Petition of the day

By on Aug 22, 2014 at 10:15 pm

The petition of the day is:


Issue: (1) Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state); and (2) whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.

Arguing that lower federal courts have “subverted” the Supreme Court’s decision last year on same-sex marriage, a Virginia court clerk on Friday filed his own petition – the second filing seeking a ruling on the constitutionality of that state’s ban on such marriages and the fourth on the basic constitutional issue.  The filing may complicate the Court’s chances of promptly considering that issue.

The new document was filed by lawyers for George E. Schaefer III, who is the circuit court clerk for the city of Norfolk.  He has been taking part in the Virginia case since it began, and he is now defending the ban, after state officials opted not to do so.  Already pending at the Court are another petition from Virginia, one from Utah, and one from Oklahoma.  Another is expected soon from Virginia, to be filed by a different clerk.

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UPDATE 5:27 p.m.  The proposed new rules have now been published by the government.  The revisions for profit-making businesses are here, and for non-profit organizations are here.


The Obama administration, planning to change its health insurance rules to satisfy the Supreme Court’s ruling in June limiting the federal birth-control mandate, proposed on Friday that for-profit companies with publicly traded stock will not qualify for a new exemption.  A government fact sheet giving background and summarizing the proposed changes can be read here.

The new rules appear to have two purposes:  to keep the mandate under the Affordable Care Act within the new limits required by the Court’s decision in Burwell v. Hobby Lobby Stores, but also to make sure that women who work for employers who object to the mandate for religious reasons would continue to have access to that coverage.  The revisions would apply to both for-profit businesses and non-profit groups like religiously oriented charities, hospitals, schools, and colleges.

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Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

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Petition of the day

By on Aug 21, 2014 at 10:21 pm

The petition of the day is:

Armstrong v. Exceptional Child Center, Inc.

Issue: (1) Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute; and (2) whether, if Medicaid providers have a private right of action, a state’s Medicaid provider reimbursement rates are preempted by 42 § 1396a(a)(30)(A) where they do not bear a reasonable relationship to provider costs and remain in place for budgetary reasons.

Ruling that Florida’s ban on same-sex marriage “stems entirely, or almost entirely, from moral disapproval of the practice,” a federal trial judge in Tallahassee on Thursday ruled that the prohibition is unconstitutional.  In a thirty-three-page decision, U.S. District Judge Robert L. Hinkle ruled against the ban, but put his decision on hold to allow for an appeal.

The new ruling made Judge Hinkle’s court the twentieth federal court in a row, over the past fourteen months, to rule as he did, and it followed similar decisions by four separate state court judges in Florida.  State officials have appealed the other decisions in state court; an appeal in this case would go to the U.S. Court of Appeals for the Eleventh Circuit.

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With six federal appeals courts already drawn deeply into the same-sex marriage controversy, a seventh — the specialized U.S. Court of Appeals for the Federal Circuit — has just become involved.  An advocacy group for military veterans who are legally married to same-sex partners has filed a new appeal seeking to close a gap in those couples’ eligibility for benefits, ranging from home loan guarantees to burial rights.

After the Supreme Court’s decision fourteen months ago in United States v. Windsor, assuring equal access to federal marital benefits for same-sex couples, the Department of Veterans Affairs (VA) went part of the way to provide that access to veterans and their spouses.  But there remains a sizable gap, according to the petition filed by the American Military Partner Association, an advocacy group with 28,000 members.  (The appeal, filed Monday, does not yet have a docket number assigned.  Under that court’s rules, it will be formally docketed when assigned to a case manager.)

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Event announcements

By on Aug 21, 2014 at 10:39 am

Two upcoming events focus on the Court and energy and environmental issues.  Today from 1 to 2:30 p.m., the State and Local Legal Center will host a webinar on last Term’s Utility Air Regulatory Group v. EPA.  Former EPA general counsel Roger Martella will discuss the implications of the case for state and local governments and future regulation of greenhouse gases by the EPA.  More information is available here.

On September 18, from 8:30 to 10:30 a.m. at the National Press Club, the Law & Economics Center at George Mason University School of Law will host an event previewing cases in the Court’s upcoming term that have significant implications for energy and environmental concerns, as well as similar cases that could come before the Court soon. More information is available here.



Thursday round-up

By on Aug 21, 2014 at 8:46 am

Yesterday the Court blocked the order by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage.  Although Virginia officials and the county clerk who had requested the stay urged the Court to treat the clerk’s stay application as a petition for review, the Justices instead stayed the lower court’s ruling pending the filing and disposition of a formal petition for certiorari.  I covered the order for this blog; other coverage comes from NPR’s Nina Totenberg, Robert Barnes of The Washington Post, Timothy Phelps of the Los Angeles Times, and Lawrence Hurley of Reuters.  In an article published before the Court issued the stay, Chris Geidner of BuzzFeed reported on the “tightrope walk” of Virginia Attorney General Mark Herring, who has declined to defend his state’s ban but nonetheless agreed with the county clerk that the Fourth Circuit’s ruling should be stayed.  And in an op-ed for the Supreme Court Brief (subscription required), Alan Morrison has some “early advice” for the Justices on the same-sex marriage issue; among other things, he tells the Court that, “[n]ow that there are so many cases in the courts of appeals, and so little that lower-court judges have not yet said, you might as well take one case now, swallow hard, and decide the merits.” Continue reading »

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Petition of the day

By on Aug 20, 2014 at 10:12 pm

The petition of the day is:

Estate of Barabin v. AstenJohnson, Inc.

Issue: Whether, in a federal jury case, a district judge’s procedural failure to make detailed findings under Daubert v. Merrell Dow Pharmaceuticals regarding important expert testimony requires the appellate court to order a new trial, regardless of whether there was actually any substantive error in the expert testimony heard or not heard by the jury.

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