Scotuscast

On Nov. 5, 2019, the U.S. Supreme Court heard argument in Allen v. Cooper, which involves a dispute over the way state sovereign immunity and federal copyright law interact when an author alleges state infringement of that author’s federal copyright.Petitioner Frederick Allen and his company, Nautilus Productions, contend that North Carolina violated their federal copyrights by publishing video and photographic footage that Allen had taken of the pirate Blackbeard’s sunken flagship, Queen Anne’s Revenge. Allen also challenges the validity of a recently passed North Carolina statute providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records. This law, he contends, was enacted in bad faith to undermine his copyright claim.Allen and Nautilus sued North Carolina and various of its officials in federal district court. Although the district court rejected defendants’ invocation of sovereign immunity from suit, the U.S. Court of Appeal

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. To discuss the case, we have Peter Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC.As always, the Federalist Society takes no particular le

On Nov 6, 2019, the U.S. Supreme Court heard County of Maui, Hawai’i v. Hawai’i Wildlife Fund, which involves a dispute over whether the Clean Water Act’s permit requirement applies when pollutants originate from a concrete point but are only conveyed to navigable waters indirectly, via groundwater.Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.Hawai’i Wildlife Fund and various other organizations filed suit against the County, alleging that it was violating the CWA b

On Nov. 4, 2019, the U.S. Supreme Court heard argument in Kansas v. Glover, a case involving a dispute over the “reasonable suspicion” necessary to justify a traffic stop when the registered owner of a vehicle has a revoked license but the actual driver of the vehicle has not been identified.A county sheriff’s deputy pulled over Charles Glover, Jr. after running a registration check on the vehicle Glover was driving and finding that the registered owner had a revoked license. Although Glover was, in fact, the registered owner, the deputy did not attempt to confirm his identity before making the stop; nor did he witness any traffic violations. The deputy had simply assumed the registered owner was the person driving the vehicle. Glover moved to suppress evidence obtained during the traffic stop, arguing that the officer had lacked the requisite “reasonable suspicion” of illegal activity to authorize the stop. The Kansas Supreme Court ultimately agreed with Glover, holding that

On October 16, 2019, the Supreme Court heard oral argument in Mathena v. Malvo, a case which concerns the scope of a new constitutional rule when applied retroactively on collateral review.In 2004, respondent Lee Boyd Malvo was convicted in Virginia on various counts of capital murder due to his participation in the “DC Sniper” attacks of 2002. As he was 17 years old at the time, he avoided the death penalty and was sentenced to four terms of life imprisonment without parole. In 2012, the Supreme Court held in Miller v. Alabama that sentencing a person younger than 18 to mandatory life imprisonment without parole violates the Eighth Amendment’s prohibition on cruel and unusual punishments. In 2016, the Court then held in Montgomery v. Louisiana that Miller had announced a new substantive rule applicable retroactively in cases on state collateral review.When Malvo raised these issues on collateral review, the Fourth Circuit held that his sentences of life without parole must be vacated base

On October 8, 2019, the U.S. Supreme Court heard argument in two consolidated cases asking whether discrimination “because of … sex,” which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination based on sexual orientation.In Altitude Express, Inc. v. Zarda, gay skydiving instructor Donald Zarda was fired after a female client with whom he was preparing a tandem jump alleged that he had touched her inappropriately, though he had disclosed his sexual orientation to protest that his intentions were not sexual. His lawsuit alleged that his employer discriminated against him because he was honest about his sexual orientation and did not conform to a “straight male macho stereotype.”In Bostock v. Clayton County, Georgia, Gerald Bostock, a gay man who worked as a Child Welfare Services Coordinator for the Clayton County Juvenile Court System, was fired after Clayton County learned of his sexual orientation, his participation in a gay recreational softball

On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas and Ramos v. Louisiana, both of which raise questions of constitutional criminal law.In Kahler, a jury convicted James Kahler of capital murder. Among other things, he objected at trial to a Kansas statute limiting any “mental disease or defect” defense to formation of the requisite mental state for the charged offense. The statute, Kahler argued, denied him due process by depriving him of the ability to present an insanity defense. The Supreme Court of Kansas, following its precedent, noted that state law had deliberately “abandon[ed] lack of ability to know right from wrong as a defense,” and rejected Kahler’s argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Eighth and Fourteenth Amendments to the U.S. Constitution permit a state to abolish the insanity defense.In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors.

On October 7, 2019, the Supreme Court heard oral argument in Peter v. NantKwest Inc., a case which considers 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 application 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

On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement.State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Ba

On March 19, 2019, the Supreme Court decided Nielsen v. Preap (and its companion case Wilcox v. Khoury), both of which consider the extent to which the mandatory detention provision of the Immigration and Naturalization Act applies to defendants who were not arrested by immigration officials immediately upon their release from criminal custody.Aliens who are arrested in order to be removed from the United States typically can seek release or parole on bond while any dispute about their removability is being resolved. Title 8 U.S.C. § 1226(c)(1), however, creates an exception: aliens who have committed certain crimes or have a connection to terrorism must be arrested when released from custody relating to their criminal charges, and almost always held without bond until the question of removal is settled.The U.S. Court of Appeals for the Ninth Circuit interpreted this mandatory detention provision to apply only when the alien is arrested immediately after release from prison. If a short period of time i

