Yesterday the court heard oral argument in Endrew F. v. Douglas County School District, in which the justices considered what level of educational benefit students with disabilities must receive. Amy Howe analyzes the argument for this blog. Additional coverage comes from Mark Walsh at Education Week, Jim Gerl at the Special Education Law Blog, and Nina Totenberg at NPR, who notes that “by the end of the argument, there appeared to be a majority of justices willing to put more bite into the guarantee of a free appropriate public education for children with disabilities.” Commentary comes from Noah Feldman at Bloomberg View, who argues that “there’s something morally troubling about saying that our national standard of appropriate education is to be better than nothing.”
The petition of the day is:
Issue: Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the U.S. Courts of Appeals for the 2nd, 4th, 7th and 10th Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver and the unique-circumstances doctrine.
At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.
Steven Colloton, who just turned 54 on January 9, is a judge on the U.S. Court of Appeals for the 8th Circuit. Colloton graduated from Princeton University and Yale Law School before clerking for Judge Laurence Silberman on the U. S. Court of Appeals for the District of Columbia Circuit and then Chief Justice William Rehnquist on the Supreme Court. He began his practice in the Office of Legal Counsel in the U.S. Department of Justice, and then became an assistant U. S. Attorney in his home state of Iowa, a position he held for approximately eight years. After a short stint in private practice, Colloton returned to government service when President George W. Bush named him U.S. Attorney for the Southern District of Iowa in 2000. In 2003, Bush nominated Colloton to join the 8th Circuit. His confirmation to that position was uneventful: Senator Jeff Sessions tossed Colloton a few softball questions before announcing that he was highly qualified; he was confirmed by a vote of 94-1 on September 4, 2003.
In his 13-plus years of service as a federal judge, Colloton has been prolific; the 8th Circuit’s website lists him as the author of 615 different majority opinions. Even when he does not write the majority opinion, he often reveals his thinking in concurrences and dissents. We found more than 120 cases relating to controversial subjects in which Colloton either wrote or joined an opinion.
The oral argument yesterday morning in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as “surcharges.”
In its conference of January 13, 2017, the court will consider petitions involving issues such as whether a criminal defendant charged with an offense punishable by incarceration is denied due process when he is tried by a non-lawyer judge and when the defendant has no opportunity for a de novo trial before a judge who is a lawyer; whether the collective-bargaining provisions of the National Labor Relations Act prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis; and whether a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.
Today the court will hear oral argument in Endrew F. v. Douglas County School District, in which the justices will consider what level of educational benefits students with disabilities must receive. Amy Howe previewed the case for this blog. Dara Brown and Jaeeun Shin at Cornell’s Legal Information Institute also provide a preview. Commentary comes from Rick Hills at PrawfsBlawg, who argues that inviting “litigation over an unworkably vague standard,” as he contends the petitioners are doing in this case, “can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus,” and that “the statutory standard offered by the petitioners, although calling for equal educational opportunity, may actually make educational opportunity more unequal.”
Locomotively questionable train analogies and a bench skeptical of the petitioner’s position marked Tuesday’s argument in Goodyear Tire & Rubber Co. v. Haeger, in which the court considered the validity of a $2.7-million award of attorney’s fees against Goodyear for its bad-faith litigation conduct in failing to produce certain documents relating to a defective tire.
Arguing for Goodyear, Pierre Bergeron argued that sanctions require a showing of “direct causation,” which he treated as synonymous with a “but-for” standard. Under this standard, however phrased, fees are available for excess or incremental costs incurred because of steps taken by the plaintiff that would not have been taken without the misconduct. In this case, that includes the costs to the Haegers from Goodyear’s non-disclosure of a “Heat Rise” test showing that the tire reached temperatures above 200 degrees at highway speeds.
The petition of the day is:
Issue: Whether the Senate Select Committee on Intelligence’s investigative report concerning the Central Intelligence Agency’s former program of detention, torture, and abuse of detainees became an “agency record,” subject to the Freedom of Information Act, when the Senate Committee transmitted it to several executive agencies with instructions for its wide dissemination and use.