Editor's Note :

Editor's Note :

We expect orders from the February 23 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.
On Monday the court hears oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Amy Howe has our preview.
On Monday the court also hears oral argument in Ohio v. American Express Co. Beth Farmer has our preview.

Relist Watch

By on Feb 22, 2018 at 2:39 pm

John Elwood reviews Tuesday’s relists, after a fashion.

The Supreme Court has just finished one of its longest breaks between conferences, from January 19 (which already seems like ancient history) to February 16. But after all that time, the court returns having dispatched only two relists – one, the old-fashioned way, by denial of cert, Serrano v. United States, 17-5165; and one by summary reversal, CNH Industrial N.V. v. Reese, 17-515. With temperatures hitting the 80s in D.C., maybe that should be summery reversal. Kidding aside, the court has been carrying a few of these relists for months now, so it’s about time for us to be seeing opinions of some sort in them.

The Supreme Court also returns from its long break with a whopping 10 new relists. The highest-profile of the bunch is undoubtedly Department of Homeland Security v. Regents of the University of California, 17-1003, the closely watched government petition that concerns the validity of the decision to wind down the Obama administration’s “Deferred Action for Childhood Arrivals” (DACA) policy. Because it’s well past the normal mid-January cutoff for granting cert in time for a case to be argued this term, the court’s decision to relist suggests that, even if granted, the case won’t be argued before the summer recess. The other cases involve a wide array of issues, including the need for property owners to exhaust state-court remedies to ripen federal claims under the takings clause; whether the U.S. Sentencing Guidelines were unconstitutionally vague back when they were still considered mandatory; and whether convicted sex offenders are required to register under the federal Sex Offender Notification and Registration Act while they are still in custody, regardless of how long they have until release. The court also relisted two petitions involving the prisoner whose declining health has left him unable to remember the murder that landed him on death row. I’d keep going, but the week began on Tuesday, and I am about to embark on a six-hour flight with spotty internet access, so I wanted to get this posted as quickly as I could.

We’ll be back again next week. Hopefully, we’ll have more clarity by then.

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The oral argument in Dahda v. United States started off on a bad note for Los Rovell Dahda, who was represented by Kannon Shanmugam. Shanmugam was asking the court to find that a wiretap order was “insufficient on its face,” and therefore triggered Title III of the Omnibus Crime Control and Safe Streets Act of 1968’s statutory exclusionary rule, because it authorized surveillance outside the issuing court’s territorial jurisdiction. Asking the first question, Justice Ruth Bader Ginsburg seemed to embrace one of the government’s central arguments. Yes, the district court “authorized more” than legally allowed by approving surveillance outside the court’s territorial jurisdiction, “but that more was never introduced” in Dadha’s trial. So, no harm, no foul. Later, Ginsburg returned to the same theme, noting that, “as applied, the orders did not violate the statute,” and then quickly adding that a ruling on that basis “seems to make good sense.”

Kannon K. Shanmugam for petitioner (Art Lien)

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Sometimes, an appellate court uses oral argument to help it decide who ought to win. Other times, the justices know who will win, and oral argument becomes an opportunity for the judges to use counsel as a sounding board as to how the opinion should be written. Wednesday’s Supreme Court oral argument in Rosales-Mireles v. United States had the earmarks of the latter.

The issue in this case is whether a plain Sentencing Guidelines error should normally be corrected, even when the defendant has failed to object in the district court. It appears that six or seven justices will vote in favor of petitioner Florencio Rosales-Mireles, convicted of illegal re-entry into the United States and sentenced to 78 months in prison. Based on the probation officer’s inadvertent double-counting of a misdemeanor assault conviction, the district court incorrectly believed the sentencing range to be 77-96 months, and sentenced Rosales-Mireles to what it believed was nearly the bottom of the range. In fact, the pronounced sentence fell near the middle of the correct range, 70-87 months. Rosales-Mireles’ lawyer did not detect the error.

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Setting the stage

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 created a bounty system designed to reward those who provide information to the Securities and Exchange Commission when that information leads to monetary penalties. The term “whistleblower” appeared multiple times throughout the several pages of new Section 21F of the Securities Exchange Act of 1934 and was specifically defined as “any individual who provides … information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”

The whistleblower award structure created by Section 21F was paired early on with protection against employer retaliation. Two proposed subsections protected whistleblowers from retaliation for providing information to the commission (“Clause (i)”) and for participating in any judicial or administrative actions based on or related to the information provided (“Clause (ii)”). These subsections eventually were joined by a third anti-retaliation subsection (“Clause (iii)”). Clause (iii) prohibits retaliation against “whistleblowers” for acts protected under several cross-referenced laws. These acts include, under the Sarbanes-Oxley Act of 2002, internal reporting and/or reporting to or cooperating with arms of government other than the commission – notably including members and committees of Congress.

