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Petitions of the week: Four petitions that test the limits on lawsuits against the government

This week we highlight cert petitions that ask the Supreme Court to consider cases and statutes about suing various government entities, ranging from two counties to a state governor to the United States itself. Three of the petitions involve women seeking redress from counties and the military for their role in creating conditions that allowed them to suffer sexual and physical assaults.

Broadly speaking, sovereign immunity protects states from suit. However, in 1908’s Ex parte Young, the Supreme Court allowed suits against state officials, in lieu of states themselves, for violations of federal law. Waterfront Commission of New York Harbor v. Murphy involves New Jersey and New York’s Waterfront Commission Compact. This congressionally approved interstate compact established a commission with licensing, regulatory and other powers to address corruption and racketeering in the Port of New York–New Jersey. After New Jersey passed legislation in 2018 to withdraw from the compact, the waterfront commission sued the New Jersey governor to prevent him from enforcing the law. The governor argued that sovereign immunity barred the suit. The district court ruled that Ex parte Young applied because Congress’ approval of the compact made it binding federal law. The U.S. Court of Appeals for the 3rd Circuit disagreed and barred the suit, seeing the compact as more akin to an agreement that New Jersey could — and did — renounce. The commission asks the justices to review the decision, with consequences for the Ex parte Young doctrine and interstate compacts more generally.

42 U.S.C. § 1983 allows individuals to sue state officials and local entities and actors for violations of constitutional rights. In Polk County, Wisconsin v. J.K.J., a correctional officer repeatedly sexually assaulted two female inmates in the Polk County Jail (for which the officer is now serving 30 years in prison). The inmates sued the county on the ground that it violated the Eighth Amendment’s prohibition on cruel and unusual punishment. In 1978’s Monell v. Department of Social Services, the Supreme Court ruled that municipalities could be liable under Section 1983 only for their own illegal acts, which could include actions taken pursuant to a municipality’s official policy. Polk County prohibits any sexual contact between officers and inmates. The en banc U.S. Court of Appeals for the 7th Circuit nevertheless ruled that the county could be held liable for its failure to better monitor the jail because it “was as obvious as obvious could be” that “male guards would sexually assault female inmates,” even if instructed not to do so. The county asks the justices to review and reverse this decision.

In another Section 1983 case, Robinson v. Webster County, Mississippi, Felicia Robinson seeks to hold a county liable for creating a situation for a private actor to harm her. On an unsupervised weekend furlough from jail, Robinson’s husband beat and then burned her by pouring a sulfuric acid-based drain cleaner over her body. Robinson had previously reported to the sheriff that the husband acted violently toward her on such furloughs. The U.S. Court of Appeals for the 5th Circuit does not allow Section 1983 suits when the government actor did not cause the harm, but only created the danger of violence by others. Arguing that the courts of appeals are divided on this state-created danger doctrine, Robinson asks the justices to reverse the 5th Circuit and allow her case to continue.

Finally, Doe v. United States involves servicemember suits against the military. In 1950’s Feres v. United States, the Supreme Court ruled that the Federal Tort Claims Act, in which Congress waived the federal government’s sovereign immunity from tort liability, nonetheless did not allow servicemembers to bring claims for injuries “incident to service.” Jane Doe, a West Point cadet, was subjected to pervasive sexual harassment on campus and was raped by another cadet. After withdrawing from the academy, she brought suit, but her claims were dismissed under Feres. In her petition, Doe asks the justices to overrule Feres as inconsistent with the text of the FTCA, or, alternatively, to limit Feres to not bar claims such as hers.

These and other petitions of the week are below:

Polk County, Wisconsin v. J.K.J.
Issue: Whether the “single-incident” theory of liability under Monell v. Department of Social Services may be used to hold a municipality liable under 42 U.S.C. § 1983 on the theory that its failure to do more to prevent an employee from committing crimes that he had been trained and knew were expressly forbidden by municipal policy (and the law) was tantamount to embracing a policy of condoning constitutional violations.

Doe v. United States
Issues: (1) Whether Feres v. United States, which held that the Federal Tort Claims Act broadly precludes claims for injuries “incident to service,” was wrongly decided and should be overruled; and (2) whether, alternatively, Feres should be limited so as not to bar tort claims brought by servicemembers injured by violations of military regulations, during recreational activities or while attending a service academy.

Robinson v. Webster County, Mississippi
Issue: Whether a person injured by a private actor can state a claim under 42 U.S.C. § 1983 against a state or local government actor who created the danger of that injury.

Han v. United States
Issue: Whether a court may consider factors other than the parties’ intent in determining whether a transfer of funds constitutes a non-taxable loan under the Internal Revenue Code.

Piersing v. Domino’s Pizza Franchising LLC
Issue: Whether, in the context of a form employment agreement, providing that a particular set of rules will govern arbitration proceedings is, without more, “clear and unmistakable evidence” of the parties’ intent to have the arbitrator decide questions of arbitrability.

Calvert v. Texas
Issues: (1) Whether the Constitution prevents a state from allowing a defendant to represent himself in a capital case when the defendant is mentally competent to waive counsel but is not mentally competent to conduct trial proceedings in his capital trial; (2) whether the Eighth Amendment prohibits the state of Texas from sentencing petitioner James Calvert to death on a finding of future dangerousness based in substantial part on graphic testimony and evidence about an attack on a prison official committed by another inmate in another prison at another time, having no connection to Calvert; and (3) whether the constitutional violation resulting from the trial court’s direction to administer a 50,000- volt electric shock to Calvert during his trial to “enforce decorum” because Calvert failed to stand when responding to a question from the court constitutes structural error.

Reyes-Romero v. United States
Issue: Whether, when a district court considers awarding attorney’s fees and costs to a prevailing criminal defendant, the Hyde Amendment inquiry into whether “the position of the United States was vexatious, frivolous, or in bad faith” encompass actions of non-prosecutor government employees underlying the criminal case.

Rickmon v. United States
Issue: Whether the sound of gunshots creates an emergency so that the “individualized suspicion” required by Terry v. Ohio attaches to anyone near the shots.

PHI Air Medical, LLC v. Texas Mutual Insurance Co.
Issues: (1) Whether the Airline Deregulation Act of 1978 preempts a state workers’ compensation system that limits the prices an air-ambulance company can charge and collect for its air-transport services; and (2) whether the McCarran-Ferguson Act exempts such a system from ADA preemption.

Waterfront Commission of New York Harbor v. Murphy
Issue: Whether, under the doctrine of Ex parte Young, an interstate compact agency may sue a state official to prevent that official from implementing a state law that would be preempted under a congressionally approved interstate compact.

Recommended Citation: Andrew Hamm, Petitions of the week: Four petitions that test the limits on lawsuits against the government, SCOTUSblog (Jan. 8, 2021, 3:04 PM),