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Briefs Recently Filed

Mt. Lemmon Fire District v. Guido 

The legal issue in Guido v. Mount Lemmon Fire District could not be simpler; but the law is tricky. In this case the Supreme Court will decide whether the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) amicus brief argues it should not.

John Guido was 46 and Dennis Rankin was 54 when they were terminated by the Mount Lemmon Fire District due to budget cuts. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. 

The fire district argues that the ADEA does not apply to it because it employs fewer than 20 people.

The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

Guido argued, and the Ninth Circuit agreed, that “employer” means “[A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” The clause describing state-affiliated entities contains no size requirement.

The Ninth Circuit opined that the word “also” supports its interpretation. “The word ‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” As used in this context, ‘also’ adds another definition to a previous definition of a term—it does not clarify the previous definition.”

Notably the Sixth, Seventh, Eighth, and Tenth Circuits have come to the opposite conclusion—that the 20-employee minimum applies to state and local governments.

The SLLC amicus brief points out that small special districts, like the Mount Lemmon Fire District, are very common. Particularly in rural areas there are “few alternatives to layoffs and terminations when budget cuts must be made,” making small special districts particularly vulnerable to age discrimination lawsuits.

The brief also argues the Ninth Circuit decision is inconsistent with principles of federalism. “Small state and local government entities must have the latitude to staff their projects as they see fit, responsive to local needs and in line with particular project goals. The fact that these needs differ is illustrated by the different age discrimination statutes enacted by the States with a variety of minimum employee thresholds.”

Collin O’Connor Udell of Jackson Lewis wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Public Labor Relations Association, and the International Public Management Association for Human Resources.  

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

Per the Endangered Species Act (ESA), the U.S. Fish and Wildlife Services (FWS) may designate land a “critical habitat” for an endangered species. The ESA mandates that FWS consider the economic impact of specifying an area as a critical habitat. FWS may exclude an area if the benefits of excluding it outweigh the benefits of including it.

In its amicus brief in Weyerhaeuser Company v. U.S. Fish and Wildlife Service the State and Local Legal Center (SLLC) argues courts may review FWS decisions not to exclude an area from a critical habitat because of the economic impact of the designation.

FWS designated land in Louisiana owned by the Weyerhaeuser Company a critical habitat for the dusky gopher frog. The Weyerhaeuser Company holds a timber lease on all of the land through 2043.

Only about 100 adult dusky gopher frogs are known to exist in the wild. Historically, the frog was found in parts of Louisiana, Mississippi, and Alabama. Today, the frog exists only in Mississippi.

FWS concluded the economic impacts on the land “are not disproportionate.” The Weyerhaeuser Company claims the potential loss of development value in the land is up to $33.9 million over twenty years. It also claims because the land isn’t currently habitable by the dusky gopher frog it provides no benefit.

The Fifth Circuit agreed with FWS that once it has fulfilled its statutory obligation to consider economic impact, a decision to not exclude an area is discretionary and not reviewable in court. “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’”

The SLLC amicus brief argues there are standards for reviewing a decision not to exclude land from a critical habitat because the statute provides a standard for determining when to exclude land (if “the benefits of exclusion outweigh the benefits of designation”). As a practical matter the brief points out that without judicial review, FWS has no incentive to listen to the expertise of state and local government officials “who are experts in the land-use issues that exclusion decisions most affect.”

To designate unoccupied areas a critical habitat, FWS must determine that they are “essential for the conservation of the species.” The Weyerhaeuser Company sued the Service claiming that the land in question does not meet the definition of critical habitat because it is currently “uninhabitable” by the frog “barring a radical change in the land’s use by its private owners.” The Fifth Circuit ruled in favor of FWS concluding the definition of critical habitat includes no habitability requirement and no requirement the frog can live on the land in the foreseeable future.

The SLLC amicus brief takes no position on whether the Fifth Circuit’s interpretation of critical habitat is correct, only that FWS economic analysis may be reviewed by a court.  

Bryan K. Weir, Thomas R. McCarthy, and J. Michael Connolly of Consovoy McCarthy Park, and the Antonin Scalia Law School Supreme Court Clinic, wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Trump v. Hawaii

One of the questions the Supreme Court may decide in Trump v. Hawaii is whether lower federal courts have the authority to provide injunctive relief that benefits non-parties as well as the party asking for relief. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of lower federal courts authority to issue injunctive relief that benefits non-parties.

In this case Hawaii, the Muslim Association of Hawaii, and three individuals sued President Trump claiming the third travel ban, which indefinitely prevents immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen, was illegal and unconstitutional.

In December 2017 the Ninth Circuit temporarily struck down the third travel ban. Instead of limiting the injunction to just the parties that sued the President, the Ninth Circuit issued an injunction applying to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court agreed to review the Ninth Circuit’s decision.

The federal government argues that lower federal courts do not have the authority to issue injunctions which benefit anyone other than the party asking for the injunction.

The SLLC amicus brief disagrees. The brief points out that injunctions benefiting non-parties are extremely common. “In fact, they have figured in many [Supreme] Court cases. This is why the courts of appeals have unanimously held that injunctions may benefit non-parties.” The brief argues these injunctions are especially important where federalism is at stake. Most local governments are very small. They lack the resources to litigate against the United States. So local governments have to rely on one of the big cities to get an injunctions against the federal government (no matter what political party is currently in charge).

