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Petitions of the week

Transparency, resentencing and preemption questions

This week we highlight petitions that ask the Supreme Court to consider, among other things, whether the First Amendment gives members of the public a right to obtain secret judicial decisions authorizing intelligence surveillance, the factors a judge must consider in resentencing under the First Step Act, and how federal employment and bankruptcy laws interact with and possibly preempt different state laws.

American Civil Liberties Union v. United States tests whether the First Amendment requires transparency of the Foreign Intelligence Surveillance Court. Congress first established the FISC in 1978 to “hear applications for and grant orders approving electronic surveillance anywhere within the United States.” FISC proceedings are not open to the public, however, and the court rarely publishes its decisions. In October 2016, the ACLU filed a motion seeking access to the court’s opinions and orders from Sept. 11, 2001 through the passage of the USA Freedom Act in 2015 (in which Congress required some declassification of opinions but which did not apply to prior opinions). The FISC dismissed the motion, as did the Foreign Intelligence Surveillance Court of Review, also created in 1978. Arguing that “transparency of the judicial process is central to the rule of law,” the ACLU asks the justices for review.

Last week, the justices heard oral argument in Terry v. United States, a case of statutory interpretation over the 2018 First Step Act, which Congress passed in part to make retroactive a 2010 law that reduced the sentencing disparity between crack cocaine and power cocaine. Houston v. United States presents the justices again with the First Step Act. In a resentencing motion under the First Step Act, Eddie Houston presented evidence of his extraordinary rehabilitation record, age, realistic release plan, and history of childhood abuse. These factors are among those that 18 U.S.C. § 3553(a) requires that a court consider in imposing an initial sentence. However, the district court, affirmed by the U.S. Court of Appeals for the 9th Circuit, denied Houston’s motion without considering any of the Section 3553(a) factors on the ground that the First Step Act does not specifically require that courts consider them in resentencing. Arguing that the federal courts of appeals are split on the question, which could apply to thousands of defendants eligible for First Step Act relief, Houston asks for the justices’ review.

Two petitions ask the justices to decide whether a federal law preempts certain state laws. In Cal Cartage Transportation Express, LLC v. California, a state court in California ruled that the Federal Aviation Administration Authorization Act of 1994, which expressly preempts any state law “related to a price, route, or service of any motor carrier … with respect to the transportation of property,” did not preempt California’s “ABC test.” The ABC test generally declares that workers are employees, not independent contractors, unless they perform a different line of business than the hiring company. As a result, truck drivers, though normally independent contractors, would be employees in California and – one might think – in states with similar laws, including Massachusetts. However, the U.S. Court of Appeals for the 1st Circuit has ruled that the Massachusetts ABC test is preempted. Arguing that Congress passed the FAAAA to avoid a patchwork of state laws, a group of motor carriers that service Los Angeles and Long Beach asks for the Supreme Court to weigh in.

In Pilevsky v. Sutton 58 Associates LLC, the New York Court of Appeals allowed a real estate lender to bring state-law tort claims alleging that investors had interfered with its loan agreements with two borrowers by facilitating their wrongful bankruptcies. Arguing that the decision conflicts with other federal and state decisions holding that the federal Bankruptcy Code preempts such state-law claims, the investors seek review.

These and other petitions of the week are below:

Cal Cartage Transportation Express, LLC v. California
Issue: Whether the Federal Aviation Administration Authorization Act, which expressly preempts state laws “related to a price, route, or service of any motor carrier,” preempts state worker-classification laws that have an effect on a motor carrier’s prices and services by discouraging the use of independent contractors.

Boechler, P.C. v. Commissioner of Internal Revenue
Issue: Whether the 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the commissioner of internal revenue in 26 U.S.C. § 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

Houston v. United States
Issue: Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.

Pilevsky v. Sutton 58 Associates LLC
Issue: Whether the federal Bankruptcy Code preempts state-law tort claims that are premised on an alleged misuse of bankruptcy proceedings or that seek to impose liability based on the very fact of bankruptcy.

Empire Health Foundation v. Becerra
Issues: (1) Whether agencies must accurately include key facts and data in notices of proposed rulemaking in order to satisfy the requirements of fair notice and the opportunity for the public to meaningfully comment; and (2) whether, whenever a proposal presents a binary choice of policies, the adoption of one of those policies will always be a “logical outgrowth” of the proposal that can excuse any failure to comply with notice-and-comment obligations.

American Civil Liberties Union v. United States
Issues: (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion; and (2) whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.

Recommended Citation: Andrew Hamm, Transparency, resentencing and preemption questions, SCOTUSblog (May. 14, 2021, 1:30 PM),