Category: 3-LawSometimeCommentary

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

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

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

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

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

On April 25, 2016, the Supreme Court heard oral arguments in 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 are two questions before the Supreme Court: (1) Whether the Federal Circuit erred in holding that the Board may, in IPR proceedings, construe claims according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the Federal Circuit erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the decision to institute the IPR proceeding is judicially unreviewable. -- To discuss the case, we have Gregory Dolin, who is Assistant Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On April 25, 2016, the Supreme Court heard oral arguments in 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? -- To discuss the case, we have Christopher M. Newman, who is Associate Professor of Law at George Mason University School of Law.

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

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