Category: 3-LawSometimeCommentary

On March 21, 2016, the Supreme Court heard oral argument in Wittman v. Personhuballah. In 2012, the Virginia State Legislature adopted a redistricting plan that altered the composition of the Third Congressional District by increasing the percentage of African-American voters in the district. In 2013, plaintiffs, who reside in the Third District, sued state election officials, arguing that the District was racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court agreed and held the districting plan to be unconstitutional, but the U.S. Supreme Court vacated that judgment and remanded the case for reconsideration in light of its intervening decision in Alabama Legislative Black Caucus v. Alabama. On remand, the district court held that the redistricting plan failed strict scrutiny and ordered the Virginia General Assembly to devise a remedial plan. When the Assembly did not do so the court devised its own remedial plan and ordered election officials to implement it. -- On further appeal, there are four questions now before the Supreme Court: (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the finding of a Shaw violation by the court below was based on clearly erroneous fact-finding; (4) whether the majority erred in holding that the Enacted Plan fails strict scrutiny because it increased District 3's black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance. -- To discuss the case, we have Derek Muller, who is Associate Professor of Law at Pepperdine University School of Law.

On March 22, 2016, the Supreme Court heard oral argument in Simmons v. Himmelreich. This case arises from a lawsuit filed by federal prisoner Walter Himmelreich as the result of an assault by a fellow prisoner. Although several of Himmelreich’s claims were dismissed in an initial round of litigation, the U.S. Court of Appeals for the Sixth Circuit allowed two to proceed on remand, of which one was a “Bivens” claim made against certain officials in their individual capacities for failing to protect him in violation of the Eighth Amendment. The district court ultimately dismissed the claim, concluding that the “judgment bar” of the Federal Tort Claims Act (“FTCA”) precluded Himmelreich from pursuing a Bivens action against the officials individually when his underlying FTCA claim against the government had failed. On a subsequent appeal the Sixth Circuit disagreed and again revived the Bivens claim, reasoning that the grounds on which the FTCA claim had failed--namely, an exception to liability--indicated a lack of subject matter jurisdiction that did not trigger the FTCA judgment bar. The federal officials sought certiorari. -- The question before the Supreme Court is whether, in an FTCA action brought under Section 1346(b), a final judgment dismissing the claim on the ground that relief is precluded by one of the FTCA exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim. -- To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

On March 22, 2016, the Supreme Court heard oral argument in Puerto Rico v. Franklin California Tax-Free Trust (consolidated with its companion case, Acosta-Febo v. Franklin California Tax-Free Trust). -- Concerned that its public utilities were on the verge of insolvency but could not obtain Chapter 9 bankruptcy relief under federal law, the Commonwealth of Puerto Rico attempted to circumvent this obstacle by passing its own municipal bankruptcy law. This law, the Puerto Rico Public Corporation Debt Enforcement and Recovery Act expressly provides different protections for creditors than those in federal Chapter 9. -- Investors who collectively hold nearly two billion dollars in bonds issued by one of Puerto Rico’s public utilities worried that it might seek relief under the new Puerto Rico law and sued in federal court, challenging the law’s validity and seeking injunctive relief. The district court enjoined the enforcement of the new law and the U.S. Court of Appeals for the First Circuit affirmed. Puerto Rico sought certiorari. -- The question before the Supreme Court is whether Chapter 9 of the federal Bankruptcy Code, although it does not apply to Puerto Rico, nevertheless preempts the Puerto Rico statute creating a mechanism for the Commonwealth’s public utilities to restructure their debts. Justice Alito is recused from this case. -- To discuss the case, we have David Skeel, who is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, and who submitted an amicus brief in support of the Commonwealth of Puerto Rico.

On February 29, 2016, the Supreme Court heard oral argument in 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 to address the following question: Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). -- To discuss the case, we have Ryan Scott, who is Associate Professor at Indiana University Maurer School of Law.

This week, the Supreme Court heard arguments in Zubik v Burwell, the latest challenge to the Affordable Care Act. This time, a group of religious non-profits are challenging the government’s accommodation for employers who don’t want to have anything to do with providing birth control to their workers. Dahlia speaks with Paul Clement, who argued the case for the plaintiffs, and Walter Dellinger, who supports the government's position.

