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Supreme Court takes 10 more cases for 2012 term

The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in 10 cases. In the consolidated cases of Decker v. Northwest Environmental Defense Center [docket; cert. petition, PDF] and Georgia-Pacific West v. Northwest Environmental Defense Center [docket; cert. petition, PDF] the court will determine whether a citizen may bypass judicial review of a National Pollutant Discharge Elimination System (NPDES) [materials] permitting rule under 33 USC § 1369 [text], and may instead challenge the validity of the rule in a citizen suit to enforce the Clean Water Act (CWA) [materials]. The court will also determine whether the US Court of Appeals for the Ninth Circuit erred when it held [opinion, PDF] that stormwater from logging roads is industrial stormwater under the rules of the CWA and the Environmental Protection Agency [official website] (EPA), even though EPA has determined that it is not industrial stormwater.

In Los Angeles County Flood Control District v. Natural Resources Defense Council [docket; cert. petition, PDF] the court will rule on the following question: When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate
storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the CWA, notwithstanding this court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians [opinion] that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act? The Ninth Circuit ruled [opinion, PDF] that there can be a "discharge."

In Vance v. Ball State University [docket; cert. petition, PDF] the court will decide whether the "supervisor" liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth [opinions] (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or (ii) is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim. In Faragher and Burlington Industries the Supreme Court held that under Title VII [text], an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence. Maetta Vance filed an employment discrimination claim against her employer, Ball State University, but the district court granted summary judgment for the defendants. The US Court of Appeals for the Seventh Circuit affirmed [opinion], holding that actionable harassment by a person whom the employer deemed a "supervisor" and who had the authority to direct and oversee the victim's daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her.

In Comcast v. Behrend [docket; cert. petition, PDF] the court will determine whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis. The Supreme Court ruled last year in Wal-Mart v. Dukes [JURIST report] that the district court must engage in a "rigorous analysis" to ensure that the "party seeking class certification [can] affirmatively demonstrate his compliance" with Rule 23 [text]. However, the US Court of Appeals for the Third Circuit ruled [opinion, PDF] in this case that the district court did not exceed its discretion in certifying the class action without considering several "merits arguments."

In Already, LLC v. Nike, Inc. [docket; cert. petition, PDF] the court will decide whether a federal district court is divested of Article III [text] jurisdiction over a party's challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities. The district court held that the covenant ended the case or controversy between the parties and dismissed defendant's counterclaims for lack of subject matter jurisdiction. The US Court of Appeals for the Second Circuit affirmed [opinion, PDF].

In Genesis HealthCare Corp. v. Symczyk [docket; cert. petition, PDF] the court will rule on whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims. Laura Symczyk sought relief under the Fair Labor Standards Act (FLSA) [materials] on behalf of herself and all others similarly situated. The district court dismissed Symczyk's complaint for lack of subject matter jurisdiction after defendants Genesis HealthCare Corporation and ElderCare Resources Corporation extended an offer of judgment under Federal Rule of Civil Procedure 68 [text] in full satisfaction of her alleged damages, fees and costs. The Third Circuit reversed [opinion, PDF].

In FTC v. Phoebe Putney Health System, Inc. [docket; cert. petition, PDF] the court will decide: (1) whether the Georgia legislature, by vesting the local government entity with general corporate powers to acquire and lease out hospitals and other property, has "clearly articulated and affirmatively expressed" a "state policy to displace competition" in the market for hospital services; and (2) whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital's operation. Under the "state action doctrine," the federal antitrust laws do not apply to the anticompetitive conduct of certain subordinate public entities created by a state if the conduct is authorized as part of a "state policy to displace competition" that is "clearly articulated and affirmatively expressed" in state law. The doctrine extends to private entities if the state policy is so articulated and the private conduct is "'actively supervised' by the State itself." "[T]he State may not," however, "validate ... anticompetitive conduct simply by declaring it to be lawful." In this case, a local government entity created by Georgia law, acting at the behest of a private actor and using the general corporate powers conferred on it by the state, acquired the only competitor of that private actor and immediately transferred control of the competitor to the private actor, creating a private monopoly. The US Court of Appeals for the Eleventh Circuit ruled [opinion, PDF] that execution of the plan is protected by state-action immunity.

In Sebelius v. Auburn Regional Medical Center [docket; cert. petition, PDF], the court will determine whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary, 42 USC § 1395oo(a)(3) [text], is subject to equitable tolling. The district court held that the statute does not allow for equitable tolling, but the US Court of Appeals for the District of Columbia Circuit reversed [opinion, PDF].

In US Airways, Inc. v. McCutchen [docket; cert. petition, PDF] the court will rule on whether the Third Circuit correctly held [opinion, PDF] that the Employee Retirement Income Security Act (ERISA) [materials] Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan's terms give it an absolute right to full reimbursement. There is a circuit split on this issue.

In Henderson v. United States [docket; cert. petition, PDF] the court will answer the following question: When the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, should an appellate court reviewing for plain error apply the time-of-appeal standard in Johnson v. United States [opinion], as the First, Second, Sixth, Tenth and Eleventh Circuits do, or should the appellate court apply the Ninth Circuit's time-of-trial standard, which the DC Circuit and the panel below have
adopted? The US Court of Appeals for the Fifth Circuit ruled [opinion, PDF] in this case that the district court erred in giving Armarcion Henderson a longer sentence to promote his rehabilitation but that the error was not plain because the law was not clear at the time of trial.

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