Petitions of the week
By Andrew Hamm
on May 14, 2021
at 1:30 p.m.
This week we highlight petitions asking the Supreme Court, among other things, to consider whether the first amendment gives members of the public the right to make secret court decisions authorizing surveillance of intelligence agencies. These are the factors a judge must consider when re-convicting under the First Step Act, and how federal labor and bankruptcy laws interact with, and potentially prevent, various state laws.
The American Civil Liberties Union v. United States is considering whether the first amendment requires transparency from the Foreign Intelligence Surveillance Court. Congress first established the FISC in 1978 to “hear requests for electronic surveillance approval in the United States and place orders”. However, FISC proceedings are not public and the court rarely publishes its decisions. In October 2016, the ACLU filed a petition for access to the court’s opinions and orders as of September 11, 2001 through the passage of the USA Freedom Act in 2015 (in which Congress required some clearance of opinions, but not for earlier statements applied). The FISC denied the application, as did the Foreign Intelligence Surveillance Court of Review, also established in 1978. On the grounds that “transparency of the judicial process is central to the rule of law,” the ACLU asked the judges to review.
Last week the judges heard a hearing in Terry v. The United States, a case of legal interpretation of the First Step Act of 2018 that Congress passed in part to retrospectively pass a 2010 law that would reduce the differences in judgment between crack cocaine and Power cocaine decreased. Houston v USA again presents the First Step Act to the judges. In a motion for reassessment under the First Step Act, Eddie Houston presented evidence of his exceptional rehabilitation record, age, realistic discharge schedule, and history of child abuse. These factors are among those who do 18 USC § 3553 (a) requires a court to consider when imposing an initial penalty. However, the District Court, upheld by the U.S. Court of Appeals for the 9th Circuit, denied Houston’s motion without considering any of the factors in Section 3553 (a) because the first step law does not specifically require courts take them into account when re-convicting. Houston argues that the federal appeals courts are split on this issue, which could apply to thousands of defendants eligible for First Step Act relief, and is asking the judges to review.
In two petitions, the judges are asked to decide whether a federal law provides for certain state laws. In the Cal Cartage Transportation Express, LLC v. California case, a state court in California ruled that the Federal Aviation Administration Authorization Act of 1994 expressly allowed any state law “relating to a price, route, or service provided by an automobile company … relating to the Transportation of property ”, California’s“ ABC test ”did not prevent. The ABC test generally states that employees are employees and not independent contractors unless they are in a different industry than the rental company. As a result, while normally independent contractors, truck drivers would be employees in California and, as one might think, states with similar laws, including Massachusetts. However, the U.S. Circuit First Circuit Court of Appeals ruled that the Massachusetts ABC test is ruled out. A group of automotive companies serving Los Angeles and Long Beach argues that Congress passed the FAAAA to avoid a patchwork of state law and is asking the Supreme Court to weigh up.
In Pilevsky v Sutton 58 Associates LLC, the New York Court of Appeals allowed a real estate lender to bring state tort claims alleging that investors disrupted their loan agreements with two borrowers by facilitating their wrongful bankruptcies. On the grounds that the decision contradicts other decisions of the federal government and the federal states, according to which the federal bankruptcy law anticipates such state claims, the investors seek a review.
These and other petitions of the week are listed below:
Cal Cartage Transportation Express, LLC v California
problem: If she Federal Aviation Administration Authorization Act, which specifically provides for state law “relating to a price, route, or service of a motor company” prevents state worker grading laws that affect a motor company’s prices and services by preventing the use of independent contractors.
Boechler, PC v Commissioner of Internal Revenue
problem: Whether the 30-day deadline for filing a petition for review with the tax court requires a notice of the establishment of the internal revenue officer in 26 USC § 6330 (d) (1) is a judicial requirement or rule for processing claims that is subject to an appropriate toll.
Houston versus United States
problem: Whether a criminal court has to consider applicable judgment factors codified in 18 USC § 3553 (a) in deciding whether to apply a reduced penalty under Section 404 (b) of the First Step Act.
Pilevsky v Sutton 58 Associates LLC
problem: Whether the Federal Bankruptcy Act provides for tort claims under state law that are based on alleged abuse of bankruptcy proceedings or that aim to impose liability based on the fact of bankruptcy.
Empire Health Foundation v Becerra
Problems: (1) Do Agencies need to accurately include key facts and data in the notices of proposed legislation in order to meet the requirements of fair advertising and the opportunity for the public to have meaningful expression? and (2) whether, if a proposal contains a binary selection of guidelines, the acceptance of one of these guidelines is always a “logical result” of the proposal, which can excuse non-compliance with reporting and commenting obligations.
American Civil Liberties Union versus United States
Problems: (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to examine a motion alleging that the first amendment provides a qualified public right of access to the Court’s material opinions, and whether that Foreign Intelligence Surveillance Court of Review is responsible for examining an appeal against the rejection of such a request; and (2) whether the first amendment provides a qualified right of public access to key FISC opinions.