Author

Sara Reynolds

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

Bold Justice: Twas the night before arguments…

Bold Justice: Twas the night before arguments…

Twas the night before arguments, and all through the court, not a brief was stirring, not even about tort; the robes were hung by the bench with care, in hopes that the justices soon would be there… 

Welcome to the December 9 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. While you settle your brains for a long winter nap, follow us on Twitter or subscribe to the Daily Brew to catch up on the latest political news.

We #SCOTUS, so you don’t have to

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 9

  • In Guerrero-Lasprilla v. Barr, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with Ovalles v. Barr.

    The issue: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a “question of law?”

    (2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
  • In Thryv Inc. v. Click-To-Call Technologies, LP, Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the “836 Patent”). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP (“CTC”) acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board (“Board”) allowed for an inter partes review (IPR) of the patent challenge.

    An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit.

    CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC’s time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board’s grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc.

    The issue: Whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s one-year time bar did not apply.

    Title 35 U.S.C. § 314(d) reads, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”

December 10

  • In Maine Community Health Options v. United States, as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments.

    Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress’ appropriations provisions.

    The case was consolidated with Moda Health Plan Inc. v. United States and Land of Lincoln Mutual Health Insurance Co. v. United States.

    The issue: According to Amy Howe from SCOTUSblog, “U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement.”

  • In Holguin-Hernandez v. U.S., Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court’s judgment.

    The issue: Whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant’s sentence.

December 11

  • Monasky v. Taglieri concerns the standard of review for “habitual residence” and how to establish “habitual residence” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

    Domenico Taglieri, an Italian, and Michelle Monasky, an American, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court’s ruling.

    The issue: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court’s findingsas seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review, as the Fourth and Sixth Circuits have held.

    (2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.
  • In McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence.

    The issue: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

    (2) Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in December:

  • December 9: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • December 10: SCOTUS will hear arguments in two cases.
  • December 11: SCOTUS will hear arguments in two cases.
  • December 13: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

On the Supreme Court’s traditional seal, how many stars are beneath the eagle’s claws?

  1. One
  2. Two
  3. Three
  4. None

Choose an answer to find out!

Federal court action

Confirmations

The Senate has confirmed eight nominees since our December 2 issue.

Overall, the Senate has confirmed 172 of President Trump’s judicial nominees—120 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 not announced any new Article III nominees since our December 2 edition.

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.

Judicial nominations by month

Vacancies

The federal judiciary currently has 97 vacancies. As of publication, there were 58 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 has not reported any new nominees out of committee since our December 2 edition.

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 visiting the U.S. District Court for the District of Delaware. The District of Delaware has original jurisdiction over cases filed in Delaware. Decisions of the court may be appealed to the 3rd Circuit Court of Appeals.

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

  • Barack Obama (D): Two judges
  • Donald Trump (R): Two judges

Looking ahead

Bold Justice will be back January 6 with more information on the federal judiciary.

… We sprang to the court, where the marshall said “oyez,” and arguments began for the day. But Ballotpedia exclaimed, ere the holidays were in sight, happy SCOTUS to all, and to all a good night!



Washington governor announces supreme court appointment

Washington Governor Jay Inslee (D) appointed Judge Raquel Montoya-Lewis to succeed Chief Justice Mary Fairhurst on the Washington Supreme Court. Fairhurst is retiring on January 5, 2020, for health reasons. Montoya-Lewis is Inslee’s second nominee to the nine-member supreme court.
At the time of her appointment to the state supreme court, Montoya-Lewis was a judge for the Whatcom County Superior Court. Gov. Inslee appointed Montoya-Lewis to this court on December 15, 2014. Before her appointment to that court, Montoya-Lewis served as the chief judge for the Nooksack and Upper Skagit Indian Tribes in Washington. Montoya-Lewis received her undergraduate degree from the University of New Mexico. She received both her master’s degree in social work and her J.D. from the University of Washington. She is an enrolled member of the Pueblo of Isleta and a descendant of the Pueblo of Laguna Indian tribes.
In the event of a midterm vacancy, the governor appoints a replacement to the Washington Supreme Court. The appointee serves until the next general election, at which point he or she may run to serve for the remainder of the predecessor’s term. The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.
Founded in 1889, the Washington Supreme Court is the state’s court of last resort and has nine judgeships. As of December 2019, three of the court’s nine justices were appointed by Democratic governors. The other six were elected by voters.
In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four others occurred when the justices were elevated to federal judicial positions.
Click here to learn more.
Additional reading:


Vermont governor announces supreme court nomination

Vermont Governor Phil Scott (R) nominated Judge William “Bill” Cohen to succeed Marilyn Skoglund as a justice on the Vermont Supreme Court. Skoglund retired on September 1, 2019. Cohen was Gov. Phil Scott’s (R) second nominee to the five-member supreme court.
At the time of his state supreme court appointment, Cohen was a superior court judge in Rutland County, Vermont. Governor Howard Dean appointed Cohen to the bench in 1999. Cohen was an attorney in private practice from 1986 to 1999. He was a deputy state’s attorney in Rutland County from 1984 to 1986. Cohen earned a B.A. in environmental science from George Washington University in 1980 and a J.D. from Vermont Law School in 1984.
Selection of state supreme court justices in Vermont occurs through gubernatorial appointment with state Senate confirmation. A judicial nominating commission submits a list of names to the governor, who then selects an appointee. The Vermont State Senate must also confirm the appointment. Approved nominees serve for six years, at which point they face retention by a vote of the Vermont General Assembly.
Founded in 1777, the Vermont Supreme Court is the state’s court of last resort and has five judgeships. As of December 2019, two of the court’s justices were appointed by Republican governors and two were appointed by a Democratic governor.
In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four others occurred when the justices were elevated to federal judicial positions.
Click here to learn more.
Additional reading:


170 federal judicial confirmations during Trump administration

The U.S. Senate has confirmed six new nominees to U.S. District Court judgeships. Overall, the Senate has confirmed 170 of President Trump’s Article III judicial nominees—two Supreme Court justices, 48 appellate court judges, 118 district court judges, and two U.S. Court of International Trade judges—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 were:
 
  • Eric Komitee, confirmed to a seat on the U.S. District Court for the Eastern District of New York. After he receives his judicial commission and takes his oath, the court will have three vacancies, six Republican-appointed judges, and six Democrat-appointed judges.
  • Sarah Pitlyk, confirmed to a seat on the U.S. District Court for the Eastern District of Missouri. After she receives her judicial commission and takes her oath, the court will have no vacancies, four Republican-appointed judges, and five Democrat-appointed judges.
  • R. Austin Huffaker, Jr., confirmed to a seat on the U.S. District Court for the Middle District of Alabama. After he receives his judicial commission and takes his oath, the court will have no vacancies, three Republican-appointed judges, and no Democrat-appointed judges.
  • David Barlow, confirmed to a seat on the U.S. District Court for the District of Utah. After he receives his judicial commission and takes his oath, the court will have no vacancies, two Republican-appointed judges, and three Democrat-appointed judges.
  • John Sinatra, Jr., confirmed to a seat on the U.S. District Court for the Western District of New York. After he receives his judicial commission and takes his oath, the court will have no vacancies, one Republican-appointed judge, and three Democrat-appointed judges.
  • Douglas Cole, confirmed to a seat on the U.S. District Court for the Southern District of Ohio. After he receives his judicial commission and takes his oath, the court will have two vacancies, three Republican-appointed judges, and three Democrat-appointed judges.
 
There are 94 U.S. District Courts. They are the general trial courts of the United States federal court system.
 


Ballotpedia releases federal vacancy count for November

In this month’s federal vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from November 5 to December 2, 2019. Ballotpedia publishes the federal vacancy count at the start of each month.
 
HIGHLIGHTS
  • Vacancies: There has been one new judicial vacancy since the October 2019 report. There are 90 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 98 of 890 active federal judicial positions are vacant.
  • Nominations: There have been eight new nominations since the October 2019 report.
  • Confirmations: There have been seven new confirmations since the October 2019 report.
 
New vacancies
There were 90 vacancies out of 870 Article III judicial positions, a total vacancy percentage of 10.3, which is 0.5 percentage points lower than the vacancy percentage in October 2019.
  • The nine-member U.S. Supreme Court does not have any vacancies.
  • One (0.6%) of the 179 U.S. Appeals Court positions are vacant.
  • 87 (12.8%) of the 677 U.S. District Court positions are vacant.
  • Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.
 
A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the Constitution, are appointed for life terms.
 
One judge left active status, creating an Article III life-term judicial vacancy. As an Article III judicial position, this vacancy must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
  • Judge Daniel Hovland assumed senior status on the United States District Court for the District of North Dakota.
 
U.S. Court of Appeals vacancies
The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to the date indicated on the chart.
 
 
The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Donald Trump (R) and as of December 1, 2019.
 
 
 
U.S. District Court vacancies
 
New nominations
President Donald Trump (R) has announced eight new nominations since the October 2019 report:
  • Andrew Brasher, to the U.S. Court of Appeals for the Eleventh Circuit.
  • John Cronan, to the U.S. District Court for the Southern District of New York.
  • Scott Hardy, to the U.S. District Court for the Western District of Pennsylvania.
  • John Heil, to the U.S. District Courts for the Northern, Eastern and Western Districts of Oklahoma.
  • John Hinderaker, to the U.S. District Court for the District of Arizona.
  • Iris Lan, to the U.S. District Court for the Southern District of New York.
  • Matthew Schelp, to the U.S. District Court for the Eastern District of Missouri.
  • David Joseph, to the U.S. District Court for the Western District of Louisiana.
 
Since taking office in January 2017, President Trump has nominated 234 individuals to Article III positions.
 
New confirmations
Since November 5, 2019, the United States Senate confirmed seven of President Trump’s nominees to Article III seats. As of December 2, 2019, 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.
 
  • Jennifer Philpott Wilson, confirmed to a seat on the U.S. District Court for the Middle District of Pennsylvania.
  • Lee Rudofsky, confirmed to a seat on the U.S. District Court for the Eastern District of Arkansas.
  • William Nardini, confirmed to a seat on the U.S. Court of Appeals for the 2nd Circuit.
  • Danielle Hunsaker, confirmed to a seat on the U.S. Court of Appeals for the 9th Circuit.
  • Barbara Lagoa, confirmed to a seat on the U.S. Court of Appeals for the 11th Circuit.
  • Robert J. Luck, confirmed to a seat on the U.S. Court of Appeals for the 11th Circuit.
  • Steven Menashi, confirmed to a seat on the U.S. Court of Appeals for the 2nd Circuit.
 


U.S. Supreme Court releases February argument calendar

The U.S. Supreme Court has released its February argument calendar for the 2019-2020 term. The court will hear nine hours of oral argument in 11 cases between February 24 and March 4.
 
As of November 25, 2019, the court had agreed to hear 57 cases during its 2019-2020 term.
 
February 24, 2020
  • United States Forest Service v. Cowpasture River Preservation Association (consolidated with Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association)
  • Opati v. Republic of Sudan
 
February 25, 2020
  • United States v. Sineneng-Smith
 
February 26, 2020
  • Lomax v. Ortiz-Marquez
 
March 2, 2020
  • Nasrallah v. Barr
  • Department of Homeland Security v. Thuraissigiam
 
March 3, 2020
  • Seila Law v. Consumer Financial Protection Bureau
  • Liu v. Securities and Exchange Commission
 
March 4, 2020
  • June Medical Services LLC v. Gee (consolidated with Gee v. June Medical Services)
Additional reading:
 


November 2019 breakdown of state legislative party membership: 52.2% Republicans, 46.8% Democrats

November’s partisan count of the 7,383 state legislators across the United States shows 52.2% of all state legislators are Republicans and 46.8% are Democrats.
 
Ballotpedia tallies the partisan balance of state legislatures at the end of every month. This refers to which political party holds the majority of seats in each chamber. Republicans hold a majority in 61 chambers, and Democrats hold the majority in 37 chambers. One chamber (Alaska’s state House) has a power-sharing agreement between the two parties.
 
Altogether, there are 1,972 state senator and 5,411 state representative offices. Republicans held 1,081 state senate seats—no change from October—and 2,775 state house seats—up five seats from last month. Democrats held 3,457 of the 7,383 state legislative seats—878 state Senate seats (down one seat) and 2,579 state House seats (down four seats). Independent or third-party legislators held 36 seats. There were 34 vacant seats.
 
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.
 
 


SCOTUS adds new case to merits docket

The U.S. Supreme Court added a new case to the merits docket on Friday. As of November 25, 2019, the court had agreed to hear 57 cases during its 2019-2020 term. The Supreme Court began hearing cases for the term on October 7, 2019.
 
The new case—FNU Tanzin v. Tanvir—concerns the Religious Freedom Restoration Act (RFRA) of 1993. It came on a writ of certiorari to the United States Court of Appeals for the 2nd Circuit.
 
Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari, three Muslim men born outside of the U.S. but living lawfully inside the country, were approached by FBI agents and asked to act as informants. Citing their religious beliefs, the three men declined. Tanvir, Algibah, and Shinwari alleged the FBI agents then retaliated against their refusal to act as informants by placing them on the national “No Fly List.” They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA.
 
The U.S. District Court for the Southern District of New York dismissed the claims against the agents in their individual capacity. Tanvir, Algibah, and Shinwari appealed to the U.S. Court of Appeals for the 2nd Circuit, which reversed the lower court’s ruling. FBI Special Agent FNU (First Name Unknown) Tanzin moved for the circuit court to rehear the case en banc, but the circuit court denied the motion. Tanzin then petitioned the U.S. Supreme Court for a hearing.
 
In his petition to the U.S. Supreme Court, Tanzin argued, “The court of appeals’ anomalous ruling clears the way for a slew of future suits against national-security officials, criminal investigators, correctional officers, and countless other federal employees, seeking to hold them personally liable for alleged burdens on any of the myriad religious practices engaged in by the people of our Nation.”
 
The question presented in the case, according to the petition, is “whether the provision in RFRA allowing litigants to ‘obtain appropriate relief against a government,’ 42 U.S.C. 2000bb-1(c), authorizes an award of money damages against federal employees sued in their individual capacities.”
 
The case has not been set for argument before the court.
 


Bold Justice: SCOTUS cases and appeals court switches

We #SCOTUS, so you don’t have to

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.

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.

Circuit court composition chart

Nominations

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

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.

Federal judicial nominations by month chart

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


Senate confirms two federal nominees to 11th Circuit Court of Appeals

The U.S. Senate has confirmed two nominees to the U.S. Court of Appeals for the 11th Circuit. Overall, the Senate has confirmed 164 of President Trump’s Article III judicial nominees—two Supreme Court justices, 48 appellate court judges, 112 district court judges, and two U.S. Court of International Trade judges—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 were Robert J. Luck and Barbara Lagoa. Luck received commission the day of his confirmation. When Lagoa receives commission, she will replace Judge Stanley Marcus, who will assume senior status upon Lagoa’s swearing-in. At that time, the court will have no vacancies, seven Republican-appointed judges, and five Democrat-appointed judges.
 
The 11th Circuit is the third appellate court to change from a majority of Democrat-appointed judges to 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.
 
There are 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.
 
Luck and Lagoa were both justices on the Florida Supreme Court. Their federal confirmation leaves two vacant seats on the seven-member state supreme court. In Florida, a judicial nominating commission screens potential supreme court candidates and submits a list of nominees to the governor. This will be Governor Ron DeSantis’ (R) fourth and fifth appointments to the court. Newly appointed judges serve for at least one year, after which they appear in a yes-no retention election held during the next general election. If retained, judges serve six-year terms.
 


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