Supreme Court Assistance Project / Active Cases

The automatic stay is the most important protection in bankruptcy law. When a bankruptcy petition is filed, the automatic stay immediately bars creditors from taking action to collect from the debtor in bankruptcy. When a person is injured by a creditor's willful violation of the automatic stay, the bankruptcy laws authorize that person to "recover actual damages, including costs and attorneys' fees."

This case concerns the scope of the "actual damages" remedy. The creditor, Sternberg, has filed a petition for certiorari to the U.S. Supreme Court challenging the Ninth Circuit's holding that "actual damages" encompasses damages for emotional distress. Public Citizen, representing the debtor, Johnston, has filed a conditional cross-petition challenging the Ninth Circuit's holding that "actual damages" does not include attorneys' fees incurred in prosecuting the action for damages. We will also be opposing Sternberg's petition for certiorari.

In Mills v. Midwest Title Loans, the Seventh Circuit held that an Indiana law that regulates car-title loans - a form of predatory lending - was unconstitutional as applied to a company based in Illinois that made loans to Indiana residents. The state of Indiana filed a cert. petition, seeking Supreme Court review of the circuit court decision. The Litigation Group, on behalf of Public Citizen, Center for Responsible Lending, AARP, Consumer Federation of America, Indiana Legal Services, National Consumer Law Center, and Sargent Shriver National Center on Poverty Law, filed an amicus brief in support of the petition.

In response to a FOIA request, the FCC concluded that FOIA required the release of certain records concerning the agency's investigation of AT&T for alleged overbilling of the government. AT&T sued the agency to prevent the release of the records. The Freedom of Information Act exempts from mandatory disclosure certain law enforcement records, including those at to which the release would constitute an unwarranted invasion of personal privacy. The Third Circuit Court of Appeals adopted AT&T's position that this personal privacy exemption should extend to corporations.

The government petitioned the Supreme Court to grant certiorari and hear the case, arguing that exemption 7(C) should not be extended to corporate claims of privacy, embarassment, fears of bad publicity, and the like. Public Citizen filed an amicus brief in support of the petition on behalf of itself, Citizens for Responsibility and Ethics in Washington, the National Security Archive, OpenTheGovernment.org, the Electronic Frontier Foundation, and the Reporters Committee for Freedom of the Press.

ERISA

09-784

1. Whether, in the absence of an express private right of action, Spending Clause legislation establishing requirements for federal-state cooperative programs can unambiguously confer “rights” enforceable by third-party beneficiaries under 42 U.S.C. § 1983.
2. Whether a district court, after finding that participants were promised “comparable” or “larger” future retirement benefits in a Summary of Material Modification that ERISA §102 requires to be accurate and understandable to the average plan participant, errs in concluding that it lacks the authority to require at least “comparable” future benefits to be provided.

09-804

1. Whether, in the absence of an express private right of action, Spending Clause legislation establishing requirements for federal-state cooperative programs can unambiguously confer “rights” enforceable by third-party beneficiaries under 42 U.S.C. § 1983.

View docket updates in 09-784 or 09-804.

Consumer Remedies

1. Should this Court grant certiorari to review an interlocutory decision interpreting regulatory provisions under the Truth in Lending Act that were amended in 2009 to expressly require the consumer disclosures at issue in this case?

View docket updates.

In AT&T Mobility v. Concepcion, the Supreme Court will consider the extent to which companies can ban class actions in the fine print of their contracts with consumers and employees.

Class-action bans are contract provisions that purport to deny consumers and workers the right to seek classwide relief, whether in litigation or in arbitration. Companies have increasingly included class-action bans in their standard mandatory arbitration agreements. Many courts have deemed these provisions unconscionable and invalid under state law where precluding class actions would have the effect of allowing companies to get away with widespread wrongdoing, particularly where the individual claims would be too small to justify pursuing individual redress.

The question presented in AT&T Mobility v. Concepcion is whether the Federal Arbitration Act of 1925 preempts courts from striking down class-action bans under generally applicable state contract law. On behalf of California residents who brought consumer fraud claims against AT&T, we argue that there is no federal preemption under these circumstances.

The Supreme Court will hear arguments in the case in November 2010.

View docket updates in 09-893.

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.

Preemption

The Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA) permits state-chartered banks to charge interest at a prescribed rate, preempts contrary state law, and provides a federal remedy for usury. That remedy only applies, however, “if the rate prescribed [by DIDA] exceeds the rate such State bank . . . would be permitted to charge in the absence of [DIDA].” 12 U.S.C. § 1831d(b). Below, the plaintiffs argued that DIDA does not apply to the facts of this case for two reasons: (a) the rate prescribed by DIDA did not exceed the applicable rate under Missouri law and (b) the claims in this case are not state-law usury claims because they pertain only to certain non-interest fees.

1. Did the Eighth Circuit err in holding, as a threshold matter, that DIDA “does not apply” to the “particular" circumstances” of this case?
2. If it applied to the “particular circumstances” of this case, would DIDA completely preempt the plaintiffs’ state-law claims?

