Editor's Note :

Editor's Note :

There is a possibility of opinions on Tuesday, April 25. We will begin live-blogging at this link at 9:45 a.m.
On Tuesday the court hears oral argument in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County. Ronald Mann has our preview.
On Tuesday the court also hears oral argument in BNSF Railway Co. v. Tyrrell. Amy Howe has our preview.

We live-blogged this morning as the court issued opinions. The transcript is available at this link.

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Tuesday round-up

By on Apr 18, 2017 at 7:29 am

Today the court hears argument in two cases. The first is Kokesh v. Securities and Exchange Commission, which asks whether a federal statute of limitations on civil penalties and forfeitures applies to disgorgements. Theresa Gabaldon previewed the case for this blog. Kara Goad and Elizabeth Sullivan provide a preview for Cornell University Law School’s Legal Information Institute. In the Santa Fe New Mexican, Bruce Krasnow reports that “the arguments against the SEC have drawn the attention of others who consider themselves wronged by the SEC and have filed supporting briefs in the case, including Mark Cuban, owner of the Dallas Mavericks of the NBA.” At Yahoo Finance, Erin Fuchs also remarks on Cuban’s interest in the case. Today’s second argument is in Henson v. Santander Consumer USA, Inc., in which the justices will decide whether the Fair Debt Collection Practices Act applies to debt buyers. Ronald Mann had this blog’s preview. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Thomas Kim and Ben Rosales preview the case for Cornell.
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Petition of the day

By on Apr 17, 2017 at 11:23 pm

The petition of the day is:

16-911

Issues: (1) Whether the Fair Labor Standards Act, 29 U.S.C. § 207(e)(2), allows employers, when calculating the overtime rate, to exclude payments to an employee that are entirely unrelated to “his hours of employment,” as other courts of appeals have held in conflict with the U.S. Court of Appeals for the 9th Circuit; and (2) whether the 9th Circuit’s outlier “willfulness” standard, triggered whenever a non-compliant employer “was on notice of its FLSA requirements” but failed to investigate further, contravenes this court’s decision in McLaughlin v. Richland Shoe Company.

Aggressive questioning and a singular perspective from the Supreme Court’s newest member, along with complaints from Justice Samuel Alito about the incomprehensibility of the Civil Service Reform Act, highlighted Monday’s argument in Perry v. Merit Systems Protection Board. Both livened up a complex statutory case that appeared to be a likely win for the petitioner.

At issue is the handling of “mixed cases,” alleging both adverse employment actions against federal civil-service employees and statutorily prohibited discrimination, when the Merit Systems Protection Board concludes that it lacks jurisdiction because the employee was not subject to an appealable action. Perry argues that review should be in the district court, as with all mixed cases; the government argues that review of the single issue should be in the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over MSPB appeals.

The highlight of the argument was the aggressive questioning by Justice Neil Gorsuch, hearing his first case on his first argument day on the court. In questions for both sides, Gorsuch seemed skeptical of the notion of a mixed case singularly heard in the district court, suggesting that district courts are granted authority only to hear the discrimination portion of the case, but not to review the determinations of the MSPB, which remain within the exclusive purview of the Federal Circuit. To the extent that necessitates splitting claims, the splitting is supported by the statute, which does not provide for district court review of MSPB decisions. When Christopher Landau, arguing for Perry, insisted that district courts already review substantive and procedural decisions of the MSPB and that this case does not require the court to break any new ground, Gorsuch responded that Landau instead was asking the court “just to continue to make it up.” Gorsuch later pushed Assistant to the Solicitor General Brian Fletcher to follow the language of the statute to a simpler approach, even if it means splitting claims. Justice Elena Kagan intervened, arguing that the court’s decision in Kloeckner v. Solis and cases from all courts dating back to 1983 establish that full merits review in mixed cases rests with the district court. To change course, she insisted, “would be kind of revolution, I mean, in — in — to the extent that you can have a revolution in this kind of case.”

