Court Rejects “De Minimis” Educational Plans Under IDEA
The Court returned again to the Individuals with Disabilities Act’s requirement of a “free appropriate public education” in Endrew v. Douglas County School Dist. RE-1, in which an autistic child’s parents removed him from the public school system after the school district proposed an educational plan that, in their view, did not address his needs, had resulted in his progress being stalled, and mostly re-iterated past plans. Once the child attended private school, he improved significantly, and the parents sued the school district for the cost incurred, arguing that failure to provide a suitable plan violated the Act. The Tenth Circuit affirmed the dismissal of the parents’ complaint, holding that the school district only had to propose a plan that conferred anything more than a “de minimis” benefit to comply with the Act. The Court, in a unanimous opinion by Chief Judge Roberts, reversed, holding that a plan “must aim to enable the child to make progress . . . in light of the child’s circumstances,” which requires that the plan be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The Court firmly rejected the “de minimis” standard, saying that a plan offering only that “can hardly be said to . . . [be] an education at all.” A link to the opinion is here.
Court Extends Copyright Protection to Cheerleader Uniform Designs
A cheerleader uniform itself is a “useful article” not entitled to copyright protection. Nevertheless, Star Athletica copyrighted over 200 designs that it puts on the cheerleader uniforms it makes and sells. It sued a competitor that used those designs on its cheerleader uniforms for infringement. The district court held that the designs could not conceptually or physically separated from the uniforms, and thus were not copyrightable, but the Sixth Circuit reversed. The Court, in a 6-2 decision by Justice Thomas, reversed the Third Circuit, holding that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work . . . if it were imagined separately from the useful article into which it is incorporated.” These designs qualified because they would qualify as two-dimensional works of art if put into another medium. Justice Breyer, joined by Justice Kennedy, dissented, agreeing with the legal standard set by the majority, but arguing that the designs were inseparable from the cheerleader uniforms themselves, and thus should not receive copyright protection. A link to the opinion in Star Athletica, LLC v. Varsity Brands, Inc. is here.
A Structured Dismissal In Chapter 11 Bankruptcy Cannot Bypass Secured Creditors Without Consent
In Czyzewski v. Jevic Holding Corp., certain secured creditors of a company in Chapter 11 bankruptcy objected to a structured dismissal of that proceeding, in which certain lower-priority general unsecured creditors would be paid but the secured creditors got nothing. The bankruptcy court, district court, and Third Circuit affirmed the dismissal, holding that it was not necessary to follow normal priority rules in a structured dismissal. The Court, in a 6-2 decision by Justice Breyer, reversed, holding that the priority system in bankruptcy “constitutes a basic underpinning of business bankruptcy law,” and nothing in the statute allowed for structured dismissals to evade that fundamental rule. The Court further rejected the notion that such a dismissal could be appropriate in a “rare case.” Justice Thomas, joined by Justice Alito, dissented, arguing that the writ of appeal should have been dismissed as improvidently granted because the question the petitioners argued, and the Court decided, was not the question the Court granted certiorari to hear. A link to the decision is here.
Unlawful Seizure Claim Can Accrue After Legal Process Begins
Elijah Manuel was arrested on suspicion of possessing ecstasy, when in fact he only had vitamin pills. Based on an officer’s false affidavit, the trial judge found probable cause to imprison Manuel until trial. More than two years after his arrest, but less than two years after the charges against him were dismissed, Manuel sued the city and the police officers for unlawful detention under the Fourth Amendment. The district court dismissed his claims as untimely under the statute of limitations, and the Seventh Circuit affirmed. Under the Seventh Circuit’s precedent, a Fourth Amendment claim could not accrue after legal process began, which conflicted with the decisions of ten other courts of appeal. The Court, in a 6-2 opinion by Justice Kagan, reversed and remanded, holding that a Fourth Amendment claim can accrue after legal process begins—in this case, the trial court’s finding of probable cause. Because that probable cause finding was based on fabricated evidence, the Court held that Manuel’s harm continued to accrue, and was founded under the Fourth Amendment as opposed to the Due Process Clause. The Court then remanded to the Seventh Circuit for a determination of when Manuel’s claim accrued under traditional tort principles. Justice Alito, joined by Justice Thomas, dissented, arguing that while he agreed that a Fourth Amendment claim could accrue after a first appearance, it could not continue to accrue for as long as detention occurred, and also argued that the Court should have determined the actual issue that was properly before it—whether a malicious prosecution claim could be brought under the Fourth Amendment. Justice Thomas filed a separate dissent, stating that he would leave to another day the decision whether accrual of an unlawful seizure claim occurred upon arrest or first appearance. A link to the decision in Manuel v. City of Joliet is here.
Laches Defense Not Applicable to Patent Act Claim
In the 2014 decision of Petrella v. Metro-Goldwyn-Meyer, the Court held that a laches defense was inapplicable where a claim was brought within the Copyright Act’s three-year statute of limitations. In SGA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, Justice Alito for a 7-1 Court held that the same reasoning extended to the Patent Act’s six-year statute of limitations. The Federal Circuit upheld the application of laches on the basis that the Patent Act permits “defenses,” but the Court held that such defenses could not supersede the express statute of limitations without permitting judicial fiat to override the will of the legislature. Justice Breyer dissented, arguing that laches did still play a part in patent law by addressing the situation where an patent-holder is aware of infringement in Year One, but holds off suing the infringer until, say, Year Fifteen, seeking to collect damages only since Year Nine. A link to the opinion is here.
Court Limits President’s Power to Make Appointments
In 2010, President Obama appointed Lafe Solomon as acting general counsel for the NLRB—temporarily filling a position that normally required confirmation by the Senate. Solomon was qualified for that position under the Federal Vacancies Reform Act of 1998, since he was senior NLRB employee (though not a first assistant). President Obama then nominated him for the position, which the Senate never acted upon and was ultimately withdrawn. However, another section of the Act prohibited a person from serving in the “acting” role while being nominated for that position, who had not, in the year prior to vacancy, served as first assistant for at least 90 days. When the NLRB, under Solomon’s authority, and while his nomination was pending, issued a complaint against SW General, Inc. for unfair labor practices, SW General countered that Solomon was not permitted under the Act to serve as acting general counsel, and thus the complaint could not issue. The D.C. Circuit agreed with SW General, and the Court, in a 6-2 opinion by Chief Justice Roberts, affirmed. The government tried to argue that the prohibition only applied to those who were first assistants at the time of the vacancy, and not other senior positions like Solomon had, but the Court rejected that interpretation, relying on the plain text of the Act. Justice Thomas filed a concurrence, arguing that the Appointments Clause prohibited Solomon’s appointment even if the Act permitted it. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that the limitation of the Act should have only applied to first assistants, and not others like Solomon. A link to the opinion in NLRB v. SW General, Inc. is here.
Court Carves Out Racial-Bias Exception to Jury No-Impeachment Rule
To protect the sanctity of jury verdicts, the common law, and now Fed. R. Evid. 606(b), prohibited impeachment of such verdicts through juror testimony or affidavits, except in very narrow circumstances addressing improper external influences or the like. In Peña-Rodriguez v. Colorado, after a jury found that the defendant was guilty of unlawful sexual contact and harassment, two jurors told defense counsel that one of the jurors had expressed anti-Hispanic bias during deliberations. The trial court held that it could not consider the jurors’ testimony when the defense moved for a new trial, and that decision was upheld through the Colorado Supreme Court. The Court, in a 5-3 ruling authored by Justice Kennedy, reversed, holding that the Fourteenth Amendment permitted a racial-bias exception to the no-impeachment rule because such bias causes “systematic injury to the administration of justice.” Only juror statements that exhibit “overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict” would qualify for the exception, with the trial judge having substantial discretion in weighing the statements. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that the Court’s exception, while “well-intentioned,” threatens to undermine the frankness of juror deliberations, and that existing protections, like the voir dire process, are sufficient under the Constitution. Justice Thomas separately dissented to explain why the “original understanding of the Sixth [and] Fourteenth Amendments” contradicted the Court’s decisio. A link to the opinion is here.
Sentencing Guidelines Protected from Void-For-Vagueness Challenge
Travis Beckles was convicted of possession of a sawed-off shotgun, which at the time was considered a “crime of violence” under the Sentencing Guidelines’ residual clause, which included “conduct that presents a serious potential risk of physical injury to another.” That designation made Beckles a “career offender” and resulted in a 360-month sentence. While Beckles’ appeal was pending, in 2015 the Court held in Johnson v. United States that an identical residual clause in the Armed Career Criminal Act of 1984 was unconstitutionally vague. The Eleventh Circuit held that the Guidelines’ residual clause was not unconstitutionally vague, and the Court, in a 7-0 opinion by Justice Thomas (with Justice Kagan recused), affirmed. The Court reasoned that the Act’s residual clause required sentencing courts to increase a defendant’s statutory range of prison sentences, which implicated void-for-vagueness constitutional concerns, while the Guidelines’ residual clause only guided the trial court’s discretion in choosing an appropriate sentence within the statutory range. Justice Kennedy filed a brief concurrence, noting that “vagueness” as a general matter is different from what might be vague from a judicial-discretion context. Justice Ginsburg, concurring in the judgment, argued that Beckles could not argue that the residual clause was vague as to him or as to others because the commentary of the Guidelines expressly listed possession of a sawed-off shotgun as meeting the requirements of the clause, and that should have ended the matter. Justice Sotomayor also concurred in the judgment only, stating that Justice Ginsburg’s limited ruling was preferable, and it was imprudent for the Court to further insulate the Guidelines from vagueness challenges. A link to the opinion in Beckles v. United States is here.
Court Clarifies Standard for Judicial Bias
While Michael Damon Rippo was on trial for murder, he learned that the trial judge was the target of a federal bribery probe, and believed that the prosecutor on his case was involved in the investigation. He was convicted and sentenced to death. The trial judge refused to recuse himself, and another judge denied Rippo’s motion for a new trial. The Nevada Supreme Court declined Rippo’s request for postconviction relief, finding that Rippo’s allegations “d[id] not support the assertion that the trial judge was actually biased in this case.” The Court, in a unanimous per curiam decision, vacated that ruling because the state court applied the wrong legal standard. The Court held that “recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” There is no requirement of a finding of bias in the particular case before the judge. A link to the opinion in Rippo v. Baker is here.
Racial Gerrymandering Claims Sent Back To Virginia For Another Look
Virginia redrew twelve districts to ensure that each had a black voting-age population of at least 55%, which brought on gerrymandering challenges under the Voting Rights Act. The three-judge district court rejected the challenges, holding that as to eleven of the districts the petitioners had failed to show “that race was the predominant factor motivating the legislature’s decision” to so draw the boundaries, holding that race predominates only when there is an “actual conflict between traditional redistricting criteria and race.” As to the twelfth district, the district court found that race did predominate, but the boundary lines were constitutional because the 55% target was narrowly tailored to meet the compelling state interest of abiding by the Act. In Bethune-Hill v. Virginia State Board of Elections, Justice Kennedy’s opinion for the majority agreed as to the twelfth district, but reversed and remanded as to the other eleven, holding that the district court misapplied the legal standard. First, the Court noted that race may predominate even when a plan respects traditional redistricting principles, and such predominance might be shown through direct or circumstantial evidence. Second, the district court must use a “holistic analysis” and consider evidence beyond just the district itself in determining whether the legislature used race as a predominant motive. Justice Alito filed a concurrence, agreeing with the Court’s decision but advocating that the eleven districts should be evaluated with strict scrutiny, as it was evident that race was the predominant motivation for drawing the district lines. Justice Thomas concurred in part and dissented in part—he agreed with Justice Alito that strict scrutiny should apply to the eleven remanded districts, but argued that the twelfth district did not meet strict scrutiny, and that Section 5 of the Act should be deemed unconstitutional. A link to the opinion is here.
Court Orders Second Look At Disabled Child’s Discrimination Lawsuit
Further to the Individuals with Disabilities Education Act (“IDEA”), which guarantees disabled children a “free appropriate public education” (“FAPE”), Congress passed the Handicapped Children’s Protection Act, which permitted disabled children to bring claims under the ADA, Rehabilitation Act, and similar laws through IDEA, although IDEA’s administrative procedures must first be exhausted if the child’s claim seeks “relief that is also available under [the IDEA].” In Fry v. Napolean Community Schools, a public school refused to accept a disabled child’s service dog, and the child sued seeking declaratory and monetary relief. The district court dismissed the case because the child had not first exhausted IDEA’s administrative remedies, and the Sixth Circuit affirmed. The Court, in a unanimous opinion by Justice Kagan, vacated and remanded, holding that the exhaustion requirement was only for cases alleging denial of FAPE, and it was not clear in this case that the child’s claims centered on whether she had been denied a FAPE, as opposed to alleging she was discriminated against. The Court suggested that courts ask whether the same claim could have been brought against a non-school public facility, or whether an adult at the school could have brought the same claim, to ascertain the “gravamen” of whether a FAPE claim had been made. Justice Alito, joined by Justice Thomas, concurred, but argued that the Court’s suggestions, while meant to assist the lower courts, may instead lead them astray. A link to the opinion is here.
Shipping A Single Component Does Not Violate Patent Act
The Patent Act prohibits “all or a substantial portion of the components of a patented invention” from being shipped abroad to be combined elsewhere. In Life Technologies Corp. v. Promega Corp., Promega licensed its patent over a genetic testing toolkit to Life Technologies. That toolkit had five components, one being a particular enzyme. Life Technologies shipped that enzyme to the UK to be combined with the other four components. Promega sued when Life Technologies started selling the toolkit beyond the scope of the permitted use. The Federal Circuit held that a single component could be a “substantial portion” of a patent, and held that the enzyme in question was such a component, thus granting judgment to Promega. The Supreme Court, in a unanimous opinion by Justice Sotomayor, reversed and remanded, holding that a single component can never be a “substantial portion” of a patent, and rejected Promega’s “case-specific approach” of weighing whether a particular component might be “substantial” in a given patent’s context. The Court found the Patent Act’s repeated reference to “components” in the plural “indicates that multiple components constitute the substantial portion.” Justice Alito, joined by Justice Thomas, filed a concurrence, rejecting the majority’s analysis of legislative history (as Justice Scalia might have done), and noting that the Court’s ruling does not implicitly hold that “any number greater than one is sufficient[,]” merely that one is not enough. A link to the opinion is here.
Court Vacates Racially-Tinged Death Sentence
Duane Buck was convicted of killing his former girlfriend and her friend. Under Texas law, he could receive a death sentence only if the jury found that he was likely to commit future acts of violence in the future. Buck’s lawyer called psychologist Dr. Quijano to the stand, who opined based on his report that Buck was not likely to commit such future acts. However, Dr. Quijano did state in his report that Buck was statistically more likely to be a future danger because he was black. The jury returned a death sentence. Buck appealed, but failed to include the claim that he had ineffective assistance of counsel due to his own counsel’s use of Dr. Quijano. Dr. Quijano’s racially-tinged testimony in six other cases resulted in re-sentencings, but Texas fought Buck’s claim. Buck then sought federal habeas relief, arguing that subsequent Supreme Court rulings may allow him to re-raise the ineffective assistance of counsel claim, and that his case constituted “extraordinary circumstances” entitling him to relief. The Fifth Circuit rejected his request for a certificate of appealability, but the Supreme Court, in a 6-2 opinion by Chief Justice Roberts, reversed and remanded. First, the majority held that the Fifth Circuit should have granted the certificate since Buck’s claim was at least “reasonably debatable,” especially given the Fifth Circuit’s lengthy examination of the matter. Next, the majority held that Buck had demonstrated ineffective assistance of counsel, since “no competent defense attorney would introduce evidence that his client is liable to be a future danger because of his race.” Finally, the majority held that the reasonable prospect that Buck was convicted because of the color of his skin “poisons public confidence” in the justice system and constituted “extraordinary circumstances” that required reversal. Justice Thomas, joined by Justice Alito, dissented, arguing that the majority’s holding was entirely outcome-based, and the majority simply disagreed with how the lower courts applied the law instead of making any changes to that law, implying that this case was restricted to its novel facts. A link to the opinion in Buck v. Davis is here.
Federal Courts Do Not Automatically Have Jurisdiction Over Fannie Mae Cases
By statute, Fannie Mae has the power “to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” When two former homeowners filed suit in state court against Fannie Mae over a foreclosure, Fannie Mae removed the case to federal court. The district court and the Ninth Circuit ruled on the merits against the homeowners, but the Ninth Circuit divided on whether Fannie Mae’s “sue-or-be-sued” clause automatically conferred jurisdiction on the federal courts, the majority believing that American Nat. Red Cross v. S.G., 505 U.S. 247 (1992) did confer such jurisdiction. This exacerbated a split among the circuits. In a unanimous opinion authored by Justice Sotomayor, the U.S. Supreme Court reversed, holding that the language “court of competent jurisdiction” meant a court already endowed with subject matter jurisdiction. Therefore, Fannie Mae could not remove a case to federal court unless the case contained a federal question or was properly diverse, just like any other defendant. A link to the opinion in Lightfoot v. Cendant Mortgage Corp. is here.
An Officer Late to the Scene Gets Qualified Immunity for a Shooting
A police officer generally receives qualified immunity unless his or her conduct violates a “clearly established statutory or constitutional right” that is “beyond debate.” In White v. Pauly, Officer White arrived late to a confrontation between armed occupants of a home and other police officers already outside. Without communicating with the other officers, White heard the occupants shout “we have guns!” at which point he took cover behind a stone wall. When one of the occupants pointed a handgun out a window, White shot and killed him. The district court and the Tenth Circuit both denied White qualified immunity, deciding that White should not have used deadly force without first warning the deceased occupant to drop his weapon. The U.S. Supreme Court, in a unanimous, per curiam opinion, reversed, reminding the lower courts yet again that “clearly established law” should not be defined “at a high level of generality.” Unless the precedent is “particularized to the facts of the case” at bar, and prohibits the conduct in question, the officer is entitled to qualified immunity. Here, the circumstances were unique, given White’s late arrival to the scene, and thus protected. Justice Ginsburg concurred on the understanding that the trial court, on remand, could still demand summary judgment to the officers based on factual disputes in the record. A link to the opinion, issued on January 9, 2017, is here.
Stealing Money from a Bank Account Is “Defrauding a Financial Institution”
Perhaps getting a bit too creative for his own good, Lawrence Shaw argued that his conviction under 18 U.S.C. sec. 1344(1), for “executing a scheme . . . to defraud a financial institution,” should be overturned because what he really did—steal information about a person’s bank account so he could take funds from that person’s account—did not defraud the bank itself, but rather just the person he stole from. The Court, in a unanimous opinion by Justice Breyer, slammed the door shut on that potential loophole, and affirmed the conviction, noting at the outset that the bank did indeed have “property rights” in a depositor’s funds, at minimum like a bailee. Even if the bank itself suffered no loss, the statute’s prohibition still applied. However, the Court granted Shaw a slight victory: he complained that his jury instruction might have led the jury to believe that he could be convicted under the statute without it being proven that his scheme was intended to deprive the bank of “something of value.” The Court vacated and remanded for further proceedings on the instruction, although noting that the Ninth Circuit could find that the error was harmless. Given the facts and the Court’s opinion, harmless error would seem likely. A link to the opinion in Shaw v. United States is here.
Court Vacates Apple’s $399 Million Award Against Samsung
Apple suffered a setback in its legal war with Samsung, as a unanimous Court vacated and remanded a jury verdict under the Patent Act for recalibration. Apple originally sued Samsung because Samsung started churning out smartphones that looks a lot like the iPhone. In actuality, though, Apple had only patented parts of the iPhone, like the black rectangular front face with rounded corners, and a grid of 16 colorful icons on a black screen. The jury found Samsung guilty of patent infringement, and awarded Apple the entirety of Samsung’s profits from selling the infringing smartphones. The Federal Circuit affirmed, noting that while the Patent Act limited damages to those caused by the infringing “article of manufacture,” it was impossible to separate the infringing articles from the rest of the smartphone. The Court, through an opinion by Justice Sotomayor, rejected that analysis, holding that “article of manufacture” as defined by the Act covers both “a product sold to a consumer and a component of that product,” and thus damages from infringement can and should be limited only to the infringing articles, and not necessarily the final product that incorporates those articles. Thus, Apple’s damages award needed to be recalculated, although the Court declined to offer how to go about doing so. A link to the opinion in Samsung Electronics Co. v. Apple, Inc. is here.
Insider Trading “Personal Benefit” Inferred When Information Is Given To A Relative
After the Court held in Dirks v. SEC, 463 U.S. 646, that liability for insider trading could be inferred where the tipper gave the confidential information to a trading relative or friend, the Second Circuit held in U.S. v. Newman, 773 F.3d 438, that there also needed to be proof of a meaningfully close personal relationship between the tipper and tippee that generated in an exchange of some pecuniary gain. The Ninth Circuit rejected the Second Circuit’s test and affirmed the conviction of Salman, who received insider information from a brother-in-law without there being any benefit to the original tipper, the brother-in-law’s brother. The Court, in a unanimous opinion by Justice Alito, affirmed the Ninth Circuit’s holding and rejected the Second Circuit’s additional gloss. The Court re-affirmed Dirks, holding that when a person gives insider trading information to a family member, that is enough to infer a personal benefit by the tipper, regardless of whether the tipper received an actual benefit. A link to the opinion in Salman v. United States is here.
Court Rejects Dismissal Of False Claim Act Cases For Violation Of Seal Requirement
When a party files a complaint on behalf of the Government under the False Claims Act, the Act requires that “[t]he complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” In State Farm First & Casualty Co. v. United States ex rel. Rigsby, former famous tort lawyer Dickie Scruggs filed such a complaint under seal as required, but released certain information about the action to the news media in violation of the seal requirement. The defendants moved to dismiss the complaint, on the presumption that violation of the seal requirement mandated dismissal—the defendants did not request any other relief. The district court declined to dismiss the case, and the Fifth Circuit affirmed. The Court, in a unanimous decision by Justice Kennedy, affirmed as well. While noting that the FCA’s seal requirement was mandatory, the Court noted that the Act lacked any explicit language requiring dismissal. The Court also recognized that the purpose of the seal requirement was to protect the Government’s potential interest in the lawsuit, and such interest would not be served if the requirement were read to require the dismissal of the lawsuit. A link to the opinion is here.
Vacated Guilty Verdicts Not Subject to Issue Preclusion
The Double Jeopardy Clause prevents a person from being prosecuted a second time after a jury acquits based on findings of fact. The U.S. Supreme Court had previously held that the Clause did not apply when a jury returns a verdict that is rationally irreconcilable—convicting on one count but acquitting on the other when both counts turned on the same issue of law. However, the Clause does apply where a jury acquits on one count and is hung on the other, even though both turned on the same issue of law. But what if the jury enters inconsistent verdicts, and the appeals court vacates the guilty verdict based on an erroneous jury instruction? The defendants in Bravo-Fernandez v. United States were convicted of bribing a government official, but acquitted of conspiring to bribe, or of violating the Travel Act in bribing the official. Since the only issue at trial was whether the defendants bribed the official, the acquittals were inconsistent with the conviction. On appeal the U.S. Court of Appeals for the First Circuit reversed the conviction based on an errant jury instruction. The defendants then moved for acquittal based on the premise that the other acquittals precluded a retrial. The First Circuit disagreed, and the Court, in a unanimous opinion by Justice Ginsburg, affirmed, holding that the vacatur of the guilty verdict did not fundamentally change the fact that the jury entered inconsistent verdicts at the outset, which nixes the application of the Clause. Justice Thomas filed a concurrence, arguing that the Clause should only prohibit successive prosecutions for the same act and crime, and the Court was wrong to extend the Clause to prosecutions for distinct crimes based on shared facts. A link to the opinion is here.
Supreme Court Clarifies Use of Victim Impact Statements
On October 11, 2016, the U.S. Supreme Court issued a per curiam opinion in Bosse v. Oklahoma, holding that Payne v. Tennessee, 501 U.S. 808 (1991) did not completely overrule the opinion in Booth v. Maryland, 482 U.S. 496 (1987), which held that victim impact statements that did not “relate directly to the circumstances of the crime” were invalid under the Eighth Amendment. Payne held only that Booth did not prohibit victim impact statements relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family. Therefore, the Oklahoma appellate court was incorrect in permitting victim impact statements as to the appropriate punishment of a convicted murderer, and the sentence of death was reversed. Justice Thomas, joined by Justice Alito, concurred, hinting that he believes Booth was incorrectly decided in the first place. A link to the opinion is here.
On June 27, 2016, the Court issued the last opinions from its October 2015 Term. The Court will next convene on October 3, 2016 for the next term.
Court Strikes Down Texas Abortion Statutes As Unduly Burdensome
In 2013 the Texas legislature enacted two new laws governing abortion: one required that any doctor performing an abortion must have admitting privileges at a hospital not further than 30 miles from where the abortion was performed, and the other requiring that abortion facilities adhere to the same standards as surgical centers. Texas argued that both provisions served to protect the health of women seeking abortions, but opponents argued that the result would be restricted access to abortion. Shortly thereafter, a group of abortion providers filed suit arguing that the admitting-privileges law was facially unconstitutional, and lost before the Fifth Circuit. The providers chose then not to appeal to the Supreme Court, but instead filed a new suit making the same constitutionality argument, now also challenging the surgical-center law, and providing evidence that the laws greatly reduced the number of abortion clinics in the state. The Fifth Circuit again found that the laws were constitutional, and the Court, in an opinion by Justice Breyer, reversed. First, the Court held that the prior lawsuit did not preclude the instant suit because the former was litigated prior to enforcement, while the current suit was litigated after its enforcement, when there was evidence of the laws’ effects. Therefore, the claims were not the same. The Court also reasoned that it was not precluded from awarding facial relief to as-applied claims, and that the petitioners were not precluded from raising the surgical-center law now. On the merits, the Court then ruled that both laws created an undue burden on women seeking abortions by forcing abortion providers to close without providing substantial health benefits to women. Justice Ginsburg filed a concurrence to cite evidence that complications from abortions are too low to warrant the need for either law. Justice Thomas, in dissent, argued that the majority’s opinion showed how the “law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law,” such as the “oddity” that abortion providers could be allowed to file suit to vindicate the rights of their patients. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, also dissented, arguing that the majority bent the standards for issue preclusion and undue burden, and that it went too far in striking the laws without accounting for their severability clauses. A link to the opinion in Whole Women’s Health v. Hellerstedt is here.
