City of Arlington v. FCC

City of Arlington v. FCC

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Consolidated with:

Cable, Telecommunications, and Technology Committee v. FCC

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
11-1545	5th Cir.	Jan 16, 2013 Tr.Aud.	May 20, 2013	6-3	Scalia	OT 2012

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioners in these cases.

Holding: Courts must apply the Chevron framework to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority ( i.e., its jurisdiction).

Judgment: Affirmed, 6-3, in an opinion by Justice Scalia on May 20, 2013. Justice Breyer filed an opinion concurring in part and concurring in the judgment. Chief Justice Roberts filed a dissenting opinion in which Justice Kennedy and Justice Alito joined.

Opinion analysis – “Pandora’s box” stays closed (Miriam Seifter)
Argument recap: Unraveling the fear of unraveling Chevron (Miriam Seifter)
Argument preview: Finally resolving “jurisdictional” deference to agencies – maybe (Miriam Seifter)
Petition of the day (Ben Cheng)

Date	Proceedings and Orders (key to color coding)
Jun 27 2012	Petition for a writ of certiorari filed. (Response due July 30, 2012)
Jul 24 2012	Order extending time to file response to petition to and including August 29, 2012, for all respondents.
Jul 30 2012	Brief amici curiae of National Water Resources Association, et al. filed.
Aug 28 2012	Brief of respondents CTIA - The Wireless Associations, et al. in opposition filed. VIDED.
Aug 29 2012	Brief of respondents Federal Communications Commission, et al. in opposition filed. VIDED.
Sep 11 2012	Reply of petitioner City of Arlington, Texas, et al. filed.
Sep 12 2012	DISTRIBUTED for Conference of October 5, 2012.
Oct 5 2012	Petition GRANTED limited to Question 1 presented by the petition. The petition for a writ of certiorari in No. 11-1547 is granted. The cases are consolidated and a total of one hour is allotted for oral argument.
Oct 31 2012	SET FOR ARGUMENT ON Wednesday, January 16, 2013.
Oct 31 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents CTIA - The Wireless Association and Verizon Wireless. VIDED
Nov 6 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Intervenors, International Municipal Lawyers Association, et al.
Nov 8 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for all petitioners. VIDED
Nov 15 2012	Motion to dispense with printing the joint appendix filed by petitioners City of Arlington, Texas, et al. VIDED.
Nov 19 2012	Brief of petitioners City of Arlington, Texas, et al. filed.
Nov 19 2012	Brief of respondents International Municipal Lawyers Association, et al. in support of petitioners filed. VIDED.
Nov 20 2012	Record received from U.S.C.A. for 5th Circuit. (1box)
Nov 21 2012	Brief amici curiae of American Farm Bureau Federation, et al. filed. VIDED.
Nov 21 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Cable Telecommunications and Technology Committee of the New Orleans City Council. VIDED.
Nov 26 2012	Brief amicus curiae of Southern Company filed. VIDED. (Distributed)
Nov 26 2012	Brief amici curiae of National Water Resources Association, et al. filed. VIDED. (Distributed)
Nov 26 2012	Brief amici curiae of Cato Institute, et al. filed. VIDED. (Distributed)
Nov 26 2012	Brief amici curiae of National Governors Association, et al. filed. VIDED.(Distributed)
Nov 27 2012	CIRCULATED
Dec 3 2012	Motion to dispense with printing the joint appendix filed by petitioners GRANTED.
Dec 3 2012	Motion for divided argument filed by respondent Cellco Partnership d/b/a Verizon Wireless. VIDED.
Dec 12 2012	Brief of respondent Cellco Partnership d/b/a Verizon Wireless filed. VIDED. (Distributed)
Dec 19 2012	Brief of respondents Federal Communications Commission, et al. filed. VIDED.
Dec 19 2012	Brief amici curiae of AT&T Services Inc., et al filed. VIDED. (Distributed)
Dec 21 2012	Brief amici curiae of T-Mobile USA, Inc., et al. filed. VIDED. (Distributed)
Dec 26 2012	Motion for divided argument filed by petitioner Cable, Telecommunications, and Technology Committee of the New Orleans City Council. VIDED.
Dec 26 2012	Brief amicus curiae of PCIA - The Wireless Infrastructure Association filed. VIDED. (Distributed)
Jan 4 2013	Motion for divided argument filed by respondent, Cellco Patnership d/b/a Verizon Wireless DENIED. VIDED.
Jan 4 2013	Motion for divided argument filed by petitioner DENIED. VIDED.
Jan 8 2013	Reply of petitioners City of Arlington, Texas, et al. filed. VIDED. (Distributed)
Jan 9 2013	Reply of respondents International Municipal Lawyers Association, et al. in support of petitioners filed. VIDED. (Distributed)
Jan 10 2013	Motion for leave to file a reply brief on the merits filed by EMR Policy Institute. VIDED.
Jan 16 2013	Argued. For petitioners: Thomas C. Goldstein, Washington, D. C. For respondents: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C.
Jan 22 2013	Motion for leave to file a reply brief on the merits DENIED.
May 20 2013	Adjudged to be AFFIRMED. Scalia, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined.
Jun 21 2013	JUDGMENT ISSUED.
Jun 27 2013	Record returned to U.S.C.A. for 5th Circuit

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Relist Watch – John Elwood

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
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Statistical Snapshot

Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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13
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16
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