We SCOTUS so you don’t have to
The Supreme Court will hear arguments in six cases this week. Click here to read more about SCOTUS’ current term.
In its October 2018 term, SCOTUS heard arguments in 69 cases. Click here to read more about SCOTUS’ previous term.
Click the links below to read more about the specific cases SCOTUS will hear this week:
- In Barton v. Barr, Andre Barton, a Jamaican national, entered the U.S. in 1989 and became a lawful permanent resident in 1992. In 1996, Barton was convicted of several criminal charges. In 2007 and 2008, he was convicted of additional criminal charges. The U.S. Department of Homeland Security charged Barton as removable.
Barton challenged the charges for removal under 8 U.S.C. § 1229b(a), which allows the U.S. attorney general to cancel the removal of a lawful permanent resident if the individual “has resided in the United States continuously for 7 years after having been admitted in any status.” The continuous residence requirement is subject to a “stop-time” rule, which ends the accrual of continuous residence when the individual commits a crime and renders them “inadmissible” under § 1182(a)(2).
The U.S. government argued Barton’s crimes made him “inadmissible” under § 1182(a)(2). Barton argued that as an already-admitted lawful permanent resident, he could not be rendered inadmissible. An immigration judge ruled in favor of the government. On appeal, the Board of Immigration Appeals agreed with the immigration judge. On further appeal, the 11th Circuit upheld the immigration judge and the Board of Immigration Appeals’ rulings.
The issue: Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] … inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(l).
- In Kansas v. Glover, a Douglas County police officer stopped Charles Glover on suspicion of driving without a valid license. The officer did not witness any traffic violations. Glover was charged with driving as a habitual violator. Glover moved to suppress evidence from the stop, arguing the officer violated Glover’s Fourth Amendment rights. The state district court agreed, dismissing the case. On appeal, the Kansas Court of Appeals reversed the district court’s ruling. Glover petitioned the Kansas Supreme Court for review. The state Supreme Court affirmed the district court’s ruling, dismissing the case.
The issue: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
- In CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., an abandoned anchor in the Delaware River pierced the hull of the Athos I, an oil tanker, causing nearly 264,000 gallons of crude oil to spill into the river. The cost of cleanup was $143 million. Frescati, the shipowner, paid for the cleanup effort and was later reimbursed for $88 million by the U.S. federal government. Frescati and the U.S. sued CITGO, the intended oil recipient, for a portion of the costs.
A U.S. district judge found CITGO was not liable to pay for the cleanup effort. On appeal, the 3rd Circuit affirmed in part, vacated in part, and remanded the case. On remand, the district court held CITGO was liable to Frescati for breach of contract, holding Frescati was a beneficiary of CITGO’s safe berth warranty. On appeal a second time, the 3rd Circuit affirmed in part the district court’s judgment in favor of the U.S. regarding CITGO’s breach of contract liability.
The issue: Whether under federal maritime law a safe berth clause in a voyage charter contract is a guarantee of a ship’s safety, as the 3rd Circuit and the 2nd Circuit have held, or a duty of due diligence, as the 5th Circuit has held.
- In Allen v. Cooper, Frederick Allen, a videographer retained to document the salvaging of the state-owned ship, Queen Anne’s Revenge, sued North Carolina for copyright infringement. Allen also asked the court to declare unconstitutional N.C. Gen. Stat. § 121–25(b), making public records of photos, videos, recordings, and other documentary materials of a shipwreck. Allen claimed the law was passed in bad faith. The Eastern District of North Carolina held the state was not protected from immunity under the Copyright Remedy Clarification Act. On appeal, the 4th Circuit reversed and remanded the district court’s ruling.
The issue (from Oyez): Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act, which allows authors of original expression to sue states who infringe their federal copyrights?
- In County of Maui, Hawaii v. Hawaii Wildlife Fund, Maui County, Hawaii, owns and operates four wells acting as the county’s primary means of liquid waste disposal into groundwater and the Pacific Ocean. The Clean Water Act (CWA) prohibits the discharge of pollutants from point sources unless a party obtains an exemption from the National Pollutant Discharge Elimination System. A point source is “any discernible, confined and discrete conveyance, including but not limited to any … well … from which pollutants are or may be discharged.”
The Hawaii Wildlife Fund sued Maui County for violating the CWA by discharging waste without a permit. The District of Hawaii agreed. On appeal, the 9th Circuit affirmed the district court’s judgment.
The issue: Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
- In Retirement Plan Committee of IBM v. Jander, Larry Jander invested in IBM’s retirement plan. After IBM sold its microelectronics business at a loss and shares fell, Jander alleged the IBM retirement plan committee violated their fiduciary duty of prudence to the pensioner under the Employee Retirement Income Security Act (ERISA). The Southern District of New York dismissed Jander’s claim. On appeal, the 2nd Circuit reversed and remanded the case. The retirement committee petitioned the U.S. Supreme Court to hear the case, arguing the 2nd Circuit “subverted [a] pleading standard” established in Fifth Third Bancorp v. Dudenhoeffer.
