This morning the Supreme Court issued orders from the justices’ private conference last week. The justices added one new case to their merits docket for next term: Ritzen Group v. Jackson Masonry, a bankruptcy case. The filing of a petition for bankruptcy creates an “automatic stay” – a freeze on most efforts by creditors to collect debts from the debtor. However, creditors can ask the bankruptcy court to lift the automatic stay. The question that the Supreme Court agreed to hear today in Ritzen Group is whether an order denying a creditor’s motion to lift the automatic stay is a final order that the creditor can appeal.
The justices did not act on a pair of petitions asking them to weigh in on the constitutionality of Indiana abortion laws: One petition, which the justices have considered at 14 consecutive conferences, asks the Supreme Court to review a ruling by the U.S. Court of Appeals for the 7th Circuit striking down a law that bans abortions based on the race, sex or disability of the fetus and requires fetal remains to be buried or cremated, while the other petition involves a challenge to the requirement that a pregnant woman obtain an ultrasound at least 18 hours before an abortion. The justices also did not act on the petition for review filed by an Oregon couple who declined on religious grounds to make a custom cake for a same-sex wedding.
Over a dissent from Justice Clarence Thomas, the justices denied review in Daniel v. United States, a case filed by Walter Daniel, who is a lieutenant commander in the Coast Guard. Daniel’s wife, Rebekah, was a lieutenant in the Navy when she went to a naval hospital in Bremerton, Washington, to give birth to the couple’s daughter. The baby was healthy, but a few hours later Rebekah bled to death.
As a general rule, the federal government cannot be sued. But in 1946, Congress passed the Federal Tort Claims Act, a federal law that allows some personal-injury lawsuits against the government. Just a few years after that, in a case called Feres v. United States, the Supreme Court ruled that members of the military cannot bring personal-injury claims under the FTCA for injuries that arise out of or take place during their service. The justices have repeatedly rejected requests to overrule the Feres doctrine, and today they denied Daniel’s petition for review, which had asked them to consider whether the Feres doctrine should apply to medical malpractice claims.
In a two-page dissent, Thomas emphasized that, as he had previously written, the Feres case “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” He noted that in Air & Liquid Systems v. DeVries, a decision this term involving veterans who developed cancer as a result of asbestos on U.S. Navy ships, the veterans sued the manufacturers because – as a result of the Feres doctrine – they could not sue the Navy. “This Court,” Thomas complained, “then twisted traditional tort principles to afford them the possibility of relief.” “Such unfortunate repercussions,” Thomas predicted, will continue unless and until the justices reconsider the doctrine
Justice Ruth Bader Ginsburg, who joined Justice Brett Kavanaugh’s opinion for the court in Air & Liquid Systems, did not join Thomas’ dissent, but she did indicate that she would have granted Daniel’s petition for review.
The justices also denied review in In City of Newport Beach v. Vos, involving whether the Americans with Disabilities Act requires police to accommodate a violent and mentally ill suspect when taking him into custody. The justices had granted review in 2014 to decide this question in another case, but dismissed the question without ruling on it. The city of Newport Beach, California, had appealed a decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by Richard Vos and Jennelle Bernacchi. In 2014, Vos and Bernacchi’s son, Gerrit Vos, was shot and killed by police officers in Newport Beach. Vos – who had been diagnosed with schizophrenia – went into a 7-Eleven and stabbed a clerk with a pair of scissors. Vos later ran toward the police officers with the scissors; police fired at him when he ignored orders to drop his weapon. Vos’ parents sued the city, alleging (among other things) that police had violated the Americans with Disabilities Act, and the 9th Circuit allowed the claim to go forward.
The justices will meet again for another conference on Thursday, May 23. We expect orders from that conference on Tuesday, May 28.
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 respondents in Air & Liquid Systems, and my husband, Tom Goldstein, argued the case.]