This Week at the Supreme Court – Week of October 9, 2017

This coming week, the Court will hear oral arguments in three cases, all of which present major civil and appellate procedural issues.
On Tuesday, following a day off on Monday for Columbus Day, the Court will hear oral 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 a nonjurisdictional claim-processing rule subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. The circuits have been split on this issue, with the Ninth and D.C. circuits having concluded the latter, and the Second, Fourth, Seventh and Tenth having concluded the former. By federal statute, a district court may extend the time to file a notice of appeal in a civil case “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, . . . upon a showing of excusable neglect or good cause.” Petitioner Charmaine Hamer timely moved the court for a 60-day extension to file a notice of appeal, which the court granted. Despite Hamer’s timely filing of the notice, the Seventh Circuit appellate court sua sponte dismissed the appeal for lack of jurisdiction because Hamer filed her notice of appeal outside the time that the Federal Rules of Appellate exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” Hamer will argue: a) that the 30-day limit on extensions is nonjurisdictional because deadlines appearing only in court rules without statutory support do not impose jurisdictional limits. b) the Court has held that nonjurisdictional claim-processing procedural rules are not mandatory, and c) NHSC waived or forfeited its timeliness-based objection in several ways. NHSC will argue: a) The rule is jurisdictional and delineates cases by defining different courts’ powers b) Even nonjurisdictional firm deadlines must be honored and c) NHSC had no opportunity to object to the extension because the motion for the extension was not briefed in the district court. SCOTUSblog has a detailed argument preview here.

On Wednesday the Court will first hear National Association of Manufacturers v. Department of Defense, which presents the issue of whether the Sixth Circuit erred when it held that it has jurisdiction under the Clean Water Act to decide petitions to review the waters of the United States rule, even though the statute does not “issued[e] or den[y] any permit” but instead defines the waters that fall within CWA jurisdiction. In June 2015, the Department of Defense and other agencies approved a final rule defining the term “the waters of the United States” and hence the scope of CWA jurisdiction. The National Association of Manufacturers challenged that rule under the Administrative Procedure Act. State, municipal, industry, and environmental challengers also filed APA suits. But because of uncertainty about whether their challenge falls under the CWA’s judicial review provision, the challengers also filed petitions for review in appellate courts. The petitions for review were consolidated in the Sixth Circuit. The NAM intervened as respondent in the Sixth Circuit. The Sixth Circuit held that it, not the district courts, has jurisdiction to decide challenges to the rule. Although two panel members concluded that the CWA precludes jurisdiction, one judge reasoned that “incorrect” circuit precedent bound him to take jurisdiction under a provision of the Act, which requires that appellate courts review agency actions “in issuing or denying any permit.” Some environmental groups have sided with NAM in this case, while others, such as the National Resource Defense Council and the National

Wildlife Federation, have joined forces with the Department of Defense. NAM will argue that the Act’s plain language prohibits appellate jurisdiction over the rule. The rule is neither an action “in issuing or denying any permit,” nor an “other limitation.” The rule is a mere definition, NAM argues. The federal agencies argue that the Clean Water Rule prohibits discharges of pollutants to certain waters, therefore, it is an “other limitation.” The Hill wrote about President Obama’s attempt to dissuade the Court from granting certiorari.

Later Wednesday, the Court will hear arguments in Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute categorically forecloses corporate liability. Victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza, bring the case. They accuse Arab Bank of maintaining accounts for known terrorists, accepting donations that it knew would be used to fund terrorism, and giving millions of dollars to suicide bombers’ families. They specifically accuse the bank of using its American office to launder money for Hamas. The Court must decide whether U.S. courts have jurisdiction over the Jordan-based bank, which has more than 600 branches on five continents. The Alien Tort Statute gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Court previously tried to resolve this question of corporate liability under the ATS, but left it undecided in the 2013 case of Kiobel v. Royal Dutch Petroleum Co. The Court concluded that American courts lacked authority to hear the case because the conduct being contested in the case occurred in a foreign country.  The terrorism victims will argue that the bank violated the law of nations by financing terrorism and engaging in genocide and crimes against humanity. They will also argue that the ATS’s history gives no reason not to apply it to corporations.  The bank argues that corporations have not been held liable in international law. A bipartisan group of senators filed an amicus brief suggesting that the ATS is the only legal tool for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.” Law360 wrote about the country of Jordan and other groups urging the Court to throw out the case or to consider diplomatic ramifications of their eventual ruling. George Rutherglen of Just Security wrote an op-ed arguing that, “[e]xempting private corporations from liability, as if they were the equivalent of sovereign states, would be an unprecedented and dubious innovation.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent College of Law Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

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