The SLLC brief does not take a position on whether the lower courts in this particular case had the authority to issue an injunction that benefited non-parties. Likewise the SLLC brief didn’t take a position on the other legal issues in this case.

The Supreme Court has agreed to decide three other issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the President’s authority under the Immigration and Nationality Act (INA). Third, whether the travel ban violates the Establishment Clause.

In Hawaii v. Trump the Ninth Circuit concluded the travel ban exceeds the President’s authority under the INA because it bans immigration indefinitely and “ma[de] no finding whatsoever that foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” The Fourth Circuit ruled it likely violates the Establishment Clause because its primary purpose is to discriminate against Muslims.

Stuart Banner of the UCLA School of Law Supreme Court Clinic wrote the SLLC amicus brief which the following organizations joined:  the National League of Cities, the International City/County Management Association, and the International Municipal Lawyers Association.

NIFLA v. Becerra 

In Reed v. Town of Gilbert, Arizona (2015) the Supreme Court held that strict (usually fatal) scrutiny applies to content-based regulations of speech. One of the questions in NIFLA v. Becerra is whether the Court means for Reed to apply to (nearly) every law regulating content-based speech. The State and Local Legal Center (SLLC) filed an amicus brief arguing that Reed should not be read that broadly.     

California law requires that licensed pregnancy-related clinics disseminate a notice stating that publically-funded family planning services, including contraception and abortion are available. It also requires unlicensed pregnancy-related clinics to disseminate a notice they are unlicensed. The National Institute of Family and Life Advocates (NIFLA) operates 111 pregnancy centers in California. None offer abortions or abortion referrals; only 73 are licensed.

In NIFLA v. Becerra NIFLA claims that both requirements violate the First Amendment Free Speech Clause. The Ninth Circuit disagreed.

In its brief NIFLA argues that following Reed strict scrutiny applies to nearly any content-based regulation of speech, including the laws at issue in this case. Per strict scrutiny, a regulation of speech must serve a compelling government interest and be narrowly tailored. It is difficult for government regulation of speech to pass strict scrutiny.

The SLLC amicus brief doesn’t take a position on whether the disclosure laws at issue in this case violate the First Amendment. Instead, it points out that for decades the Supreme Court has not applied strict scrutiny to laws regulating commercial speech and sexually oriented businesses even though such laws regulate speech based on their content. For example, the Supreme Court has upheld a zoning ordinance prohibiting adult movie theatres (versus other movie theatres) near residential areas, churches, parks, and schools. The Court didn’t apply strict scrutiny in that case.

The brief argues that Reed “did not mention, let alone overrule, any of this Court’s precedents that applied [lower] scrutiny to laws that differentiated by certain subjects or topics. This Court should not construe Reed as having silently done so, nor explicitly do so here.”   

Finally, the brief points out that local governments require numerous notice and disclosure requirements (e.g., restaurants must post signs explaining how to provide first aid to choking patrons) which under NILFA’s interpretation of Reed would be subject to strict scrutiny. Such (often innocuous) ordinance might no longer be constitutional.

John Baker, Katherine Swenson, Karl Procaccini, Holley Horrell, and Virginia McCalmont, Greene Espel, wrote the SLLC amicus brief which the following organizations joined:  the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.  

Salt River Project Agricultural Improvement and Power District v. SolarCity (settled)

In its amicus brief in Salt River Project Agricultural Improvement and Power District v. SolarCity, the State and Local Legal Center (SLLC) urges the Supreme Court to rule that a district court’s denial of state-action immunity to a state or local government is immediately appealable.

The state-action doctrine provides states and, in some instances, local governments immunity from federal antitrust liability.

SolarCity sells and leases rooftop solar-energy panels. The Salt River Power District, a political subdivision of Arizona, is the only traditional supplier of power near where many SolarCity customers live. SolarCity claims that to prevent it from installing more panels the Power District introduced a new pricing structure. Now if a customer obtains power from his or her own system he or she must pay a “prohibitively large penalty.”

SolarCity sued the Power District claiming it violated federal antitrust law. The Power District argued it is immune from federal antitrust liability per the state-action doctrine.

The federal district court denied the Power District’s motion to dismiss the lawsuit citing “uncertainties about the specifics of the Power District’s state-law authority and business.” The Power District sought to immediately appeal the district court’s denial of state-action immunity rather than waiting until after the district court ruled whether it violated antitrust law.

Generally, only final decisions of lower courts may be appealed. Here, the district court’s denial of Power District’s motion to dismiss isn’t final because the district court must still decide whether the Power District violated antitrust law. The “collateral-order” doctrine allows non-final judgments to be appealed in some instances. The Ninth Circuit held it does not apply to orders denying public entities state-action immunity.

The SLLC amicus brief argues that “important federalism and policy considerations” weigh in favor allowing states and local governments to appeal denials of state-action immunity immediately. More specifically, “because the extension of state-action immunity to governmental entities is rooted in the State’s own sovereign immunity, permitting interlocutory appeal is necessary to respect State sovereignty.” Likewise, “compelling governmental entities to endure trial court antitrust litigation to final judgment after denial of a state-action immunity motion exposes governmental entities and their taxpaying residents to enormous costs and risks.”

Tillman Lay, Katharine Mapes, Jessica Bell, and Amber Martin of Spiegel & McDiarmid wrote the SLLC amicus brief which the following organizations joined:  the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.