Author

Sara Reynolds

Sara Reynolds is a staff writer at Ballotpedia and can be reached at sara.reynolds@ballotpedia.org

A closer look at Trump’s twice-nominated judge: Peter Phipps

President Donald Trump (R) has announced 190 Article III judicial nominations since taking office on January 20, 2017. Two of those individuals, Peter Phipps and A. Marvin Quattlebaum Jr., were nominated twice to different courts.
 
On February 15, 2018, Trump first nominated Phipps to serve on the U.S. District Court for the Western District of Pennsylvania. The U.S. Senate confirmed Phipps to the District Court on October 11, 2018, by voice vote. On May 13, 2019, the president then nominated Phipps to a seat on the U.S. Court of Appeals for the 3rd Circuit.
 
Phipps was nominated to the Western District of Pennsylvania on recommendation from Pennsylvania Senators Pat Toomey (R) and Bob Casey Jr. (D). Toomey also supported Phipps’ 3rd Circuit nomination, saying, “Judge Phipps will make an outstanding addition to the Third Circuit. He has the experience, intellect and integrity to be a superb circuit court judge.” Casey, however, expressed opposition to the second nomination and questioned whether “six months on that bench is sufficient experience or preparation” for a Circuit Court elevation. Casey also said, “Circuit court judges are often asked to decide questions of law that can have an enormous impact on Americans’ lives, and I have significant concerns about Judge Phipps’ judicial and constitutional philosophy.”
 
The United States Court of Appeals for the 3rd Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system. The court has 14 authorized judgeships and one current vacancy. Republican presidents appointed seven of the current judges. Democratic presidents appointed the remaining six judges. The 3rd Circuit has appellate jurisdiction over the district courts in Delaware, New Jersey, and Pennsylvania.
 
Phipps was born in Abilene, Texas, in 1973. He received a B.S. in physics and a B.A. in history from the University of Dayton in 1995. He obtained a J.D. from Stanford Law School in 1998. During his legal studies, Phipps served as a managing editor of the Stanford Law Review from 1997 to 1998. He worked in private practice from 1998 to 2001 and then became a law clerk to Judge Guy Cole of the 6th Circuit Court of Appeals from 2001 to 2002. From 2003 to 2018, Phipps was an attorney with the Federal Programs Branch of the U.S. Department of Justice’s Civil Division.
 
The president has also nominated A. Marvin Quattlebaum Jr. twice. Quattlebaum Jr. was nominated to the U.S. District Court for the District of South Carolina in 2017 and confirmed in March 2018. In May 2018, the president nominated Quattlebaum to a seat on the U.S. Court of Appeals for the 4th Circuit. The U.S. Senate confirmed the nomination on August 16, 2018.
 


SCOTUS to release 24 opinions by end of term

The U.S. Supreme Court began hearing cases for the 2018 term on October 1, 2018, and wrapped up oral arguments on April 24, 2019. As of June 10, the court has issued opinions in 45 of the 69 cases this term, meaning the court has 24 opinions to deliver before the end of the term.
 
At this time in 2018, the U.S. Supreme Court had issued opinions in 42 of 63 cases. The court had not issued opinions in 21 cases.
 
Outstanding opinions by month of oral argument:
 
2018-2019 term
(current term)
 
October: One opinion
November: Two opinions
December: One opinion
January: Two opinions
February: Three opinions
March: Seven opinions
April:  Eight opinions
 
2017-2018 term
(last term)
October: One opinion
November: One opinion
December: None
January: Two opinions
February: Six opinions
March: Two opinions
April: Nine opinions
 
Outstanding opinions by circuit:
 
2018-2019 term
(current term)
2nd Circuit: Four opinions
3rd Circuit: One opinion
4th Circuit: Three opinions
5th Circuit: One opinion
6th Circuit: One opinion
8th Circuit: One opinion
9th Circuit: One opinion
10th Circuit: Two opinions
11th Circuit: Two opinions
Federal Circuit: Two opinions
State/other: Six opinions
 
2017-2018 term
(last term)
1st Circuit: One opinion
2nd Circuit: Two opinions
6th Circuit: One opinion
7th Circuit: Two opinions
8th Circuit: One opinion
9th Circuit: Two opinions
10th Circuit: One opinion
11th Circuit: Two opinions
Federal Circuit: One opinion
D.C. Circuit: One opinion
State/other: Six opinions
Original jurisdiction cases: One opinion
 
Additional reading:


GOP Senate Judiciary Committee members oppose Trump judicial nominee

Sens. Josh Hawley (Mo.) and Ted Cruz (Texas), both Republicans and members of the Senate Judiciary Committee, opposed the nomination of Michael Bogren to the U.S. District Court for the Western District of Michigan. President Donald Trump nominated Bogren to the court on March 11, 2019, and the Senate Judiciary Committee held a hearing on the nomination on May 22.
 
