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Court releases November argument calendar

The Supreme Court released the argument calendar for its November sitting, which begins on Monday, October 29. During the six days of the November sitting, the justices will hear oral arguments in 12 cases, involving topics that range from the proper method of service for a foreign country to pre-emption by the Atomic Energy Act.

The November sitting kicks off with two oral arguments involving the interpretation of the Federal Arbitration Act. Henry Schein, Inc. v. Archer & White Sales asks the justices to decide whether the act allows a court to decline to enforce an arbitration agreement that gives the arbitrator the power to decide questions about arbitrability if the court believes that the arbitrability claim is “wholly groundless.” And in the second argument of the day, in Lamps Plus v. Varela, the court will consider whether the act bars a state-law interpretation of an arbitration agreement that would allow class arbitration, even when the agreement itself does not mention class arbitration.

The other cases scheduled for oral argument in the November sitting are:

Washington State Department of Licensing v. Cougar Den (Oct. 30) – Whether a state tax levied on a fuel wholesaler owned by a member of the Yakama Nation violates Article III of an 1855 treaty with the federal government that gives members of the nation the right to “travel upon all public highways.”

Garza v. Idaho (Oct. 30) – When an inmate waives his right to appeal and then argues that his trial counsel was constitutionally inadequate because he failed to appeal, despite the inmate’s request, should courts assume that the inmate was prejudiced by his lawyer’s failure to appeal, or must the inmate actually show that he was prejudiced by indicating what issues he would have raised had he appealed?

Jam v. International Finance Corp. (Oct. 31) – Whether, under the International Organizations Immunities Act, which gives international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments,” international organizations have the same immunity as foreign governments have under the Foreign Sovereign Immunities Act – which contains an exception from immunity for “commercial activities.”

Frank v. Gaos (Oct. 31) – Whether awarding the majority of the proceeds from a class action to charities and nonprofits (known as a cy pres award), with no direct relief to members of the class, is consistent with the requirement that a settlement binding class members be “fair, reasonable, and adequate.”

Sturgeon v. Frost (Nov. 5) – Whether the Alaska National Interest Lands Conservation Act, a federal law governing the National Park Service’s authority over lands in Alaska, bars the National Park Service from regulating other land – owned by the state, native corporations or private owners – within the boundaries of Alaska national parks.

Virginia Uranium v. Warren (Nov. 5) – Whether Virginia’s ban on uranium mining conflicts with the Atomic Energy Act, which gives exclusive power to regulate the radiological safety of milling and the resulting tailings to the federal Nuclear Regulatory Commission.

Bucklew v. Precythe (Nov. 6) – A challenge to the planned execution by lethal injection of an inmate who suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat,” as well as whether the inmate has made the showings required by the court’s lethal-injection precedent regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.

BNSF Railway v. Loos (Nov. 6) – 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.

Republic of Sudan v. Harrison (Nov. 7) – Whether, under the Foreign Sovereign Immunities Act, a plaintiff can serve a foreign government by sending his summons and complaint by mail to the country’s embassy in the United States, or whether he must instead send the summons and complaint directly to the country’s foreign minister in that country.

Culbertson v. Berryhill (Nov. 7) – Whether, when the Social Security Act provides that a court can award attorney’s fees “not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled,” the 25-percent cap applies only to attorney’s fees for representing a claimant in court or also to fees for representing a claimant before the Social Security Administration.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in Bucklew v. Precythe; the author of this post is not affiliated with the firm.]

Recommended Citation: Amy Howe, Court releases November argument calendar, SCOTUSblog (Aug. 20, 2018, 2:56 PM),