Supreme Court Action: Immigration, Statutes of Repose, and Bankruptcy

The U.S. Supreme Court issued three opinions this past Monday.  The first is Scialabba v. Cuellar de Osorio (12-930).  It addresses ambiguity in construing the Child Status Protection Act (CSPA).  Parts of it allow minors who have aged out (that is, turned 21 while waiting for consideration of a relative’s petition) to maintain their place in line for a visa while other parts seem to limit the circumstances in which that can happen.  The case is complicated, as Justice Kagan notes.  She sprinkles the plurality opinion with little gems such as:

(A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)  [Identifying the circumstances when aged-out children can qualify their position in line for a visa][P.3],


The full text of these three paragraphs, for the masochists among this opinion’s readers, is as follows: [text from footnote 8, P.8 quoting the statute at issue],


(Those hardy readers who have made it this far will surely agree with the “complexity” point.) [P.13].

Immigration law allows citizens and lawful permanent residents to petition for certain family members—spouses, siblings, and children of various ages—to apply for immigrant visas.  The process for granting a petition may take years or even tens of years.  Minors listed in a petition may turn 21 long before the process is completed.  The CSPA accounts for that in limited circumstances by allowing some aged-out children to maintain their place in line depending on whether the initial petitioner was a citizen or a lawful permanent resident.  The CSPA, however, contradicts itself in some circumstances.  Justice Kagan describes it as Janus-like.  I will suggest that the “masochists” out there read the text themselves as I find it hard to summarize.  The net effect is that the opinion limits the circumstances when children and other authorized minors can maintain their place in line for a visa after they turn 21.

Procedurally, the Board of Immigrant Appeals interpreted the provision narrowly, disfavoring the position of the respondents in this case.  The District Court granted summary judgment to the Government.  The Ninth Circuit on appeal reversed en banc.  The Supreme Court reversed again, holding for the Government.  The Board of Immigrant Appeals interpreted the contradictions in the statute reasonably.  That was entitled to deference under Chevron.

Justice Kagan could only muster two other Justices, Kennedy and Ginsburg, to join her.  Chief Justice Roberts and Justice Scalia concurred in the judgment.  The Chief Justice argues that the statutory conflict isn’t much of a conflict and would come to the same result without reaching deference under Chevron.  Justice Sotomayor dissented, arguing for a broad interpretation of the statute.  She was joined by Justice Breyer in full and Justice Thomas with the exception to footnote 3.

The next case is CTS Corp. v. Waldburger (13-339).  It concerns the distinction between a statute of limitations and a statute of repose.  They generally both do the same thing, limiting the time a cause of action may be prosecuted.  The difference, however, is a statute of limitations may be subject to equitable tolling in some circumstances while a statute of repose may not.  42 U. S. C. §9658 pre-empts state law statutes of limitation involving personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment.  Waldburger and others sued CTS over property formerly used as an electronics plant where CTS stored chemicals.  They were either owners of parcels where the factory once existed or adjacent land owners.  They claimed harm from the stored contaminants.  The suit was filed 24 years after CTS sold the property.  The question before the Court was whether §9658 covers both statutes of limitation and repose.

The District Court agreed with CTS that §9658 only covers statutes of limitation and not of repose.  The Fourth Circuit reversed holding that the remedial purpose of §9658 is served by pre-empting both.  The Supreme Court reversed the Fourth Circuit.  The Court analyzed the language of the statute as well as pre-legislative materials and concluded that Congress did not intend to pre-empt statutes of repose.  References to tolling, the “applicable limitations period,” and no references to statutes of repose are examples the Court used to draw its conclusion.

Justice Kennedy issued the opinion of the Court with the exception of Part II-D.  Justices Sotomayor and Kagan joined the opinion in full.  Chief Justice Roberts, and Justices Scalia, Thomas, and Alito joined the opinion with the exception of Part II-D.  Justice Scalia wrote a short opinion concurring in part and concurring in the judgment.  He was joined by Chief Justice Roberts and Justices Thomas and Alito.  Justice Scalia would use a different approach to statutory construction to reach the same result.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Breyer.  Justice Ginsburg reviewed the legislative history of the statute as well as the arrangement of the North Carolina laws to conclude that the Fourth Circuit was correct.

The last case issued on Monday is Executive Benefits Ins. Agency v. Arkinson (12-1200).  It’s a bankruptcy case covering the power of the bankruptcy judge to enter final orders in certain circumstances.  The problem in this case is that while Congress authorized that power to a bankruptcy judge by statute, an earlier Supreme Court case said that ability violated Article III.  The Court clarified that the bankruptcy court’s determination could be upheld when the district court conducts a de novo review of those determinations.  Justice Thomas delivered the opinion for a unanimous Court.–Mark

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