Breaking News

Twelve cases added to Supreme Court calendar

Supreme Court steps

The Supreme Court on Friday issued orders from its so-called “long conference” – the justices’ private conference in the last week of September, at which they met for the first time since the end of June to add new cases to their docket. This year the long conference yielded 12 new grants, on topics ranging from controversial laws seeking to regulate social media companies (covered in a separate story) to property rights and bankruptcy fees.

The cases granted on Friday will likely be argued in January or February 2024, with a decision to follow by summer.

Three decades ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the Supreme Court outlined a two-part test for courts to use to determine whether state or local governments violate the Constitution’s ban on uncompensated takings by conditioning the grant of a development permit on the developer’s agreement to set aside land, pay money, or provide materials or services. First, there must be an “essential nexus” between the condition and the government’s interest in restricting development; second, there must be a “rough proportionality” between the condition and the restriction. On Friday, the justices agreed to decide whether the Nollan/Dolan test applies to a California man’s challenge to a development fee, or whether – as a California appeals court ruled – the fee is instead immune from such review because it was authorized by legislation.

The question comes to the court in the case of George Sheetz, who in 2016 applied for a permit to build a 1,854-square-foot manufactured home on land that he owns in Placerville, California. To receive the permit, Sheetz was required to pay El Dorado County $23,420 in traffic-mitigation fees.

Sheetz paid the fees but went to court, where he argued (among other things) that the fee is unconstitutional because the county did not make an individual determination that there was an “essential nexus” and “rough proportionality” between his house’s effect on traffic and the need to improve the surrounding roads.

The trial court rejected that argument, and the California Court of Appeals agreed. The California Supreme Court, it explained, has held that the Nollan/Dolan test does not apply to development fees that are enacted and prescribed through legislation and apply to everyone.

After the California Supreme Court declined to weigh in, Sheetz came to the U.S. Supreme Court. Calling the question “perhaps the most vexing and disputed ‘takings’ question in land-use law,” he asked the justices to take up his case and decide whether the Nollan/Dolan test applies to development fees like the one enacted by El Dorado County. He contended that other state and federal courts have held that the test does apply to such fees; moreover, he added, there is “strong tension” between the California court’s decision in his case and the Supreme Court’s more recent decisions.

In Federal Bureau of Investigation v. Fikre, the justices agreed to decide whether an Oregon man can maintain his lawsuit alleging that he was wrongly placed on the “No Fly List” even after the government has taken him off the list and promised not to put him back on it “based on the currently available information.”

The doctrine at the center of the case is known as the voluntary cessation doctrine – the principle that plaintiffs can continue to litigate their case unless the defendant shows that it cannot simply resume the conduct that prompted the lawsuit after the case is dismissed.

The plaintiff in the case, Yonas Fikre, is a U.S. citizen of Eritrean descent who was questioned by FBI agents while traveling in Africa in 2010 and told that he had been placed on the No Fly List. As a result, the agents told him, he would be unable to return to the United States – unless he agreed to become an informant for the FBI.

While seeking asylum in Sweden, Fikre also filed a lawsuit against the FBI for his placement on the No Fly List. But while the lawsuit was pending, the FBI removed Fikre from the list and asked the court to dismiss the case on the ground that it was moot – that is, no longer a live case or controversy.

A federal appeals court ruled that Fikre’s case was not moot. Although an FBI official had submitted a declaration indicating that Fikre “will not be placed on the No Fly List in the future based on the currently available information,” the court of appeals explained that the FBI had not conceded that Fikre’s original placement on the list was wrong or identified any changes to the policies that resulted in his placement on the list. The FBI came to the Supreme Court in June, asking the justices to review that ruling, which they agreed on Friday to do.  

In 2022, in Siegel v. Fitzgerald, the Supreme Court ruled that a 2017 law that imposes higher fees on bankruptcy filers in 48 states than in North Carolina and Alabama violated the requirement, imposed by the Constitution, that Congress provide uniform bankruptcy laws throughout the United States. In Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC, the justices agreed to decide what should happen as a result of that decision: Should the fees simply be the same in all 50 states going forward, or should bankruptcy filers who paid higher fees in the past receive a refund?

In Corner Post v. Board of Governors of the Federal Reserve System, the justices agreed to decide when the six-year statute of limitations to challenge an action by a federal agency begins to run: Is it when the agency issues the rule, even if the plaintiff has not yet suffered any injury from the action; or is it instead when the plaintiff is actually injured? The question comes to the court in a case brought by a North Dakota truck stop that wants to contest a 2011 rule issued by the Federal Reserve that caps debit-card processing fees. The truck stop, which argues that the Fed should lower the cap, contends that although the rule was issued in 2011, it did not open for business and process its first debit-card transaction – and therefore the statute of limitations did not begin to run – until 2018. A federal appeals court rejected that argument, prompting the truck stop to come to the Supreme Court, which agreed on Friday to weigh in.


The justices also granted review on Friday in:

  • Smith v. Arizona – Whether the Sixth Amendment, which guarantees a defendant the right to confront the witnesses against him, allows prosecutors to use expert testimony about evidence – here, a report prepared by a different crime lab analyst who no longer worked at the lab and did not testify at trial – that was not itself admitted into evidence, on the grounds that the testifying expert was simply offering his own opinion and that the defendant could have subpoenaed the original analyst.
  • Devellier v. Texas – Whether property owners can seek compensation under the Constitution for “taking” of their property by the state, if the state has not specifically given them a right to sue.
  • Warner Chappell Music v. Neal – Whether, under the discovery accrual rule applied by the courts of appeals and the Copyright Act’s statute of limitations for civil actions, copyright plaintiffs can recover damages for acts that allegedly occurred more than three years before they filed their lawsuit.
  • Macquarie Infrastructure v. Moab Partners – Whether the failure to make a disclosure required by Item 303 of Securities and Exchange Commission Regulation S-K, which requires a company to disclose known trends or uncertainties that are likely to have a material impact on its financial position, can support a private claim under Section 10(b) of the Securities and Exchange Act of 1934, which prohibits deception in connection with the purchase or sale of securities, even if there has not been an otherwise-misleading statement.
  • McIntosh v. United States – Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed – here, when the government did not submit a preliminary forfeiture order until more than two-and-a-half years after the defendant was sentenced.
  • Bissonnette v. LePage Bakeries Park Street – Whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in foreign or interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, such as (in this case) commercial truck drivers for the company that makes Wonder Bread, or whether the worker’s employer must also be in the “transportation industry.”

Additional orders from the Sept. 26 conference are expected on Monday, Oct. 2, at 9:30 a.m.

This article was originally published at Howe on the Court

Recommended Citation: Amy Howe, Twelve cases added to Supreme Court calendar, SCOTUSblog (Sep. 29, 2023, 11:59 AM),