PLF in the Supreme Court
Pacific Legal Foundation (PLF) is one of the most active and effective public interest legal organizations in filings before the Supreme Court of the United States. PLF has had an unprecedented seven wins in its last seven direct appearances before the High Court for its clients, including two in the last two years.
The following cases illustrate PLF’s caseload, both direct and amicus cases before the High Court:
Horne v. U.S. Department of Agriculture
Issue: Are the USDA’s raisin market regulations, which require raisin growers to either divert a portion of their crop from the open market to a USDA reserve or face monetary assessments and fines, an unconstitutional taking?
Status: PLF is preparing an amicus brief in support of the Hornes, Fresno area raisin growers who refused to turn over a portion of their crop. The petition for writ of certiorari is pending.
Kentner v. City of Sanibel
Issue: The City of Sanibel, Florida, enacted an ordinance that prohibits new construction of docks and accessory piers within an area fronting San Carlos Bay. The petioners — owners of waterfront property — challenged the ordinance, claiming that the outright ban on new docks violates substantive due process. The Eleventh Circuit ruled against David and Susan Kentner.
Status: PLF directly represents the Kentners and several other property owners in challenging the ordinance as a violation of their property rights under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. A cert. petition is being prepared for filing.
Liberty Coins, LLC, et al. v. David Goodman, et al.
Issue: Liberty Coins, a precious metal dealer, argues that the First Amendment protects its right to advertise and solicit for customers, and that a state may not forbid such advertisements and solicitations because the lawfully operating dealer has not complied with nonmandatory onerous licensing requirements.
Status: PLF directly represents the petitioner in claiming that advertisement of the otherwise lawful activity of purchasing precious metals is protected speech under the First Amendment, and a licensing requirement that restricts such advertising is a content-based restriction on speech subject to strict scrutiny. PLF’s cert. petition is due by October 3, 2014.
North Carolina Board of Dental Examiners v. Federal Trade Commission
Issue: Should a board, consisting entirely of practicing dentists, enjoy the complete immunity from prosecution under antitrust laws? PLF’s amicus brief will argue that a regulatory entity that is made up of active members of the industry who have direct conflict of interest and who are not supervised by the state cannot enjoy complete immunity. The Federal Trade Commission initiated antitrust proceedings against the Board of Dental Examiners when it began taking action against unlicensed persons offering teeth-whitening services.
Status: The U.S. Supreme Court granted certiorari on May 3, 2014. PLF filed an amicus brief on August 6, 2014, in support of the Federal Trade Commission. Argument is set for October 14, 2014.
Pacific Shores Properties v. City of Newport Beach
Issue: Whether discriminatory effect from the enactment of facially neutral legislation (an ordinance regulating residential care facilities) suffices to state a claim for disparate treatment under the Fair Housing Act without any allegation of discriminatory intent.
Status: PLF attorneys filed an amicus brief on August 15, 2014, to support Newport Beach.
Sissel v. U.S. Department of Health and Human Services
Issue: After the U.S. Supreme Court upheld the Affordable Care Act’s penalties for not purchasing health insurance under the Individual Mandate as a “tax,” PLF amended its complaint, on behalf of Iraq War veteran and small business owner, Matt Sissel, to argue the tax originated in the wrong house of Congress, a violation of the Origination Clause.
Status: On July 29th, a D.C. Circuit panel ruled that the Affordable Care Act is a tax, but not a “bill for raising revenue,” and therefore is exempt from the Origination Clause. PLF attorneys are first requesting review en banc from the full D.C. Circuit, but may file a cert. petition, depending on the outcome at the circuit court.
Spokeo v. Robbins
Issue: Standing to sue for damages requires real injury. Spokeo, Inc., runs a website that collects and publishes consumer “credit estimates.” Thomas Robins, an unemployed man, sued Spokeo in federal court for willful violations of the Fair Credit Reporting Act, alleging that Spokeo published false information. The trial court held that Spokeo’s statutory violations did not cause Robins anything other than speculative harm, and that he, therefore, lacked standing under Article III of the Constitution which requires that there be a “case or controversy.” The Ninth Circuit Court of Appeals reversed, however, holding that it would assume that any plaintiff who alleged a willful statutory violation had suffered an injury caused by that violation. As amicus in support of Spokeo’s petition for certiorari, PLF argues that standing to sue for damages requires real injury.
Status: PLF filed an amicus brief on June 2, 2014.
Stewart & Jasper Orchards v. U.S. Fish and Wildlife Service
Issue: Representing several California farmers, PLF is challenging the biological opinion (BiOp) by federal agencies used to restrict water deliveries from the Sacramento-San Joaquin Delta in order to protect the Delta smelt, a small fish listed under the Endangered Species Act. In 2012, PLF previously sought Supreme Court review of the case on a Commerce Clause challenge because smelt are in intrastate species, but the High Court denied cert. With a recent adverse ruling at the Ninth Circuit on the biological opinion, it sets up reconsideration of the Supreme Court’s TVA v. Hill decision, relied on by the Ninth Circuit to uphold the smelt BiOp. In TVA v. Hill, the court held that the protection of every endangered species is the highest priority of the federal government, regardless of the cost. The result has been a heavy-handed, top-down bureaucracy that frustrates human interests and species conservation.
Status: On July 23, 2014, the Ninth Circuit Court of Appeals denied rehearing before the entire court, leaving an adverse ruling from March in place. PLF plans to file a cert. petition in September.
Texas Department of Housing v. Inclusive Communities Project, Inc.
Issue: The Texas Department of Housing was sued over its allocation of federal tax credits to developers of affordable housing projects. The Department was sued under the Federal Fair Housing Act (FHA) because it approved more tax credits for projects that would be located in minority neighborhoods than non-minority neighborhoods. The lawsuit alleges that, although the Department followed state and federal law, it created a disparate impact on minorities by providing more tax credits in minority neighborhoods.
Status: PLF filed an amicus brief on June 16, 2014, arguing that disparate impact claims are not cognizable under the FHA. Awaiting the decision.
Utility Air Regulatory Group v. Environmental Protection Agency
Issue: Here, the Supreme Court took up six challenges to one of the EPA’s greenhouse gas regulations — this one applying to the regulation of millions of “stationary sources” such as apartment houses, malls, hotels, as well as power plants and factories. At issue here was whether EPA had properly established standards for carbon dioxide before applying them nationwide.
Status: PLF filed its amicus brief on December 13, 2013, and the Court issued a mixed decision on June 23, 2014. In a nutshell, the Court held that the regulations could not apply to facilities that are not already regulated under the Clean Air Act. Thus, the Court threw out the application of the new regulations to apartments, office buildings, malls and the like, but kept them in place for power plants and large factories. It is estimated the decision saved Americans $147 billion in new permitting costs.
Yates v. United States
Issue: The Supreme Court has agreed to hear the case of Florida commercial fisherman John Yates to determine if the federal government lawfully charged him with violating the Sarbanes-Oxley Act when a member of his fishing crew allegedly threw three undersized fish overboard after being cited at sea by a state fish and wildlife officer for having 72 undersized fish in his catch. PLF argues that it was an abuse of the government’s power to charge Yates with violating a federal financial crimes and record-keeping law, which carries a penalty of up to 20 years in prison.
Status: PLF is representing the Florida Keys Commercial Fishermen’s Association, the Southeastern Fisheries Association, the Commercial Fishermen of Santa Barbara, the California Abalone Association, and the California Sea Urchin Commission as amicus curiae in support of petitioner John Yates. PLF filed its brief on July 7, 2014.