Justices bulk up next term’s docket

This morning the Supreme Court issued orders from last week’s conference. The justices granted review in eight cases, for a total of five hours of argument, including in a trio of cases involving the federal government’s failure to fully reimburse health insurance companies for losses created as a result of the Affordable Care Act. The justices did not, however, act on the federal government’s petitions seeking review of three lower-court decisions blocking it from ending the program known as Deferred Action for Childhood Arrivals, or DACA.

One part of the Affordable Care Act was drafted to encourage insurers to provide insurance to people with pre-existing conditions. The ACA set up a system to reimburse the insurers who lose money on these policies for some of their losses, but when Congress later restricted the funds available to the Department of Health and Human Services to pay the insurers, the insurers went to court.

Arguing on behalf of one insurer, Moda Health Plan, former U.S. solicitor general Paul Clement (who in 2012 led the challenge in the Supreme Court to the constitutionality of the ACA) told the justices that the “net effect” of Congress’ actions was “a bait-and-switch of staggering dimensions in which the government has paid insurers $12 billion less than what was promised.” The justices granted Moda Health’s petition for review to decide whether Congress can avoid its promise to pay the insurers for losses that they have already suffered just by enacting appropriations riders that restrict the sources of funds available to satisfy the government’s obligations. The company’s case will be argued in the fall at the same time as similar ones filed by Maine Community Health Options and Land of Lincoln Mutual Health Insurance.

Other cases granted today include:

• Guerrero-Lasprilla v. Barr and Ovalles v. Barr, involving whether courts can review a request for equitable tolling of the deadline to file a statutory motion to reopen as a question of law, or whether it is a question of fact that cannot be reviewed. The cases will be argued together.
• Dex Media Inc. v. Click-to-Call Technologies, involving whether federal patent law allows an appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review – that is, a procedure for challenging the validity of a patent – after a finding that a one-year time bar does not apply.
• Georgia v. PublicResource.org Inc., involving whether works that lack the force of law, such as the annotations to Georgia’s code, can be copyrighted.
• Banister v. Davis, involving whether and when a motion under Federal Rule of Civil Procedure 59(e), which sets out the procedures for a motion to alter or amend a judgment, should be treated instead as a second or successive petition for habeas corpus.

The justices asked the U.S. solicitor general for his views in three cases. After granting review last week in a group of cases involving the constitutionality of appointments to an oversight board created to get Puerto Rico back on its financial feet, today the justices called for the federal government’s views in a case that arose when a pension fund for Catholic school employees in Puerto Rico stopped making payments. The employees sued not only the fund, but also the Archdiocese of Puerto Rico and the Catholic church there. As it comes to the Supreme Court, the case involves the First Amendment, the rights of religious organizations and the extent to which courts must defer to how those organizations have structured themselves.

In Avco Corp. v. Sikkelee, the federal government will weigh in on whether the Federal Aviation Act pre-empts state-law claims alleging that a product’s design was defective. Jill Sikkelee contends that Avco sold a defective aircraft engine that was installed on an airplane that lost power shortly after takeoff in July 2005, killing Sikkelee’s husband.

And in Arizona v. California, the government will provide its views on the constitutionality of California’s “doing business” tax – which, Arizona says, is so broad that it taxes out-of-state companies that don’t have any connection to California except “purely passive investment” in a limited-liability company doing business in California. There is no deadline for the solicitor general to file his briefs.

The justices also granted a motion by NPR to unseal the briefs in the case of Christopher Price, an Alabama death-row inmate who was executed last month. Price had argued that executing him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment; the briefs that both Price and the state filed in the Supreme Court were heavily redacted because they contained information about the state’s lethal-injection protocol that had been deemed “confidential.” NPR argued that the complete version of the briefs should be available to the public, and today the justices agreed.

The justices did not act on the government’s petitions to review rulings by three lower courts that bar the government from ending the DACA program. The justices had considered the petitions at two private conferences in January before putting them on hold for several months.

The justices also failed to act on a petition by Alabama, which is appealing from a decision by the U.S. Court of Appeals for the 11th Circuit that invalidated a state law barring the use of what the state calls “dismemberment” abortions and physicians refer to as “dilation and evacuation.” The method is used for virtually all abortions starting at 15 weeks of pregnancy, although those abortions account for only seven percent of abortions in the state. The justices had repeatedly put off review of the state’s petition before finally considering it last week.

The justices are likely to issue additional orders later this week, after all of their merits opinions have been released. They could (although there is no guarantee) act on both the DACA cases and the Alabama abortion case at that time.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in Georgia v. PublicResource.org and Avco Corp. v. Sikkelee; John Elwood, the author of this blog’s Relist Watch, is among the counsel to the petitioner in the Georgia case. I am not affiliated with the firm and am not involved in either case.]