This morning the justices issued orders from their private conference last week. They added two new cases to their merits docket for the next term, which will begin in early October, and asked the U.S. solicitor general to weigh in on a third case. But they once again did not act on some high-profile cases, suggesting that those cases will be relisted for further consideration at their conference later this week.

The first grant came in BNSF Railway Co. v. Loos, in which the justices will decide whether a railroad’s payment to an employee for time lost from work can be taxed under the Railroad Retirement Tax Act, the federal law that – along with the Railroad Retirement Act – establishes a separate retirement and disability benefit system for railroad employees.

The case began when Michael Loos, a longtime BNSF employee, sued the railroad to recover for (among other things) injuries he had sustained on the job. A jury issued a verdict in his favor that included $30,000 for lost wages, but BNSF asked the court to offset that figure by $3,765, Loos’ share of the payroll taxes on the award. The district court declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

The dispute centers on an IRS regulation that interprets taxable “compensation” under the RRTA to include pay for time lost. The U.S. Court of Appeals for the 8th Circuit rejected that interpretation, ruling that payments for time lost from work are not taxable. BNSF asked the justices to review that decision, telling them that it creates an “untenable situation” because other courts have taken the opposite view, subjecting railroads and their employees to different tax liabilities depending on where employees file their lawsuits. The court agreed to weigh on the issue today; the case will almost certainly be argued in the fall.

The second grant, which is also likely to be argued in the fall, came in Air and Liquid Systems Corp. v. Devries, in which the justices will consider the scope of liability for products that cause injuries. The case is actually two consolidated lawsuits alleging that sailors in the U.S. Navy were exposed to asbestos during their service on Navy ships. The defendants in the case countered that they are not liable because they did not make or supply the products that contained asbestos, but the U.S. Court of Appeals for the 3rd Circuit ruled that, under maritime law, a manufacturer of a product that does not contain asbestos can still be held liable for injuries caused by asbestos in another product if the manufacturer should reasonably foresee that its conduct would lead to the injuries – for example, if the manufacturer knew that its product would be used with a part that contained asbestos. The manufacturers petitioned the justices for review, which the court granted today.

The justices asked the U.S. solicitor general to file a brief expressing the views of the United States in Osage Wind v. Osage Minerals Council, a dispute arising from the development of a wind-energy project on land in Oklahoma established as a reservation for the Osage Nation. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case, but I am not affiliated with the firm.] There is no deadline for the government to respond to this invitation.

The justices once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The briefing in the case was complete by late December, but the justices have repeatedly relisted it since then; they also called for the record in the case in late February and received it the same day.

The justices will meet again for another conference on Thursday, May 17; we expect orders from that conference on Monday, May 21, at 9:30 a.m.

This post was originally published at Howe on the Court.

Posted in BNSF Railway Company v. Loos, Osage Wind, LLC v. Osage Mineral Council, Air and Liquid Systems Corp. v. Devries, Featured, What's Happening Now

Recommended Citation: Amy Howe, Two new grants, one CVSG today, SCOTUSblog (May. 14, 2018, 12:51 PM), http://www.scotusblog.com/2018/05/two-new-grants-one-cvsg-today/