SCOTUScast

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. To discuss the case, we have Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato InstituteAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional." To discuss the cases, we have Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Dec. 9, 2019, the U.S. Supreme Court heard argument in Thryv, Inc. v. Click-to-Call Technologies, LP, a case involving a dispute over certain appeal and time restrictions applicable to “inter partes review” (IPR) proceedings before the Patent Trial and Appeal Board (the Board) of the U.S. Patent and Trademark Office.In 2013, Ingenio--a predecessor entity to petitioner Thryv, Inc.--initiated IPR proceedings to challenge the validity of a patent held by Click-to-Call Technologies, LP (CTC). CTC countered that the IPR was time-barred under the one-year limit of 35 U.S.C. § 315(b), because a complaint alleging infringement of that patent had been served on Ingenio back in 2001, well over one year before the IPR request. The Board rejected CTC’s argument, reasoning that the time bar did not apply because the complaint in question had been voluntarily dismissed, and was to be treated as if non-existent. Proceeding with IPR, the Board then ruled various claims of the disputed patent to be unpatentable. After a complicated series of appellate proceedings that included a vacatur and remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit issued the en banc decision that formed the basis for Thryv’s certiorari petition in this case. Citing a recent determination it had made in a similar case, the court first decided that it had jurisdiction to review the IPR time-bar dispute. Title 35 U.S.C. § 314(d) provides that a decision whether to institute an IPR “shall be final and nonappealable,” but the court treated that bar as inapplicable to questions of timeliness as opposed to the merits. The Federal Circuit then held that the time bar of § 315(b) was triggered by service of any complaint, even one later dismissed without prejudice. Accordingly, the court vacated the Board’s decision and remanded with instructions to dismiss the IPR as time-barred: a victory for CTC. But the Supreme Court then granted Thryv’s certiorari petition to address anew the key jurisdictional issue: whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s time bar did not apply.To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, the Rando Law Firm P.C.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Dec 11, 2019 the Supreme Court decided Peter v. NantKwest Inc., a case considering whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees. When a patent applicant is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.”Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest, including nearly $80,000 in attorneys’ fees. The district court denied recovery based on the “American Rule” that parties in federal court typically bear their own fees unless otherwise directed by Congress. A divided en banc panel of the Federal Circuit ultimately affirmed the district court. This decision, however, was in tension with the U.S. Court of Appeals for the Fourth Circuit’s construction of similar language in the Lanham Act.By a vote of 9-0, the Supreme Court affirmed the judgment of the Federal Circuit. Justice Sotomayor, writing for a unanimous Court, held that the plain text of §145 did not provide the requisite “specific and explicit” indication that Congress had intended to depart from “the American Rule’s presumption against fee shifting.” Accordingly, the PTO could not recover attorneys’ fees from NantKwest under §145.To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.*As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers. *Please note that Mr. Rando is co-Counsel on an Amicus brief filed on behalf of the Association of Amicus Counsel in this case.

On Dec. 11, 2019, the U.S. Supreme Court heard argument in Monasky v. Taglieri, a case involving the standard of appellate review applicable to determinations of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, as well as the conditions under which habitual residence is established for an infant.The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence. The courts of that country can then resolve any underlying custody disputes. Petitioner Michelle Monasky, an American, gave birth to her daughter A.M.T. in Italy. Monasky’s husband Domenico Taglieri, who is the father, is Italian. Alleging that Taglieri had become physically abusive, Monasky took the newborn A.M.T. to a domestic abuse shelter in Italy, and several weeks later both left for Ohio. Taglieri obtained an ex parte ruling from an Italian court terminating Monasky’s parental rights and then petitioned in federal district court in Ohio for A.M.T.’s return under the Hague Convention. The district court granted the petition, and the U.S. Court of Appeals for the Sixth Circuit and the U.S. Supreme Court denied Monasky’s petition for a stay. She then returned A.M.T. to Italy. On appeal, a divided Sixth Circuit, sitting en banc, affirmed the district court’s ruling on the merits. In doing so, the Sixth Circuit treated the question of habitual residence as ultimately one of fact to be reviewed on appeal for clear error only.Arguing that the Sixth Circuit’s approach was in tension with that of several other federal circuit courts of appeals, Monasky petitioned for certiorari. The Supreme Court granted the petition to consider whether (1) a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo rather than for clear error; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.To discuss the case, we have Margaret Ryznar, Associate Professor of Law, Indiana University Robert H. McKinney School of Law.