The Supreme Court's December Docket

In December, the Supreme Court will hear oral argument in 11 cases. Two of the cases are considered major cases. In order, the following is a brief synopsis of the cases as they will be heard by the Court. They touch on a variety of issues.

Michigan vs. Bay Mills Indian Community: This case asks whether the federal courts can be used to enjoin activity deemed illegal under the Indian Gaming Regulatory Act that takes place off of recognized Indian lands. It also asks whether Indian tribe sovereignty bars a state from suing the tribe in federal court. In this case, the Indian tribe opened and operated a casino that was not on Indian lands and thus violated Michigan law. The tribe claims they are entitled to immunity under federal law for gaming activities and that Michigan’s suit and injunction have no merit.

BG Group vs. Argentina: This seems like a rather simple case and one the Court is taking on with increasing frequency of late. It asks whether a court or an arbitrator should decide on whether a precondition for arbitration has been met before arbitration can proceed. The Court recently has shown a preference for arbitration over court actions and one should expect a decision to that effect. However, what makes the case interesting is that BG Group is a British company that invested in a natural gas project in Argentina. One might wonder why the US courts became involved. The entire investment was indexed to the US dollar. After the collapse of the Argentine economy, that country negated many of these investment contracts indexed to the US dollar and instead renegotiated the terms of contracts. Under international law, the dispute should have been resolved through an qualified tribunal, or arbitration panel. Because American banks, hedge funds and other financial institutions were intermediaries in these complex financial transactions, BG decided to sue for enforcement of the contract through the US court system since American investors were likewise harmed. In essence, they are the umbrella organization over these American concerns. However, the DC Circuit Court ruled in favor of Argentina stating that BG Group failed to submit their original claim of harm to a tribunal (or arbitrator) for resolution. The DC Court reasoned that international norms for the enforcement of treaties rather than American law prevailed.

Northwest Airlines vs. Ginsberg: A frequent flyer program that was cancelled by the airline for alleged abuse is the focus of this case. Ginsberg sued under Minnesota law. Not satisfied, he pursued his case in which the Circuit Court reversed the lower court arguing that airlines are entitled to immunity under the Aviation Deregulation Act. Essentially, this boils down to a differing of opinions between Circuit Courts of Appeal. According to the frequent flyer program in existence at the time, Northwest cancelled his membership because of harassing behavior towards airline employees. Ginsberg, in turn, argues that the definition of “harassing behavior” is not clearly defined in the agreement. The reasoning behind the original dismissal from the program is now a moot point because this case relies on the preemptive power of federal laws regarding the airline industry versus state consumer protection laws.

Lexmark International vs. Static Control: Speaking of splits between Circuits, this case asks the Court to intervene and establish a standard between three competing standards. The case involves one of establishing the ability for standing in a false advertisement claim.

Mt. Holly vs. Mt. Holly Gardens Citizens in Action: This case came from New Jersey and asked whether disparate impact claims against minorities were valid under the Fair Housing Act. However, in the interim, the case was resolved to the satisfaction of all parties and the Supreme Court has since dismissed the case for lack of standing.

United States vs. Apel: This has the potential to be a major free speech case. Apel was removed from a military base and ordered not to reenter by his commanding officer. Vandenburg Air Base in California is a sensitive military installation. Two major state highways pass through the base which the military has granted easements to the state. Apel was twice removed from the base for illegal protesting, but returned on three occasions to protest in a designated area outside the base’s main entrance on one of these state highways. The military contends that since they granted the easement, they have the right to enforce the order against Apel. Further detail will be provided on this case after oral argument.

Air Wisconsin vs. Hoeper: In another case involving a public airline, this one asks whether that airline can summarily be denied immunity from a lawsuit under existing federal law without first determining whether their disclosure was materially false. This presents an interesting conundrum: how does one get to that point if there exists this federal law granting immunity to airline carriers in the first place?

EPA vs. Homer City Generation: One of several greenhouse gas cases, this one asks whether the federal court lacked jurisdiction to hear the case in the first place and, if so, did they exceed their authority and misinterpret an earlier Supreme Court decision- Massachusetts vs. EPA. Since this one involves the powers of the EPA, this writer will be dealing with it in a separate entry.

Mayorkas vs. de Osorio: A case involving the immigration status of children and the definition of “child” for purposes of changing immigration status for “secondary beneficiaries” (that is, family members) of legal immigrants.

Lozano vs. Alvarez: The Hague Convention for International Adoption and Abduction calls for certain guidelines to be satisfied and enforced before a parent can bring suit in a court in order to be reunited with a child taken overseas by the other parent. Generally, suits have to be filed within one year. However, if a parent does not know the whereabouts of that child and, thus, where to seek relief, more than a year can pass. This case asks when that one-year time period begins- when the child “goes missing,” or when the parent finds out where the child is.

White vs. Woodall: This is a habeas case that asks whether there was the proper deference to the lower state court finding and rulings by the Circuit Court on appeal. It asks to clear up a difference of opinions in this area between several Circuits.