respondents.

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

Cert. granted 1/18/08.

Oral argument 10/6/2008.

Decided 5-4 in respondent's favor on 12/15/2008.

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 Resources Defense Council?
2. Does 12 CFR 7.4006, by equating a State-chartered nonbank operating subsidiary with a national bank for purposes of federal preemption of State regulation, violate the Tenth Amendment to the United States Constitution?

As part of a coalition of consumer and public interest groups, Public Citizen filed an Amicus Brief in support of Petitioner, on which Deepak Gupta provided assistance.

Decided April 17 for Respondents.

• Amici Curiae Brief in Support of Petitioner (09/01/2006)