Federalist Society SCOTUScast

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.

October 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 PC; Prof. Nicholas Quinn Rosenkranz, Georgetown Law Center; Ms. Carrie Severino, Judicial Crisis Network; and Hon. George J. Terwilliger, McGuireWoods LLP. Moderator: Mr. Robert Barnes, The Washington Post.

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.

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. Arizona without 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.