Former Virginia Governor’s Corruption Convictions Vacated
The Court, in a unanimous opinion by Chief Justice Roberts, vacated former Virginia Governor Robert McDonnell’s convictions for bribery, related to his acceptance of $175,000 from businessman Jonnie Williams while he was in office. Key to the convictions was the determination of what constituted an “official act” that, when given in return for the gift in a quid pro quo, violated the law. The acts McDonnell was convicted of involved arranging meetings between Williams and government officials, hosting events for Williams’s company at the governor’s mansion, and contacting other government officials about studies of a product that Williams’s company produced. The Fourth Circuit affirmed those convictions. The Court, however, refused to adopt the prosecution’s broad view of an “official act,” and instead held that to qualify as an “official act,” there must be some kind of “decision or action” taken involving a formal exercise of government power, or that such a decision or action is promised—merely setting up meetings was not sufficient. The Court further noted that a broader interpretation of the term would “cast a pall of potential prosecution” over every meeting a public official arranges with constituents, which is supposed to be a routine occurrence. However, the Court declined to dismiss the charges entirely—the case was sent back to the district court to be retried under the proper interpretation of “official acts.” A link to the opinion in McDonnell v. United States is here.
Reckless Domestic Assaults Qualify To Sever Firearms Rights
Federal law prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing a firearm. In Voisine v. United States, two men were convicted under that law for having been previously convicted of “intentionally, knowingly or recklessly causing bodily injury” in domestic assaults under Maine law. The men argued that their convictions should not qualify under the federal law because it was possible they were convicted for reckless activity, as opposed to intentional or knowing activity. The First Circuit affirmed the convictions, and the Court, in an opinion by Justice Kagan, affirmed. The majority noted that the definition of domestic violence as the “use . . . of physical force” necessarily encapsulated reckless force as well as intentional force. Justice Thomas, joined in part by Justice Sotomayor, dissented, arguing that “use of physical force” required intentional conduct aimed at the victim, as opposed to reckless force against an object (like slamming a door) which incidentally causes harm to a person. For himself, Justice Thomas also argued that it was proper to read the statute narrowly to avoid impugning Second Amendment rights. A link to the opinion is here.
Justice Kennedy Reverses Course, Upholds Affirmative Action
In the first round of Fisher v. University of Texas, the Court held that the university’s affirmative action program for admitting applicants needed to be reviewed under strict scrutiny. The Fifth Circuit upheld the program under that standard, and the Court affirmed by a 4-3 majority (Justice Kagan recused), with the opinion by Justice Kennedy—a dissenter in Grutter v. Bollinger that upheld the Michigan Law School’s affirmative action program. The university’s program used the “Top Ten Percent Plan” to fill approximately 75 percent of its incoming class, in which students who theoretically finished in the top ten percent of their class (in practice, more like top seven or eight percent) were automatically accepted. The remaining 25 percent were admitted under a review process similar to that used in Grutter. Although the majority acknowledged that there was practically no information in the record about how the Plan affected the racial balance of the student body, it treated the Plan as a “given” that was not subject to challenge. The majority then went on to reject Fisher’s arguments against the plan, while reminding all that future “refinement” of the admissions program was an “ongoing obligation” of the university. Justice Alito, in a lengthy dissent joined by Chief Justice Roberts and Justice Thomas, argued that the university “failed to do what our prior decision demanded” by not providing sufficient proof to satisfy strict scrutiny of its program. Justice Thomas filed a separate dissent to note his continuing belief that Grutter should be overturned. A link to the opinion is here.
Warrantless Breath Tests For Drunk Drivers Permitted, But Not Blood Tests
In order to combat drunk driving, some states had passed laws making it a crime for a motorist to refuse to submit to a breath or blood test after being arrested for driving under the influence. The Court, in an opinion by Justice Alito, held that the Fourth Amendment permitted breath tests as a search incident to arrest, given that breath tests do not significantly impact privacy interests while serving an important need for measuring blood-alcohol content. However, the majority also determined that blood tests were “significantly more intrusive,” and there was no compelling reason why breath tests could not be used instead, and therefore such tests violated the Fourth Amendment. Justice Sotomayor, joined by Justice Ginsburg, agreed that the Fourth Amendment precluded the mandatory use of blood tests, but argued that breath tests were equally prohibited because there was a “built-in window” before such breath tests can be taken in which a warrant could be sought. Justice Thomas, writing separately, argued that both kinds of tests pass muster under the Fourth Amendment’s exigent-circumstances exception to the warrant requirement. A link to the opinion in Birchfield v. North Dakota is here.
Court Limits Application Of Broad State Felonies To Armed Career Criminal Act
The Armed Career Criminal Act adds penalties on those federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” Burglary generically regards unlawful entry into a “building or other structure.” Richard Mathis was sentenced under the Act according to his prior convictions under Iowa’s burglary law, which applies to “any building, structure, [or] land, water, or air vehicle.” Mathis argued that this broader offense should not apply toward the Act’s required elements, and the Court, in an opinion by Justice Kagan, agreed. In essence, the Court held that a state conviction only applies under the Act if its elements are the same or narrower than the generic elements of the violent crimes set forth under the Act. The defendant’s actual conduct does not matter. Justice Kennedy concurred, noting only his reservation to the Court’s reliance on Apprendi v. New Jersey, which was incorrect in his view, and suggested that Congress should step in and amend the Act to cure the concerns created by the Court’s precedents. Justice Thomas also filed a concurrence, in which he argued that judge-found facts should play no part in the analysis of whether prior convictions apply under the Act. Justice Breyer, joined by Justice Ginsburg, dissented, argued that it should make no difference what the elements of the state law version of burglary are when the defendant was convicted for doing what was illegal under generic burglary. Justice Alito filed a separate dissent to argue that the Court’s harping on the elements of an offense has led it away from a “real-world approach” that would apply convictions based on the conduct of the defendant, as Congress surely intended. A link to the opinion in Mathis v. United States is here.
Divided Court Leaves Tribal Court With Jurisdiction Over Non-Members Of The Tribe
In Dollar General Corporation v. Mississippi Band of Choctaw Indians, a 4-4 divided Court let stand the Fifth Circuit’s ruling that an Indian tribal court had jurisdiction over tort claims by tribal members against non-tribal members. A link to the per curiam affirmance is here.
Divided Court Strikes A Blow To President Obama’s Immigration Policy
In another 4-4 deadlock, the Court let stand the decision of the Fifth Circuit to block the Obama administration’s immigration policy that would have allowed some undocumented immigrants to stay in the United States and work legally for three years. The states in United States v. Texas had argued that the administration lacked constitutional authority to issue the policy, and the administration argued that the states lacked standing to challenge it. A link to the per curiam affirmance is here.
Court Punts On Overtime Compensation Claim
For decades the Department of Labor treated service advisors the same as salesmen, both being exempt from the overtime compensation requirement in the Fair Labor Standards Act. In 2011 the Department abruptly reversed course with very little explanation. The Ninth Circuit held that the Department’s change in course was entitled to Chevron deference, and the Court, in an opinion by Justice Kennedy, reversed. Noting that an agency must give adequate reasons for its decisions, and that those decisions are arbitrary and capricious when the agency fails to provide “even a minimal level of analysis,” the Court held that the Department here failed to provide a reasoned explanation sufficient to sustain the new rule, especially given the “significant reliance interests involved” under the prior rule. The Court then remanded the case back to the Ninth Circuit “to interpret the statute in the first instance” without the deference granted to the Department’s rule. Justice Ginsburg, joined by Justice Sotomayor, filed a concurrence to “stress that nothing in today’s opinion disturbs well-established law.” Justice Thomas, joined by Justice Alito, dissented, arguing that since the Department’s rule was not entitled to Chevron deference, the Court should have held that service advisors are equivalent to salesmen under the Act, and decided the case on the merits instead of remanding for further analysis. A link to the opinion in Encino Motorcars, LLC v. Navarro is here.
Outstanding Warrant Permits Admission Of Evidence Incident To Arrest
In Utah v. Strieff, an officer investigating a home where suspected drug dealing was occurring detained Strieff, who visited that house, without probable cause and asked for his ID. A search on the ID revealed an outstanding arrest warrant. When the officer searched Strieff incident to arrest, he discovered methamphetamine and drug paraphernalia. Strieff moved to exclude that evidence, and the prosecution argued that while there was no reasonable suspicion for the stop, the existence of the valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the drugs. The trial court admitted the evidence, the Utah Supreme Court reversed that ruling, and the Court, in an opinion by Justice Thomas, resolved disagreement between various courts and held that the evidence was admissible. Relying on the three factors set forth in Brown v. Illinois, 422 U.S. 590 (1975), the Court agreed that the temporal factor weighed in favor of suppression, but the other factors, especially including the discovery of the warrant, weighed more heavily in favor of admission. The Court also deemed it “unlikely” that the decision would result in the police doing “dragnet searches” to find similar warrants. Justice Sotomayor, joined in part by Justice Ginsburg, dissented, arguing that the ID search itself was part and parcel of the illegal stop, and wrote personally how such warrantless, suspicionless searches are “degrading” and “corrode all our civil liberties and threaten all our lives.” Justice Kagan, joined by Justice Ginsburg, filed a separate dissent arguing that the discovery of the warrant had no constitutional effect upon the validity of the stop and search. A link to the opinion is here.
Patent Office’s Inter Partes Review Of Patent Claims Not Appealable
The Leahy-Smith American Invents Act created an “inter partes review” process under which any third party can ask the U.S. Patent and Trademark Office to re-examine the claims in an already-issued patent and to cancel any claims deemed unpatentable. The Act declares that such determinations are “final and non-appealable.” The Patent Office subsequently issued regulations stating that it would review each such claim to “its broadest reasonable construction in light of the specification of the patent in which it appears.” In 2004, the Patent Office granted a patent to Guiseppe Cuozzo for a speedometer that would show whether you are driving over the speed limit. Garmin petitioned for inter partes review of that patent, arguing that some of the claims in that patent were obvious in light of prior patents. The Patent Office reviewed and cancelled those claims, and Cuozzo appealed, arguing in part that the Patent Office should have not read the claims more broadly than their ordinary meaning. The Federal Circuit rejected Cuozzo’s arguments, and the Court, in an opinion by Justice Breyer, affirmed. First, the Court held that the Act’s prohibition on appeals was effective to prevent court review of the Patent Office’s reviews, although “constitutional questions” can still be appealed. Second, the Court held that the “broad construction” regulation was entitled to Chevron deference. Justice Thomas filed a concurrence arguing that the Act expressly granted authority to the Patent Office to issue its rule, so Chevron deference was not needed, and suggested that Chevron’s “fiction” should be reconsidered. Justice Alito, joined by Justice Sotomayor, dissented on the issue of appealability, arguing that the “strong presumption favoring judicial review” mandated the ability of courts to review inter partes reviews. A link to the opinion in Cuozzo Speed Technologies, LLC v. Lee is here
Robbing Drugs Or Drug Proceeds Automatically Qualifies For Prosecution Under Hobbs Act
Anthony Taylor was convicted under the Hobbs Act for affecting interstate commerce by robbery when he attempted to rob marijuana dealers of their drugs and proceeds. Resolving a split among the Circuits, the Court, in an opinion by Justice Alito, noted that “the language of the Hobbs Act is unmistakably broad,” and held that the sale of marijuana was “unquestionably an economic activity” that the federal government rightfully regulates under Gonzales v. Raich, 545 U.S. 1 (2005), which noted that such regulation was permitted under the Commerce Clause even though certain drug sales might only be intrastate. Thus, proof that Taylor robbed a drug dealer satisfied the interstate commerce component of the Act’s prohibition, and it was not necessary for the prosecution to prove that the drugs were intended for interstate sale or the drug dealer engaged in an interstate business. Justice Thomas dissented, arguing that a violation of the Act requires proof that the robbery actually affected interstate commerce, or would otherwise vest the federal government with a general police power it was never intended to have under the Constitution. A link to the decision in Taylor v. United States is here.
RICO Applies To Foreign Acts, But Only Permits Recovery Of Domestic Damages
The European Community sued RJR Nabisco claiming that RJR was serving as a money laundering service for drug traffickers who sold drugs in Europe, raising a private right of action under the Racketeer Influenced and Corrupt Organizations Act. RJR argued that RICO did not apply to extraterritorial activity, and could only be used to recover for domestic injuries. The Second Circuit allowed the Community’s claims to proceed, and the Court, in an opinion by Justice Alito that resolved conflicts among the Circuits on the extraterritorial issue, reversed. First, the Court resolved that RICO does apply to extraterritorial acts for which its predicates themselves apply extraterritorially, including some racketeering activities like RJR was accused of. The Court also reasoned that RICO does not exclude foreign entities from its ambit. However, the Court also held that RICO’s private right of action could only be used to recover for domestic injuries, not foreign injuries. Justice Ginsburg, joined by Justices Breyer and Kagan, agreed that RICO applied extraterritorially, but dissented on the issue of domestic injury, arguing that nothing in the test of the Act so limited its scope. Justice Breyer filed another dissent to separately disagree with the government’s amicus brief that argued that recovery for foreign injuries might cause “international friction.” Justice Sotomayor did not participate in the case, probably due to her being on the Second Circuit when the case first came up. A link to the opinion in RJR Nabisco, Inc. v. European Community is here.
Court Rules That VA’s “Rule Of Two” Is Mandatory
Congress, in an effort to promote federal contracts with businesses owned by veterans, enacted a law providing that the Department of Veterans Affairs “shall award” contracts to such business when there is a “reasonable expectation” that two or more such businesses will bid for the contract at “a fair and reasonable price that offers best value to the United States”—otherwise known as the “Rule of Two.” One such veteran-owned business lost a bid for a contract with the Department and sued, arguing that the Department was required to use the Rule on all contract proposals. The Department argued that it was only required to use the Rule so long as its annual contracting goals were met, and a divided panel of the Federal Circuit agreed. The Court, in a unanimous opinion by Justice Thomas, reversed, holding that the plain language of the statute was mandatory, not discretionary, emphasizing Congress’s use of the word “shall.” The Court rejected the Federal Circuit’s reliance on the statute’s prefatory clause, as it cannot change the meaning of the operative clause. The Court also held that it had jurisdiction to hear the case even though the contract in question had already been completed, since the issue was likely to arise again. A link to the decision in Kingdomware Technologies, Inc. v. United States is here.
Court Clarifies Scope Of False Certification Claims Under The False Claims Act
In Universal Health Services, Inc. v. United States ex rel. Escobar, parents of a teenager who received counseling and prescription medication from a medical health facility, as paid for by Medicaid, learned after the teenager’s death that the facility had few employees licensed to provide those services or issue prescriptions. They filed a qui tam suit under the False Claims Act, claiming that the facility failed to disclose its lack of certifications when it requested payment for its services from Medicaid—in essence, that the facility defrauded Medicaid by seeking payment for services without disclosing that it was violating regulations related to staff qualifications and licensing requirements for such services. The Court, in another unanimous opinion by Justice Thomas, held that the false certification theory of liability “can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement.” The Court further held that such liability can attach “even if they were not expressly designated as conditions of payment” so long as the requirement is “material” to the government’s decision to pay. That materiality requirement “is demanding,” and the Court declined to adopt the more expansive view espoused by the First Circuit. A link to the opinion is here.
Trial Courts Have Broader Discretion To Award Fees In Copyright Litigation
Supap Kirtsaeng discovered that John Wiley & Sons, Inc., an academic publishing company, was selling identical English-language textbooks in Thailand for a lot less than the price set in the United States. So Kirtsaeng had his family and friends buy up Wiley’s textbooks in Thailand and ship them to him in New York, where he sold them to college students for profit. Wiley sued under the Copyright Act for infringement, and Kirtsaeng invoked the “first-sale doctrine.” In 2013, resolving a circuit split, the Supreme Court ruled in favor of Kirtsaeng on that defense, and he returned to the district court requesting $2 million in fees under 17 U.S.C. sec. 505, under which the court “may . . . award a reasonable attorney’s fee to the prevailing party.” The district court, giving “substantial weight” to the “objective reasonableness” of Wiley’s infringement claim, declined to award fees, and the Second Circuit affirmed. There being yet another circuit split on how to interpret section 505, the Supreme Court, in a unanimous opinion by Justice Kagan, stepped in again and held that the district court should give substantial weight to the objective reasonableness of a claim in deciding to award fees, but also that this standard was not controlling. The district court “must take into account a range of considerations” before awarding fees, and allowed that “a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones)” such as on the basis of misconduct by a party, or to deter repeated future infringement. A link to the opinion in Kirtsaeng v. John Wiley & Sons, Inc. is here.
Tribal Convictions Can Form Predicate For Federal Offense
To fight the tide of domestic violence against Native American women, the government enacted a federal law imposing penalties on a person who committed domestic assault and had two prior convictions already on their record, including convictions from an Indian tribal court. Tribal courts do not require that indigent defendants receive counsel when the sentence is a year or less, which would violate the Sixth Amendment if the same rule were used in federal courts. Michael Bryant, Jr. had multiple tribal court convictions for domestic assault, for which he was not appointed counsel, and those convictions were used to charge him with the federal crime. Prior U.S. Supreme Court precedent held that convictions obtained in violation of the Sixth Amendment could not be used in subsequent proceedings, and Bryant accordingly argued that was the case here. The Ninth Circuit agreed with Bryant, but in United States v. Bryant, the Court, in a unanimous decision authored by Justice Ginsburg, held that the tribal court convictions could be used as a predicate for the federal crime because those convictions were “valid when entered” under the Indian Civil Rights Act, and thus did not violate the Sixth Amendment. The Court also rejected Bryant’s argument that this approach violated the Fifth Amendment’s Due Process Clause. Justice Thomas filed a concurrence arguing that the Court should reexamine its decisions concerning the Indian tribes, else “our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty.” A link to the opinion is here.
Puerto Rico Cannot Create Its Own Bankruptcy Provisions
In order to protect certain public utilities that had issued bonds but were now facing a fiscal crisis, Puerto Rico enacted a law that modified portions of the federal Bankruptcy Code to allow those insolvent companies to declare bankruptcy and restructure their debt. Holders of those bonds challenged the law, arguing that the Bankruptcy Code pre-empted Puerto Rico’s modifications, and the First Circuit agreed. The Court, by a 5-2 margin (Justice Alito not participating), affirmed in an opinion by Justice Thomas. The Court noted that while the Bankruptcy Code pre-empts states from enacting their own changes, and Congress amended the Code to exclude Puerto Rico as a state “for the purpose of defining who may be a debtor under chapter 9,” that exclusion did not permit Puerto Rico to enact its own bankruptcy scheme, and was limited to the plain language of the exclusion. In other words, Puerto Rico was not permitted, as a state, to define who may be a debtor under Chapter 9, and thus could not define the utilities as potential debtors, nor could it enact other modifications. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that the exclusion should have been read to exclude Puerto Rico from the entirety of Chapter 9 of the Bankruptcy Code, thereby allowing the public utilities to declare bankruptcy and avoid potentially crippling economic effects. A link to the decision in Puerto Rico v. Franklin Cal. Tax-Free Trust is here.
Court Relaxes Standard For Awarding Triple Damages In Patent Infringement Cases
Section 284 of the Patent Act permits courts to award triple damages in cases involving willful or bad-faith infringement of patents. The Federal Circuit, in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007), created a three-part test for when such punitive damages could be awarded. The Court, in a unanimous opinion by Chief Justice Roberts in Halo Electronics, Inc. v. Pulse Electronics, Inc., struck down the test as “unduly rigid and . . . impermissibly encumbers the statutory grant of discretion to the district courts,” such that it “insulat[es] some of the worst patent infringers from an liability for enhanced damages.” In particular, the Court rejected Seagate’s requirement of a finding of “objective recklessness” before triple damages could be awarded, as any defendant who could muster a reasonable defense could thereby escape the penalty. In other words, a patent pirate could avoid damages purely on “the strength of his attorney’s ingenuity,” which was not the standard under Section 284. Justice Breyer, joined by Justices Kennedy and Alito, concurred, offering his understanding of what limits exist to the discretion of district courts in levying such damages. A link to the opinion is here.
Puerto Rico Part Of Federal Government Under Double Jeopardy Clause
The U.S. Supreme Court held that the Commonwealth of Puerto Rico derives its prosecutorial powers through the U.S. Congress, and thus is barred under the Double Jeopardy Clause of the U.S. Constitution from prosecuting criminals that have already faced federal prosecution for the same acts. In Puerto Rico v. Valle, two men were arrested for gun trafficking. Both were charged under federal and Puerto Rico law. The men pled guilty to the federal charges, then moved to dismiss the Puerto Rico charges under the Double Jeopardy Clause. The Supreme Court of Puerto Rico affirmed the dismissal of those charges, and a six-member majority of the Court, in an opinion by Justice Kagan, also affirmed. While acknowledging that states and the federal government were “separate sovereigns” that could separately prosecute without violating the Clause, the Court found that Congress originally approved the right of the Puerto Rican people to create their own Constitution, and thus conferred to Puerto Rico the right to prosecute. As a result, it was not a separate sovereign from the federal government, and could not separately charge the men. Justice Ginsburg, joined by Justice Thomas, filed a concurrence to “flag a larger question that bears fresh examination”: whether the Clause should also bar separate state suits. Justice Thomas filed a separate concurrence noting his concern about how the Clause has been applied to Indian law. Justice Breyer, joined by Justice Sotomayor, dissented, arguing that the Puerto Rican Federal Relations Act established Puerto Rico as a separate sovereign. A link to the opinion is here.
Trial Court Can Recall A Jury If There Is An Error In The Verdict
The case of Dietz v. Bouldin began as a typical personal injury case involving a vehicle accident. The defendant had stipulated to the medical damages, so the only issue was whether the plaintiff was entitled to more. During deliberations, the jury asked whether those medical damages had been paid, and was told the answer was “not relevant.” The jury returned a verdict in favor of the plaintiff, but for $0. After discharging the jury, the judge quickly realized that the jury had erred, and called the jurors back. After questioning the jurors and being satisfied that none had discussed the case with anyone, the judge required that they resume deliberations with clarifying instructions. The jury then returned a verdict for the plaintiff for $15,000. The defendant challenged the recall, and the Ninth Circuit affirmed the verdict. The Court, in an opinion by Justice Sotomayor, affirmed as well, holding that the power to recall a jury was within the trial court’s limited inherent powers, and did not violate any rule or statute. However, the Court noted that such power should not be exercised whenever a juror has been tainted, which grows more likely the longer the court waits to recall. Justice Thomas, joined by Justice Kennedy, dissented, arguing that the common law rule barring the recall of a jury was the better rule, given the easy availability of information that would taint jurors. A link to the opinion is here.
State Court Justice Should Have Recused Himself From Case He Was Previously Involved In
As a district attorney, Ronald Castille approved a request by a fellow prosecutor to seek the death penalty against Terrance Williams. Williams was sentenced to death in 1986, and then unsuccessfully sought to undo the conviction for the next 26 years. Then he filed a petition based on newly acquired evidence in 2012, which made its way to the Pennsylvania Supreme Court, where Castille was now sitting as Chief Justice. Castille refused to recuse himself, and joined in the opinion denying Williams relief. He then retired two weeks later. The U.S. Supreme Court, with a five-member majority opinion authored by Justice Kennedy, vacated and remanded, holding that “neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decisions may have set in motion.” The Court further held that the decision to seek the death penalty was such a “critical choice” that warranted recusal. The Court also noted that the error could not be harmless, even though the rest of the state appellate court justices also voted to deny Williams relief. Chief Justice Roberts, joined by Justice Alito, dissented, arguing that Castille should not have had to recuse himself since he had no knowledge of any of the facts in the 2012 petition. Justice Thomas also dissented, arguing that the posture of the case did not warrant recusal because the criminal case had ended—what Williams was petitioning for was civil relief, and thus Castille did not preside over same case. A link to the opinion in Williams v. Pennsylvania is here.
The U.S. Supreme Court issued two new opinions on June 6, 2016.
Court Rejects “Special Circumstances” Exception To Administrative Remedy Exhaustion
After a prisoner was beaten by one of two guards (Officers Madigan and Ross) escorting him, and reported the incident to a senior corrections officer, the matter was referred to Maryland’s Internal Investigative Unit for investigation. That Unit thereafter held that Madigan was at fault, and he resigned. The prisoner then filed suit under 42 U.S.C. sec. 1983 against both guards, and Ross objected, arguing that the prisoner first had to exhaust his remedies under the Prison Litigation Reform Act of 1995. The district court agreed with Ross, but the Fourth Circuit reversed, holding that “special circumstances” here would have led the prisoner to think the Unit’s action did exhaust his remedies. The Court, unanimously, in an opinion by Justice Kagan, reversed, rejecting that “extra-textual” exception, and holding that the Act’s remedy regimes was “mandatory.” The Court then noted that the prisoner’s claims may yet survive, given that there were “questions” about whether the prisoner had available administrative remedies to exhaust, and remanded for further findings. Justice Thomas filed a concurrence, joining in the judgment except as it relied on documents filed by the prisoner that were outside the appellate record. Justice Breyer also lodged a concurrence to note that there could be certain “well-established exceptions to exhaustion” that apply to other cases. The opinion in Ross v. Blake is here.
Court Declines To Apply Federal Tort Claims Act’s Judgment Bar To Second Suit
This was another case involving a prisoner who was beaten, this time by a fellow inmate. The victimized prisoner filed a suit against the United States under the Federal Tort Claims Act alleging negligence by the prison guards, and then a second constitutional suit against the guards themselves. The first suit was dismissed for failing under the “discretionary function” exception to the Act. The defendant guards in the second suit argued for dismissal on the basis that the Act includes a judgment bar preventing further lawsuits against individual government employees once a judgment is obtained under the Act. The district court thought the judgment bar applied to preclude the second suit, the Sixth Circuit reversed, and the Court, in another unanimous opinion by Justice Sotomayor, affirmed the Sixth Circuit, holding that the “plain text” of the Act required that the Act’s judgment bar only apply against cases that did not fall under an exception to the Act. The Court noted that the “exceptions” chapter to the Act specifically stated that the other portions of the Act “shall not apply” to those exceptions, and thus it necessarily excluded application of the judgment bar. A link to the opinion in Simmons v. Himmelreich is here.
The U.S. Supreme Court issued three new opinions on May 31, 2016.