During the committee hearing, Hawley asked Bogren about litigation representing the city of East Lansing, Michigan. Steve and Bridget Tennes, the owners of Country Mill Farms, sued East Lansing after the city barred them from participating in the city-run farmers market. The city barred the farm after Steve Tennes wrote on Facebook that he believed “marriage is a sacramental union between one man and one woman” and “he honors his religious belief when hosting and participating in weddings at Country Mill.” Bogren represented East Lansing in the litigation.
 
Hawley said Bogren “compared a Catholic family’s adherence to the teachings of their church to the activities of the KKK and the teachings of radical imams.” Bogren responded, “Respectfully, that is not what I said. […] The point I was trying to make was that religious beliefs trying to justify discrimination if extended to sexual orientation, which the city of East Lansing protects, could be used to try to justify any other sort of discrimination, whether it be gender or race.”
 
Hawley also published an op-ed for National Review where he wrote that Bogren’s “hostility toward [the Catholic family’s] faith raises questions about his fitness to be a federal judge. … It’s one thing to advocate on behalf of your client, but Bogren went too far.”
 
Sen. Cruz agreed with Hawley in a tweet: “The nominee didn’t just represent a client; at his confirmation, he affirmatively declared ‘there is no distinction’ [between] Catholic teachings and KKK bigotry. I’m a NO. And POTUS should withdraw the nomination.”
 
Writing in support of Bogren, Margot Cleveland, a contributor for The Federalist and Bogren’s cousin, said Bogren “is not anti-Catholic. … Conservatives using Bogren’s clients and zealous representation of their legal interests to scuttle a nomination aren’t thinking this through.”
 
The Wall Street Journal editorial board also argued in favor of Bogren. “Mr. Hawley’s questioning is a precedent that conservatives will regret,” the Journal editorial board wrote. “If nominees can be disqualified for every argument they make for a client, conservative judicial nominees will soon find themselves blocked from judgeships for defending religious liberty.”
 
Sens. Debbie Stabenow and Gary Peters, both Democrats from Michigan, negotiated with the White House regarding the nomination. Stabenow said after the nomination was announced, “Today’s announcement is welcome news following months of bipartisan discussions with the White House. I look forward to the Senate Judiciary Committee considering these nominees.”
 
The United States District Court for the Western District of Michigan is one of 94 U.S. district courts. They are the general trial courts of the United States federal courts.
 


Bold Justice: 15 federal judges confirmed in May

Welcome to the June 3 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Looking for some good beach reading during summer vacation? We’ve got you covered! Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information.

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court has finished hearing oral arguments for cases in its October 2018 term. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS has ruled on six cases since our May 20 issue. The court has issued rulings in 39 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since May 20:

 May 20

 

 

  • Merck Sharp & Dohme Corp. v. Albrecht was argued before the court on Jan. 7, 2019.

    Hundreds of lawsuits were consolidated against the drug manufacturer Merck Sharp & Dohme, claiming the osteoporosis drug Fosamax caused thigh bone fractures and the FDA-approved label failed to warn about this side effect. A district court dismissed the case, ruling federal law preempted the claims. The court cited Wyeth v. Levine as precedent, which stated that “state-law failure-to-warn claims are preempted when there is ‘clear evidence’ that the FDA would not have approved the warning that a plaintiff claims was necessary.”

    The U.S. Court of Appeals for the 3rd Circuit reversed the lower court’s ruling, writing plaintiffs had “produced sufficient evidence for a reasonable jury to conclude that the FDA would have approved a properly-worded warning about the risk of thigh fractures—or at the very least, to conclude that the odds of FDA rejection were less than highly probable.”

    The outcome: In a unanimous opinion, the court vacated and remanded the 3rd Circuit’s ruling. The court held that judges, rather than juries, should decide if FDA action preempts state cases alleging failure to warn about drug side effects. According to SCOTUSblog, the “court unanimously agreed on who should decide (a judge) and what Wyeth’s ‘clear evidence’ standard means (an ‘irreconcilable conflict,’ rather than a standard of proof).”

