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SCOTUS issues opinions in five cases

On June 1, 2020, the Supreme Court of the United States (“SCOTUS”) issued rulings in five cases argued during its October 2019-2020 term:
  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC (Consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment, and UTIER v. Financial Oversight and Management Board for Puerto Rico) 
  • Banister v. Davis
  • Thole v. U.S. Bank
  • GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC 
  • Nasrallah v. Barr
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC came on a writ of certiorari to the U.S. Court of Appeals for the 1st Circuit and involved how the Appointments Clause in Article II of the U.S. Constitution applies to U.S. territories. The case was argued before the Supreme Court of the United States on October 15, 2019.
  • The case: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment LLC, (“Aurelius”) and the Unión de Trabajadores de la Industria Eléctrica y Riego (“UTIER”) challenged the board’s authority in federal district court, arguing the board members’ appointment violated the Appointments Clause of the U.S. Constitution. The district court ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members “must be, and were not, appointed in compliance with the Appointments Clause.”
  • The issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
  • The outcome: The court ruled 9-0 that the Appointments Clause governed the appointment of members of the FOMB but that the method of appointment used did not violate its requirements.
Banister v. Davis
Banister v. Davis came on a writ of certiorari to the U.S. Court of Appeals for the 5th Circuit and concerned timely habeas petitions. The case was argued before the Supreme Court on December 4, 2019.
  • The case: In 2004, a jury convicted Gregory Banister of aggravated assault with a deadly weapon. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking 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 on the grounds the petition was untimely based on Gonzalez v. Crosby. Banister appealed to the U.S. Supreme Court, arguing there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions.
  • 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).
  • The outcome: The court reversed and remanded the judgment of the 5th Circuit in a 7-2 vote, holding that because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b), Banister’s appeal was timely.
Thole v. U.S. Bank
Thole v. U.S. Bank was a case concerning the Employee Retirement Income Security Act of 1974 (ERISA) and whether the plaintiffs had standing. It came on a writ of certiorari to the U.S. Court of Appeals for the 8th Circuit and was argued before SCOTUS on January 13, 2020.
  • The case: James Thole and Sherry Smith sued U.S. Bank, N.A. over U.S. Bank’s management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded. U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank’s motion. In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit, which affirmed the district court’s ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit’s ruling conflicted with other circuit court decisions.
  • The issues:
    • May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?
    • May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?
    • Whether petitioners have demonstrated Article III standing.
  • The outcome: The court affirmed the 8th Circuit’s decision in a 5-4 ruling, holding the plaintiffs did not have standing and would still receive the same amount of monthly benefits regardless of the case’s outcome.
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC 
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC was a case relating to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).  It came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on January 21, 2020.
  • The case: Outokumpu Stainless USA LLC (“Outokumpu”) contracted with Fives St. Corp. (“Fives”) to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS (“GE Energy”), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses. The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to federal district court, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings. On appeal, the 11th Circuit Court of Appeals reversed the district court’s decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit’s decision underlined a 2-to-2 circuit court split.
  • The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
  • The outcome: The court reversed the decision of the 11th Circuit in a unanimous ruling, holding the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with doctrines in state law that allow the enforcement of arbitration agreements by non-signatories to those agreements.
Nasrallah v. Barr
Nasrallah v. Barr was a case concerning judicial review of a noncitizen’s factual challenges to an order denying relief under the international Convention Against Torture. The case came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on March 2, 2020.
  • The case: Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce in the United States. An immigration judge determined that one of Nasrallah’s convictions involved moral turpitude and constituted a particularly serious crime, but granted Nasrallah protection from removal from the country under the Convention Against Torture. The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge’s decision and ordered Nasrallah’s removal. Nasrallah petitioned the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition.
  • The issue: “Whether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.”
  • The outcome: The court reversed the 11th Circuit’s judgment in a 7-2 vote, holding that U.S. Code Sections 1252(a)(2)(C) and (D) do not prevent judicial review of a noncitizen’s factual challenges to a denial of relief order under the international Convention Against Torture.

As of June 1, 2020, the court had issued decisions in 38 cases this term. Between 2007 and 2018, SCOTUS released opinions in 924 cases, averaging between 70 and 90 cases per year. The court agreed to hear 74 cases during its 2019-2020 term.

Additional reading:


Unanimous U.S. Supreme Court rejects appointments clause challenge to Puerto Rican debt board

On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.

The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.

Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.

Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.

Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.

Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.

Additional reading:

Administrative State Project

Click here to read the U.S. Supreme Court decision.


OIRA reviewed 56 significant rules in May

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 56 significant regulatory actions issued by federal agencies in May 2020. The agency approved 13 rules without changes and approved the intent of 40 rules while recommending changes to their content. Agencies withdrew three rules from the review process.

OIRA reviewed 36 significant regulatory actions in May 2019, 22 significant regulatory actions in May 2018, and four significant regulatory actions in May 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 46 significant regulatory actions each May.

OIRA has reviewed a total of 218 significant rules so far in 2020. The agency reviewed a total of 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of June 1, 2020, OIRA’s website listed 139 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, click on the “learn more” button below.



