On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature.   The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement.  By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined.  To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm. 

On January 9, 2017, the Supreme Court decided White v. Pauly, a petition involving a denial of qualified immunity to law enforcement officers in a civil rights dispute. In October 2011, officers Kevin Truesdale and Michael Mariscal went to the home of Daniel and Samuel Pauly to investigate a complaint made by several drivers that Daniel had been driving erratically that evening. The officers entered the Pauly property while a third officer, Ray White, remained near the highway in case Daniel returned there. Truesdale and Mariscal did not find Daniel’s truck, but they did notice lights on in one of two houses on the property. Upon approaching the building covertly they spotted two men moving around inside, and then requested that Officer White join them. When the Paulys became aware that strangers were present outside there was a verbal confrontation; according to the officers, the officers self-identified as police and threatened to enter the house if the brothers did not come out. It appears however, that neither Pauly heard the self-identification. Just as White was arriving the brothers warned that they had firearms. Upon hearing the warning, White took cover behind a stone wall fifty feet from the house. Daniel then fired two shotgun blasts out the back door and when Samuel pointed a handgun out the window in White’s direction, Mariscal fired at him but missed. Several seconds later White also fired and hit Samuel, killing him. Samuel Pauly’s estate and Daniel Pauly sued the officers under 42 U.S.C. § 1983, alleging an excessive use of force in violation of the Fourth Amendment. The district court denied qualified immunity to the officers and a divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. The majority reasoned that, taking the plaintiffs’ version of the facts as true, a reasonable person in the position of Officers Mariscal and Truesdale should have understood that their conduct might cause the Paulys to use deadly force in defense of their home. As to Officer White, the majority concluded that while he did not participate in much of the lead up to the shootout, a reasonable officer in his position would have believed a verbal warning was required given that the stone wall afforded him secure cover. The Supreme Court granted the officers’ petition for certiorari, vacated the judgment of the Tenth Circuit, and remanded the case. Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” On the record described by the Tenth Circuit, the Supreme Court held, Officer White did not violate clearly established law. But because the parties disputed whether White actually arrived on the scene several minutes before the shooting started and should have known that the other officers had not properly identified themselves, the Court left this potential alternative ground for affirmance--as well as whether Truesdale and Mariscal were entitled to qualified immunity in light of the Supreme Court’s ruling--for further consideration by the Tenth Circuit on remand. Justice Ginsburg issued a concurring opinion. To discuss the case, we have Josh Skinner, Of Counsel with Fanning, Harper, Martinson, Brandt & Kutchin, P.C.

In June, the Supreme Court issued per curiam opinions in two habeas cases: Jenkins v. Hutton and Virginia v. LeBlanc. In today’s episode, we will be discussing the opinions in both cases. Jenkins v. Hutton More than thirty years ago, an Ohio jury convicted Percy Hutton of aggravated murder, attempted murder, and kidnaping. The jury findings included aggravating circumstances that permitted imposition of the death penalty or life imprisonment. During the penalty phase of the proceedings, the jury was instructed that it could recommend a death sentence only if it unanimously found that the State had “prove[d] beyond a reasonable doubt that the aggravating circumstances, of which [Hutton] was found guilty, outweigh[ed] the [mitigating factors].”  The jury recommended death, the trial court accepted that recommendation, and Hutton’s death sentence was affirmed on direct appeal. He eventually filed a habeas petition, arguing that the trial court denied him due process because it failed to tell the penalty phase jurors that, when weighing aggravating mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase of the trial. As Hutton had not objected to the jury instructions at trial or raised this issue on direct appeal, the district court dismissed his habeas petition on grounds of procedural default. A divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed, however, concluding that it could excuse the procedural default in the interests of avoiding a miscarriage of justice. Hutton, the Sixth Circuit argued, had “show[n] by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found [him] eligible for the death penalty under the applicable state law.”  In a per curiam opinion issued on June 19, the Supreme Court reversed the judgment of the Sixth Circuit and remanded the case. The Sixth Circuit erred in reaching the merits of Hutton’s claim, the Court concluded, because to overcome a procedural default on fundamental miscarriage of justice grounds the focus should be on whether a properly instructed jury could have recommended death, not simply whether any alleged error might have affected the jury’s verdict.Virginia v. LeBlanc In 1999, Dennis LeBlanc, who was then 16, raped a 62-year-old woman and was sentenced to life imprisonment in 2003 by a Virginia court. Although Virginia had abolished parole, the state had replaced it with a “geriatric release” program for the conditional release of older inmates under some circumstances. In 2010, however, the U.S. Supreme Court held in Graham v. Florida that the Eighth Amendment prohibits juvenile offenders convicted of nonhomicide offenses from being sentenced to life without parole. Although states would not be required to guarantee eventual freedom to nonhomicide juvenile inmates, the Court explained, they must still offer juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Invoking the Graham decision, LeBlanc filed a motion in Virginia state court to vacate his sentence. The state court denied relief, relying upon the Virginia Supreme Court’s prior decision in Angel v. Commonwealth, which had concluded that Virginia’s geriatric release program satisfied Graham’s parole requirement for juvenile nonhomicide offenders. The Virginia Supreme Court declined review of LeBlanc’s case and he then filed a federal habeas petition arguing that the Virginia courts’ position regarding geriatric release and Graham had fundamentally misapplied federal law. The district court agreed and granted relief. A divided U.S. Court of Appeals for the Fourth Circuit affirmed, and Virginia sought certiorari. In a per curiam opinion issued on June 12, the Supreme Court reversed the judgment of the Fourth Circuit, concluding that the Virginia courts had not applied the Graham rule unreasonably. To satisfy the habeas standard, the Supreme Court noted, the ruling in question must be “objectively unreasonable, not merely wrong; even clear error will not suffice.” And it was not objectively unreasonable, the Court indicated, for the state courts to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole. Justice Ginsburg filed a concurring opinion.   And now, to discuss the cases, we have Ron Eisenberg, Deputy District Attorney for the Philadelphia District Attorney’s Office. 

On April 3, 2017, the Supreme Court decided McLane Co., Inc. v. Equal Employment Opportunity Commission. In 2008, Damiana Ochoa filed a sex discrimination charge under Title VII of the Civil Rights Act of 1964 against her former employer McLane Co., Inc., a supply-chain services company, when she failed a physical evaluation three times after returning from maternity leave. The Equal Employment Opportunity Commission (EEOC) launched an investigation into Ochoa’s charge, but McLane declined the EEOC’s request for “pedigree information,” meaning names, Social Security numbers, addresses, and telephone numbers of those employees who had taken the physical evaluation. The EEOC then expanded its investigation into McLane’s operations nationwide and possible age discrimination, issuing subpoenas to McLane for pedigree information regarding these matters too. McLane refused to provide this information as well, and the EEOC then filed actions in federal district court to enforce the subpoenas issued regarding both Ochoa’s charge and the EEOC’s own age discrimination charge. The District Court quashed the subpoenas, finding the pedigree information irrelevant to the charges, but the U.S. Court of Appeals for the Ninth Circuit, applying a plenary or “de novo” standard of review, reversed. Other U.S. Courts of Appeals, however, apply a more deferential “abuse of discretion” standard in such situations, and the U.S. Supreme Court granted certiorari to resolve the split among the Courts of Appeals. By a vote of 7-1, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Sotomayor, the court held that a district court’s decision whether to enforce or quash a subpoena issued by the EEOC should be reviewed for abuse of discretion, not de novo. Justice Sotomayor’s opinion was joined by the Chief Justice and Justices Alito, Breyer, Kagan, Kennedy, and Thomas. Justice Ginsburg filed an opinion concurring in part and dissenting in part. And now, to discuss the case, we have Ellen Springer, an Associate at Baker Botts, LLP.

In June 2017, the Supreme Court decided two cases involving habeas corpus petitions filed by state prisoners challenging the validity of their convictions and/or sentences: Davila v. Davis and McWilliams v. Dunn. The petition in Davila v. Davis involved a claim of ineffective assistance of counsel. Erick Davila was convicted in a Texas court of capital murder. Although his trial attorney had objected to one of the court’s jury instructions on intent, the court had overruled the objection. On direct appeal his appellate counsel raised various claims, but did not challenge the jury instruction ruling. His conviction and sentence were affirmed by the state’s highest criminal court, and the U.S. Supreme Court denied cert. Davila then initiated a collateral attack on his conviction: he sought habeas relief in state court, but his attorney challenged neither the jury instruction ruling nor the failure of his appellate counsel to raise the alleged instructional error on direct appeal. Texas’ highest criminal court ultimately denied relief and the U.S. Supreme Court again denied cert.  Davila next raised a habeas claim in federal court, alleging that his appellate counsel provided ineffective assistance by failing to challenge the allegedly erroneous jury instruction on direct appeal. Although his failure to have raised that claim in his state habeas petition ordinarily constituted a fatal procedural default, Davila argued for an exception on the grounds that the failure was itself the result of ineffective assistance by his state habeas counsel. The federal district court denied Davila’s petition and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability for further review. The Supreme Court granted certiorari, however, to consider whether the ineffective assistance of postconviction counsel provided cause to excuse the procedural default.  By a vote of 5-4, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion delivered by Justice Thomas, the Court held that the ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims of ineffective assistance of appellate counsel. Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan.  The petition in McWilliams v. Dunn involved the scope of a state’s duty, identified by the Supreme Court in its 1985 decision in Ake v. Oklahoma, to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to effectively “assist in evaluation, preparation, and presentation of the defense.” In 1986, James McWilliams, Jr. was convicted by an Alabama jury of capital murder. Although a state commission, convened after McWilliams’s counsel requested a psychiatric evaluation, found that he was competent to stand trial and had not been suffering from mental illness at the time of his alleged crime, his counsel had also asked for neurological and neuropsychological testing while the parties awaited sentencing. The examining doctor concluded that McWilliams had some genuine neuropsychological problems, and his attorney also received various updated mental health records just before the sentencing hearing convened. Although the attorney sought a continuance and the assistance of someone with psychological expertise to evaluate this new material, the trial court denied those requests and sentenced McWilliams to death. Alabama’s appellate courts affirmed his conviction and sentence on direct appeal, and his effort to obtain state postconviction relief also failed. On federal habeas review, the district court found that the requirements described in Ake had been satisfied and denied McWilliams relief. The U.S. Court of Appeals for the Eleventh Circuit affirmed, but the Supreme Court granted certiorari to consider whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law” under the federal habeas statute. By a vote of 5-4, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court indicated that “Alabama’s provision of mental health assistance fell [] dramatically short of what Ake requires” and therefore concluded that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Eleventh Circuit had alternatively held that any error by the Alabama courts lacked the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, the Supreme Court indicated that the Eleventh Circuit should reconsider on remand “whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered” to the outcome of McWilliams’s case. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorsuch joined.  And now, to discuss the cases, we have Joseph Tartakovsy, Deputy Solicitor General for the State of Nevada. 

On June 5, 2017, the Supreme Court decided Kokesh v. Securities and Exchange Commission. In 2009, the Securities and Exchange Commission (SEC) alleged that Charles Kokesh had violated various securities laws by concealing the misappropriation of roughly $35 million in various development ventures dating back as far as 1995. Since the 1970s, the SEC has ordered disgorgement in addition to monetary civil penalties in its enforcement proceedings. In effect, the violator must not only pay monetary civil penalties, but also “disgorge” the profit he or she gained by the unlawful action. Under 28 U. S. C. §2462, however, a five-year limitations period applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture” when the SEC seeks monetary civil penalties. In Kokesh’s case, the District Court concluded that the five-year limitations period did not apply to disgorgement. The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture within the meaning of section 2462. As a result Kokesh could be required to disgorge the full $35 million, with interest. By a vote of 9-0, the Supreme Court reversed the judgment of the Tenth Circuit. In an opinion delivered by Justice Sotomayor, a unanimous Court held that disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under section 2462. Thus, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued.  And now, to discuss the case, we have Janet Galeria, who is Senior Counsel for Litigation for the US Chamber Litigation Center at the US Chamber of Commerce.

On May 22, 2017, the Supreme Court decided TC Heartland LLC v. Kraft Foods Group Brands LLC,  a dispute over the proper venue for a patent infringement suit.  Section 1400(b) of the patent venue statute states in relevant part that a civil action for patent infringement may be brought in the judicial district “where the defendant resides.”  In the 1957 case Fourco Glass Co. v. Transmirra Prods. Corp, the Supreme Court held that for purposes of section 1400(b) a domestic corporation “resides” only in its State of incorporation--a narrower understanding of corporate “residence” than that applicable under section 1391 of the general venue statute.  Under section 1391, a corporate defendant is typically deemed to reside in any judicial district where it is subject to the court’s “personal jurisdiction” with respect to the civil action in question. TC Heartland LLC (Heartland) is organized under Indiana law and headquartered there. Kraft Food Brands LLC (Kraft) sued Heartland in federal district court in Delaware (where Kraft is organized), alleging that products Heartland shipped to Delaware infringed on Kraft’s patents for similar products. Heartland moved to dismiss the claim or transfer venue to Indiana, arguing that it did not reside in Delaware for purposes of section 1400(b).  The district court rejected these arguments and the U.S. Court of Appeals for the Federal Circuit denied mandamus relief, because its circuit precedent had concluded that more recent statutory amendments to section 1391 had effectively superseded the Fourco interpretation of “reside” in section 1400(b) and thus the broader understanding expressed in section 1391 now applied to section 1400(b) too. By a vote of 8-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Thomas, the Court held that the amendments to section 1391 did not modify the meaning of section 1400(b) as interpreted in Fourco; as applied to domestic corporations, “residence” for purposes of section 1400(b) still refers only to the state of incorporation.  All other members of the Court joined in Justice Thomas’ opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. And now, to discuss the case, we have J. Devlin Hartline, who is Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

On June 12, 2017, the Supreme Court decided Sandoz, Inc. v. Amgen, Inc. consolidated with Amgen Inc. v. Sandoz Inc.  The Biologics Price Competition and Innovation Act of 2009 (BPCIA) provides an abbreviated pathway for obtaining Food and Drug Administration (FDA) approval of a drug that is biosimilar to an already licensed biological product.  Among other things, BPCIA provisions require applicants for approval of a new biosimilar to provide the manufacturer of the already licensed product with a notice of commercial marketing and certain information about the biosimilar.  Failure to comply permits the manufacturer to pursue infringement litigation against the applicant on an accelerated basis. Amgen claims to hold patents on methods of manufacturing and using filgrastim--a biologic used to stimulate the production of white blood cells--and markets one such product, Neupogen. Sandoz sought FDA approval to market a biosimilar called Zarxio.  When the FDA accepted Sandoz’s application for review, Sandoz notified Amgen that Sandoz intended to market Zarxio upon receipt of FDA approval.  Sandoz also indicated that it would not share with Amgen the relevant application and manufacturing information as required by the BPCIA and invited Amgen immediately to sue for infringement.  Amgen did so, and further asserted claims for “unlawful” conduct in violation of California’s unfair competition law.  The basis for the latter claims was Sandoz’s alleged failure to comply with the BPCIA requirements that Sandoz (a) share the application and manufacturing information pertaining to Zarxio, and (b) provide a notice of commercial marketing prior to obtaining FDA licensure.  Amgen sought injunctive relief in federal district court to enforce both requirements against Sandoz, which counterclaimed for declaratory judgments that Amgen’s patent was invalid and not infringed, and that Sandoz had not violated the BPCIA. While the litigation was pending, the FDA licensed Zarxio, and Sandoz provided Amgen with further notice of commercial marketing.  The district court thereafter granted partial judgment in favor of Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice.  A divided U.S. Court of Appeals for the Federal Circuit affirmed in part, vacated  in part, and remanded the case.  The Federal Circuit held that Sandoz had not violated the BPCIA disclosure requirements and that Amgen could not pursue state law remedies to enforce the BPCIA.  The court also held that an applicant may provide effective notice of commercial market only after FDA licensure and therefore enjoined Sandoz from marketing Zarxio until 180 days passed after Sandoz’s second notice. By a vote of 9-0, the Supreme Court unanimously vacated in part and reversed in part the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Thomas, the Court held that the BPCIA’s requirement on sharing application and marketing information is not enforceable by an injunction under federal law, but that the Federal Circuit should determine on remand whether a state-law injunction is available.  The Supreme Court further held that an applicant may provide the requisite notice of commercial marketing before obtaining FDA licensure; therefore Sandoz fully complied with this requirement through its initial notice, the Federal Circuit erred in enjoining Sandoz from marketing Zarxio on this basis, and Amgen’s state law unfair competition claim predicated on the view that the BPCIA forbids pre-licensure notice must fail.  Justice Breyer issued a concurring opinion. And now, to discuss the case, we have Erika Lietzan, who is Associate Professor of Law at the University of Missouri School of Law.

On June 26, 2017, the Supreme Court decided California Public Employees’ Retirement System v. ANZ Securities. Between 2007 and 2008, Lehman Brothers Holdings raised capital through a number of public securities offerings. California Public Employees’ Retirement System (CalPERS) purchased some of these securities.  In 2008, a putative class action alleging federal securities law violations was filed against respondents--various financial firms involved in underwriting the offerings--in the U.S. District Court for the Southern District of New York.  Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner CalPERS fell within the putative class. In 2011, however, CalPERS filed a separate action, alleging identical violations against respondent firms in the U.S. District Court for the Northern District of California.  That suit was then transferred and consolidated with other related litigation in the Southern District of New York.  The New York class action then settled, but CalPERS opted out of the settlement. Respondents thereafter moved to dismiss CalPERS’ separate suit based on Securities Act language providing that “[i]n no event shall any such action be brought … more than three years after the security was bona fide offered to the public,” the CalPERS suit having fallen outside the three-year limit.  CalPERS argued that the time limit was equitably tolled during the pendency of the class action, but the district court rejected the claim and U.S. Court of Appeals for the Second Circuit affirmed. By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that CalPERS’ untimely filing of its individual complaint more than three years after the relevant securities offering was grounds for dismissal.  The three-year limitation in the Securities Act, the Court indicated, is a “statute of repose” and therefore not subject to equitable tolling.  Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. And now, to discuss the case, we have Mark Chenoweth, who is General Counsel for the Washington Legal Foundation.

On June 12, 2017, the Supreme Court decided Sessions v. Morales-Santana, formerly known as Lynch v. Morales-Santana.  The Immigration and Nationality Act (INA) provides for derivative acquisition of U.S. citizenship from birth, by a child born abroad, when one parent is a U.S. citizen and the other is not.  At the relevant time here, the INA required the U.S.-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, at least five of which were after attaining age 14. Although the rule applies in full to unwed U.S.-citizen fathers, there is an exception for an unwed U.S.-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.  Morales-Santana, who was born in the Dominican Republic, asserted U.S. citizenship from birth based on the citizenship of his father--but his father had fallen 20 days short of satisfying the requirement of five years’ physical presence after attaining age 14.  In 2000, the government sought to remove Morales-Santana as a result of several criminal convictions, classifying him as alien rather than citizen because of his father’s failure to satisfy the full physical presence requirement.  The immigration judge rejected Morales-Santana’s citizenship claim and ordered him removed.  The Board of Immigration Appeals denied his subsequent motion to reopen proceedings on the claim that the INA’s gender-based rule violated the Fifth Amendment’s Equal Protection Clause--but the U.S. Court of Appeals for the Second Circuit reversed, holding the differential treatment of unwed fathers and mothers unconstitutional and acknowledging Morales-Santana’s U.S. citizenship.  The U.S. Supreme Court granted certiorari and by a vote of 8-0, affirmed in part and reversed in part the judgment of the Second Circuit, and remanded the case. In an opinion by Justice Ginsburg, the Court held that (1) the gender line Congress drew in the INA, creating an exception for an unwed U.S.-citizen mother but not for such a father, to the physical-presence requirement, violated the Fifth Amendment's equal protection clause as the Second Circuit had determined; but (2) the remedial course that Congress would most likely have chosen if apprised of this constitutional infirmity would have been not a broader application of the one-year exception but rather preservation of the five-year general rule; thus the Court cannot grant the relief Morales-Santana seeks.  Going forward it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender, but in the interim the five-year requirement applies prospectively to children of unwed U.S.-citizen mothers just as with such fathers. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in the judgment in part, in which Justice Alito joined. Justice Gorsuch took no part in the consideration or decision of the case.  And now, to discuss the case, we have Curt Levey, who is President, Committee for Justice; Legal Affairs Fellow, Freedom Works.

