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Arguments

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:

December 2

• New York State Rifle & Pistol Association v. City of New York, New York concerns New York City’s former ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. It is the first firearms case the court has agreed to hear since 2010.

  A group of New York City residents challenged New York City’s rule that an individual with a premises license for a handgun is only allowed to take the handgun out of his or her home to go to a shooting range within the city limits. The residents argued that the rule violated their Second Amendment right, the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel.

  The U.S. District Court for the Southern District of New York rejected the residents’ argument. On appeal, the U.S. Court of Appeals for the 2nd Circuit upheld the district court’s ruling. The New York State Rifle & Pistol Association appealed to the U.S. Supreme Court, which accepted the case on January 22, 2019. New York City repealed the gun rule in July 2019.

  The issue: Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

• Georgia v. Public.Resource.Org Inc. concerns copyright law. In 2015, the Georgia Code Revision Commission sued the nonprofit organization Public.Resource.Org (PRO) for copyright infringement. The Commission argued that PRO could not distribute copies of the Official Code of Georgia Annotated (OCGA). PRO disagreed, arguing the OCGA was in the public domain. The U.S. District Court for the Northern District of Georgia ruled in favor of the Commission and barred PRO from distributing the OCGA. On appeal, the 11th Circuit Court of Appeals reversed in part and vacated in part the district court’s ruling, concluding the state of Georgia had no valid copyright.

  The State of Georgia appealed to the U.S. Supreme Court. In its petition, the state said the 11th Circuit showed “considerable confusion regarding the government edicts doctrine.” The government edicts doctrine originated in the 1800s with three U.S. Supreme Court cases that held judicial opinions are not copyrightable. Lower courts later expanded the doctrine to apply to state law.

  The issue: Whether the government edicts doctrine applies to the annotations in the Official Code of Georgia Annotated.

December 3

• In Rodriguez v. Federal Deposit Insurance Corporation, United Western Bank, a subsidiary of Colorado corporation United Western Bancorp, Inc. (UWBI), closed in 2011 after suffering $35.4 million in losses. The Federal Deposit Insurance Corporation (FDIC) was appointed as United Western Bank’s receiver. An agency or court appoints a receiver as an alternative to filing for bankruptcy. The receiver manages the assets of a bankrupt business.

  Also in 2011, the parent company, UWBI, filed a tax refund request of $4.8 million to recover a portion of United Western Bank’s 2008 taxes. In 2012, UWBI filed for bankruptcy. Both the FDIC and UWBI argued in bankruptcy court that the tax refund belonged to them. The bankruptcy court ruled the refund belonged to UWBI.

  On appeal, the U.S. District Court for the District of Colorado reversed the bankruptcy court’s decision. Simon Rodriguez, the Chapter 7 trustee for UWBI’s bankruptcy estate, appealed to the 10th Circuit Court of Appeals, which affirmed the district court’s ruling and remanded the case to the bankruptcy court.

  Rodriguez petitioned the U.S. Supreme Court to review the 10th Circuit’s decision, arguing circuit courts were divided on the question of tax refund ownership.

  The issue: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three Circuits hold, or based on the law of the relevant State, as four Circuits hold.

  The Bob Richards rule came from a 9th Circuit decision in In re Bob Richards Chrysler-Plymouth Corp., Inc. in 1973. The rule “presumes that a tax refund belongs to the subsidiary that caused the underlying loss unless the parties have entered into a tax agreement clearly assigning the refund to the parent.”

• In Atlantic Richfield Co. v. Christian, a group of landowners located within the bounds of the Anaconda Smelter superfund site, sued the Atlantic Richfield Co. (ARCO) for common law trespass, nuisance, and strict liability and sought restoration damages. ARCO argued the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) preempted the landowners’ claims.

  The state district court dismissed the case on the grounds that the statute of limitations had run out. On appeal, the Montana Supreme Court affirmed in part, reversed in part, and remanded the case. On remand, the district court denied ARCO’s motions. ARCO appealed again, and the state Supreme Court affirmed the district court’s denial and remanded the case.

  The issue: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA-ordered remedies is a “challenge” to EPA’s cleanup jurisdictionally barred by § 113 of CERCLA.

  (2) Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval under CERCLA § 122(e)(6) before engaging in remedial action, even if EPA has never ordered the landowner to pay for a cleanup.

  (3) Whether CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

December 4

• Intel Corp. Investment Policy Committee v. Sulyma concerns the interpretation of the Employee Retirement Income Security Act statute of limitations.