Mining Companies Can Challenge Army Corps of Engineers’ Decision In Federal Court
In Army Corps of Engineers v. Hawkes Co., three mining companies sought a determination from the Corps as to whether a particular area qualified as wetlands under the Corps jurisdiction pursuant to the Clean Water Act. The Corps issued a determination that the area was so qualified, and after exhausting administrative remedies the companies sought review in federal court. The district court believed it had no jurisdiction because the determination was not a “final agency action” eligible for review. The Eighth Circuit reversed, and the Court, in a unanimous opinion by Chief Justice Roberts, affirmed. Noting that the Act potentially applied vastly more onerous obligations depending on how the Corps made its determination, the Court held that the determination had all the hallmarks of a final agency action, especially given that the determination was shared by the EPA, and it was inadequate to force the companies to risk an enforcement action or go through a potentially needless permitting process instead of being able to seek a federal court’s opinion. Justice Kennedy, joined by Justices Alito and Thomas, filed a concurrence noting that the breadth of the Act was “troubling” and “raised troubling questions” about the government’s power to limit the use of private property. Justice Kagan filed a concurrence noting that, for her, the sharing of the determination with the EPA was controlling as to it being deemed a final act. Justice Ginsburg, also concurring, argued that the EPA’s adoption of the determination carried no weight, and the determination was final regardless. A link to the opinion is here.
Court Upholds State Procedural Bar To Criminal Appeals
A per curiam Court reversed the Ninth Circuit and held that the decision in In re Dixon, 264 P.2d 513 (Cal. 1953), which barred any argument raised by criminal defendant on collateral review not brought on direct appeal, was an independent and adequate state rule that served to bar federal habeas claims. The criminal defendant in Johnson v. Lee tried to argue that the so-called “Dixon Rule” was not regularly applied because there were instances when the California Supreme Court should have cited it in a dismissal but did not. The Court rejected that analysis, noting that the rule was not only used by other states, but had been regularly cited by the California court, and found no inconsistency where that court chose to deny an appeal on another basis. A link to the opinion is here.
Court Strengthens Capital Defendant’s Right To Inform Jury Of Punishment Alternatives
In Simmons v. South Carolina, 512 U.S. 154 (1994), the Court held that “where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole,” the Due Process Clause “entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’” A capital defendant in Arizona was placed in that situation but denied the opportunity to inform the jury of his parole ineligibility. The Arizona Supreme Court upheld the result, but a per curiam Court reversed, rejecting the state court’s efforts to distinguish the result in Simmons. Justice Thomas, joined by Justice Alito, dissented, arguing that the Simmons decision was in error, and that the majority’s decision constituted micromanagement of the state courts. I link to the decision in Lynch v. Arizona is here.
The U.S. Supreme Court issued three new opinions on May 23, 2016.
New Evidence Vindicates Death Penalty Convict’s Batson Claim
Timothy Foster admitted to sexually assaulting and killing Queen Madge White back in 1986. At trial, he argued that the prosecution’s decision to strike all four black prospective jurors violated the bar on racial strikes set in Batson v. Kentucky, 476 U.S. 79 (1986), which the trial court rejected based on neutral arguments provided by the prosecution, and was affirmed on appeal to the Georgia Supreme Court. Decades later, Foster obtained the prosecutor’s trial documents, including jury selection documents showing how the prosecution singled out black prospective jurors, and again raised his Batson challenge in a state habeas proceeding. The trial court again rejected the claim, based on res judicata and a failure to show purposeful discrimination under Batson. The Georgia Supreme Court denied his appeal for having no “arguable merit.” The U.S. Supreme Court, in an opinion by Chief Justice Roberts, reversed and remanded. First, the Court decided that it had subject matter jurisdiction over the case because the trial court’s basis to deny relief on res judicata grounds was not an adequate and independent state law ground from the Batson challenge, which relied on the new evidence to supersede res judicata. Second, the Court held that the new documents “plainly belie the State’s claim that it exercised its strikes in a ‘color-blind’ manner,” and thus it was erroneous to not grant habeas relief. Justice Alito concurred, stating that while he agreed that it appeared likely that the Georgia Supreme Court’s ruling was not entirely based on state res judicata law, there was a chance it was not, which was for Georgia courts to decide. Justice Thomas filed a dissent, arguing that the majority “should have sought clarification that the resolution of a federal question was implicated in the Georgia high court’s decision” before ruling, and that the new evidence “has limited probative value” that did not overcome the deferential review afforded under Batson. A link to the decision in Foster v. Chatman is here.
Court Upholds Virginia’s Redistricting Plan
A unanimous Court, in a short majority opinion by Justice Breyer, held that certain GOP congressmen lacked standing to appeal a determination that Virginia’s 2013 redistricting plan unconstitutionally gerrymandered a district that none of the congressmen represented. Noting that parties before the Court needed to demonstrate an “injury in fact” in order to press the appeal, the Court found that one congressman had no standing because he had decided to switch districts regardless of the outcome of the case, and two others presented no evidence that their prospects at re-election were in any way hindered by the plan. The result paves the way for the Commonwealth’s 2016 plan to go forward, which has already been approved by the district court. A link to the opinion in Wittman v. Personhuballah is here.
EEOC Limitations Period Runs From Date Of Resignation, Not Agreement
In Green v. Brennan, after Marvin Green accused the Postal Service of denying him a promotion because he was black, the Postal Service accused him of the crime of intentionally delaying the mail. The parties resolved their differences in a settlement agreement signed on December 16, 2009, which gave Green the choice to resign or relocate in exchange for the Service’s agreement not to pursue criminal charges. Green chose to resign on February 9, 2010. On March 22, 2010, he reported an unlawful constructive discharge to the EEOC, as a prerequisite to filing a civil rights claim in court. His court claim was dismissed, as 29 CFR sec. 1614.105(a)(1) requires that the EEOC report had to made within 45 days of the “matter alleged to be discriminatory,” and the agreement was deemed to be the triggering event, not his resignation—something the Circuits had split on. The Court, in an opinion by Justice Sotomayor, reversed, holding that the triggering date was Green’s resignation, and thus he satisfied the reporting requirement. Relying on the “standard rule” for limitations periods, the majority reasoned that the resignation marking the point where the employee had a “complete and present cause of action” since constructive discharge required that the employee actually resign or be discharged. Justice Alito, concurring, argued that the majority’s bright-line rule ignored precedent holding that an actual discriminatory act must trigger the limitations period, although here the evidence showed that the Service intended to force Green to resign, and thus his resignation qualified as such an act. Justice Thomas dissented, arguing that Green’s choice to resign was not a discriminatory “matter” under the plain language of the regulation. A link to the opinion is here.
Speedy Trial Right Does Not Apply Post-Conviction
After pleading guilty to jumping bail, Brandon Betterman sat in jail for 14 months before he was finally sentenced. He argued that this delay violated his Sixth Amendment right to a speedy trial. The Montana Supreme Court affirmed the conviction and sentence, reasoning that the right to a speedy trial did not apply to post-conviction, pre-sentencing delays, and the U.S. Supreme Court unanimously affirmed in an opinion by Justice Ginsburg. The Court held that the right to a speedy trial attaches upon arrest or formal accusation, and detaches upon conviction, when the “presumption of innocence” no longer applies. The Court also noted that due process may serve to protect against unreasonable post-conviction/pre-sentencing delays. Justice Sotomayor filed a concurrence arguing that a due process claim in these circumstances, had it been raised, should be analyzed under the test presented in Barker v. Wingo, 407 U.S. 514 (1972). Justice Thomas, joined by Justice Alito, filed a concurrence questioning the application of Barker in this context. A link to the opinion in Betterman v. Montana is here.
A Prevailing Party Seeking Fees Under Civil Rights Act Need Not Win On The Merits
Title VII of the Civil Rights Act permits a “prevailing party” to recover its attorneys’ fees. In CRST Van Expedited, Inc. v. EEOC, the EEOC brought suit against a trucking company for alleged sexual harassment of its female employees, identifying over 250 aggrieved women. Over time, the district court dismissed the claims as to all of these women, some as a discovery sanction, others for being beyond the statute of limitations, violations of statutory presuit requirements, and other reasons. On appeal, the Eighth Circuit reversed only as to two women. The EEOC dismissed the claims as to one, settled with the company over the other. The company then moved for fees, and was awarded over $4 million. On a second appeal, the Eighth Circuit held that fees could only be awarded where there had been a victory on the merits, as opposed to a dismissal for statute of limitations grounds or lack of jurisdiction. Resolving a split among the circuits on the issue, the U.S. Supreme Court, in a unanimous opinion by Justice Kennedy, reversed, holding that “common sense” compels the conclusion that a win is a win, regardless of whether it was on the merits or not, and nothing in the statute indicated otherwise. The Court also declined to decide whether some sort of preclusive judgment was necessary, as the EEOC failed to raise that argument before the lower court. Justice Thomas concurred, arguing that the Court’s ruling in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), relied upon by the majority, was in error as it would award fees to plaintiffs on a different basis than defendants, and that he would decline to extend it any further. A link to the opinion is here.
Third-Degree Arson An “Aggravated Felony” For Deportation Purposes
Luna Torres pled guilty to third-degree arson under New York law, while he was a lawful permanent resident. When immigration officials learned of the conviction, they moved to remove him, and argued that he was not eligible for discretionary relief because he was convicted for an “aggravated felony” under 8 U.S.C. sec. 1101(a)(43), which lists the federal crime against arson that includes a requirement that the arson affect interstate or foreign commerce. The immigration courts affirmed Torres’s removal, and the U.S. Supreme Court, by a five-member majority opinion authored by Justice Kagan, affirmed. The majority held that if the state crime included the same elements as a federal crime listed under Section 1101(a)(43) but for the interstate/foreign commerce element, the offense was an “aggravated felony” for deportation purposes. The majority reasoned that the interstate/foreign commerce element was merely jurisdictional in nature, not substantive, and it was clear that the section meant to include serious state crimes as well as federal crimes. Justice Sotomayor, joined by Justices Thomas and Breyer, dissented, arguing that the interstate/foreign commerce element should not be so easily discarded, and that prior decisions have required the state law to match every element of the federal offense to be an “aggravated felony.” A link to the decision in Luna Torres v. Lynch is here.
Summary Denial for Habeas Writ a Decision “On the Merits” for AEDPA Review
When California changed its law to deny prison-gang members future “good time” credits, one of those members, Hinojosa, filed a state habeas petition, claiming the law violated the Constitution’s prohibition on ex post facto laws. The state trial court denied the petition without prejudice on the basis that it was brought in the wrong venue. He then sought an original habeas writ to the California Supreme Court, which, without opinion, summarily denied relief. Hinojosa next pressed his claim in the federal district court, which denied it under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) under the deferential standard the Act provides for state court decisions “on the merits.” The Ninth Circuit reversed, determining that the state courts’ actions were not “on the merits” and thus the district court used the wrong review standard. The U.S. Supreme Court, in a per curiam decision, reversed, holding that the California Supreme Court’s denial could not have been grounded on the same venue issue as the trial court, since it could entertain the original writ, and also noted that the appellate court’s language of dismissal was different. Therefore, the Act’s deferential review standard should have been applied by the Ninth Circuit. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that it was possible that the California Supreme Court denied the petition because it was originally filed in the wrong venue, and the majority’s distinctions were too “flimsy” to warrant the Act’s deferential review. A link to the decision in Kernan v. Hinojosa is here.
False Consumer Report Does Not Automatically Grant Standing to Consumer to Sue
In Spokeo, Inc. v. Robins, Robins filed a class action against a consumer reporting agency when he discovered its report for him contained false information. In his complaint, he alleged that the agency’s inaccuracies violated the Fair Credit Reporting Act, which violated his statutory rights and that the harm was individualized. The district court dismissed the lawsuit as failing to have alleged an injury in fact, the Ninth Circuit reversed, and the Court, in a 6-justice majority opinion authored by Justice Alito, vacated and remanded, holding that the Ninth Circuit failed to address whether the alleged injury was sufficiently “concrete.” The mere fact that the Act was violated, and the Act authorized a private suit to vindicate it, did not automatically provide standing to sue. At a minimum, Robins needed to allege a sufficient risk of harm to have standing. Justice Thomas submitted a concurrence explaining how the requirements of common law courts informed the modern standing doctrine, and prevented Robins from suing to vindicate duties the reporting agency owed to the public without a showing of concrete and particular harm. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that Robins had alleged a sufficiently concrete harm when the agency’s report portrayed him as being far more successful than he was, thus hindering his ability to get a job. A link to the opinion is here: http://www.supremecourt.gov/opinions/15pdf/13-1339_f2q3.pdf
“Actual Fraud” In Bankruptcy Includes Fraudulent Conveyance
After a company racked up large amounts of debt, one of its directors then drained the company of its assets and sent those assets to other firms he controlled. One of its creditors sued, alleging that the transfers of assets were actual fraud. The company filed for Chapter 7 bankruptcy, and again the creditor argued that the transfers were fraudulent and “actual fraud” that was not dischargeable. The district court and the Fifth Circuit both held that there was no “actual fraud” because there were no misrepresentations made to the creditor. The U.S. Supreme Court, in an opinion by Justice Sotomayor, reversed, holding that the term “actual fraud” also included fraudulent conveyance schemes even where no misrepresentations were made. The majority reasoned that this interpretation comported with the historical meaning of fraud, and did not make other bankruptcy provisions duplicative. Justice Thomas dissented, arguing that the statute requires the debt be “obtained by” actual fraud, and that limitation precludes its application to fraudulent conveyances. A link to the decision in Husky International Electronics, Inc. v. Ritz is here: http://www.supremecourt.gov/opinions/15pdf/15-145_nkp1.pdf
Jurisdiction Under the Securities Exchange Act Same as Federal Question Jurisdiction
The Securities Exchange Act grants district courts exclusive jurisdiction over cases “brought to enforce any liability or duty created by [the Act] or the rules or regulations thereunder.” Seeking to avoid the federal courts, Manning, a stockholder in Escala Group, Inc., a publicly-traded company, brought only state law claims against certain financial institutions that devalued Escala’s stock through naked short sales of its stock. His complaint referenced the Act’s prohibition of such sales, but did not explicitly bring any claims thereunder. The financial institutions removed the case to federal court, and Manning moved to remand. The Third Circuit held that remand was required, and the U.S. Supreme Court, in a unanimous opinion by Justice Kagan, affirmed. The Court held that the jurisdictional language of the Act was commensurate with that of federal question jurisdiction granted in 28 U.S.C. sec. 1331. Thus, federal jurisdiction exists when a claim “arises under” the Act, either because the claim is brought explicitly under the Act, or a state law claim requires proof of a violation of the Act that is substantial, disputed, and capable of resolution by the federal court without disrupting the federal/state balance. Justice Thomas, joined by Justice Sotomayor, concurred, arguing that federal jurisdiction should exist any time a claim depends on breach of the Act’s requirements, and rejecting the application of Section 1331’s “arising under” test. A link to the opinion in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning is here.
U.S. Supreme Court Asks Parties to Work Out Contraceptive Issue
The latest case involving the Affordable Care Act ended with a fizzle, perhaps due to an impending 4-4 split in opinion by the Justices. The issue in Zubik v. Burwell was whether the requirement that religious objectors to the contraceptive mandate submit a notice violated the exercise of religion under the Religious Freedom Restoration Act. The Court declined to decide the issue, however, and in a per curiam opinion vacated and remanded the collected cases to allow the parties an opportunity to work the issue out. In supplemental briefs filed after oral argument, at the Court’s invitation, the parties represented that an arrangement could be made that would permit religious objectors to avoid the notice requirement while permitting the government to seamlessly provide contraceptive coverage, and the Court took the parties up on the suggestion. Justice Sotomayor, joined by Justice Ginsburg, filed a concurrence reminding the lower courts that this was not a decision “on the merits” and should not be interpreted as such. A link to the opinion is here.
Special Counsel Use of Attorney General Letterhead Does Not Violate Fair Debt Collection Practices Act
In Ohio, debts owed to state agencies are collected through its Attorney General’s office, who in turn hires independent contractors as “special counsel” to recover those debts. Special counsel use the AG’s letterhead when communicating with debtors, two of whom sued under the Act, alleging that the communications were deceptive and misleading. The district court dismissed the claims on the basis that the special counsel were state actors entitled to the Act’s exemptions, but the Sixth Circuit reversed, holding that they were not state actors and that the use of the letterhead was misleading. In Sheriff v. Gillie, the U.S. Supreme Court, in a unanimous opinion by Justice Ginsburg, reversed. The Court assumed that special counsel were not state actors, but held that the use of the AG’s letterhead was not false or misleading since the AG’s office worked with the special counsel and specifically authorized the sending of the letters. A link to the opinion is here.
Hobbs Act Prohibits Bribery Between Co-Conspirators
The question in Ocasio v. United States was whether a conspiracy to obtain property “from another” included property obtained from co-conspirators. In this case, a police officer created a kickback scheme in which he would route vehicles involved in accidents to a repair shop in return for a payment from the shop owner. The officer argued that since he and the shop owners were in co-hoots, they did not obtain property “from another” outside the conspiracy, and thus did not violate the Act. Justice Alito, for a 5-3 majority, affirmed the conviction, noting that basic principles of conspiracy law did not require each conspirator to meet all elements of the asserted crime—they only needed to work toward that goal. In this case, the officer worked toward the conspiracy of obtaining property “from another,” being the shop owner, and the shop owner aided in that offense. Justice Thomas dissented, arguing that Evans v. United States, which held that the Act’s prohibition of “extortion” included bribery, was wrongly decided, and the kickback scheme in this case should not have been covered by the Act. Justice Breyer filed a concurrence noting that he agreed with Justice Thomas’ sentiments, but voted with the majority since the officer had not argued to overturn Evans. Justice Sotomayor, joined by Chief Justice Roberts, separately dissented, arguing that “from another” should not have been interpreted to include co-conspirators. A link to the opinion is here.
U.S. Supreme Court Decision, April 26, 2016: Employer’s Perception Sufficient For A 1983 Claim
In Heffernan v. City of Patterson, a police officer was demoted when his supervisors believed that he was working to aid the campaign of an opponent to the current mayor. It turns out instead that the police officer was simply delivering a campaign sign to his bedridden mother at her request, and admittedly was not engaged in any First Amendment protected speech. The police officer sued under 42 U.S.C. sec. 1983 claiming that the demotion deprived him of his constitutional rights, but the lower courts dismissed his claims since he had not engaged in any protected speech. The Court, in a majority opinion by Justice Breyer, reversed, holding that the employer’s decision to demote based on the erroneous (and assumed) perception that the officer was engaging in protected speech was sufficient to maintain the claim. The Court did leave open the possibility that, upon remand, the employer’s decision to demote Heffernan could be shown to be content neutral and thus permissible. Justice Thomas, joined by Justice Alito, dissented, arguing that there could be no cause of action under Section 1983 where no constitutional rights had been violated. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on April 20, 2016.
Court Rejects Republican Challenge To Redrawn Legislative Districts
Last year, the Court upheld Arizona’s use of an independent redistricting commission to redraw state legislative districts under the Voting Rights Act. The question in this case was whether the commission’s resulting plan to redraw the districts, which was approved by the two Democrats and the Independent on the commission over the objections of the two Republican members, complied with the same Act. A three-judge district court upheld the plan 2-1, and the Court, in a unanimous opinion by Justice Breyer, affirmed. While the Act requires that districts be equal in population, a deviation under 10% is considered too minor to be a violation. Since the deviations in Arizona’s plan were only 8.8%, the challengers had to prove that the deviation was a political effort to help the Democratic Party. The Court found that the commission engaged in a “good-faith” effort to comply with the Act, and there was no preponderance of the evidence that “illegitimate considerations were the predominant motivation behind the plan’s deviations from mathematically equal district populations.” A link to the decision in Harris v. Arizona Independent Redistricting Commission is here.
Statute Directing Relief In A Pending Civil Case Does Not Violate Separation Of Powers
Over 1,000 victims of state-sponsored terrorism sued Iran under 28 U.S.C. sec. 1605A and obtained judgments. Collecting on those judgments proved difficult for many years, until 2012, when the President issued an Executive Order freezing certain assets allegedly held by Iran’s central bank in New York, and Congress passed a law permitting those frozen assets to be subject to collection “to satisfy any judgment” against Iran for acts of terrorism. Based on the new law, the victims were able to obtain orders to release those assets. The Iranian bank objected, arguing that Congress’ law effectively directed the Courts to render a particular ruling awarding the assets in violation of separation of powers. The Court, in a 6-2 decision authored by Justice Ginsburg, affirmed the constitutionality of the law. Starting with the principle stated in Marbury v. Madison that it is the Court’s “province and duty . . . to say what the law is,” the majority held that a retroactive civil law passed by Congress directing courts to apply newly enacted, outcome-altering standards was not constitutionally prohibited. The Court also rejected the premise that a law passed with regard to a single pending case was suspect, as the language of the law itself addressed “any judgment” instead of just the judgments at issue. Finally, the majority (without Justice Thomas) indicated that the law was an “exercise of congressional authority regarding foreign affairs” that the Court should give deference to. Chief Justice Roberts, joined by Justice Sotomayor, dissented, arguing that the law effectively decided the case before the judiciary, who merely “presided over the fait accompli,” and thus usurped the judicial role in violation of the Constitution. A link to the opinion in Bank Markazi v. Peterson is here.
Application Of Incorrect Sentencing Range Can Alone Be Grounds For Reversal
In Molina-Martinez v. United States, the petitioner pled guilty to a felony and was sentenced to 77 months in jail based on a range of 77-96 months proscribed by the Sentencing Guidelines. On appeal, the petitioner noted that the actual Guideline range for his crime was 70-87 months instead. The Fifth Circuit agreed that the district court used the wrong sentencing range, but declined to award relief because his sentence was within the correct range, and he had not offered any “additional evidence” showing that the incorrect range used in fact affected his sentence. A unanimous Court, in an opinion by Justice Kennedy, reversed, holding that a petitioner need not present “additional evidence” beyond noting what the sentencing range should have been in order to obtain a remand for resentencing. In other words, even if the ultimate sentence was within the correct range, the use of the incorrect range itself could qualify as a violation of the convict’s substantive rights. Here, since the district court conspicuously gave the lowest amount of jail time allowed with little comment, there was a reasonable probability that the petitioner would have received less jail time had the accurate range been used. Justice Alito, joined by Justice Thomas, concurred in part and in the judgment, agreeing that the Fifth Circuit’s test was incorrect and that the wrong range probably did lead to a higher sentence, but declined to speculate how future sentencing judges might apply the Guidelines. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on April 4, 2016.
Court Upholds Districts Drawn According To Total Population
The Court’s longstanding Equal Protection principle of “one person, one vote” has been employed by the States, including Texas, to create districts that are roughly equal in total population. In Evenwel v. Abbott, certain voters challenged that approach, arguing that districts should be based on the eligible or registered voting population instead. The Court, in an opinion by Justice Ginsburg, affirmed the total population approach as being consistent with constitutional history, precedent, and practice. In particular, the Court noted that nonvoters also had an important stake in policy debates, and elected representatives served those interests as well. The Court did not opine whether states could voluntarily opt for the approach urged by the challengers. Justice Thomas concurred in the result, arguing that the principle of “one person, one vote” was too nebulous a concept to be consistently enforced by the courts, although he agreed that history and practice supported the use of total population. Justice Alito, joined in part by Justice Thomas, also concurred, but argued specifically that total population need not be the only basis for drawing districts. A link to the decision is here.
Court Limits Reporting Requirements Under Sex Offender Act
The Sex Offender Registration and Notification Act requires a convicted sex offender is required to register him or herself “in each jurisdiction where the offender resides, . . . is an employee, and . . . is a student.” Lester Ray Nichols was such an offender, living in Kansas, when he decided to suddenly move to the Philippines without telling Kansas authorities. Nichols was arrested in Manila and brought back to the United States, where he was charged for failing to inform Kansas of his new contact information. The Tenth Circuit affirmed Nichols’ conviction, creating a circuit split with the Eighth Circuit. The Court, in a unanimous decision authored by Justice Alito, reversed, holding that the plain language of the Act only required Nichols to register in the state where he presently resides, is an employee, or is a student. Since he had moved to a foreign country, there was no obligation for him to register in the state where he previously resided. A link to the opinion in Nichols v. United States is here.
Evidence About Anonymous Tip Did Not Create AEDPA Violation
Timothy Etherton and Ryan Pollie were pulled over after police received an anonymous tip that their car was being used to transport cocaine. A large amount of cocaine was found during the police search. At trial, Pollie claimed the drugs belonged to Etherton. After the jury heard testimony about the tip, without a defense objection, Etherton was convicted. After his appeals on the merits failed, he sought post-conviction habeas relief, claiming that the admission of the tip violated his rights under the Confrontation Clause, and that his prior appellate counsel should have raised that argument. This Sixth Circuit granted relief under AEDPA, concluding that no “fair-minded jurist” could conclude that Etherton’s Confrontation Clause rights were not violated, and thus he received ineffective assistance of counsel. The Court, in a unanimous per curiam opinion, reversed, holding that under AEDPA’s “doubly deferential” standard a jurist could have found no such violation since the information in the tip was not a source of dispute—i.e., it did not contradict Etherton’s defense. A link to the opinion in Woods v. Etherton is here.
Privileged and Confidential Communication
The information contained in this e-mail message may involve confidential and/or privileged material that is solely transmitted for the purposes of the intended recipient(s). If the reader of this message is not an intended recipient, or if this message has been inadvertently directed to your attention, you are hereby notified that you have received this message and any attached document(s) in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this message in error, please notify us immediately by return e-mail and delete and destroy all copies of the original message.
Except in instances in which we have made direct reference above to redlining or "track changes" that are expressly conveyed for review and consideration, it is the intent of the sender to remove all metadata from all attachments to this email, and any metadata that may be found therein has been produced inadvertently and should not be reviewed.
The U.S. Supreme Court issued one opinion on March 29 and another on March 30.
Union Fees Charged To Non-Union Teachers Survive Challenge, For Now
The absence of Justice Scalia resulted in another affirmance of a lower court’s ruling without an opinion, this time in Friedrichs v. California Teachers Association, where the Ninth Circuit had upheld a constitutional challenge against “agency fees” charged to non-union teachers in California that went to the union. The Supreme Court had held in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977) that such fees were permissible, which the Ninth Circuit relied upon for its ruling, but at oral argument the Court appeared to have a 5-vote majority to overrule that precedent. The non-union teachers can still petition for a re-hearing of the case, and hope that the Court will agree to re-hear it once it has a full bench. A link to the March 29 affirmance is here.