    Justice Breyer delivered the court’s opinion.
  • Herrera v. Wyoming was argued before the court on Jan. 8, 2019.

    Clayvin Herrera, a member of the Crow Tribe of Indians, was hunting elk on the Crow Reservation. He and other tribal members shot three elk after following the animals out of the Crow Reservation and into the Big Horn National Forest. He was charged with two misdemeanors for hunting without a license and during closed season. Herrera sought to have the charges dismissed, arguing the 1868 Crow Treaty gave him the right to hunt where and when he did and that the treaty preempted state law.

    The outcome: In a 5-4 decision, the court vacated and remanded the ruling of the Wyoming 4th Judicial District Court, holding the “Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood.”

    Justice Sonia Sotomayor delivered the opinion of the court, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Neil Gorsuch. Justice Samuel Alito filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh.

    Sotomayor wrote, “The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not ‘unoccupied.’ We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve.”
  • Mission Product Holdings v. Tempnology LLC was argued before the court on Feb. 20, 2019. Tempnology, LLC, made and owned the intellectual property to certain products designed to keep a person cool while exercising. Tempnology and Mission Product Holdings (Mission) entered an agreement stating Mission had distribution rights to some of Tempnology’s products, a nonexclusive license to Tempnology’s intellectual property, and a license to use Tempnology’s trademark and logo.

    Tempnology filed for Chapter 11 bankruptcy and tried to reject its agreement with Mission. The bankruptcy court found Mission could only claim damages for breach of contract and Tempnology was not required to continue to perform the license agreement. The 1st Circuit Court of Appeals affirmed the bankruptcy court’s decision.

    The outcome: In an 8-1 opinion, the court reversed and remanded the U.S. Court of Appeals for the 1st Circuit’s ruling. The court held that a debtor-licenser’s rejection of a contract neither party has finished performing does not prevent the licensee from using the trademark. 

    Justice Kagan delivered the majority opinion. Justice Sotomayor filed a concurring opinion. Justice Gorsuch dissented.

May 28

  • Nieves v. Bartlett was argued before the court on Nov. 26, 2018.Alaska state troopers Luis Nieves and Bryce Weight arrested Russell Bartlett who subsequently sued Nieves and Weight for false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment—a decision on the basis of statements and evidence without a trial—to Nieves and Weight on all counts. The U.S. Court of Appeals for the 9th Circuit agreed with the district court that Nieves and Weight had probable cause to arrest Bartlett for harassment, disorderly conduct, resisting arrest, or assault. The 9th Circuit affirmed the district court’s ruling on the false arrest, excessive force, and malicious prosecution charges, but reversed the ruling on the retaliatory arrest charge.

    The outcome: In a 6-3 decision, the court reversed and remanded the 9th Circuit’s ruling, holding because “there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.” 

    Chief Justice Roberts delivered the opinion of the court. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justices Ginsburg and Gorsuch filed separate opinions concurring in part and dissenting in part. Justice Sotomayor dissented.

 

  • Home Depot U.S.A. Inc. v. Jackson was argued before the court on Jan. 15, 2019.

    In 2016, Citibank filed a debt collection action against George Jackson in a Mecklenburg County, North Carolina district court. Citibank alleged Jackson failed to pay for a water treatment system he purchased using a Citibank-issued credit card. Jackson filed a counterclaim and third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS) for engaging in unfair and deceptive trade practices. Citibank then dismissed its claims against Jackson. Home Depot filed a notice of removal under the Class Action Fairness Act of 2005 (CAFA) and moved to realign the parties with Jackson as plaintiff and Home Depot, CWS, and Citibank as defendants. Jackson then amended his third-party complaint to remove Citibank. The Mecklenburg County district court denied Home Depot’s motion to realign and granted Jackson’s motion to remand.

    The outcome: In a 5-4 opinion, the court affirmed the judgment of the U.S. Court of Appeals for the 4th Circuit, holding “Home Depot could not remove the class-action claim filed against it” because provisions in 28 U.S. Code §1441(a) and in the CAFA do not permit “removal by a third-party counterclaim defendant.”

    Justice Thomas delivered the opinion of the court. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.

 

  • Smith v. Berryhill was argued before the court on March 18, 2019.

