The Supreme Court on Monday morning added two additional hours of argument, in cases involving federal funding of health care services for Native Americans and the Armed Career Criminal Act, to its docket for the 2023-24 term. The announcement came on a list of orders released on Monday from the justices’ private conference on Friday, Nov. 17.
The justices granted review in two cases, Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe, and consolidated them for one hour of oral argument. At issue in the two cases is whether Native American tribes that manage their own health care programs are entitled to receive funds from the Indian Health Service to cover the costs associated with services covered by insurance. (Both John Elwood and Kal Golde covered the cases in more detail in their Relist Watch and Petition of the Week columns.)
And in Erlinger v. United States, the justices will return to a familiar statute: the Armed Career Criminal Act, which imposes an enhanced sentence for unlawful possession of a firearm if the defendant has three convictions “committed on occasions different from one another.” At issue in the case is whether a jury, rather than a judge, must decide whether the crimes occurred on different occasions.
After considering the case at seven consecutive conferences, the justices finally denied review in E.I. du Pont de Nemours v. Abbott, in which the chemical company had asked them to decide whether a multidistrict litigation can be bound by the results of “bellwether” trials, which are conducted as test cases to give both sides a better idea of how they might fare and to shape a potential settlement.
Justice Brett Kavanaugh indicated that he would have granted the company’s petition for review, but he did not join a dissent by Justice Clarence Thomas. Justice Samuel Alito did not participate in the case.
When federal civil cases involving similar factual questions are filed in different jurisdictions, they may be transferred to one federal district judge for coordinated pretrial proceedings – a procedure known as multidistrict litigation. The Abbott case arose from a long-running multidistrict litigation against the chemical company DuPont by people who allege that they were injured by the company’s release of a chemical known as C-8, used in the production of Teflon, into the air, landfills, and river near its plant in Parkersburg, West Virginia.
The court designated six cases as bellwether cases. The first two cases resulted in jury verdicts for the plaintiffs, as did a third trial held after DuPont settled the remaining bellwether cases. DuPont then settled the rest of the multidistrict litigation cases, but some additional cases were filed, including one by Travis and Julie Abbott, who contend that Travis developed testicular cancer as a result of his exposure to water contaminated with C-8.
Before the Abbotts’ case went to trial, a federal district court ruled that, based on the trials that had already occurred, DuPont could not challenge several key issues going to its liability – such as whether Travis’s injury was foreseeable. A jury awarded the Abbotts over $40 million, and a divided panel of the U.S. Court of Appeals for the 6th Circuit upheld that decision.
DuPont came to the Supreme Court this summer, asking the justices to weigh in. It argued that the 6th Circuit’s decision “eviscerates a critical tool for resolving mass tort cases and violates basic principles of due process to boot.” But in a brief unsigned order, the justices rejected the company’s appeal.
In a five-page dissent, Thomas indicated that he would have granted DuPont’s petition, writing that he had “serious doubts” about whether bellwether trials could be used against defendants like DuPont in the context of multidistrict litigation.
Multidistrict litigation, Thomas explained, “is limited to pretrial proceedings.” Once those proceedings have ended, he wrote, each case should return to the district court where it was originally filed so that it can be resolved there on the merits. Bellwether trials, he observed, are intended to be used for “information gathering” only – not to “instead resolve multiple elements of a claim.” And the “expansive use” of binding bellwether trials in multidistrict litigation also raises questions about fairness, he stressed.
Because multidistrict litigation makes up “a large part of the federal docket,” Thomas concluded, “this issue should be resolved sooner rather than later. We should not sacrifice constitutional protections for the sake of convenience, and certainly at least not without inquiry.”
The justices’ next private conference is scheduled for Friday, Dec. 1.
Correction: An earlier version of this article incorrectly stated that Justice Neil Gorsuch, rather than Justice Samuel Alito, did not participate in the Abbott case.
This post is also published on SCOTUSblog.