Sixth Amendment Protects Defendants From Having Untainted Assets Frozen
The Court struck down a portion of a federal law that permitted the government to freeze a defendant’s assets that were unconnected to the underlying alleged crime, as doing so would necessarily interfere with that defendant’s Sixth Amendment right to counsel of her choice. In Luis v United States, Luis fraudulently obtained $45 million through health care fraud, all of which she spent. The government sought to freeze $2 million in other, unrelated assets she had for future restitution purposes. Although the district court recognized that the freeze might prevent Luis from being able to afford counsel of her choice, it froze her assets anyway. The Eleventh Circuit affirmed, and the Court, in a fractured set of rulings by Justice Breyer (joined by three justices) and Justice Thomas, reversed. Justice Breyer’s opinion reasoned that the difference between property resulting from the purported fraud and untainted property made all the difference in the balance, equating the government to an “unsecured creditor” in bankruptcy, with no present interest or claim to the untainted funds, and held that the defendant’s interest in their own property outweighed the government’s interest in future payment. Justice Thomas took a more strict approach, reasoning that the Sixth Amendment’s terms by itself prohibited any seizure of untainted assets “simply to secure potential forfeiture upon conviction,” without the need to balance the relative interests to the untainted property. Justice Kennedy, joined by Justice Alito, dissented, arguing that the new rule “made little sense in cases that involve fungible assets” and encourages defendants to dissipate stolen assets. Justice Kagan, in a separate dissent, argued that the rule would lead to “utterly arbitrary distinctions” between defendants given the fungible nature of cash, while noting her concerns with prior case law relied on by Justice Kennedy that did appear to tread over Sixth Amendment rights. A link to the opinion is here.
Divided Court Preserves Circuit Split On Spouse’s Defense Under Equal Credit Opportunity Act
In a one-sentence ruling, the Court affirmed the decision of the U.S. Court of Appeals for the Eighth Circuit in Hawkins v. Community Bank of Raymore, leaving a circuit-split unresolved in its wake. In that case, PHC Development, LLC was the borrower under a note, which was unconditionally guaranteed by Gary Hawkins, one of PHC’s owners, and Valerie Hawkins, his wife. When PHC defaulted, the bank sued the wife only. The wife claimed the bank’s actions constituted marital status discrimination under the Equal Credit Opportunity Act. The Sixth Circuit had previously agreed that spousal guarantors had standing under the Act to raise such a challenge, but the Eighth Circuit disagreed, holding that the Act unambiguously excluded guarantors. A link to the affirmance is here.
U.S. Supreme Court Affirms Breadth Of Second Amendment Without Dissent
One of the big question marks about the passing of Justice Scalia concerned the fate of the Second Amendment, given that Scalia’s majority opinion in D.C. v. Heller had a narrow 5-justice majority. In a unanimous per curiam opinion in Caetano v. Massachusetts, handed down on March 21, 2016, the Court appeared united, at least for now, in defending Heller’s scope by categorically rejecting the reasoning of the Supreme Judicial Court for Massachusetts in upholding a law in that state that banned stun guns. The Massachusetts court held that stun guns were not protected by the Second Amendment because they did not exist at the time of this country’s founding, were “unusual” as a modern weapon, and not readily adaptable for use in the military. The Supreme Court wasted little time (two pages!) in noting how all three rationale were directly contrary to the holding in Heller, and therefore reversed. Justice Alito, joined by Justice Thomas, concurred in the judgment, noting emphatically that the genesis of this case began when an abused woman used a stun gun to scare off her abusive ex-boyfriend, and warning that “if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.” A link to the opinion is here.
On March 1, 2016, the U.S. Supreme Court handed down its first set of opinions without Justice Scalia.
ERISA Preempts State Law Reporting Requirements
In Gobeille v. Liberty Mutual Insurance Company, the Court held that Vermont’s law compelling disclosure of health care claims, for the purpose of maintaining an all-inclusive health care database, was preempted by the confidentiality requirements of the Employee Retirement Income Security Act of 1974. The majority opinion, authored by Justice Kennedy, noted the already detailed reporting and disclosure requirements mandated by ERISA, and concluded that those requirements “are central to, and an essential part of, the uniform plan administration contemplated by ERISA.” Therefore, Vermont’s separate reporting requirements were “connected to” ERISA’s plans, and were preempted to “prevent the States from imposing novel, inconsistent, and burdensome reporting requirements on plans.” That Vermont had a different goal in compiling the information was of no avail. Justice Thomas filed a concurrence, noting that while he agreed that the majority’s opinion followed prior ERISA precedent, he had “come to doubt” whether ERISA’s preemption scope was properly constitutional as currently applied. Justice Breyer’s concurrence noted that a lack of preemption would carry the heavy consequence of health plans having to potentially answer to “50 or more potentially conflicting information reporting requirements” that would be unduly burdensome. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that Vermont’s efforts to collect health care information did not regulate or manage any ERISA plans, and thus were not preempted. A link to the opinion is here.
It’s Inside Baseball Verses Star Wars In A Decision On Statutory Construction
The issue in Lockhart v. United States appeared quite simple: in a statute providing a mandatory minimum sentence for state crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” does the limiting phrase “involving a minor or ward” apply to all three kinds of crimes, or just the last one? The Court, in a majority opinion penned by Justice Sotomayor, held that the “rule of the last antecedent” required that the limiting phrase should be read “as modifying only the noun or phrase that it immediately follows,” and that other indicia of meaning did not contradict that reading, nor did the rule of lenity apply. “For example,” Justice Sotomayor offered, “imagine you are the general manager of the Yankees and you are rounding out your 2016 roster. You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year’s World Champion Kansas City Royals. It would be natural for your scouts to confine their search for a pitcher to last year’s championship team, but to look more broadly for catchers and shortstops.” Justice Kagan, joined by Justice Breyer, dissented, offering a counter-example: “Imagine your friend told you that she hoped to meet ‘an actor, director, or producer involving with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.” The dissent argued that the “ordinary understanding of how English works,” along with the rule of lenity given the uncertainty (both issues that Justice Scalia held dear), required that the limiting phrase be applied to all three crimes. A link to the opinion is here.
The U.S. Supreme Court issued six opinions on January 25, 2016.
An Erroneous Jury Instruction Does Not Change Nature Of A Sufficiency Challenge
In Musacchio v. United States, the defendant challenged his conviction under 18 U.S.C. sec. 1030(a)(2)(C) for unauthorized access to a computer because the government had not shown that he intentionally accessed the computer without authorization and exceeded his authorized access, as the jury instruction set forth. However, the statute itself requires only one of these elements to be proven. He also raised a statute of limitations defense under 18 U.S.C. sec. 3282(a), but failed to do so until the case was on appeal. The unanimous Court, in an opinion by Justice Thomas, affirmed the conviction. First, the Court noted that a sufficiency challenge is a limited review that only gauges whether the defendant had a meaningful opportunity to defend himself and that the finding of guilt was beyond a reasonable doubt. An erroneous jury instruction that required the government to prove an additional element does not negatively impact either of those considerations. The Court then held that Musacchio could not raise his statute of limitations argument for the first time on appeal because the language of Section 3282(a) did not make the limitation jurisdictional in nature, and thus he had to raise it before the trial court or else it was waived. A link to the opinion is here.
Prohibition On Life Without Parole Punishment For Juvenile Convicts Is Retroactive
Fifty years after Henry Montgomery was sentenced to life in prison without parole when he killed a deputy sheriff as a juvenile, the Supreme Court held in Miller v. Alabama, 567 U.S. --- (2012) that such a sentence violated the Eighth Amendment absent consideration of the juvenile’s special circumstances. Montgomery petitioned for a review of his sentence, but Louisiana’s Supreme Court denied relief. The Court, in an opinion by Justice Kennedy, reversed. First, the majority held that it had jurisdiction to review the Louisiana court’s ruling because the rule in Miller was a matter of constitutional law, and thus binding on state collateral review proceedings. Then, on the merits, the majority held that Miller’s rule on juvenile punishment was retroactive because it was substantive in nature, not procedural, although acknowledging that the consideration of a juvenile’s circumstances did inject a procedural component into the process. Justice Scalia, joined by Justices Thomas and Alito, filed a dissent arguing that it was “astonishing” that the Court would interject itself into a state post-conviction proceeding to undo a conviction that was obtained in conformance with then-existing constitutional law. Justice Thomas filed a separate dissent, arguing that no clause of the Constitution granted a right to Montgomery to seek retroactive review of his conviction. A link to the decision in Montgomery v. Louisiana is here.
Supreme Court Upholds FERC’s Power To Pay Consumers To Conserve Power Usage
Through power granted under the Federal Power Act, authorizing FERC to regulate “the sale of electric energy at wholesale in interstate commerce,” FERC issued a rule requiring wholesale electricity market operators who manage the grids to pay the same price to consumers to lower their energy usage as they would pay to a generator to produce the same energy—in effect, offering a higher price for energy conservation—so long as that price gave a net benefit to all consumers. The U.S. Court of Appeals for the District of Columbia struck down that rule as going beyond FERC’s authority under the Act and for being arbitrary and capricious. The Court, 6-2, reversed in an opinion by Justice Kagan. First, the majority held that the rule directly impacted wholesale rates for electricity as permitted under the Act, and did not impermissibly impact retail sales, noting that it was a “fact of economic life” that regulation of the wholesale market would affect retail sales in some way. The majority also found FERC’s rationale for the new rule to be adequately reasoned after the consideration of competing views, sufficient under the Administrative Procedure Act. Justice Scalia, joined by Justice Thomas, dissented, arguing that the Act by its terms did not permit FERC to regulate the demand response of consumers of electricity, as the Act only permitted regulation of sales of electricity to those would resell the power—wholesalers, not consumers. Justice Alito did not participate in the case. A link to the opinion in FERC v. Electric Power Supply Association is here.
Indian Tribe Not Entitled To Equitable Tolling When It Waited For Class Action To Resolve
Resolving a circuit split, the Supreme Court held in Menominee Tribe of Wisconsin v. United States that the Tribe was not entitled to equitable tolling of the six-year statute of limitations for its contract claims for the time that a similar case brought by a different Indian tribe was pending in the courts. Both Indian tribes had contracts with the U.S. government to provide aid, and both complained that the government was not meeting its obligations. Shortly after the Supreme Court held in favor of the Indian tribe in Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005) on one such contract, the Tribe in this case brought a similar contract action seeking to recover for nonpayments stretching back to 1995. The district court dismissed claims for those years not within six years of filing, and the Tribe appealed, arguing that the Cherokee case equitably tolled its claims. The unanimous Court, in an opinion by Justice Alito, held that the Tribe had not shown extraordinary circumstances beyond its control that would permit equitable tolling, noting that the Tribe could have brought its claims at any time. A link to the opinion is here.
Supreme Court Requires State Courts To Adhere To Its Rulings On Federal Law
In James v. Boise, the Court, in a per curiam opinion, reversed the ruling of the Idaho Supreme Court that interpreted 42 U.S.C. sec. 1988 in a way contrary to the Supreme Court’s interpretation set forth in Hughes v. Rowe, 449 U.S. 5 (1980). In Hughes, the Supreme Court held that Section 1988 permitted an award of attorneys’ fees to a prevailing defendant only when the plaintiff’s action was “frivolous, unreasonable, or without foundation.” Idaho’s Supreme Court declared that it was not bound by Hughes because its limitation was not set forth in the statute itself. The Court stated that it had the sole duty to interpret federal law to prevent the “public mischiefs” that might result from federal law being applied differently among the various states, and thus reversed Idaho’s holding. A link to the opinion is here.
Supreme Court Again Dismisses A Stockholder Complaint Against ERISA Fiduciaries
Applying the standard set in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. --- (2014), which requires plaintiffs to plausibly allege an alternative action that an ERISA fiduciary could have taken, consistent with the securities laws, and which a prudent fiduciary would not have viewed as more likely to harm the fund than to help it, in order to state a claim for breach of the fiduciary’s duty of prudence on the basis of insider information, the Court reversed the Ninth Circuit in Amgen Inc. v. Harris, by a per curiam decision, and dismissed a complaint without prejudice because it did not set forth any facts that plausibly alleged such an alternative action. The Ninth Circuit had posited such an alternative action in upholding the complaint, but the Court required that the complaint itself contain such facts and allegations. A link to the opinion is here.
Death Penalty Jurors Do Not Need Instruction On Burden Of Proof For Mitigating Circumstances
In the consolidated case of Kansas v. Carr, the Supreme Court held that the Eighth Amendment did not require trial courts in a death penalty case to instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The Kansas Supreme Court had vacated sentences of death handed down to a robber who killed to cover up his crime, and brothers who went on a depraved crime spree ending in rape, robbery, kidnapping, and executions, because the trial courts’ failure to instruct the respective juries that mitigating circumstances need not be proven beyond a reasonable doubt left the jurors to speculate as to the proper burden. In addition, the Kansas court held that the brothers’ trials should have been severed and considered separately because one brother’s mitigating evidence prejudiced the other. Justice Scalia, joined by seven other justices, reversed. Noting that jurors may disagree on what might qualify as a mitigating factor, the majority held that the instructions given in these cases only required that the jury find that mitigating circumstances were “found to exist,” which was not so confusing as to make juries believe that such circumstances needed proof beyond a reasonable doubt. The majority also held that the mere fact that the brothers had “antagonistic theories of mitigation” was not sufficient to warrant separate trials, and noted that precluding joinder in such cases would actually lead to less reliable results. Justice Sotomayor dissented, arguing that the Court should not have reviewed the cases because there were no federal rights implicated and the Kansas Supreme Court could have reached the same result purely under state law. A link to the opinion is here.
ERISA Plans Have No Recourse Against Spendthrift Participants
Although ERISA plans will normally cover medical costs incurred when a plan participant is injured by a third party, those plans also include a subrogation clause requiring the participant to reimburse the fiduciary from any monies recovered from the third party. However, in a decision that may lead to abuse by opportunistic participants, the Supreme Court held, 8-1, that the fiduciary cannot recover when the participant spends all the recovered money on non-traceable items. In Montanile v. Bd. of Trustees of Nat. Elevator Ind. Health Benefit Plan, after Montanile obtained a $500,000 settlement from the drunk driver who hit him, he refused to pay any of the money to the ERISA fiduciary who paid over $120,000 toward his medical costs, and instead spent the money on other things. The fiduciary sought to recover payment from his general assets under 29 U.S.C. sec. 1132(a)(3), which permits “equitable relief . . . to enforce . . . the terms of the plan,” and won an equitable lien on Montanile’s general assets in the district court and the Eleventh Circuit, creating a circuit split on the issue. Justice Thomas’ majority opinion reversed. Relying on equity treatises, the Court held that spending on non-traceable items destroyed the equitable lien, as the lien is only effective as to the particular property—the settlement proceeds—at issue. Only an action at law remained. The Court, in a portion not joined by Justice Alito, rejected the Board’s other arguments to extend ERISA’s equitable relief beyond the traditional scope. Justice Ginsburg filed a short dissent arguing that the “bizarre” result in this case was the result of the Court’s misreading of the word “equitable” in a 2002 case. A link to the opinion is here.
Unaccepted Rule 68 Offer Of Judgment Does Not Moot Case
Resolving a circuit split, the Supreme Court held in Campbell-Ewald Company v. Gomez that an offer of judgment under Fed. R. Civ. P. 68 as to a named plaintiff’s individual claim does not serve to moot the case as to other class plaintiffs. The case concerned advertisements for the Navy that were texted to a large number of cell phone numbers by Campbell-Ewald, a federal contractor. One such recipient, Gomez, filed suit under the Telephone Consumer Protection Act on behalf of himself and all others similarly situated because he did not consent to receiving the message. Before Gomez filed for class certification, the defendant made a Rule 68 offer that would have cured all of Gomez’s claimed damages. Gomez did not accept it. The district court refused to dismiss the case as moot, but later dismissed the defendant on the basis that it enjoyed the Navy’s sovereign immunity. The Ninth Circuit reversed on the immunity issue, but upheld the mootness ruling. The Supreme Court, in an opinion by Justice Ginsburg joined by four justices, affirmed the Ninth Circuit’s rulings. The Court construed the Rule 68 offer of judgment as a contract offer that, once rejected, had no effect whatsoever on the case. The majority further held that federal contractors do not enjoy derivative immunity when they exceed their given authority or such authority was not validly conferred. Justice Thomas concurred only in the judgment, arguing that the historical law of tenders, instead of modern contract law, provided the genesis for Rule 68, and tenders did not bar further consideration of a case by a federal court. Chief Justice Roberts, joined by Justices Scalia and Alito, dissented, arguing that there was no “case or controversy” for a court to decide once a Rule 68 offer in the maximum amount recoverable by the plaintiff is made. A link to the opinion is here.
Supreme Court Strikes Down Florida’s Death Penalty Scheme
Overturning prior decisions that upheld Florida’s sentencing procedure for death penalty cases, the U.S. Supreme Court held, 8-1, that the judge’s role under Florida law of finding sufficient facts to warrant the death penalty violated the Sixth Amendment’s requirement that such fact-finding be done only by a jury. Florida argued that its scheme was constitutional because the jury provided an “advisory verdict” that the sentencing judge must give “great weight” to. Justice Sotomayor’s opinion rejected that “hybrid” approach, holding that under Ring v. Arizona, 536 U.S. 584 (2002), any penalty of death had to be solely based on facts found by the jury. Justice Breyer, in a brief concurrence, that he came to the same result through the Eighth Amendment instead of the Sixth. Justice Alito, dissenting, argued that the holding in Ring should not have been extended to this case, where the jury played “critically important role” in the application of the death penalty, and the judge performs merely a “reviewing function.” The decision in Hurst v. Florida is here.
Supreme Court Limits Prisoner In Forma Pauperis Litigation
Perhaps with an eye toward weeding out the thicket of litigation initiated by prisoners, the Supreme Court, in a unanimous decision authored by Justice Ginsburg, held that prisoners litigating in forma pauperis must pay for their cases on a per-case basis. Under the Prison Litigation Reform Act of 1995, prisoners had to pay a certain amount of the initial filing fee to initiate a case, and then were required to make certain monthly payments thereafter. The Act was unclear, however, whether those monthly payments applied on a per-prisoner or per-case basis. Obviously, the former interpretation would permit litigious prisoners to maintain many more cases in the courts. The majority’s brief opinion surveyed the Act’s language and determined that it applied against each action or appeal, thus requiring separate payments for each. The majority also noted that this interpretation coincided with the Act’s goal of reducing frivolous prisoner litigation—noting in particular that the appellant in this case was “frequent litigant.” A link to the decision in Bruce v. Samuels is here.
U.S. Supreme Court Bolsters Effectiveness of Arbitration Provisions
In a 6-3 decision, the U.S. Supreme Court held that an arbitration provision that was to be enforceable only as allowed by state law is enforceable where the Federal Arbitration Act pre-empted that law. DIRECTV, Inc.’s service agreement included a binding arbitration provision that was unenforceable if the “law of your state” so dictated. California’s courts ruled that such provisions were unenforceable, but then the Supreme Court held in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) that the Act pre-empted California’s rule. California’s Court of Appeal that despite the ruling in Concepcion, the provision was still unenforceable because that was what California’s law dictated. Justice Breyer’s opinion for the majority held that this result did not place such contracts “on equal footing with all other contracts,” and thus did not give “due regard . . . to the federal policy favoring arbitration.” Therefore, Concepcion and the Act was the proper reflection of California law, and the provision was therefore upheld. Justice Thomas noted in his short dissent his belief that the Act did not apply to state court proceedings. Justice Ginsburg, joined by Justice Sotomayor, argued that the better reading of the provision was to abide by state law without consideration of federal pre-emption, warning that further expansion of the Act’s purview threatened to degrade the rights of consumers to the benefit of corporations. A link to the opinion in DIRECTV, Inc. v. Imburgia, released on December 14, 2015, is here.
U.S. Supreme Court Denies Habeas Relief For Stricken Juror
In White v. Wheeler, White was sentenced to death after a trial in which a juror was stricken for cause after giving equivocal and inconsistent answers about his ability to impose the death penalty. White argued that this infringed upon his constitutional rights, and the U.S. Court of Appeals for the Sixth Circuit agreed. The U.S. Supreme Court, in a unanimous per curiam decision, reversed. The Court emphasized that habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 was highly deferential to the decisions by the state courts, and that such relief is only given where the error is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” The Court noted that the juror was carefully questioned in voir dire, and that it was not “beyond disagreement” that his answers qualified him for a capital panel. A link to the December 14, 2015 opinion is here.
In a per curiam opinion issued on November 9, 2015, the U.S. Supreme Court reversed a decision of the U.S. Court of Appeals for the Fifth Circuit and held that whether a police officer’s use of force was excessive under the Fourth Amendment is determined through an objective reasonableness standard that is a “pure question of law” that can be resolved on summary judgment. The Court further held that on the facts in this case, the officer did act reasonably in shooting at the subject of a high-speed chase in an effort to disable the vehicle, but instead killed the suspect. The opinion noted that the suspect had been reported to be drunk, had been driving at a high rate of speed for a prolonged period, had threatened to shoot officers, and was approaching an officer who had set out a spike trap, reasoning that in such circumstances the officer’s decision to shoot was not “beyond debate” nor “squarely governed” by precedent, and thus the officer was entitled to qualified immunity. Justice Scalia’s concurrence argued that since the purpose of the shots was to disable to vehicle, not harm the suspect, cases involving the use of deadly force did not apply. Justice Sotomayor, in a solo dissent, argued that it was “clearly established under the Fourth Amendment” that the officer’s “rogue conduct” was unlawful, and that he should have waited until he was given the go-ahead by a superior officer, and allowed the spike trap a chance to work, before shooting. The opinion in Mullenix v. Luna is here.
U.S. Supreme Court: Counsel Not "Constitutionally Ineffective" For Failing To Find Report Critical Of Bullet Analysis-- Monday, October 5, 2015
In a per curiam opinion issued on October 5, 2015, the U.S. Supreme Court reversed the Maryland Court of Appeals and held that a criminal defendant’s attorney is not constitutionally ineffective under the Sixth Amendment for failing to find a single report that presaged flaws in Comparative Bullet Lead Analysis that helped establish his guilt. The Analysis was used in James Kulbicki’s 1995 trial to link the bullet fragments found in his car with the fragments found in his mistress’ brain. After he was convicted of first-degree murder, he claimed his counsel was ineffective because they did not find a 1991 report that “presaged the flaws” in the Analysis that led ultimately to the Analysis being rejected as competent evidence by Maryland in 2006. Kulbicki gave up on that ineffectiveness argument, but the Maryland Court of Appeals vacated his conviction on that issue alone. His victory was short-lived, however, as the U.S. Supreme Court summarily reversed, finding that his counsel was not constitutionally ineffective for not “poking methodological holes in a then-uncontroversial mode of ballistics analysis” and there being “no reason to believe that a diligent search would even have discovered the supposedly crucial report.” A link to the unanimous opinion in Maryland v. Kulbicki is here.
The U.S. Supreme Court issued two more opinions on June 26, 2015, leaving just three decisions for the Court to issue on Monday, June 29.
Coincidentally timed on the anniversary of the decisions in Lawrence v. Texas and U.S. v. Windsor, two prior gay-rights cases, Justice Kennedy announced the majority opinion in Obergefell v. Hodges, in which the five-person majority held that the Fourteenth Amendment required requires all states to license marriages between same-sex couples, and to recognize same-sex marriages of other states. The majority opinion found that “the nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The Court then analyzed the principles the Court had used to define the right to marry, and found that they applied “with equal force to same-sex couples.” While recognizing the ongoing democratic debate regarding same-sex marriage, the majority determined that enforcement of the fundamental right of marriage was needed now to prevent harm to same-sex couples. Chief Justice Roberts, joined by Justices Scalia and Thomas, filed a dissent, arguing that while “many people will rejoice at this decision, and I begrudge none of their celebration,” the majority’s holding “is an act of will, not legal judgment,” that “will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.” In his view, the “Constitution does not enact any one theory of marriage,” and the states should have been left to decide the issue. Justice Scalia, joined by Justice Thomas, penned a separate dissent arguing that the majority’s pronouncement was a “threat to American democracy,” as it permitted “a majority of the nine lawyers on the Supreme Court,” in a “naked judicial claim to legislative—indeed, super-legislative—power,” to shut down the public debate over same-sex marriage that was “American democracy at its best.” Justice Thomas, joined by Justice Scalia, expressed his concern that the Due Process Clause be used as “a font of substantive rights” as the Court’s whims saw fit, and arguing that there was no cognizable liberty interest in forcing the states to recognize same-sex marriage. Justice Alito, joined by Justices Scalia and Thomas, filed the final dissent, arguing that since the Due Process Clause only protects fundamental rights deeply rooted in the nation’s history, the majority’s holding is based on present-day belief, not evidence, worrying that “if a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.” A link to the opinion is here.
In another Due Process Clause case, this time under the Fifth Amendment, the Court held 8-1 in Johnson v. United States that the Armed Career Criminal Act’s residual clause that permitted a prison term to be lengthened for any felony the “involves conduct that presents a serious potential risk of physical injury to another” violated that clause because it was unconstitutionally vague. Here, Johnson was given 15 additional years of jail when the district court determined that his unlawful possession of a short-barreled shotgun qualified under that clause. Justice Scalia’s majority opinion held that the clause gave no clear way of assessing risk, nor a way to gauge how much risk was necessary for the conduct to qualify, and thus it invited arbitrary enforcement that did not give people fair notice of what was being punished. Accordingly, Johnson’s sentence was vacated and remanded. Justice Kennedy, concurring in the judgment, argued that the statute was not unconstitutionally vague under a categorical or record-based approach, but agreed that Johnson’s acts did not qualify for the enhancement. Justice Thomas, also concurring in the judgment, argued that there was no need to resolve a constitutional question—and was “wary” of holding the residual clause as vague—because mere possession of the shotgun plainly did not qualify as a violent felony. Justice Alito, dissenting, argued that the residual clause had been previously upheld by the Court twice (both over Justice Scalia’s objections), and should be upheld again under stare decisis, and also argued that the bar for unconstitutional vagueness was high, and the residual clause should have instead been interpreted to avoid any constitutional infirmity. A link to the opinion is here.
The U.S. Supreme Court issued two blockbuster opinions on June 25, 2015, with more to come on June 26.
In one of the most anticipated opinions of the day, and perhaps of the term, was the decision in King v. Burwell, in which the Court held, 6-3, that the tax credits granted by the Affordable Care Act to individuals who purchase health insurance through “an Exchange established by the State” are also available to individuals in States that have a federal exchange. Chief Justice Roberts’ majority opinion first declined to apply Chevron deference to the IRS’s interpretation of the statute. His opinion then concluded that while arguments about the plain meaning of the phrase “Exchange established by the State” were “strong” and the “most natural reading” of it, the phrase was nonetheless ambiguous given the overall context and structure of the Act, acknowledging that the law was the product of “inartful drafting.” The majority then held that subsidies available in an “Exchange established by the State” must also be available to federal exchanges as otherwise “it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.” Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that “words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” In the dissent’s view, the majority simply favored the Act and repeatedly engaged in “somersaults of statutory construction” to save it, leading to the suggestion that “we should start calling this law SCOTUScare.” A link to the opinion is here.
