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Petitions of the week: Deadlines for attorneys’ fees, the elements of burglary and more

This week we highlight cert petitions that ask the Supreme Court to decide, among other things, the filing deadline for attorneys’ fees under the Individuals with Disabilities Education Act and whether Georgia’s burglary statute qualifies as a prior conviction under the Armed Career Criminal Act.

Richardson v. Omaha School District concerns the deadline that parents face in seeking to recoup their attorneys’ fees after prevailing in administrative proceedings under the Individuals with Disabilities Education Act. The IDEA offers states federal funds in return for providing a “free appropriate public education” for all students with disabilities. The IDEA also allows parents to initiate a “due process hearing” before a state or local IDEA hearing officer in order to enforce that promise. Parents who are “aggrieved” after these administrative proceedings have 90 days to seek judicial review, unless state law provides otherwise. Parents who prevail in the administrative proceedings may seek attorneys’ fees – but the statute does not specify any filing deadline. Courts divide over the proper deadline. Some circuits consider the fees as ancillary to the underlying educational dispute. They borrow the deadline for judicial review of IDEA administrative merits decisions, which in different states ranges from one to four months. Other circuits consider the fees as independent actions; they apply deadlines that apply for statutory violations, which could be years. In this case, Chad and Tonya Richardson waited months after the administrative decision before seeking attorneys’ fees – because, their petition claims, they were preoccupied with concerns that their child was being bulled. Their action came too late in the U.S. Court of Appeals for the 8th Circuit, which requires the shorter deadline. In their petition, the Richardsons ask the Supreme Court to review the 8th Circuit’s decision and adopt the longer deadline.

Avery v. United States addresses how courts should analyze state crimes for purposes of sentencing enhancements. The Armed Career Criminal Act requires a 15-year mandatory minimum prison sentence for someone convicted of being a felon in possession of a firearm who has three previous convictions for a violent felony or serious drug offense. The statute includes within the definition of “violent felony” a burglary that is punishable by imprisonment for more than one year. The Supreme Court has said that “burglary” in the ACCA refers to its generic version, not to all possible variants of burglary. In 2005, James Avery received a sentencing enhancement under the ACCA for being a felon in possession of a firearm with three qualifying prior convictions, including a Georgia burglary conviction. On appeal, Avery argued that the Georgia burglary statute is broader than the generic definition of burglary and therefore does not qualify as a prior conviction for the ACCA. In Georgia, one can burglarize multiple places, including “the dwelling house of another or any building, vehicle, railroad car, aircraft, watercraft, or other such structure designed for use as the dwelling of another, or … any other building, railroad car, aircraft, or any room or any part thereof.” Avery argues that this list of places expands beyond generic burglary. At issue is whether the various places constitute elements of separates crimes of burglary, or are examples of one overbroad burglary crime. The U.S. Court of Appeals for the 11th Circuit followed the former approach, and it determined that Avery’s burglary of a building and liquor storage room fell within a generic definition of burglary. However, the 11th Circuit acknowledged that other circuits have come out differently. Avery asks the justices to review the 11th Circuit’s decision.

These and other petitions of the week are below:

Carey v. Throwe
Issues: (1) Whether a qualified retired law enforcement officer who meets the statutory requirements to carry a weapon under the Law Enforcement Officer’s Safety Act has an enforceable right under 42 U.S.C. § 1983; and (2) whether social media posts “outing” a police officer’s misogynistic behavior and his making light of gun violence and gun control, raises an issue of public concern as a matter of law.

Idenix Pharmaceuticals LLC v. Gilead Sciences Inc.
Issues: (1) Whether, as the U.S. Court of Appeals for the Federal Circuit has held, a genus claim is not enabled “as a matter of law” if it encompasses a large number of compounds — or whether, as the Supreme Court has recognized, enablement is a context-specific jury question; and (2) whether, as the Federal Circuit has held, 35 U.S.C. § 112(a) contains a separate “possession” requirement — or whether, as the statute provides, Section 112(a) sets forth a single substantive requirement of “a written description of the invention” sufficient “to enable any person skilled in the art … to make and use the same.”

Guam v. United States
Issues: (1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

Avery v. United States
Issue: Whether a state burglary statute that disjunctively lists places that may be burgled under the statute is divisible for purposes of a sentence enhancement under the Armed Career Criminal Act, even though the statutory list is not exclusive and does not require the jury to agree that the defendant burgled any particular listed place.

Richardson v. Omaha School District
Issue: Whether, for attorneys’ fees actions under the Individuals with Disabilities Education Act, courts should borrow years-long state statutes of limitations because fees actions are analogous to independent lawsuits separate from the underlying merits of the IDEA administrative proceedings, or, in contrast, courts should borrow far shorter periods designed for judicial review of IDEA administrative merits decisions because fees actions are merely ancillary to the underlying educational dispute.

City of Miami Gardens, Florida v. Wells Fargo & Co.
Issue: Whether, by raising standing sua sponte at oral argument in an appeal concerning a partial summary-judgment decision focused solely on the statute of limitations and when discovery was limited to that purpose, the U.S. Court of Appeals for the 11th Circuit’s decision dismissing this case conflicts with the Supreme Court’s binding precedent in Alabama Legislative Black Caucus v. Alabama and violates due process in conflict with decisions of the Supreme Court and sister circuits.

Lee v. Ohio Education Association
Issues: (1) Whether 42 U.S.C. § 1983 provides a “good-faith defense” to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution — but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional — to keep that money or property when the owner sues for its return.

Huntress v. United States
Issues: (1) Whether the discretionary-function exception to the Federal Tort Claims Act’s waiver of sovereign immunity for United States employees’ negligent or wrongful conduct nullifies the law-enforcement proviso that clarifies the act’s provisions “shall apply to any claim” for “abuse of process[ ] or malicious prosecution” (as four circuits have now held), limits that proviso (as one circuit has held) or yields to it (as one circuit has held); and (2) whether the discretionary-function exemption applies when government officials act outside their jurisdiction.

Recommended Citation: Andrew Hamm, Petitions of the week: Deadlines for attorneys’ fees, the elements of burglary and more, SCOTUSblog (Oct. 23, 2020, 3:42 PM),