In Fifth Third, SCOTUS unanimously held that to state a claim under the ERISA, a plaintiff must “plausibly allege that a prudent fiduciary … could not have concluded that [an alternative action] would do more harm than good to the fund.”
The issue: Whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
New cases on the docket
SCOTUS added four cases to the docket since our October 14 edition:
- Nasrallah v. Barr,
- Lomax v. Ortiz-Marquez,
- Seila Law v. Consumer Financial Protection Bureau, and
- Department of Homeland Security v. Thuraissigiam.
- As of November 4, the court has agreed to hear 52 cases during its 2019-2020 term.
- The following chart from SCOTUSblog shows how the pace of grants compares to previous terms. The date marker represents the conference within a given sitting. For example, Feb. #3 is the third February conference.
According to SCOTUSblog, the minimum distribution pace “reflects the number of petitions that must be granted to fill the court’s docket for oral argument while giving the litigants in each case a complete or near-complete briefing schedule.”
Upcoming SCOTUS dates
Here are the upcoming dates of interest in November:
- November 4:
- SCOTUS will hear arguments in two cases.
- SCOTUS will release orders.
- November 5: SCOTUS will hear arguments in two cases.
- November 6: SCOTUS will hear arguments in two cases.
- November 8: SCOTUS will conference. A conference is a private meeting of the justices.
As of publication, which state is the point of origination for three SCOTUS cases—more than any other state—this term?
Choose an answer to find out!
Federal Cout Action
The Senate has confirmed five nominees since our October 14 issue.
- Charles Eskridge III, confirmed to a seat on the U.S. District Court for the Southern District of Texas. After he received his judicial commission, the court had:
- One vacancy.
- 10 Republican and eight Democratic presidential appointees.
- Frank Volk, confirmed to a seat on the U.S. District Court for the Southern District of West Virginia. After he received his judicial commission, the court had:
- No vacancies.
- Two Republican and three Democratic presidential appointees.
- David Novak, confirmed to a seat on the U.S. District Court for the Eastern District of Virginia. After he received his judicial commission, the court had:
- One vacancy.
- Five Republican and five Democratic presidential appointees.
- Rachel Kovner, confirmed to a seat on the U.S. District Court for the Eastern District of New York. After she received her judicial commission, the court had:
- Four vacancies.
- Five Republican and six Democratic presidential appointees.
- Justin Walker, confirmed to a seat on the U.S. District Court for the Western District of Kentucky. After he received his judicial commission, the court had:
- No vacancies.
- Three Republican and two Democratic presidential appointees.
The Senate has confirmed 157 of President Trump’s judicial nominees—110 district court judges, 43 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
President Trump has announced two new Article III nominees since our October 14 edition.
- Joshua Kindred of Alaska to the U.S. District Court for the District of Alaska.
- Jennifer Togliatti of Nevada to the U.S. District Court for the District of Nevada.
The president has announced 226 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 103 vacancies. As of publication, there were 48 pending nominations.
According to the Administrative Office of U.S. Courts, an additional 18 judges have announced their intention to leave active judicial status during Trump’s first term.
For more information on judicial vacancies during Trump’s first term, click here.
The Senate Judiciary Committee reported 13 new nominees out of committee since our October 14 edition.
- David Barlow, nominee for the U.S. District Court for the District of Utah.
- John Kness, nominee for the U.S. District Court for the Northern District of Illinois.
- R. Austin Huffaker, nominee to the U.S. District Court for the Middle District of Alabama.
- Lee Rudofsky, nominee to the U.S. District Court for the Eastern District of Arkansas.
- Justin Walker, nominee to the U.S. District Court for the Western District of Kentucky (since confirmed).
- Danielle Hunsaker, nominee to the U.S. Court of Appeals for the 9th Circuit.
- William Nardini, nominee to the U.S. Court of Appeals for the 2nd Circuit.
- Karen Marston, nominee to the U.S. District Court for the Eastern District of Pennsylvania.
- Anuraag Singhal, nominee to the U.S. District Court for the Southern District of Florida.
- Jodi Dishman, nominee to the u.S. District Court for the Western District of Oklahoma.
- Richard Myers II, nominee to the U.S. District Court for the Eastern District of North Carolina.
- Sarah Pitlyk, nominee to the U.S. District Court for the Eastern District of Missouri.
- Daniel Traynor, nominee to the U.S. District Court for the District of North Dakota.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we also maintain a list of individuals President Trump has nominated.
A Court In The Spotlight
In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.
There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.
In this edition, we’re placing a spotlight on the U.S. District Court for the Southern District of New York. The Southern District of New York has original jurisdiction over cases filed in the following counties:
The court shares geographic jurisdiction over New York City with the U.S. District Court for the Eastern District of New York. The Southern District is one of the most influential and active federal district courts in the United States, largely because of its jurisdiction over New York’s major financial centers.
Decisions of the court may be appealed to the 2nd Circuit Court of Appeals.
The Southern District of New York has 28 authorized judgeships. There are currently six vacancies. The breakdown of current active judges by appointing president is:
- Barack Obama (D): 15 judges
- George W. Bush (R): Three judges
- Bill Clinton (D): Four judges