In a 5-4 decision, the Court held in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. that disparate-impact claims may be brought under the Fair Housing Act, but the Court put substantial limits on those claims. The Project brought suit alleging that the allocation of tax credits to predominately black inner-city areas as opposed to predominately white suburban neighborhoods caused a disparate impact in violation of the Act based solely on statistical evidence. Justice Kennedy’s majority opinion held that such claims needed to be “limited in key respects that avoid the serious constitutional questions that might arise . . . if such liability were imposed based solely on a showing of a statistical disparity” without a showing direct causation by a policy. The housing authorities should also be given “leeway to state and explain the valid interest served by their policies . . . analogous to the business necessity standard” under the Civil Rights Act, to defend against a disparate impact claim. Justice Alito, joined by the Chief Justice and Justices Scalia and Thomas, dissented, arguing that the text of the Fair Housing Act does not permit such claims, and alleging that the majority’s ruling will actually make things worse for the poor who need housing as it will penalize good-faith efforts by housing authorities. Justice Thomas, in a separate dissent, articulated his view that the Court’s precedent allowing disparate impact claims under the Civil Rights Act was flawed, and that same rationale should not be extended to allowing such claims under the Fair Housing Act. A link to the opinion is here.
The U.S. Supreme Court released four opinions on June 22, 2015. The next batch of opinions will be handed down on Thursday, June 25.
The Court was asked in Kimble v. Marvel Entertainment, LLC to overturn Brulotte v. Thys Co., 379 U.S. 29 (1964)—which held that parties cannot enter into a patent licensing agreement that provides for royalty payments to continue after a patent expires—because that prior case was based on the erroneous economic theory that post-expiration royalties are always anticompetitive. Although the Court agreed that Brulotte’s economic reasoning was wrong, the six-member majority, in an opinion by Justice Kagan, adhered to stare decisis and kept the rule in Brulotte, stating that Congress is the one who should fix the problem. Noting that stare decisis was “superpowered” when concerning issues of property and contract rights, the Court indicated that economic arguments are more effective in the antitrust realm of the Sherman Act, where the Court has been the principle driver of policy, rather than patent law where Congress has taken the lead. As a result, Marvel no longer has to pay royalties to Kimble for the “Web Blaster” polyester glove that let kids shoot foam like Spider-Man shot webbing. Justice Alito, joined by the Chief Justice and Justice Thomas, dissented, arguing that Brulotte was a “bald act of policymaking” from the start, an “antitrust decision masquerading as a patent case,” based on an obviously mistaken theory, and thus it should be corrected and overturned. A link to the opinion is here.
In an effort to control raisin prices, the Agricultural Marketing Agreement Act of 1937 required raisin growers to give almost half of their crop to the government, which would then distribute or sell those raisins as it saw fit, remitting any profits back to the growers. The Hornes claimed that this was an unconstitutional taking under the Fifth Amendment. The Ninth Circuit rejected the Horne’s claim, and the Court, in an opinion by Chief Justice Roberts, reversed, holding that the Fifth Amendment applies to takings of personal property just as it applies to real property. Even though the growers still had an interest to the eventual net proceeds, the government still had to pay just compensation for the raisins taken, that price being defined as “the market value of the property at the time of the taking.” The Court refused to see the program as a voluntary donation by the growers in exchange for the right to sell raisins across interstate lines. Justice Breyer, joined by Justices Ginsburg and Kagan, agreed that the government had to pay just compensation for the raisins taken, but argued that the case should be remanded for a determination of how much should be paid since the market value of raisins was distorted by the program itself. Justice Thomas filed a concurrence disagreeing with Justice Breyer’s argument that the program actually took raisins “for public use,” and that calculating just compensation would therefore be a “fruitless exercise.” Justice Sotomayor, the lone dissenter, argued that there was no taking because the government did not destroy every one of the growers’ rights to the raisins by allowing them to recover net profits, if any, after the government distributed the raisins. A link to the opinion in Horne v. Department of Agriculture is here.
The Court held 5-4 in Kingsley v. Hendrickson that a pretrial detainee only needs to show in a 42 U.S.C. sec. 1983 claim of excessive force that the force purposefully or knowingly used against him or her was “objectively unreasonable,” as determined from the point of view of a reasonable police officer at the scene, including what the officer knew at the time. Justice Breyer’s majority opinion rejected a test that would have examined whether the officers were subjectively aware that their use of force was unreasonable—in other words, that the officers had actual intent to violate the detainee’s rights or had a reckless disregard for his or her rights. While the Court held that pretrial detainees had a Due Process right to be free from excessive force, it distinguished this claim from an Eighth Amendment claim of unconstitutional punishment that is only available to convicts. The judgment in favor of the officers was vacated and remanded for a new trial. In dissent, Justice Scalia, joined by the Chief Justice and Justice Thomas, argued that the infliction of objectively unreasonable force was not, without any showing of intent, should not be sufficient to prove excessive force, although he agreed that a pretrial detainee was entitled to the same Due Process protection as a convict from excessive force. Justice Alito, in dissent, argued that the case should have been dismissed as improvidently granted until such time as the Court determines whether a pretrial detainee is entitled to bring an excessive force claim under the Fourth Amendment—if such a claim is available, then there would be no need to rely on Due Process. The petitioner in this case failed to bring that claim. A link to the opinion is here.
Finally, the Court struck down, under the Fourth Amendment, a law allowing police officers unfettered access to specific information that hotel operators were required to keep about their guests for a 90-day period, because that law did not allow the operators to obtain pre-compliance review before a neutral decisionmaker. In Los Angeles v. Patel, Justice Sotomayor, for the 5-justice majority, first held that a facial challenges to the law could be brought under the Fourth Amendment, declining to interpret prior authority as allowing only as-applied challenges. Second, the Court held that to determine whether a law should be invalidated under the Fourth Amendment, the inquiry should consider those searches the law allows, and not those for which the law would be irrelevant, such as an exigent or consensual search. Given those holdings, the Court considered the law as an “administrative search,” and since those searches must allow an opportunity for pre-compliance review before a neutral decisionmaker to be in accord with the Fourth Amendment, the law in question was facially invalid. The Court carefully noted that this did not mean the hotel operators were entitled to “actual review” in every case, and that the Court’s holding did not abridge the requirement to keep records. Justice Scalia, joined by the Chief Justice and Justice Thomas, dissented, arguing that the searches of hotel records were reasonable under the Fourth Amendment given that hotels, as public accommodations that tend to attract criminality, should be deemed “closely regulated businesses” entitled to a lower standard of privacy. Justice Alito, in a separate dissent joined by Justice Thomas, argued that since there were situations in which searches under the law would be reasonable, the Court should not have struck it down as facially unconstitutional. A link to the opinion is here.
The U.S. Supreme Court issued six new opinions on June 18, 2015.
When the Texas DMV refused to issue specialty license plates emblazoned by the Confederate battle flag, the Sons of Confederate Veterans claimed that the decision violated their freedom of speech under the First Amendment. In a 5-4 decision, an unusual majority of the Court held that specialty license plates constitute government, not private, speech, and thus the DMV could constitutionally refuse to issue the plates. Justice Breyer, joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, wrote that the fact that a private group might participate in the design or message on a license plate did not extinguish the governmental nature of the message or transform the government into a forum provider for speech. Justice Breyer acknowledged that just as Texas could not require a private group to convey "the State's ideological message," private groups could not force Texas to put the Confederate flag on its license plates. Justice Alito, joined by the Chief Justice and Justices Scalia and Kennedy, dissented, arguing that the majority's opinion "passes off private speech as government speech" and in so doing "takes a large and painful bite out of the First Amendment." A link to the opinion in Walker v. Sons of Confederate Veterans, Inc. is here.
The prosecution at the murder trial of a Hispanic man peremptorily struck seven minority jurors, and the defendant's counsel objected under Batson v. Kentucky that the strikes were impermissibly race-based. The trial judge permitted the prosecutor to explain the reasons for the strikes without defense counsel present, and upheld the strikes as race-neutral. The California Supreme Court held that this was error, but a harmless one. The Ninth Circuit held that the ex parte proceeding violated the defendant's federal constitutional rights, and the error was not harmless. The Court, in a 5-4 opinion by Justice Alito, reversed, holding that the California court's finding of harmlessness should stand unless it unreasonably applied clearly established federal law or was based on an unreasonable determination of the facts. Examining each of the seven jurors stricken and the reasons given by the prosecution, the Court found that the California court was correct in its findings, thereby reversing the Ninth Circuit. Justice Kennedy, in a concurrence that diverged from the issues of the case, noted his concerns about solitary confinement, which the defendant has been in for roughly 20 years, exacting a "terrible price" on prisoners. Justice Thomas filed a brief concurrence in response to Justice Kennedy, noting that the defendant's confinement is "more spacious that those in which his victims . . . now rest." Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented, arguing that defense counsel's presence during the Batson proceedings could have had a significant effect on the trial court's ruling as to at least one juror, and thus there were "grave doubts" that the error was harmless. The opinion in Davis v. Ayala is here.
Star NFL running back Warrick Dunn cast a long shadow over the case of Brumfield v. Cain, which involved a murderer's claim of intellectual disability in order to avoid the death penalty. Brumfield was sentenced to death in Louisiana for killing Dunn's mother in 1993. After his conviction, the Court decided Atkins v. Virginia, 536 U.S. 304 (2002), which prohibited the execution of intellectually disabled persons under the Eighth Amendment. The Louisiana Supreme Court subsequently held that to raise an Adkins claim, the claimant had to show (1) subaverage intelligence measured by an objective standardized IQ test; (2) significant impairment in several areas of adaptive skills; and (3) manifestations of this neuro-psychological disorder in the development stage. Brumfield raised an Atkins claim, but the state trial court, with holding an evidentiary hearing or granting funds to conduct an investigation, rejected it. Brumfield's claim made its way to the federal district court, which held under AEDPA that the state court's denial was an unreasonable application of federal law and was based on an unreasonable determination of the facts, ruling that Brumfield was intellectually disabled and thus was ineligible for execution. The Fifth Circuit reversed, and the Court, in a 5-4 opinion authored by Justice Sotomayor, held that the state court's denial was based on an unreasonable determination of the facts, and this Brumfield was entitled to have his Atkins claim heard on the merits in federal court. Justice Thomas, largely joined by the Chief Justice and Justices Scalia and Alito, dissented, arguing that the state court's findings were supported by sufficient evidence under Louisiana law, and that no Court precedent mandated that funds be provided to assist Brumfield in pursuing his Atkins claim. Justice Alito, joined by the Chief Justice, filed a one-paragraph dissent noting that Justice Thomas' use of Dunn's successful life after his mother's murder, in contrast to Blumfield's, "is inspiring" but was not "essential to the legal analysis in this case." A link to the opinion is here.
While the Sixth Amendment's Confrontation Clause generally prohibits the introduction of "testimonial" statements by a nontestifying witness, the Court held in Ohio v. Clark that the statements of a three year-old to his teachers about abuse by the defendant, which were introduced at trial and led to his arrest and conviction, were not subject to exclusion under that Clause because they were not made with the "primary purpose" of being evidence for the defendant's prosecution, but were offered only in the context of an ongoing emergency involving suspected child abuse. Justice Alito's majority opinion, reversing the Supreme Court of Ohio, declined to adopt a categorical position that statements to persons other than law enforcement officers were exempt from the Confrontation Clause, but opined that such statements "are much less likely to be testimonial" in nature, and that the three year-old's statements in the context of this case were not testimonial. The majority also suggested that "statements by very young children will rarely, if ever, implicate the Confrontation Clause." Justice Scalia, joined by Justice Ginsburg, concurred only in the judgment, arguing that a child's statements to his teachers are far from testimonial in nature, and that the majority's dicta beyond that point only served to "shovel fresh dirt upon the . . . grave" of the Confrontation Clause. Justice Thomas, also concurring only in the judgment, stated that he would have held statements to private persons to the same standard as statements to law enforcement officers for the purpose of determining whether they are testimonial, by assessing only "whether those statements bear sufficient indicia of solemnity." A link to the opinion is here.
In a unanimous ruling, the Court held that in order to convict someone under 21 U.S.C. sec. 841(a)(1) for selling a controlled substance, the government must prove that the seller knew he was dealing with a controlled substance, and when that substance is an analogue, the defendant must be shown to know that the analogue was covered under the Act, or knew the specific features of the substance that made it a controlled substance analogue. The analogue at issue in McFadden v. United States was bath salts that McFadden was selling, which had effects upon ingestion similar to those of cocaine and other controlled substances. At trial, the district court approved a jury instruction that did not require the jury to find that McFadden himself knew the bath salts were analogues. The Fourth Circuit affirmed, holding that the only mental state necessary for guilt was whether McFadden meant for the bath salts to be consumed by humans. Justice Thomas' majority opinion vacated that ruling and remanded the case back to the Fourth Circuit to determine whether the omission of the proper mental state in the jury instruction constituted harmless error, given evidence that McFadden had knowledge that the bath salts he was selling were controlled substances. The Chief Justice filed a concurrence noting that a person's knowledge of the identity of a substance may not, in every case, indicate knowledge that the substance is controlled. A link to the opinion is here.
Finally, the Court struck down a town's Sign Code as applied to "temporary directional signs" as a "content-based regulation of speech" that did not survive strict scrutiny under the First Amendment. In Reed v. Town of Gilbert, the town had regulations governing a variety of signs based on their content, and mandated that temporary directional signs used by nonprofit organizations be removed within an hour after the event advertised had ended. A church was cited for violating that portion of the Sign Code, and it filed suit requesting an injunction on the basis that the Code infringed the church's First and Fourteenth Amendment rights. The district court and Ninth Circuit held that the Code was content-neutral, and thus did not violate any constitutional rights. Justice Thomas' majority opinion reversed, finding that the sign regulations on their face were content-based, and there was no compelling reason why directional signs should be treated more restrictively than, say, ideological or political signs. The town's arguments in favor of aesthetics and traffic safety were deemed insufficient to address the "hopelessly underinclusive" distinctions in the Code. Justice Alito, joined by Justices Kennedy and Sotomayor, filed a concurrence suggesting certain sign rules that would not be content based and thus would have passed muster. Justice Kagan, joined by Justices Ginsburg and Breyer, concurred in the judgment only, arguing that the majority opinion's application of strict scrutiny may be broad enough to sweep under its broad ambit a variety of typical sign ordinances. Justice Breyer filed a separate concurrence arguing that "content discrimination" should not automatically trigger a strict scrutiny analysis, but "is better considered in many contexts." A link to the opinion is here.
The U.S. Supreme Court issued three (3) new opinions on June 15, 2015, with more opinions to come on June 18.
In Kerry v. Din, a fractured 5-member majority held that the denial of a non-citizen’s visa application did not violate the due process rights of that non-citizen’s resident wife when the explanation for the denial was no more than a citation to the applicable statute barring admission of those who engage in “terrorist activities.” Justice Scalia, joined by the Chief Justice and Justice Thomas, held in the principle plurality opinion that the wife did not have a sufficient liberty interest in her husband’s immigration status for her to be entitled under due process for an explanation of the denial of his application, emphasizing that the only rights at issue were the husband’s interest in traveling to the United States, and declining to find an amorphous liberty interest in a married couple living together. Justice Kennedy, joined by Justice Alito, held that whether the wife had a liberty interest or not, the government’s explanation for the visa denial was sufficient to afford due process, given that the non-citizen husband was a former Taliban civil servant. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that there is a liberty interest in married couples living together, and that the government should have been required to provide a factual basis for its decision to deny the application. A link to the opinion is here.
In another immigration case, the Court held that the Courts of Appeals have jurisdiction to consider a ruling of the Bureau of Immigration Appeals (“BIA”) that a motion to reopen a removal proceeding was untimely. A resident alien can reopen his or her proceedings pursuant to statute if timely filed, or the BIA can reopen them sua sponte through its own regulatory authority. In Mata v. Lynch, Mata filed an untimely motion to reopen pursuant to the statute, arguing that the deadline should have been equitably tolled. The BIA disagreed and dismissed the motion. The Fifth Circuit, choosing to interpret Mata’s motion as requesting the case be reopened under the BIA’s sua sponte authority, declined to find that it had jurisdiction to hear Mata’s appeal. The Court, in an opinion by Justice Kagan, reversed, holding that even if Mata’s motion was without merit, the Fifth Circuit should have asserted jurisdiction to affirm the BIA’s holding. Justice Thomas filed a solo dissent. While he agreed that the Fifth Circuit was wrong and had jurisdiction, he was troubled by the Fifth Circuit’s decision to recharacterize Mata’s pleading instead of addressing it as written, and would have remanded the case without the “burden” of the recharacterization. A link to the opinion is here.
Finally, in a case that will have a significant effect on the bankruptcy bar, the Court held 6-3 in Baker Botts LLP v. ASARCO, LLC that a bankruptcy court may not award attorney’s fees under 11 U.S.C. sec. 330(a)(1) for work performed in defending a fee application. Justice Thomas’ majority opinion, reaffirming the American Rule prohibiting awards of attorney’s fees except in certain limited circumstances, held that the language of 330(a)(1) limited attorney’s fee awards to “actual, necessary services rendered” by the attorney, which by its terms could not include work performed in requesting fees from the court, since those activities do not actually assist the client. The majority opinion rejected Baker Botts’ argument that “services” includes any fee defense litigation since that interpretation would permit awards for unsuccessful fee defense, and the government’s argument that such work should be seen as part of the compensation for the underlying services benefiting the client since that interpretation conflicted with the text of the statute and failed on policy grounds. Justice Sotomayor filed a short concurrence only to state that she saw no need to go into the policy arguments against the government’s position, and thus did not join in that part of the majority opinion. Justice Breyer, joined by Justices Ginsburg and Kagan, dissented, arguing that the government’s interpretation was correct, and the fees spent defending a fee application should be considered a “relevant factor in calculating reasonable compensation.” A link to the opinion is here.
The U.S. Supreme Court issued a new opinion on June 8, 2015
Confronting the “delicate subject” of a dispute between Congress and the White House as to who gets to recognize whether Israel has sovereign rule over Jerusalem, a divided Court sided with the President, holding that he has the exclusive power to recognize state sovereigns. In Zivotofsky v. Kerry, U.S. parents of a child born in Jerusalem requested that their child’s passport reflect “Israel” as his place of birth pursuant to section 214(d) of the Foreign Relations Authorization Act. Embassy officials refused to make that notation due to the White House’s longstanding position that the United States does not, for foreign policy relations purposes, recognize any country as having sovereignty over Jerusalem. Justice Kennedy’s majority opinion held that the text and structure of the Constitution, particularly the clause concerning the President’s power to “receive Ambassadors,” vested exclusive authority to recognize foreign sovereigns in the President, and thus that portion of the Act was unconstitutional. Justice Breyer, in a brief concurrence, noted his belief that the issue was a political question inappropriate for judicial resolution, but joined the majority on the basis of precedent. Justice Thomas concurred in the result, agreeing that the Act was unconstitutional as applied to passports, but disagreeing that it was unconstitutional as applied to consular reports of births abroad, which were “developed to effectuate the naturalization laws,” which are the purview of Congress. Justice Scalia, joined by the Chief Justice and Justice Alito, dissented, arguing that section 214(d) fell within Congress’ constitutional powers, and that while the President was vested with some power to recognize foreign sovereigns, that power was not exclusive, nor are passports relevant to recognition. Chief Justice Roberts, joined by Justice Alito, wrote a separate dissent emphasizing the “unprecedented” nature of the decision, arguing that the majority’s holding rested on tenuous extensions of the Constitution’s text. A link to the June 8, 2015 opinion is her.
The U.S. Supreme Court issued five new opinions on June 1, 2015.
In Bank of America v. Caulkett, the Court declined to allow a Chapter 7 bankruptcy debtor to “strip down” a mortgage lien that is junior to liens that claim all of the equity in a home, thus allowing those “underwater” liens to survive a discharge. Caulkett owned a house where the senior mortgage lien was greater than his property’s current market value, and he sought under Chapter 7 to void a junior mortgage lien under section 506 of the Bankruptcy Code on the basis that the junior lien was not “an allowed secured claim.” The Eleventh Circuit affirmed ordered voiding the junior lien, and the Court, in a unanimous opinion by Justice Thomas, reversed. Although such underwater liens would appear to be “unsecured” under the definition of 506(a)(1), the Court held that its opinion in Dewsnup v. Timm, 502 U.S. 410 (1992), mandated that such liens were “secured” regardless of whether the value of the property was sufficient to cover the claim, regardless of whether the subject lien was partially or wholly uncovered. Justices Kennedy, Breyer, and Sotomayor joined in the opinion except with regard to a single footnote that pointed out the unpopularity of Dewsnup, which the parties had not argued to overrule—perhaps indicating that the other six justices might favorably entertain such a future challenge. A link to the opinion is here.
Perhaps the most-watched opinion from today was in Elonis v. United States, in which a man posted violent threats against his wife and others on his Facebook page, which he argued were protected under the First Amendment. Elonis was charged with violation of 18 U.S.C. sec. 875(c), which makes it illegal to “transmit . . . any threat.” At trial, Elonis argued that he should only be guilty if he intended to communicate a “true threat” through his posts. The district court instead instructed the jury that Elonis be found guilty if he intentionally made a statement that a reasonable person in his position would foresee being interpreted as a serious intent to cause harm. The Third Circuit affirmed, holding that 875(c) required only the intent to communicate words that the defendant understands and a reasonable person would view as a threat. The Court, in an opinion by the Chief Justice, reversed, holding that a defendant must transmit the communication for the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat, to be guilty under 875(c), while reserving judgment on whether recklessness alone would satisfy the statute, completely sidestepping the First Amendment issue. In other words, the Court rejected any negligence-based standard for guilt, requiring that the defendant’s state of mind be proven. Justice Alito, concurring and dissenting in part, argued that the Court’s decision “is certain to cause confusion and cause problems” because it did not address the recklessness issue and fully settle the issue of what mental state is required under 875(c), and indicated that he would hold recklessness to be sufficient for guilt. Justice Thomas filed a dissent, agreeing with Justice Alito that the Court’s decision leaves “uncertainty” in its wake, and arguing that the Third Circuit’s “general intent” standard was correct, and that Elonis’ threats were not protected by the First Amendment. A link to the Court’s opinion is here.
When Abercrombie & Fitch refused to hire Ms. Elauf because her Muslim headscarf violated the company’s “Look Policy” that governs employee dress, the EEOC filed suit under Title VII of the Civil Rights Act for its “disparate treatment” of Elauf. A trial, Elauf won a $20,000 judgment, but the Tenth Circuit reversed, holding that Elauf had to provide the retailer with actual knowledge of her need for an accommodation, and since she had not said anything about her headscarf being for religious purposes, the retailer was entitled to summary judgment. The Court, in an opinion by Justice Scalia, reversed, holding that the headscarf only had to be a “motivating factor” in the adverse employment decision for there to be proof of disparate treatment—the retailer’s knowledge of Elauf’s religious need to wear it was irrelevant. Justice Alito, in a concurrence, argued that Title VII required proof that the retailer knew of Elauf’s religious need, and there was sufficient evidence of such knowledge in the record to warrant reversal. Justice Thomas, concurring and dissenting in part, argued that the retailer’s Look Policy was neutral and did not amount to intentional discrimination that would result in liability under Title VII. A link to the opinion in Elauf v. Abercrombie & Fitch Stores, Inc. here.
A legal alien may be deported after being “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance” as defined by federal law. 8 U.S.C. sec. 1227(a)(2)(B)(i). Mellouli was caught with four unmarked pills in his sock and pled guilty to a misdemeanor under Kansas law that treated the sock as “drug paraphernalia,” and the authorities subsequently moved to deport him. Justice Ginsburg, for the majority, held that this was insufficient for deportation under federal law, because Kansas’ drug paraphernalia law differed in scope from the federal version, the latter excluding a common item like a sock from qualifying. The Court also declined to adopt the federal government’s view that an alien could be deported for offenses not directly derived from the list of drugs illegal under federal law, as that could allow a person to be convicted of an offense only relating to a state-banned drug that is not also banned under federal law. Justice Thomas, joined by Justice Alito, dissented, arguing that since Mellouli was convicted for an offense related to a controlled substance under federal law, as he admitted after the fact that the pills were Adderall, that was sufficient under the plain language of the statute for his deportation, and criticized the majority’s failure to properly define the scope of section 1227. A link to the opinion in Mellouli v. Lynch is here.
Finally, the Court, in a unanimous per curiam opinion, held that government officials were entitled to qualified immunity against a civil rights claim brought by the widow of a mentally disturbed man who hung himself while incarcerated. The Court found, contra to the decision of the Third Circuit, that there was no “right to the proper implementation of adequate suicide prevention protocols” as of the date of the man’s death, and thus the prison officials were not “contravening clearly established law” at the time, even if the suicide prevention system in place had the shortcomings alleged by the widow. The Court further rejected the Third Circuit’s belief that such a right had been established by that circuit’s prior opinions. A link to the opinion in Taylor v. Barkes is here.
The U.S. Supreme Court issued three new opinions on May 26, 2015.
In Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, the Court unanimously held that the Wartime Suspension of Limitations Act, which suspends “the running of any statute of limitations applicable to any offense” involving fraud against the Federal Government, only applies to criminal offenses, and not civil claims. The Carter matter began as a qui tam action under the False Claims Act accusing Kellogg of fraudulent billing to the U.S. government, but initial efforts to litigate the matter were dismissed under the FCA’s “first to file” bar to new claims related to claims already pending before a court. When the FCA’s impediment was finally resolved, in what the Court characterized as a “remarkable sequence of dismissals and filings,” the qui tam claim was filed after the statute of limitations had passed. Justice Alito’s opinion, reversing the Fourth Circuit, held that the “text, structure, and history of the WSLA show that the Act applies only to criminal offenses,” and thus the latest civil action was untimely. It also held that the FCA’s “first to file” bar is extinguished once a prior related case is dismissed. A link to the opinion is here.
By scrupulously keeping the issues of patent infringement and validity separate, the Court in Commil USA, LLC v. Cisco Systems, Inc. held that a good-faith belief that a patent is invalid is not a defense to a claim of induced infringement. Under the Patent Act, a defendant is liable for inducement to infringe on a patent if the defendant has knowledge of the patent and “the induced acts constitute patent infringement.” Cisco wished to introduce evidence at trial that it had a good-faith belief that Commil’s patent was invalid. The district court excluded that evidence, the Federal Circuit reversed, and the Court, in an opinion by Justice Kennedy, joined by five other justices (Breyer recused), reversed the Federal Circuit, affirming that evidence of the defendant’s belief in the validity of a patent did not weigh on whether the induced acts infringed on the patent, as patents are “presumed valid,” and thus the evidence was properly excluded. Justice Scalia, joined by the Chief Justice, dissented, arguing that “since there can be no infringement (and hence no knowledge of infringement) of an invalid patent; good-faith belief in invalidity is a defense.” A link to the opinion is here.
