Federalist Society SCOTUScast

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. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Law at the Cato Institute.

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.