United States: Supreme Court Docket Report - October Term, 2004 – Number 1

Originally published September 28, 2004

Recently the Supreme Court granted certiorari in three cases of interest to the business community. Amicus briefs in support of petitioners will be due on Friday, November 12, 2004, and amicus briefs in support of respondents will be due on Friday, December 17, 2004.

1. Takings Clause — Requirement of "Public Use". The Takings Clause of the Fifth Amendment to the United States Constitution specifies that "private property [shall not] be taken for public use without just compensation." It is well established that the states may exercise their eminent domain power for urban renewal and blight removal. See Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). The Supreme Court granted certiorari in Kelo v. City of New London, No. 04-108, to clarify the scope of the "public use" requirement, and in particular to decide whether a state’s use of the eminent domain power for economic development that falls short of blight removal violates the Takings Clause.

New London is an economically distressed city in Connecticut. As part of a redevelopment plan for its waterfront, the city’s non-profit development corporation created a plan to redevelop a portion of the city’s Fort Trumbull neighborhood. After their houses were condemned as part of this redevelopment plan, several long-time residents of the neighborhood sued, arguing that the redevelopment was not for a public use but would instead merely generate profits for the private developers who would lease that land from the development corporation and undertake the redevelopment. The city defended the condemnations on the ground that the redevelopment would improve the local economy and in the process would create jobs and increase tax revenues. The Connecticut Supreme Court upheld the condemnations. 843 A.2d 500 (Conn. 2004).

This case obviously is important to all state and local entities faced with urban redevelopment issues. It is also critical to any entity that is delegated the state’s eminent domain power—including utilities and railroads—as well as private developers and others in the construction industry. The decision will also be important to landowners whose property is potentially subject to development, and who may have more bargaining power if the power of eminent domain is restricted. Any questions about this case should be directed to David Gossett (202-263-3384) in our Washington, D.C. office.

2. Telecommunications Act of 1996 — Challenge to Governmental Action Regarding Network Infrastructure — Availability of Remedies Under 42 U.S.C. § 1983. The Telecommunications Act of 1986 ("TCA") provides that any person who is adversely affected by governmental action or inaction concerning the placement, construction, or modification of personal wireless service facilities "may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction," which court "shall hear and decide such action on an expedited basis." 47 U.S.C. § 332(c)(7)(B)(v). The Supreme Court granted certiorari in City Of Rancho Palos Verdes v. Abrams, No. 03-1601, to resolve a circuit split regarding whether that provision forecloses a plaintiff from seeking damages and attorneys’ fees under 42 U.S.C. § 1983 for TCA violations within its scope.

The Ninth Circuit held that Section 332(c)(7)(B)(v) does not foreclose Section 1983 remedies. In so ruling, the court noted that the provision does not explicitly provide for any types of relief, but grants only procedural rights. 354 F.3d at 1097. It reasoned further that Congress expressed its intention to preserve Section 1983 remedies by providing that the statute "shall not be construed to modify, impair, or supersede Federal, state, or local law unless expressly so provided in [the TCA]." Id. at 1099 (quoting Pub. L. No. 104-104, § 601, 110 Stat. 143 (1996)). The Third and Seventh Circuits have reached the contrary conclusion, holding that the expedited review provided by Section 332(c)(7)(B)(v) is the sole remedy for TCA violations covered by the provision.

This case is important to all companies involved in the provision of personal wireless services. The Supreme Court will decide what remedies are available to businesses claiming that a governmental decision regarding network infrastructure violates their rights under the TCA. Any questions about this case should be directed to Craig Canetti (202-263-3276) in our Washington, D.C. office.

3. Americans with Disabilities Act — Public Accommodation and Transportation Provisions — Application to Foreign-Flag Cruise Ships. Title III of the Americans With Disabilities Act ("ADA") requires operators of public accommodations and public transportation services to provide disabled persons with access to their facilities and to remove certain physical barriers. 42 U.S.C. §§ 12182(b)(1)(A)(ii), (b)(2)(A)(iv). The Supreme Court granted certiorari in Spector v. Norwegian Cruise Line, Ltd., No. 03-1388, to decide whether these provisions apply to cruise ships operating under a foreign flag in U.S. waters. The Fifth Circuit answered that question in the negative (356 F.3d 341 (2004)), noting that Congress was silent on the issue and explaining that such silence "cannot be read to express an intent to legislate where issues touching on other nations’ sovereignty are involved." Id. at 646 (internal quotation marks omitted).

The Supreme Court’s decision will affect all companies that operate foreign cruise ships in the United States.

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