Although the Court had previously decided in Stern v. Marshall, 131 S.Ct. 2594 (2011), that Article III of the Constitution prohibited bankruptcy courts from entering final judgment on claims that “exis[t] without regard to any bankruptcy proceeding,” the Court in Wellness Intl. Network, Ltd. v. Sharif held that this prohibition could be waived by the litigants, much in the way that litigants can agree to have their case heard before a magistrate judge instead of a district court judge. Justice Sotomayor’s majority opinion relied on Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986), in characterizing Article III’s guarantee of adjudication by a judiciary as a “personal right” instead of a constitutional imperative. The majority also held that such waiver could be implied as well as express. Justice Alito lodged a concurrence indicating that he would not have decided whether consent could be implied. Chief Justice Roberts, joined by Justice Scalia in full and Justice Thomas in part, dissented, arguing that Article III did not preclude the bankruptcy court’s ruling in this particular case, which solely addressed the assets of the estate rather than “traditional actions at common law,” and thus the Court should not have reached the waiver issue at all. The Chief Justice further argued that Article III’s mandates were “an inseparable element of the constitutional system of checks and balances” that cannot be waived. Justice Thomas filed a solo dissent arguing that the majority failed to address several complex issues in its rush to allow consent to override an apparent constitutional violation. A link to the opinion is here.
It was a busy day at the U.S. Supreme Court, as the Justices handed down six (6) new opinions on May 18, 2015, including one case which declares Maryland’s personal income tax scheme unconstitutional..
The day’s only 5-4 decision, striking down Maryland’s personal income tax under the dormant Commerce Clause, caused the Justices to split among non-ideological lines. Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor, reaffirmed the “negative command” of the Commerce Clause, which precludes States from taxing interstate incidents more heavily than those that are purely intrastate. Maryland’s state income tax scheme violated that command by refusing to provide a credit to those Maryland residents who paid income tax to another State—thus effectively taxing out-of-state income twice—under the decades-old internal consistency test. Justice Ginsburg, joined by Justices Scalia and Kagan, authored the principal dissent, arguing that the dormant Commerce Clause does not require States from having internally consistent tax regimes, and should not force one State to concede tax authority to another just because a resident of one state earns income in the other. Justice Thomas, joined in part by Justice Scalia, reiterated his position that the dormant Commerce Clause is a judge-made fiction that, as construed by the majority, conflicts with the actual scope of the Commerce Clause. Justice Scalia, joined in part by Justice Thomas, expanded on Justice Thomas’ dissent, adding that the dormant Commerce Clause lacks a “governing principle,” and that the Maryland tax is not discriminatory because the tax rate for intrastate income was no different than for interstate income. The opinion in Comptroller of Treasury of Maryland v. Wynne is here.
Although the appellant in City and County of San Francisco v. Sheehan prevailed, it did so after pulling a bait-and-switch that left some on the Court none too happy. The case started when Sheehan, who had a diagnosed mental illness, sued San Francisco for violating the Americans with Disabilities Act when it failed to accommodate her disability during her arrest, when she was armed and threatening to kill anyone who entered her home. She also sued the arresting officers. The Ninth Circuit held that Sheehan’s ADA claim was proper for a jury, and that the officers were not entitled to qualified immunity. In petitioning for certiorari, San Francisco argued that the ADA did not require that officers provide any accommodation to a violent mentally ill subject during the course of an arrest—an issue where there was a split among the circuits. On the merits, however, San Francisco argued only that Sheehan did not qualify for protection under the ADA—an argument not raised before. Justice Alito, joined by five justices (Justice Breyer recused), dismissed the ADA issue as improvidently granted, as it was not properly briefed and argued. The majority further held that the officers were entitled to qualified immunity (and thus reversal) because their failure to accommodate Sheehan’s mental illness did not violate clearly established law. Justice Scalia, joined by Justice Kagan, would have dismissed the entire case as improvidently granted, arguing that the majority’s reversal rewarded San Francisco’s bait-and-switch by giving a ruling on an issue that would have otherwise not been cert-worthy. A link to the opinion is here.
In Tibble v. Edison International, the Ninth Circuit affirmed the dismissal of an ERISA complaint alleging that a 401(k) savings plan’s fiduciaries violated their duties to the plan participants by offering six overpriced mutual funds. Three funds were offered in 1999, three in 2002. The participants sued in 2007. The Ninth Circuit held that the 1999 funds were beyond the six-year statute of limitations under 29 U.S.C. sec. 1113, as there were no changes in circumstances that would have triggered a new fiduciary duty within the limitations period. The Court, in a unanimous opinion by Justice Breyer, reversed. Without expressing a view on the scope of the fiduciaries’ duties in this case, the Court held that they had a continuing common law duty to monitor and, as necessary, remove imprudent investments. The Court remanded for further consideration of whether that continuing duty was violated. A link to the opinion is here.
The case of Harris v. Viegelahn concerns a fight over a mere $5,519.22, but winds up creating a rule that will have many debtors considering a switch from Chapter 13 to Chapter 7 bankruptcies. Harris filed for Chapter 13 bankruptcy and the court there approved a plan in which a portion of his wages would go directly to the trustee to be paid to creditors. Harris fell behind on his mortgage, though, and his mortgage lender foreclosed on his house. Thereafter, the trustee stopped making payments to the mortgage lender (who was presumably satisfied in full), and the $5,519.22 accumulated in the trustee’s account. Harris then converted to a Chapter 7. The trustee then disbursed most of those funds to Harris’ creditors. Harris objected, and the Court, in a unanimous opinion by Justice Ginsburg that resolved a circuit split, overruled the Fifth Circuit and held that Harris was entitled to a return of the funds. Once Harris converted to a Chapter 7 (which relates back to the date of his original filing of the Chapter 13 barring bad faith), his post-petition assets were no longer part of his estate. The Chapter 13 trustee’s powers to distribute assets to creditors ended immediately upon the conversion. Therefore, Harris was entitled to his remaining post-petition wages from the trustee. Future Chapter 13 creditors should expect to request that any plan include a provision for the distribution of such accumulated post-petition funds, just in case. A link to the opinion is here.
Limiting the ability of incarcerated litigants to abuse their in forma pauperis status to file numerous baseless complaints, 28 U.S.C. sec. 1915(g) withholds such status from a jailhouse litigant whose complaints were dismissed as frivolous, malicious, or failed to state a claim on three or more occasions. In Coleman v. Tollefson, the prisoner, Coleman, had three cases so dismissed, but had appealed the dismissal of the third case. He then filed four more cases, seeking in forma pauperis status for each. The Sixth Circuit held that Coleman was not entitled to that status based on the three dismissals, and Justice Breyer, for a unanimous Court, affirmed. The fact that the third dismissal was on appeal did not avoid the “three strikes” rule. A link to the opinion is here.
Although the Justices have split along ideological lines concerning gun rights in the past, they all appear to agree on one thing: a convicted felon can request that his or her guns be transferred to a third party under 18 U.S.C. sec. 922(g) so long as doing so would not allow the felon control, use, or the ability to direct the use of those firearms. Justice Kagan, for a unanimous Court, rejected the government’s view that the statute only permitted transfers to a firearms dealer or someone who would sell the weapons. So long as the transfer puts the firearms out of the felon’s use or control, the purpose of the statute—keeping guns out of the hands of felons—was satisfied. The opinion in Henderson v. United States is here.
Resolving a split among the Circuit Courts of appeal, the U.S. Supreme Court, in a unanimous decision authored by the Chief Justice, held in Bullard v. Blue Hills Bank that a bankruptcy court’s denial of a Chapter 13 plan did not constitute a “final order” that could be appealed. The Court noted that while confirmation of a plan, or the dismissal of a proceeding for failure to provide a plan, each fix the legal rights of various parties and thus are appealable, a denial of a plan with leave to amend “changes little.” The Court further noted that it trusted the lower courts to “certify and accept interlocutory appeals from plan denials in appropriate cases.” A link to this May 4, 2015 opinion is here.
The U.S. Supreme Court issued two new opinions on April 29, 2015, the last day of oral arguments for this term.
In a fractured ruling, the Court upheld Florida’s rule prohibiting judges from personally soliciting campaign funds when striving to be elected to the bench, a rare instance when such a regulation has passed muster under strict scrutiny. Chief Justice Roberts, joined by Justices Breyer, Sotomayor, and Kagan, held in Williams-Yulee v. Florida Bar that the regulation upheld the state’s compelling interest in ensuring that elected judges would have the full confidence of the public by avoiding any appearance of corruption or favoritism, and was narrowly tailored to allow judicial candidates to speak in support of their campaigns without being fatally over- or under-inclusive. Justice Ginsburg joined most of the Chief Justice’s opinion except for the part about campaign speech being subject to strict scrutiny—in her concurrence, she re-stated her position that States should have “substantial latitude . . . to enact campaign-finance rules geared to judicial elections.” Justice Scalia, joined by Justice Thomas, authored the principal dissent, arguing that the majority opinion “flatten[ed] one settled First Amendment principle after another.” While agreeing that strict scrutiny should apply to such regulations, and that the State had a compelling interest, Justice Scalia argued that the regulation was not narrowly tailored because “it applies even when the person asked for a financial contribution has no chance of ever appearing in the candidate’s court,” and that the First Amendment should not be “abridged for the benefit of the Brotherhood of the Robe.” Justice Kennedy filed his own dissent, joining Scalia’s in full, and noting certain ironies he saw in the majority’s ruling. Justice Alito also filed a dissent, joining with Scalia, arguing that Florida’s rule “is about as narrowly tailored as a burlap bag” and a potential threat to future implementation of strict scrutiny analysis.
A link to the opinion is here.
In a much less colorful opinion, Justice Kagan, for a unanimous Court, held in Mach Mining, LLC v. EEOC that the courts have narrow authority to review whether the EEOC fulfilled its duty under Title VII to attempt conciliation of a discrimination complaint. The Court held that in order to comply with Title VII, the EEOC must inform the employer about the specific discrimination allegation, describing what the employer allegedly did wrong and which employees allegedly suffered. The EEOC must then try to engage the employer in a discussion to allow the employer a chance to remedy the alleged discriminatory practice. The Court held that a sworn affidavit from the EEOC stating that such actions were taken would fulfill the Title VII requirements, subject to concrete rebuttal evidence from the employer, at which point the courts could engage in fact-finding and, if the employer prevails, order the EEOC to take appropriate action. A link to the opinion is here.
The U.S. Supreme Court issued two (2) new opinions on April 21, 2015.
First, a divided Court held that once a traffic stop is completed, the officer violates the Fourth Amendment by continuing to hold a driver so that the police can conduct a dog sniff of the vehicle. In Rodriguez v. United States, the driver in question was pulled over for driving on the shoulder of a road. After the policeman issued a written warning, he asked for consent to allow his dog to sniff the vehicle. When consent was denied, the policeman waited until another officer arrived, then conducted the canine search, finding a bag of methamphetamines. The driver moved to suppress the evidence. The lower courts, including the U.S. Court of Appeals for the Eighth Circuit, determined that the extra seven or eight minutes added to the stop was a de minimus intrusion on the driver’s Fourth Amendment rights, and thus was permissible. Justice Ginsburg, joined by five other justices, reversed, holding that once the purpose of a traffic stop is complete, the officer is not then allowed to continue detaining a driver for an unrelated criminal investigation, although the majority distinguished the routine check of the driver’s license, registration, and insurance as being part of the overall enforcement of the traffic code. Justice Thomas, joined by Justices Kennedy and Alito, dissented, arguing that this decision conflicted with the holding of Illinois v. Caballes, 543 U.S. 405 (2005), which held that a dog sniff did not change the nature of the traffic stop. Justice Thomas also argued that there was probable cause to allow the dog sniff. Justice Kennedy filed a separate dissent noting that the Eighth Circuit had not examined whether there was probable cause, and so did not join in that part of Justice Thomas’ dissent. Justice Alito filed a dissent arguing that the majority’s new rule was “arbitrary” and “perverse,” in that it punished the officer for acting to protect the safety of himself and others by waiting for another policeman to arrive before conducting the search. A link to the opinion is here.
Second, the Court held that state-law antitrust claims lodged by purchasers of natural gas against the owners of the interstate pipelines were not preempted by the Natural Gas Act. After examining the history of regulation of the natural gas industry, Justice Breyer, joined by six other justices, held in OneOK, Inc. v. Learjet, Inc. that claims involving antitrust activities that affected retail prices remain “firmly on the States’ side of [the] dividing line,” even if the same practices might affect wholesale prices that would be subject to the Act. The majority relied on the way the Act “was drawn with meticulous regard for the continued exercise of state power” in this area. Justice Thomas filed a concurrence, noting his position that pre-emption only exists under the Supremacy Clause where the text of the law so states, rejecting prior findings of preemption based on a perceived “objective” of a law. Justice Scalia, joined by Chief Justice Roberts, dissented, arguing that the majority’s “make-it-up-as-you-go approach” did not properly consider how the Act divided responsibilities between the states and the federal government. A link to the opinion is here.
In Armstrong v. Exceptional Child Center, Inc., the U.S. Supreme Court held that Medicaid providers could not sue under the Supremacy Clause of the U.S. Constitution, Art. VI, cl. 2, to enforce section 30(A) of the Medicaid Act against the State of Idaho. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito, held that the Supremacy Clause only “instructs courts what to do when state and federal law clash” but does not address “who may enforce federal laws in court.” The majority also held that the language of section 30(A) foreclosed an alternative equitable cause of action for injunctive relief to prevent a state from violating federal law. Justice Breyer filed a separate concurrence explaining his separate rationale for why section 30(A) precluded a private cause of action for injunctive relief. Justice Sotomayor, joined by Justices Kennedy, Ginsburg, and Kagan, dissented, arguing that equitable relief should be available to the providers to stop a state’s violation of section 30(A) only unless Congress specifically foreclosed that option. A link to the March 31, 2015 opinion is here.
In a per curiam order issued March 30, 2015, the Court made it clear that attaching a GPS ankle bracelet on a person does indeed constitute a search under the Fourth Amendment pursuant to United States v. Jones, 132 S.Ct. 945 (2012), in which the Court had held that affixing a GPS tracking unit to a car constituted a search. The state courts of North Carolina ruled that Jones did not apply when the ankle bracelet was required as part of a civil proceeding. The Court reversed, without the need for oral argument or a full briefing on the merits, leaving the state courts to decide whether the ankle bracelet was reasonable under a totality of the circumstances. A link to the order in Grady v. North Carolina is here.
The U.S. Supreme Court issued two more opinions on May 25, 2015.
In a 5-4 decision, the Court sharply split on whether the appellants in Alabama Legislative Black Caucus v. Alabama properly raised racial gerrymandering claims before the trial court, perhaps sending a signal that even poorly pled and argued claims should receive a favorable ear. The majority opinion authored by Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, held that the trial court misapplied the law under Section 5 of the Voting Rights Act in rejecting the appellants’ claims, while the dissenters, lead by Justice Scalia, argued that those claims were so confusing and opaque, or outright waived, that there was no error. For example, the majority opinion held that the trial court must analyze racial gerrymandering with regard to one or more specified electoral districts, and not the state as a whole—a principle the dissenters agreed with. The disagreement was whether the appellants had actually raised that argument in the first place. The majority even identified a particular district that it believed violated Section 5 had the trial court applied the proper analysis. Justice Thomas filed a separate dissent arguing that the Court’s jurisprudence for the Voting Rights Act was flawed, and has created segregated districts contrary to its ultimate intent. A link to the opinion is here.
The Court in Young v. UPS wound up rejecting the parties’ and the federal government’s interpretations of the Pregnancy Discrimination Act to hold that a pregnant worker can make out a prima facie case of discrimination under the framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973) by (1) showing she was pregnant, (2) sought accommodation from her employer, (3) the employer did not accommodate her, and (4) the employer did accommodate others similar in their ability or inability to work. If the employer presents a legitimate, nondiscriminatory reason for its actions, the claimant may still reach a jury by providing sufficient evidence that the employer’s policies impose a “significant burden” on pregnant workers, and the employer’s reasons are not “sufficiently strong” to justify the burden. The majority opinion, penned by Justice Breyer and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan, rejected the expansive “most favored nation” rights sought by the pregnant employee, but also declined the narrow reading offered by UPS and the views of the EEOC. Justice Alito, concurring in the judgment only, provided his interpretation of the Act that came to the same result as the Court, with slightly different emphases. Justice Scalia, joined by Justices Kennedy and Thomas, dissented, arguing that the Court made up the “significant burden” and “sufficiently strong” tests out of whole cloth, “splendidly unconnected with the text and even the legislative history of the Act.” The dissenters would instead limit the Act to prohibit practices that discriminate against pregnant women relative to workers of similar ability or inability only. A link to the opinion is here.
The U.S. Supreme Court issued two (2) new opinions on March 24, 2015.
In B&B Hardware, Inc. v. Hargis Industries, Inc., the Court ruled 7-2 that findings of the Trademark Trial and Appeal Board can be used to preclude subsequent litigation of the same issue before a district court. In this case, B&B attempted to use the Board’s determination that Hargis’ trademark should not be registered because it was likely to cause confusion with B&B’s trademark to preclude Hargis from arguing the confusion issue in a subsequent infringement lawsuit. Justice Alito, writing for the majority, reversed the U.S. Court of Appeals for the Eighth Circuit, and held that when an agency was authorized by Congress to resolve disputes, its decisions can have preclusive effect if the ordinary elements of issue preclusion are met. The majority also noted that since the Board’s decisions could be appealed to a district court for de novo review, there was no reason to treat the Board’s unchallenged decision as being any different from that of a district court. Justice Ginsburg filed a concurrence emphasizing the majority’s observation that issue preclusion would not normally apply in most trademark registration decisions. Justice Thomas, joined by Justice Scalia, dissented, arguing that administrative agency decisions historically were not given preclusive effect, and that the Board itself was not created to exert such an effect, noting also the constitutional concerns raised by providing agencies under the Executive Branch with powers normally reserved to the Judicial Branch. A link to the opinion is here.
In a partial victory for publically-traded companies, the Court unanimously held that a company’s stated opinion that it was in compliance with federal and state laws was not “an untrue statement of a material fact” in violation of the Securities Act of 1933 merely because that opinion turned out to be incorrect. In Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, Omnicare was sued by the Fund (which purchased Omnicare’s stock) under the Act for two legal opinion statements beginning with “We believe”. The district court dismissed the Fund’s complaint for failure to state a claim, and the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the Fund needed only to allege that the statements were objectively false to state a claim. Justice Kagan’s opinion for the majority explained that while an opinion statement may violate the Act if it contains an untrue fact, the opinion itself is not a violation even if it winds up being objectively false. However, the Court noted that an opinion may contain an omission of material fact, in violation of the Act, if it fails to provide material facts about the speaker’s inquiry into, or knowledge concerning, the opinion, and those facts conflict with what a reasonable investor would interpret the opinion to imply. Thus the decision of the U.S. Court of Appeals for the Sixth Circuit was reversed on first issue, and remanded for a determination as to whether Omnicare’s opinions improperly omitted facts. Justice Scalia filed a concurrence stating his view that the majority’s opinion allowed for more material facts to be inferred in an opinion than would otherwise be reasonable. Justice Thomas concurred in the judgment only, arguing that the Court should not have opined on what might constitute an omission in violation of the Act because that issue was not before the Court. A link to the opinion is here.
The U.S. Supreme Court issued one new opinion on March 4, 2015.
In a 2011 case involving the same parties, the Court ruled that a tax illegally “discriminates” under the Railroad Revitalization and Regulation Reform Act of 1976 when it treats similarly situated groups differently without sufficient justification, thereby allowing CSX Transportation, Inc. to continue its lawsuit alleging such discrimination against an Alabama sales and use tax on diesel fuel that only interstate, not intrastate, carriers had to pay. The Court left the issue of what facts and circumstances would constitute discrimination for another day—today, in fact. In Alabama Dept. of Revenue v. CSX Transportation, Inc., Justice Scalia, joined by six other justices, held that discrimination should be read to mean when a victim is singled out relative to others similarly situated, and thus CSX’s competitors were a reasonable comparison class to make such a determination. The Court also held that Alabama could show that those exempt from the tax were forced instead to pay another comparable tax, thus ameliorating any claim of discrimination. Justice Thomas, joined by Justice Ginsburg, dissented, arguing that the tax could not, by its terms, be seen as discriminatory against a rail carrier since it was a generally applicable sales tax. A link to the opinion is here.
On March 3, 2015, the U.S. Supreme Court issued a new opinion.
The State of Colorado, realizing that it was losing money from uncollected sales and use taxes resulting from Internet purchases by residents from nonresident retailers, passed a law requiring the nonresident retailers to provide information of those purchases to the State, subject to penalties. A trade association brought suit in federal court, and the U.S. Court of Appeals for the Tenth Circuit dismissed the case on the basis that the suit sought to “enjoin, suspend or restrain the assessment, levy or collection” of a State tax in violation of the Tax Injunction Act, 28 U.S.C. sec. 1341, which requires such challenges to be brought in state courts. The Court, in a unanimous opinion by Justice Thomas, reversed, holding that “a suit cannot be understood to ‘restrain’ the ‘assessment, levy or collection’ of a state tax if it merely inhibits those activities,” using the equitable definition of “restrain” that is akin to “prohibit.” The Court did not opine whether the suit might be barred under the comity doctrine. Justice Kennedy, concurring, added his view that Internet commerce’s ability to elude state sales and use taxes requires the Court to reconsider its ruling in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and consider whether nonresident retailers may have a legal obligation to pay such taxes if they have a “substantial nexus” with the state. Justice Ginsburg, joined by Justice Breyer in full and Justice Sotomayor in part, made two observations in concurrence: (1) this case did not consider a suit to enjoin reporting obligations imposed on a taxpayer or tax collector, which may have a different result; and (2) this decision is consistent with the result in Hibbs v. Winn, 542 U.S. 88 (2004). A link to the opinion in Direct Marketing Assn. v. Brohl, released on March 3, 2015, is here.
On February 25, 2015, the U.S. Supreme Court issued two (2) new opinions.
The issue in Yates v. United States was quite simple: can a fisherman be prosecuted under 18 U.S.C. sec. 1519 of the Sarbanes-Oxley Act, which forbids the destruction of a “tangible object with the intent to impede” a federal investigation, when he throws undersized fish overboard after a federal agent finds those fish were caught in violation of federal conservation regulations? The answer—no—split the Court 5-4 along surprising lines. Justice Ginsburg, joined by Chief Justice Roberts and Justices Breyer and Sotomayor, held that “tangible object” had to be read in conjunction with the preceding phrase “any record [or] document” to indicate that the “tangible object” had to be one that stored information, like a hard drive, and not fish. The plurality noted a concern that broadly interpreting “tangible object” to including literally any tangible object would grossly expand the scope of the law and expose many to disproportionate penalties. Justice Alito, concurring, opined that the canons of noscitur a sociis and ejusdem generis tipped the scales in this close case in favor of the fisherman. Justice Kagan, joined by Justices Scalia, Thomas, and Kennedy, dissented, arguing that “tangible object” means what it says, which is to include fish or any other physical object. A link to the entertaining opinion is here.
The Federal Trade Commission accused the North Carolina State Board of Dental Examiners of unreasonably restraining trade in violation of antitrust law when the Board demanded that non-dentists cease offering teeth whitening services. The Board claimed immunity as a state actor, and the Court held in North Carolina State Bd. of Dental Examiners v. FTC that the Board was not entitled to immunity because it was populated by active market participants not subject to active supervision by the State. Justice Kennedy, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that, based on the particular facts in this instance, there was not sufficient evidence of control or oversight by the State for the Board to be cloaked in the State’s sovereign immunity. Justice Alito, joined by Justices Scalia and Thomas, dissented, pointing out that North Carolina designated the Board as a state agency, which should convey immunity, and voicing the concern that the majority’s approach would endanger the function of other state boards composed of current practitioners—a common practice. A link to the opinion is here.
In addressing a dispute between Kansas and Nebraska over water rights to the Republican River Basin, the Court unanimously agreed that Nebraska violated the terms of a Compact between the states addressing those rights, but a bare majority approved of employing the Court’s “equitable apportionment power” to craft remedies. Justice Kagan, joined by four justices, held that Kansas was entitled to $1.8 million from Nebraska in disgorgement damages, and used its equitable power to amend the Compact to correct a “material error” to “align it with the compacting States’ intended apportionment.” Justice Thomas dissented in part, joined by Justices Scalia and Alito, and in which the Chief Justice joined in part, agreeing that Nebraska violated the Compact but arguing that the Court lacked the equitable authority to order disgorgement or amend the Compact—instead, the Court should be limited to the standard tools of contract law. Chief Justice Roberts filed a partial dissent stating that he only disagreed with the amendment remedy. Justice Scalia filed his own partial dissent to note that modern Restatements of law, upon which the majority relied on in part, should have “no weight whatever as to the current state of the law” as the Restatements are now more aspirations rather than descriptive of current law. A link to the February 24, 2015 opinion in Kansas v. Nebraska is here.
On January 26, 2015, the U.S. Supreme Court reversed a line of decisions by the U.S. Court of Appeals for the Sixth Circuit and held that ordinary principles of contract law govern welfare benefit plans under the Employee Retirement Income Security Act of 1974, without any presumptions in favor of finding that the benefits have vested. In M&G Polymers USA, LLC v. Tackett, the parties entered into a collective-bargaining agreement for company-provided employee health care benefits that provided a defined termination date. After the agreement terminated, the employer began requiring employees to contribute to their health care benefits, to which the employees objected. Justice Thomas, for a unanimous Court, held that, under standard rules of contract interpretation, a vested lifetime benefit could not be inferred given the unambiguous termination date for the agreement, reversing the Sixth Circuit’s decision in Int’l Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) and its progeny. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, filed a concurrence imploring the Sixth Circuit, on remand, to “examine the entire agreement to determine whether the parties intended retiree health-care benefits to vest” in case such vesting might be implied from the agreement’s terms. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on January 21, 2015.
After the Transportation Security Administration issued a regulation prohibiting the disclosure of “specific details of aviation security measures,” air marshal MacLean told a reporter that he believed certain flight cancellations were dangerous and illegal. The TSA fired him, and he argued his disclosure was protected whistleblower activity under 5 U.S.C. sec. 2302(b)(8)(A), which protects TSA employees who disclose violations of any law, rule, or regulation, or a danger to the public, unless “specifically prohibited by law.” Chief Justice Roberts, joined by six justices, held that 2302(b)(8)(A)’s exception, as written, only applied to laws, not regulations, and thus MacLean was eligible for whistleblower protection. Justice Sotomayor, joined by Justice Kennedy, agreed with most of the Court’s opinion, but argued that a separate statute that ordered the TSA to prescribe regulations prohibiting the disclosure of information would bring the TSA’s regulation under the whistleblower exception as a law. A link to the opinion in Department of Homeland Security v. MacLean is here.
