Oral Arguments: Week of October 9, 2017

The week of October 9, the Supreme Court heard argument on only two days and in only three cases. (The Court was closed on Monday, October 10, for Columbus Day, and it had previously canceled oral argument in the travel ban cases, originally set for argument on Tuesday.) Nonetheless, as our pre-argument post explained, the cases, if not headline grabbing, raised important to questions of procedure, jurisdiction, and statutory interpretation.

On Tuesday, the Court heard arguments in Hamer v. Neighborhood Housing Services of Chicago. The case presents the question of whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely, or whether the Rule is instead nonjurisdictional and thus subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. Rule 4(a)(5)(C) grants a district court leave to extend the time for an appellant to file a notice of appeal upon a showing of excusable neglect or good cause, but only within 30 days of the 30-day window in which an appellant must file a notice of appeal of a final judgment.

Hamer’s lawyer, Jonathan Herstoff, argued that the time limit cannot be jurisdictional because it was not imposed by statute, but rather is part of a rule drafted by an advisory committee and approved by the Court. Herstoff argued that Article III authorizes Congress alone to determine the lower courts’ jurisdiction. Damien Stewart, representing Neighborhood House Services of Chicago (“NHSC”), argued that the rule was asserted in premerits briefing in the appellate court, and therefore, NHSC could be victorious if the Court found the rule jurisdictional, as the 7th  Circuit did, or determine that it is a mandatory claim-processing rule that was not waived. Howard M. Wasserman of SCOTUS Blog provides an argument analysis here.

On Wednesday the Court first heard argument in National Association of Manufacturers v. Department of Defense, which addresses whether appellate courts have jurisdiction under the Clean Water Act (“CWA”) to decide petitions to review a rule, known as the waters-of-the-United States rule, that defines the waters that fall within CWA jurisdiction. The CWA provides appellate court jurisdiction when the Environmental Protection Agency  “issue[s] or den[ies] any permit,” but no permit was at issue in this case. If the appellate court does not have jurisdiction, lawsuits challenging the rule must be filed in district court. The petitioners, including the National Association of Manufacturers (“NAM”), as well as some environmental groups and states, argued that lawsuits challenging the rule should be filed in district courts because the rule is not among the seven EPA actions that the Act says are reviewable directly in appellate courts.. Justice Ginsburg, took NAM’s lawyer to task, pointing out that, under its argument, appellate courts would make decisions regarding individual permits while district courts would make broader decisions, and “one would think it would be just the other way around.” NAM’s lawyer, however, pointed to the statutory text, and the Ohio Solicitor General, who also argued for petitioners,  attempted to provide a unifying theme. Finally, as Marcia Coyle discussed at Law.com, the Justices asked whether the case will be moot if President Trump rescinds the Clean Water Rule as promised. The government acknowledged that the case would be moot if Trump carries through his threat, but nobody knows how long such a process would take, and as NAM’s lawyer argued, there may be challenges to such a change in the rules that could slow the process down even more. More information about the argument is available at SCOTUSBlog.

The second argument on Wednesday and the last for the week was Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute (“ATS”) categorically prohibits lawsuits against corporations. The ATS, which dates back to 1789, gives federal courts jurisdiction over lawsuits brought by aliens alleging torts “in violation of the law of nations or a treaty of the United States.” In Jesner, victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank, and Gaza, brought the case against the Arab Bank, which the plaintiffs alleged had facilitated terrorism.

Jeffrey Fisher, arguing for the plaintiffs, made a text-based argument that the wording of the statute yields a “straightforward result” that corporations may be held liable for violating international law. True to originalist form, Justice Gorsuch pressed Fisher on whether his clients’ interpretation of the statute was consistent with Congress’s understanding in enacting the statute in 1789, and he rejected Fisher’s attempt to rely on Supreme Court precedent from 1900. As described in more detail at Just Security and The Originalism Blog, the case presents complicated questions about not only congressional understanding in 1789, but also international law and the relationship between the ATS and U.S. foreign policy. Amy Howe also provides a detailed analysis of the argument at her blog, Howe on the Court.

This post was written by Bridget Flynn and edited by Elisabeth Hieber, both ISCOTUS Fellows and Chicago-Kent Class of 2019.

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