    The Social Security Administration’s Appeals Council denied a renewal of Ricky Lee Smith’s application for supplemental security income (SSI) resulting from disability, finding that Smith did not file his claim on time. Smith alleged that he suffered due process violations, but the U.S. district court and the 6th Circuit Court disagreed.

    The outcome: In a unanimous opinion, the court reversed and remanded the 6th Circuit’s ruling, holding that the SSA Appeals Council’s dismissal of a claim for untimeliness permits judicial review in a U.S. federal court under 42 United States Code §405(g).

    Justice Sotomayor delivered the opinion of the court.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in June:

  • June 3: SCOTUS will release orders.
    • When SCOTUS releases orders, they grant or deny review on the merits of a case. They can also issue other orders, such as granting or denying a request to participate in oral argument, according to SCOTUSblog.
  • June 6: SCOTUS will conference. A conference is a private meeting of the justices where justices decide which cases to accept or reject and discuss and vote on cases heard since the previous conference.
  • June 10: SCOTUS will release orders.
  • June 13: SCOTUS will conference.

SCOTUS trivia

When a court makes a decision on the basis of statements and evidence presented without a trial, what is the court granting?

  1. A writ of certiorari
  2. A temporary restraining order
  3. Summary judgment
  4. A subpoena

Choose an answer to find out!

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. Ballotpedia publishes the Federal Vacancy Count on the last Wednesday of the month. The July 1 issue of Bold Justice will include the next Federal Vacancy Count.

This month’s edition includes nominations, confirmations, and vacancies from April 25 to May 29, 2019.

Highlights

  • Vacancies: There have been four new judicial vacancies since the April 2019 report. As of May 29, 126 of 870 active Article III judicial positions on courts covered in this report were vacant—a vacancy percentage of 14.5 percent.

    Including the United States Court of Federal Claims and the United States territorial courts, 137 of 890 active federal judicial positions are vacant.

  • Nominations: There have been eight new nominations since the April 2019 report.

  • Confirmations: There have been 15 new confirmations since the April 2019 report.

Vacancy count for May 29, 2019

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

New vacancies

The following judges left active status, creating Article III vacancies. As Article III judicial positions, they must be filled by a nomination from the president. Nominations are subject to Senate confirmation.

For more information on judicial vacancies during President Trump’s first term, click here.

New nominations

President Trump announced eight new nominations since the April 2019 report.

  • Peter Phipps, to the U.S. Court of Appeals for the 3rd Circuit.
  • Douglas Cole, to the U.S. District Court for the Southern District of Ohio.
  • Charles Eskridge, to the U.S. District Court for the Southern District of Texas.
  • Kea Riggs, to the U.S. District Court for the District of New Mexico.
  • William Shaw Stickman, to the U.S. District Court for the Western District of Pennsylvania.
  • Jennifer Philpott Wilson, to the U.S. District Court for the Middle District of Pennsylvania.
  • David Barlow, to the U.S. District Court for the District of Utah.
  • Kevin Sweazea, to the U.S. District Court for the District of New Mexico.

The president has announced 188 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.

New confirmations

Between April 25 and May 29, 2019, the Senate confirmed 15 of the president’s nominees to Article III courts. Since January 2017, the Senate has confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices.

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.



May 2019 state legislative seat breakdown: 52.3% Republican, 46.9% Democratic

May’s partisan count of the 7,383 state legislators across the United States shows 52.3% of all state legislators are Republicans and 46.9% are Democrats.
 
Ballotpedia completes a count of the partisan balance of state legislatures at the end of every month. The partisan composition of state legislatures refers to which political party holds the majority of seats in the state Senate and state House. Republicans hold a majority in 61 chambers, and Democrats hold the majority in 37 chambers. One chamber (Alaska’s state house) shares power between the two parties. Altogether, there are 1,972 state senators and 5,411 state representatives.
 
Of the 7,383 state legislative seats in the country, Republicans held 1,082 state Senate seats and 2,778 state House seats. Democrats held 3,465 of the 7,383 state legislative seats–878 state Senate seats and 2,587 state House seats. Independent or third-party legislators held 33 seats, and 25 seats were vacant.
 
At the time of the 2018 elections, 7,280 state legislators were affiliated with either the Republican or Democratic parties. There were 3,257 Democratic state legislators, 4,023 Republican state legislators, 35 independent or third-party state legislators, and 68 vacancies.
 


Ballotpedia’s Federal Vacancy Count shows 15 federal judges confirmed in past month

According to Ballotpedia’s monthly federal judicial vacancy count, the U.S. Senate has confirmed 15 of President Donald Trump’s (R) nominees to Article III federal judicial seats since April 25, 2019. Article III judges are those judges who serve on courts authorized by Article III of the Constitution, which created and enumerated the powers of the judiciary. The Senate confirmed 11 nominees to U.S. District Courts and four nominees to U.S. Circuit Courts. The Senate has confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices—since January 2017.
 
 
President Trump also announced six new federal judicial nominations since April 25. The president has announced 186 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018.
 
Since Ballotpedia’s April 2019 judicial vacancy count, four judges vacated their active statuses, creating life-term judicial vacancies. As Article III positions, these vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
 
There are 126 vacancies out of 870 Article III judicial positions. Including the U.S. Court of Federal Claims and the United States territorial courts, 137 of 890 active federal judicial positions are vacant. A vacancy occurs when a judge passes away, resigns, retires, or takes senior status. Senior status is a classification for federal judges at all levels who are semi-retired. Senior judges continue to serve on federal courts while hearing a reduced number of cases.
 
Additional reading:


Senate confirms Daniel Collins without support from home-state senators

On May 21, 2019, the U.S. Senate confirmed Daniel Collins to the United States Court of Appeals for the 9th Circuit on a 53-46 vote. President Donald Trump (R) nominated Collins to the seat on November 13, 2018.
 
Collins was a partner in the Los Angeles office of Munger, Tolles & Olson LLP from 2003 to 2019. He also previously worked as an associate deputy attorney general in the U.S. Department of Justice and as an assistant U.S. attorney for the Central District of California. Collins was a law clerk to Justice Antonin Scalia of the Supreme Court of the United States and to 9th Circuit Judge Dorothy Nelson.
 
Collins obtained an A.B. summa cum laude from Harvard College in 1985. In 1988, he earned a J.D. with distinction from Stanford University, where he was a member of the Order of the Coif. During his legal studies, Collins also served as a note editor on the Stanford Law Review.
 
Collins was confirmed along party lines. Home-state Senators Dianne Feinstein (D) and Kamala Harris (D) of California voted against his nomination. Feinstein and Harris said the White House nominated Collins without consulting them. In a statement after his confirmation, Feinstein said, “I am concerned that Mr. Collins has not demonstrated and does not embody the characteristics that we expect of all federal judges. I also believe that Mr. Collins’s record on women’s reproductive rights, executive power, civil liberties, and criminal justice matters puts him far outside the judicial mainstream.”
 
In 2018, then-White House Counsel Don McGahn wrote in a letter to then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) that the White House tried to negotiate with the California senators. He said he reached out to Feinstein on multiple occasions and stated that Harris had “refused to engage with the White House at any level, whatsoever on the issue.” McGahn said the president was “exercising his prerogative to nominate his own well-qualified nominees.”
 
The United States Court of Appeals for the 9th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.
 
The 9th Circuit currently has two confirmed nominees—Collins and Kenneth Kiyul Lee. Once they receive their judicial commissions and take their judicial oaths, the 9th Circuit will have two vacancies, 11 judges appointed by Republican presidents, and 16 judges appointed by Democratic presidents.
 
The Senate has now confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
 
Additional reading:


Bold Justice: SCOTUS issues three new opinions

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court has finished hearing arguments for its October 2018-2019 term. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS has ruled on three cases since our May 6 issue. The court has issued rulings in33 cases so far this term. Thirty-nine cases are still under deliberation. 

Click the links below to read more about the specific cases SCOTUS ruled on since May 6: 

May 13, 2019

Robert Pepper and other plaintiffs filed an antitrust lawsuit against Apple Inc., alleging the company was monopolizing the market for iPhone apps. Apple controls which apps can be sold through its App Store and keeps 30 percent of sales from apps developed by third-party developers that are sold in the App Store. A U.S. District Court dismissed the case. Citing the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, the district court ruled App Store customers could not sue for antitrust violations because they are purchasing their apps directly from the developers, not Apple. According to Illinois Brick, “only the overcharged direct purchaser, and not others in the chain of manufacture or distribution” are able to sue for antitrust violations. The 9th Circuit Court reversed the dismissal, ruling that consumers are purchasing from Apple, not the app developers.

The outcome: In a 5-4 opinion, the court affirmed the 9th Circuit’s ruling, holding that people who purchase apps through Apple’s App Store are direct consumers and can sue  Apple for having a monopoly in the market and increasing prices. Justice Brett Kavanaugh delivered the majority opinion and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Justice Neil Gorsuch authored the dissenting opinion and was joined by Chief Justice John Roberts, and Justices Clarence Thomas, and Samuel Alito. 

May 13, 2019

After serving time in prison for being part of a fraudulent subcontracting scheme, Billy Joe Hunt, a Parsons Corporation employee, filed a lawsuit alleging that Parsons and Cochise Consultancy Inc. violated the False Claims Act (FCA). Parsons and Cochise argued the statute of limitations barred Hunt’s claim. The statute requires a violation to be brought within six years of the violation or three years “after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.” The district court granted the contractors’ motion to dismiss, but the 11th Circuit reversed and remanded the case.

The outcome: In a 9-0 opinion, the court held that a relator (private citizen) in a False Claims Act qui tam action lawsuit can rely on the statute of limitations, but the relator is not an official of the United States. A qui tam action refers to a lawsuit brought by a private citizen against a company who is believed to be in violation of the law in performing a contract with the government.

Justice Clarence Thomas wrote the opinion of the court.

May 13, 2019

In 1993, Gilbert Hyatt, a computer chip inventor, was audited by the Franchise Tax Board of California (FTB). Hyatt had moved from California to Nevada, and FTB said he owed $1.8 million in state income taxes, along with other penalties. “Hyatt sued FTB in Nevada state court for several intentional tort and bad faith conduct claims. FTB argued that the Nevada courts were required to give FTB the full immunity to which it would be entitled under California law,” according to the National Conference of State Legislatures (NCSL).

In Hyatt I, decided in 2003, the U.S. Supreme Court held that Nevada courts did not have to give FTB full immunity, and a Nevada district court awarded Hyatt over $400 million in damages. In Hyatt II, decided in 2016, the U.S. Supreme Court issued a 4-4 ruling on whether to overrule Nevada v. Hall, which permits a state to be sued in another state’s courts without its consent. The court also issued a separate ruling that limited the amount of damages Nevada courts could award.

FTB appealed the U.S. Supreme Court, which agreed to hear the case for the third time. In a 5-4 decision, the court overruled Nevada v. Hall and established that a state cannot be sued in another state’s courts without its consent. Justice Clarence Thomas delivered the opinion of the court. He was joined by Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

Justice Stephen Breyer filed a dissenting opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in May and June:

  • May 20: SCOTUS will release orders.
    • When SCOTUS releases orders, they grant or deny review on the merits in a case. They can also issue other orders, such as granting or denying a request to participate in oral argument, according to SCOTUSblog.
  • May 23: SCOTUS will conference. A conference is a private meeting of the justices where justices decide which cases to accept or reject and discuss and vote on cases heard since the previous conference.
  • May 28: SCOTUS will release orders.
  • May 30: SCOTUS will conference.
  • June 3: SCOTUS will release orders.

SCOTUS trivia

What is it called when the court publishes a decision without indicating authorship?

  1. per curiam decision →
  2. A unanimous decision →
  3. A decision dismissed as improvidently granted →
  4. A 5-4 decision →

Choose an answer to find out!

Federal court action

Confirmations

The Senate has confirmed five nominees since our May 6 issue.

The Senate has confirmed 107 of President Trump’s judicial nominees—65 district court judges, 40 appeals court judges, and two Supreme Court justices—since January 2017.

Nominations

President Trump announced no new Article III nominees since our May 6 edition.

The president has announced 186 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 144 vacancies. As of publication, there were 62 pending nominations.

According to the Administrative Office of U.S. Courts, an additional 15 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 four new nominees out of committee since our May 6 edition.

  • Jeff Brown, nominee for the U.S. District Court for the Southern District of Texas
  • Robert Colville, nominee for the U.S. District Court for the Western District of Pennsylvania
  • Stephanie Haines, nominee for the U.S. District Court for the Western District of Pennsylvania
  • Brantley Starr, nominee for the U.S. District Court for the Northern District of Texas

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published on the last Wednesday of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary.

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 checking in on the U.S. District Court for the District of Rhode Island. The District of Rhode Island has original jurisdiction over cases filed in the state. The District Court was created in 1790 when Rhode Island ratified the Constitution.