Justice Ginsburg, for a unanimous Court, held that when plaintiffs with a discrete claim have their complaint dismissed without leave to amend, that dismissal is a final appealable order even if the plaintiffs’ claim has been consolidated into a multidistrict litigation action. In Gelboim v. Bank of America, the Court held that cases consolidated for multidistrict litigation retain their separate identities, so dismissal of the plaintiffs’ complaint here effectively removed the plaintiffs from the consolidated proceeding for the purposes of appeal. A link to the opinion is here.
Finally, the Court held that whether two trademarks may be tacked for the purposes of determining priority is a question of fact for a jury to decide. Tacking is where a trademark owner makes certain modifications to its mark over time while retaining its first-in-time priority over other users. In Hana Financial, Inc. v. Hana Bank, Justice Ginsburg, for a unanimous Court, held that “because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer,” whether a modification qualifies for tacking is a fact question for a jury, and not a question of law for a judge. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on January 20, 2015.
In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the district court held that a patent claim for a drug was not invalid for indefiniteness because a skilled artisan would know how the main ingredient’s weight was calculated, but the Federal Circuit reversed after reviewing the district court’s ruling de novo as to all aspects, including its determination of subsidiary facts. The Supreme Court, in a 7-member majority opinion by Justice Breyer, reversed the Federal Circuit’s decision, and held that Federal Rule of Civil Procedure 52(a)(6) required the appellate court to use the higher “clear error” standard of review, not de novo. Thus when a district court needs to consult extrinsic evidence in order to understand the background science or the meaning of a term of art in a patent claim, those findings of fact may only be overturned upon a showing of clear error. Justice Thomas, joined by Justice Alito, dissented, arguing that a district court’s construction of a patent claim does not constitute “findings of fact” under Rule 52(a)(6) that would be entitled to clear error review because a patent claim is historically more akin to a statute than a contract or deed. A link to the opinion is here.
A unanimous Court held in Holt v. Hobbs that a prison regulation forbidding beards was an impermissibly substantial burden on petitioner’s religious exercise as a Muslim under the Religious Land Use and Institutionalized Persons Act of 2000. Justice Alito’s majority opinion noted that even if the grooming policy furthered compelling state interests in prisoner identification and security, there were less restrictive alternative means available to the State, nor could the prison in this instance explain why the vast majority of other States and the Federal Government permitted beards while it could not. Justice Ginsburg, joined by Justice Sotomayor, filed a concurrence to distinguish this case from Burwell v. Hobby Lobby Stores, Inc. Justice Sotomayor filed her own concurrence to make the point that while prison officials were entitled to deference in making security policies for inmates, and need not refute every conceivable counter-option, the Act requires more than unsupported assertions. A link to the opinion is here.
Finally, in a per curiam opinion, the Court summarily reversed a holding of the U.S. Court of Appeals for the Eighth Circuit, without briefing or argument, and held that an inmate on death row was entitled to consideration under Martel v. Clair, 132 S.Ct. 1276 (2012) whether he was entitled to have new counsel substituted in when his prior appointed counsel missed his deadline to file a habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996. The prior counsel’s conflict of interest in making the inmate’s plea that the deadline was equitably tolled as a result of counsel’s effective malpractice should have been part of the district court’s analysis and application of Martel. Justice Alito, joined by Justice Thomas, dissented, arguing that the case should have proceeded through briefing and argument, and noting his belief that the Court’s decision did not opine on the ultimate question of whether the inmate was entitled to equitable tolling under AEDPA. A link to the decision in Christeson v. Roper is here.
The U.S. Supreme Court issued two new opinions on January 14, 2015.
In an important new decision resolving a circuit split under the Telecommunications Act, the Court held that a locality must provide its written reasons for rejecting an application for a wireless service facility “essentially contemporaneously with the written denial letter or notice” to be compliant under the Act. In T-Mobile South, LLC v. City of Roswell, Georgia, a city council issued a denial letter to an applicant for a cell phone tower, but did not make its written reasons supporting that decision, in the form of written minutes of the city council’s meeting, available until 26 days later—four days before the applicant’s deadline to file suit challenging the decision. Justice Sotomayor, joined by five justices, held that while the denial letter itself need not contain the reasons for denial, the city council violated the Act by not releasing those reasons until 26 days after the denial letter was issued. The majority noted that such a delay could cause an applicant to have to guess at what the locality’s reasons were for rejecting the application, and then get “sandbagged” when the locality manufactures those reasons after suit is filed. Chief Justice Roberts, joined by Justice Ginsburg in full and Justice Thomas in part, dissented, arguing that the “contemporaneous” requirement was not found in the text of the Act. Justice Thomas filed a separate dissent arguing that the Court reached beyond the bounds of the dispute to establish its timing requirement. A link to the opinion is here.
After being sentenced to death for killing a police officer, the petitioner in Jennings v. Stephens filed for habeas corpus review, arguing constitutional violations of his rights by ineffectiveness of his counsel under three theories. The district court upheld his claim as to two of those theories, but not the third, and ordered his conditional release unless Texas granted him a new sentencing hearing or resentenced him to a term of imprisonment. Texas appealed the district court’s grant under the two theories, and the petitioner argued his third theory on appeal without first obtaining a certificate of appealability under 28 U.S.C. sec. 2253(c). The U.S. Court of Appeals for the Fifth Circuit held that petitioner’s argument on his third theory was not properly appealed, and thus not before that court. The U.S. Supreme Court, in an opinion by Justice Scalia, joined by five justices, reversed, holding that the petitioner was not obligated to cross-appeal the district court’s denial of relief under his third theory because that line of argument did not expand his rights under the district court’s conditional order of release. Justice Thomas, joined by Justices Kennedy and Alito, in a dissent that repeatedly cited from prior opinions by Justice Scalia, argued that a cross-appeal on the third theory was necessary because it sought to expand his rights under the district court’s judgment by adding an additional ground for Texas to have to address as part of the conditional release order. A link to the opinion is here.
The U.S. Supreme Court issued two new opinions on January 13, 2015.
Resolving the apparent conflict between two provisions of the Truth in Lending Act, the Court unanimously held in Jesinoski v. Countrywide Home Loans, Inc. that a borrower’s right to rescind a loan is timely so long as the borrower notifies the creditor within three years of when the transaction is consummated of his or her intention to rescind, per 15 U.S.C. sec. 1635(a). Justice Scalia’s opinion, reversing the decision of the U.S. Court of Appeals for the Eighth Circuit, explained that Section 1635(f), which provides that the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first,” did not require the borrower to file suit within the three-year time period in order to rescind a loan—a simple written notice under 1635(a) was all that was necessary. Thus, the borrowers’ lawsuit in this case, filed four years after the transaction, but only one year after a timely 1635(a) notice, could proceed. A link to the opinion is here.
Justice Scalia, again for a unanimous Court, held that a bank robber “forces any person to accompany him without the consent of such person” pursuant to 18 U.S.C. sec. 2113(e) even if that bank robber only forces the other person to move a very short distance. In the tragic case of Whitfield v. United States, Whitfield, fleeing a botched bank robbery, entered the home of a 79 year-old woman, and guided her from the hallway to a computer room between four and nine feet away, where she suffered a fatal heart attack. Whitfield was found guilty of violating 2113(e), and he appealed, arguing that there had to be “substantial” movement to support the conviction. Noting that the accompaniment clause had not changed since the days of John Dillinger in 1934, the Court held that movement from “one place to another, even if only from one spot within a room or outdoors to a different one,” qualified under 2113(e), although “minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm” would not qualify. A link to the opinion is here.
The U.S. Supreme Court issued two new opinions on December 9, 2014.
In Integrity Staffing Solutions, Inc. v. Busk, employees at a warehouse for Amazon.com argued they were entitled to pay under the Fair Labor Standards Act for time spent at mandatory security screenings before being allowed to leave the warehouse each day. The Court, in a unanimous opinion by Justice Thomas, held that the screenings were not compensable under the Portal to Portal Act, reversing the Ninth Circuit. The Court specifically held that to be compensable, the act must be one the employee was “employed to perform” or “an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Justice Sotomayor, joined by Justice Kagan, concurred, sharing their gloss on the standards the Court employed. A link to the opinion is here.
The workings of juries have often been compared to a black boxes in regard to their secrecy. The Court further enforced that impression in Warger v. Shauers, where the Court held that Federal Rule of Evidence 606(b) precluded the use of a juror’s affidavit about statements made by another juror. In this case, plaintiff’s counsel learned from a juror after a defense verdict that another juror had disclosed a bias during deliberations that should have revealed during voir dire. Plaintiff’s counsel moved for a new trial based on that statement. Justice Sotomayor’s opinion for a unanimous Court resolved a circuit split and held that Rule 606(b)’s exclusion applies to any juror statement that might be used in an “inquiry into the validity of a verdict,” including statements that might indicate another juror lied during voir dire. A link to the opinion is here.
The U.S. Supreme Court issued two new per curiam opinions 11/10/14:
In Johnson v. City of Shelby, a complaint filed by police officers claiming violation of their due process rights when they were fired for investigating criminal activities by an alderman was dismissed by the district court, and the dismissal affirmed by the U.S. Court of Appeals for the Fifth Circuit, for failure to invoke 42 U.S.C. sec. 1983. The Court summarily reversed, holding that the federal rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” The Court distinguished Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, stating that those cases concerned insufficient factual pleadings, as opposed to the legal theory behind the claim. A link to the opinion is here.
In Carroll v. Carman, the Court reversed the judgment of the U.S. Court of Appeals for the Third Circuit and held that a police officer enjoyed qualified immunity under the “knock and talk” exception to the Fourth Amendment when he entered the Carmans’ back yard and knocked on a sliding glass door that opened onto a ground-level deck to their home, without a warrant, while looking for a suspect. The “knock and talk” exception allows a police officer to knock on someone’s door without a warrant so long as the officer stays on portions of the property that the general public is allowed access to. The Court rejected the Third Circuit’s opinion that the “knock and talk” exception had been limited by prior precedent to knocking at the front door of a residence, and noted the other circuits that had rejected such a rule. Without stating which rule was correct, the Court held that the issue was not “beyond debate,” and thus the officer was entitled to qualified immunity. A link to the opinion is here.
On June 30, 2014, the U.S. Supreme Court issued its final two opinions for the 2014 term. The Court will reconvene for the 2015 term on October 6, 2014.
In the long-awaited case of Burwell (formerly Sebellus) v. Hobby Lobby, the Court held, 5-4, that a closely-held for-profit company cannot be compelled to provide coverage under the contraception mandate of the Affordable Care Act, and must be afforded the same accommodation under the Religious Freedom Restoration Act that is already afforded to non-profits. Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, put significant limitations on this holding, noting that the accommodation would not be available for any employer who used religious practice as a cover for illegal discrimination, the holding does not consider RFRA’s application to publicly-traded companies, and it only applies to the ACA’s contraceptive mandate. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, argued that the majority’s decision had “startling breadth” and would allow “commercial enterprises [to] opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Justice Ginsburg also argued that RFRA’s application to “persons” should not apply to companies at all. Justice Kennedy filed a concurrence disputing Justice Ginsburg’s interpretation of the breadth of the majority’s opinion. Justices Kagan and Breyer submitted a short, one-paragraph dissent stating merely that they expressed no opinion as to whether for-profit corporations or their owners are “persons” who can bring RFRA claims. A link to the opinion is here.
In a narrow opinion, a 5-4 majority of the Court held that “partial public employees” cannot be required under the First Amendment to contribute fees toward a union’s collective bargaining costs. In Harris v. Quinn, Justice Alito (a big day for him), joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, did not expressly overrule Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state employees who chose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work related to the collective bargaining process, but expressed grave concerns about its viability, and declined to extend its rationale to personal care providers who are employed by patients in need of care but are funded by the state. Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissented, arguing that the decision in Abood should control the result of this case. A link to the opinion is here.
The U.S. Supreme Court issued two new opinions on June 26, 2014.
The Court unanimously held that the President’s appointment of three members to the National Labor Relations Board during a three-day Senate recess was improper under the Recess Appointments Clause in NLRB v. Noel Canning. Relying heavily on historical practice, Justice Breyer’s opinion for the Court held that the President can use the recess appointment power during intra-session and inter-session Senate recesses for any vacancy, regardless of when it arises. However, the Court held that “a recess of more than 3 days but less than 10 days is presumptively too short” to trigger the Clause, barring a national catastrophe or other extreme circumstance, and thus the appointments were unconstitutional. The decision also appeared to make it possible for Congress to prevent recess appointments through the use of “pro forma” sessions. The decision also invalidates any rulings made by those appointed members to the NLRB, and may invalidate more from that period. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, filed a concurrence arguing that the Clause, by its terms, limits the President’s appointment power further than the Court’s holding. A link to the opinion is here.
The Court also unanimously held in McCullen v. Coakley that Massachusetts’ law imposing a thirty-five-foot buffer zone around abortion clinics violated the First Amendment. The opinion for the Court, by Chief Justice Roberts, ruled that although the buffer zones were content-neutral in application, they were not “narrowly tailored” to further the government’s “legitimate interests” because they “burden substantially more speech than necessary” and the Commonwealth had not attempted less obtrusive alternative methods to address the protesters. The Court also was concerned with how the buffer zones included public sidewalks and streets—traditional areas where free speech enjoys greater protection. As result, buffer zone laws now appear to be presumptively unconstitutional. Justice Scalia, joined by Justices Kennedy and Thomas, concurred in the judgment, arguing that the buffer zones should fail under strict scrutiny as content-based restrictions on speech, and that the majority opinion treats abortion speech—specifically pro-life abortion speech—as a disfavored class. Justice Alito also concurred in the judgment, arguing that the buffer zones were unconstitutional as discriminatory to the pro-life viewpoint. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on June 25, 2014.
The first big decision of the day is ABC v. Aereo, Inc., in which the Court ruled 6-3 that Aereo’s product—a service that allowed subscribers to watch TV programs over the Internet at the same time as the programs broadcast over the air—violated the Copyright Act. The Court, in a majority opinion by Justice Breyer, held that Aereo’s service was akin to that of cable companies, and thus was a transmission to the public that intruded upon the original broadcaster’s exclusive right to perform the content. The decision thus preserves the NFL’s lucrative broadcasting agreements, while the majority stressed that its decision would not discourage future technological developments in this area. Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that Aereo’s service was “akin to a copy shop that provides its patrons with a library card,” rather than a cable company, and that Aereo’s rebroadcasting was not a performance because any transmission was solely the result of subscriber action, not Aereo’s. A link to the opinion is here.
The second big decision was in Riley v. California, where a unanimous Court held that a police officer may not search digital information on a cell phone seized from an arrestee without a warrant. When Riley was arrested for having expired registration tags on his car and was driving on a suspended license, the search incident to his arrest revealed his smart phone, which the officer accessed and discovered terms associated with a street gang. That eventually led to Riley receiving an enhanced sentence for his gang membership. Chief Justice Roberts’ opinion held that a search of an arrestee’s cell phone did not fall under any of the Fourth Amendment exceptions to the requirement of a warrant for a search, and rejected the government’s arguments for a middle-ground position. Justice Alito filed a concurrence indicating an openness to moderation of the Court’s new rule in light of future legislation addressing privacy interests in cell phones. A link to the opinion is here.
Finally, the Court held that a fiduciary of an ERISA employee stock ownership plan is not entitled to a “presumption of prudence” when sued for a breach of fiduciary duty by plan participants. Rather, Justice Breyer’s opinion for a unanimous Court held that such fiduciaries are held to the same standard as other ERISA fiduciaries. However, to state a claim against such fiduciaries, the complaint must allege an alternative action the fiduciary could have taken that was legal and which a prudent fiduciary would not have viewed as more likely to harm the ERISA fund than help it. An allegation that the fiduciary should have known based on publicly available information that the stock was overvalued or undervalued is insufficient to state a claim. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on June 23, 2014.
Under 18 USC sec. 1344, it is a criminal act to knowingly execute a scheme to (1) defraud a financial institution, or (2) obtain a bank’s property “by means of false or fraudulent pretenses, representations, or promises.” The circuits had split as to whether the government had to prove intent to defraud the bank as part of its case for a violation of the second section. In Loughrin v. United States, a unanimous Court held, in an opinion by Justice Kagan, that no such proof was necessary. In this case, Loughrin stole checks from peoples’ mailboxes and used them to buy merchandise from Target, which he would then return to Target for cash. Although the checks were fraudulent, Loughrin argued that his intent was only to defraud Target, and thus he should not be subject to Sec. 1344(2). The Court rejected that argument, holding that Sec. 1344(2)’s text did not incorporate or superimpose itself over that of (1). Justice Scalia, joined by Justice Thomas, concurred in part, stating that while the statute needed to read in a way to limit its reach to not make every fraudulent check a federal offense, the proper scope should be left to a future case. Justice Alito also filed a concurrence, arguing that the statute already incorporated a mens rea standard—whether the defendant knowingly executed the scheme—and the Court’s opinion confused that issue. A link to the opinion is here.
The Court broadened the ability of a company to defend itself against class action lawsuits for securities fraud in Halliburton Co. v. Erica P. John Fund, Inc. While the Court, in its majority opinion authored by Chief Justice Roberts, rejected Halliburton’s argument that class action plaintiffs should not be able to rely on the presumption that public, material misrepresentations will distort the price of a stock, as set forth in Basic Inc. v. Levinson, 485 U.S. 224 (1988), it did agree that a corporate defendant should be able to present evidence to defeat that presumption at the class certification stage of the litigation. Justice Ginsburg, joined by Justices Breyer and Sotomayor, filed a one-paragraph concurrence noting that the burden of producing such evidence must rest with the corporate defendant, and thus should not be a burden to the securities-fraud plaintiffs. Justice Thomas, joined by Justices Scalia and Alito, concurred in the judgment, arguing that Basic was wrongly decided. While Justice Thomas’ concurrence appears to be more of a dissent, the majority and Justice Thomas all agreed with reversing the Fifth Circuit’s ruling that Halliburton could not introduce its evidence to rebut the Basic presumption until trial. A link to the opinion is here.
<p>When the Court decided in Massachusetts v. EPA, 549 U.S. 497 (2007), that the EPA could classify greenhouse gasses as “pollutants” under the Clean Air Act, even the EPA was unsure how the new scope would play under the existing language of the Act. In Utility Air Regulatory Group v. EPA, a fractured Court allowed the EPA much of the power it claimed to have under the Act since Massachusetts to regulate greenhouse gas emissions, but sternly rebuked it for going beyond that Act’s scope by requiring certain permits for stationary source emitters. Justice Scalia, joined by Chief Justice Roberts and Justice Kennedy, and by Justices Thomas and Alito in part, rejected the EPA’s broadest view of its authority, stating that it “may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” Justice Alito, joined by Justice Thomas, would have gone further and reversed the Court’s ruling in Massachusetts, stating that the Court’s error essentially invited the EPA’s power grab. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, would have allowed the EPA to regulate greenhouse gasses as it saw fit. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on June 19, 2014. Two of the rulings are discussed below; the third ruling, United States v Clarke, is discussed separately on this site by Nancy Kuhn.
The Court narrowed what kinds of processes are patentable in Alice Corporation Pty. Ltd. v. CLS Bank Int’l., and held that a computerized scheme for mitigating settlement risk through the use of a third-party intermediary did not qualify for patent protection. Justice Thomas, for a unanimous Court, held that an intermediated settlement process was an “abstract idea” that was not, in itself, transformative enough by merely introducing computerization to what had already been an economic staple for hundreds of years. Justice Sotomayor, joined by Justices Ginsburg and Breyer, reaffirmed their position that a method of doing business can never be patentable. A link to the opinion is here.
In Lane v. Franks, the Court unanimously held that a public employee who provides truthful sworn testimony, outside his or her ordinary job responsibilities, in response to a subpoena, is protected by the First Amendment. The public employee in this case discovered that another public employee was taking pay but providing no services, and so he fired her and testified against her under subpoena when the FBI brought charges for mail fraud and theft. The whistleblower subsequently lost his job, and he sued alleging retaliation for his testimony. Justice Sotomayor’s opinion for the Court held that the whistleblower’s testimony was a matter of public concern and thus subject to First Amendment protection, even if that testimony concerned his public employment or information he learned during that employment. However, the official who fired the whistleblower still escaped liability—since it was not clear that the whistleblower’s speech was protected at the time he was fired, the official was entitled to qualified immunity, and the suit was dismissed. Justice Thomas, joined by Justices Scalia and Alito, filed a short concurrence noting that the decision in this case did not opine on whether the First Amendment applied to testimony given pursuant to a public employee’s ordinary job duties. A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on June 16, 2014.
Under federal law, it is unlawful to make a false statement about “any fact material to the lawfulness of the sale” of a firearm, 18 U.S.C. sec. 922(a)(6), and federal law requires that every purchaser identify whether he or she is the “actual transferee/buyer” of the gun. In Abramski v. United States, the gun buyer stated that he was the actual buyer when in fact he was buying the gun for his uncle, who was lawfully able to buy the firearm anyway. The circuit courts of appeal had split on whether such a situation was punishable under 922(a)(6). The Court, in a 5-4 majority opinion authored by Justice Kagan, resolved that split and affirmed that the buyer’s misrepresentation could be prosecuted. Justice Scalia, joined by Chief Justice Roberts, and Justices Alito and Thomas, dissented, arguing that the false statement in this case was not “material to the lawfulness of the sale” since the uncle could have lawfully purchased the gun himself. A link to the opinion is here.
The Court struck a significant blow against the sovereignty of foreign nations by ruling that nothing in the Foreign Sovereign Immunities Act of 1976 prevented a creditor from subpoenaing third party banks to investigate Argentina’s U.S.-based assets. In Republic of Argentina v. NML Capital, Ltd., Argentina defaulted on and then restructured its external debts, but NML, one of its creditors, did not go along. Instead, NML pursued collections against Argentina, and sought information on Argentina’s assets by subpoenas to two banks. Justice Scalia, for a 7-1 majority (Justice Sotomayor was recused), held that while the FSIA protected Argentina’s assets in the United States from “attachment, arrest, and execution,” the text therein did not preclude discovery in aid of execution of a judgment against a sovereign, and thus upheld the subpoenas. Justice Ginsburg filed a brief dissent, arguing that since the FSIA only allows execution upon assets “used for a commercial activity,” any discovery should be limited solely to those assets. A link to the opinion is here.
Finally, the Court broadened the standing of those who can challenge state laws that criminalize false statements made during a campaign. In Susan B. Anthony List v. Driehaus, former Representative Driehaus sued the List under Ohio law for claiming that his support of the Affordable Care Act meant that he had voted for “taxpayer-funded abortion.” The List challenged the suit on constitutional grounds, and was joined by another interest group who intended to advertise the same message but refrained from doing so because of Driehaus’ suit against the first interest group. Driehaus lost his election bid and dismissed his suit, but the interest groups pressed on with their constitutional arguments. The lower courts dismissed the interest groups’ claims for lack of justicability, and the Court, in a unanimous opinion by Justice Thomas, reversed, holding that both interest groups suffered an Article III injury in fact as a result of the threatened enforcement of the Ohio statute, and thus reinstated their suit. A link to the opinion is here.
The U.S. Supreme Court delivered two new opinions on June 12, 2014.
In an important new opinion concerning bankruptcy, the Court unanimously held that an inherited individual retirement account does not qualify as “retirement funds” that can be exempted from a debtor’s estate in bankruptcy under 11 U.S.C. sec. 522(b)(3)(C). In Clark v. Rameker, Justice Sotomayor’s opinion determined that “retirement funds” meant funds objectively set aside for retirement, while inherited IRA funds are treated far different from the traditional forms of retirement savings, and can be withdrawn even before retirement. A link to the opinion is here.
In another unanimous ruling, the Court reversed the Ninth Circuit and held that claims under the Lanham Act for unfair competition are not precluded under the Food, Drug, and Cosmetic Act, thus allowing two big juice-makers to continue to battle it out in the courts. In POM Wonderful, LLC v. Coca-Cola Co., POM had sued Coca-Cola under the Lanham Act for selling a juice blend that displayed the words “pomegranate blueberry” while only containing 0.3% pomegranate juice and 0.2% blueberry juice. Coca-Cola argued that the FDCA, which prohibits the misbranding of food but allowed Coca-Cola’s advertisements, precluded POM claim. Justice Kennedy’s opinion examined both Acts and concluded that, under the standard tools of statutory interpretation, the statutes did not conflict and the FDCA did not preclude POM’s Lanham Act claim, noting in particular that the two Acts were enforced by different means, and the FDCA did not, by its terms, restrict anything in the Lanham Act. Importantly, the Court also rejected the federal government’s narrower position that the FDCA precluded Lanham Act claims “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label.” A link to the opinion is here.
The U.S. Supreme Court issued three new opinions on June 9, 2014.
The Court resolved a split among the circuits and ruled that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, while preempting certain state law statutes of limitations for torts, does not preempt state statutes of repose. In CTS Corp. v. Waldburger, an owner of a parcel of land brought suit in 2011 under CERCLA against a prior landowner who allegedly polluted the land before selling it in 1987—24 years prior to when the suit was brought. Since the current owner claimed to have discovered the pollution in 2009, their suit was within the three-year statute of limitations of the Act, which uses the discovery rule for when a claim accrues. The prior landowner argued that the suit should be dismissed under North Carolina’s ten-year statute of repose, which begins tolling upon the “last culpable act” of the defendant. Justice Kennedy, with six other justices, ruled that CERCLA’s language applying to statutes of limitation did not equally apply to statutes of repose, and thus the Act did not preempt statutes of repose. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, filed a concurrence distancing themselves from the part of Justice Kennedy’s opinion that sought to construe CERCLA’s preemption language narrowly. Instead, Justice Scalia argued, preemption language should simply be “given its ordinary meaning,” which here did not limit any statutes of repose. Justice Ginsburg, joined by Justice Breyer, dissented, arguing that while CERCLA may not expressly preempt statutes of repose, a section therein specifically changed any state “commencement date” to the discovery rule, and thus the suit was timely even under the statute of repose. A link to the opinion is here.