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Dec. 4, 2019, the U.S. Supreme Court heard argument in Intel Corp. Investment Policy Committee v. Sulyma, a case asking what degree of knowledge of a possible violation is necessary to trigger the three-year statute of limitations provided in the Employee Retirement Income Security Act (ERISA).Respondent Christopher Sulyma worked for Intel Corporation from 2010-12, and during that time participated in retirement plans governed by ERISA. In 2015, Sulyma brought suit against Intel’s investment policy committee under various provisions of ERISA, alleging that the committee had invested imprudently and failed to make certain disclosures. Intel moved to dismiss the complaint based on ERISA’s statute of limitations, which provides that actions like Sulyma’s may not be commenced more than “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.” The district court found that Sulyma had actual knowledge of the alleged violations more than three years before bringing suit, and dismissed the case. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Sulyma’s constructive knowledge of the alleged violations did not rise to the level of “actual knowledge” necessary to trigger the statute of limitations. It was not sufficient, the Court determined, that the relevant facts were available to the Sulyma; he had actually to be aware of those facts.The Ninth Circuit’s reasoning on the meaning of “actual knowledge” conflicted with that of the U.S. Court of Appeals for the Sixth Circuit, however, and the Supreme Court subsequently granted certiorari to consider whether the ERISA limitations provision bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.To discuss the cases, we have Matthew S. Rozen, Associate Attorney at Gibson DunnAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Nov. 4, 2019, the U.S. Supreme Court heard argument in Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”. The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during the commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.The Eleventh Circuit recognized that the federal circuit courts of appeals have split on the issue, however, and the Supreme Court ultimately granted certiorari to address whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule.To discuss the case, we have Amy Moore, Associate Professor of Law at Belmont University College of Law.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.In this special, extended analysis episode, we have two guests. The first voice you will hear is Corbin Barthold, Senior Litigation Counsel at Washington Legal Foundation followed by Jonathan Wood, Senior Attorney at the Pacific Legal Foundation.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Oct. 16, 2019, the U.S. Supreme Court heard argument in Kansas v. Garcia, a case involving a dispute over whether the federal Immigration Reform and Control Act (IRCA) precludes states from using any information contained in a federal Form I-9, (which includes common information such as name, date of birth, and social security number) to prosecute the person with a state crime.Respondents Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were convicted of identity theft (and/or making a false information) by the state of Kansas, for using social security numbers that were not theirs on federally required employment or housing-related paperwork. Respondents argued that their convictions were invalid on the grounds that IRCA preempts the use of such information in a state prosecution. The Kansas Supreme Court agreed and reversed the convictions, holding that IRCA expressly preempted state prosecutions that use information contained in a federal I-9 form. That decision conflicted with those of various other state supreme courts and federal circuit courts of appeals, however, and the U.S. Supreme Court subsequently granted Kansas’s certiorari petition to address whether IRCA impliedly preempts Kansas’ prosecution of respondents.To discuss the cases, we have Jonathan Urick senior counsel for litigation at the U.S. Chamber Litigation Center.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Dec. 2, 2019, the U.S. Supreme Court heard argument in New York State Rifle & Pistol Association Inc. v. City of New York, a case involving a dispute over whether New York City rules limiting transportation of licensed firearms to ranges within New York City limits (and certain state-designated hunting areas) violate the Second Amendment, the dormant Commerce Clause, and the constitutional right to travel.Under New York state law, possessing a firearm without a license is prohibited. New York City issues “premises” licenses that permit possession of a pistol or revolver at a particular address, and under city “Rule 5-23” such firearms may not be lawfully removed from that address except for transport directly to or from authorized shooting ranges within New York City limits (as well as certain state-designated hunting areas). Plaintiffs, who hold New York City premises licenses, wished to transport their firearms to shooting ranges, competitions, and/or homes outside of New York City. They sued for injunctive relief in federal district court, alleging that Rule 5-23’s restrictions violated the Second Amendment and were otherwise invalid under the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel. The district court rejected all these claims and dismissed the case. The U.S. Court of Appeals for the Second Circuit, applying intermediate scrutiny to the Second Amendment claims, affirmed. The Supreme Court, however, subsequently granted certiorari to address whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel. To discuss the cases, we have Robert Leider, professor at Antonin Scalia Law School, George Mason University. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.