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11th Cir. SCOTUS Grants: Fish Shrinkage, Cell Tower, Railroad Tax

By William Peacock, Esq. on October 10, 2014 | Last updated on March 21, 2019

We could start with cell towers disguised as trees. Or railroad fuel tax. But no, the case we really want to talk about, and the first case out of the Eleventh Circuit that will be argued this year, is the "One fish, two fish, red fish, short fish" case, where a guy, who was debating the size of his red grouper, tossed the fish overboard and was prosecuted under a banking statute (Sarbanes-Oxley) for destroying the evidence.

Only then will the Court will get to the Monopine, and what a city must do to keep these man-made mockeries of nature out of their neighborhood. And after that? Whether Alabama can gouge rail carriers for a sales-and-use tax while exempting trucks and boats.

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Yates v. United States (Oral Argument: November 5)

We've already written a full preview of this case because it is magnificent. Guy catches fish. Federal fisheries officer boards his boat and tried to cite him for having fish that were shorter than 20 inches, leading to an excellent discussion on the finer points of grouper measurement by the Eleventh Circuit.

Long story short, John Yates tossed his haul overboard and was charged with violating Sarbanes-Oxley. He's arguing that the vague Section 1519 (the "anti-shredding provision" of the act), which does not define "tangible object" and doesn't put him on notice as to whether his conduct was illegal -- the Rule of Lenity argument. Meanwhile, amicus briefs are making a similar point: An isolated provision of a statute should be read in context, and this is a banking statute -- here, we're talking about fish! Alas, the Eleventh Circuit upheld Yates' fish-flinging convictions.

Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, where the term "tangible object" is ambiguous and undefined in the statute, and unlike the nouns accompanying "tangible object" in Section 1519, possesses no record-keeping, documentary, or informational content or purpose?

T-Mobile South, LLC v. City of Roswell (Oral Argument: November 10)

T-Mobile wanted to install a fake pine tree cell tower in a vacant lot in the middle of a neighborhood. The residents revolted, including in a town meeting, and as a result, Roswell, Georgia, rejected the company's application via a letter that referenced the minutes of the town hall meeting. T-Mobile sued, arguing that Roswell violated the Telecommunications Act of 1996 by not providing the rejection, and reason for rejection, in writing.

The Eleventh Circuit held that the letter, and the reference to the meeting minutes, sufficed to meet the statutory requirement of "shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii).

Issue: Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever (other than referencing the minutes) for the denial, can satisfy this statutory "in writing" requirement.

Alabama Department of Revenue, et al. v. CSX Transportation, Inc. (Oral Argument: December 9)

Alabama charges a 4 percent sales-and-use tax, which rail carriers pay when they purchase diesel fuel. However, truckers and water carriers, which are exempt from that tax, pay a $0.19 per gallon excise tax.

The Railroad Revitalization and Regulatory Reform Act of 1974 says that local and state taxes can't discriminate against rail carriers. After a long and torturous procedural history, including a prior SCOTUS trip (see The Oyez Project for more details), the case made it back to the Eleventh Circuit, where it held that the tax was discriminatory because the state had not offered sufficient justification for exempting non-rail competitors from the sales-and-use tax, even though they were, in the end, paying about the same amount in excise tax.

Issue: Whether a State "discriminates against a rail carrier" in violation of 49 U.S.C. §11501(b)(4) when the State generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads' competitors.

Bonus SCOTUS-added issue: Whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. §11501(b)(4), a court should consider other aspects of the State's tax scheme rather than focusing solely on the challenged tax provision.

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