The marquee cases of the U.S. Supreme Court term that begins Monday touch on issues such as affirmative action, voting rights, immigration and LGBTQ and First Amendment rights.
“There’s absolutely a lot of big-ticket cases that have already been granted by the court,” says Scott Keller of Lehotsky Keller in Austin and Washington. “And the long conference and with the other cases coming into the pipeline, I think it’s shaping up to be another big term.”
But in the meantime, a second tier of lesser-known cases set for October and November are also worth a look for Texas lawyers and for aficionados of Supreme Court business cases. More cases will be granted review and scheduled for argument soon. Some of the cases will be a test of the high court’s relationship with the Fifth Circuit. Here are thumbnails of important cases that will be argued soon:
Hewitt v. Helix Energy Solutions Group
This case, to be argued Oct. 12, may have direct impact on the pockets of oil and gas workers and their companies – and other companies as well. In a Fair Labor Standards Act case brought by Michael Hewitt, a “tool pusher” for an oil rig, the Fifth Circuit majority sided with employees who seek overtime payments in some circumstances, even if they have high compensations. Fifth Circuit dissenters said that if the high court accepts the Fifth Circuit’s opinion, “the ‘oyl biddness,’ a vital industry in our region and one which provides more than 400,000 direct jobs, will suffer needlessly and excessively.” A brief by the Texas Oil and Gas Association and the American Petroleum Institute told the high court that “the industry is held hostage by a barrage of multi-million-dollar FLSA collective action lawsuits filed by plaintiffs’ lawyers conflating sections of the DOL regulations to allege wage theft.” David Jordan of Littler Mendelson in Houston was counsel of record on the brief. Paul Clement of Clement & Murphy in Virginia, a former solicitor general who has argued more than 100 cases before the high court, will argue on behalf of Helix Energy. Edwin Sullivan of Oberti Sullivan in Houston is undertaking his first Supreme Court argument on behalf of Hewitt. David Coale of Lynn Pinker Hurst & Schwegmann in Dallas said, “The Helix case about overtime pay is also of interest not so much for the holding, although that’s important in that world, but again as a gauge on where [the Fifth Circuit] is compared to SCOTUS on some basic statutory-interpretation issues.”
Sackett v. EPA
The first key business case is set for Oct. 3, the traditional First Monday of October in the court’s term. Sackett v. EPA is a long-running dispute over the meaning of “waters of the United States” under the Clean Water Act. “Energy companies and any business that must deal with Clean Water Act issues hope that the court definitively resolves the scope of ‘waters of the United States’ once and for all,” says Aaron Streett, Supreme Court and constitutional law chair at Baker Botts in Houston. “The definition has been fluid (pun intended) for 15 years since the Court fractured 4-1-4 in Rapanos v. United States, with Justice [Anthony] Kennedy providing the middle vote.” Stephanie McMullen, counsel for the Texas Farm Bureau, joined with 19 other state farm bureaus in an amicus brief arguing that the federal government has overreached. “Many, if not most, routine farm operations now require farmers and ranchers first to seek the permission of federal bureaucrats, at a substantial cost of time and money,” the brief asserted.
National Pork Producers Council v. Ross
At issue is a California law that bans the sale of pork in California unless certain state regulations are obeyed. Pork producers complained that the rules affect out-of-state farmers, and thus is a dormant commerce clause violation. That clause refers to the prohibition against states passing legislation that excessively burdens interstate commerce. It may seem like a small dispute, but the commerce clause angle triggered an avalanche of amicus briefs put before the high court. “A lot of energy companies are watching this case,” says Streett, “because it could bear on whether states may impose intrastate regulations on the industry despite the fact that these regulations may disrupt an integrated, national market. Keller of Lehotsky Keller said of the case that “the broader questions about the commerce clause could potentially have big implications for the business community, far outside this individual context.” The argument will take place Oct. 11.
Mallory v. Norfolk Southern Railway Co.
Robert Mallory, a railway worker from Virginia, sued Norfolk Southern in Pennsylvania, claiming that the company caused his exposure to toxic materials that caused his cancer. The state court ruled that it lacked jurisdiction over the company. The state court rejected Mallory’s contention that the company had agreed to be sued in Pennsylvania when it registered to do business in the state. Lynn Pinker’s Coale said, “The Mallory case about whether registering to do business in a state makes you subject to jurisdiction there is a really important, basic issue about personal jurisdiction that SCOTUS has managed to dodge for decades, and which really needs an answer. The law is foggy enough about personal jurisdiction already without that issue sitting there undecided.” The case will be argued Nov. 8.
Securities and Exchange Commission v. Cochran
In this case, set to be argued Nov. 7, the issue is whether federal district courts have the power to consider claims challenging the constitutionality of the SEC’s administrative law proceedings. The case was brought by accountant Michelle Cochran who was fined by the SEC for not complying with auditing standards. She went to a federal district court in Texas instead of an ALJ. A ruling by the Fifth Circuit stated that it was okay to go first to the district court rather than following SEC procedures. The Chamber of Commerce agreed, asserting that costly SEC proceedings “can pose an existential threat to business operations.” Coale said, “I’m very interested in SEC v. Cochran, where there were a range of opinions on the Fifth Circuit – a majority, a strong concurrence that broadly criticized the administrative state and dissent – to see how ‘in step’ the Fifth Circuit is with the Roberts court as presently constituted.”