Petitions of the week

The “Buffalo Billion” plan and Montana easement cases

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the statute of limitations in the Quiet Title Act is a jurisdictional rule or a claims-processing rule and whether the government can prosecute wire fraud under a “right to control” theory of property.

In Wilkins v. United States, two landowners ask the justices to decide that the 12-year statute of limitations in the Quiet Title Act is not jurisdictional, with the consequence that the lower courts improperly dismissed their case. The landowners’ dispute with the U.S. Forest Service began over the scope of an easement that runs across their land. For many years, the landowners outline in their petition, the service maintained a road on the easement to aid timber harvests. However, in 2006, the service put up a sign that read “public access thru private lands.” Since then, traffic on the easement has increased, resulting in trespassers entering their lands. A driver in 2019 shot the cat of one landowner.

A jurisdictional rule concerns a judge’s authority to hear a case, is not subject to exceptions, and places the burden of proof on the plaintiff. By contrast, a claims-processing rule could allow for exceptions (for example, if a defendant waived the argument by not raising it with a timely motion). In the landowners’ case, the district court determined that the rule was jurisdictional, found that the landowners had not proven their claims accrued within 12 years, and dismissed their case. The U.S. Court of Appeals for the 9th Circuit affirmed. In their petition, the landowners argue among other points that the 9th Circuit’s ruling is inconsistent with the Supreme Court’s recent approach to distinguishing jurisdictional from claims-processing rules.

In Ciminelli v. United States, Louis Ciminelli and co-defendants challenge the “right to control” theory of wire fraud. In 2012, then-Gov. Andrew Cuomo launched the “Buffalo Billion” plan, a program to invest one billion dollars in development projects in upstate New York, for which LPCiminelli won a $750 million contract to build a high-tech facility in Buffalo. Investigators later learned that a member of the board approving contracts had included pre-requisites favorable to LPCiminelli in the program’s requests for proposals (for example, that a bidding company had to have its headquarters in Buffalo).

Under the “right to control” theory of wire fraud, the jury received instructions that “money or property” (as used in the statute) could include “intangible interests such as the right to control the use of one’s assets.” In addition, a victim is injured when “deprived of potentially valuable economic information that it would consider valuable in deciding how to use its assets.” The jury found that Ciminelli and the other defendants had defrauded the entity administering the “Buffalo Billion” plan. In the U.S. Court of Appeals for the 2nd Circuit, Ciminelli argued that the “right to control one’s own assets” is not “property” and that Ciminelli’s ultimate contract was not based on any misrepresentation. The 2nd Circuit disagreed, on the basis of Ciminelli’s depriving of information in the bidding process. In his petition, Ciminelli argues that the circuits are divided as to the “right to control” theory.

Co-defendants filed similar petitions in Percoco v. United States, Aiello v. United States, and Kaloyeros v. United States.

These and other petitions of the week are below:

Spencer v. Colorado
21-1157
Issue: Whether the standard from Cuyler v. Sullivan — that a defendant alleging ineffective assistance of counsel based on a lawyer’s conflict of interest need only show that an “actual conflict of interest adversely affected his lawyer’s performance” — applies only when a defense lawyer represents multiple clients with conflicting interests (as 11 jurisdictions have held), or whether Sullivan applies to other conflicts — such as personal conflicts of interest (as 21 jurisdictions have held).

Percoco v. United States
21-1158
Issue: Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

Aiello v. United States
21-1161
Issues: (1) Whether paying an influential private citizen to advocate one’s position before a government agency can constitute honest services fraud under 18 U.S.C. § 1346; and (2) whether deception that deprives a person of “potentially valuable economic information,” without more, can constitute “money or property” fraud under the federal mail and wire fraud statutes.

Wilkins v. United States
21-1164
Issue: Whether the Quiet Title Act’s statute of limitations is a jurisdictional requirement or a claim-processing rule.

Mallory v. Norfolk Southern Railway Co.
21-1168
Issue: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

Kaloyeros v. United States
21-1169
Issue: Whether the deprivation of accurate information regarding a transaction, without more, is “property” under the wire fraud statute, as the U.S. Court of Appeals for the 2nd Circuit held under its “right to control” theory of property-based fraud.

Ciminelli v. United States
21-1170
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute.