CategoryFederal

Secretary of Labor Alexander Acosta announces resignation

U.S. Secretary of Labor R. Alexander Acosta announced he would resign from his cabinet position, effective July 19.
 
President Trump nominated Acosta to serve as Secretary of Labor on February 16, 2017. Acosta was confirmed by the Senate on April 27, 2017, and sworn in the following day. Deputy Secretary of Labor Pattrick Pizzella will succeed Acosta as acting secretary.
 
Acosta said that he didn’t want his approval of a non-prosecution agreement with financier Jeffrey Epstein in 2008 to overshadow the achievements of the President and the Department of Labor. While serving as a U.S. attorney in Florida, Acosta agreed to the agreement under which Epstein served 13 months in county jail. On July 6, Epstein was arrested and charged with sex trafficking of minors and conspiracy to commit sex trafficking of minors from 2002 to 2005.
 
Acosta said he had struck the agreement after a state grand jury recommended a charge which would bring a more lenient sentence for Epstein and added that the full extent of Epstein’s alleged crimes was not known at the time. A district court judge ruled in February 2019 that the agreement had violated the Crime Victims Rights Act since Epstein’s alleged victims had not been informed in advance.
 


U.S. Senate confirms 9th Circuit nominee over home-state objections

The U.S. Senate confirmed Daniel Bress to a seat on the U.S. Court of Appeals for the 9th Circuit on July 9, 2019. The Senate voted 53-45 along party lines to confirm Bress. Sens. Bernie Sanders (I-Vt.) and Kirsten Gillibrand (D-N.Y.) did not vote. President Donald Trump (R) nominated Bress on February 6, 2019, to succeed Judge Alex Kozinski.
 
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. After Bress receives commission and takes his judicial oath, the 9th Circuit will have 16 judges appointed by Democrats, 12 judges appointed by Republicans, and one vacant seat.
 
Bress graduated with his A.B. in government from Harvard College in 2001. He obtained his J.D. from the University of Virginia School of Law in 2005. He worked as an associate and later partner for the law firm of Kirkland & Ellis LLP from 2008 to 2019. Bress was a law clerk to U.S. Supreme Court Justice Antonin Scalia from 2006 to 2007.
 
Bress was born in California and lived in Virginia at the time of his nomination. On March 7, 2019, Sen. Dianne Feinstein (D-Calif.) wrote in an op-ed that she was concerned about Bress’ confirmation. She wrote: “[Bress] was born in California but practices law in Washington, D.C., and lives in Virginia. … Given California’s demographics and the high quality of its educational institutions – and given California’s centrality to the Ninth Circuit – I don’t understand why the White House would choose someone with such a limited connection to the state.”
 
The White House denied claims that Bress did not have ties to California. According to the Sacramento Bee, an anonymous administration official said Bress worked out of Kirkland & Ellis’ San Francisco office and owned property and paid taxes in the state.
 
Neither Sen. Feinstein nor Sen. Kamala Harris (D) of California returned blue slips for Bress’ nomination. A blue slip is a piece of paper a home-state senator returns to the chair of the Senate Judiciary Committee to show his or her approval of a federal judicial nominee. Traditionally, United States senators have the power to prevent a federal judicial nominee from receiving a hearing and subsequently being confirmed by withholding a blue slip. Sen. Lindsey Graham (R-S.C.), who chairs the Senate Judiciary Committee, applies a policy in which the lack of a blue slip does not prevent a judicial nominee from moving forward in the confirmation process.
 


Murphy wins NC-3 Republican runoff

State Rep. Greg Murphy defeated Dr. Joan Perry to win the Republican primary runoff for North Carolina’s 3rd Congressional District. Murphy received 59.7% of the vote while Perry received 40.3%. In the April 30 Republican primary, Murphy received 22.5% of the vote and Perry received 15.4%.
 
Murphy will face Allen Thomas (D) and Tim Harris (L) in the September 10 special election. That special election will fill the vacancy left by Walter Jones (R), who died on February 10, 2019.
 
Murphy and Perry split support from outside groups and members of Congress. Murphy received the support of Rep. Mark Meadows, the House Freedom Caucus, and the National Rifle Association. Perry received the support of all 13 Republican women in Congress, Winning for Women Action Fund, and FreedomWorks for America. Earlier this week, Rudy Giuliani recorded robocalls on behalf of Murphy, and Newt Gingrich recorded robocalls on behalf of Perry.


U.S. Supreme Court releases November argument calendar

The U.S. Supreme Court released its November argument calendar for the 2019-2020 term. The court will hear 10 hours of oral argument in 12 cases between November 4 and November 13.
 
As of June 28, 2019, the court had agreed to hear 44 cases in the upcoming term.
 
