Court releases November argument calendar
The Supreme Court released its November argument calendar today. The Justices will hear ten hours of oral argument over six days: two hours each on Monday and Tuesday, followed by one hour on Wednesday, during the two weeks of the sitting. All of the cases in the November sitting (which begins on October 31) were granted in either May or June of this year.
Perhaps notably, two cases that were granted much earlier – Trinity Lutheran Church v. Pauley, a church’s challenge to its exclusion from a state program that gives grants to non-profits wanting to resurface their playground using recycled tire scraps, and the regulatory takings case Murr v. Wisconsin – have still not been scheduled for oral argument. The Justices normally slot cases for oral argument in (roughly) the order in which they were granted, so the delay in scheduling Trinity Lutheran and Murr for oral argument is somewhat unusual, particularly when the Court did not fill all of the available argument slots for November. The delay may be attributable to the parties themselves – for example, due to scheduling conflicts or efforts at settlement. But (and there is no way to know), given the timing of the grants and the likelihood that the late Justice Antonin Scalia, who died on February 13, was one of the four Justices who voted to grant review in each of the cases, it seems at least possible that the Court itself is responsible for the delay – perhaps seeking to maximize the chances that a ninth Justice will be able to participate in the case and avoid a four-four tie. (A third case granted in January before Scalia’s death, Microsoft Corp. v. Baker, has also not yet been scheduled for oral argument and may well be in a similar posture: at issue in that case is whether a federal appeals court has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.)
Here, in the order in which they are scheduled, are the cases scheduled for oral argument in the November sitting, along with a brief summary of the issues presented in the case:
- Fry v. Napoleon Community Schools (October 31; granted June 28): Whether a family bringing a lawsuit against a school district under the Americans with Disabilities Act and the Rehabilitation Act must first exhaust the state administrative remedies available to it under the Individuals with Disabilities Education Act before going to court, even if the family is seeking relief – damages – that is not available under the IDEA.
- Star Athletica LLC v. Varsity Brands (October 31; granted May 2): What test should be used to determine whether a part of a “useful article” – such as a piece of furniture or an article of clothing – is eligible for copyright protection?
- State Farm Fire and Casualty Co. v. United States ex rel. Rigsby (November 1; granted May 31): What standard should courts use to determine whether to dismiss a complaint filed under the False Claims Act, a federal law enacted to fight fraud against the government, when the requirement that the complaint be filed and remain under seal for at least sixty days has been violated?
- SCA Hygiene Products Aktiebolag v. First Quality Baby Products (November 1; granted May 2): Whether and to what extent the defense of laches – that is, an argument that the other side waited too long to pursue its claim – bars a claim for patent infringement, even if the claim is brought within the statutory limitations period?
- Venezuela v. Helmerich & Payne International (November 2; granted June 28): Whether the appropriate pleading standard for alleging that a claim falls within the Foreign Sovereign Immunities Act’s expropriation exception, which allows lawsuits against foreign sovereigns when (among other things) “rights in property taken in violation of international law are in issue,” is whether the claim is “wholly insubstantial or frivolous,” or whether a more demanding standard instead applies.
- National Labor Relations Board v. SW General (November 7; granted June 20): Whether and when the president may name someone to perform a high-level federal office in an “acting” capacity.
- Ivy v. Morath (November 7; granted June 28): When is a state agency responsible for discrimination against individuals with disabilities – here, five people with hearing impairments who wanted a sign-language interpreter at their driver’s education classes – when the agency contracts out a public program to a private vendor?
- Bank of America v. City of Miami (consolidated with Wells Fargo & Co. v. City of Miami) (November 8; granted June 28): Whether city governments can sue mortgage lenders and housing operators under the Fair Housing Act for racial discrimination in housing.
- Lightfoot v. Cendant Mortgage Corp. (November 8; granted June 28): Whether the phrase “to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal” in the charter of the Federal National Mortgage Corporation (“Fannie Mae”) gives federal courts original jurisdiction over every case brought by or against Fannie Mae.
- Lynch v. Morales-Santana (November 9; granted June 28): Whether a federal law that, for purposes of U.S. citizenship, treats a child born abroad whose father is a U.S. citizen differently from a child born abroad whose mother is a U.S. citizen violates the Constitution.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in State Farm. However, I am not affiliated with the firm.]