SCOTUScast

On May 14, 2018, the Supreme Court decided Murphy v. NCAA, a case involving a conflict between state-authorized sports gambling and a federal statute: the Professional and Amateur Sports Protection Act of 1992 (PASPA). PASPA prohibits state-sanctioned gambling with respect to amateur and professional sporting events. Among other things, the statute allows sports leagues whose events are the subject of betting schemes to bring an action to enjoin any gambling. PASPA did except certain states from its prohibitions, including New Jersey--but only if New Jersey established its sports gambling scheme within one year of PASPA’s enactment. New Jersey did not do so, and in fact prohibited sports gambling until a 2011 referendum amended the state constitution to allow it.Thereafter, New Jersey enacted the 2012 Sports Wagering Act, which created a government-regulated sports betting scheme. Invoking PASPA, five sports leagues sued to enjoin the 2012 law. New Jersey countered that PASPA was unconstitutional under the federal anti-commandeering doctrine. The District Court deemed PASPA constitutional and enjoined implementation of the wagering law. The U.S. Court of Appeals for the Third Circuit affirmed, and the U.S. Supreme Court denied certiorari. In 2014, New Jersey enacted a new gambling law which repealed certain restrictions on “the placements and acceptance of wagers” on sporting events so long as those events did not involve New Jersey collegiate teams (or other in-state collegiate sporting events). New Jersey contended that this law was admissible under PASPA because it did not actively authorize sports-betting. Once again sports leagues sued to enjoin the law as a violation of PASPA, and prevailed in federal district court. The Third Circuit, sitting en banc, again affirmed, holding that PASPA did not commandeer New Jersey in a way that ran afoul of the federal Constitution. The Supreme Court granted certiorari to address whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of the states. By a vote of 6-3, the Supreme Court reversed the judgment of the Third Circuit. In an opinion delivered by Justice Alito, the Court held that the provisions of PAPSA that prohibit state authorization and licensing of sports gambling schemes violate the Constitution’s anticommandeering rule, and cannot be severed from the remainder of the statute, which collapses as a result.Justice Alito’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Kagan, and Gorsuch. Justice Breyer joined to all except as to Part VI-B. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined, and in which Justice Breyer joined in part. To discuss the case, we have Elbert Lin, Partner at Hunton & Williams, LLP.

On April 24, 2018, the Supreme Court decided Jesner v. Arab Bank, PLC, a case considering whether corporations may be sued under the Alien Tort Statute (ATS).Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel I”) which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability. The U.S. Supreme Court later affirmed the judgment in Kiobel (“Kiobel II”) but on a different basis: the presumption against extraterritorial application of statutes. In Jesner, the Second Circuit, invoking its precedent in Kiobel I--and finding nothing to the contrary in the Supreme Court’s Kiobel II decision--affirmed the district court’s dismissal of Plaintiffs’ ATS claims on the grounds that the ATS does not apply to alleged international law violations by a corporation. This sharpened a split among the circuit courts of appeals on the issue, and the Supreme Court granted certiorari to resolve the dispute.By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion delivered by Justice Kennedy, the Court held that foreign corporations may not be defendants in suits brought under the Alien Tort Statute. Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-B-I, and II-C, joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch--and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, joined by the Chief Justice and Justice Thomas. Justice Thomas filed a concurring opinion. Justices Alito and Gorsuch also filed opinions concurring in part and concurring in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan. To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.

On April 17, 2018, the Supreme Court decided Wilson v. Sellers, a case involving the standard federal courts should use to analyze a state appellate court’s summary denial of habeas relief when applying federal habeas law. In 1996, Marion Wilson was convicted of murder and sentenced to death, and both his conviction and sentence were confirmed on direct appeal. Wilson then sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in investigating mitigation evidence for purposes of sentencing. The superior court denied habeas relief, concluding that any new evidence was cumulative of evidence presented at triall as well as inadmissible, and likely would not have changed the outcome. In a one-sentence order the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal. Wilson then filed a habeas petition in federal district court, which also denied relief. Even assuming Wilson’s counsel had been deficient, the court deferred to the state habeas court’s conclusion that these deficiencies did not ultimately cause prejudice to Wilson. On appeal a divided U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that--rather than “looking through” the Georgia Supreme Court’s summary denial to the reasoning of the lower state habeas court--the district court should have considered what reasons “could have supported” the state supreme court’s summary decision. The U.S. Supreme Court granted certiorari to resolve the resulting split among the circuit courts of appeals on whether federal habeas law employs a “look through” presumption. By a vote of 6-3, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court held that a federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning; the state may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, which was joined by Justices Thomas and Alito. To discuss the case, we have Lee Rudofsky, Solicitor General for the State of Arkansas.

