Each Supreme Court term begins on the “First Monday” in October. The Court typically hears cases on Monday, Tuesday, and Wednesday of two weeks in each month (more or less) until May, issues final decisions, then goes on summer recess beginning in late June or early July.
The first block of arguments starts with some procedural issues but then hears cases concerning regulation of “ghost guns,” prosecutorial misconduct in death penalty cases, RICO damages, immigration procedure, and veterans benefits before wrapping up with a major Clean Water Act case. Summaries are below.
See the other pages for tips on attending in-person or listening online. I will offer posts highlighting November and later argument sessions some time after the first block of arguments days are complete.
First Monday, October 7
The term begins with issues that will be somewhat difficult for the casual observer to follow — important, but resting on rather arcane procedural doctrines.
First up is Williams v. Washington, considering “whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.” Section 1983 was originally enacted during Reconstruction and allows individuals to sue for deprivation of rights “under color of law.” In other words, you can sue the person who used the power of their office to violate your federally protected rights. In this case, a group of applicants for unemployment benefits sued Alabama officials for delays in processing their applications. Alabama courts said they have to rely on the usual administrative filing and appeals processes and could not involve the courts at this stage. There is past precedent holding that federal courts can entertain § 1983 claims regardless of state administrative procedural obstacles, but the issue of whether federal law requires that state courts, also, must set aside state administrative procedural obstacles when someone brings a § 1983 claim in state court is unresolved. The Public Citizen amicus brief is a good source for understanding the broader significance of this issue.
Today’s second case, Royal Canin U.S.A. v. Wullschleger, involves something commonly known as forum shopping. Plaintiffs chose where to file their suit initially, but if they pick state court then the defendants may “remove” it to federal court under certain conditions, including if there is a “federal question” (i.e., the suit requires consideration and application of federal law). In this case, that’s what happened — after a somewhat convoluted procedural history, but so far fairly standard. Unhappy with that result, the plaintiffs then amended their lawsuit to remove all references to federal law. So the question for the Court is, basically, can a plaintiff do that? This argument will be particularly challenging for a casual observer to follow, but the 8th Circuit decision is fairly readable. You might also be eased into the procedural minutia by the interesting underlying issue: they claim the pet food companies mislead them about prescription requirements!
Tuesday, October 8
An important gun regulation issue – specifically “ghost guns” (a.k.a. “firearms parts kits” or “privately made firearms”) – is up first today in Garland v. VanDerStok. Notably, this dispute also has an overlay of statutory interpretation and administrative rule making. The Gun Control Act of 1968 (GCA) empowers the Bureau of Alcohol, Tobacco, and Firearms (ATF) to regulate “firearms,” as well as “the frame or receiver of any such weapon.” 18 U.S.C. §921(a)(3). The GCA did not define “frame or receiver” and gun designs have changed over the years, so ATF has defined those terms and updated those definitions, most recently with a 2022 rule that would encompass kits and partially complete frames. NAAG offers a very useful and succinct overview of the history of this case and the parties’ arguments. I’ll also point out an interesting amici brief from linguistic scholars.
The official “question presented” is one of pure statutory interpretation: (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.
This framing of the question is noteworthy because, as recently as last term, there presumably would have been a question about whether the ATF had reasonably interpreted the ambiguous terms and incomplete definition in the underlying Congressional statute. But with the death of Chevron deference, it will be the Court deciding what the statue authorizes, without consideration of ATF expertise.
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The second case involves a critical issue for lawyers – attorney fees! Certain civil rights laws provide for “fee shifting,” under which the prevailing party can require the other side to pay for their attorney fees. (The intent is to ensure that people with small monetary value claims can find representation. Without that, a contingency fee agreement for one-third of the damages for a few weeks’ of lost wages for a minimum wage worker might not be enough for a lawyer to take the case, no matter how egregious the unlawful suspension was or how important the case is to the discriminated-against employee.) In Lackey v. Stinnie, residents challenged a Virginia law that suspended their drivers licenses, obtaining a preliminary injunction pending trial. But then the legislature repealed the law before the case could go to trail. Is that enough to make them a prevailing party for purposes of attorney fee shifting?
The US Solicitor General has asked to participate in oral arguments, which means that there will likely be three arguing counsel (and thus more time devoted to oral arguments).
Wednesday, October 9
Just one case today, and it’s one of the more bizarre cases involving the death penalty and prosecutorial misconduct. Glossip v. Oklahoma involves a man who has been on death row for a 1997 murder (and was previously a named petitioner in a failed challenge to the method of execution). Today’s case comes after Oklahoma’s Attorney General acknowledged serious prosecutorial misconduct and false testimony in his original trial; the AG no longer supports his execution. But despite that, the Oklahoma courts have denied relief. The result is a highly unusual set of amici briefs (including from Ken Cuccinelli, Homeland Security Secretary under Trump) supporting Glossip, along with the relatively unusual appointment of a lawyer (a former clerk for CJ Roberts) to defend the state court ruling since the state AG will not. Scotusblog has a useful overview of the case.