November 4
  • Barton v. Barr asks whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “inadmissible” under a federal law that ends the accrual of continuous residence if the permanent resident commits a crime that would make them inadmissible to the U.S.
  • Kansas v. Glover asks whether, for investigative purposes under the Fourth Amendment, it is reasonable for a law enforcement officer to assume that a vehicle’s registered owner is the one driving the vehicle without any other information.
November 5
  • CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd. asks whether under federal maritime law a safe berth clause in a voyage charter contract is a guarantee of a ship’s safety, as the 3rd Circuit and the 2nd Circuit have held, or a duty of due diligence, as the 5th Circuit has held.
  • Allen v. Cooper asks whether Congress had the authority to repeal states’ immunity from legal challenges under the Copyright Remedy Clarification Act.
November 6
  • County of Maui, Hawaii v. Hawaii Wildlife Fund asks whether the Clean Water Act requires a permit to discharge waste when pollutants originate from a point source (an area where pollutants may be discharged) but are brought by navigable waters to a non-point source, such as groundwater.
  • Retirement Plan Committee of IBM v. Jander asks whether a pleading standard established by U.S. Supreme Court precedent can be satisfied by general allegations that the harm of undisclosed fraud increases over time.
November 12
  • Department of Homeland Security v. Regents of the University of California asks (1) whether the Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable and (2) whether the decision was lawful. This case is consolidated with Trump v. NAACP and McAleenan v. Vidal.
  • Hernandez v. Mesa asks whether courts can and should recognize a damages claim against a law enforcement officer when plaintiffs allege the officer violated Fourth and Fifth Amendment rights.
November 13
  • Comcast Corp. v. National Association of African American-Owned Media asks whether a plaintiff bringing a claim of race discrimination is required to prove the defendant would have acted differently if not for the plaintiff’s race.
  • Ritzen Group Inc. v. Jackson Masonry, LLC asks whether an order denying a motion to lift an automatic stay in bankruptcy is a final order that can be appealed.
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Republican primary runoff takes place June 9 in North Carolina’s 3rd Congressional District

 
North Carolina state Rep. Greg Murphy and Dr. Joan Perry are running in the Republican primary runoff for North Carolina’s 3rd Congressional District on Tuesday, July 9.
 
Murphy was endorsed by Rep. Mark Meadows (R-N.C.), the House Freedom Caucus, and the National Rifle Association. Perry received the support of all 13 Republican women in Congress, Winning for Women Action Fund, and FreedomWorks for America.
 
Murphy has raised $544,000 and spent $449,000 on the race through June 19, which is more than Perry’s $374,000 and $319,000, respectively. However, outside groups have spent more in support of Perry. Satellite spending supporting her has totaled $879,000 and groups backing Murphy have spent $589,000.
 
The winner of the runoff will face Allen Thomas (D) and Tim Harris (L) in a special election September 10. This election will fill the vacancy left by Walter Jones (R), who died on February 10. In 2018, Jones won a three-way Republican primary and was unopposed in the general election. He received 67% and 68% of the vote in the 2016 and 2014 general elections, respectively. Inside Elections rates the special election “Solid Republican.”  
 
Four special elections have been called during the 116th Congress. Three of those are for seats in the U.S. House, and one is for a seat in the U.S. Senate—which will occur in 2020. Fred Keller (R) won the special election in Pennsylvania’s 12th Congressional District on May 21. The special election in North Carolina’s 9th Congressional District will be held September 10.


Buttigieg leads Democratic candidates in Q2 fundraising announced so far

 
While financial reports for the second quarter of 2019 are not due to the Federal Election Commission until July 15, some presidential candidates announced their fundraising totals early.
 
President Donald Trump (R) leads all candidates, raising $54 million through his re-election campaign and related committees. For comparison, President Barack Obama (D) raised $46.3 million during the same time period in 2011.
 
Former Gov. Bill Weld (R) raised $688,000 from 7,000 donors.
 
South Bend Mayor Pete Buttigieg (D) currently tops the Democratic field with a $24.8 million take in the second quarter, more than tripling the $7 million he raised in the first quarter.
 
In his first quarter as a 2020 presidential candidate, former Vice President Joe Biden (D) raised $21.5 million. Ninety-seven percent of donations were small-dollar contributions.
 
Not including $6 million transferred from previous campaign accounts, Sen. Bernie Sanders (I) raised $18 million. His campaign reported that nearly half of the contributions came from donors under the age of 39.
 
Sen. Kamala Harris (D) matched her first quarter fundraising with $12 million. Her campaign said she raised $2 million within 24 hours of her debate performance last month.
 
Montana Gov. Steve Bullock (D), who entered the presidential race halfway through the quarter on May 14, raised $2 million. Another May entrant, Colorado Sen. Michael Bennet (D), raised $2.8 million and transferred $700,000 from his Senate campaign account.


When is your state holding its 2020 congressional primaries?

The first 2020 congressional primary is eight months away. Five states—Alabama, Arkansas, California, North Carolina, and Texas—have primaries on the ballot on March 3. Overall, eight states are holding their 2020 congressional primaries in March, which is the second-highest concentration of primaries throughout the year. The months of June and August are tied for the highest concentration with 14 states holding primaries each month.
 
The first filing deadline for the 2020 congressional primary season will pass in Alabama in four months on November 8, 2019. One other state—Arkansas—also has a November filing deadline. Another five states have filing deadlines in December. The highest concentration of state filing deadlines for the 2020 congressional primaries will occur in March with 15. The second-highest concentration of filing deadlines will occur in June with deadlines passing in eight states.
 


