Concluding a discussion of the Supreme Court's term: Not sooo Trumpy issues

Two fascinating cases this year involved interpretations of the Americans with Disabilities Act. In both cases the Court leaves the statutory scheme roughly as the Court found it -- which is presumably the goal in addressing such cases, at least when the statute's legitimacy isn't itself the point.

In another two cases this year the Court interpreted gun maker liability. They denied such liability in the one case and refused an invitation to deny it in the other.  

I'll also have something to say about a quick journey from terrorism to civil procedure, and about the scope of environmental review, before offering a concluding thought.

Interpreting the disabilities act 

On June 20th the Court handed down its decision in Stanley v. City of Sanford, allowing what one might naively have considered "discrimination" against a disabled retiree firefighter  in the the rejuggling of a pension plan. `  

The "Sanford" involved is in Florida, a short drive north from tourist haven Orlando. When Karyn Stanley worked for its fire department, it offered health insurance benefits to retirees up to age 65 if they had retired with either 25 years of service or as a consequences of disability. The SCOTUS decision is empty of any account of how she became disabled, but she did at some point and retired. 

The City thereafter changed its policy, reducing insurance benefits for disabled retirees. I can see the point, when I read the language of the statute at stake, which focuses on requiring employers to provide reasonable accommodation.  Continuing to cover health insurance is not something that comes to mind as an "accommodation". Still ... it is a lousy way to treat a retiree. 

The court was split three ways on this. The vote on the judgment was 7 to 2 with only Sotomayor and Jackson dissenting. [And my impression is that in 7-2 decisions that go the 'conservative' way it seems the most likely Justice to depart from the troika of 'liberals' is, as here, Kagan.]  But on certain aspects of the reasoning the split was 2-5-2, with Thomas and Barrett going their own way in a concurrence Thomas authored.  [Without Alito's back-up this time? Hmmm.] 

Gorsuch delivered the opinion of the court. In Part III -- the part of his decision that lost Thomas and Barrett -- he says that remedy might  "be available to others who happen to be retired at the time they sue, if they can plead and prove they were both disabled and 'qualified' when their employer adopted a discriminatory retirement-benefits policy."  Thomas says this question was not properly before SCOTUS and should not have been addressed.

The other ADA case is  AJT v. Osseo Area Schools. This was a unanimous decision in which the Court found that students with disabilities need not face a higher legal standard when seeking remedies for discrimination in schools than that faced in other discrimination-law contexts. 

The case arose in Osseo, Minnesota (near the Twin Cities on the eastern side of the state). The plaintiff, Ava, had a rare form of epilepsy, making morning instruction very difficult, and her parents requested evening classes for her.  

The school district declined to give Ava this reasonable accommodation and abruptly amended her individualized education plan to only allow for three hours of instruction, which was less than half of what her nondisabled peers received.

Minnestoa is within the Eighth Circuit, which since 1982 has applied a heightened standard to disability rights claims in the educational context in a belief apparently that educators need wide discretion in their decision making. So the plaintiffs have had to show that the plaintiffs in a lawsuit of this sort have to show bad faith or gross misjudgment, rather than mere indifference, which is actionable in other disability contexts.  

At any rate, SCOTUS in a decision by Chief Justice Roberts has now struck down the 8th circuit's distinctive doctrine, and the case has been remanded for further proceedings, during which presumably the broader standard will be applied.  

Liability for gun manufacturers

President Trump doesn't seem to have any settled view on gun rights, the second amendment, etc.  He once said, and seemed to mean, "seize the guns first, due process later."  But though his instincts may pull him that way the "base" pulls him in the other. At any rate, the gun related cases before the court these days raise issues of the sort that would surely be raised during a Harris, or during a new Bush, presidency. Not especially Trumpy.

There is for example the transparently named Smith & Wesson v. Mexico.  The Justices rejected Mexico's lawsuit against gun makers, including the famous one referenced in so many westerns.

The Republic of Mexico had alleged that the companies aided and abetted unlawful gun sales that routed firearms to Mexican drug cartels. In terms of statutory mandate, they relied on the Protection of Lawful Commerce in Arms Act (PLCAA), which bars certain lawsuits against manufacturers and sellers of firearms. As relevant, although PLCAA provides that a “qualified civil liability action . . . may not be brought in any Federal or State court,” 15 U. S. C. §7902(a) and defines that term to include a “civil action or proceeding” against a firearms manufacturer or seller stemming from “the criminal or unlawful misuse” of a firearm by “a third party," it also contains an exception, for when a manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing” of firearms, and the “violation was a proximate cause of the harm for which relief is sought.” 

And that is what Mexico alleges happened here. But the court's opinion observes that the plaintiff nation "does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted." Nor does it offer "plausible allegations of pervasive, systemic, and culpable assistance."  One or the other of those would have been necessary for the case to survive. Justice Kagan delivered the opinion for a unanimous court.  There were two concurrences, offering caveats to this reasoning. The caveats come from two rather different directions, as you might imagine when I tell you that the concurrences come from Clarence Thomas on the one hand and Ketanji Brown Jackson on the other. I'll quote just a bit from each.