Section 1983

1. Whether a district court, after finding violations of the advance notice of reduction requirement in ERISA §204(h), errs in concluding that it lacks the authority to require the prior benefit provisions to be reinstated.
2. Whether, if the answer to Question 1 “yes,” FNHRA unambiguously confers “rights” enforceable by Medicaid beneficiaries under 42 U.S.C. § 1983.

Environmental Law

09-533:

1. Did the Sixth Circuit erroneously conclude–in conflict with the decisions of this Court and other circuits–that the Clean Water Act (“CWA”) unambiguously forecloses the EPA’s rule?
2. Did the Sixth Circuit improperly substitute its judgment for that of the expert agency charged with administering the CWA?
3. Should the court grant the petition, vacate the decision below, and remand for consideration in light of Burlington Northern & Santa Fe Railway Co. v. United States, 129 S. Ct. 1870 (2009)?

09-547

1. Did the Sixth Circuit err in holding that the “plain language” of the Clean Water Act precludes an EPA rule, consistent with 35 years of agency practice, that the application of a useful pesticide for its intended purpose and in accordance with relevant requirements of EPA’s pesticide regulatory program is not a “discharge of a pollutant”?
2. In reviewing an agency regulation under Chevron, may a court reject the agency’s interpretation by declaring a “plain meaning” that departs from the common understanding of the controlling statutory provisions, without considering the statutory context, the simultaneous enactment of a different statute more specifically addressing the subject matter, or the agency’s contemporaneous interpretation, all of which support the agency’s interpretation?

First Amendment: Employee Speech

1. Under the First Amendment analysis in Garcetti v. Ceballos, 547 U.S. 410 (2006), should a district court decide material disputes over the scope and content of a public employee’s job duties as a matter of law on summary judgment?
2. In determining whether a public employee was speaking pursuant to his official duties, exactly how much weight should be given to facts related to “the person addressed,” the “time and place” of the speech, and “specialized knowledge and access to information”?
3. Does an individual have a First Amendment interest in his attorney’s speech to the press on his behalf?

Preemption

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

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

Arbitration

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

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

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

Title VII Employment Discrimination

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

Class Action Fairness Act

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

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

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

First Amendment: Employee Speech

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

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

Michael Kirkpatrick of Public Citizen assisted the petitioners.

First Amendment: Employee Speech

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

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

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

Environmental Law: Clean Air Act

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

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

ADA: Standing

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

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

Class Actions

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

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

CERCLA

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

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

Arbitration: Public Policy Defense

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

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

Employment Law: Title VII

The questions presented are:

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

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

Preemption: Medical Marijuana

The question presented is:

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

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

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

First Amendment: Prior Restraint

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

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

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

First Amendment: Email Spam

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

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

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

Pleading Requirements: Identity of Employer

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

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

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

Arbitration

1. Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision?

View docket updates.

Environmental Law

1. Whether the Ninth Circuit erred in holding that National Environmental Policy Act (“NEPA”) plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction.
2. Whether the Ninth Circuit erred in holding that a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction.
3. Whether the Ninth Circuit erred when it affirmed a nationwide injunction entered prior to this Court’s decision in Winter v. NRDC, 129 S. Ct. 365 (2008), which sought to remedy a NEPA violation based on only a remote possibility of reparable harm.

Attorney's Fees

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

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

Arbitration

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

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

Civil Procedure: Class Actions

The questions presented are:

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

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

Ruling in our favor, the Court held that Federal Rule 23 controls when a class action lawsuit may be filed in federal court, so states do not have the authority to limit the right to sue.

Campaign Finance

On January 21, the U.S. Supreme Court issued its decision in Citizens United v. Federal Election Commission. The 5-justice majority, over a stirring dissent by Justice John Paul Stevens, used the case to overturn two prior court decisions that limited the role of corporate money in politics and to issue a sweeping new rule: For-profit corporations have a constitutional right to spend unlimited amounts of money to influence federal and state elections. Litigation Group attorney Scott Nelson was co-counsel for the key congressional sponsors of the McCain-Feingold law, who filed amicus briefs in the Supreme Court.

The decision is likely to be enormously harmful. Corporations already dominate our political process-through political action committees, fundraisers, high-paid lobbyists, personal contributions by corporate insiders, and more. On the dominant issues of the day-climate change, health care, financial regulation-corporate interests are leveraging their political investments to sidetrack vital measures to protect the planet and its people. Citizens United offers them new tools to influence and intimidate lawmakers.

Now that the Court has tossed out major parts of our campaign finance laws, we must find new ways of keeping our elections clean. The possibilities include public financing of congressional elections, laws to give shareholders control over corporate spending, and even amending the Constitution to allow limitations on electioneering by for-profit corporations. Public Citizen is working to develop a comprehensive response to the Court's ruling.

The Supreme Court decided 5-4 in favor of the petitioner.

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

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)?

Special Education: Tuition Reimbursement

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

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

Environmental Law: Clean Water Act

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

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

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

The question presented was:

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

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

Due Process / Judicial Elections

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

The Supreme Court decided in favor of the petitioner.

Environmental Law: Clean Water Act

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

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

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