On June 22, 2017, the Supreme Court decided Maslenjak v.United States. At the close of the Bosnian civil war, Divna Maslenjak sought refugee status for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refugee status and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak’s husband, Ratko, on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband’s military service and was charged with two counts of naturalization fraud. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak’s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack was stripped of her citizenship. The Sixth Circuit affirmed her conviction. By a vote of 9-0, the Supreme Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion by Justice Kagan, the Court held that (1) the text of 18 U.S.C. § 1425(a) -- which prohibits "procur[ing], contrary to law, the naturalization of any person" -- makes clear that, to secure a conviction, the federal government must establish that the defendant's illegal act played a role in her acquisition of citizenship; (2) when the underlying illegality alleged in a Section 1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship; and (3) measured against this analysis, the jury instructions in this case were in error, and the government's assertion that any instructional error was harmless if left for resolution on remand. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Justice Alito filed an opinion concurring in the judgment. And now, to discuss the case, we have Vikrant P. Reddy, who is Senior Research Fellow at the Charles Koch Institute.

On June 19, 2017, the Supreme Court decided Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi , and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab noncitizens who were detained after the terrorist attacks on September 11, 2001, and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well as various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state a claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. By a vote of 4-2, the Supreme Court reversed in part, and vacated and remanded in part, the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that (1) the limited reach of actions brought under Bivens v. Six Unknown Federal Narcotics Agents informs the decision whether an implied damages remedy should be recognized in this case; (2) considering the relevant special factors in this case, a Bivens-type remedy should not be extended to the "detention policy claims" -- the allegations that the executive officials and wardens violated the detainees' due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegation that the wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches -- challenging the confinement conditions imposed on the detainees pursuant to the formal policy adopted by the executive officials in the wake of the September 11 attacks; (3) the U.S. Court of Appeals for the 2nd Circuit erred in allowing the prisoner-abuse claim against Warden Dennis Hasty to go forward without conducting the required special-factors analysis; and (4) the executive officials and wardens are entitled to qualified immunity with respect to respondents' civil conspiracy claims.  Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of these cases.  To discuss the case, we have David B. Rivkin, who is a Partner at Baker & Hostetler LLP.

On June 26, 2017, the Supreme Court decided Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. In granting certiorari, the U.S. Supreme Court directed the parties to address whether Hernandez’s parents could even raise their claims under Bivens v. Six Unknown Federal Narcotics Agents, which, sovereign immunity notwithstanding, recognized an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Ultimately, the Court vacated the judgment of the Fifth Circuit and remanded the case.  In a per curiam opinion, the Court underscored that a Bivens remedy is not available when "special factors counsel[] hesitation in the absence of affirmative action by Congress," and noted that the Court had recently clarified in Ziglar v. Abbasi “what constitutes a special factor counselling hesitation.”  The Fifth Circuit, the Court directed, should on remand resolve in the first instance the extent to which Abbasi may bear on this case. The Court acknowledged that the Fifth Circuit did not address the Bivens issue because that court had concluded that Hernandez lacked any Fourth Amendment rights to assert--but the Supreme Court considered it imprudent to resolve such a consequential question without a resolution of the Bivens issue first. Finally, the Court indicated that the Fifth Circuit had erred in finding qualified immunity for Mesa regardless of any Fifth Amendment violation because the Fifth Circuit had relied on facts about Hernandez’s nationality and ties to the United States that were unknown to Mesa at the time of the shooting. Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case. To discuss the case, we have Steven Giaier, who is Senior Counsel, House Committee on Homeland Security.

On May 22, 2017, the Supreme Court decided Cooper v. Harris, formerly known as McCrory v. Harris. In this case, the Court considered a redistricting plan introduced in North Carolina after the 2010 census. Plaintiffs argued that North Carolina used the Voting Rights Act’s “Black Voting Age Population” requirements as a pretext to place more black voters in two particular U.S. House of Representatives districts in order to reduce black voters’ influence in other districts. A three-judge panel of the U.S. District Court for the Middle District of North Carolina determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Fourteenth Amendment's Equal Protection Clause because race was the predominant factor motivating the new plan. Appellants contend the lower court decision against them erred in five critical ways: (1) presuming racial predominance from North Carolina's legitimate reliance on Supreme Court precedent; (2) applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of a workable alternative plan; (4) clearly erroneous fact-finding; and (5) failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion. By a vote of 5-3, the Supreme Court affirmed the judgment of the district court. In an opinion by Justice Kagan, the Supreme Court held that (1) North Carolina's victory in a similar state-court lawsuit does not dictate the disposition of this case or alter the applicable standard of review; (2) the district court did not err in concluding that race furnished the predominant rationale for District 1's redesign and that the state's interest in complying with the Voting Rights Act of 1965 could not justify that consideration of race; and (3) the district court also did not clearly err by finding that race predominated in the redrawing of District 12. Justice Kagan’s majority opinion was joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part, in which the Chief Justice and Justice Kennedy joined. Justice Gorsuch took no part in the consideration or decision of this case. And now, to discuss the case, we have Hans A. von Spakovsky, who is Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

On June 26, 2017, the Supreme Court decided Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity Lutheran). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity Lutheran’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed the suit and a divided panel of the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that the First Amendment’s Free Exercise Clause did not compel the State to disregard the broader anti-establishment principle reflected in its own constitution. By a vote of 7-2, the United States Supreme Court reversed the judgment of the Eighth Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that the DNR’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.  Justices Kennedy, Alito, and Kagan joined the Chief Justice’s majority opinion in full, and Justices Thomas and Gorsuch joined except as to footnote 3. Justice Thomas filed an opinion concurring in part, in which Justice Gorsuch joined. Justice Gorsuch filed an opinion concurring in part, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.  And now, to discuss the case, we have David A. Cortman, who was lead counsel in Trinity Lutheran Church of Columbia v. Pauley and is Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.

On May 30, 2017, the Supreme Court decided Esquivel-Quintana v. Sessions. In 2009, Juan Esquivel-Quintana, who was then 21, pleaded no-contest to a California statutory rape offense after engaging in consensual sex with a 17-year old. California criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” and for this purpose considers anyone under the age of 18 to be a minor. The Department of Homeland Security then initiated removal proceedings against Esquivel-Quintana under the Immigration and Nationality Act (INA), which allows for the removal of any alien convicted of an aggravated felony, including “sexual abuse of a minor”--though it does not define that phrase. The Board of Immigration Appeals (BIA) denied Esquivel-Quintana’s appeal, concluding that the age difference between Esquivel-Quintana and the minor was sufficiently meaningful for their sexual encounter to qualify as abuse of a minor. The U.S. Court of Appeals for the Sixth Circuit, deferring to the BIA’s interpretation, denied Esquivel-Quintana’s petition for further review.The question before the Supreme Court was whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA. By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit. In an opinion by Justice Thomas, the Court held that in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16. Because the California statute of conviction did not fall categorically within that generic federal definition, Esquivel-Quintana’s conviction was not an aggravated felony under the INA. All other members joined in Justice Thomas’s opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. To discuss the case, we have Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute.

On June 23, 2017, the Supreme Court decided Murr v. Wisconsin. In the 1960s the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children and the two lots were merged pursuant to St. Croix County’s code of ordinances, with local rules then barring their separate sale or development.  A decade later the Murrs sought to sell Lot E in order to fund construction work on Lot F, but the St. Croix County Board of Adjustment denied a variance from the ordinance barring separate sale or development of the lots. The Murrs sued the state and county, claiming that the ordinance effected an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court disagreed and granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, concluding that the Murrs took the properties with constructive knowledge of the resulting restrictions and had not suffered a loss in value of more than 10%. The Wisconsin Supreme Court denied further review. The question before the United States Supreme Court was whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. By a vote of 5-3, the Supreme Court affirmed the judgment of the Court of Appeals of Wisconsin. In an opinion by Justice Kennedy, the Supreme Court held that the Wisconsin court was correct to analyze the Murrs’ lots as a single unit and that no compensable taking had occurred. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case.  To discuss the case, we have James S. Burling, who is Vice President of Litigation, Pacific Legal Foundation.

On November 29, 2016, the Supreme Court decided Bravo-Fernandez v. United States. A jury convicted petitioners Juan Bravo-Fernandez and Hector Martínez-Maldonado of bribery in violation of 18 U. S. C. §666 but acquitted them of conspiring to violate §666 and traveling in interstate commerce to violate §666. The jury’s verdicts were therefore irreconcilably inconsistent, and the petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to this inconsistency. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charg­es, arguing that the issue-preclusion component of the Double Jeopardy Clause barred the Government from retrying them on those charges. The District Court denied the motions, and the First Circuit affirmed.  The question before the Supreme Court was whether the eventual invalidation of petitioners’ §666 convictions undermined the United States v. Powell instruction that issue preclusion does not apply when the same jury returns logically inconsistent verdicts.  By a vote of 8-0, the Supreme Court affirmed the judgment of the First Circuit. In an opinion by Justice Ginsburg, the Court held that the issue-preclusion component of the double jeopardy clause, which bars a second contest of an issue of fact or law raised and necessarily resolved by a prior judgment, does not bar the government from retrying defendants after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency. Justice Thomas filed a concurring opinion.  And now, to discuss the case, we have Paul Crane, who is Assistant Professor of Law at the University of Richmond School of Law.

On May 30, 2017, the Supreme Court decided Impression Products, Inc. v. Lexmark International, Inc. Lexmark International, Inc. (Lexmark), which owns many patents for its printer toner cartridges, allows customers to buy its cartridges through a “Return Program,” which is administered under a combination single-use patent and contract license. Customers purchasing cartridges through the Return Program are given a discount in exchange for agreeing to use each cartridge once before returning it to Lexmark. All of the domestically-sold cartridges at issue here and some of those sold abroad were subject to the Return Program. Impression Products, Inc. (Impression) acquired some Lexmark cartridges abroad--after a third party physically changed the cartridges to enable their re-use--in order to resell them in the United States. Lexmark then sued, alleging that Impression had infringed on Lexmark’s patents because Impression acted without authorization from Lexmark to resell and reuse the cartridges. Impression contended that its resale of the cartridges was not an infringement because Lexmark, in transferring the title by selling the cartridges initially, granted the requisite authority. The district court granted Impression’s motion to dismiss as it related to the domestically sold cartridges but denied it as to the foreign-sold cartridges. The U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment as to the domestically sold cartridges but affirmed dismissal regarding the cartridges sold abroad. There were two questions before the Supreme Court: (1) whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. By a vote of 7-1, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that (1) Lexmark exhausted its patent rights in toner cartridges sold in the United States through its "Return Program"; and (2) Lexmark cannot sue Impression Products for patent infringement with respect to cartridges Lexmark sold abroad, which Impression Products acquired from purchasers and imported into the United States, because an authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in part and dissenting in part. Justice Gorsuch took no part in the consideration or decision of the case. And now, to discuss the case, we have Adam Mossoff, who is Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.

On June 12, 2017, the Supreme Court decided Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case.The question before the Supreme Court was whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.By a vote of 8-0, the Court reversed the decision of the Ninth Circuit and remanded the case. In an opinion by Justice Ginsburg, the Court held that Federal courts of appeals lack jurisdiction under 28 U. S. C. §1291 to review an order denying class certification (or, as in this case, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in the judgment, in which the Chief Justice and Justice Alito joined. Justice Gorsuch took no part in the consideration or decision of the case.To discuss the case, we have Theodore H. Frank, who is Senior Attorney and Director of the Center for Class Action Fairness at the Competitive Enterprise Institute.

On June 5, 2017, the Supreme Court decided Advocate Health Care Network v. Stapleton, which is consolidated with Saint Peter’s Healthcare System v. Kaplan, and Dignity Health v. Rollins. The Employee Retirement Income Security Act of 1974 (ERISA) requires that employee retirement plans contain certain safeguards, but exempts “church plan[s]” from these requirements. Under 29 U.S.C. 1002(33)(A), the term “church plan” means “a plan established and maintained… by a church or by a convention or association of churches which is exempt from tax….” After a controversy involving an Internal Revenue Service determination that the church plan exemption did not encompass pension plans established and maintained by two orders of Catholic sisters for the employees of their hospitals, Congress amended the statute to add subsection (C), which provides: “A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches.”Plaintiffs in this case are a group of employees who work for church-affiliated non-profits. Plaintiffs sued the non-profits, alleging that their retirement plans are subject to ERISA and that by failing to adhere to ERISA’s requirements the non-profits have breached their respective fiduciary duties. Defendants moved for summary judgment, but the district court denied the motions because it determined that a plan established and maintained by a church-affiliated organization was not a church plan within the meaning of the statutory language. The U.S. Court of Appeals for the Seventh Circuit affirmed.By a vote of 8-0, the Court reversed the judgment of the Seventh Circuit. In an opinion by Justice Kagan, the Court held that under ERISA, a defined-benefit pension plan maintained by a principal-purpose organization -- one controlled by or associated with a church for the administration or funding of a plan for the church's employees -- qualifies as a "church plan," regardless of who established it. All members joined her opinion except for Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Sotomayor filed a concurring opinion.To discuss the case, we have Eric Baxter who is Senior Counsel at The Becket Fund for Religious Liberty.

On June 19, 2017, the Supreme Court decided Matal v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal, the U.S. Court of Appeals for the Federal Circuit, ultimately held en banc that the Disparagement Clause violated the First Amendment on its face. By a vote of 8-0, the Supreme Court affirmed the judgment of the Federal Circuit. In an opinion by Justice Alito, the Court held that the Disparagement Clause of the Lanham Act violates the First Amendment's Free Speech Clause. Parts I, II, and III-A of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas joined except for Part II. Parts III-B, III-C, and IV of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Thomas and Breyer. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. To discuss the case, we have Michael R. Huston, who is Associate Attorney at Gibson Dunn & Crutcher LLP.

On June 19, 2017, the Supreme Court decided Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of North Carolina and remanded the case. In an opinion by Justice Kennedy, the Court held that the North Carolina statute, which makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment, in which the Chief Justice and Justice Thomas joined. Justice Gorsuch took no part in the consideration or decision of the case.

On March 22, 2017, the Supreme Court decided Czyzewski v. Jevic Holding Corporation. Jevic Transportation, Inc., a trucking company headquartered in New Jersey, was purchased by a subsidiary of Sun Capital Partners in 2006. In 2008 Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code, at which that point it owed about $73 million to various creditors. Jevic’s former truck drivers then sued it for violating federal and state Worker Adjustment and Retraining Notification Acts, by failing to provide the requisite 60 days’ notice before a layoff. Separately, unsecured creditors filed a fraudulent conveyance action. In March 2012, representatives of all the major parties met to negotiate a settlement of the fraudulent conveyance suit. The representatives--except for the drivers’ representative--agreed to a settlement that would provide for payment of legal and administrative fees, a schedule for the payment of various creditors (though not the drivers), and ultimately a “structured dismissal” of the Chapter 11 bankruptcy.   The drivers and US Trustee objected, arguing that the settlement would improperly distribute estate property to creditors with lower priority than the drivers, in violation of the Bankruptcy Code. The Bankruptcy Court rejected these objections and approved the proposed settlement. The U.S. District Court and then the U.S. Court of Appeals for the Third Circuit affirmed, holding that the Bankruptcy Court had not abused its discretion in approving a structured dismissal that did not adhere strictly to the Bankruptcy Code’s priority scheme.    By a vote of 6-2, the U.S. Supreme Court reversed the judgment of the Third Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the drivers have Article III standing to bring the present litigation; and (2) bankruptcy courts may not approve structured dismissals of Chapter 11 bankruptcy cases that provide for asset distributions which do not follow ordinary priority rules established by the Bankruptcy Code without the consent of affected creditors. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.   To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

On May 1, 2017, the Supreme Court decided Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v.City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues.   The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation.   By a vote of 5-3, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the city of Miami was an "aggrieved person" authorized to bring suit under the Fair Housing Act; and (2) the Eleventh Circuit erred in concluding that the city's complaints met the FHA's proximate-cause requirement based solely on the finding that the city's alleged financial injuries were a foreseeable results of the banks' misconduct; proximate cause under the FHA requires “some direct relation between the injury asserted and the injurious conduct alleged”; the lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide on remand how that standard applies to the city's claims for lost property-tax revenue and increased municipal expenses. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justices Kennedy and Alito joined. Justice Gorsuch took no part in the consideration or decision of the cases.   To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

On April 19, 2017, the Supreme Court heard oral argument in Weaver v. Massachusetts. Kentel Myrone Weaver was convicted of first degree murder for the 2003 shooting of Germaine Rucker. In 2011, Weaver filed a motion for a new trial, claiming that he was denied effective assistance of counsel. A court officer had closed the court to Weaver’s family and other members of the public during jury selection because of overcrowding. Weaver claimed that this closure violated his Sixth Amendment right to a public trial, and his counsel had failed to object to the closure. The Supreme Judicial Court of Massachusetts affirmed Weaver’s conviction on direct appeal and declined to grant relief on his Sixth Amendment claim. The question before the Supreme Court is whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts. To discuss the case, we have Peter M. Thomson, who is Special Counsel at Stone Pigman Walther Wittmann LLC.

On March 29, 2017, the Supreme Court heard oral argument in Turner v. United States, which was consolidated with Overton v. United States. In 1984, the body of Catherine Fuller was discovered in an alley after she had been beaten and raped. Sufficient physical evidence to identify the perpetrators was not recovered, and the medical examiner could not determine the number of attackers involved. Thirteen teenagers were initially indicted for being involved in a group effort to originally rob and subsequently assault and kill her. Two of them, Harry Bennett and Calvin Alston, pled guilty and agreed to testify, but the details in their accounts differed. Turner and nine other defendants were found guilty by a jury, and their convictions were affirmed on direct appeal. Nearly 25 years later, Turner and several of the other original defendants moved to have their sentences vacated, claiming that they had not received fair trials because the government had withheld exculpatory evidence in violation of Brady v. Maryland. They also argued that newly discovered evidence, including the recantations of Bennett and Alston, established that they were actually innocent of the crime. The trial court denied the motion, and the District of Columbia Court of Appeals affirmed. The Court held that the defendants had not shown a reasonable probability that the outcome of their trials would have been different with the new evidence. The question now before the Supreme Court is whether the petitioners' convictions must be set aside under Brady v. Maryland. To discuss the case, we have Brian Lichter, who is Associate at Latham & Watkins.

On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its own claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed. The questions now before the Supreme Court is whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members To discuss the case, we have Paul Stancil, who is Professor of Law at Brigham Young University.

On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

On April 25, 2017, the Supreme Court decided Lewis v. Clarke. Petitioners Brian and Michelle Lewis were driving on a Connecticut interstate when they were struck from behind by a vehicle driven by respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was transporting Mohegan Sun Casino patrons. The Lewises sued Clarke in his individual capacity in state court. Clarke moved to dismiss for lack of subject-matter jurisdiction, arguing that because he was an employee of the Gaming Authority—an arm of the Mohegan Tribe entitled to sovereign immunity—and was acting within the scope of his employment at the time of the accident, he was similarly entitled to sovereign immunity against suit. He also argued, in the alternative, that he should prevail because the Gaming Authority was bound by tribal law to indemnify him. The trial court denied Clarke’s motion, but the Supreme Court of Connecticut reversed, holding that tribal sovereign immunity barred the suit because Clarke was acting within the scope of his employment when the accident occurred. It did not consider whether Clarke should be entitled to sovereign immunity based on the indemnification statute.  By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of Connecticut and remanded the case. In an opinion by Justice Sotomayor, the Court held that (1) in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe's sovereign immunity is not implicated; and (2) an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not be protected. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, and Kagan. Justices Thomas and Ginsburg filed opinions concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. To discuss the case, we have Zachary Price, who is Associate Professor at University of California Hastings College of Law.

On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring. On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest. By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

On April 19, 2017, the Supreme Court decided Nelson v. Colorado, along with Madden v. Colorado. In both cases, petitioners had collectively paid several thousand dollars to the state of Colorado in costs, fees, and restitution payments following their respective convictions for several offenses. Petitioners’ convictions were thereafter invalidated for various reasons. Nelson was retried but acquitted; the State elected not to appeal or retry in Madden’s cases. Both petitioners sought a return of the funds the State had required them to pay. Nelson’s trial court denied her motion outright, and Madden’s postconviction court allowed a refund of costs and fees, but not restitution. The Colorado Court of Appeals concluded that both petitioners were entitled to seek refunds of all they had paid, but the Colorado Supreme Court reversed. It reasoned that Colorado’s Compensation for Certain Exonerated Persons statute (Exoneration Act) provided the exclusive authority for refunds and, because neither Nelson nor Madden had filed a claim under that Act, the courts lacked authority to order refunds. The court also held that there was no due process problem with the Act, which permits Colorado to retain conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence.  By a vote of 7-1, the Supreme Court reversed the judgment of the Supreme Court of Colorado and remanded the case. Justice Ginsburg delivered the opinion of the Court, which held that Colorado’s Exoneration Act scheme deprived petitioners of the due process guaranteed under the Fourteenth Amendment: “[Petitioners’] interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case. To discuss the case, we have Ethan Blevins, who is Staff Attorney at the Pacific Legal Foundation.