[The Court is closed on Monday, October 14, in observance of Columbus / Indigenous Peoples Day]
Tuesday, October 15
RICO (the Racketeer Influenced and Corrupt Organizations Act) was created to go after organized crime, but it also provides that “[a]ny person injured in his business or property by reason of [unlawful RICO activity]” may sue in federal court and obtain treble damages and attorneys fees. 18 U.S.C. § 1964(c). The Court has clarified that the phrase “business or property” in the statute “exclud[es] … personal injuries.” RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 350 (2016). But how to draw the line between personal injuries and other property losses? In today’s first case, Medical Marijuana, Inc. v. Horn, a commercial truck driver was injured and wanted alternative treatment, carefully reviewed CBD advertisements in light of his random drug testing requirements, but then failed a drug test. He then sued the marketers of the CBD oil he took, alleging they falsely advertised that it did not contain THC (which, independent lab tests confirmed, it did). Some circuit courts of appeal have held that lost wages are a form of “personal injury” that cannot be recovered in a RICO lawsuit. But in this case, the Second Circuit split with those other courts (and joined with the Ninth) in holding that wages are property and not personal injury (which instead describes “pain and suffering” and similar types of damages). So this case will resolve a “circuit split” as to “Whether economic harms resulting from personal injuries are injuries to ‘business or property by reason of’ the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.”
Today’s second case involves the rather byzantine issues of immigration procedure and discretionary decisions. Briefly, in Bouarfa v. Mayorkas, a US citizen petitioned to have her non-citizen husband classified as an immediate relative. That petition was granted, but then revoked (based on an assertion that he had previously entered into a sham marriage). The Immigration and Nationality Act makes certain discretionary decisions unreviewable in the courts. The grant or denial of a petition is subject to clear standards and reviewable but, the government asserts and the courts so far have accepted, the decision to revoke the visa is discretionary and not reviewable. The district court “stated that an initial denial of a petition based on a marriage-fraud finding would be a reviewable, non-discretionary decision and expressed concern that there was a ‘loophole’ through which the Department ‘could evade judicial review by granting a visa petition it should have denied outright and then immediately revoking its approval'” but nevertheless dismissed Bouarfa’s case; the 11th Circuit affirmed. The Court has accepted cert. on “[w]hether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.”
Wednesday, October 16
The first case today involves veterans benefits and the benefit of the doubt rule on appeal. Veterans’ applications for disability and other benefits have long enjoyed the “benefit of the doubt rule,” so the vet’s claim should be approved if the evidence favoring granting or denying it are essentially balanced. In 2002, Congress extended this to appeals, requiring the Veterans Court to “review the record of proceedings before the Secretary and the Board of Veterans’ Appeals . . . and shall take due account of the Secretary’s application of [the benefit-of-the-doubt rule].” Veterans’ Benefits Act, 38 U.S.C. § 7261(b). In Bufkin v. McDonough, the record contained some medical evaluations finding that Bufkin suffered from PTSD but others finding that he did not; the agency determined that the evaluations finding he did not suffer from PTSD were “more comprehensive” and “thus, the benefit of the doubt doctrine does not apply here.” The Federal Circuit held that “if no issue that touches upon the benefit of the doubt rule is raised on appeal, the Veterans Court is not required to sua sponte review the underlying facts and address the benefit of the doubt rule.” Bufkin argues that this essentially nullifies the Veterans’ Benefits Act, and the court should have reviewed the entire record to ensure he received the benefit of the doubt at each stage of the proceedings (not just on appeal). See the overview here and the helpful amicus brief from the Fed Cir Bar Association.
Closing this term’s first block of arguments is a major Clean Water Act case, City and County of San Francisco v. Environmental Protection Agency. The case concerns San Francisco’s “combined sewer system” that collects both sewage and stormwater runoff and can sometimes overflow into the ocean. It has long operated under a National Pollutant Discharge Elimination System (NPDES) permit, as required by the Clean Water Act, but EPA issued a new permit in 2019. That latest permit uses “general narrative prohibitions,” which San Francisco complains (per a useful BloombergLaw article) is “trying to tell permit holders they can’t cause ‘too much’ pollution, but it isn’t telling us what ‘too much’ is.” In upholding the permit, the Ninth Circuit noted that the general narrative prohibitions simply prohibit discharges that “cause or contribute to a violation of any applicable water quality standard,” or “create pollution, contamination, or nuisance,” which the Circuit found to be sufficiently specific. The Court has accepted cert. on “Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.”