U.S. Supreme Court releases October argument calendar

The U.S. Supreme Court released its October argument calendar for the 2019-2020 term. The court will begin the new term on October 7. It will hear argument in 14 cases, some of which are consolidated, totaling nine hours of argument between October 7 and October 16.
 
As of June 28, 2019, the court had agreed to hear 44 cases in the upcoming term.
 
October 7
  • Kahler v. Kansas asks whether the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense.
  • Peter v. NantKwest asks whether applicants challenging a patent rejection under Section 145 of the U.S. Patent Act must pay attorneys’ fees for the United States Patent and Trademark Office.
  • Ramos v. Louisiana asks whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
October 8
  • Bostock v. Clayton County, Georgia (consolidated with Altitude Express Inc. v. Zarda) asks whether discrimination on the basis of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964.
  • R.G. & G.R. Harris Funeral Homes v. EEOC asks whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under previous Supreme Court precedent.
October 15
  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (consolidated with Aurelius Investment, LLC v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, LLC, United States v. Aurelius Investment, LLC, and UTIER v. Financial Oversight and Management Board for Puerto Rico) asks whether the Appointments Clause of the U.S. Constitution governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
October 16
  • Kansas v. Garcia asks (1) whether the Immigration Reform and Control Act (IRCA) preempts states from using information from federal I-9 forms to prosecute a person when that same information is on non-IRCA forms and (2) whether the IRCA preempts Kansas’ prosecutions of Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara.
  • Rotkiske v. Klemm asks whether the statute of limitations on the Fair Debt Collection Practices Act begins to run when a potential plaintiff discovers the violation or when the would-be defendant violates the act.
  • Mathena v. Malvo asks whether a Supreme Court decision prohibiting mandatory sentences of life without parole for juveniles applies when those sentences are mandatory.
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Supreme Court overturned lower court rulings at lowest rate since 2015 term

The Supreme Court of the United States (SCOTUS) concluded its October 2018 term in June. The court reversed lower court decisions at a rate of 64.9 percent, the lowest rate since the October 2015 term (63.2 percent). The rate was 5 percent lower than the court’s total reversal rate since 2007 (69.8 percent).
 
The court decided 74 cases. It affirmed a lower court’s decision in 26 cases and reversed a lower court’s decision in 48 cases.
 
Since 2007, SCOTUS has released opinions in 923 cases. In that time, it reversed a lower court decision 644 times (69.8 percent) and affirmed a lower court decision 261 times (28.3 percent).
 
More SCOTUS cases originated in the Ninth Circuit (14) than any other, and the court reversed more Ninth Circuit rulings (12) than any other circuit’s.
 
SCOTUS has decided more cases originating from the Ninth Circuit (181) than from any other since 2017. The second-most cases (66) originated in the Sixth Circuit. The Sixth Circuit (55 of 66 cases, or 83.3 percent) had the highest rate of reversed cases since 2007.
 
The Supreme Court hears and reaches decisions in 70 to 90 cases each year. There are two major possible outcomes in a SCOTUS case—it can affirm a lower court’s ruling or reverse it. The vast majority of SCOTUS cases originate in a lower court—either one of the 13 appeals circuits, state-level courts, or U.S. district courts. Original jurisdiction cases cannot be considered affirmed or reversed since SCOTUS is the first and only court that rules in the case.
 
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U.S. Supreme Court upholds deference to agency interpretations of regulations, lays out limitations

In Kisor v. Wilkie, the U.S. Supreme Court upheld Auer deference while restating the limited circumstances in which the administrative law principle applies. A principle of judicial review, Auer deference requires a federal court to yield to an administrative agency’s interpretation of an ambiguous regulation that the agency has promulgated.
 
The ruling in the case, about a marine veteran who challenged a U.S. Department of Veterans Affairs (VA) decision related to retroactive disability benefits, was unanimous in vacating and remanding the judgment of the Federal Circuit Court of Appeals. But justices disagreed about the future of judicial deference to agencies. The court instructed the Federal Circuit to redo the case and decide whether the application of Auer deference is appropriate.
 
Justice Gorsuch, who agreed to send the case back to the lower circuit, wrote a concurring opinion joined by Justices Thomas, Alito, and Kavanaugh, strongly criticizing the court for not overruling Auer deference as a doctrine.
 
Justice Kagan delivered the opinion of the court, which restated the following limitations on Auer deference:
 
1. Courts should only give Auer deference to an agency after establishing that the regulation in question is actually ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to a reasonable agency view.
 
2. A court must determine whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency before giving Auer deference.
 
3. Courts should only give Auer deference to agency interpretations based on the expertise of that agency. For questions that fall outside the regular duties of an agency, Auer deference is less appropriate.
 
 
4. The reasonable agency interpretation of an ambiguous regulation must be a “fair and considered judgment” that does not create an unfair surprise for those subject to the regulation in order to qualify for Auer deference. Courts should not defer to agency interpretations that were adopted just to help the agency during a lawsuit.
 


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