On March 6, 2017, the Supreme Court decided Beckles v. United States. Travis Beckles, who had various felony convictions, was subsequently found guilty of being a convicted felon in possession of a firearm.  As a result he was subject to an enhanced sentence under the U.S. Sentencing Guidelines, which deemed him a “career offender” whose firearm possession offense constituted a “crime of violence.” Applying the enhancement, the district court sentenced Beckles to 360 months’ imprisonment. His conviction and sentence were affirmed on direct appeal, and the Supreme Court denied certiorari. Beckles then sought habeas relief from his enhanced sentence, arguing that his conviction for unlawful possession of a firearm was not a “crime of violence,” and that therefore he did not qualify as a “career offender” under the Guidelines. The district court denied his petition and the U.S. Court of Appeals for the Eleventh Circuit again affirmed. Beckles then petitioned the Supreme Court for certiorari and while his petition was pending the Court decided Johnson v. United States, which held that the residual clause part of the “crime of violence” definition in the Armed Career Criminal Act--the very same language that was applied to Beckles via the Sentencing Guidelines--was unconstitutionally vague. The Court, therefore, vacated the judgment in Beckles’ case and remanded to the Eleventh Circuit for further consideration in light of the Johnsondecision. On remand, the Eleventh Circuit again affirmed Beckles’ enhanced sentence, reasoning that Johnson simply did not address the Sentencing Guidelines or related commentary. The Supreme Court then again granted certiorari, to “resolve a conflict among the Courts of Appeals on the question whether Johnson’s vagueness holding applies to the residual clause in [the Guidelines.]” By a vote of 7-0, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Thomas delivered the opinion of the Court, which held that “the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that [the Guidelines’] residual clause is not void for vagueness.” Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Alito. Justice Kennedy also filed a concurring opinion. Justices Ginsburg and Sotomayor filed opinions concurring in the judgment. Justice Kagan took no part in the consideration or decision of this case. To discuss the case, we have Carissa Hessick, who is the Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.

On March 22, 2017, the Supreme Court decided Star Athletica, LLC v. Varsity Brands, Inc. Varsity Brands, Inc. designs and manufactures clothing and accessories for use in various athletic activities, including cheerleading. Design concepts for the clothing incorporate many elements but do not consider the functionality of the final clothing. Varsity received copyright registration for the two-dimensional artwork of the designs at issue in this case, which were very similar to ones that Star Athletica, LLC was advertising. Varsity sued Star and alleged, among other claims, that Star had violated the Copyright Act. Star countered that Varsity had made fraudulent representations to the Copyright Office. Both parties filed motions for summary judgment. Star argued that Varsity did not have valid copyrights because the designs were for “useful articles” and cannot be separated from the uniforms themselves, all of which tends to make an article ineligible for copyright. Varsity argued that the copyrights were valid and had been infringed. The district court granted summary judgment for Star and held that the designs were integral to the functionality of the uniform. The U.S. Court of Appeals for the Sixth Circuit reversed, however, and held that the uniforms Varsity designed were copyrightable. By a vote of 6-2, the Supreme Court affirmed the judgment of the Sixth Circuit. Justice Thomas delivered the opinion of the Court, which held that a feature incorporated into the design of a useful article is eligible for copyright protection under the Copyright Act of 1976 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 -- either on its own or fixed in some other tangible medium of expression -- if it were imagined separately from the useful article into which it is incorporated; that test is satisfied here. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Kennedy joined.  To discuss the case, we have Zvi Rosen, who is a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law.

On April 19, 2017, the Supreme Court heard oral argument in Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed for failure to state a claim. Trinity moved for reconsideration, amending its complaint to include allegations that DNR had previously funded religious organizations with the same grant, but the district court denied again. The U.S. Court of Appeals for the Eighth Circuit upheld the decision, agreeing with both the dismissal and denial of motions. The question before the Supreme Court is whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has, according to the petitioner church, no valid Establishment Clause concern. To discuss the case, we have Hannah C. Smith, who is Senior Counsel of the Becket Fund for Religious Liberty.

On March 27, 2017, the Supreme Court heard oral argument in Advocate Health Care Network v. Stapleton, which is consolidated with Saint Peter’s Healthcare System v. Kaplan and Dignity Health v. Rollins. The Employee Retirement Income Security Act of 1974 (ERISA) requires that employee retirement plans contain certain safeguards, but exempts “church plan[s]” from these requirements.  Under 29 U.S.C. 1002(33)(A), the term “church plan” means “a plan established and maintained… by a church or by a convention or association of churches which is exempt from tax….” After a controversy involving an Internal Revenue Service determination that the church plan exemption did not encompass pension plans established and maintained by two orders of Catholic sisters for the employees of their hospitals, Congress amended the statute to add subsection (C), which provides: “A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches.” Plaintiffs in this case are a group of employees who work for Advocate Health Care Network (Advocate) and are members of Advocate’s retirement plan. Advocate is affiliated with a church, though it is not owned or financially operated by the church. Plaintiffs sued Advocate, arguing that the Advocate retirement plan is subject to ERISA, and therefore, by failing to adhere to ERISA’s requirements, Advocate has breached its fiduciary duty. Defendants moved for summary judgment, but the district court denied the motion because it determined that a plan established and maintained by a church-affiliated organization was not a church plan within the meaning of the statutory language. The U.S. Court of Appeals for the Seventh Circuit affirmed. The question now before the Supreme Court is whether the Employee Retirement Income Security Act of 1974's church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan. To discuss the case, we have Eric Baxter, who is Senior Counsel of the Becket Fund for Religious Liberty.

On March 27, 2017, the Supreme Court heard oral argument in TC Heartland LLC v. Kraft Foods Group Brands LLC. TC Heartland LLC (Heartland) is organized under Indiana law and headquartered in Indiana. Kraft Food Brands LLC (Kraft) is organized under Delaware law with its principal place of business in Illinois. Kraft sued Heartland in federal district court in Delaware, alleging that products Heartland shipped to Delaware infringed on Kraft’s patents for similar products. Heartland moved to dismiss the claim, arguing that the federal court in Delaware lacked the necessary jurisdiction over Heartland’s person--i.e., “personal jurisdiction.” Alternatively, Heartland sought transfer of the case to a venue in the Southern District of Indiana. The district court denied the motion to dismiss, holding that Heartland’s contacts with Delaware were sufficient to justify the exercise of personal jurisdiction. The court also denied the request to transfer venue, citing precedent in the U.S. Court of Appeals for the Federal Circuit indicating that, under 28 U.S.C. Secs. 1391 and 1400, venue for a corporate defendant, including in a patent infringement suit, is proper in any district in which the defendant is subject to a federal court’s personal jurisdiction.   Heartland then sought a writ of mandamus from the Federal Circuit ordering the district court to dismiss the case or transfer venue, arguing that Heartland did not “reside” in Delaware for purposes of the patent venue statute, 28 U.S.C. Sec. 1400. The Federal Circuit denied the writ, indicating that the lower court had acted properly and that Congress’ 2011 amendments to the venue statute did not provide cause to change the Federal Circuit’s prevailing interpretation of the statute. The question now before the Supreme Court is whether the patent venue statute, 28 U.S.C. § 1400(b), which provides that patent infringement actions “may be brought in the judicial district where the defendant resides[,]” is the sole and exclusive provision governing venue in patent infringement actions and is not affected by the statute governing “[v]enue generally,” 28 U.S.C. § 1391, which has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts. To discuss the case, we have J. Devlin Hartline, who is Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

On March 21, 2017, the Supreme Court heard oral argument in Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. The question now before the Supreme Court is whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. To discuss the case, we have Cory L. Andrews, who is Senior Litigation Counsel for Washington Legal Foundation.

On March 21, 2017, the Supreme Court heard oral argument in Impression Products, Inc. v. Lexmark International, Inc. Lexmark International, Inc. (Lexmark), which owns many patents for its printer toner cartridges, allows customers to buy its cartridges through a “Return Program,” which is administered under a combination single-use patent and contract license. Customers purchasing cartridges through the Return Program are given a discount in exchange for agreeing to use each cartridge once before returning it to Lexmark. All of the domestically-sold cartridges at issue here and some of those sold abroad were subject to the Return Program. Impression Products, Inc. (Impression) acquired some Lexmark cartridges abroad--after a third party physically changed the cartridges to enable their re-use--in order to resell them in the United States. Lexmark then sued, alleging that Impression had infringed on Lexmark’s patents because Impression acted without authorization from Lexmark to resell and reuse the cartridges. Impression contended that its resale of the cartridges was not an infringement because Lexmark, in transferring the title by selling the cartridges initially, granted the requisite authority. The district court granted Impression’s motion to dismiss as it related to the domestically sold cartridges but denied it as to the foreign-sold cartridges. The U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment as to the domestically sold cartridges but affirmed dismissal regarding the cartridges sold abroad. There are two questions now before the Supreme Court: (1) whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. To discuss the case, we have David S. Olson, who is Associate Professor of Law at Boston College Law School.

On March 20, 2017, the Supreme Court heard oral argument in Murr v. Wisconsin. In 1960 and 1963, the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children. In 1995, the two lots were merged pursuant to St. Croix County’s code of ordinances. Seven years later, the Murrs wanted to sell Lot E but not Lot F, but they were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county, claiming that the ordinance in question resulted in an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, and the Wisconsin Supreme Court denied further review. The question before the Supreme Court is whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. Cityof New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. To discuss the case, we have James S. Burling, who is Director of Litigation, Pacific Legal Foundation.

On March 6, 2017, the Supreme Court decided Pena-Rodriguez v. Colorado. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. Two jurors later informed Pena-Rodriguez’s counsel that another juror made racially-biased statements about Pena-Rodriguez and an alibi witness during jury deliberations. The trial court authorized counsel to contact the two jurors for their affidavits detailing what the allegedly biased juror had said. Pena-Rodriguez moved for a new trial after learning from the affidavits that the juror had suggested Pena-Rodriguez was guilty because he was Hispanic (and this juror considered Hispanic males to be sexually aggressive toward females). According to the affidavits, the juror also deemed the alibi witness not credible because, among other things, that witness was “an illegal.” The trial court denied the motion and a divided Supreme Court of Colorado ultimately affirmed, applying Colorado Rule of Evidence 606(b)--which prohibits juror testimony on any matter occurring during the jury deliberations--and finding that none of the exceptions to the rule applied. In the dissenters’ view, however, Rule 606(b) should have yielded to “the defendant’s constitutional right to an impartial jury.” The question before the U.S. Supreme Court was whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. By a vote of 5-3, the U.S. Supreme Court reversed the judgment of the Supreme Court of Colorado and remanded the case. Justice Kennedy delivered the opinion of the Court, while held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. To discuss the case, we have John C. Richter, who is Partner at King & Spalding.

On February 27, 2017, the Supreme Court heard oral argument in Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites.   Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. The question before the U.S. Supreme Court is whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a website that enables communication, expression, and the exchange of information among users--if the site is “know[n]” to allow minors to have accounts--is permissible on its face and as applied to Packingham. To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.

On February 21, 2017, the Supreme Court heard oral argument in McLane Co. v. EEOC. Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ochoa was required to take a “physical abilities” test, which she failed three times. Ochoa was fired by McLane but then filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that McLane violated Title VII of the Civil Rights Act of 1964. The EEOC opened up an investigation and issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. When McLane refused, EEOC filed a subpoena enforcement action. The district court granted enforcement of the subpoena with respect to some information (such as the gender and score of each test taker) but declined to require the production of pedigree information or the reasons why others who had failed the test were terminated. The U.S. Court of Appeals for the Ninth Circuit, reviewing the district court’s decision “de novo,” held that the district court had erred in refusing to compel production of the pedigree information, and also needed to consider whether production of the reasons for other terminations would be unduly burdensome. The question before the U.S. Supreme Court is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do. To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Small Business Legal Center.

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.

On February 22, 2017, the Supreme Court decided Life Technologies Corp. v. Promega Corp. Promega Corporation owned four patents for technology used in kits that can conduct genetic testing and was the exclusive licensee of a fifth patent. In 2010, Promega sued Life Technologies Corporation (LifeTech) for allegedly infringing on these patents.  A jury found in favor of Promega but the district court nevertheless ruled for LifeTech, concluding that Promega had failed to present evidence sufficient to sustain the favorable jury verdict. The U.S. Court of Appeals for the Federal Circuit reversed that judgment, holding that the four Promega patents were ultimately invalid but agreeing that LifeTech had infringed the fifth patent and remanding to the district court for a determination of damages.  In the course of its ruling, the Federal Circuit concluded that LifeTech’s supplying of a single, commodity component of a mulit-component invention had exposed LifeTech under federal law to damages liability on worldwide sales. The question before the Supreme Court was whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States exposes a manufacturer to liability for worldwide sales.  By a vote of 7-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court held that the supply of a single component of a multicomponent invention for manufacture abroad does not give rise to liability under Section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of "all or a substantial portion of the components of a patented invention" for combination abroad. Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justices Thomas and Alito joined the majority opinion as to all but Part II-C. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Chief Justice Roberts was recused. To discuss the case, we have Howard J. Klein who is Attorney at Law at Klein, O’Neill & Singh, LLP.

On November 8, 2016, the Supreme Court heard oral argument in Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v. City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues. The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation. There are two questions now before the Supreme Court: (1) whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies. To discuss the case, we have Thaya Brook Knight, who is Associate Director of Financial Regulation Studies at the Cato Institute.

On January 18, 2017, the Supreme Court heard oral argument in Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab non-citizens who were who were detained after the terrorist attacks on September 11, 2001 and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. The questions now before the Supreme Court are threefold: (1) whether the Second Circuit, in finding that Plaintiffs’ due process claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality; (2) whether the Second Circuit erred in denying qualified immunity to Defendant Ziglar; and (3) whether the Second Circuit erred in holding that Plaintiffs’ Fourth Amendment Complaint met the pleading requirements identified by the Supreme Court in its 2009 decision in Ashcroft v. Iqbal. To discuss the case, we have Jamil N. Jaffer, who is Adjunct Professor of Law and Director of the Homeland and National Security Law Program at the Antonin Scalia Law School.

On January 18, 2017, the Supreme Court heard oral arguments in Lee v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal to the U.S. Court of Appeals for the Federal Circuit, a panel of judges determined that the Office officials were within their rights to refuse the application. The Federal Circuit then reviewed the case en banc and found that the Disparagement Clause violated the First Amendment and that the Office should not have refused the application. The question before the Supreme Court is whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. To discuss the case, we have Megan L. Brown, who is Partner at Wiley Rein LLP.

On December 6, 2016, the Supreme Court decided State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages.   Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded (as the district court had)--after applying a multi-factor test--that the breach did not warrant dismissal here. The question before the Supreme Court was what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. By a vote of 8-0, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion by Justice Kennedy, the Court unanimously held that a seal violation does not mandate dismissal of a relator's complaint under the False Claims Act and that whether to dismiss is a matter left to the discretion of the district court. In this case, the Supreme Court added, the district court did not abuse its discretion in declining to dismiss the relator’s complaint. To discuss the case, we have Lawrence Ebner, who is the Founder of Capital Appellate Advocacy.

On December 6, 2016, the Supreme Court decided Samsung Electronics Co. v. Apple. In April 2011, Apple sued Samsung Electronics, alleging that Samsung’s smartphones infringed on Apple’s trade dress as well as various design patents for the iPhone. A jury awarded Apple nearly $1 billion in damages under Section 289 of the Patent Act, and the trial court upheld most of the award against Samsung’s post-trial challenges. On appeal, the U.S. Court of Appeals for the Federal Circuit rejected Samsung’s argument that the district court erred by allowing the jury to award damages based on Samsung’s profits off of its phones in their entirety, rather than just the portion of profits attributable to the smartphone components covered under the design patents.The question before the Supreme Court was whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component.By a vote of 8-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court unanimously held that in the case of a multicomponent product, the relevant article of manufacture for arriving at a damages award under Section 289 need not be the end product sold to the consumer but may be only a component of that product. Whether the relevant article of manufacture in this particular case should be the entire smartphone or merely a component thereof is an issue the Court left open for resolution on remand. To discuss the case, we have Trevor Copeland, a Shareholder at Brinks Gilson & Lione, and Art Gollwitzer, a Partner at Michael Best & Friedrich LLP.

On November 29, 2016, the Supreme Court heard oral argument in Moore v. Texas. In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was convicted and received a death sentence, which was affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that, under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia he was exempt from execution, because he was intellectually disabled. The state court granted habeas relief based on Moore’s Atkins argument, applying a definition of intellectual disability used by the American Association on Intellectual and Developmental Disabilities (AAIDD). The Court of Criminal Appeals of Texas reversed the grant, noting that the Texas legislature had not yet passed Atkins legislation and that the AAIDD definition of intellectual disability diverged from that previously adopted by Texas courts in the wake of Atkins--a 1992 definition used by AAIDD’s predecessor the American Association on Mental Retardation (AAMR), as well as the Texas Health and Safety Code.  Moore, the Court of Criminal Appeals held, ultimately failed to establish by a preponderance of the evidence that he was intellectually disabled within the meaning of Atkins, as applied by Texas courts. The question before the U.S. Supreme Court is whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. To discuss the case, we have Kent S. Scheidegger who is Legal Director and General Counsel for the Criminal Justice Legal Foundation.

On December 7, 2016, the Supreme Court heard oral argument in Czyzewski v. Jevic Holding Corporation. Jevic Transportation, Inc., a trucking company headquartered in New Jersey, was purchased by a subsidiary of Sun Capital Partners in 2006. In 2008 Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code, at which that point it owed about $73 million to various creditors. Jevic’s former truck drivers then sued it for violating federal and state Worker Adjustment and Retraining Notification Acts, by failing to provide the requisite 60 days’ notice before a layoff. Separately, unsecured creditors filed a fraudulent conveyance action. In March 2012, representatives of all the major parties met to negotiate a settlement of the fraudulent conveyance suit. The representatives--except for the drivers’ representative--agreed to a settlement that would provide for payment of legal and administrative fees, a schedule for the payment of various creditors (though not the drivers), and ultimately a “structured dismissal” of the Chapter 11 bankruptcy. The drivers and US Trustee objected, arguing that the settlement would improperly distribute estate property to creditors with lower priority than the drivers, in violation of the Bankruptcy Code. The Bankruptcy Court rejected these objections and approved the proposed settlement. The U.S. District Court and then the U.S. Court of Appeals for the Third Circuit affirmed, holding that the Bankruptcy Court had not abused its discretion in approving a structured dismissal that did not adhere strictly to the Bankruptcy Code’s priority scheme.  The question now before the U.S. Supreme Court is whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the statutory priority scheme. To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

On November 2, 2016, the Supreme Court heard oral argument in Venezuela v. Helmerich & Payne International. Helmerich & Payne International Drilling Company owns a subsidiary that, in 2007, contracted to provide Venezuela's state-owned oil corporation the use of Helmerich’s drilling rigs. When unpaid invoices to the state-owned company surpassed $100 million in 2009, Helmerich refused to renew the contract and prepared to remove its equipment. Employees of the Venezuelan corporation, along with the Venezuelan National Guard, blockaded the equipment yards, and then-President Hugo Chavez issued a Decree of Expropriation.  Helmerich sued in federal district court under the expropriation and commercial activity exceptions to the Foreign Sovereign Immunities Act. Venezuela moved to dismiss, and the district court granted the motion with respect to the expropriation claim but denied it with respect to the commercial activity claim. The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that because the expropriation claim was neither insubstantial nor frivolous, the district court should not have granted the motion to dismiss that claim--but should have dismissed the commercial activity claim because the subsidiary’s commercial activity had no “direct effect” in the United States. The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the Foreign Sovereign Immunities Act’s expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous.  To discuss the case, we have Donald Earl “Trey” Childress III, who is Professor of Law at the Pepperdine University School of Law.

