SCOTUS Cases from the Fifth Circuit

circuit_map_in_agency_palette-full-sizeLast term the Supreme Court decided nine cases that arose in the Fifth Circuit. The Fifth Circuit was reversed five times and affirmed twice, and the two remaining cases (on Obama’s immigration plan and on tribal-court jurisdiction) ended in a 4-4 tie. So far, for OT2016, there are only four cases that arose in the Fifth Circuit. Here’s a quick overview of those cases:

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Circuit Splits

In bankruptcy a debtor cannot discharge her liability for obtaining money, property, etc., by fraud, but there is a circuit split over whether the debtor must have personally received the money, property, etc., obtained by fraud. See here at p.21 n.73.

Circuits are splitting over the impact of Johnson and whether sentencing statutes are unconstitutionally vague. See, e.g., here at p.11 n.7.

The courts have split over “the proper way to analyze predominance” in the class-certification inquiry. See here at p.121. (Incidentally, this is a 223-page opinion with 136 numbered paragraphs and 86 footnotes, some of which run over several pages.)

There’s a “budding circuit split” on whether third parties asserting an interest in forfeited assets are denied due process if barred from challenging the validity of the forfeiture. See here at p.16-17.

Apparently there’s a very old split over whether the party seeking to enforce a contractual waiver of a jury trial has the burden to show the waiver was knowing and voluntary. See here at p.5 n.12.

There is disagreement among the circuits about whether Nassar requires plaintiffs claiming retaliation to show but-for causation as part of their prima facie case or, instead, at the third step of the McDonnell Douglas framework to rebut the employer’s legitimate stated reason for the adverse employment action. See here at p.4 n.4.

And there’s a split over whether the ADEA’s broader protections against discrimination preclude suits under § 1983 and the Equal Protection Clause. See here at p.30 n.12.

Why the GOP Should #GoWithGarland, Take 2

New piece posted at The Huffington Post on the Garland nomination:

On MSNBC talking SCOTUS

MSNBCDon’t have a video clip yet, but here’s the transcript of my short segment about the Supreme Court vacancy and the Garland nomination on “All In with Chris Hayes” (MSNBC), 8/9/16:

HAYES: Senate Republicans continue their completely unprecedented obstruction of Supreme Court nominee Merrick Garland. Now, for the 146th day, refusing to even give him a hearing. In the short-term, seems like there`s nothing the Democrats can do about it. But, here is the thing, as another poll shows Trump down by double-digits nationally, Republicans could not only be facing another Democrat in the Oval Office, but could also lose control of the senate.

Then it gets interesting, because the Senate GOP could end up with a nominee they like even less than Garland, something Republican Susan Collins suggested on this network today.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS, (R) MAINE: That`s the very interesting scenario that I have raised with my colleagues in the senate. And that is that they may be hoisted on their own petard here. If Hillary is elected, I believe that she is much more likely to nominate someone who is to the left of Merrick Garland, because I believe that President Obama deliberately and wisely, in my view, chose someone who was a centrist.

(END VIDEO CLIP)

HAYES: Joining me now, Jason Steed, an appellate attorney, who has argued before the Supreme Court, contributor at Huffington Post. And Jason, you have been tweeting about the scenarios by which this all might play out. So, my sense always is the Republicans want two bites of the apple. Their plan is, block Merrick Garland now. If Clinton wins, rush to confirm him, because he`s the best they`ll get in the lame duck. How do you upset that?

JASON STEED, APPELLATE ATTORNEY: How do the Democrats upset that?

HAYES: Yeah, if the Democrats want to prevent that from happening?

STEED: Yeah, I think the best way to upset that is if there`s a credible threat of Garland`s nomination being withdrawn. So if the morning after the election, we have President Clinton who has been elected and a Democratic senate majority and there`s a real threat they could withdraw – that President Obama could withdraw Garland`s nomination, then I think the Republicans are under pressure to try to confirm him before the election.

If that seems like that`s a really scenario…

HAYES: Right. So the key is that the White House or the Clinton campaign or Democrats have to be sending some sort of back-channel message publicly or privately to Republicans on the Hill, saying, you only get one bite of the apple. You don`t confirm him, we`re withdrawing him. Hillary Clinton is going will find a 25-year-old to put on the court for the next 70 years.

STEED: Right, a 25-year-old version of Pam [Karlan]* or something like that.

HAYES: Right, right.

STEED: So, I mean, I think – the fact that Garland`s name wasn`t mentioned at the Democratic National Convention the entire week…

HAYES: Oh, that`s a good point.

STEED: Yeah, I mean, I think that President Obama`s been pushing him a little bit, but not a lot lately. And certainly Tim Kaine left open the possibility that Hillary Clinton might not nominate him. He endorsed his nomination, but didn`t really say 100 percent that she, for sure, would renominate him, if she was elected. So, I mean, I think the door is open. And if the threat is real and it looks like they`ll lose the Senate, really all President Obama has to say, is look, you guys wanted the voters to decide who is going to fill the seat. They`ve decided. So I`m going to let the new President Clinton control the seat.