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Argument transcripts

By on Apr 17, 2017 at 4:40 pm

The transcript in Perry v. Merit Systems Protection Board is here; the transcript in Town of Chester v. Laroe Estates, Inc. is here; the transcript in California Public Employees’ Retirement System v. ANZ Securities, Inc. is here.

Posted in Merits Cases
 
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During his March confirmation hearing, then-Judge Neil Gorsuch repeatedly professed his belief that judges should adhere to the plain language of a law, without considering other factors such as the law’s history or what Congress might have intended when it enacted the law. After his first oral argument as a Supreme Court justice, it became clear that, when it comes to taking a statute literally, Gorsuch meant exactly what he said.

The justices opened their April session with a case presenting a technical but important question about appeals from decisions by the Merit Systems Protection Board, which reviews federal employees’ claims that they were wrongly fired, suspended or demoted. When the MSPB rules that it lacks the authority to rule on an employee’s claim because the employee cannot appeal the allegedly wrongful action, but the employee also alleges that she has been the victim of discrimination – a so-called “mixed case” – does the case then go to a federal district court, or to the U.S. Court of Appeals for the Federal Circuit?

Justice Gorsuch’s first day on the bench for arguments (Art Lien)

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In Martinez v. Ryan, the Supreme Court confronted the thorny tension between the constitutional right of all criminal defendants to counsel (and to the effective assistance of counsel) both at trial and on direct appeal, and the justices’ refusal to confer similar protection upon criminal defendants in discretionary or collateral state or federal post-conviction proceedings. The problem is especially acute in what might be called “nested” ineffective assistance cases — when a defendant’s claim is that the lawyer who represented him in state post-conviction proceedings provided ineffective assistance by failing to raise adequately the defendant’s claim of ineffective assistance on the part of the lawyers who handled his trial and/or direct appeal.

Writing for a 7-2 majority in Martinez, Justice Anthony Kennedy split the difference. Instead of recognizing that criminal defendants have a right to counsel in collateral post-conviction proceedings, the court held that the ineffective assistance of counsel in such proceedings would excuse the defendant’s failure to press the underlying ineffective assistance claim adequately — and would therefore allow a federal habeas court to reach the merits of the original claim of ineffective assistance by the defendant’s trial counsel.

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Monday round-up

By on Apr 17, 2017 at 7:04 am

As they kick off the last session of October Term 2016, the justices will hear oral arguments in three cases today. First up is Perry v. Merit Systems Protection Board, in which the court will consider the proper form for civil service review in mixed cases. Howard Wasserman previewed the case for this blog. Dara Brown and Jaeeun Shin also provide a preview for Cornell University Law School’s Legal Information Institute. The second case of the day is Town of Chester v. Laroe Estates, Inc., which asks whether intervenors in a lawsuit must have standing. This blog’s preview came from Howard Wasserman. Taneil George and Nicholas Velonis preview the case for Cornell.

After a lunch break, the justices will reconvene to hear argument in California Public Employees’ Retirement System v. ANZ Securities, Inc., which involves the rules for timely filing of securities class actions. Ronald Mann previewed the case for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Cornell’s preview comes from Anna Marienko and Michele Korkhov. The George Washington Law Review previews all the cases on the April argument calendar.

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This week at the court

By on Apr 16, 2017 at 12:02 pm

The court issued orders from its April 13 conference on Monday. The court did not grant certiorari in any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in two cases. On Wednesday, the court released its opinions in two more cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the April sitting is available on the court’s website. On Friday the justices met for their April 21 conference; our list of “petitions to watch” for that conference is available here.

 
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Petition of the day

By on Apr 14, 2017 at 11:26 pm

The petition of the day is:

16-969

Issue: Whether 35 U.S.C. § 318(a), which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires that Board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows that Board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner, as the U.S. Court of Appeals for the Federal Circuit held.

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