On December 5, 2016, the Supreme Court heard oral argument in McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections. In these related cases, the Court considered redistricting plans introduced in North Carolina and Virginia after the 2010 census. Plaintiffs in McCrory argued that North Carolina used the Voting Rights Act’s “Black Voting Age Population” requirements as a pretext to place more black voters in two particular U.S. House of Representatives districts in order to reduce black voters’ influence in other districts. The district court determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Equal Protection Clause because race was the predominant factor motivating the new plan. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. They argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the plaintiffs did not establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district, the General Assembly was pursuing a narrowly tailored compelling state interest in creating it. In McCrory, appellants contend the lower court decision against them erred in five critical ways: (1) presuming racial predominance from North Carolina's legitimate reliance on Supreme Court precedent; (2) applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of a workable alternative plan; (4) clearly erroneous fact-finding; and (5) failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion. Appellants further argue that, in the interests of judicial comity and federalism, the Supreme Court should order full briefing and oral argument to resolve the split between the court below and the North Carolina Supreme Court which reached the opposite result in a case raising identical claims. The Bethune-Hill appellants also assert five errors by the lower court: (1) holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional districting criteria; (2) concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts did not amount to racial predominance and trigger strict scrutiny; (3) disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) concluding that the General Assembly's predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest. To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

On November 28, 2016, the Supreme Court heard oral argument in Beckles v. United States. Travis Beckles, who had previous felony convictions (mostly for drug possession and sales), was an armed career criminal under the Armed Career Criminal Act (ACCA) and was therefore convicted in district court and subject to sentencing enhancement under the Sentencing Guidelines after being found in possession of a firearm. Pursuant to the Sentencing Guidelines, Beckles was eligible for a sentence range from 360 months to life imprisonment, and the court sentenced him to 360 months in prison, five months of supervised release, and a $5,000 fine. Beckles appealed and argued that the Sentencing Guidelines imposed an unreasonable sentence, that his prior convictions did not qualify as “violent felonies” subject to sentencing enhancement under ACCA, and that possession of a sawed-off shotgun was not a “crime of violence” subject to sentencing enhancement under the Sentencing Guidelines. The U.S. Court of Appeals for the Eleventh Circuit affirmed his conviction and sentence. The U.S. Supreme Court vacated the appellate court’s decision and remanded the case for reconsideration in light of Johnson v. United States, which determined that the residual clause of ACCA was unconstitutional. On remand, the appellate court again upheld Beckles’ conviction and sentence. The appellate court also held that the Johnson decision did not affect this case because Beckles was not sentenced under the residual clause of ACCA but rather under express language from the Sentencing Guidelines about sentencing enhancements for crimes of violence. The three questions now before the Supreme Court are: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson. To discuss the case, we have Carissa Byrne Hessick, who is the Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.

On December 6, 2016, the Supreme Court decided Salman v. United States. Bassam Yacoub Salman was convicted in a jury trial of conspiracy to commit securities fraud, as well as several counts of actual securities fraud. The government’s theory was that Salman, whose brother-in-law Mounir Kara (along with Mounir’s older brother Maher Kara) worked for Citigroup, had coordinated with Mounir in an insider trading scheme that, over the course of just a few years, grew a $396,000 brokerage account controlled by Salman into one worth more than $2 million. Salman moved for a new trial, arguing that there was no evidence he knew that the tipper had disclosed confidential information in exchange for a personal benefit. The district court denied the motion. Salman made a similar argument to the U.S. Court of Appeals for the Ninth Circuit on appeal, urging the Court to adopt the then-recently established standard set out by the Second Circuit in United States v. Newman. Under Newman, the government must present sufficient evidence that the accused knew the “inside” information he received had been disclosed in breach of a fiduciary duty. Invoking Supreme Court precedent in Dirks v. SEC, the Ninth Circuit rejected Salman’s challenge, holding that the close familial relationship between Salman and the Karas was sufficient to sustain Salman’s convictions. The question before the Supreme Court was whether the personal benefit to the insider that is necessary to establish insider trading under Dirks requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in Newman, or whether it is enough that the insider and the tippee shared a close familial relationship, as the Ninth Circuit held here. By a vote of 8-0, the Supreme Court affirmed the judgment of the Ninth Circuit. In an opinion delivered by Justice Alito, a unanimous Court held that the Ninth Circuit properly applied the court's decision in Dirks v. Securities and Exchange Commission to affirm Bassam Salman's conviction because, under Dirks, the jury could infer that Salman's tipper personally benefited from making a gift of confidential information to a trading relative. To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

On October 31, 2016, the Supreme Court heard oral argument in Star Athletica, LLC v. Varsity Brands, Inc. Varsity Brands, Inc. designs and manufactures clothing and accessories for use in various athletic activities, including cheerleading. Design concepts for the clothing incorporate many elements but do not consider the functionality of the final clothing. Varsity received copyright registration for the two-dimensional artwork of the designs at issue in this case, which were very similar to ones that Star Athletica, LLC was advertising. Varsity sued Star and alleged, among other claims, that Star violated the Copyright Act. Star countered that Varsity had made fraudulent representations to the Copyright Office. Both parties filed motions for summary judgment. Star argued that Varsity did not have valid copyrights because the designs were for “useful articles” and cannot be separated from the uniforms themselves, all of which tends to make an article ineligible for copyright. Varsity argued that the copyrights were valid and had been infringed. The district court granted summary judgment for Star and held that the designs were integral to the functionality of the uniform. The U.S. Court of Appeals for the Sixth Circuit reversed, however, and held that the uniforms Varsity designed were copyrightable. The question now before the U.S. Supreme Court asks what the appropriate test is to determine when a feature of a useful article is protectable under section 101 of the Copyright Act. To discuss the case, we have Zvi Rosen, who is an adjunct professor at New York Law School.

On October 11, 2016, the Supreme Court decided Bosse v. Oklahoma. In 1987, the U.S. Supreme Court held in Booth v. Maryland that the Eighth Amendment prohibits a sentencing jury in a death penalty case from considering victim impact evidence that does not directly relate to the circumstances of the crime. Four years later in Payne v. Tennessee, the Supreme Court clarified that the ban only applied to certain kinds of victim impact testimony. Shaun Michael Bosse was convicted of three counts of first-degree murder. The prosecution sought the death penalty and, over Bosse’s objection, asked three of the victims’ family members to recommend a sentence to the jury. All three recommended the death penalty, and the jury sentenced Bosse to death. Bosse appealed, arguing that the testimony violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed, holding that Payne had implicitly overruled Booth’s ban as it related to characterizations of the defendant and opinions about the sentence. By a vote of 8-0, the U.S. Supreme Court vacated the decision of the Oklahoma Court of Criminal Appeals and remanded the case. The Supreme Court held in a per curiam opinion that the Oklahoma Court of Criminal Appeals erred in concluding that Paynehad implicitly overruled Booth in its entirety. Supreme Court decisions remain binding precedent until reconsidered, the Court explained--even when subsequent cases have raised doubts about their continuing vitality. Justice Thomas filed a concurring opinion in which Justice Alito joined. To discuss the case, we have Erin Sheley, who is Assistant Professor, University of Calgary Faculty of Law.

On November 7, 2016, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated “longevity pay” for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed, and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. The question now before the Supreme Court is whether the FVRA precondition in 5 U.S.C. 3345(b)(1), on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, which requires that a person who is nominated to fill a vacant office subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials like Solomon, who assume acting responsibilities under subsections (a)(2) and (a)(3). To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

On November 9, 2016, the Supreme Court heard oral argument in Lynch v. Morales-Santana. Morales-Santana’s father was born in Puerto Rico but acquired U.S. citizenship in 1917 under the Jones Act of Puerto Rico. Morales-Santana was born in 1962 in the Dominican Republic to his father and Dominican mother, who were unmarried at the time. In 1970, upon his parents’ marriage, he was statutorily “legitimated” and was admitted to the U.S. as a lawful permanent resident in 1976. The Immigration and Nationality Act of 1952, which was in effect at the time of Morales-Santana’s birth, limits the ability of an unwed citizen father to confer citizenship on his child born abroad, where the child’s mother is not a citizen at the time of the child’s birth, more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same. In 2000, Morales-Santana was placed in removal proceedings after having been convicted of various felonies. An immigration judge denied his application for withholding of removal on the basis of derivative citizenship obtained through his father. He filed a motion to reopen in 2010, based on a violation of equal protection and newly obtained evidence relating to his father, but the Board of Immigration Appeals denied the motion. The U.S. Court of Appeals for the Second Circuit reversed the Board’s decision, however, and concluded that Morales-Santana was a citizen as of birth. The Attorney General of the United States then obtained a grant of certiorari from the Supreme Court. The two questions now before the Supreme Court are: (1) whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. To discuss the case, we have Elina Treyger, who is Assistant Professor of Law at the George Mason University Antonin Scalia Law School.

On November 1, 2016, the Supreme Court heard oral argument in State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages.   Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded after applying a multi-factor test that the breach did not warrant dismissal here. The question now before the Supreme Court is what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. To discuss the case, we have Cory Andrews, who is senior litigation counsel at the Washington Legal Foundation.

On October 11, 2016, the Supreme Court heard oral argument in Pena-Rodriguez v. Colorado. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. Two jurors later informed Pena-Rodriguez’s counsel that another juror made racially-biased statements about Pena-Rodriguez and an alibi witness during jury deliberations. The trial court authorized counsel to contact the two jurors for their affidavits detailing what the allegedly biased juror had said. Pena-Rodriguez moved for a new trial after learning from the affidavits that the juror had suggested Pena-Rodriguez was guilty because he was Hispanic (and this juror considered Hispanic males to be sexually aggressive toward females). According to the affidavits, the juror also deemed the alibi witness not credible because, among other things, that witness was “an illegal.” The trial court denied the motion and a divided Supreme Court of Colorado ultimately affirmed, applying Colorado Rule of Evidence 606(b)--which prohibits juror testimony on any matter occurring during the jury deliberations--and finding that none of the exceptions to the rule applied. In the dissenters’ view, however, Rule 606(b) should have yielded to “the defendant’s constitutional right to an impartial jury.” The question now before the U.S. Supreme Court is whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. To discuss the case, we have John C. Richter, who is Partner at King & Spalding.

On October 5, 2016, the Supreme Court heard oral argument in Samsung Electronics Co. v. Apple. In April 2011, Apple sued Samsung Electronics, alleging that Samsung’s smartphones infringed on Apple’s trade dress as well as various design patents for the iPhone. A jury awarded Apple nearly $1 billion in damages, and the trial court upheld most of the award against Samsung’s post-trial challenges. On appeal, the U.S. Court of Appeals for the Federal Circuit rejected Samsung’s argument that the district court erred by allowing the jury to award damages based on Samsung’s profits off of its phones in their entirety, rather than just the portion of profits attributable to the smartphone components covered under the design patents. The question now before the Supreme Court is whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component. To discuss the case, we have Mark D. Janis, the Robert A. Lucas Chair of Law and Director of the Center for Intellectual Property Research, Maurer School of Law, Indiana University.

On October 5, 2016, the Supreme Court heard oral argument in Salman v. United States. Bassam Yacoub Salman was convicted in a jury trial of conspiracy to commit securities fraud, as well as several counts of actual securities fraud. The government’s theory was that Salman, whose brother-in-law Mounir Kara (along with Mounir’s older brother Maher Kara) worked for Citigroup, had coordinated with Mounir in an insider trading scheme that, over the course of just a few years, grew a $396,000 brokerage account controlled by Salman into one worth more than $2 million. Salman moved for a new trial, arguing that there was no evidence he knew that the tipper had disclosed confidential information in exchange for a personal benefit. The district court denied the motion. Salman made a similar argument to the U.S. Court of Appeals for the Ninth Circuit on appeal, urging the Court to adopt the then-recently established standard set out by the Second Circuit in United States v. Newman. Under Newman, the government must present sufficient evidence that the accused knew the “inside” information he received had been disclosed in breach of a fiduciary duty. Invoking its precedent in Dirks v. SEC, the Ninth Circuit rejected Salman’s challenge, holding that the close familial relationship between Salman and the Karas was sufficient to sustain Salman’s convictions. The question now before the Supreme Court is whether the personal benefit to the insider that is necessary to establish insider trading under Dirks requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in Newman, or whether it is enough that the insider and the tippee shared a close familial relationship, as the Ninth Circuit held here. To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

Co-Sponsored by the Faculty Division and the Practice GroupsOctober 4th will mark the first day of oral arguments for the 2016 Supreme Court term. The Court's docket already includes major cases involving insider trading, the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, criminal law, IP and patent law, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, and voting rights.The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court.This event was held on September 27, 2016, at the National Press Club in Washington, DC.Featuring:Mr. Thomas C. Goldstein, Goldstein & Russell PCProf. Nicholas Quinn Rosenkranz, Georgetown Law CenterMs. Carrie Severino, Judicial Crisis NetworkHon. George J. Terwilliger, McGuireWoods LLPModerator: Mr. Robert Barnes, The Washington Post National Press Club Washington, DC

On April 20, 2016, the Supreme Court decided Harris v. Arizona Independent Redistricting Commission. In 2012, the Arizona Independent Redistricting Commission redrew the map for the state legislative districts based on the results of the 2010 census. Wesley Harris and other individual voters sued the Commission and alleged that the newly redrawn districts were underpopulated in Democratic-leaning districts and over-populated in Republican-leaning ones and that the Commission had, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Commission countered that the population deviations were the result of attempts to comply with the Voting Rights Act. A three-judge district court ruled in favor of the Commission. On appeal, the Supreme Court affirmed the judgment of the district court by a vote of 8-0. Justice Breyer delivered the opinion for a unanimous Court, which held that the federal district court did not err in upholding Arizona's redistricting plan.  The challengers failed to demonstrate, the Court explained, that illegitimate considerations more likely than not were the predominant motivation for the plan's population deviations. To discuss the case, we have Mark F. “Thor” Hearne, II, who is Partner at Arent Fox LLP.

On June 23, 2016, the Supreme Court decided Mathis v. United States. The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a prior conviction is for one of those listed crimes, courts apply a “categorical approach”—they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime. Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because he had five prior Iowa burglary convictions, the Government argued for the 15-year minimum.  Generic burglary requires unlawful entry into a “building or other structure.” The Iowa statute under which Mathis was convicted, however, also extended to “any... land, water, or air vehicle.”  The District Court determined based on the case record that Mathis had burgled structures and imposed the 15-year ACCA minimum. The U.S Court of Appeals for the Eighth Circuit affirmed.  By a vote of 5-3, the Supreme Court reversed the judgment of the Eighth Circuit. Justice Kagan delivered the opinion of the Court, which held that because the elements of Iowa’s burglary law – which applies to “any building, structure, [or] land, water, or air vehicle” – were broader than those of generic burglary, Mathis’ prior convictions under the Iowa burglary law could not give rise to an ACCA sentence. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, and Sotomayor. Justice Kennedy also filed a concurring opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Alito also filed a dissenting opinion. To discuss the case, we have Richard E. Myers II, who is Henry Brandis Distinguished Professor of Law at University of North Carolina School of Law.

On June 23, 2016, the Supreme Court decided Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges. The question before the Supreme Court was whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members. In a per curiam opinion, the judgement of the Fifth Circuit was affirmed by an equally divided court. To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

On June 27, 2016, the Supreme Court decided Voisine v. United States. Stephen Voisine was convicted in 2003 of assaulting a woman with whom he was in a domestic relationship--a misdemeanor violation of a Maine statute. In 2009 Voisine turned a rifle over to federal officials who were investigating him for a separate alleged crime. When investigators discovered Voisine’s 2003 misdemeanor assault, they charged him under 18 U.S.C. § 922(g)(9), which makes it a federal crime for a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to “possess in or affecting commerce[] any firearm or ammunition.” In turn, a "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force … committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim. Voisine challenged the § 922(g)(9) charge, arguing that under his Maine conviction offensive physical contact, as opposed to one causing bodily injury, was not a “use of physical force” and thus not a “misdemeanor crime of domestic violence” within the meaning of § 921(a)(33)(A). The district court rejected this argument and Voisine pled guilty on condition that he be able to appeal the court’s ruling. The U.S. Court of Appeals for the First Circuit affirmed the district court’s judgment, but the Supreme Court subsequently granted Voisine’s petition for certiorari, vacated the First Circuit’s judgment, and remanded the case for reconsideration in light of the intervening 2014 Supreme Court decision United States v. Castleman. That decision held the requirement of “physical force” satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction--but it did not resolve whether a conviction with the mens rea of reckless--as under the Maine statute--would qualify. On remand, the First Circuit again rejected Voisine’s challenge and held that his Maine conviction qualified as a “misdemeanor crime of domestic violence.” The Supreme Court again granted certiorari, and affirmed the judgment of the First Circuit by a vote of 6-2. Justice Kagan delivered the opinion of the Court, which held that a reckless domestic assault qualifies as a "misdemeanor crime of domestic violence" that prohibits firearms possession by convicted felons under 18 U.S.C. § 922(g)(9). The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Alito. Justice Thomas filed a dissenting opinion, in which Justice Sotomayor joined as to Parts I and II. To discuss the case, we have David Kopel, who is Adjunct Professor at University of Denver, Sturm College of Law.

On June 9, 2016, the Supreme Court decided Puerto Rico v. Sanchez Valle. Sanchez Valle was charged by Puerto Rico prosecutors with the illegal sale of weapons and ammunition without a license in violation of Puerto Rico law. While that charge was pending, he was indicted by a federal grand jury for the same offense, based on the same facts, under federal law. He pled guilty to the federal indictment but sought dismissal of the Puerto Rico charges on Double Jeopardy grounds, arguing that Puerto Rico is not a separate sovereign. The Supreme Court of Puerto Rico agreed but the Commonwealth appealed. The question before the U.S. Supreme Court was whether the Commonwealth of Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution. By a vote of 6-2, the U.S. Supreme Court affirmed the judgment of the Supreme Court of Puerto Rico. Justice Kagan delivered the opinion of the Court, which held that the Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws. The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, and Alito. Justice Ginsburg filed a concurring opinion, in which Justice Thomas joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Sotomayor joined. To discuss the case, we have Lance Sorenson, who is the Olin-Searle Fellow in Constitutional Law at Stanford University.

On June 6, 2016, the Supreme Court decided Ross v. Blake. While being moved to a prison’s segregation unit, Maryland inmate Shaidon Blake was assaulted by James Madigan, one of two guards moving him. Blake subsequently sued Madigan and fellow guard Michael Ross, alleging excessive force and failure to take protective action. A jury found Madigan liable, but Ross objected that Blake had failed to exhaust “such administrative remedies as are available” before filing suit, as required under the Prison Litigation Reform Act of 1995 (PLRA). The district court agreed with Ross and dismissed the suit against him, but the U.S. Court of Appeals for the Fourth Circuit reversed, holding that “special circumstances” can excuse a failure to comply with administrative procedural requirements—particularly where the inmate reasonably, even though mistakenly, believed he had sufficiently exhausted his remedies.  By a vote of 8-0, the Supreme Court vacated the judgment of the Fourth Circuit and remanded the case. Justice Kagan delivered the opinion of the Court, holding that the Fourth Circuit’s unwritten “special circumstances” exception was inconsistent with the text and history of the PLRA—though the Court left open on remand the question whether an administrative remedy was in fact “available” to Blake. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Alito, and Sotomayor. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed an opinion concurring in part. To discuss the case, we have Daniel McConkie, who is Associate Professor of Law at Northern Illinois University College of Law.

On June 16, 2016, the Supreme Court decided Kirtsaeng v. John Wiley & Sons. Academic textbook publisher John Wiley & Sons, Inc. (Wiley) owns the American copyright for textbooks and often assigns its rights to its foreign subsidiaries to publish, print, and sell its textbooks abroad. Supap Kirtsaeng, a Thai citizen who came to the United States in 1997 to study mathematics, asked friends and family in Thailand to buy the English-language versions of his textbooks in Thailand, where they were cheaper and mail them to him. Kirtsaeng would then sell these textbooks in America, reimburse his friends and family, and make a profit. In 2008, Wiley sued Kirtsaeng for copyright infringement. He ultimately prevailed before the U.S. Supreme Court on the question whether the “first sale” doctrine--under which the owner of a “lawfully made” copy can dispose of it without permission of the copyright owner--applies to copies of a copyrighted work lawfully made abroad. On remand, the U.S. Court of Appeals for the Second Circuit ruled that the “first sale” doctrine provided Kirstaeng with a complete defense to Wiley’s infringement claim. Kirtsaeng thereafter sought an award of attorneys’ fees pursuant to Section 505 of the Copyright Act, which allows the award of fees to a prevailing party at the court’s discretion. The federal Courts of Appeals have applied several different standards in resolving such fee requests. Here, the Second Circuit affirmed the denial of attorneys’ fees to Kirtsaeng based on the district court’s view that Wiley had taken an “objectively reasonable” position in the underlying litigation. The U.S. Supreme Court again granted certiorari, to address the following question: What is the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act? By a vote of 8-0, the Supreme Court vacated the judgment of the Second Circuit and remanded the case. Justice Kagan delivered the opinion for a unanimous Court, which held that (1) when deciding whether to award attorney's fees under the Copyright Act’s fee-shifting provision, a district court should give substantial weight to the objective reasonableness of the losing party's position, while still taking into account all other circumstances relevant to granting fees; and (2) while the Second Circuit properly calls for district courts to give "substantial weight" to the reasonableness of a losing party's litigating positions, its language at times suggests that a finding of reasonableness raises a presumption against granting fees, and that goes too far in cabining the district court's analysis. To discuss the case, we have Christopher M. Newman, who is Associate Professor of Law at George Mason University School of Law.

