Supreme Court Update: Order List November 2016

November 21, 2016 Supreme Court Update

Greetings, Court fans!

The Court has been relatively quiet since our last missive—we're still waiting for the first signed opinion of the term—but we suspect your minds have been focused on other branches of government over the last few weeks anyway. But, while much of the country has been looking the other way, The Eight have taken some steps to fill in OT16's docket.

The most high-profile cert grant came in Gloucester County School Board v. G.G. (16-273), a case the media has described as concerning the rights of transgender public school students to use the bathroom of their choice, even though it's mostly about agency deference. GG, who was born female, sued the school district after it cowed to community opposition and refused to let him use the boy's bathroom at his high school. He alleged that by refusing to allow him to use the boy's bathroom, the school had engaged in sex discrimination in violation of Title IX. Title IX prohibits discrimination on the "basis of sex," but a Department of Education Official penned a "Dear Colleague Letter" in connection with this case, indicating that sex discrimination under Title IX includes discrimination based on gender identity and that schools that provide separate bathrooms for each sex must generally allow a student to use whichever bathroom is consistent with his or her gender identity. The Fourth Circuit afforded DOE's statement controlling Auer deference and the district court thereafter entered an injunction in GG's favor. On appeal, the Supreme Court will address two questions: (1) "If Auer [deference] is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?"; and (2) "With or without deference to the agency, should the Department's specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?"

In addition to Gloucester County, the Court added another five cases to its docket:

Esquivel-Quintana v. Lynch (16-54) asks whether consensual sex between a 21 year old and a 17 year old can "constitute[] the ‘aggravated felony' of ‘sexual abuse of a minor' under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act - and therefore constitute[] grounds for mandatory removal" if the defendant is convicted under the laws of one of the 7 states that criminalize this conduct notwithstanding that the model penal code and 43 states do not make such conduct illegal.

Coventry Healthcare of Missouri v. Nevils (16-149) asks (1) Whether the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. § 8901 et seq., preempts state laws that prevent private insurance carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts; and (2) Whether FEHBA's express-preemption provision, 5 U.S.C. § 8902(m)(l), violates the Supremacy Clause.

Packingham v. North Carolina (15-1194) involves an interesting question in this digital age.

N.C. Gen. Stat. § 14-202.5 makes it a felony for any person on the State's registry of former sex offenders to "access" a wide array of websites (including Facebook) that enable communication, expression, and the exchange of information among their users, if the site is "known" to allow minors to have accounts. The law applies even where an individual has completed all criminal justice supervision and does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose. The question presented is: "Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner - who was convicted based on a Facebook ‘post' in which he celebrated dismissal of a traffic ticket, declaring ‘God is Good!'"

Kindred Nursing Centers v. Clark (16-32) asks "Whether the [Federal Arbitration Act] preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement."

Dean v. United States (15-9260), asks whether the Court's 2011 decision in Pepper v. United States (2011) overruled United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007) to the extent that decision limited the district court's discretion to consider the mandatory consecutive sentence or sentences under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the 18 U.S.C. § 924(c) convictions.

But even as the Court added six new cases to its docket, it took two cases previously calendared for December off. The companion cases Visa Inc. v. Osborn (15-961) and Visa Inc. v. Stoubos (15-962) were accepted to resolve "whether allegations that members of a business association agreed to adhere to the associations' rules and possess governance rights . . . are sufficient to plead the element of conspiracy" under the Sherman Act. But after cert was granted (and after Visa switched counsel), the petitioners adopted a different legal theory, prompting a protest from respondents and the Government as amicus curiae. The Court dismissed the petitions as improvidently granted, sending a message to practitioners: stick with the horse that got you there.

Finally, though we're still awaiting the term's first real opinion, there has been some sparring between the justices on the issue of juvenile sentencing. The law has been evolving rapidly in this area, beginning with the Court's 2005 decision in Roper v. Simmons, which held that the Eighth Amendment prohibits death sentences for juvenile offenders, continuing with Miller v. Alabama in 2012, which held that mandatory life sentences without the possibility of parole also violate the Eighth Amendment, and culminating last term with Montgomery v. Louisiana, which held that Miller must be applied retroactively to sentences that became final before it was decided. In a handful of recent decisions, the Court has granted cert, vacated, and remanded to the lower courts to reconsider their holdings in light of Montgomery. What makes this unusual is the fact that the trial courts in each of the cases had imposed life sentences without parole after Miller was decided. Thus, as Justices Thomas and Alito noted in their dissents from the GVRs, it is unclear how reconsideration based on Montgomery (which said Miller should apply retroactively) could affect the outcome where the trial courts had made their decisions after Miller's release. In the dissenters' view, what the Court was really doing was suggesting that the trial courts had misapplied Miller by deciding to impose life without parole. This, they argued, is not a legitimate basis for a GVR. Rather, if the Court believes the state courts had misapplied Miller, then it should grant cert and reverse (though the dissenters clearly believed the trial court's decisions were appropriate). Justice Sotomayor penned an opinion concurring in the GVRs to argue that none of the trial courts adequately considered the requirement in Montgomery/Miller that life without parole be imposed only on those juveniles that show "permanent incorrigibility."

That'll do it for now. Thanks for reading, and Happy Thanksgiving!