Before the summer recess, one last set of grants

This afternoon the Supreme Court issued a final set of orders – often called the “clean-up” orders – before its summer recess. The justices sent several cases back to the lower courts for another look in light of the court’s recent decisions holding that, for purposes of the federal Major Crimes Act, much of eastern Oklahoma remains a Native American reservation and that the Trump administration did not violate the Affordable Care Act or the notice provisions of federal laws governing administrative agencies when it expanded the exemptions from the birth-control mandate created under the ACA. The justices also added six new cases to their docket, for a total of four hours of additional argument time when the new term begins in the fall.

The justices granted a pair of cases, Collins v. Mnuchin and Mnuchin v. Collins, involving a challenge to the structure of the Federal Housing Finance Agency. The court ruled earlier this term that the Consumer Financial Protection Bureau’s similar structure is unconstitutional; the challengers have asked the justices to weigh in on what the remedy should be if the FHFA’s structure is also unconstitutional. The question arises in a broader dispute between shareholders of Fannie Mae and Freddie Mac and the FHFA, which became the conservator for Fannie and Freddie in the wake of the 2008 financial crisis, over the FHFA’s 2012 financing agreement with the Treasury Department. The court also agreed to weigh in on issues relating to the statute under which the FHFA became the conservator.

In AMG Capital Management v. Federal Trade Commission and Federal Trade Commission v. Credit Bureau Center, the justices will weigh in on a provision of the Federal Trade Commission Act that gives the FTC the power to go to district court to seek a permanent injunction to enforce Section 5 of the act, which bars “unfair methods of competition” and “unfair or deceptive acts or practices.” The question that the court agreed to hear today is whether the act also gives the FTC the power to require defendants to return money that they obtained as a result of their illegal activities. AMG Capital Management asked the Supreme Court to review a decision by the U.S. Court of Appeals for the 9th Circuit that upheld a district court order requiring the company to pay the FTC over a billion dollars in “restitution.” The FTC sought review of a ruling by the U.S. Court of Appeals for the 7th Circuit that reversed a district court order requiring a company to pay the FTC over five million dollars after it offered consumers a “free” credit report but then enrolled them in a credit-monitoring service at a cost of $30 per month. Both petitions were filed last year, but the justices did not act on them until today — probably because the petitions were on hold until the court decided Liu v. Securities and Exchange Commission, involving the SEC’s authority to seek repayment of profits in civil enforcement actions. Notably, the petition for review in Credit Bureau Center was filed by the FTC itself, rather than the U.S. solicitor general, who usually represents the federal government and its agencies in the Supreme Court; the government did not defend the 9th Circuit’s ruling in the FTC’s favor in AMG Capital Management or in another case that now appears to be on hold until these cases are decided.

The justices will return again next term to the issue of robocalls and the Telephone Consumer Protection Act, after they granted a petition filed by Facebook. Among other things, the TCPA bars calls made using an autodialer; the plaintiff in the case, Noah Duguid, claimed that Facebook used an autodialer to warn Facebook users when someone accessed their account from a new device. Duguid, who did not have a Facebook account, alleged that he began to receive text messages on his cellphone to alert him of a potential problem, and was unable to stop the messages for several months. He then sued Facebook for violating the TCPA, claiming that Facebook had used an autodialer to send the text messages. The case was on hold while the justices decided Barr v. American Association of Political Consultants, involving the constitutionality of the “government debt” exception to the TCPA’s general ban on robocalls. After that decision was released, Facebook urged the justices to grant review and weigh in on the definition of “autodialer” in the TCPA, describing the issue as an “important and oft-litigated question that dictates whether the statute reaches specialized robocalling equipment or every modern smartphone. Billions in liability,” Facebook told the justices, “turns on the answer.”

And in Uzuegbunam v. Preczewski, the justices granted a petition filed by a Georgia student who brought a lawsuit after he was stopped from distributing religious literature on his college campus. The student, Chike Uzuegbunam, argued that the enforcement of the school’s policies violated his constitutional rights, and he sought damages and a change in the policies. When the school changed its policies after the lawsuit was filed, the lower court threw out the lawsuit, reasoning that Uzuegbunam no longer had a case because of the changes and because his claim for nominal damages – that is, an amount of money to reflect that a plaintiff suffered a legal harm, even if there was no real financial loss – was moot. The justices will now weigh in on whether the government can moot claims for nominal damages by changing an unconstitutional policy after the filing of a lawsuit. “Nominal damages,” Uzuegbunam wrote in his petition for review, “hold government officials accountable when constitutional violations occur but do not inflict compensable injuries. The Eleventh Circuit should not treat nominal damages—and the violations they vindicate—as worthless.”

The cases granted today will likely be argued in the fall, with decisions to follow sometime next year.

This post was originally published at Howe on the Court.