On June 20, 2016, the Supreme Court decided Utah v. Strieff. A police officer detained Edward Strieff after seeing him leave a residence that the officer believed, based on an anonymous tip and his own surveillance, was a base for drug dealing. A relay of Strieff’s identification to a police dispatcher revealed an outstanding warrant for a traffic violation. The officer then arrested Strieff and searched him, discovering methamphetamine and drug paraphernalia. Strieff ultimately persuaded the Utah Supreme Court to order that evidence suppressed as the fruit of an unlawful stop. By a vote of 5-3, the U.S. Supreme Court reversed the judgment of the Utah Supreme Court. Justice Thomas delivered the opinion of the Court, which held that the evidence the officer seized as part of the search incident to arrest was admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Alito. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined as to Parts I, II, and III. Justice Kagan filed a dissenting opinion, in which Justice Ginsburg joined. To discuss the case, we have Orin S. Kerr, who is Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

On May 31, 2016, the Supreme Court decided Lynch v. Arizonawithout oral argument. A jury convicted Shawn Patrick Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State of Arizona sought the death penalty, and, before penalty phase began, moved successfully to prevent Lynch’s counsel from informing the jury that the only alternative to a death sentence was life without parole. When the first jury failed to reach a unanimous verdict, a second jury sentenced Lynch to death. After that sentence was vacated by a state appellate court due to errors in the jury instructions, a third penalty phase jury was convened and again sentenced Lynch to death.   On appeal, Lynch, invoking the U.S. Supreme Court’s decision in Simmons v. South Carolina, argued that the trial court’s refusal to allow mention of his ineligibility for parole violated his federal Due Process rights. In Simmons, the Court stated 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.’” The Arizona Supreme Court rejected Lynch’s argument and affirmed his death sentence. By a of vote of 6-2, the U.S. Supreme Court reversed the Arizona Supreme Court’s judgment and remanded the case, holding in a per curiam opinion that the Arizona Supreme Court had erred in its attempt to distinguish Lynch’s case from the situation in Simmons. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. To discuss the case, we have Marah McLeod, who is an Associate Professor at Notre Dame Law School.

On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies, LLC v. Lee. In 2011, the America Invents Act created an expedited procedure, known as inter partes review, to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity. The Patent Trial and Appeal Board, contained within the U.S. Patent and Trademark Office (PTO), hears these disputes rather than a federal district court. When construing patent claims, the Board applies a “broadest reasonable interpretation” standard rather than the “plain and ordinary meaning” standard typically applied by federal courts.  Here, Cuozzo Speed Technologies, LLC. (Cuozzo) owns a speed limit indicator patent. Garmin International, Inc. (Garmin) petitioned the Board for inter partes review (IPR) of claims regarding the patent. The Board found that certain claims were unpatentable and denied Cuozzo’s request to replace those claims with several others. Cuozzo appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, which (1) held that it lacked authority to review the PTO’s decision to institute IPR, and (2) affirmed the Board’s final determination, finding no error in its application of the “broadest reasonable interpretation” standard. There were two questions before the Supreme Court: (1) Whether the Federal Circuit erred in holding that the Board may, in IPR proceedings, construe claims according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the Federal Circuit erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the decision to institute the IPR proceeding is judicially unreviewable. By a vote of 8-0 and 6-2, the Supreme Court affirmed the judgment of the Federal Circuit. Justice Breyer delivered the opinion of the Court, which held that the underlying statute precluded judicial review of the kind of claim at issue here, involving the PTO’s decision to institute IPR. The Court further concluded that the PTO was authorized to issue the regulation, setting forth the “broadest reasonable interpretation” standard.  A unanimous Court joined Justice Breyer’s opinion with respect to Parts I and III. Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, and Kagan joined the opinion with respect to Part II. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in part and dissenting in part, in which Justice Sotomayor joined. To discuss the case, we have Gregory Dolin, who is Assistant Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On June 13, 2016, the Supreme Court decided Puerto Rico v. Franklin California Tax-Free Trust (consolidated with its companion case,Acosta-Febo v. Franklin California Tax-Free Trust). Concerned that its public utilities were on the verge of insolvency but could not obtain Chapter 9 bankruptcy relief under federal law, the Commonwealth of Puerto Rico attempted to circumvent this obstacle by passing its own municipal bankruptcy law. This law, the Puerto Rico Public Corporation Debt Enforcement and Recovery Act expressly provides different protections for creditors than those in federal Chapter 9.  Investors who collectively hold nearly two billion dollars in bonds issued by one of Puerto Rico’s public utilities worried that it might seek relief under the new Puerto Rico law and sued in federal court, challenging the law’s validity and seeking injunctive relief. The district court enjoined the enforcement of the new law and the U.S. Court of Appeals for the First Circuit affirmed. Puerto Rico sought certiorari. The question before the Supreme Court was whether Chapter 9 of the federal Bankruptcy Code preempts the Puerto Rico statute creating a mechanism for the Commonwealth’s public utilities to restructure their debts. By a vote of 5-2, the Supreme Court affirmed the judgment of the First Circuit. Justice Thomas delivered the opinion of the Court, which held that in excluding Puerto Rico from the definition of a “state” for purposes of defining who may be a Chapter 9 debtor, Congress prevented Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. But because Puerto Rico remains a “state” for other purposes of Chapter 9, the Court indicated, Chapter 9’s preemption provision still bars Puerto Rico from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utilities companies. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Kagan. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg. Justice Alito took no part in the consideration or decision of the cases. To discuss the case, we have David Skeel, who is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, and who submitted an amicus brief in support of the Commonwealth of Puerto Rico.

On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co., Inc. Hawkes Co. (Hawkes) applied to the Army Corps of Engineers (Corps) for a Clean Water Act permit to begin extracting peat from wetlands in northern Minnesota it was preparing to purchase. After attempting to discourage the purchase, and initiating various administrative processes, the Corps ultimately issued an Approved Jurisdictional Determination (Approved JD) asserting that the wetland contained waters of the United States, thereby creating a substantial barrier to development by Hawkes. Hawkes filed suit in federal district court to challenge the Approved JD, arguing that it conflicted with the U.S. Supreme Court’s interpretation of jurisdiction under the Clean Water Act. The district court dismissed the suit on the grounds that the Approved JD was not a “final agency action” as defined by the Administrative Procedure Act, and therefore not yet subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit reversed that judgment and remanded the case, holding that an Approved JD did constitute final agency action ripe for judicial review. The question before the Supreme Court was whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is therefore subject to judicial review under the Administrative Procedure Act. By a vote of 8-0, the Supreme Court affirmed the judgment of the Eighth Circuit. Chief Justice Roberts delivered the opinion of the Court, which held that an Approved JD is a final agency action judicially reviewable under the Administrative Procedure Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Kennedy filed a concurring opinion, in which Justices Thomas and Alito joined. Justice Kagan also filed a concurring opinion. Justice Ginsburg filed an opinion concurring in part and concurring in the judgment. To discuss the case, we have Mark Miller, who is Managing Attorney, Atlantic Center, Pacific Legal Foundation.

On June 9, 2016, the Supreme Court decided Dietz v. Bouldin. Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz’ medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz’s medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties’ consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages. After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building—including one who may have left for a short time and returned. Over the objection of Dietz’s counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed.  The question before the Supreme Court was whether a federal district court can recall a jury it has discharged, or whether the court can remedy the error only by ordering a new trial. By a vote of 6-2, the Supreme Court affirmed the judgment of the Ninth Circuit. Justice Sotomayor delivered the opinion of the Court, which held that a federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict. The district court did not abuse that power here. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Kennedy joined. To discuss the case, we have Brad Shannon, who is Professor of Law at Florida Coastal School of Law.

On June 13, 2016, the Supreme Court decided United States v. Bryant. Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. He did not have the benefit of counsel with respect to these convictions, though they complied with the Indian Civil Rights Act (ICRA). Having made further domestic assaults in 2011, Bryant was charged with violating 18 U.S.C. §117(a), which makes it a federal crime for any person to “commi[t] a domestic assault within...Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” He argued that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element. Although the district court rejected Bryant’s argument the U.S. Court of Appeals for the Ninth Circuit agreed with him, vacating his conviction and directing dismissal of the indictment.  By a vote of 8-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. Justice Ginsburg delivered the opinion for a unanimous Court, which held that because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Justice Thomas filed a concurring opinion. To discuss the case, we have Thomas F. Gede, who is Principal at Morgan Lewis Consulting LLC and of counsel at Morgan, Lewis & Bockius LLP.

On June 16, 2016, the Supreme Court decided Universal Health Services v. United States ex rel. Escobar. This case involves the federal False Claims Act, which allows a private party to bring a “qui tam” action alleging that the defendant defrauded the federal government. In a “qui tam” action the government remains the actual plaintiff, but the private party--referred to as the “Relator”--typically litigates the case for the government’s benefit and receives a specified share of any recovery.   Here, Relators alleged that their daughter--who died of a seizure in 2009--was treated by various unlicensed and unsupervised staff at Arbour Counseling Services, a facility owned by Universal Health Services, in violation of Massachusetts regulations. They argued that Arbour's alleged noncompliance with various supervision and licensing requirements rendered its reimbursement claims submitted to the state Medicaid agency actionably false under both the federal and Massachusetts False Claims Acts. The district court dismissed the complaint for failure to state a claim, holding that regulatory noncompliance alone was inadequate to render Arbour’s reimbursement claims “false.” The U.S. Court of Appeals for the First Circuit, however, reversed that judgment and remanded the case. Compliance with the regulations at issue, the court concluded, was a condition of government reimbursement to Arbour. By submitting reimbursement claims, the Court reasoned, Arbour implicitly certified compliance with that condition. Thus, by pleading regulatory noncompliance Relators adequately pleaded falsity. By a vote of 8-0, the Supreme Court vacated the judgment of the First Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Thomas, a unanimous Court agreed that the implied false certification theory can be a basis for liability under the False Claims Act--when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose non-compliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services. But liability under the False Claims Act for failing to disclose violations of legal requirements, the Court explained, does not turn upon whether those requirements were expressly designated as conditions of payment. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision.  To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

On June 23, 2016, the Supreme Court decided United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014, DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims. The Fifth Circuit did not reach the Take Care clause claim. The four questions before the Supreme Court in this case were: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief. An equally divided Supreme Court affirmed the judgment of the Fifth Circuit in a single sentence per curiam opinion, thereby leaving the district court’s injunction in place To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

On June 27, 2016, the Supreme Court decided Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation.  The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility. The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, ultimately reversing that judgment by a vote of 5-3 and remanding the case. Justice Breyer delivered the opinion of the Court, holding that petitioners’ constitutional claims were not barred by res judicata, and that both the admitting-privileges and the ambulatory surgical-center requirements placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and violated the Constitution. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.

On June 27, 2016, the Supreme Court decided McDonnell v. United States. Robert F. McDonnell, former Governor of Virginia, was convicted in a jury trial of eleven counts of corruption. During the trial prosecutors sought to prove that McDonnell and his wife Maureen, while he was Governor, accepted money and lavish gifts in exchange for efforts to assist a Virginia company in securing state university testing of a dietary supplement the company had developed. The McDonnells, prosecutors argued, took “official action” on behalf of the company in exchange for money, campaign contributions, or other things of value, in violation of various federal statutes. Robert McDonnell was sentenced to two years in prison.  The U.S. Court of Appeals for the Fourth Circuit affirmed McDonnell’s conviction, but the U.S. Supreme Court granted his request to remain out of prison pending resolution of his case. The question before the Supreme Court was whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional. By a vote of 8-0, the Supreme Court vacated the judgment of the Fourth Circuit and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, holding that  “an official act' is a decision or action on a 'question, matter, cause, suit, proceeding or controversy.' The 'question, matter, cause, suit, proceeding or controversy' must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is 'pending' or 'may by law be brought' before a public official. To qualify as an 'official act,' the public official must make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy,' or agree to do so.” Given that the lower courts applied too broad an interpretation of the term “official act,” the Chief Justice explained, the jury instructions were erroneous and it may have convicted Governor McDonnell for conduct that was not unlawful. The Court therefore vacated his convictions and remanded the case for a determination as to whether there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an “official act”--and thus allow for a new trial--or whether the charges against him must be dismissed.  To discuss the case, we have Gregory G. Katsas, who is Partner at Jones Day.

On June 23, 2016, the Supreme Court decided Fisher v. Univ. of Texas at Austin. This is the second time the case has come before the high court. Abigail Fisher, a white female, applied for admission to the University of Texas at Austin (the University) but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” On its second trip to the Supreme Court, the question was whether the Fifth Circuit’s re-endorsement of the University’s use of racial preferences could be sustained under the Equal Protection Clause. By a vote of 4-3, the Supreme Court affirmed the judgment of the Fifth Circuit. Justice Kennedy delivered the opinion of the court, which held that the race-conscious admissions program in use at the time of Fisher’s application was narrowly tailored and lawful under the Equal Protection Clause. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kagan took no part in the consideration or decision of the case. To discuss the case, we have Roger B. Clegg, who is President and General Counsel, Center for Equal Opportunity.

On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially.   By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed. Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case. To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation.

On March 1, 2016, the Supreme Court decided Gobeille v. Liberty Mutual Insurance Company. Liberty Mutual Insurance Company (Liberty Mutual) operates a self-insured employee health plan through a third-party administrator. Vermont state law requires such plans to file with the State reports concerning claims data and certain other information. When Vermont subpoenaed claims data from Liberty Mutual’s third-party administrator, Liberty Mutual sued and argued that the federal Employment Retirement Income Security Act of 1974 (ERISA) preempted the Vermont statute. The district court found no preemption and ruled in favor of Vermont. On appeal a divided panel of the U.S. Court of Appeals for the Second Circuit reversed and held that ERISA preemption did apply. The question before the Supreme Court was whether the Second Circuit erred in holding that ERISA preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Kennedy delivered the opinion of the Court, which held that ERISA’s express preemption clause requires invalidation of the Vermont reporting statute as applied to ERISA plans. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Alito, and Kagan. Justices Thomas and Breyer also filed concurring opinions. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. To discuss the case, we have Joshua P. Ackerman, who is an Associate at Bartlit Beck Herman Palenchar & Scott LLP.

On June 13, 2016, the Supreme Court decided Halo Electronics v. Pulse Electronics, which was consolidated with Stryker Corp. v. Zimmer. Both of these cases involved claims of patent infringement relating to the sale or marketing of various inventions. Both also involved a determination by the U.S. Court of Appeals for the Federal Circuit that an award of enhanced damages for infringement under 35 U.S.C. § 284 was not appropriate, after applying the Circuit’s two-part objective/subjective test for willful or bad-faith infringement set forth in In re Seagate Tech., LLC. The question before the Supreme Court was whether the Federal Circuit’s refusal to allow enhanced damages absent a finding of willfulness under its two-part test was inconsistent with § 284, which provides that in a case of infringement, courts “may increase the damages up to three times the amount found or assessed.”  By a vote of 8-0, the Supreme Court vacated the Federal Circuit’s judgment and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, which held that the Federal Circuit’s Seagate test unduly confined the ability of district courts to exercise the discretion conferred on them by § 284. Justice Breyer filed a concurring opinion in which Justices Kennedy and Alito joined. To discuss the case, we have Gregory Dolin who is Associate Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On April 20, 2016, the Supreme Court heard oral argument inBernard v. Minnesota, which was consolidated with Birchfield v. North Dakota and Beylund v. Levi. In Bernard, William Robert Bernard, Jr., admitted he had been drinking, but he denied driving his truck and refused to perform a field sobriety test. He was arrested on suspicion of driving while impaired and taken to the police station, where he refused to consent to a chemical test in violation of Minnesota state law. Bernard was charged with two counts of first-degree test refusal pursuant to state law. InBirchfield, Danny Birchfield was arrested after failing field sobriety tests after he had driven his vehicle into a ditch, but he refused to consent to a chemical test, resulting in a misdemeanor charge. He moved to dismiss the charge and claimed that the state law in question violated his Fourth Amendment right against unreasonable search and seizure. In Beylund, Steve Beylund consented to a blood alcohol to test to confirm he was driving under the influence, but only after being informed it was a criminal offense to refuse a blood alcohol test in North Dakota. The test confirmed he was over the legal limit, and Beylund was charged with driving under the influence. The men in these cases challenged state statutes criminalizing refusal to submit to a chemical test, arguing among other things that the statutes violated the Fourth Amendment. The Supreme Court of Minnesota and the Supreme Court of North Dakota rejected their respective challenges. The question before the U.S. Supreme Court in these consolidated cases is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. To discuss the case, we have Jonathan Ellis, who is an Associate at Latham & Watkins.

On May 19, 2016, the Supreme Court decided CRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST V(CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them. In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million. On a second appeal, the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for a fees award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation.  The U.S. Supreme Court granted CRST’s subsequent petition for certiorari, vacating the judgment of the Eighth Circuit and remanding the case by a vote of 8-0. Justice Kennedy’s opinion for a unanimous Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party for purposes of awarding attorney’s fees award. Justice Thomas filed a concurring opinion. To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day.

On June 6, 2016, the Supreme Court decided Simmons v. Himmelreich. This case arose out of lawsuits filed by federal prisoner Walter Himmelreich after he was assaulted by a fellow prisoner. Himmelreich’s initial lawsuit, filed against the United States, was ultimately dismissed pursuant to an exception under the Federal Tort Claims Act (FTCA) for certain discretionary actions by prison officials. While that suit was still pending, however, Himmelreich filed a second suit: a constitutional tort action against individual Bureau of Prisons employees. When Himmelreich’s initial suit was dismissed, these employee defendants argued that his action against them was foreclosed by the FTCA’s “judgment bar” provision, under which a judgment in an FTCA suit forecloses any future suit against individual employees. The District Court granted summary judgment in favor of the employees. On appeal the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. The Supreme Court then granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “exception” to the FTCA. By a vote of 8-0, the Supreme Court affirmed the judgment of the Sixth Circuit and remanded the case. Justice Sotomayor delivered the opinion for a unanimous Court, holding that the FTCA’s judgment bar provision does not apply to claims dismissed because they fall within an FTCA "exception." To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

On June 9, 2016, the Supreme Court decided Williams v. Pennsylvania. Terrance Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court of Pennsylvania affirmed Williams’ conviction and sentence, and his initial attempts to obtain state postconviction relief failed. His subsequent petition for federal habeas relief also failed. He again sought post-conviction penalty-related relief in state court and prevailed in the Court of Common Pleas on a claim of unlawful evidence suppression. On appeal, however, the Pennsylvania Supreme Court reversed the grant of relief and lifted the stay of execution (though a temporary reprieve was later granted by the governor for other reasons). The Chief Justice of the Pennsylvania Supreme Court, Ronald Castille, who had joined the opinion reversing the grant of relief to Williams, had also been the District Attorney for Philadelphia during Williams’ trial, sentencing, and appeal. In that capacity, Castille had authorized his office to seek the death penalty for Williams. Williams had moved to have Chief Justice Castille recuse himself from hearing the appeal of post-conviction relief, but Castille declined to do so. The central question before the U.S. Supreme Court was whether Justice Castille’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. By a vote of 5-3, the Supreme Court vacated the decision of the Pennsylvania Supreme Court and remanded the case. Justice Kennedy delivered the opinion of the Court, which held that under the Due Process Clause, where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Kennedy’s majority opinion. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Thomas also filed a dissenting opinion. To discuss the case, we have Cassandra Burke Robertson, who is Professor of Law, Laura B. Chisolm Distinguished Research Scholar, and Director, Center for Professional Ethics at Case Western Reserve University School of Law.