HAYES: That`s right. They are hoisted by their own petard there, because that has been the argument, which is we need to have the people weigh in. And if they weigh in, it makes no sense to carry over to the lame duck the person the previous president – I mean, you can`t make both arguments simultaneously in good faith.

STEED: Right. And Senator McConnell has said no doubt about it, they will not confirm President Obama`s nominee. So they`ve really sort of opened the door themselves to the possibility that he won`t be the guy.

HAYES: This is going to be fascinating. We`re going to track this as we bear down the stretch. Jason Steed, Thank you.

* Pam Karlan is a professor at Stanford Law School, a favorite candidate for the Supreme Court among many left-leaning legal folks but typically considered too far-left to be confirmed (as long as the filibuster is still available). The MSNBC transcript misspells Karlan’s name as “Carlin,” so I’ve corrected the spelling here.

Circuit Splits

There’s a split over whether the “innocent landowner” defense applies to former as well as current facility owners, in an action brought under CERCLA. See here at p.14 n.5.

There’s a split over whether state or federal law determines the validity of a forum-selection clause (before deciding its enforceability). See here at p.5.

Circuits disagree over whether a retaliation plaintiff must show evidence of but-for causation at the prima-facie stage of the McDonnell Douglas framework when substantial time has elapsed between the plaintiff’s protected activity and the resultant adverse employment action. See here at p.26-27 n.7.

There’s a split over whether a public entity (such as a county or city) can be liable under § 1985 for a conspiracy carried out by or with its employees. See here at p.9.

Courts disagree over whether ERISA allows a court to require a defendant who breached his fiduciary duty to ESOP participants to indemnify his cofiduciaries. See here at p.3.

Courts also disagree over whether a defendant charged with aiding and abetting a felon in possession must know the principal was a felon. See here at p.12 n.6.

And there’s a split over whether a district court, when reviewing an ALJ’s decision on Social Security benefits, can consider new evidence submitted to the Appeals Council after the ALJ’s decision was made. See here at p.5 n.3.

How Garland Gets Confirmed Before the Election

I haven’t checked the transcripts or anything, but I’m pretty sure President Obama’s pending Supreme Court nominee, Merrick Garland, was never mentioned at this week’s Democratic National Convention. Garland’s nomination has now been pending 135 days—longer than any Supreme Court nomination in history. And this is due to all-out, unprecedented obstruction by the Republicans. So it’s a little odd that the Democrats never mentioned Garland during their convention, and never used the Republicans’ obstructionism as a punching bag. Why wouldn’t they use the DNC stage to hit the Republicans hard on this?

I have a theory. Some people might say the Supreme Court just isn’t that important to Democratic voters; some might say too much talk about Garland or the Court would’ve reminded Republican-leaning voters who don’t want to vote for Trump of the only defensible reason to do so. But I think there might be something else going on—something more subtle and strategic.

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SCOTUS Recusals & Notorious RBG

There’s a lot of talk right now about Justice Ginsburg’s recent comments about Trump and Heller, and whether they might require her to recuse herself from certain future cases. See, e.g., here and here. I don’t think so (see reasons below). But I thought I’d use this opportunity to make a prediction and to call attention to a new report saying the justices recused themselves 180 times this last term. That’s a lot of recusals.

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Quick Rundown of SCOTUS Cases

supreme-court-building-120628The 2015 term is over. Here’s a very quick rundown of U.S. Supreme Court cases that might be of particular interest to businesses and to litigators in general:

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Circuit Splits

All circuits agree that civil detention of criminal aliens is constitutional for a reasonable period of time, to complete removal proceedings. But at some point these detained aliens are entitled to a bond hearing under Due Process, and the circuits are split over when. The 11th Circuit addresses this issue for the first time here, at p.3.

There’s a split over whether a court may award fees to an attorney from outside the district who is not admitted pro hac vice. See here at p.6.

The circuits don’t agree on whether an individual must report violations to the SEC before she can bring a retaliation claim under Dodd-Frank. See here at p.33 n.14.

The 6th Circuit says there is an “unacknowledged” (until now) split over whether a criminal defendant’s willingness to reject a plea bargain and risk going to trial can be considered “rational” in satisfaction of the objective test for determining whether the defendant was prejudiced by ineffective assistance of counsel. See here at 2-3 et seq.

Courts are split over whether there’s a distinction between “claims for work” and “claims for payment for work” in determining whether a § 10(k) order can bar a contractual claim. (Just read the case to see what this is about.) See here at 14-15.

The 9th Circuit has created a new circuit split over exceptions for copyrights to sound recordings (in a case involving Madonna). See here at 29.

And lastly, Judge Gorsuch tells us there’s a “long lingering circuit split” over how much access parties to PTO proceedings have to the Federal Rules of Civil Procedure, for discovery purposes. Judge Gorsuch says the split “lingers there still”—but it might be “just another debate that doesn’t matter.” See here at 6-9, 10 n.1, 12, 14.