US Supreme Court Update for FDD Homeowners: Petition Distributed to Justices’ Chambers for Review; Decision as Early as October 1, 2019

We have important news from the United States Supreme Court about the progress of the Homeowners Petition for review in the FDD Homeowners Class Action, Lumbard et al. v. City of Ann Arbor.

As you may recall, on July 29, 2019, the FDD Homeowner Class Plaintiffs in Lumbard v City of Ann Arbor filed their Petition in the US Supreme Court for review of the Sixth Circuit’s opinion in the City’s favor on January 11, 2019. The City’s arguments and the Sixth Circuit’s opinion were both based on two older Supreme Court cases we have discussed before, Williamson County Bd of Comm’rs v Hamilton County Bank and San Remo Hotel v City of San Fransisco.

When the Sixth Circuit decided Lumbard, both of these cases were on life support in the US Supreme Court in a related case, Knick v. Township of Scott. By June 21, 2019, when the Court decided Knick, the two cases were dead, overturned and renounced When the the Sixth Circuit’s opinion was handed down on January 11, 2019, it had affirmed the result in the District Court, also on the basis of Williamson/San Remo tactics, while Knick was still pending in the Supreme Court.

Barely six months later, Justice Roberts wrote the biting majority opinion in Knick, sweeping away Williamson/San Remo, and its requirement for years of state court litigation as a condition of adjudication by a federal court. Roberts the made the conditions necessary to any future “San Remo preclusion trap”

The Homeowner Plaintiffs in Lumbard v City of Ann Arbor waited to file their Petition for Review in the US Supreme Court until after the Supreme Court had handed down its landmark decision in Knick v. Township of Scott on June 21, 2019.

As we reported previously, on August 27, 2019, the City waived its right to file an opposition in the Supreme Court to the Homeowners’ Petition. That sped up the process at the Supreme Court. So, as the Court announced last week, the Petition has been distributed to the nine Justices of the Court for its first level of review.

Next Steps in Review of Petitions for Certiorari

The first step in this review is for the Petition to be studied and analyzed by some of the best and brightest young lawyers in America, US Supreme Court Clerks, who will provide their results to the Justices. It doesn’t hurt that the Clerks for the Justices in the majority in Knick still have that signal case fresh in mind. Four justices are required to grant a petition.

The Justices will then decide individually whether the FDD Homeowners’ petition goes on to the next step: discussion of the Petition in one of the Justices’ future weekly private conferences.

When in the future? The date could have been set sooner or later, but the private conference is October 1, 2019, two weeks from today.

Before then, the Chief Justice gets the first crack at which petitions delivered to him as candidates for the “discuss list” for October 1. After that, the other eight Justices get their turn; any of them can add a petition to the “discuss list” or move one to a later conference date.

The Supreme Court does not publicly announce which cases are going to be discussed at a conference and which won’t. The press gets that information the day before, but it is not for publication.

When will we know the results for this Petition? This conference is on a Tuesday, while Supreme Court conferences are typically on Thursdays. Again, typically, the Court announces the next day what the results of the conference were — which cases were discussed and the Court’s disposition. Based on that, we should have a result between Wednesday, October 2, 2019 and Friday, October 4, 2019.

We will keep you posted.


FDD Class Plaintiffs File Petition with US Supreme Court to Overturn Sixth Circuit’s Judgement for City of Ann Arbor

Landmark SCOTUS Decision Eradicates Legal Barriers to Commencement of New Federal Litigation by Additional Class Action Plaintiffs

I am pleased to report that on July 29, 2019, the FDD Federal Class Action Plaintiffs in Lumbard et. al vs City of Ann Arbor filed their Petition with the United States Supreme Court review the United States Supreme Court to vacate the decision of the Sixth Circuit Court of Appeals in their consolidated cases.

Here is a link to the full document. If you read the relatively short arguments beginning on Page 20 you will get a brief version of the autopsy report on the City of Ann Arbor’s case in the FDD litigation since 2014.

The Plaintiffs’ Petition follows the decision of the Supreme Court on June 21 in Knick v Township of Scott, No. 17-647, 588 U.S. ___ 2019). As we discussed in an earlier post, Knick overturned the two cases on which the City’s successes in both state and federal court depended,  Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172  (1985) and San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323 (2005). 

In brief, after Knick, Williamson, San Remo, and all of the jurisprudence under them for 34 years, ceased to exist. The use by municipal governments of  Williamson and San Remo, as a tactic to preclude federal takings plaintiffs from their day in federal court, was on trial in the Supreme Court in Knick. The Court reacted with unusual force to the “unanticipated result” of preclusion of federal takings plaintiffs under San Remo, particularly where the plaintiffs have spent years in state court formerly required under Williamson. 

The Court made such tactics legally impossible even to be attempted post-Knick. Justice Roberts carefully eliminated all the precedents and doctrines that underlay the use of “preclusion traps,” root and branch. The City of Ann Arbor will go down as one of the last municipalities–if not the last–to employ a San Remo trap successfully to preclude federal takings plaintiffs from an independent federal forum for their claims.

Because of Knick, the Sixth Circuit decision in Lumbard did not end litigation arising from the City’s Footing Drain Disconnection Program at all. The Lumbard case is very much alive. Independent of its effect on Lumbard, Knick also removed any barriers to a new class action by a further class action by another class representative, this time commenced in federal court, federal court, by a new class plaintiff. We will have some details on that in a separate post.

Only four Justices are required to grant a Petition; there were five in the majority in Knick. Additionally, the Court has already granted the Petition of another takings plaintiff from the Ninth Circuit while the case was was still “in process” in the federal courts when Knick was handed down by the Supreme Court. The whole Court (not just the majority justices in Knick) granted summary relief, vacated the judgment of the Ninth Circuit and ordered “further proceedings not inconsistent with the decision in Knick.” Lumbard  is also “in process,” as discussed in the attached Petition. The Court’s handling of the earlier Ninth Circuit plaintiff is at least some indication of the direction the Court may take in the case of the Petition now before it. 

Next Steps at the Supreme Court and Timing

Here is a good brief summary on Supreme Court process from A Reporters Guide to Applications Pending Before The Supreme Court of the United States:

Q:How long does it take the Court to act, once a petition has been filed?

A: On the average, about six weeks. Once a petition has been filed, the other party has 30 days within which to file a response brief, or, in some cases waive his/her right to respond. Once the 10 day period for receiving a reply brief has passed, the case is circulated to the Justices and placed on a conference list, for consideration at one of the Justices’ private Friday conferences. Copies of conference lists are available to news reporters for their convenience ONLY, and not for publication. Cases appearing on a conference list may reasonably be expected to appear on the following Monday’s Order List (the announcement of dispositions in pending cases) although this is not always the case. If a case does not appear, it will be relisted for consideration at a future conference. If the petition is granted, the petitioner has 45 days within which to file a brief on the merits, and the respondent has 35 days within which to file the brief in response, for a total of about 80 days. The petitioner may then file a reply brief up to one week prior to the date oral argument has been scheduled.  

The City of Ann Arbor’s Response Brief, if any, looks like it will be due on September 3, 2019. We will have the official date from the Supreme Court shortly. The Plaintiffs’ Reply Brief will be filed no later than September 13, so its reasonable to expect the Petition will be circulated to the nine Justices the week of September 16, 2019.

Irvin Mermelstein