On May 23, 2016, the Supreme Court decided Wittman v. Personhuballah. In 2012, the Virginia State Legislature adopted a redistricting plan that altered the composition of the Third Congressional District by increasing the percentage of African-American voters in the district. In 2013, a number of Third District residents sued state election officials, arguing that the District was racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court agreed and held the redistricting plan to be unconstitutional, but the U.S. Supreme Court vacated that judgment and remanded the case for reconsideration in light of its intervening decision in Alabama Legislative Black Caucus v. Alabama. On remand, the district court again held that the redistricting plan was unconstitutional and ordered the Virginia General Assembly to devise a remedial plan. When the Assembly did not do so the court devised its own remedial plan and ordered election officials to implement it. Ten Members of Congress from Virginia, intervenors in the District Court below, appealed its rejection of the 2012 plan to the Supreme Court, alleging various errors in the District Court’s reasoning. By a vote of 8-0, the Supreme Court dismissed the appeal. Writing for a unanimous Court, Justice Breyer indicated that the intervenors lacked standing to pursue their appeal. To discuss the case, we have Derek Muller, who is Associate Professor of Law at Pepperdine University School of Law.

On March 22, 2016, the Supreme Court decided Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the U.S. Court of Appeals for the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. The question before the Supreme Court was whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System. By a vote of 8-0, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, rejecting the Ninth Circuit’s reading of ANILCA. Taken as whole, the Court indicated, ANILCA “contemplates the possibility that all the land within the boundaries of conservation system units in Alaska may be treated differently from federally managed preservation areas across the country, and that ‘non-public’ lands within the boundaries of those units may be treated differently from ‘public’ lands within the unit.” To discuss the case, we have the Honorable Gale Norton, who served as the 48th U.S. Secretary of the Interior.

On May 16, 2016, the Supreme Court decided Husky International Electronics, Inc. v. Ritz. Between 2003 and 2007 Husky International Electronics sold and delivered electronic device components worth more than $160,000 to Chrysalis Manufacturing Corp. Chrysalis, then under the financial control of Daniel Ritz, failed to pay for the goods and Ritz encouraged the transfer of funds from Chrysalis to various other companies. Ritz held substantial ownership stakes in these companies, which had not given reasonably equivalent value in exchange for the Chrysalis funds. In May 2009, Husky sued Ritz in federal district court, seeking to hold him personally liable for Chrysalis’s debt. Ritz filed a voluntary Chapter 7 bankruptcy petition, and Husky then filed a complaint in the bankruptcy court alleging actual fraud, to preclude a discharge of Ritz’s debts. The bankruptcy court ruled that Husky had failed to prove actual fraud, however, and the district court affirmed that decision. The U.S. Court of Appeals for the Fifth Circuit likewise affirmed the lower court judgments, finding no record evidence of a false representation by the debtor, which the Fifth Circuit deemed a necessary predicate to establish actual fraud. The question before the Supreme Court was whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor. By a vote of 7-1, the Supreme Court reversed the judgment of the Fifth Circuit and remanded the case. Justice Sotomayor delivered the opinion of the Court, which held that the term "actual fraud" in Section 523(a)(2)(A) of the Bankruptcy Code encompasses fraudulent conveyance schemes, even when those schemes do not involve a false representation. The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion. To discuss the case, we have Zvi Rosen, who is a visiting scholar at Hofstra University Maurice A. Deane School of Law.

On May 16, 2016, the Supreme Court decided Sheriff v. Gillie. This case involves litigation between debtors to Ohio institutions and special counsel who sought to collect money owed to the institutions. Two questions were before the Supreme Court: (1) Do special counsel appointed by Ohio’s Attorney General qualify as “state officers” exempt from the Fair Debt Collection Practices Act’s (FDCPA) governance? (2) Is special counsel’s use of the Attorney General’s letterhead a false or misleading representation proscribed by FDCPA §1692e? The U.S. Court of Appeals for the Sixth Circuit held that special counsel were independent contractors who could not claim an FDCPA exemption and remanded the case for trial on the deceptiveness issue. By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit and remanded the case. Writing for a unanimous Court, Justice Ginsburg explained that--even assuming for the sake of argument special counsel do not rank as “state officers”--their use of the Attorney General’s letterhead did not offend §1692e. Not fairly described as “false” or “misleading,” the use of the letterhead accurately conveyed that special counsel, in seeking to collect debts owed to the State, do so on behalf of, and as instructed by the Attorney General.  To discuss the case, we have Jennifer L. Mascott, who is an Olin/Searle Fellow in Law at Georgetown University Law Center.

On April 4, 2016, the Supreme Court decided Woods v. Ethertonwithout oral argument. Timothy Etherton was convicted in Michigan state court of possession with intent to distribute cocaine, and the conviction was affirmed on direct appeal. His efforts to obtain post-conviction relief in state court--which related to his lawyer’s failure to raise a Confrontation Clause objection to the admission into evidence of the anonymous tip that led to his arrest--were rejected. A federal district court also rejected Etherton’s subsequent attempt to obtain federal habeas relief, but the U.S. Court of Appeals for the Sixth Circuit reversed that judgment. Etherton’s appellate counsel had been constitutionally ineffective, the Sixth Circuit concluded, and no fairminded jurist could conclude otherwise.  By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit in a per curiam opinion issued without oral argument. Without reaching the Sixth Circuit’s holding that counsel had been constitutionally ineffective, the Supreme Court indicated that the Sixth Circuit had failed to apply the appropriate, deferential standard of review required under the Antiterrorism and Effective Death Penalty Act. With that in mind the Supreme Court explained, it would not be objectively unreasonable for a fair-minded judge to conclude that counsel’s failure to raise a Confrontation Clause objection to admission of the anonymous tip was due not to incompetence, but because the facts in the tip were uncontested and in any event consistent with Etherton’s defense. To discuss the case, we have Ronald Eisenberg, who is Deputy District Attorney, Philadelphia District Attorney’s Office.

On May 16, 2016, the Supreme Court decided Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners includingPriests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, andLittle Sisters of the Poor Home for the Aged. The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Federal regulations require petitioners to cover these contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners resisted, asserting that submitting the notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993. The ensuing litigation yielded different outcomes in different U.S. Courts of Appeals, and the Supreme Court granted certiorari. Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”  After receiving the supplemental briefs the Supreme Court vacated the judgments of the Courts of Appeals by a vote of 8-0 and remanded the cases to the Third, Fifth, Tenth, and D.C. Circuits, respectively. The Court’s per curiam opinion explained that “‘the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Furthermore, the Court indicated it was expressing no view on the merits of the cases and stated that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA-approved contraceptives.’" At the same time, the Court noted, throughout this litigation, petitioners had made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds” and nothing in the Court’s opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward.” And because the Government may rely on this notice, the Court indicated, “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.” Justice Sotomayor issued a concurring opinion, joined by Justice Ginsburg. To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

On April 26, 2016, the Supreme Court decided Heffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent. Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him. Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. The question before the Supreme Court was whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate. By a vote of 6-2, the Supreme Court reversed the decision of the Third Circuit and remanded the case. Justice Breyer delivered the opinion of the Court, which held that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior. Justice Breyer was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

On April 19, 2016, the Supreme Court decided Hughes v. Talen Energy Marketing and several consolidated companion cases. The Court considered whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court were: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis.  By a vote of 8-0, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Ginsburg delivered the opinion of the Court, holding that Maryland's regulatory program--which disregards an interstate wholesale rate set by FERC--is preempted by the Federal Power Act, which vests in FERC exclusive jurisdiction over interstate wholesale electricity rates. Justice Ginsburg’s opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment.  To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

On April 20, 2016, the Supreme Court decided Bank Markazi v. Peterson. The Iran Threat Reduction and Syria Human Rights Act of 2012 makes a designated set of assets available to satisfy the judgments gained in separate actions by victims of terrorist acts sponsored by Iran. Section 8772(a)(2) of the statute requires a court, before allowing execution against these assets, to determine, inter alia, “whether Iran holds equitable title to, or the beneficial interest in, the assets.” Respondents—more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members—hold judgments against Iran and moved for turnover of about $1.75 billion in bond assets held in a New York bank account allegedly owned by Bank Markazi, the Central Bank of Iran. When respondents invoked §8772, Bank Markazi argued that the statute was unconstitutional, contending that Congress had usurped the judicial role by directing a particular result in a pending enforcement proceeding and thereby violating the separation of powers.  The District Court disagreed and upheld the statute. The U.S. Court of Appeals for the Second Circuit affirmed, and Bank Markazi took its objection to the U.S. Supreme Court. By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Ginsburg delivered the opinion of the Court, which held that Section 8772 does not violate the separation of powers. Justice Ginsburg was joined by Justices Kennedy, Breyer, Alito, and Kagan. Justice Thomas joined the majority opinion in all but Part II-C. Chief Justice Roberts filed a dissenting opinion in which Justice Sotomayor joined. To discuss the case, we have Erik Zimmerman, who is an attorney at Robinson, Bradshaw & Hinson, PA.

On May 2, 2016, the Supreme Court decided Ocasio v. United States. Former police officer Samuel Ocasio challenged his conviction under the Hobbs Act for conspiracy to commit extortion, which arose from an alleged kickback scheme under which police officers funneled wrecked automobiles to a particular repair shop in exchange for monetary payments. He was charged with obtaining money from the shop owners under color of official right and of conspiring to violate the Hobbs Act. The District Court rejected Ocasio’s argument that a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. He was convicted on all counts and the U.S. Court of Appeals for the Fourth Circuit affirmed the convictions. The question before the Supreme Court was whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. By a vote of 5-3, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Alito delivered the opinion of the Court, which held that a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Justice Alito’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Breyer filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion, in which Chief Justice Roberts joined. To discuss the case, we have Timothy O’Toole, who is a Lawyer at Miller & Chevalier.

On April 4, 2016, the Supreme Court decided Evenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries. Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population. A three-judge district court ruled in favor of the state officials. On appeal, the question before the Supreme Court was whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts. By a vote of 8-0, the Supreme Court affirmed the judgment of the three-judge district court. Justice Ginsburg delivered the opinion of the Court, holding that constitutional history, precedent, and longstanding practice demonstrate that a state may draw its legislative districts based on total population. The Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan joined Justice GInsburg’s opinion for the Court. Justice Thomas filed an opinion concurring in the judgment. Justice Alito also filed an opinion concurring in the judgment, which Justice Thomas joined except as to Part III-B. To discuss the case, we have Andrew Grossman, who is Partner at Baker & Hostetler, LLP.

On April 27, 2016, the Supreme Court heard oral argument inMcDonnell v. United States. Robert F. McDonnell, former Governor of Virginia, was convicted in a jury trial of eleven counts of corruption.  During the trial, prosecutors sought to prove that McDonnell and his wife Maureen while he was Governor, accepted money and lavish gifts in exchange for efforts to assist a Virginia company in securing state university testing of a dietary supplement the company had developed. The McDonnells, prosecutors argued, took “official action” on behalf of the company in exchange for money, campaign contributions, or other things of value, in violation of various federal statutes.  Robert McDonnell was sentenced to two years in prison.  The U.S. Court of Appeals for the Fourth Circuit affirmed McDonnell’s conviction, but the U.S. Supreme Court granted his request to remain out of prison until the Court resolves his appeal. The question before the Supreme Court is whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional. To discuss the case, we have William J. Haun, who is an associate at Hunton & Williams, LLP.

On April 18, 2016, the Supreme Court heard oral arguments inUnited States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014 DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).. Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims.  The Fifth Circuit did not reach the Take Care clause claim. The four questions before the Supreme Court in this case are: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief. To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

On April 25, 2016, the Supreme Court heard oral arguments inCuozzo Speed Technologies, LLC v. Lee. In 2011 the America Invents Act created an expedited procedure, known as inter partes review, to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity. The Patent Trial and Appeal Board, contained within the U.S. Patent and Trademark Office (PTO), hears these disputes rather than a federal district court. When construing patent claims, the Board applies a “broadest reasonable interpretation” standard rather than the “plain and ordinary meaning” standard typically applied by federal courts.  Here, Cuozzo Speed Technologies, LLC. (Cuozzo) owns a speed limit indicator patent. Garmin International, Inc. (Garmin) petitioned the Board for inter partes review (IPR) of claims regarding the patent. The Board found that certain claims were unpatentable, and denied Cuozzo’s request to replace those claims with several others. Cuozzo appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, which (1) held that it lacked authority to review the PTO’s decision to institute IPR, and (2) affirmed the Board’s final determination, finding no error in its application of the “broadest reasonable interpretation” standard. There are two questions before the Supreme Court: (1) Whether the Federal Circuit erred in holding that the Board may, in IPR proceedings, construe claims according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the Federal Circuit erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the decision to institute the IPR proceeding is judicially unreviewable. To discuss the case, we have Gregory Dolin, who is Assistant Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On April 25, 2016, the Supreme Court heard oral arguments inKirtsaeng v. John Wiley & Sons. Academic textbook publisher John Wiley & Sons, Inc. (Wiley) owns the American copyright for textbooks and often assigns its rights to its foreign subsidiaries to publish, print, and sell its textbooks abroad. Supap Kirtsaeng, a Thai citizen who came to the United States in 1997 to study mathematics, asked friends and family in Thailand to buy the English-language versions of his textbooks in Thailand, where they were cheaper and mail them to him. Kirtsaeng would then sell these textbooks in America, reimburse his friends and family, and make a profit. In 2008, Wiley sued Kirtsaeng for copyright infringement. He ultimately prevailed before the U.S. Supreme Court on the question whether the “first sale” doctrine--under which the owner of a “lawfully made” copy can dispose of it without permission of the copyright owner--applies to copies of a copyrighted work lawfully made abroad. On remand, the U.S. Court of Appeals for the Second Circuit ruled that the “first sale” doctrine provided Kirstaeng with a complete defense to Wiley’s infringement claim. Kirtsaeng thereafter sought an award of attorneys’ fees pursuant to Section 505 of the Copyright Act, which allows the award of fees to a prevailing party at the court’s discretion. The federal Courts of Appeals have applied several different standards in resolving such fee requests. Here, the Second Circuit affirmed the denial of attorneys’ fees to Kirtsaeng based on the district court’s view that Wiley had taken an “objectively reasonable” position in the underlying litigation. The U.S. Supreme Court again granted certiorari, to address the following question: What is the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act? To discuss the case, we have Christopher M. Newman, who is Associate Professor of Law at George Mason University School of Law.

On January 12, 2016, the Supreme Court decided Bruce v. Samuels. The Prison Litigation Reform Act of 1995 provides that those prisoners qualified to proceed in forma pauperis (IFP) must nonetheless pay an initial partial filing fee, set as “20 percent of the greater of” the average monthly deposits in the prisoner’s account or the average monthly balance of the account over the preceding six months. They must then pay the remainder of the fee in monthly installments of “20 percent of the preceding month’s income credited to the prisoner’s account.” The initial partial fee is assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. This case involves a dispute over the calculation of subsequent monthly installment payments when more than one fee is owed. Petitioner Antoine Bruce, a federal inmate, contends that he should only have to pay 20 percent of his monthly income without regard to the number of cases filed for which fees are owed. The U.S. Court of Appeals for the District of Columbia Circuit disagreed and adopted the per-case approach advocated by the government, in which a prisoner must pay 20 percent of his monthly income for each case he has filed. Granting certiorari to resolve a split in the Courts of Appeals on this issue, the Supreme Court unanimously affirmed the judgment of the D.C. Circuit. Justice Ginsburg delivered the opinion of the Court, holding that monthly installment payments, like the initial partial fee, are to be assessed on a per-case basis. To discuss the case, we have Elbert Lin, who is the Solicitor General of West Virginia. 

On March 1, 2016, the Supreme Court decided Lockhart v. United States. Petitioner Avondale Lockhart pleaded guilty to possessing child pornography. Because Lockhart had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to a 10-year mandatory minimum sentence enhancement, which is triggered by prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the District Court applied the mandatory minimum. The U.S. Court of Appeals for the Second Circuit affirmed.  By a vote of 6-2, the U.S. Supreme Court affirmed the judgment of the Second Circuit. Justice Sotomayor delivered the opinion of the Court, holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.” Thus, Lockhart’s prior conviction for sexual abuse of an adult was encompassed by §2252(b)(2) and the 10-year mandatory minimum applied. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Ginsburg, and Alito. Justice Kagan filed a dissenting opinion in which Justice Breyer joined. To discuss the case, we have Erin Sheley, who is Assistant Professor at University of Calgary Faculty of Law.

On February 29, 2016, the Supreme Court heard oral arguments inWilliams v. Pennsylvania. Terrance Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court of Pennsylvania affirmed Williams’ conviction and sentence, and his initial attempts to obtain state postconviction relief failed. His subsequent petition for federal habeas relief also failed.  He again sought post-conviction penalty-related relief in state court and prevailed in the Court of Common Pleas on a claim of unlawful evidence suppression. On appeal, however, the Pennsylvania Supreme Court reversed the grant of relief and lifted the stay of execution (though a temporary reprieve was later granted by the governor for other reasons). The Chief Justice of the Pennsylvania Supreme Court, Ronald Castille--who had joined the opinion reversing the grant of relief to Williams--had also been the District Attorney for Philadelphia during Williams’ trial, sentencing, and appeal. In that capacity, Castille had authorized his office to seek the death penalty for Williams.  Williams had moved to have Chief Justice Castille recuse himself from hearing the appeal of post-conviction relief, but Castille declined to do so. The question now before the U.S. Supreme Court is twofold: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutor’s office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multi-member tribunal deciding a capital case, regardless of whether his vote is ultimately decisive. To discuss the case, we have Cassandra Burke Robertson, who is Professor of Law, Laura B. Chisolm Distinguished Research Scholar, and Director, Center for Professional Ethics at Case Western Reserve University School of Law.

On April 18, 2016, the Supreme Court decided Welch v. United States. Gregory Welch pleaded guilty to the charge of being a felon in possession of a firearm, in violation of federal law. Because Welch had three prior felony convictions, the district court determined that the Armed Career Criminal Act (ACCA) required that he be sentenced to a minimum of 15 years in prison. Welch appealed, arguing that his conviction for robbery in Florida state court did not qualify as a predicate offense for the purposes of ACCA because, at the time he was convicted, Florida state law allowed for a robbery conviction with a lower level of force than the federal law required to qualify as a predicate offense. The U.S. Court of Appeals for the Eleventh Circuit, however, affirmed the district court’s judgment, concluding that the minimum elements for conviction under the Florida law established a “serious risk of physical injury to another” and therefore qualified it as a predicate offense for purposes of ACCA. Welch’s subsequent attempt to obtain habeas relief from the district court was denied, and the Eleventh Circuit rejected his appeal, but the Supreme Court granted certiorari.  The two questions before the Supreme Court are: (1) Whether Johnson v. United States, 135 S. Ct. 2551 (2015)—which held that the residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague—announced a new “substantive” rule of constitutional law that is retroactively applicable in an initial motion to vacate a federal prisoner’s ACCA-enhanced sentence under 28 U.S.C. 2255(a); and (2) Whether petitioner’s conviction for robbery under Florida state law qualifies as a violent felony that supports a sentence enhancement under the ACCA.  By a vote of 7-1, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. Justice Kennedy delivered the opinion of the Court, holding thatJohnson announced a new substantive rule that has retroactive effect in cases on collateral review, including Welch’s. The Court declined to address, however, whether Welch’s conviction for robbery under Florida law qualified as a predicate for purposes of the ACCA enhancement, leaving the matter to the Court of Appeals on remand. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion. To discuss the case, we have Richard E. Myers II, who is the Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law.

On January 20, 2016, the Supreme Court decided three consolidated death penalty cases: Kansas v. Carr, a second Kansas v. Carr, andKansas v. Gleason. A Kansas jury sentenced Sidney Gleason to death for killing a co-conspirator and her boyfriend to cover up the robbery of an elderly man. In a joint proceeding, a Kansas jury also sentenced brothers Reginald and Jonathan Carr to death for a crime spree that culminated in the brutal rape, robbery, kidnapping, and execution-style shooting of five young men and women. The Supreme Court of Kansas vacated the death sentences in each case, holding that the sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings.  The two questions before the U.S. Supreme Court were: (1) whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt”; and (2) whether the Constitution required severance of the Carrs’ joint sentencing proceedings.  By a vote of 8-1, the Supreme Court reversed the judgment of the Kansas Supreme Court and remanded the cases. Justice Scalia delivered the opinion of the Court, which held that (1) the Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt, and (2) the Constitution did not require severance of joint sentencing proceedings because the contention that the admission of mitigating evidence by one defendant could have "so infected" the jury's consideration of the other defendant's sentence as to amount to a denial of due process does not stand in light of all the evidence presented at the guilty and penalty phases relevant to the jury's sentencing determination. Justice Scalia’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan. Justice Sotomayor filed a dissenting opinion. To discuss the case, we have Kent S. Scheidegger, who is Legal Director & General Counsel at Criminal Justice Legal Foundation.