Thomas: "In future cases, courts should more fully examine the meaning of 'violation' under the PLCAA. It seems to me that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the 'violation.'"

Jackson: "Devoid of nonconclusory allegations about particular statutory violations, Mexico’s lawsuit seeks to turn the courts into common-law regulators. But Congress passed PLCAA to preserve the primacy of the political branches—both state and federal—in deciding which duties to impose on the firearms industry."

Thomas is begging for further litigation in the service of firearms manufacturers.  Jackson is begging for further legislative action by legislative bodies north of the Rio Grande. 

The other firearms case was Bondi v. VanDerStock. The value of the licensing, recordkeeping, and serialization requirements of the Gun Control Act of 1968, employed by  thousands of law-enforcement agencies who now routinely rely on the resulting tracing, system, was threatened by a "parts kit" loophole.  People were buying unregistered gun parts and putting them together at home -- voila! an untraceable ghost gun!  

The ATF created a rule according to which the frame or "receiver" of a gun -- which is to the whole gun what the engine block of a car is to the whole engine -- was to be considered as a gun itself, for purposes of licensing, record keeping and serialization. 

The Supreme Court upheld this law against challenge on "excess of authority" ground.  That is, the plaintiffs in the court below, the respondents at the SCOTUS level, complained that the ATF had acted in excess of its statutory mandate.  The ATF's action though was upheld in a 7 to 2 decision, Gorsuch writing, with only Thomas and Alito dissenting. Here, too, Justice Jackson filed a concurrence and from it I will provide a quote, if only because she seems to be becoming a distinctive jurisprudential voice.  

Jackson: "Proper excess-of-authority review must focus on actual statutory boundaries, not on whether the agency’s discretionary choices overlap precisely with what we, as unelected judges, would have done if we were standing in the agency’s shoes. And where, as here, the statute’s boundaries do not foreclose the agency’s action, the excess-of-authority claim should meet its end. I concur because I read the Court’s opinion to be consistent with this view." 

Two final difficult-to-classify cases worthy of mention 

In early June the Court decided Blom Bank Sal v. Honickman. 

It began as a case about terrorism, and the underlying claim has at least some similarity to the Smith & Wesson case discussed above.  Plaintiffs (Honickman and others) sued

 Blom Bank Sal, an international bank, alleging that it had aided and abetted the 9/11/2001 terrorists. 

But in 2020 the district court dismissed the complaint, saying that it did not allege what it would have needed to allege regarding the bank's alleged awareness of the terrorist activities it was helping finance. Critically: it dismissed WITH PREJUDICE, that is, without leave to amend.  The second circuit later affirmed this dismissal, although the second circuit's reasoning with respect to how the defects in the complaint might have been cured, differed somewhat from the district court's.  

So the plaintiffs went back to the district court and said, in effect" "now we want to cure the defects in our complaint.  You said you were dismissing with prejudice, but the prejudice can no longer apply because the appellate court has corrected you on what a cure would be."

The district court said.  No -- this case is over. Bye.

The plaintiffs went back to the second circuit, which this time took their side. The second circuit said, "yes, the plaintiffs should get another bite at this apple." 

Blom Bank appealed.  This presented a civil procedure course style tangle of issues.

But, bottom lining it -- this case IS over.  SCOTUS has sided with the district court, reversing the second circuit. Blom Bank, like Smith & Wesson, is off the hook.

The final case for this review concerns pollution. Seven County Infrastructure Coalition v. Eagle County Colorado.  

The SCIC of the case title is a group of seven Utah counties that want to build an 88-mile railroad line to connect the Uinta Basin in the northeastern part of the state with the national freight rail network, so the crude oil coming from Uinta can get to market more effectively.  

And this again is a case on which SCOTUS ruled unanimously among the eight Justices participating (Gorsuch did not participate -- it seems likely that he recused himself because of his close ties with Philip Anschutz, a billionaire with investments in the energy sector, and who was involved in the submission of a "friend of the court" brief in this matter.) 

The court, through an opinion by Justice Thomas, found that courts have a relatively narrow role in reviewing decisions by the US Surface Transportation Board under the landmark 1970 environmental protection act.  

Pipelines seem to have been ruled out because the particular crude available from this basin would solidify at ambient temperatures -- it has to be kept warm in insulated tanker cars on a train.

Legally the peculiarity is that this case goes in the opposite direction from Loper Bright, just a year ago. That case overturned an older rule in which courts were expected to show deference to the administrative agencies when the latter are interpreting ambiguous statutes.    agencies’ interpretations of ambiguous laws. So last year the court said "no we don't have to defer," but now the Court is saying "yes, we've better confer to what the Surface Transportation Board said." 

One could almost suspect that the desire for the right drill-baby-drill result was the only real distinction between Loper Bright and Seven County.  The agencies get deference when they found the result the Court wanted, no deference when they don't.  

I will conclude with the immortal words of Lily Tomlin.  "I try to be cynical but I can't keep up."