[JURIST] The US Supreme Court [official website] agreed [order list, PDF] Monday to review the president’s recess appointment power [JURIST news archive]. In NLRB v. Noel Canning [docket; cert. petition, PDF], the court will decide: (1) whether the president’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is instead limited to recesses that occur between enumerated sessions of the Senate; and (2) whether the president’s recess-appointment power may be exercised to fill vacancies that exist during a recess or is instead limited to vacancies that first arose during that recess. In addition to these questions, the court has directed the parties to brief and argue the following question: whether the president’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. The US Court of Appeals for the District of Columbia Circuit ruled [JURIST report] in January that the recess appointment of three members of the National Labor Relations Board (NLRB) [official website] by President Barack Obama was unconstitutional, and the government appealed [JURIST report].

In McCullen v. Coakley [docket; cert. petition, PDF] the court will consider a Massachusetts law that establishes “buffer zones” for abortion clinics. The buffer zone [Planned Parenthood backgrounder] creates a protected area outside of the abortion clinic where people are not allowed to protest. This is meant to ensure potential patients safe passage into the facilities. The law creates a 35-foot buffer zone on the driveways and entrances to the facilities. The US Court of Appeals for the First Circuit upheld the law [JURIST report] in January. The questions before the court are (1) whether the First Circuit erred in upholding Massachusetts’ selective exclusion law under the First and Fourteenth Amendments, on its face and as applied to petitioners; and (2) if Hill v. Colorado [opinion] permits enforcement of this law, whether Hill should be limited or overruled.

In the consolidated cases of Environmental Protection Agency v. EME Homer City Generation [docket; cert. petition, PDF] and American Lung Association v. EME Homer City Generation [docket; cert. petition, PDF] the court will consider the authority of the Environmental Protection Agency (EPA) [official website] under the Clean Air Act [text, PDF] to issue a regulation limiting power plants’ emissions that cross state lines. The US Court of Appeals for the District of Columbia Circuit ruled [JURIST report] last August that the EPA overstepped its authority because its regulation, known as the Transport Rule, did not square with Congress’ intention to have individual states, rather than the EPA, set emissions policies to meet federal standards. The questions before the court are (1) whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief; (2) whether states are excused from adopting state implementation plan (SIPs) prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s interstate pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the act instead unambiguously requires the EPA to consider only each upwind State’s physically proportionate responsibility for each downwind air quality problem.

In Unite Here Local 355 v. Mulhall [docket; cert. petition, PDF] the court will determine whether an employer and union may violate § 302 of the Labor-Management Relations Act, [29 USC § 186] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forgo its rights to picket, boycott, or otherwise put pressure on the employer’s business. § 302 makes it a crime for an employer “to pay, lend, or deliver … any money or other thing of value” to a labor union that seeks to represent its employees, and prohibits the labor union from receiving the same. The US Courts of Appeals for the Third and Fourth Circuits have held that agreements between employers and unions that set ground rules for union organizing campaigns are not “payment” of “things of value” prohibited by § 302. In this case, the US Court of Appeals for the Eleventh Circuit reached the opposite conclusion [opinion].

In Michigan v. Bay Mills Indian Community [docket; cert. petition, PDF] the court will consider (1) whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (IGRA) [25 USC § 2701 et seq.] but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands. In this case the state of Michigan and the Little Traverse Bay Bands of Odawa Indians brought suit to prevent the Bay Mills Indian Community from operating a small casino in Vanderbilt, Michigan. The district court entered a preliminary injunction ordering Bay Mills to stop gaming at the Vanderbilt casino. The US Court of Appeals for the Sixth Circuit held [opinion] that the district court lacked jurisdiction over some of the plaintiffs’ claims, and that sovereign immunity bars the others.

In Lozano v. Alvarez [docket; cert. petition, PDF] the court will determine whether a district court considering a petition under the Hague Convention [text; JURIST news archive] for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent. While the US Courts of Appeals for the Fifth, Ninth and Eleventh Circuits all hold the one-year period may be equitably tolled, the US Court of Appeals for the Second Circuit held [opinion] in this case that the one-year period is not subject to equitable tolling and the settled defense is still available even where, as here, the abducting parent conceals the location of the child.

In Mayorkas v. Cuellar de Osorio [docket; cert. petition, PDF] the court will decide (1) whether 8 USC § 1153(h)(3) of the Immigration and Nationality Act (INA) [text] unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) [official website] reasonably interpreted § 1153(h)(3). The INA permits US citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the US or to adjust their status in the US to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary’s “spouse or child” may be a derivative beneficiary of the petition, “entitled to the same status[] and the same order of consideration” as the primary beneficiary. § 1153(h)(3), grants relief to certain persons who reach age 21 and therefore lose “child” status after the filing of visa petitions as to which they are beneficiaries. Here the US Court of Appeals for the Ninth Circuit held [opinion] that “the plain language of [§ 1153(h)] unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of [§ 1153(h)], and it is not entitled to deference.”

In Executive Benefits Insurance Agency v. Arkison [docket; cert. petition, PDF] the court will consider a bankruptcy case. In Stern v. Marshall [JURIST report] the Supreme Court held that Article III of the US Constitution [text] precludes Congress from assigning certain “core” bankruptcy proceedings involving private state law rights to adjudication by non-Article III bankruptcy judges. Applying Stern, the US Court of Appeals for the Ninth Circuit held [opinion] that a fraudulent conveyance action is subject to Article III. The court further held, in conflict with the US Court of Appeals for the Sixth Circuit, that the Article III problem had been waived by petitioner’s litigation conduct, which the court of appeals construed as implied consent to entry of final judgment by the bankruptcy court. The court of appeals also held, in conflict with the US Court of Appeals for the Seventh Circuit, that a bankruptcy court may issue proposed findings of fact and conclusions of law, subject to a district court’s de novo review, in “core” bankruptcy proceedings where Article III precludes the bankruptcy court from entering final judgment. The questions before the court are: (1) whether Article III permits the exercise of the judicial power of the US by bankruptcy courts on the basis of litigant consent, and, if so, whether “implied consent” based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 USC § 157(b) [text].

In UBS v. Union de Empleados [docket; cert. petition, PDF] the court will decide whether the US Court of Appeals for the First Circuit should have reviewed for abuse of discretion the district court’s determination, pursuant to Federal Rule of Civil Procedure 23.1 [text], that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a presuit demand on the corporation’s board of directors. A shareholder derivative action permits a shareholder of a corporation to bring suit to enforce rights the corporation is unable or unwilling to enforce on its own behalf, but the shareholder must state with particularity in the complaint either that the corporation declined to protect its own interests after suitable demand or that such a demand would have been futile. In this case, plaintiffs brought a shareholder derivative action against UBS Trust and UBS Financial, who moved to dismiss plaintiffs’ claims. The district court granted the motion to dismiss on the ground that no presuit demand had been made and plaintiffs had failed to state with particularity the reasons such a demand would have been futile. The First Circuit vacated the dismissal [opinion] of the derivative claims and remanded for further proceedings.

Also Monday the court issued a per curiam decision [JURIST report] in Ryan v. Schad [docket; cert. petition, PDF]. In this death penalty case, the court held that the US Court of Appeals for the Ninth Circuit abused its discretion by not issuing its mandate under Federal Rule of Appellate Procedure 41(d)(2)(D) [text] after the Supreme Court previously rejected a petition for certiorari.