On March 30, 2016, the Supreme Court heard oral argument inUnited States Army Corps of Engineers v. Hawkes Co., Inc. Hawkes Co. (Hawkes) applied to the Army Corps of Engineers (Corps) for a Clean Water Act permit to begin extracting peat from wetlands in northern Minnesota it was preparing to purchase. After attempting to discourage the purchase, and initiating various administrative processes, the Corps ultimately issued an Approved Jurisdictional Determination (Approved JD) asserting that the wetland contained waters of the United States, thereby creating a substantial barrier to development by Hawkes. Hawkes filed suit in federal district court to challenge the Approved JD, arguing that it conflicted with the U.S. Supreme Court’s interpretation of jurisdiction under the Clean Water Act. The district court dismissed the suit on the grounds that the Approved JD was not a “final agency action” as defined by the Administrative Procedure Act, and therefore not yet subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit reversed that judgment and remanded the case, holding that an Approved JD did constitute final agency action ripe for judicial review. The question before the Supreme Court is whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is, therefore, subject to judicial review under the Administrative Procedure Act. To discuss the case, we have Mark Miller, who is Managing Attorney, Atlantic Center, Pacific Legal Foundation.

On March 23, 2016, the Supreme Court heard oral argument inZubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged. The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Although the government exempted “religious employers” from this mandate, the exemption was narrowly defined and did not extend to petitioners. The government did, however, offer non-profit entities such as petitioners an “accommodation.”   Under the accommodation, which was modified in the course of litigation, an objecting religious nonprofit entity complies if it provides the government with a notice that includes “the name of the eligible organization,” its “plan name and type,” and the name and contact information for any of the plan’s third-party administrators (TPAs) and health insurance issuers. Upon receiving the notice, the government notifies the objecting entity’s insurance company or TPA, which then must provide payments for the requisite contraceptive products and services. A number of objecting non-profits sought relief in various federal courts, arguing that the accommodation violated the Religious Freedom Restoration Act (RFRA) of 1993. The resulting litigation produced a series of fractured opinions and a split in the Courts of Appeals, with non-profit religious organizations prevailing in the Eighth Circuit but losing in a number of others. After imposing a brief injunction on enforcement against petitioners while it considered various petitions for certiorari, the U.S. Supreme Court granted a number of petitions and consolidated the cases for oral argument on the following question: whether the HHS Mandate and its “accommodation” violate RFRA by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. On March 29, the Court also issued a detailed order requiring the parties to brief “whether and how contraceptive coverage may be obtained by petitioners'’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

On March 21, 2016, the Supreme Court decided Caetano v. Massachusetts without oral argument. Jamie Caetano was convicted of violating a Massachusetts law prohibiting possession of stun guns. On appeal, she claimed this law violated the Second Amendment, by infringing her right to possess a stun gun in public for the purpose of self-defense from an abusive ex-boyfriend. The Supreme Judicial Court of Massachusetts affirmed Caetano’s conviction, ruling that stun guns are not eligible for Second Amendment protection. By a vote of 8-0, the U.S. Supreme Court issued a per curiam opinion vacating the judgment of the Massachusetts court and remanding the case. Citing its 2008 precedent District of Columbia v. Heller, and its 2010 precedent McDonald v. Chicago, the U.S. Supreme Court rejected the Massachusetts court’s decision as contradictory of Supreme Court precedent. Justice Alito filed a concurring opinion, in which Justice Thomas joined. To discuss the case, we have Nelson Lund, who is University Professor at George Mason University School of Law.

On March 21, 2016, the Supreme Court heard oral argument in RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritfederal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. The U.S. Supreme Court granted RJR’s subsequent petition for writ of certiorari on the following question: whether, or to what extent, RICO applies extraterritorially. To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

On March 29, 2016, the Supreme Court decided Friedrichs v. California Teachers Association. A group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. The two questions before the Supreme Court were (1) whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. In a one-sentence per curiam opinion, the judgment of the Ninth Circuit was affirmed by an equally divided Supreme Court, a 4-4 split. To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.

On March 28, 2016, the Supreme Court heard oral argument inBetterman v. Montana. Brandon Thomas Betterman pled to and was sentenced for the offense of bail-jumping. He argued on appeal that a 14-month delay between the entry of his guilty plea and his sentencing violated his Sixth Amendment right to a speedy trial. The Supreme Court of Montana affirmed Betterman’s conviction and sentence, holding that the constitutional right to a speedy trial does not extend from conviction to sentencing. A criminal defendant still retains, the court concluded, a Fourteenth Amendment due process right to have sentence imposed in a timely manner, without unreasonable delay--and the delay in this case was unacceptable--but any resulting prejudice to Betterman was speculative and not substantial and demonstrable. The U.S. Supreme Court subsequently granted certiorari on the following issue: whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.  To discuss the case, we have Anthony Johnstone, who is Associate Professor at University of Montana Alexander Blewett III School of Law.

On April 4, 2016, the Supreme Court decided Nichols v. United States. Petitioner Nichols, a registered sex offender who moved from Kansas to the Philippines without updating his registration, was arrested, escorted to the United States, and charged with violating the Sex Offender Registration and Notification Act (SORNA). SORNA makes it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration,” and requires that offenders who move to a different State “shall, not later than 3 business days after each change of name, residence, employment, or student status,” inform in person “at least 1 jurisdiction involved . . . of all changes” to required information. After conditionally pleading guilty, Nichols argued on appeal that SORNA did not require him to update his registration in Kansas. The U.S. Court of Appeals for the Tenth Circuit affirmed his conviction. By a vote of 8-0 the Supreme Court reversed the judgment of the Tenth Circuit, holding that SORNA did not require Nichols to update his registration in Kansas once he departed the State. Justice Alito delivered the opinion for a unanimous Court. To discuss the case, we have James Barta, who is an Associate at MoloLamken LLP.

On March 30, 2016, the Supreme Court decided Luis v. U.S. In 2012, a grand jury indicted Luis for a variety of crimes relating to health care fraud. The government contended that she had fraudulently obtained some $45 million, and had spent all except $2 million of it. The government then initiated a civil proceeding to freeze Luis’ remaining assets, including those not traceable to the alleged fraud, to preserve them for payment of restitution and criminal penalties if she was convicted. Luis objected that the freeze violated her Sixth Amendment right to counsel, by precluding her from using her own untainted funds--those not connected with the alleged crime--to hire counsel to defend her in her criminal case. The district court acknowledged that Luis might be unable to hire counsel of her choice but rejected her Sixth Amendment claim, and the Eleventh Circuit affirmed that judgment on appeal. By a vote of 5-3, the Supreme Court vacated the judgment of the 11th Circuit and remanded the case. No single rationale, however, attracted the votes of five justices. Writing for a plurality, Justice Breyer delivered an opinion arguing, based on the nature of competing considerations, relevant legal tradition, and practical concerns, that Luis had a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assistance of counsel. The opinion was joined by the Chief Justice and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment of the Court--thereby providing a fifth vote to vacate and remand--but he did not agree with the plurality’s balancing approach and instead rested strictly on the Sixth Amendment’s text and common-law backdrop. Justice Kennedy filed a dissenting opinion in which Justice Alito joined. Justice Kagan also filed a dissenting opinion. To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

On February 22, 2016, the Supreme Court heard oral argument inCRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST Van Expedited (CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them.  In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million. On a second appeal the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for an award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation.  The Supreme Court granted CRST’s subsequent petition for certiorari on the following question: whether a dismissal of a Title VII case, based on the EEOC’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of an attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k). To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day.

On March 7, 2016, the Supreme Court decided V.L. v. E.L., a case involving an interstate dispute over custody of a child raised by a same-sex couple. A Georgia court entered a final judgment of adoption making petitioner V. L. a legal parent of the children that she and respondent E. L., her same-sex partner, had raised together from birth. V. L. and E. L. later separated while living in Alabama. V. L. asked the Alabama courts to enforce the Georgia judgment and grant her custody or visitation rights. The Alabama Supreme Court refused, holding that the Full Faith and Credit Clause of the United States Constitution did not require the Alabama courts to respect the Georgia judgment. By a vote of 8-0 the U.S. Supreme Court reversed the judgment of the Alabama Supreme Court and remanded the case, holding in a per curiam opinion that the Alabama Supreme Court erred in refusing to grant the Georgia adoption judgment full faith and credit. To discuss the case, we have Robin Fretwell Wilson, who is the Roger and Stephany Joslin Professor of Law and Director of the Program in Family Law and Policy at University of Illinois College of Law.

On February 22, 2016, the Supreme Court heard oral argument inKingdomware Technologies v. United States. Kingdomware Technologies is a certified, service-disabled veteran owned small business, or SDVOSB--a special type of veteran-owned small business, or VOSB. In 2012, Kingdomware filed a bid protest with the Government Accountability Office (GAO) when the Department of Veterans Affairs (VA) awarded a contract to a Federal Supply Schedule (FSS) contractor who was not a VOSB.  Kingdomware argued that the award violated 38 U.S.C. § 8127(d)’s “Rule of Two.” That provision directs that VA contracting officers, except under certain circumstances, “shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.”  Although the GAO agreed with Kingdomware and recommended a re-bid, the VA declined to follow the GAO recommendation and Kingdomware sued the VA in the Court of Federal Claims. That Court ruled in favor of the VA and Kingdomware appealed to the U.S. Court of Appeals for the Federal Circuit.  A divided panel of the Federal Circuit affirmed the judgment of the Court of Claims, concluding that Kingdomware’s interpretation of “shall award” failed to account for qualifying provisions elsewhere in the statute.  The question before the Supreme Court is whether the Federal Circuit erred by adopting a construction of § 8127(d)'s mandatory set-aside for VOSBs that arguably rendered the “Rule of Two” discretionary at the option of the VA. To discuss the case, we have Michael Toth, who is a lawyer in Washington, D.C.

On March 21, 2016, the Supreme Court heard oral argument inWittman v. Personhuballah. In 2012, the Virginia State Legislature adopted a redistricting plan that altered the composition of the Third Congressional District by increasing the percentage of African-American voters in the district. In 2013, plaintiffs, who reside in the Third District, sued state election officials, arguing that the District was racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court agreed and held the districting plan to be unconstitutional, but the U.S. Supreme Court vacated that judgment and remanded the case for reconsideration in light of its intervening decision in Alabama Legislative Black Caucus v. Alabama. On remand, the district court held that the redistricting plan failed strict scrutiny and ordered the Virginia General Assembly to devise a remedial plan. When the Assembly did not do so the court devised its own remedial plan and ordered election officials to implement it. On further appeal, there are four questions now before the Supreme Court: (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the finding of a Shaw violation by the court below was based on clearly erroneous fact-finding; (4) whether the majority erred in holding that the Enacted Plan fails strict scrutiny because it increased District 3's black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance. To discuss the case, we have Derek Muller, who is Associate Professor of Law at Pepperdine University School of Law.

On March 22, 2016, the Supreme Court heard oral argument inSimmons v. Himmelreich. This case arises from a lawsuit filed by federal prisoner Walter Himmelreich as the result of an assault by a fellow prisoner.  Although several of Himmelreich’s claims were dismissed in an initial round of litigation, the U.S. Court of Appeals for the Sixth Circuit allowed two to proceed on remand, of which one was a “Bivens” claim made against certain officials in their individual capacities for failing to protect him in violation of the Eighth Amendment. The district court ultimately dismissed the claim, concluding that the “judgment bar” of the Federal Tort Claims Act (“FTCA”) precluded Himmelreich from pursuing a Bivens action against the officials individually when his underlying FTCA claim against the government had failed. On a subsequent appeal the Sixth Circuit disagreed and again revived the Bivens claim, reasoning that the grounds on which the FTCA claim had failed--namely, an exception to liability--indicated a lack of subject matter jurisdiction that did not trigger the FTCA judgment bar.  The federal officials sought certiorari. The question before the Supreme Court is whether, in an FTCA action brought under Section 1346(b), a final judgment dismissing the claim on the ground that relief is precluded by one of the FTCA exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim. To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

On March 22, 2016, the Supreme Court heard oral argument inPuerto Rico v. Franklin California Tax-Free Trust (consolidated with its companion case, Acosta-Febo v. Franklin California Tax-Free Trust). Concerned that its public utilities were on the verge of insolvency but could not obtain Chapter 9 bankruptcy relief under federal law, the Commonwealth of Puerto Rico attempted to circumvent this obstacle by passing its own municipal bankruptcy law. This law, the Puerto Rico Public Corporation Debt Enforcement and Recovery Act expressly provides different protections for creditors than those in federal Chapter 9.  Investors who collectively hold nearly two billion dollars in bonds issued by one of Puerto Rico’s public utilities worried that it might seek relief under the new Puerto Rico law and sued in federal court, challenging the law’s validity and seeking injunctive relief. The district court enjoined the enforcement of the new law and the U.S. Court of Appeals for the First Circuit affirmed.  Puerto Rico sought certiorari. The question before the Supreme Court is whether Chapter 9 of the federal Bankruptcy Code, although it does not apply to Puerto Rico, nevertheless preempts the Puerto Rico statute creating a mechanism for the Commonwealth’s public utilities to restructure their debts. Justice Alito is recused from this case. To discuss the case, we have David Skeel, who is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, and who submitted an amicus brief in support of the Commonwealth of Puerto Rico.

On February 29, 2016, the Supreme Court heard oral argument inVoisine v. United States. Stephen Voisine was convicted in 2003 of assaulting a woman with whom he was in a domestic relationship--a misdemeanor violation of a Maine statute. In 2009 Voisine turned a rifle over to federal officials who were investigating him for a separate alleged crime. When investigators discovered Voisine’s 2003 misdemeanor assault, they charged him under 18 U.S.C. § 922(g)(9), which makes it a federal crime for a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to  “possess in or affecting commerce[] any firearm or ammunition.” In turn, a "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force…committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim. Voisine challenged the § 922(g)(9) charge, arguing that under his Maine conviction offensive physical contact, as opposed to one causing bodily injury, was not a “use of physical force” and thus not a “misdemeanor crime of domestic violence” within the meaning of § 921(a)(33)(A). The district court rejected this argument and Voisine pled guilty on condition that he be able to appeal the court’s ruling. The U.S. Court of Appeals for the First Circuit affirmed the district court’s judgment, but the Supreme Court subsequently granted Voisine’s petition for certiorari, vacated the First Circuit’s judgment, and remanded the case for reconsideration in light of the intervening 2014 Supreme Court decision United States v. Castleman. That decision held the requirement of “physical force” satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction--but it did not resolve whether a conviction with the mens rea of reckless--as under the Maine statute--would qualify. On remand the First Circuit again rejected Voisine’s challenge and held that his Maine conviction qualified as a “misdemeanor crime of domestic violence.” The Supreme Court again granted certiorari to address the following question: Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). To discuss the case, we have Ryan Scott, who is Associate Professor at Indiana University Maurer School of Law.

On January 20, 2016, the Supreme Court decided Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan. Petitioner Montanile was injured by a drunk driver and his benefits plan paid more than $120,000 in medical expenses. He later sued the drunk driver, obtaining a $500,000 settlement. The benefits plan, governed by the Employees Retirement Income Security Act (ERISA), contained a subrogation clause requiring a participant to reimburse the plan for medical expenses if the participant later recovers money from a third party for his or her injuries. When respondent plan administrator/fiduciary sought reimbursement from Montanile’s litigation settlement, he refused, and the administrator sued in federal court, seeking an equitable lien on any settlement funds or property in Montanile’s possession.  Montanile argued that because he had by then spent almost all of the settlement, no identifiable fund existed against which to enforce the lien. The District Court rejected Montanile’s argument and the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  By a vote of 8-1 the Supreme Court reversed the judgment of the Eleventh Circuit, holding that when a participant dissipates the whole settlement on nontraceable items, the fiduciary cannot bring a suit to attach the participant’s general assets under ERISA §502(a)(3) because the suit is not one for “appropriate equitable relief.”  The Court deemed it unclear whether Montanile had in fact dissipated all of his settlement in this manner, however, and thus remanded the case for further proceedings. Justice Thomas delivered the opinion of the Court, joined by the Chief Justice and Justices Scalia, Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito joined the majority opinion except for Part III-C. Justice Ginsburg filed a dissenting opinion. To discuss the case, we have Daniel R. Thies, who is an associate at Sidley Austin LLP.

On February 23, 2016, the Supreme Court heard oral argument inHalo Electronics v. Pulse Electronics, which was consolidated with Stryker Corp. v. Zimmer.  Both of these cases involved claims of patent infringement relating to the sale or marketing of various inventions.  Both also involved a determination by the U.S. Court of Appeals for the Federal Circuit that an award of enhanced damages for infringement under 35 U.S.C. § 284 was not appropriate, after applying the Circuit’s two-part objective/subjective test for willful or bad-faith infringement set forth in In re Seagate Tech., LLC. The question before the Supreme Court is whether the Federal Circuit’s refusal to allow enhanced damages absent a finding of willfulness under its two-part test contravenes the plain meaning of 35 U.S.C. § 284, given the Supreme Court’s recent rejection of an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys' fee awards in exceptional cases. To discuss the case, we have Gregory Dolin who is Associate Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On March 7, 2016, the Supreme Court decided Americold Realty Trust v. ConAgra Foods, a case giving rise to a dispute over the scope of federal courts’ diversity jurisdiction. A group of corporations whose food perished in a warehouse fire sued the warehouse owner, currently known as Americold Realty Trust, in Kansas state court. Americold then removed the suit to the U.S. District Court for the District of Kansas, which accepted jurisdiction and resolved the dispute in favor of Americold. On appeal, however, the U.S. Court of Appeals for the Tenth Circuit held that the district court had lacked jurisdiction. Although the parties argued that diversity jurisdiction existed because the suit involved citizens of different states, the Tenth Circuit disagreed. As a trust and not a corporation, the court reasoned, Americold’s citizenship depended on that of its members, including shareholders.  Given the lack of evidence regarding the shareholders’ citizenship, the court held, the parties had failed to demonstrate that the plaintiffs were citizens of different states than the defendants. By a vote of 8-0, the Supreme Court affirmed the judgment of the Tenth Circuit, holding that for purposes of diversity jurisdiction, the citizenship of an unincorporated entity depends on the citizenship of all of its members. Under Maryland law a real estate investment trust is held and managed for the benefit of its shareholders, the Court explained, so Americold’s members include its shareholders. Justice Sotomayor delivered the opinion for a unanimous court. To discuss the case, we have Erik Zimmerman, who is an attorney with Robinson Bradshaw in Chapel Hill, North Carolina.

On January 20, 2016, the Supreme Court decided Campbell-Ewald Company v. Gomez. This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. The case presents two questions for the Supreme Court: (1) whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, including in a class action, and (2) whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects. The U.S. Court of Appeals for the Ninth Circuit had held that Gomez’s individual and class claims were not mooted, and that Campbell-Ewald was not entitled to derivative sovereign immunity. By a vote of 6-3, the Supreme Court affirmed the judgment of the Ninth Circuit, holding that (1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint, and (2) a federal contractor is not entitled to immunity from suit for its violation of the Telephone Consumer Protection Act when it violates both federal law and the government's explicit instructions. Justice Ginsburg delivered the opinion of the Court, in which Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgement. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Alito joined. Justice Alito also filed a dissenting opinion. To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.

On March 2, 2016, the Supreme Court heard oral argument in Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation.  The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility.  The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, and that stay currently remains in place pending issuance of the written judgment of the Supreme Court. Thus, the district court’s original injunctions against the Texas law remain in effect for now. There are two questions before the Supreme Court: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would (according to petitioners) cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest. To discuss the case, we have Roger Severino who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.

