Breaking News
Petitions of the week

Blocked beachgoers and bankruptcy bills

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether tribal immunity bars beachgoers from asserting a right of way to public beaches over a Native American tribe’s private property and whether the Bankruptcy Judgeship Act’s fee schedule violates the Constitution.

In Upper Skagit Indian Tribe v. Lundgren, the justices grappled with whether the “immovable-property exception” applies to tribal sovereign immunity. Under this exception, governments that own property in other jurisdictions are treated like private individuals, not as sovereigns, in any land disputes. After a majority decided to send that case back to the Washington Supreme Court on procedural grounds, a new petition in a different case now asks the justices to take the question up again. Jason Self launches kayaks on public beaches near Trinidad Harbor in California for his kayaking business. Self, as well as beachgoers, must cross private property to reach the beach, and a prior owner of the property dedicated a portion for that access. After the Cher-Ae Heights Indian Community of the Trinidad Rancheria purchased the property, Self brought a quiet-title action seeking recognition of the public easement across the property. The trial court and the California Court of Appeal agreed with the tribe that tribal sovereign immunity barred the suit. Self maintains that the immovable-property exception applies because the land is not part of a reservation or placed in trust (which would allow the tribe to veto any right-of-way over the land). The case is Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria.

The Constitution’s bankruptcy clause gives Congress the power to “establish … uniform Laws on the subject of Bankruptcies throughout the United States.” However, two distinct programs govern U.S. bankruptcy law, with most of the country under the U.S. Trustee program and six judicial districts in North Carolina and Alabama under the Bankruptcy Administrator program. The programs operated similarly until the Bankruptcy Judgeship Act of 2017 increased the fees in the U.S. Trustee program nine months before that of the Bankruptcy Administrator program and made the new fees apply to already pending cases only for the U.S. Trustee program. Siegel v. Fitzgerald emerges from the 2008 Chapter 11 bankruptcy of Circuit City Stores, Inc., under the U.S. Trustee program. Because the case was still pending in 2017, the trustee of the Circuit City liquidating trust claims it had to pay over $500,000 more in fees than would have been required under the Bankruptcy Administrator program. Citing a circuit split in which the U.S. Courts of Appeals for the 4th and 5th Circuits upheld the fees and the U.S. Court of Appeals for the 2nd Circuit rejected them as non-uniform, the trustee asks for the justices’ review.

These and other petitions of the week are below:

United States v. Washington
Issue: Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. § 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”

Impax Laboratories, Inc. v. Federal Trade Commission
Issues: (1) Whether the presence of a “reverse payment” that exceeds a patentee’s saved litigation costs and the value of any services provided by a patent challenger suffices to render a patent settlement unlawful, despite the Supreme Court’s holding to the contrary in Federal Trade Commission v. Actavis, Inc.; and (2) whether courts reviewing antitrust challenges to patent settlements can disregard evidence of the strength of the patents at issue, as the U.S. Court of Appeals for the 5th Circuit held here, or instead whether they must consider what “the patent’s strength would otherwise permit,” as the U.S. Court of Appeals for the 3rd Circuit held in King Drug Co. of Florence v. Smithkline Beecham Corp.

Arellano v. McDonough
Issues: (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

Siegel v. Fitzgerald
Issue: Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution’s bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not in those under the Bankruptcy Administrator program.

Sackett v. Environmental Protection Agency
Issue: Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.

Jobe v. National Transportation Safety Board
Issues: (1) Whether Exemption 5 of the Freedom of Information Act — which provides that federal agencies need not release privileged “inter-agency or intra-agency memorandums or letters” — includes an unwritten “consultant corollary,” under which documents prepared by private, outside consultants are deemed “intra-agency memorandums or letters”; and (2) whether any “consultant corollary” in FOIA Exemption 5 could ever render “intra-agency” the communications between an agency and (1) employees of a private, regulated company with an economic interest in the agency’s actions; or (2) the representative of a foreign government.

Brookhart v. Smith
Issue: Whether the U.S. Court of Appeals for the 7th Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to the respondent, Kenneth Smith, based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.

Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria
Issue: Whether the immovable-property exception applies to tribal sovereign immunity.

Recommended Citation: Andrew Hamm, Blocked beachgoers and bankruptcy bills, SCOTUSblog (Oct. 15, 2021, 12:43 PM),