  Christopher Sulyma worked at Intel from 2010 to 2012, where he participated in retirement accounts an Intel investment committee managed. In 2015, Sulyma sued Intel, claiming the committee mismanaged his retirement accounts and violated the Employee Retirement Income Security Act. The U.S. District Court for the Northern District of California granted summary judgment in favor of Intel, who argued Sulyma’s claims were untimely. The 9th Circuit Court of Appeals reversed the ruling and remanded the case.

  The issue: Section 413(2) of the Employee Retirement Income Security Act establishes a three-year limitations period, from “the earliest date on which the plaintiff had actual knowledge of the breach or violation.” Can a plaintiff sue a defendant if the relevant information was disclosed to the plaintiff more than three years before the plaintiff filed the suit?

• In Banister v. Davis, a jury convicted Gregory Banister of aggravated assault with a deadly weapon in 2004. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking the U.S. District Court for the Northern District of Texas to revisit an earlier judgment. The district court denied the petition.

  On appeal, the 5th Circuit Court of Appeals also denied Banister’s petition for a certificate of appealability, which would have allowed another court to hear an argument that a habeas corpus appeal was wrongfully denied. The 5th Circuit ruled the petition was untimely based on Gonzalez v. Crosby. In that 2005 Supreme Court case, the court considered whether Gonzalez’ Rule 60(b) petition counted as a second writ of habeas corpus. The court ruled that it did not constitute a second habeas petition.

  Banister appealed to the U.S. Supreme Court, arguing that there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions. Banister’s petition to the U.S. Supreme Court described the purpose of Rule 59(e) of the Federal Rule of Civil Procedure as “to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings.” Click here for more information on Rule 59(e).

  The issue: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).

Upcoming SCOTUS dates

Here are the upcoming dates of interest in December:

• December 2: SCOTUS will hear arguments in two cases.
• December 3: SCOTUS will hear arguments in two cases.
• December 4: SCOTUS will hear arguments in two cases.
• December 6: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

Which Supreme Court justice did NOT attend either Harvard Law School or Yale Law School?

1. Samuel Alito
2. Ruth Bader Ginsburg
3. Neil Gorsuch
4. Stephen Breyer

Choose an answer to find out!

Confirmations

The Senate has confirmed three nominees since our November 12 issue.

• Steven Menashi, confirmed to a seat on the U.S. Court of Appeals for the 2nd Circuit. After he received his judicial commission, the court had:
  • Seven Republican and six Democratic presidential appointees.
  • No vacancies.
  • Robert J. Luck, confirmed to a seat on the U.S. Court of Appeals for the 11th Circuit. After he received his judicial commission, the court had:
    • No vacancies.
    • Six Republican and six Democratic presidential appointees.
  • Barbara Lagoa, confirmed to a seat on the U.S. Court of Appeals for the 11th Circuit. After she receives her judicial commission, the court will have:
    •  No vacancies.
•  Seven Republican and six Democratic presidential appointees.

Luck’s and Lagoa’s confirmations to the 11th Circuit marked the third appellate court to change from a majority of Democrat-appointed judges to a majority of Republican-appointed judges since President Trump took office. The 2nd and 3rd Circuits also changed from majority Democrat- to majority Republican-appointed judges during the Trump administration. Trump has appointed five of the 13 judges on the 2nd Circuit and four of the 14 judges on the 3rd Circuit.

Overall, the Senate has confirmed 164 of President Trump’s judicial nominees—112 district court judges, 48 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Nominations

President Trump has announced one new Article III nominee since our November 12 edition.

• David Joseph of Louisiana to the United States District Court for the Western District of Louisiana.

The president has announced 234 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.

Vacancies

The federal judiciary currently has 98 vacancies. As of publication, there were 53 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.

Committee action

The Senate Judiciary Committee reported five new nominees out of committee since our November 12 edition.

• Patrick Bumatay, nominee for the U.S. Court of Appeals for the 9th Circuit.
• Lawrence VanDyke, nominee for the U.S. Court of Appeals for the 9th Circuit.
• Philip Halpern, nominee for the U.S. District Court for the Southern District of New York.
• Bernard Jones II, nominee for the U.S. District Court for the Western District of Oklahoma.
• Barbara Bailey Jongbloed, nominee for the U.S. District Court for the District of Connecticut.

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.

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 enjoying the leaves changing on a visit to the U.S. District Court for the District of Vermont. The District of Vermont has original jurisdiction over cases filed Vermont. Decisions of the court may be appealed to the 2nd Circuit Court of Appeals.

The District of Vermont has two authorized judgeships. There are currently no vacancies. The breakdown of current active judges by appointing president is:

• Barack Obama (D): Two judges