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On January 20, 2016, the Supreme Court decided Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan. Petitioner Montanile was injured by a drunk driver and his benefits plan paid more than $120,000 in medical expenses. He later sued the drunk driver, obtaining a $500,000 settlement. The benefits plan, governed by the Employees Retirement Income Security Act (ERISA), contained a subrogation clause requiring a participant to reimburse the plan for medical expenses if the participant later recovers money from a third party for his or her injuries. When respondent plan administrator/fiduciary sought reimbursement from Montanile’s litigation settlement, he refused, and the administrator sued in federal court, seeking an equitable lien on any settlement funds or property in Montanile’s possession. Montanile argued that because he had by then spent almost all of the settlement, no identifiable fund existed against which to enforce the lien. The District Court rejected Montanile’s argument and the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. -- By a vote of 8-1 the Supreme Court reversed the judgment of the Eleventh Circuit, holding that when a participant dissipates the whole settlement on nontraceable items, the fiduciary cannot bring a suit to attach the participant’s general assets under ERISA §502(a)(3) because the suit is not one for “appropriate equitable relief.” The Court deemed it unclear whether Montanile had in fact dissipated all of his settlement in this manner, however, and thus remanded the case for further proceedings. -- Justice Thomas delivered the opinion of the Court, joined by the Chief Justice and Justices Scalia, Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito joined the majority opinion except for Part III-C. Justice Ginsburg filed a dissenting opinion. -- To discuss the case, we have Daniel R. Thies, who is an associate at Sidley Austin LLP.

On February 23, 2016, the Supreme Court heard oral argument in Halo Electronics v. Pulse Electronics, which was consolidated with Stryker Corp. v. Zimmer. Both of these cases involved claims of patent infringement relating to the sale or marketing of various inventions. Both also involved a determination by the U.S. Court of Appeals for the Federal Circuit that an award of enhanced damages for infringement under 35 U.S.C. § 284 was not appropriate, after applying the Circuit’s two-part objective/subjective test for willful or bad-faith infringement set forth in In re Seagate Tech., LLC. -- The question before the Supreme Court is whether the Federal Circuit’s refusal to allow enhanced damages absent a finding of willfulness under its two-part test contravenes the plain meaning of 35 U.S.C. § 284, given the Supreme Court’s recent rejection of an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys' fee awards in exceptional cases. -- To discuss the case, we have Gregory Dolin who is Associate Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On March 7, 2016, the Supreme Court decided Americold Realty Trust v. ConAgra Foods, a case giving rise to a dispute over the scope of federal courts’ diversity jurisdiction. A group of corporations whose food perished in a warehouse fire sued the warehouse owner, currently known as Americold Realty Trust, in Kansas state court. Americold then removed the suit to the U.S. District Court for the District of Kansas, which accepted jurisdiction and resolved the dispute in favor of Americold. On appeal, however, the U.S. Court of Appeals for the Tenth Circuit held that the district court had lacked jurisdiction. Although the parties argued that diversity jurisdiction existed because the suit involved citizens of different states, the Tenth Circuit disagreed. As a trust and not a corporation, the court reasoned, Americold’s citizenship depended on that of its members, including shareholders. Given the lack of evidence regarding the shareholders’ citizenship, the court held, the parties had failed to demonstrate that the plaintiffs were citizens of different states than the defendants. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Tenth Circuit, holding that for purposes of diversity jurisdiction, the citizenship of an unincorporated entity depends on the citizenship of all of its members. Under Maryland law a real estate investment trust is held and managed for the benefit of its shareholders, the Court explained, so Americold’s members include its shareholders. Justice Sotomayor delivered the opinion for a unanimous court. -- To discuss the case, we have Erik Zimmerman, who is an attorney with Robinson Bradshaw in Chapel Hill, North Carolina.

On January 20, 2016, the Supreme Court decided Campbell-Ewald Company v. Gomez. This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. The case presents two questions for the Supreme Court: (1) whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, including in a class action, and (2) whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects. The U.S. Court of Appeals for the Ninth Circuit had held that Gomez’s individual and class claims were not mooted, and that Campbell-Ewald was not entitled to derivative sovereign immunity. -- By a vote of 6-3, the Supreme Court affirmed the judgment of the Ninth Circuit, holding that (1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint, and (2) a federal contractor is not entitled to immunity from suit for its violation of the Telephone Consumer Protection Act when it violates both federal law and the government's explicit instructions. Justice Ginsburg delivered the opinion of the Court, in which Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgement. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Alito joined. Justice Alito also filed a dissenting opinion. -- To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.

On March 2, 2016, the Supreme Court heard oral argument in Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation. -- The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility. The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, and that stay currently remains in place pending issuance of the written judgment of the Supreme Court. Thus, the district court’s original injunctions against the Texas law remain in effect for now. -- There are two questions before the Supreme Court: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would (according to petitioners) cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest. -- To discuss the case, we have Roger Severino who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.