In Scialabba v. Cuellar de Osorio, the Court upheld the Bureau of Immigration’s interpretation of the Child Status Protection Act, thereby limiting the relief afforded by that Act to children of a principal beneficiary who seeks a visa, but then “age out” out of qualification while the visa petition is pending. In a fractured decision, Justice Kagan, joined by Justices Kennedy and Ginsburg, ruled that the Bureau’s decision to grant the Act’s relief only to those children who qualified or could have qualified as a principal beneficiary themselves, and not to those children who were derivative beneficiaries piggy-backing on a parent, was a reasonable interpretation of the Act that resolved the statutory ambiguity. The Chief Justice, joined by Justice Scalia, also upheld the Bureau’s interpretation, but argued instead that there was no ambiguity in the Act, and the Bureau’s interpretation merely carried forth the plain language of the Act. Justice Sotomayor, joined by Justices Breyer and Thomas, argued that the Bureau’s interpretation of the Act conflicts with its plain terms and with the overall purpose of the statute. Justice Alito also dissented, arguing under a slightly different approach that the Act’s plain terms compelled the Bureau to afford full relief to those “aged out” petitioners who qualified for a different status. A link to the opinion is here.
Finally, while the Court had previously held that bankruptcy courts were precluded under Article III of the Constitution from entering final judgment on certain kinds of claims, it left open what the bankruptcy courts should do when they encounter such claims. In Executive Benefits Ins. Agency v. Arkison, Justice Thomas, for a unanimous Court, held that the bankruptcy court should enter findings of fact and conclusions of law for those so-called “Stern claims,” as identified in Stern v. Marshall (the bankruptcy case involving Vickie Lynn Marshall, aka Anna Nicole Smith), which will then be reviewed de novo by the district court that can then enter final judgment. There is no requirement that the district court hear Stern claims in the first instance. A link to the opinion is here.
On June 2, 2014, the Supreme Court unanimously declined to allow prosecutors to use a statute, enacted to enforce an international treaty banning the use of chemical weapons, against a woman who used toxic chemicals in the hopes of irritating her husband’s mistress. In Bond v. United States, Chief Justice Roberts, with five other justices, held that the treaty, which was implemented in the wake of World War I, was simply not meant to reach the personal and petty activities that Bond engaged in. Justice Scalia, joined by Justices Thomas and Alito, concurred in the judgment, arguing that the statute does reach Bond’s actions, but was an invalid overreach of Congressional power. Justice Thomas, joined by Justices Scalia and Alito, expressed his view that the Treaty power of the federal government was even more limited than the majority suggests, and can only address matters of truly international concern. Justice Alito filed a final concurrence that straddled the views of Justices Scalia and Thomas, arguing that the statute did reach private action but went beyond the international concerns permitted under the Treaty clause of the Constitution. A link to the opinion is here.
On June 2, 2014, the U.S. Supreme Court issued two new opinions concerning the Patent Act.
The Court instituted a new standard for how defined a patent must be in order to “particularly point out and distinctly claim the subject matter which the applicant regards as [the] invention,” and thus be subject to patent protection under 35 U.S.C. sec 112. In Nautilus, Inc. v. Biosig Instruments, Inc., Justice Ginsburg, for a unanimous Court, held that the Federal Circuit’s standard, which allowed patent claims so long as they were “amenable to construction” and not “insolubly ambiguous,” was too lenient. Instead, “a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” This new standard seeks to avoid the “zone of uncertainty” that comes with imprecise patents. A link to the opinion is here.
The Court unanimously reversed the Federal Circuit again in Limelight Networks, Inc. v. Akamai Technologies, Inc., holding that one cannot be liable for inducing infringement of a patent under 35 U.S.C. sec. 2712(b) when no one has directly infringed the patent. In this case, the exclusive licensee of a method patent—one in which a series of steps must be taken—sued another operator of that method patent for infringement, but the other operator required its customers perform one of the patent’s necessary steps. Justice Alito, writing for a unanimous Court, reaffirmed that there can only be liability for “direct infringement” of a patent, and there can be no direct infringement of a method patent when the party does not take all of the necessary steps in that patented process itself. A link to the opinion is here.
The U.S. Supreme Court issued five new opinions on May 27, 2014.
In Hall v. Florida, a narrow majority of the Court struck down a Florida statute that required a defendant to show an IQ test score of 70 or below before being allowed to present any additional intellectual disability evidence to avoid the death penalty. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that Florida’s strict cutoff was unconstitutional given recent trends among the states and current medical opinion, and held that “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits,” in the effort to avoid execution. Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, dissented, arguing that the Court’s prior precedent forbidding the execution of the intellectually disabled did not mandate a single method for identifying such defendants, and thus the issue should have been left to the states to decide. A link to the opinion is here.
The Court upheld the sovereign immunity of tribal Indian land against a suit by Michigan seeking to enjoin the operation of a casino, in a case that split the justices 5-4 along unexpected lines. When an Indian tribe sought to open a casino on land outside its reservation, Michigan sued under the Indian Gaming Regulatory Act, which allows the various tribes to enter into compacts with the States that proscribes rules for gambling. While the Act itself did not speak to the regulation of gambling activity on Indian land, the tribe’s compact with Michigan prohibited such activity. Michigan also argued in the alternative that the Court’s decision in Kiowa Tribe of Okla. V. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), which held that tribal immunity extended to commercial activities conducted outside of Indian land, be overturned. In Michigan v. Bay Mills Indian Community, Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor, held that since the tribes were entitled to sovereign immunity unless specifically enjoined by Congress, the lack of any reference to activities outside of Indian land in the Act did not work to abrogate tribal immunity with regard to activities outside that land, and thus Michigan’s case must be dismissed. The majority also reaffirmed its commitment to Kiowa. Justice Sotomayor filed a concurrence, arguing that tribes should not be treated like foreign nations in terms of sovereign immunity, given their history as domestic dependent nations, and arguing that the principle of comity should weigh in favor of the tribes. Justice Thomas, joined by Justices Scalia, Ginsburg, and Alito, dissented, and vigorously argued that Kiowa, a decision “untethered from commercial realities and the usual justifications for immunity,” should be overturned. Justice Scalia, in a one-paragraph dissent, expressed regret in having “helped make” the “mess” that was the Kiowa decision that he originally concurred with. Justice Ginsburg also lodged a dissent, arguing that tribal immunity, like State immunity, has been “carried beyond the pale” by the Court and lack “staying power.” A link to the opinion is here.
A unanimous Court held that the Secret Service’s actions in protecting the President from potential harm was entitled to qualified immunity even where those actions entailed moving protesters further away from supporters in seeming violation of their First Amendment rights. In Wood v. Moss, Justice Ginsburg, on behalf of a unanimous Court, held that the circumstances created when President George W. Bush decided to have an impromptu dinner at the Jacksonville Inn permitted the Secret Service to take appropriate action to ensure his safety, and that those circumstances prevented them from providing equal access to the protesters. The protesters’ suit was thus dismissed. A link to the opinion is here.
Qualified immunity was also upheld in Plumhoff v. Rickard, where police fired 15 shots at a suspect’s car during a dangerous high-speed pursuit, ultimately killing the suspect and his passenger. First, Justice Alito’s opinion for a unanimous Court held that a denial of qualified immunity was a collateral order entitled to appellate review even where the denial was part of a summary judgment motion. Second, the majority held that the use of deadly force, including the firing of 15 shots, did not violate the Fourth Amendment given the grave public danger caused by the high-speed chase. Justice Ginsburg did not join the Court on this analysis, and Justice Breyer declined to join the Court as to the permissibility of the gunshots. Finally, the Court unanimously ruled that even if there was a Fourth Amendment violation, the officers were entitled to qualified immunity because there was no “clearly established law” prohibiting their conduct at the time of the incident. A link to the opinion is here.
Finally, in a per curiam opinion, the Court ruled that the State of Illinois could not appeal a directed defense verdict of acquittal when the State failed to put on any evidence after a jury was sworn in. Indeed, the State could not put on any evidence in support of its charges of aggravated battery and mob action when its two victim-witnesses decided not to show up to testify. The State’s request for further continuances was denied, and the State sat out the remainder of the very short trial. It then appealed the acquittal, arguing that a continuance should have been granted to allow the witnesses to be found. The unanimous Court restated its prior holding that the Double Jeopardy Clause of the Constitution attached once a jury was empaneled and sworn, and so the criminal defendant in Martinez v. Illinois could not be subjected to a new trial—the only relief the State could seek. A link to the opinion is here.
In an important new decision bolstering protections to copyright holders, the U.S. Supreme Court ruled that the defense of laches does not bar a claim for copyright infringement within the three-year limitation under 17 U.S.C. sec. 507(b) of the Copyright Act. The case of Petrella v. Metro-Goldwyn-Mayer, Inc. concerned the rights to the acclaimed movie “Raging Bull,” which was written by petitioner’s father. The petitioner, who inherited her father’s copyright, renewed the copyright for the movie’s screenplay in 1991, but did not file suit to enforce that copyright against MGM until 2009—MGM had been profiting off of its marketing of the film throughout that time. However, the petitioner only sought damages for the three years prior to when she filed suit, as allowed under 507(b). MGM argued that her claim was precluded under the equitable doctrine of laches. On May 19, 2014, Justice Ginsburg for a six-member majority, held that laches was not a defense to an infringement claim brought within the statutory period, thereby reversing the Ninth Circuit’s ruling. Justice Breyer, joined by Chief Justice Roberts and Justice Kennedy, dissented, arguing that laches was needed to prevent inequitable results that accrue as a result of delay. A link to the opinion is here.
A fractured 5-4 Court narrowly upheld the long-standing tradition of sectarian legislative prayer in Town of Greece v. Galloway. Although all the justices claimed to embrace Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the Nebraska legislature’s tradition of beginning each session with a chaplain’s prayer, there was a sharp disagreement as to whether Town of Greece’s practice fit within the acceptable framework. The majority opinion, authored by Justice Kennedy, held that Marsh did not require legislative prayers to be nonsectarian, as consistent with historical practice, and thus was consistent with the Establishment Clause of the First Amendment so long as the invocations did not denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion. Justice Alito, in a concurrence joined by Justice Scalia, jousted with the dissenters on the facts and implications of the ruling, while Justice Thomas, joined by Justice Scalia, argued that the Establishment Clause should not apply against the States at all, and even if it did it would not consider legislative prayers to be coercive. The principle dissent by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, argued that certain facts took this case beyond what was upheld in Marsh, including that the Town of Greece’s meetings were not exclusively legislative in nature. Justice Breyer’s dissent argued that the Town of Greece had not made sufficiently reasonable efforts to include other faiths in the invocations. A link to the opinion is here.
After a man was convicted of submitting fraudulent mortgage loan applications to two banks, he objected to being forced to pay the difference between the money loaned to him and the money recovered by the banks in selling the properties used as collateral for the fraudulent loans. He instead believed that he should have been credited for the value of the properties themselves. A unanimous Court, in an opinion by Justice Breyer, rejected that argument and settled a split between the Circuits, holding that the Mandatory Victims Restitution Act of 1996 required that the “value” of the “property that is returned” should be calculated on an apples-to-apples basis—here, in cash since that was what was loaned—instead of the collateral properties themselves. Justice Sotomayor, joined by Justice Ginsburg, filed a concurring opinion noting that if the banks chose to hold on to the collateral properties instead of sell, they should bear the risk of those properties decreasing in value, and not the defendant. A link to the opinion is here.
Finally, in a suit against a police officer alleging a wrongful shooting, the Court reversed a grant of summary judgment in favor of the officer on the basis that the courts below had not viewed the evidence “in the light most favorable” to the shooting victim. The per curiam opinion representing the whole Court picked out several factual determinations by the lower courts to which there was contradictory evidence unaccounted for, and remanded to the Fifth Circuit for further review. Justice Alito, joined by Justice Scalia, filed a concurrence stating his concern that this kind of “error correction” “will very substantially alter the Court’s practice” in future cases by expanding the Court’s docket beyond its current role settling circuit-splits and resolving contentious areas of law. A link to the opinion is here.
The U.S. Supreme Court issued three important new opinions on April 29, 2014, two involving awards of attorneys’ fees in patent cases, and the other involving air pollution under the Clean Air Act.
First, the Court greatly loosened the test for when attorney’s fees may be granted to prevailing parties in Patent Act cases. The Act itself allows for fees only in “exceptional cases.” 35 U.S.C. sec. 285. The Federal Circuit defined that term as one involving “material inappropriate conduct” or as both “objectively baseless” and “brought in subjective bad faith,” with the “extraordinary” nature of the case to be proven by clear and convincing evidence. The Court, in a unanimous ruling authored by Justice Sotomayor, rejected the Federal Circuit’s rule as being “unduly rigid.” The Court read Section 285 as allowing district courts the leeway to award fees in any case “that stands out from others with respect to the substantive strength of a party’s litigating position . . . or the unreasonable manner in which the case was litigated” on a “case-by-base” basis, under a preponderance of the evidence standard. A link to the opinion in Octane Fitness, LLC v. ICON Health and Fitness, Inc. is here.
Justice Sotomayor, in another unanimous opinion, applied the new test in Octane Fitness to another case involving whether a Patent Act case was “exceptional” enough to warrant an award of attorneys’ fees. In Highmark Inc. v. Allcare Health Management System, Inc., the district court had found the case to be exceptional under Section 285 and awarded fees, which was partially reversed by the Federal Circuit using its old test under a de novo standard of review. The Court sent the case back and ordered the Federal Circuit to use the new test set forth in Octane Fitness, and weigh the district court’s award under an abuse of discretion standard of review. A link to that opinion is here.
Finally, in EPA v. EME Homer City Generation, L.P., the Court upheld the EPA’s rule governing air pollution that is created in one state but passed into another. Congress passed the Good Neighbor Provision of the Clean Air Act instructing states to prohibit in-state sources of air pollution from emitting pollution that would “contribute significantly” to a downwind state’s ability to meet the EPA’s national air quality standards. The EPA accordingly issued the Transport Rule, which curtailed certain emissions by 27 upwind states through a two-step cost-benefit analysis. The D.C. Circuit struck down the Rule as being inconsistent with the Provision’s terms, and the Court reversed, 6-2, in an opinion by Justice Ginsburg, finding that the D.C. Circuit’s ruling imposed unwritten requirements that were not part of the Provision as stated, and holding that the Rule was lawful under long-standing Chevron doctrine. Justice Scalia, joined by Justice Thomas, argued that the Rule’s cost-benefit analysis was squarely prohibited under the Provision’s focus on the “amounts of pollutants” that upwind states would be obligated to eliminate. Justice Alito did not participate in the case. A link to the opinion is here.
The U.S. Supreme Court today chose to resolve the important issue of what a borrower must do under the Truth In Lending Act to exercise his right of rescission. Under the Act, a borrower “shall have the right to rescind the transaction until midnight of the third business day following . . . the delivery of the information and rescission forms required under [15 U.S.C. sec. 1635] . . . by notifying the creditor . . . of his intention to do so.” That “right of rescission shall expire three years after the date of consummation of the transaction.” On April 28, 2014, the U.S. Supreme Court granted certiorari in Jesinoski v. Countrywide Home Loans, Inc. to resolve a circuit split and determine whether the borrower must notify the creditor in writing within the three-year deadline, or must file a lawsuit in that time, to properly rescind a transaction under the Act. A link to the Order list is here.
The United States Supreme Court issued two new opinions on April 22, 2014.
In Schuette v. BAMN, the Court upheld Michigan’s Proposal 2, which enacted by public vote a state constitutional amendment that prohibited the use of race-based preferences as part of the admissions process for state universities. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, wrote that the issue of the case “is not about how the debate about racial preferences should be resolved . . . [but] about who may resolve it.” Justice Kennedy found no authority under the Constitution’s Equal Protection Clause prohibiting the use of a ballot proposal to address the use of such preferences. In a short concurrence, the Chief Justice scolded the dissenters for believing that the voters are unable to “take race seriously” in making such policy decisions. Justice Scalia, joined by Justice Thomas, concurred in the judgment, pointing out that the case involves “a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” He went on to state that he would require that anyone challenging a facially neutral political act like Proposal 2 “prove intent and causation and not merely the existence of racial disparity” in order to prevail on an Equal Protection challenge. Justice Breyer, in concurrence, reasoned that the amendment was consistent with the Equal Protection Clause because it simply gave the voters the same power that had previously been held by unelected faculty members and administrators. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that Proposal 2 “changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” Justice Kagan did not participate in the case. A link to the opinion is here.
After an anonymous 911 caller claimed to have been run off the road by a truck, police pulled that truck over and, while approaching it on foot, smelled the 30 pounds of marijuana in the truck bed. The occupants of the truck moved to suppress the evidence under the Fourth Amendment for lack of reasonable suspicion of criminal activity. In Navarette v. California, Justice Thomas, joined by the Chief Justice and Justices Alito, Breyer, and Kennedy, held in this “close case” that the caller’s tip created a reasonable suspicion that the driver of the truck was intoxicated, thus justifying the search and seizure. Justice Scalia, joined by Justices Ginsburg, Sotomayor, and Kagan, argued that since the anonymous tip was not corroborated, as typically required, it was not sufficiently reliable in itself to provide reasonable suspicion for the truck to be pulled over. Justice Scalia also pointed out that the fact that the truck was not driven erratically during the five minutes the officers observed it before pulling it over weighed further against any suspicion that the driver was drunk or reckless. A link to the opinion is here.
The U.S. Supreme Court issued two new opinions on April 2, 2014. In one of the most highly awaited decisions of the term, the Court struck down one prong of the campaign finance laws that limited the aggregate amount of money that a donor could contribute is a single campaign season. Specifically, the law limited the aggregate amount that a donor to contribute to $48,600 to federal candidates and $74,600 to committees. In McCutcheon v. FEC, the five-justice majority, in an opinion by Chief Justice Roberts, held that this aggregate limit was unconstitutional under the First Amendment, and did not sufficiently serve the governmental interest of preventing corruption or the appearance of corruption to override the First Amendment interests —specifically quid pro quo corruption. Justice Thomas, in concurrence, stated that he would have gone farther and overruled Buckley v. Valeo (which held that base limits were constitutional) entirely. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that the Court's holding will create a loophole that will enable political corruption, which the dissenters defined more broadly as "privileged access" and "pernicious influence." The opinion is here.
After an airline cancelled a customer's membership in its frequent flyer program for, as allowed in the airline's sole discretion under the terms of that program, "abusing" the benefits, that customer sued under state law claiming a breach of the duty of good faith and fair dealing. The district court dismissed the claim on the basis that it was pre-empted under the Airline Deregulation Act of 1978, 49 U.S.C. sec. 41713. The Court, in Northwest, Inc. v. Ginsburg, affirmed that holding in a unanimous opinion authored by Justice Alito, since the customer's good faith and fair dealing claim sought to enlarge the terms of the frequent flyer program agreement. Where State law does not allow for parties to contract out of the covenant of good faith and fair dealing, such a claim will always be pre-empted under the Act. A link to the opinion is here.
On March 26, 2014, the U.S. Supreme Court resolved a split between the Circuits and held that a man’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child constituted a “misdemeanor crime of domestic violence” that thereby prohibited him from possessing a firearm under 18 U.S.C. sec. 922(g)(9), even though one could cause bodily injury without using any force whatsoever. Justice Sotomayor, writing for a unanimous Court, rejected the argument that sec. 922(g)(9) required that the prior conviction involve “violent contact” or “physical force” in order to be properly qualified as “domestic violence.” Justice Scalia, in a concurrence, stated that he would read the statute more narrowly under Johnson v. United States, 559 U.S. 133 (2010), but otherwise joined in the judgment. Justice Alito, joined by Justice Thomas, concurred in the judgment only, and argued that Johnson’s reasoning should not be extended to this case for reasons stated in his dissent thereto. A link to the opinion is here.
The U.S. Supreme Court issued two opinions on March 25, 2014.
In United States v. Quality Stores, Inc., a unanimous Court, in a decision by Justice Kennedy, held that severance payments made to employees terminated against their will are taxable wages under the Federal Insurance Contributions Act (FICA), 26 U.S.C. sec. 3101 et seq., resolving a circuit split. The Court relied on FICA’s broad definition of wages, and rejected the definition provided under 26 U.S.C. sec. 3402(o). Justice Kagan did not participate in the decision. A link to the decision is here.
The Lanham Act allows civil suits for false association and false advertising, but the Circuits were split as to how to determine who had standing to file such a suit. In this case, a company that sells components necessary for the remanufacturing of Lexmark’s printer cartridges sued Lexmark for false advertising, and the Sixth Circuit found that the component-maker had standing under the Second Circuit’s “reasonable interest” approach. In a unanimous opinion by Justice Scalia, the Court, in Lexmark Intl., Inc. v. Static Control Components, Inc., held that courts should apply the “zone of interests” test, requiring that a plaintiff allege an injury to a commercial interest in reputation or sales that was proximately caused by a violation of the Act. In so holding, the Court rejected the “prudential standing” balancing test, the “reasonable interest” test, and the “categorical” test that the Circuits had developed. The Court then analyzed the claims brought by the component-maker and found that it had properly stated a claim under the Act, and so affirmed the Sixth Circuit’s holding (though not its reasoning). A link to the opinion is here.
March 10, 2014
Back in the 19th Century, the federal government granted numerous right-of-way easements to railroads under the 1875 General Railroad Right-of-Way Act in order to encourage expansion to the West, but left unresolved was what happened if a railroad abandoned their easement: did the easement disappear, leaving the parcel unburdened, or revert back to the government? In Brandt v. United States, the Court ruled 8-1, in a decision by Chief Justice Roberts, that the easement did not revert back to the government, and thus was extinguished. The Court’s opinion turned on the 1942 case of Great Northern Railway Co. v. United States, 315 U.S. 262, in which the government argued that the Act only “granted an easement and nothing more,” and the Court agreed. Bound by its prior victory, the government loses today. Justice Sotomayor, in solo dissent, argued that two rulings of the Court prior to Great Northern compelled a different result. A link to the opinion is here.
Also, the SCOTUS declined to hear an appeal of the Virginia Supreme Court’s ruling in the Falls Church/Episcopal Church matter in which the Virginia court held that the Episcopal Church owned the historic Falls Church, instead of the conservative congregation that left the denomination. Here is the Virginia Supreme Court’s original decision.
In Lozano v. Montoya Alvarez, the Court, in a unanimous opinion by Justice Thomas, held that the Hague Convention’s one-year period to file a petition for the return of an abducted child was not subject to equitable tolling, as it was not a statute of limitations, and principles of equitable tolling are not generally applied to treaties. Justice Alito, joined by Justices Breyer and Sotomayor, concurred, noting that an American court could still, depending on the factual circumstances, award relief under the Hague Convention as though the petition had been filed within the one-year period, thus minimizing any potential abuse. A link to the opinion is here.
Another opinion addressing a treaty—this one an investment treaty between the U.K. and Argentina—examined whether an arbitration panel’s interpretation of the treaty’s arbitration clause was entitled to deference, or could be reviewed by the courts de novo. The treaty permits parties to arbitrate disputes provided that litigation in a local court of competent jurisdiction had taken place. In a dispute between a UK company and Argentina, the UK company demanded arbitration prior to engaging in any litigation. The parties agreed on arbitration in D.C., where the panel decided, over Argentina’s objection, that it had jurisdiction to rule because Argentina’s laws and policies had made the local litigation requirement untenable. Justice Breyer, for a seven-Justice majority, held in BG Group v. Republic of Argentina that the issue of jurisdiction was to be answered by the arbitrators, and their determination was entitled to deference, thus upholding the arbitration panel’s ruling and award. Chief Justice Roberts, joined by Justice Kennedy, argued that the local litigation clause was a condition precedent to arbitration, and thus should have been a matter for the courts to decide de novo. A link to the opinion is here.
The final opinion resolved a Circuit split over what proof is necessary to convict a defendant of aiding and abetting the crime of using or carrying a firearm during a crime of violence or a drug trafficking crime. The Court held, in Rosemond v. United States, that proof the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission is sufficient to find the defendant aided and abetted the crime. Justice Kagan, for a seven-Justice majority, vacated the defendant’s conviction because the jury instructions were erroneous, as they did not require the jury to find that the defendant knew in advance one of his confederates would be armed. Justice Alito, joined by Justice Thomas, concurred with the first 12 pages of the majority opinion, but disagreed as to the remainder, arguing that the Court’s discussion about the defendant having the chance to alter or withdraw his involvement in the crime was inconsistent with case law regarding aiding and abetting a crime. A link to the opinion is here.
The U.S. Supreme Court issued two new opinions March 4, 2013.
In Lawson v. FMR LLC, the Court examined the limits of whistleblower protection offered under the Sarbanes-Oxley Act of 2002, 18 U.S.C. sec. 1514A(a). The Act states: “No [public] company . . ., or any . . . contractor [or] subcontractor . . . of such company, may discharge, demote, suspend, threaten, harass, or . . . discriminate against an employee in the terms and conditions of employment because of [whistleblowing activity].” The question raised by the case was whether the statute’s protection only covered those employed by the public company itself, or whether it extend to employees of privately-held companies that worked for the public company. The Supreme Court held, 6-3, in an opinion by Justice Ginsburg, that the whistleblower protections did extend to those private company employees. Justices Scalia and Thomas concurred solely on the basis that the text of the Act called for that conclusion. Justice Sotomayor, joined by Justices Kennedy and Alito, argued in dissent that the Court’s holding gave the protections too broad a scope, potentially allowing the babysitter of a Wal-Mart employee to have a claim under the Act. A link to the opinion is here.
As a result of a Chapter 7 debtor’s misconduct, a bankruptcy court ruled that the $75,000 he claimed as a homestead exemption be used to pay the trustee’s attorneys’ fees incurred as a result of that misconduct, even though the Bankruptcy Code states that such funds may not be used to pay any administrative expenses, including attorneys’ fees. 11 U.S.C. sec. 522(k) and sec. 503(b)(2). In Law v. Siegel, the Court, in a unanimous opinion authored by Justice Scalia, reversed the bankruptcy court’s ruling, holding that the court’s authority to sanction abusive litigation practices did not extend to overcome the homestead exemption, and that the courts had numerous other options for punishing debtor misconduct. A link to the opinion is here.
A criminal defendant’s Sixth Amendment right to counsel is violated when his or her lawyer’s performance at trial falls below an objective standard of reasonableness. In Hinton v. Alabama, decided by the U.S. Supreme Court on February 24, 2014, defense counsel fell below that standard when he was unaware that Alabama law allowed his client to be reimbursed for “any expert witness expenses reasonably incurred.” As a result, defendant’s counsel erroneously believed he was limited to hiring an expert who would accept what the trial court had initially offered to pay--$1,000. The only expert who accepted that amount was grossly unqualified, in defense counsel’s own admission, to rebut the prosecution’s experts, and the defendant was sentenced to death. The Court, in a unanimous per curiam opinion, vacated the judgment and remanded for a new trial. The opinion is here.
For more information, please contact James N. Markels at 202-457-1610 or by email at email@example.com.