Petitions of the week
By Andrew Hamm
October 15, 2021
This week, we’re highlighting certificate petitions that ask the Supreme Court to consider, among other things, whether tribal immunity prevents beach goers from asserting a right of way to public beaches on private property. a Native American tribe and whether the Bankruptcy Judgeship Act fee schedule violates the Constitution.
In Upper Skagit Indian Tribe c. Lundgren, the judges questioned whether the âreal property exceptionâ applied to tribal sovereign immunity. Under this exception, governments that own property in other jurisdictions are treated as individuals, not sovereigns, in any land dispute. After a majority decided to send this case back to the Washington Supreme Court on procedural grounds, a new petition in a different case is now asking the judges to take the matter up again. Jason Self launches kayaks on public beaches near the port of Trinidad in California for his kayaking business. The car, as well as beach goers, must cross private property to reach the beach, and a previous owner of the property dedicated part to this access. After the purchase of the property by the Indian community of Cher-Ae Heights of Trinidad Rancheria, Self filed a lawsuit seeking recognition of the public easement on the property. The trial court and the California Court of Appeals agreed with the tribe that tribal sovereign immunity precludes prosecution. Self argues that the real property exception applies because the land is not part of a reserve or is not placed in trust (which would allow the tribe to veto any right of way. on the ground). The case is Self c. Indian community of Cher-Ae Heights of Trinidad Rancheria.
The Constitution’s bankruptcy clause gives Congress the power to “make … uniform bankruptcy laws across the United States.” However, two separate programs govern US bankruptcy law, with most of the country under the US Trustee program and six judicial districts in North Carolina and Alabama under the Bankruptcy Administrator program. The programs worked the same until the Bankruptcy Judicial Act of 2017 increased the fees for the US Trustee program nine months ahead of the Bankruptcy Administrator program and made the new fees apply to cases already pending only for the US Trustee program. Siegel vs. Fitzgerald emerges from the 2008 Chapter 11 bankruptcy of Circuit City Stores, Inc., under the US Trustee Program. Because the case was still pending in 2017, the Circuit City liquidation trust trustee claims he had to pay more than $ 500,000 more in costs than would have been required under the program. administrator of the bankruptcy. Citing a circuit split in which the US courts of appeals for the 4th and 5th circuits upheld the costs and the US court of appeals for the 2nd circuit dismissed them as non-uniform, the trustee asks examining judges.
These and other petitions of the week are below:
United States v. Washington
Problem: whether a state workers’ compensation law that applies exclusively to federal contract workers who provide services in a specified federal facility is prohibited by the principles of intergovernmental immunity, or is it rather authorized by 40 USC Â§ 3172 (a), which allows state workers’ compensation laws to apply to federal facilities “in the same manner and to the same extent as if the premises were under the exclusive jurisdiction of the state.”
Impax Laboratories, Inc. v. Federal Trade Commission
Problems: (1) If the presence of a “reverse payment” that exceeds the litigation costs saved by a patentee and the value of any service provided by a patent applicant is sufficient to render a patent settlement illegal, despite a decision to the contrary by the Supreme Court in Federal Trade Commission v Actavis, Inc.; and (2) whether courts reviewing antitrust challenges to patent regulations can ignore proof of the force of the patents at issue, as the United States Court of Appeals for the 5th Circuit held here, or s ‘they must instead consider what “the force of the patent would otherwise be permitted”, as held by the United States Court of Appeals for the 3rd Circuit in King Drug Co. of Florence v. Smithkline Beecham Corp.
Arellano v. McDonough
Problems: (1) The rebuttable presumption of fair toll of Irwin v. Department of Veterans Affairs applies to the legal period of one year in 38 USC Â§ 5110 (b) (1) for claiming retroactive disability benefits and, if so, whether the government rebutted this presumption; and (2) whether, if 38 USC Â§ 5110 (b) (1) lends itself to a fair toll, that case should be referred so that the agency can consider the particular facts and circumstances first.
Siegel vs. Fitzgerald
Problem: If the Bankruptcy Judicial Act violates the consistency requirement of the Constitutional bankruptcy clause by increasing quarterly fees only in districts under the US Trustee program, and not in those under the Bankruptcy Administrator program.
Sackett v. Environmental protection agency
Problem: Whether Rapanos v. United States – in which the Supreme Court ruled that the Water purification law regulate not all wetlands, but without a majority opinion as to why this is so – should be reconsidered to adopt the plurality test for wetland jurisdiction under the Clean Water Act, in which only wetlands wetlands that have a continuous link between surface waters and regulated waters may themselves be regulated.
Jobe v. National Transport Safety Office
Problems: (1) Exemption 5 from the Freedom of information act – which provides that federal agencies do not need to issue “interagency or intra-agency memoranda or letters” – includes an unwritten “consultant corollary” whereby documents prepared by private external consultants are considered as âintra-agency memoranda or lettersâ; and (2) whether a âconsultant corollaryâ in FOIA Exemption 5 could ever make communications between an agency and (1) employees of a regulated private company with an economic interest in the agency âintra-agencyâ. agency actions; or (2) the representative of a foreign government.
Brookhart v. Smith
Problem: United States Court of Appeals for 7th Circuit Violated 28 USC Â§ 2254 (d)restrictions on the granting of a habeas measure to the respondent, Kenneth Smith, on the basis of his own assessment of the evidence rather than relying on the contrary opinion of the state court.
Self c. Indian community of Cher-Ae Heights of Trinidad Rancheria
Problem: If the real estate exception applies to tribal sovereign immunity.