On March 20, 2019, the Supreme Court decided Frank v. Gaos, a case raising the question whether, or under what circumstances, a cy pres award that provides no direct relief to class members fulfills the Federal Rules of Civil Procedure 23(e) requirement that a class action settlement be "fair, reasonable, and adequate."In a class-action suit with three named plaintiffs, Google was accused of violating the Stored Communications Act by sharing user search terms and other information with the server hosting whatever webpage that user clicked to via Google Search results. A settlement was reached that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. The district court approved the settlement over the objections of several class members, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court then granted certiorari to addr

On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp. v. Devries, a case addressing the liability of a manufacturer under maritime law for injuries caused when asbestos was incorporated into their product by a third party after sale.The Air & Liquid Systems Corporation (ALS) produced equipment for United States Navy ships. Parts of the equipment required asbestos insulation and asbestos parts in order to function but the manufacturers delivered the equipment without asbestos and the Navy added it later. Two Navy veterans, Kenneth McAfee and John DeVries developed cancer and died after being exposed to asbestos while stationed on the ships. Their families sued manufacturer ALS in federal district court, alleging that it had negligently failed to warn about the dangers of asbestos in the integrated products. ALS countered that it should not be held liable for asbestos that was added later by a third party, an argument known as the “bare metal” defense. The district court r

On March 26, 2019, the Supreme Court decided Sturgeon v. Frost, a case considering whether the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the National Park System in Alaska.Congress, through ANILCA, created ten new national parks, monuments, and preserves with 104 million acres of federally owned land. When selecting the boundary lines, Congress chose to use the natural features of the land rather than strictly the federally owned land. The state, private, and Native lands within the boundary lines became in-holdings totaling 18 million acres. To protect the landowners, Congress included Section 103(c) which, in part, states that only federally owned lands within a conservation reserve unit were to be considered a part of the unit and that no state or private land is subject to regulations pertaining to federal land within the unit. P

On April 1, 2019, the Supreme Court decided Bucklew v. Precythe, a case considering the standard applicable when an offender sentenced to death raises an Eighth Amendment challenge to the state’s lethal injection procedure.Petitioner Russell Bucklew was convicted of murder and sentenced to death by lethal injection of a single drug, pentobarbital, by the State of Missouri. Bucklew challenged the State’s injection protocol under the Eighth Amendment, alleging that regardless of whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of a particular medical condition he had. The District Court dismissed his challenge. The U.S. Court of Appeals Eighth Circuit, applying Supreme Court precedent in Baze v. Rees and Glossip v. Gross, remanded the case to allow Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Bucklew eventually suggested nitrogen hypoxia, but the District Court re

On June 17, 2019, the Supreme Court decided Gamble v. United States, a case challenging the validity of the "separate sovereigns" exception to the Double Jeopardy Clause of the U.S. Constitution’s Fifth Amendment.In 2015 Terance Gamble, who had previously been convicted of second-degree robbery in Alabama state court, pleaded guilty in state court to possessing a firearm in violation of Alabama’s law against firearm possession by anyone convicted of a “crime of violence.” Federal prosecutors thereafter relied on the same facts to charge Gamble with violating the federal statute that forbids convicted felons to possess a firearm. Gamble moved to dismiss the federal charge, arguing that the Double Jeopardy Clause precluded a second conviction for essentially the same offense. The district court and the U.S. Court of Appeals for the Eleventh Circuit rejected Gamble’s argument due to the “dual sovereignty” or “separate sovereigns” doctrine, which holds that t

On June 24, 2019, the Supreme Court decided Dutra Group v. Batterton, a case addressing whether a plaintiff may recover punitive damages on a claim of unseaworthiness.Christopher Batterton was injured while working on a vessel owned and operated by the Dutra Group. Batterton claimed the vessel was unseaworthy due to a missing safety feature and sued Dutra in federal district court for, among other things, punitive damages. Dutra argued that punitive damages are not available on claims for unseaworthiness, but the district court and the U.S. Court of Appeals for the Ninth Circuit rejected Dutra’s argument. Because that ruling underscored a division among the circuit courts of appeals on the issue, the Supreme Court granted certiorari to resolve the split.By a vote of 6-3, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Justice Alito delivered the opinion of the Court, holding that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Justice Ali

On June 26, 2019, the Supreme Court decided Tennessee Wine & Spirits Retailers Association v. Thomas, a case considering whether Tennessee’s two-year durational residency requirement for obtaining a retail liquor license is constitutional.In 2016, companies Total Wine and Affluere Investments, Inc. applied for licenses to own and operate liquor stores in Tennessee. Although state law imposed a two-year durational residency requirement that the entities did not meet, the Tennessee Alcoholic Beverage Commission (TABC) had obtained an opinion from the state attorney general that the requirement operated as a discriminatory trade restraint in violation of the U.S. Constitution’s Commerce Clause. TABC, therefore, recommended approval of the licenses, but trade association Tennessee Wine and Spirits Retailers Association (Association)--composed of in-state liquor retailers--threatened to sue TABC if the licenses were granted. TABC, therefore, sought declaratory relief on the validity of the durat

On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorar

On June 20, 2019, the Supreme Court decided The American Legion v. American Humanist Association, a case considering whether state funding of a war memorial in the form of a religious symbol is in violation of the Establishment Clause of the First Amendment. In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005),

On May 13, 2019, the Supreme Court decided Franchise Tax Board of California v. Hyatt, a case considering whether states maintain sovereign immunity from private suits in the courts of other states. In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory ca