Decisions of the court may be appealed to the 1st Circuit Court of Appeals.

The District of Rhode Island has three authorized judgeships. There is currently one vacancy. The breakdown of current active judges by appointing president is:

  • Barack Obama (D): One judge
  • George W. Bush (R): One judge

Looking ahead

We’ll be back on June 3 with a new edition of Bold Justice.



President Trump’s total confirmed judges moves past 100

This week, the U.S. Senate confirmed five judicial nominees to U.S. District Courts. The Senate has now confirmed 102 of President Trump’s judicial nominees—63 district court judges, 37 appeals court judges, and two Supreme Court justices—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
 
The confirmed nominees are:
  • J. Campbell Barker, confirmed to a seat on the U.S. District Court for the Eastern District of Texas
  • Andrew Brasher, confirmed to a seat on the U.S. District Court for the Middle District of Alabama
  • Raúl Arias-Marxuach, confirmed to a seat on the U.S. District Court for the District of Puerto Rico
  • Joshua Wolson, confirmed to a seat on the U.S. District Court for the Eastern District of Pennsylvania
  • Rodolfo Ruiz, confirmed to a seat on the U.S. District Court for the Southern District of Florida
Barker and Brasher were confirmed along party lines, with all Republicans voting “yea” and all Democrats voting “nay.” Wolson was confirmed 65-33 with 11 Democrats and independent Angus King voting in favor. Arias-Marxuach and Ruiz were confirmed on bipartisan votes of 95-3 and 90-8, respectively.
 
The confirmed nominees were part of the first 10 nominees to be confirmed to a U.S. District Court under a new precedent the Senate established. On April 3, 2019, the U.S. Senate voted 51-48 in favor of a change to chamber precedent lowering the maximum time allowed for debate on executive nominees to posts below the Cabinet level and on nominees to district court judgeships from 30 hours after invoking cloture to two.
 
The change was passed under a procedure which requires 51 votes rather than 60 that is often referred to as the nuclear option. It was the third use of the nuclear option in Senate history. In 2013, it was used to eliminate the 60-vote threshold to confirm presidential nominees, except those to the Supreme Court. In 2017, it was used to eliminate the 60-vote threshold required to confirm Supreme Court nominees.
 
President Donald Trump inherited 108 lifetime federal judicial vacancies requiring a presidential nomination when he was inaugurated on January 20, 2017. Across 890 federal judicial positions, there was an average of 141 vacancies a month from February 2017 to May 2019.
 


Vermont Supreme Court Justice Skoglund retiring on September 1

Vermont Supreme Court Justice Marilyn Skoglund is retiring on September 1, 2019.
 
Selection of Vermont Supreme Court justices occurs through assisted appointment. The governor appoints a justice from a list of names provided by a nominating commission. The appointed justice must be confirmed by the Vermont State Senate. Once confirmed, justices serve six-year terms. At the end of each term, justices face retention by a vote of the Vermont General Assembly. Skoglund’s replacement will be Gov. Phil Scott’s (R) second nominee to the five-member supreme court.
 
The Vermont Supreme Court is the court of last resort for the state. It currently includes the following justices:
  • Justice Marilyn Skoglund – Appointed by Gov. Howard Dean (D)
  • Justice Beth Robinson – Appointed by Gov. Peter Shumlin (D)
  • Justice Harold Eaton – Appointed by Gov. Peter Shumlin (D)
  • Justice Paul Reiber – Appointed by Gov. Jim Douglas (R)
  • Justice Karen Carroll – Appointed by Gov. Phil Scott (R)
Skoglund joined the Vermont Supreme Court on August 27, 1997. She was the second woman to serve as an associate justice of this court. Skoglund served on the Vermont district court from 1994 to 1997. She graduated from Southern Illinois University with a bachelor’s degree in fine arts in 1971. In lieu of attending law school, she completed a law-office clerkship at the Office of the Attorney General, where she served as assistant attorney general (1981-1989), chief of the Civil Law Division (1989-1993), and chief of the Public Protection Division (1993-1994).
 
In 2019, there have been 13 supreme court vacancies across eight of the 29 states where replacement justices are appointed instead of elected. Of those 13 vacancies, ten are in states where a Republican governor appoints the replacement. Two vacancies occurred in a state where a Democratic governor fills vacancies, while another occurred in a state where a Republican-controlled legislature appoints replacements.
 


Bitnami