Kathleen Williams wins Democratic nomination for Montana’s At-Large District for second cycle in a row

Kathleen Williams (D) defeated state Rep. Tom Winter (D-96) to win the Democratic nomination for Montana’s at-large U.S. House seat for the second election cycle in a row. As of 10:33 p.m. Mountain Time, Williams had received 89.6% of the vote to Winter’s 10.4% with 43% of precincts reporting.
Williams was the 2018 Democratic candidate for U.S. House in Montana when she faced incumbent Rep. Greg Gianforte (R). Gianforte defeated Williams 50.9% to 46.2%, the seat’s narrowest margin of victory since 2000 when Denny Rehberg (R) defeated Nancy Keenan (D) 51.5% to 46.2%. Gianforte is not seeking re-election, leaving the seat open.
On May 28, the Democratic Congressional Campaign Committee named Williams one of its Red to Blue candidates, targeting the at-large district as one Democrats are hoping to flip in 2020. Williams will face the winner of the Republican primary in the November general election.


Frank Mrvan wins Democratic nomination in Indiana’s 1st District to succeed Pete Visclosky

Frank Mrvan (D) defeated 14 other candidates to win the Democratic nomination to succeed outgoing Rep. Pete Visclosky (D) in Indiana’s 1st Congressional District. As of 10:50 p.m. Central Time, Mrvan had received 33.6% of the vote to Thomas McDermott Jr.’s 29.3%. No other candidate had received more than 10% of the vote. This was the first open primary for the seat since 1932; Visclosky first won election by defeating Katie Hall (D) in the 1984 Democratic primary. Mrvan will face Mark Leyva (R) in the November general election. Election forecasters rate the seat Safe Democratic.



Yvette Herrell wins Republican nomination in New Mexico’s 2nd District, sets up rematch with Xochitl Torres Small

Yvette Herrell defeated Claire Chase and Chris Mathys to win the Republican nomination in New Mexico’s 2nd Congressional District. As of 11:05 p.m. Mountain Time, Herrell had received 45.6% of the vote with 83% of precincts reporting. Chase followed with 32.1%, while Mathys had 22.4%. Herrell, who had been the GOP’s 2018 nominee, will again face Rep. Xochitl Torres Small (D) in the general election. In 2018, Torres Small defeated Herrell 50.9% to 49.1%.


Lt. Gov. Mike Cooney wins Democratic gubernatorial nod

Lt. Gov. Mike Cooney (D) defeated businesswoman Whitney Williams (D) to win the Democratic gubernatorial nomination in Montana. As of 11:03 p.m. Mountain Time, Cooney had received 55.7% of the vote to Williams’ 44.3%. Cooney campaigned as a continuation of Gov. Steve Bullock’s (D) two-term administration. As lieutenant governor, Cooney ran with Bullock on a joint ticket in 2016. Bullock faced Greg Gianforte (R) in the general election and won with 50.3% of the vote to Gianforte’s 46.4%. The 2020 general election will feature Cooney versus U.S. Rep. Gianforte, who won the GOP nomination for the second cycle in a row.
The general election is expected to be competitive with major race forecasters rating it as a toss-up. The 2012 and 2016 gubernatorial elections were decided by margins of 1.6 and 3.9 percentage points, respectively.


Steve King (R) becomes second member of Congress to lose a primary in 2020

State Sen. Randy Feenstra (R) defeated Rep. Steve King (R) in the Republican primary for Iowa’s 4th Congressional District. As of 10:30 p.m. Central Time, Feenstra had received 40.6% of the vote to King’s 38.7%. No other candidate had received more than 10% of the vote.
Feenstra will face Democratic nominee J.D. Scholten in the November general election. The last Democrat to win election from the 4th district was Neal Smith (D) in 1992.
King is the second member of the U.S. House to lose a primary this year. Marie Newman defeated Rep. Dan Lipinski in the Democratic primary in Illinois’ 3rd Congressional District in March.
In 2018, four members of the House were defeated in primaries: Michael Capuano (D-Mass.), Joseph Crowley (D-N.Y.), Robert Pittenger (R-N.C.), and Mark Sanford (R-S.C.).


Greg Gianforte wins Montana Republican gubernatorial nomination for second cycle in a row

U.S. Rep. Greg Gianforte (R-Mont.) defeated Attorney General Tim Fox (R) and state Sen. Al Olszewski (R-06) to win the Republican nomination for governor of Montana. As of 9:05 p.m. Mountain Time, Gianforte had received 52.8% of the vote to Fox’s 28.7% and Olszewski’s 18.5%.
Gianforte was also the party’s nominee for governor in 2016. He lost the general election to now-Gov. Steve Bullock (D), 50.2% to 46.4%.
Bullock is term-limited and cannot run for re-election. Gianforte will face the winner of the Democratic primary in the general election.
The general election is expected to be competitive with major race forecasters rating it as a toss-up. The 2012 and 2016 gubernatorial elections were decided by margins of 1.6 and 3.9 percentage points, respectively.


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