Justice Ginsburg with opinion in Digital Realty Trust Inc. v. Somers (Art Lien)

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Thursday round-up

By on Feb 22, 2018 at 7:12 am

Yesterday the court doubled its opinion output for this term in argued cases. Adam Liptak reports on all four of yesterday’s opinions for The New York Times, and Nina Totenberg does the same at NPR. In Murphy v. Smith, the justices held 5-4 that courts must apply up to 25 percent of a judgment to pay attorneys fees in civil-rights cases brought on behalf of prisoners. Subscript offers a graphic explainer for the opinion. At LAWnLinguistics, Neil Goldfarb remarks that in analyzing the text of the relevant statute, Justice Neil Gorsuch referred to one of two authoritative books on English grammar, marking the first time that tome has been cited in a Supreme Court opinion.

In Rubin v. Islamic Republic of Iran, the court ruled 8-0, with Justice Elena Kagan recused, that the Foreign Sovereign Immunities Act does not provide a freestanding basis for parties to satisfy a judgment against a foreign state by seizing that state’s property. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court, and Subscript has a graphic explainer. At The National Law Journal (subscription or registration required), Tony Mauro reports that the ruling “made it more difficult to attach museum artifacts and other holdings in the United States to fulfill judgments against foreign countries.” Additional coverage of Rubin comes from Jess Bravin for The Wall Street Journal.

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Posted in Round-up

Petition of the day

By on Feb 21, 2018 at 6:00 pm

The petition of the day is:


Issue: Whether there are exceptions to the Supreme Court’s ruling in Napue v. Illinois that would allow a criminal defendant to be convicted based on perjury that the prosecution fails to correct.


Argument transcripts

By on Feb 21, 2018 at 3:54 pm

The transcript in Rosales-Mireles v. United States is available on the Supreme Court’s website; the transcript in Dahda v. United States is also available.


Posted in Merits Cases

On November 15, 2006, Fane Lozman rose to speak during the public-comments portion of a regular public meeting of the City Council of Riviera Beach, Florida. What followed was anything but a run-of-the-mill discussion about the intricacies of local government. To the contrary, when Lozman began to talk about “corrupt local politician[s],” he was cut off by a councilperson and asked to cease that line of commentary. When Lozman refused to comply, he was arrested, handcuffed and removed from the meeting.

In February 2008, Lozman filed a Section 1983 suit against Riviera Beach in the U.S. District Court for the Southern District of Florida. He alleged, among other things, that his arrest constituted retaliation for First-Amendment–protected activity. Specifically, Lozman charged that his arrest amounted to payback for two categories of protected expression: his then-pending lawsuit against the city under Florida’s Sunshine Act, and his extensive public criticisms of city officials and policies, including and preceding his remarks on November 15.

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The Supreme Court ruled today that U.S. victims of a 1997 terrorist attack in Jerusalem cannot rely on a provision of the Foreign Sovereign Immunities Act to seize a collection of Iranian antiquities held by the University of Chicago. The decision put an end to the latest efforts by the victims and their families to recover some of the $71.5 million default judgment entered by a federal court in Washington, D.C., against Iran for that country’s role in providing support for Hamas, the terrorist group that carried out the bombing.

The dispute before the Supreme Court centered on the interpretation of the FSIA, which carves out several narrow exceptions to the general rule that a foreign state and its “agencies and instrumentalities” (organizations or companies owned by the foreign state) cannot be sued in U.S. courts. Even if (as here) a lawsuit is allowed to go forward, the foreign country’s property cannot normally used to satisfy a judgment against it. Nor – again, subject to some exceptions – can the judgment be executed against the foreign state’s agencies or instrumentalities, on the theory that they are separate entities.

Justice Sotomayor with opinion in Rubin v. Islamic Republic of Iran (Art Lien)

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My preview of City of Hays, Kansas v. Vogt described the case as “deceptively complex.” Some of the difficulties in the case seem to have come into focus only (as Justice Stephen Breyer candidly put it) “suddenly … for the first time” at yesterday’s oral argument. The Question Presented is whether, in a Section 1983 civil suit for damages, allegations that a defendant was compelled to make incriminating statements that were later used against him in a criminal preliminary hearing (and not at a trial) state a violation of the Fifth Amendment. After exploring some of the complexities (from opposite perspectives), Justices Samuel Alito and Sonia Sotomayor found themselves in agreement: They both perceived the case as “very odd.”

Indeed, halfway through the hour, Breyer suggested that the case now “raises the question whether this is, in fact, an appropriate case … for the Court to take.” Vogt’s attorney embraced the implication: “[I]f the Court wanted to DIG the case … we would certainly not object.” (“DIG” is Supreme Court shorthand for “Dismiss as Improvidently Granted,” simply un-granting the petition for certiorari and dismissing the case without any opinion on the merits.) Although Chief Justice John Roberts appeared to object, telling the attorney that “it’s a question you have been presented with,” the uncertain doctrinal implications of any ruling, along with problems with the record that were recognized at oral argument, could support a “DIG” result here.

Justice Breyer questions respondent’s lawyer, Kelsi B. Corkran (Art Lien)

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