On March 1, 2016, the Supreme Court heard oral argument in Husky International Electronics, Inc. v. Ritz.  Between 2003 and 2007 Husky International Electronics sold and delivered electronic device components worth more than $160,000 to Chrysalis Manufacturing Corp.  Chrysalis, then under the financial control of Daniel Ritz, failed to pay for the goods and Ritz encouraged the transfer of funds from Chrysalis to various other companies.  Ritz held substantial ownership stakes in these companies, which had not given reasonably equivalent value in exchange for the Chrysalis funds. In May 2009, Husky sued Ritz in federal district court, seeking to hold him personally liable for Chrysalis’s debt. Ritz filed a voluntary Chapter 7 bankruptcy petition, and Husky then filed a complaint in the bankruptcy court alleging actual fraud, to preclude a discharge of Ritz’s debts. The bankruptcy court ruled that Husky had failed to prove actual fraud, however, and the district court affirmed that decision.  The U.S. Court of Appeals for the Fifth Circuit likewise affirmed the lower court judgments, finding no record evidence of a false representation by the debtor, which the Fifth Circuit deemed a necessary predicate to establish actual fraud. The question now before the Supreme Court is whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor. To discuss the case, we have Zvi Rosen, who is a visiting scholar at Hofstra University Maurice A. Deane School of Law.

On February 24, 2016, the Supreme Court heard oral argument in the consolidated cases Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing. In this case, the Supreme Court considers whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process.  The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court are: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis.  To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

On March 30, 2016, the Supreme Court heard oral argument inWelch v. United States. Police entered Gregory Welch’s apartment believing that a robbery suspect was on the premises, and after he consented to search they located a gun and ammunition that Welch later identified as his own. He was subsequently arrested and pleaded guilty to being a felon in possession of a firearm. Because Welch had three prior felony convictions, the district court determined that the Armed Career Criminal Act (ACCA) required that he be sentenced to a minimum of 15 years in prison. Welch appealed, arguing that his conviction for robbery in Florida state court did not qualify as a predicate offense for the purposes of ACCA because, at the time he was convicted, Florida state law allowed for a robbery conviction with a lower level of force than the federal law required to qualify as a predicate offense. The U.S. Court of Appeals for the Eleventh Circuit, however, affirmed the district court’s judgment, concluding that the minimum elements for conviction under the Florida law established a “serious risk of physical injury to another” and, therefore, qualified it as a predicate offense for purposes of ACCA. Welch’s subsequent attempt to obtain habeas relief from the district court was denied, and the Eleventh Circuit rejected his appeal, but the Supreme Court granted certiorari.  The two questions before the Supreme Court are: (1) Whether Johnson v. United States, 135 S. Ct. 2551 (2015)—which held that the residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague—announced a new “substantive” rule of constitutional law that is retroactively applicable in an initial motion to vacate a federal prisoner’s ACCA-enhanced sentence under 28 U.S.C. 2255(a); and (2) Whether petitioner’s conviction for robbery under Florida state law qualifies as a violent felony that supports a sentence enhancement under the ACCA.  To discuss the case, we have Richard E. Myers II, who is the Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law.

On January 25, 2016, the Supreme Court decided Amgen Inc v. Harris without oral argument. Former employees of an Amgen subsidiary had participated in a benefit plan that offered ownership of Amgen stock. When the value of Amgen stock fell in 2007, stockholders filed a class action against plan fiduciaries alleging a breach of fiduciary duties, including the duty of prudence, under the Employee Retirement Income Security Act of 1974. Although the U.S. Court of Appeals for the Ninth Circuit initially reversed a district court decision dismissing the class action complaint, the U.S. Supreme Court then vacated the Ninth Circuit’s judgment and remanded the case in light of the Supreme Court’s then-recent decision Fifth Third Bancorp v. Dudenhoeffer, which set forth the standards for stating a claim for breach of the duty of prudence against fiduciaries who manage employee stock ownership plans.  On remand, the Ninth Circuit reiterated its conclusion that the plaintiffs’ complaint stated a claim for breach of fiduciary duty, and the Supreme Court again granted certiorari. In a per curiam opinion the Court reversed the judgment of the Ninth Circuit by a vote of 9-0, holding that the Circuit had failed to properly evaluate the complaint. In its current form, the Supreme Court concluded, the complaint failed to state a claim for breach of the duty of prudence. In remanding the case, however, the Court indicated that the district court could decide in the first instance whether the stockholders might amend their complaint in order to adequately plead a claim for breach of the duty of prudence. To discuss the case, we have George T. Conway III, who is Partner, Litigation at Wachtell, Lipton, Rosen & Katz.

On January 25, 2016, the Supreme Court decided Montgomery v. Louisiana. Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana and received a mandatory sentence of life without parole. In 2012 the U.S. Supreme Court ruled inMiller v. Alabama that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Montgomery sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review.  Montgomery’s case presents the U.S. Supreme Court with two questions: (1) Whether the Court has jurisdiction to decide whether the Supreme Court of Louisiana properly refused to give retroactive effect to Miller; and (2) Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison. By a vote of 6-3 the Supreme Court answered both questions in the affirmative, reversing the judgment of the Louisiana Supreme Court and remanding the case. Justice Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Scalia filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas also filed a dissenting opinion. To discuss the case, we have Zachary Bolitho, who is Assistant Professor at Campbell University School of Law.

On January 25, 2016, the Supreme Court decided Musacchio v.United States. Petitioner Musacchio was convicted in a jury trial on two counts of violating the Computer Fraud and Abuse Act. At trial, the district court had incorrectly instructed the jury that the government had to prove more stringent elements than the statute actually required, but the government had failed to object. On appeal, Musacchio argued that the government had failed to present evidence sufficient to sustain a conviction under this more stringent standard. He also argued that one of the counts on which he was convicted had been barred by a statute of limitations, but had not raised this objection at trial. The U.S. Court of Appeals for the Fifth Circuit rejected both challenges and affirmed Musacchio’s conviction. The question before the Supreme Court was twofold: (1) how should federal courts assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object; and (2) can a defendant successfully raise the general federal criminal statute of limitations for the first time on appeal? By a vote of 9-0, the Court affirmed the judgment of the Fifth Circuit, holding that (1) the challenge to sufficiency of the evidence should be assessed against the elements of the charged crime, rather than the elements set forth in the erroneous jury instruction; and (2) the statute of limitations bar could not be raised for the first time on appeal. Justice Thomas delivered the opinion for a unanimous Court. To discuss the case, we have Mark H. Bonner, who is Associate Professor at Ave Maria School of Law.

On January 25, 2016, the Supreme Court decided several energy cases consolidated under the heading Federal Energy Regulatory Commission v. Electric Power Supply Association. These cases concern a practice called “demand re­sponse,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. In the regulation challenged here, the Federal Energy Regulatory Commission (FERC) required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. The U.S. Court of Appeals for the D.C. Circuit vacated this regulation, however, holding it beyond the FERC’s authority under the Federal Power Act as well as arbitrary and capricious, for failure to justify adequately a potential windfall to demand response providers. The Supreme Court granted certiorari on two questions: (1) Does the Federal Power Act permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ residual authority? (2) Even if FERC has the requisite statutory power, did FERC fail to justify adequately why demand response providers and electricity producers should receive the same compensation?  By a vote of 6-2, the Court reversed the judgment of the D.C. Circuit and remanded the case, holding that (1) FERC did possess adequate regulatory authority under the Federal Power Act; and (2) FERC’s decision to compensate demand response providers at locational marginal price was not arbitrary and capricious. Justice Kagan delivered the opinion of the Court, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito was recused from this case. To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

On January 20, 2016, the Supreme Court heard oral arguments inSturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. The question before the Court is whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System. To discuss the case, we have Gale Norton, who served as the 48th U.S. Secretary of the Interior.

On January 13, 2016, the Supreme Court heard oral argument inPuerto Rico v. Sanchez Valle. Sanchez Valle was charged by Puerto Rico prosecutors with the illegal sale of weapons and ammunition without a license in violation of Puerto Rico law.  While that charge was pending, he was indicted by a federal grand jury for the same offense, based on the same facts, under federal law. He pled guilty to the federal indictment but sought dismissal of the Puerto Rico charges on Double Jeopardy grounds, arguing that Puerto Rico is not a separate sovereign. The Supreme Court of Puerto Rico agreed but the Commonwealth appealed. The question now before the U.S. Supreme Court is whether the Commonwealth of Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution. To discuss the case, we have Scott Broyles, who is Professor at Charlotte School of Law.

On January 12, 2016, the Supreme Court decided Hurst v. Florida. The question before the Court was whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth and/or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which requires that the aggravating factors necessary for imposition of a death sentence be found by a jury.  The Florida Supreme Court upheld Hurst’s death sentence. By a vote of 8-1, the Supreme Court reversed the judgment of the Florida Supreme Court and remanded the case, holding that Florida’s capital sentencing scheme did violate the Sixth Amendment in light of Ring. Justice Sotomayor’s opinion for the Court was joined by the Chief Justice and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan. Justice Breyer filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion. To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

On December 8, 2015, the Supreme Court heard oral argument inHarris v. Arizona Independent Redistricting Commission. In 2012, the Arizona Independent Redistricting Commission redrew the map for the state legislative districts based on the results of the 2010 census. Wesley Harris and other individual voters sued the Commission and alleged that the newly redrawn districts were underpopulated in Democratic-leaning districts and over-populated in Republican-leaning ones, and that the Commission had, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Commission countered that the population deviations were the result of attempts to comply with the Voting Rights Act. A three-judge district court ruled in favor of the Commission.    There are two questions before the Supreme Court on appeal: (1) Whether the desire to gain partisan advantage for one political party justifies creating over-populated legislative districts that result in the devaluation of individual votes, violating the one-person, one-vote principle; and (2) whether the desire to obtain favorable preclearance review by the Justice Department permits the creation of legislative districts that deviate from the one-person, one-vote principle, and--even if creating unequal districts to obtain preclearance approval was once justified--whether this remains a legitimate justification after the Court’s decision in Shelby County v. Holder. To discuss the case, we have Mark F. Hearne, II, who is Partner at Arent Fox LLP.

On December 9, 2015, the Supreme Court heard oral argument inFisher v. University of Texas at Austin.  This is the second time the case has come before the high court. Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” The question in this case is whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher I. To discuss the case, we have Joshua P. Thompson who is Principal Attorney at Pacific Legal Foundation.

On December 8, 2015, the Supreme Court heard oral argument inEvenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries.  Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population.  A three-judge district court ruled in favor of the state officials. On appeal, the question before the Supreme Court is whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts. To discuss the case, we have Andrew Grossman, who is Associate at Baker & Hostetler, and Adjunct Scholar at The Cato Institute.

On November 10, 2015, the Supreme Court heard oral argument inTyson Foods v. Bouaphakeo. Peg Bouaphakeo and the rest of the plaintiffs in this class action are current and former employees of Tyson Foods. They claim that Tyson violated the Fair Labor Standards Act by not paying them for time spent putting on and taking off protective clothing at the beginning and end of the work day and before and after lunch. The district court certified the class, and the jury returned a multi-million dollar verdict in their favor.  Tyson argued on appeal that certification was improper due to factual differences among plaintiffs, but the U.S. Court of Appeals for the Eighth Circuit affirmed the district court. The questions before the Supreme Court are twofold: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages. To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Legal Center.

On January 19, 2016, the Supreme Court heard oral argument inHeffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent.  Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him.  Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. The question before the Supreme Court is whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate. To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

On January 11, 2016, the Supreme Court heard oral argument inFriedrichs v. California Teachers Association. Under California law and existing Supreme Court precedent, unions can become the exclusive bargaining representative for the public school employees of their district and establish an “agency shop” arrangement requiring public school employees either to join the union or pay a fee to support the union’s collective bargaining activities. Although the First Amendment prohibits unions from compelling non-members to support activities unrelated to collective bargaining, in California non-members must affirmatively “opt out” to avoid paying for these unrelated or “nonchargeable” expenses. Here a group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. The two questions now before the Supreme Court are: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.

On December 14, 2015, the Supreme Court decided DIRECTV v. Imburgia. This case involves a class action lawsuit against DIRECTV by various California customers.  Among other things, the agreement between DIRECTV and its customers contained a waiver of any right by either party to undertake class arbitration, unless “the law of your state” made such waivers unenforceable.  At that time class arbitration waivers were unenforceable under California law, but in a subsequent case the United States Supreme Court held that this California rule was preempted by the Federal Arbitration Act (FAA).  Concluding that the parties had intended to apply the rule as it existed prior to the Supreme Court decision, California trial and appellate courts refused to enforce the arbitration provision.  The question before the Supreme Court was whether the FAA permitted this outcome; namely, the application of state law that had since been preempted by the FAA. By a vote of 6-3, the Supreme Court reversed the judgment of the California Court of Appeals and remanded the case. Justice Breyer delivered the opinion of the Court, holding that the arbitration provision must be enforced because the California appellate court’s interpretation was preempted by the FAA. Justice Breyer’s opinion was joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

On December 7, 2015, the Supreme Court heard oral argument inDollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges. The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members. To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

On December 8, 2015, the Supreme Court decided Shapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments.  Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed. The question before the Supreme Court was whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). By a vote of 9-0, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. Justice Scalia delivered the opinion for a unanimous Court, holding that the citizens’ redistricting challenge was not so insubstantial that it could be dismissed by a single judge, and should have been considered by a three-judge Court. To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law.

On November 2, 2015, the Supreme Court heard oral argument inSpokeo, Inc. v. Robins. Robins sued website operator Spokeo, Inc. under the Fair Credit Reporting Act, complaining that Spokeo had published inaccurate personal information about Robins.  The district court determined that Robins had failed to allege an injury-in-fact and dismissed the case for lack of standing.  The U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Spokeo’s alleged violations of Robins’ statutory rights constituted sufficient injury, and that Robins satisfied the other requirements for Article III standing. The question Spokeo raises before the Supreme Court is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. To discuss the case, we have Erin Hawley, who is Associate Professor of Law at University of Missouri School of Law.

On December 2, 2015, the Supreme Court heard oral argument inGobeille v. Liberty Mutual Insurance Company. Liberty Mutual Insurance Company (Liberty Mutual) operates a self-insured employee health plan through a third-party administrator. Vermont state law requires such plans to file with the State reports concerning claims data and certain other information.  When Vermont subpoenaed claims data from Liberty Mutual’s third-party administrator, Liberty Mutual sued and argued that the federal Employment Retirement Income Security Act of 1974 (ERISA) preempted the Vermont statute. The district court found no preemption and ruled in favor of Vermont. On appeal a divided panel of the U.S. Court of Appeals for the Second Circuit reversed and held that ERISA preemption did apply. The question before the Court is whether the Second Circuit erred in holding that ERISA preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. To discuss the case, we have John Ohlendorf, who is an associate at Cooper & Kirk, PLLC.

On November 10, 2015, the Supreme Court heard oral argument inLuis v. U.S. Luis was indicated for Medicare fraud involving alleged kickbacks to patients who enrolled with Luis’ home healthcare companies. The government then brought a civil action to restrain Luis’ assets--including substitute property of an equivalent value to that actually traceable to the alleged fraud--before her criminal trial. Although Luis objected that she needed these assets to pay for defense counsel, the district court ruled in favor of the government and the U.S. Court of Appeals for the 11th Circuit affirmed. The question before the Supreme Court is whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments. To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

On December 1, 2015, the Supreme Court decided OBB Personenverkehr AG v. Sachs. This case concerns the scope of the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA).  Under this exception, sovereign immunity does not bar a lawsuit “based on a commercial activity carried on in the United States by [a] foreign state.”  In this case Carol Sachs sued the Austrian national railroad when she suffered serious injuries while attempting to board an Austrian train.  The question is whether Sachs’ purchase of her rail pass in the United States brought her suit within the commercial activity exception.  The U.S. Court of Appeals for the Ninth Circuit held that it did.  By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit.  Chief Justice Roberts delivered the opinion for a unanimous Court, holding that Sachs’ suit was “based on” the railway’s conduct in Austria and therefore outside the FSIA’s commercial activity exception. To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

On November 4, 2015, the Supreme Court heard oral argument inShapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments.  Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed. The question before the Supreme Court is whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law.

On October 5, 2015, the Supreme Court heard oral argument inOBB Personenverkehr AG v. Sachs. This case involves a dispute regarding whether federal courts have jurisdiction over a lawsuit brought by Carol Sachs against OBB Personenverkher--the Austrian national railroad--when her legs were crushed by a train in Austria while she was using a Eurail Pass that she had purchased in the United States.  The question before the Supreme Court is twofold: (1) whether common law principles of agency apply in determining whether an entity is an “agent” of a foreign state under the Foreign Sovereign Immunities Act of 1976 (FSIA); and (2) whether, under the first clause of the commercial activity exception of the FSIA, a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States, or the preceding sale of the ticket in the United States for the travel entirely outside the United States. To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

On November 9, 2015, the Supreme Court decided Mullenix v. Lunawithout oral argument. The question in this case was whether a police officer who shot at the car of a fleeing and purportedly armed suspect, killing him in the process, was entitled to qualified immunity from suit. The Fifth Circuit had affirmed the lower court’s denial of qualified immunity to the officer.By a vote of 8-1 the Supreme Court reversed that determination, holding that the officer was entitled to qualified immunity because existing Supreme Court precedent did not place the conclusion that the officer acted unreasonably “beyond debate.”The opinion of the Court was issued per curiam. Justice Scalia filed a concurring opinion. Justice Sotomayor filed a dissenting opinion.To discuss the case, we have Joshua A. Skinner, who is an Attorney at Fanning Harper Martinson Brandt & Kutchin, P.C., in Dallas, Texas.

On October 14, 2015, the Supreme Court heard oral argument inCampbell-Ewald Company v. Gomez.This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. Three questions are before the Court. The first is whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, and the second is whether the answer to that changes if the plaintiff is attempting to bring a class action. The third question is whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects.To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.

On October 14, 2015, the Supreme Court heard oral argument inFederal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association.These consolidated cases involve the efforts of the Federal Energy Regulatory Commission (FERC) to specify the methodology that operators in the wholesale electricity market use when compensating users for a commitment to reduce their consumption at particular times, a phenomenon known as “demand response.”  The U.S. Court of Appeals for the D.C. Circuit determined that FERC lacked statutory authority to impose such a methodology.  The Supreme Court agreed to consider the following two questions:(1) Whether FERC reasonably concluded that it has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates; and (2) Whether the D.C. Circuit erred in holding that the rule issued by FERC is arbitrary and capricious. Justice Alito appears to be recused from this case.To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

On October 13, 2015, the Supreme Court heard oral argument inHurst v. Florida.  Timothy Lee Hurst was convicted of murdering his co-worker and sentenced to death after a jury recommended that penalty by a vote of 7-5.  The question before the Court here is whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which holds that the aggravating factors necessary for imposition of a death sentence be found by a jury. To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

On October 6, 2015, the Supreme Court heard oral argument inOcasio v. U.S. Ocasio challenges his conviction under the Hobbs Act for conspiracy to commit extortion, which arose from an alleged kickback scheme under which police officers funneled wrecked automobiles to a particular repair shop in exchange for monetary payments.The question before the Court is whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. To discuss the case, we have Timothy O’Toole, who is a Lawyer at Miller & Chevalier.

On October 6, 2015, the Supreme Court heard oral argument inDIRECTV v. Imburgia. This case involves a class action lawsuit which argues that DIRECTV improperly charged early termination fees to its customers. The question is whether the California Court of Appeal erred by holding that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

Co-Sponsored by the Faculty Division and the Practice GroupsOctober 5th will mark the first day of the 2015 Supreme Court term. Thus far, the Court's docket includes major cases involving the death penalty, affirmative action, unions, civil asset forfeiture, and more. Notable cases include Campbell-Ewald Company v. Gomez, which concerns pre-certification mootness; Tyson Foods v. Bouaphakeo, which concerns class certification where statistical methods are used to establish liability and damages; Spokeo v. Robins, which concerns Article III standing and statutory damages; Fisher v. University of Texas at Austin, which concerns affirmative action in admissions; Evenwel v. Abbott, which concerns redistricting law; Friedrichs v. California Teachers Association, which concerns teacher unions; and Kansas v. Gleason, Kansas v. Carr, Montgomery v. Louisiana, Foster v. Humphrey, and Hurst v. Florida, which all concern the death penalty. In addition to these cases and others, which may include abortion and contraceptive mandate questions, the panelists will discuss the current composition and the future of the Court.Featuring:Prof. Gail Heriot, Professor of Law, University of San Diego School of LawMr. John Elwood, Partner at Vinson & ElkinsMr. Neal K. Katyal, Partner at Hogan LovellsProf. John F. Stinneford, Professor of Law and Assistant Director, Criminal Justice Center at Levin College of Law, University of FloridaMr. Ed Whelan, President of Ethics & Public Policy CenterModerator: Mr. Adam Liptak, The New York Times September 30, 2015 Washington, DC