On March 5, 2018, the Supreme Court decided U.S. Bank National Association v. Village at Lakeridge, LLC, a case involving how appellate courts should review a lower court’s determination that a person related in some way to a bankruptcy debtor is an “insider”--and therefore subject to special restrictions that the federal Bankruptcy Code imposes on insiders. In 2011, the Village at Lakeridge (“Lakeridge”) filed for Chapter 11 bankruptcy, which seeks to facilitate a reorganization that allows the debtor to maintain viability while restructuring debts. At the time, Lakeridge owed millions of dollars to its owner MBP Equity Partners (“MBP”), as well as to U.S. Bank. Lakeridge’s proposed reorganization plan placed both creditors in separate classes and would have impaired their interests. U.S. Bank objected, which precluded a consensual plan, but under the Code MBP’s status as an “insider”--being the owner of Lakeridge--meant that MBP could not provide the requisite consent to force a “cramdown” of the plan over U.S. Bank’s objections. Lakeridge was therefore faced with liquidation unless MBP could transfer its claim against Lakeridge to a non-insider who would agree to the reorganization plan. Kathleen Bartlett, a member of MBP’s board, persuaded retired surgeon Robert Rabkin--with whom she was romantically involved--to purchase MBP’s multimillion-dollar claim for $5,000. Rabkin then consented to the reorganization plan. U.S. Bank again objected, arguing that the transaction was not truly at arm’s length due to the romantic relationship between Bartlett and Rabkin; Rabkin was essentially a “non-statutory” insider. The Bankruptcy Court rejected this argument, deeming Rabkin’s purchase a “speculative investment,” and noting that Rabkin and Bartlett lived separately and managed their own affairs. The U.S. Court of Appeals for the Ninth Circuit affirmed that judgment, concluding that it could not reverse unless the lower court had committed a “clear error.” The Supreme Court then granted certiorari to address the proper standard of review.By a vote of 9-0 the Supreme Court affirmed the judgment of the Ninth Circuit. In an opinion delivered by Justice Kagan, the Court held unanimously that the Ninth Circuit acted properly in reviewing the Bankruptcy Court’s determination of non-statutory insider status for clear error rather than undertaking de novo review.Justice Kennedy filed a concurring opinion. Justice Sotomayor also filed a concurring opinion, which was joined by Justices Kennedy, Thomas, and Gorsuch. To discuss the case, we have Tom Plank, Professor of Law, at the University of Tennessee School of Law.As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention.Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified. His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari.This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing.By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class.Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan was recused.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On April 2, 2018, the Supreme Court decided Encino Motorcars v. Navarro, a case on its second trip to the high court regarding a dispute over the interpretation of the Fair Labor Standard Act’s overtime-pay requirements and whether it exempts service advisors at car dealerships.Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to “protect all covered workers from substandard wages and oppressive working hours,” and it requires overtime pay for employees covered under the Act who work more than 40 hours in a given week. The FLSA exempts from this requirement, however, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers….” Hector Navarro and other service advisors filed suit against their employer Encino Motorcars, alleging that it violated the FLSA by failing to pay them overtime wages. Encino countered that as service advisors, Navarro and the other plaintiffs fell within the FLSA exemption. The district court ruled in favor of Encino, but the U.S. Court of Appeals for the Ninth Circuit reversed, relying upon a 2011 regulation issued by the Department of Labor (DOL) and indicating that service advisors were not covered by the exemption. The Supreme Court, however, thereafter vacated the judgment of the Ninth Circuit, determining that the regulation at issue was procedurally defective and remanded the case for the Ninth Circuit to reconsider without “placing controlling weight” on the DOL regulation. On remand, the Ninth Circuit, using the distributive canon of statutory interpretation, held that the FLSA exemption did not encompass service advisors. The Supreme Court again granted certiorari.By a vote of 5-4, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Thomas, the Court held that “service advisors are exempt from the overtime-pay requirement of the FLSA because they are ‘salesm[e]n...primarily engaged in...servicing automobiles.’ §213(b)(10)(A)." Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, which was joined by Justices Breyer, Sotomayor, and Kagan. To discuss the case, we have Tammy McCutchen, Principal at Littler Mendelson, PC. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On April 16, 2018, the Supreme Court heard argument in WesternGeco, LLC v. ION Geophysical Corporation, a case that the Court again took up after having remanded it to the U.S. Court of Appeals for the Federal Circuit for reconsideration in light of the Supreme Court’s 2016 decision Halo Electronics, Inc. v. Pulse Electronics, Inc. In 2015, WesternGeco sued ION for patent infringement. The jury found in favor of WesternGeco, awarding it $93.4 million in lost profits and a reasonable royalty of $12.5 million. Because the jury also found that ION was “subjectively reckless” in its infringement, WesternGeco petitioned the court for additional damages available under applicable law for “willful” infringement, invoking the then-applicable two-part test set out in the Federal Circuit’s In re Seagate decision, which has both a subjective and an objective component. ION countered by arguing that neither component could be satisfied, and the district court agreed as to the objective component, concluding that ION’s positions had been reasonable and not objectively baseless--and therefore would not support a finding of willful infringement under Seagate.On appeal the Federal Circuit reversed the award of lost profits, concluding that WesternGeco was not entitled to lost profits resulting from foreign uses of its patented invention. As to the issue of enhanced damages for willful infringement, however, the Federal Circuit affirmed the judgment of the district court. WesternGeco then sought certiorari from the Supreme Court. After issuing its decision in Halo Electronics--which addressed the standard for enhanced damages--the Supreme Court granted the petition, vacated the Federal Circuit’s judgment, and remanded the case for reconsideration in light of the reasoning in Halo Electronics. The Federal Circuit in turn reinstated the part of its previous decision reversing the lost profits award, but otherwise remanded the case to the district court to consider whether the evidence at trial was sufficient to support the jury’s finding of subjective willfulness. If so, the Federal Circuit indicated, the district court must then exercise its discretion to determine whether enhanced damages were warranted. In the meantime, WesternGeco successfully petitioned the Supreme Court to grant certiorari on whether the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). That provision makes it an act of patent infringement to supply “components of a patented invention,” “from the United States,” knowing or intending that the components be combined “outside of the United States,” in a manner that “would infringe the patent if such combination occurred within the United States.”To discuss the case, we have Stephen Yelderman, Professor of Law at Notre Dame Law School. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On March 21, 2018, the Supreme Court heard argument in Upper Skagit Indian Tribe v. Lundgren, a case that considers whether a state court’s exercise of in rem jurisdiction can be blocked by a tribal assertion of sovereign immunity. The Lundgren family owns land in Skagit County, Washington. A barbed wire fence with a gate runs across the southern portion of an adjacent lot, near--but not up against--the edge of the Lundgrens’ lot. Since 1947, however, the Lundgrens have treated that fence as the actual boundary line of their property, maintaining both the fence and the property along the southern side of the fence. In 2013, the Upper Skagit Indian Tribe (“Tribe”) bought the adjacent lot from the previous owner, though the Tribe only became aware of the fence when surveying the property following its purchase. In 2014, the Tribe notified the Lundgrens that the fence did not actually represent the boundary line between the two lots, and asserted ownership rights to the entire property, including any lying beyond the fence.In 2015 the Lundgrens filed an action in state court to quiet title to the disputed strip of property along the fence, arguing that they had acquired title by adverse possession or mutual recognition and acquiescence well before the Tribe made its purchase. The Tribe countered by asserting that its sovereign immunity required dismissal of the Lundgrens’ action, for lack of subject matter jurisdiction. The trial court ultimately rejected the Tribe’s argument and ruled in favor of the Lundgrens. Although the Tribe had refused joinder to the lawsuit, the court reasoned, ownership of the land could be determined without the Tribe’s participation because the court was proceeding in rem and asserting jurisdiction solely over the property, not the landowner. On direct review, a divided Supreme Court of Washington agreed and affirmed the lower court’s judgment. The United States Supreme Court, however, granted the Tribe’s subsequent petition for certiorari, to address whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.To discuss the case, we have Tom Gede, principal in Morgan Lewis Consulting LLC and of counsel to Morgan, Lewis & Bockius LLP. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On April 2, 2018, the Supreme Court decided Kisela v. Hughes. In 2010, Andrew Kisela, a police officer in Tucson, Arizona, responded to a report of a woman hacking a tree with a kitchen knife before returning into her home. Two other police officers reported to the scene as well. At the scene, another woman, Sharon Chadwick, was standing in the driveway of a nearby house; Hughes re-emerged from her house and walked towards Chadwick. A chain-link fence with a locked gate separated the officers from Hughes and Chadwick. The officers told Hughes to drop the knife, but she did not acknowledge the officers’ presence nor did she put down the knife. Kisela then shot Hughes from behind the fence, and the three officers jumped the fence and called paramedics who transported Hughes to the hospital to be treated for non-life-threatening injuries. At the time of the incident, all three officers believed Hughes to be a threat to Chadwick. It was later revealed that Chadwick was Hughes’s roommate and that Hughes suffers from mental illness. Hughes sued Kisela in federal district court, alleging the use of excessive force in violation of the Fourth Amendment. The District Court granted summary judgment in favor of Kisela, but the US Court of Appeals for the Ninth Circuit reversed, holding that the record, viewed in the light most favorable to Hughes, was sufficient to show that Kisela violated the Fourth Amendment. The excessive force violation, the Ninth Circuit held, was obvious--and the law was in its view clearly established under analogous circuit precedent. Kisela’s petition for rehearing en banc was denied over a seven-judge dissent, but the United States Supreme Court thereafter granted certiorari.By a vote of 7-2, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In light of all the circumstances, the Court indicated in a per curiam opinion, it was “far from [] obvious” that a competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment. Moreover, the Court added, the Ninth Circuit erred in concluding that its own precedent “clearly established” that Kisela’s use of force was excessive. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg. To discuss the case, we have Robert Leider, Associate at Arnold & Porter. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On January 22, 2018, the Supreme Court decided Artis v. District of Columbia, a case concerning the scope of the tolling language contained in the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d). When a federal court dismisses the only claim serving as the basis for its exercise of jurisdiction, it ordinarily also dismisses (without resolving) any related non-federal claims that were part of the same case or controversy. Should the plaintiff wish to refile and pursue those claims in state court, questions may arise as to how any applicable statutes of limitations would apply. The language of § 1367(d) provides that such statutes of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” In 2011, Stephanie Artis filed suit against DC in federal district court alleging unlawful termination in violation of Title VII of the Civil Rights Act of 1964, along with various other claims arising under DC statutes and the common law. The district court granted DC judgment on the pleadings and dismissed Artis’s sole federal claim under Title VII in 2014. Fifty-nine days later, Artis refiled those claims in DC Superior Court. DC responded with a motion for dismissal on the grounds that the claims were time-barred based on the relevant statutes of limitations plus 1367(d). The Superior Court agreed and the DC Court of Appeals affirmed that judgment, concluding that § 1367(d) does not “stop the clock” on state statutes of limitations from the time of an unsuccessful federal filing until 30 days after dismissal, but rather merely creates a 30-day “grace period” for a claimant to refile his or her claims elsewhere.The U.S. Supreme Court thereafter granted Artis’s petition for certiorari to resolve a split among state supreme courts regarding the proper interpretation of § 1367(d). By a vote of 5-4 the Supreme Court reversed the judgment of the DC Court of Appeals and remanded the case. In an opinion delivered by Justice Ginsburg, the Court rejected the “grace period” reading and held that §1367(d)’s instruction to “toll” a state limitations period means to hold it in abeyance, i.e., to stop the clock. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Breyer, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, which was joined by Justices Kennedy, Thomas, and Alito. To discuss the case, we have Misha Tseytlin, Solicitor General of Wisconsin. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.