Tagjudicial

President Biden nominates six to Article III courts; two to D.C. local courts

President Joe Biden (D) nominated six individuals to Article III judgeships with lifetime terms on June 15:

• Myrna Pérez, to the United States Court of Appeals for the 2nd Circuit

• Jia Cobb, to the United States District Court for the District of Columbia

• Sarah A.L. Merriam, to the United States District Court for the District of Connecticut

• Sarala Nagala, to the United States District Court for the District of Connecticut

• Florence Pan, to the United States District Court for the District of Columbia

• Omar A. Williams, to the United States District Court for the District of Connecticut

To date, Biden has nominated 24 individuals to federal judgeships. Five of the nominees have been confirmed. There were 81 Article III vacancies in the federal judiciary as of June 1.

As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.

President Biden also nominated two individuals to Washington, D.C., local courts on June 15:

• Tovah Calderon, to the District of Columbia Court of Appeals

• Kenia Seoane Lopez, to the Superior Court of the District of Columbia

Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission. They then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.

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Supreme Court issues opinion in case concerning civil procedure

The Supreme Court of the United States (SCOTUS) issued an opinion in one case, City of San Antonio, Texas v. Hotels.com, L.P. on May 27. The case involved Rule 39 of the Federal Rules for Appellate Procedure. The case was argued before SCOTUS during the April argument sitting last month.

A class of 173 Texas municipalities (“San Antonio”) sued several online travel companies (“OTCs”) over the calculation of hotel occupancy taxes and was awarded a multi-million dollar judgment in federal district court. On appeal, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the OTCs, holding that they had not underpaid their taxes. The OTCs filed a bill of costs in the district court. San Antonio objected and asked the district court to deny or reduce the amount owed. The district court ruled that it was not permitted to alter the appellate cost awards under Rule 39. The municipalities appealed to the 5th Circuit. The 5th Circuit affirmed the district court’s conclusion.

In a unanimous opinion, SCOTUS affirmed the 5th Circuit’s ruling, holding that Rule 39 does not allow a district court to change a court of appeals’ allocation of the costs. Justice Samuel Alito delivered the opinion of the court. 

To date, the U.S. Supreme Court has issued 39 opinions during the 2020-2021 term. Seven cases were decided without argument.

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Missouri governor appoints Robin Ransom to state supreme court

Missouri Gov. Mike Parson (R) appointed Robin Ransom to the Missouri Supreme Court on May 24. Ransom was appointed to fill the vacancy left by Laura Denvir Stith, who retired on March 8. Ransom is Parson’s first appointee to the state’s highest court.

Under Missouri law, the Missouri Appellate Judicial Commission selects supreme court judges according to the Missouri Plan. When a seat on the court becomes vacant, the commission submits three names to the governor to determine the replacement. If the governor fails to nominate a replacement from the list, the responsibility goes to the commission.

Ransom has served as a judge of the Missouri Court of Appeals Eastern District since her appointment to that court by Gov. Parson in January 2019. Ransom previously served as a circuit court judge for the 22nd Circuit Court in Missouri. Governor Matt Blunt (R) appointed her to the position on Sept. 11, 2008, and she was retained by voters in 2010 and 2016. Ransom earned a B.A. in political science and sociology from Rutgers University’s Douglass College in 1988 and a J.D. from the University of Missouri-Columbia School of Law in 1991.

In 2021, there have been 11 supreme court vacancies in nine of the 29 states where replacement justices are appointed instead of elected. The vacancies have all been caused by retirements.

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SCOTUS issues four opinions in cases argued this term

The Supreme Court of the United States (SCOTUS) issued opinions in four cases on May 17 that were argued during the 2020-2021 term. 

Edwards v. Vannoy

• The case: A non-unanimous jury found Thedrick Edwards guilty of nine counts of armed robbery, one count of attempted armed robbery, two counts of aggravated kidnapping, and one count of aggravated rape. Edwards was sentenced to 30 years imprisonment on each armed robbery count and to life imprisonment on the aggravated kidnapping and aggravated rape counts. Edwards appealed his conviction and sentence, which was denied in state and federal court. He then filed a petition for habeas corpus with the U.S. District Court for the Middle District of Louisiana. The district court denied Edwards’ claim. Edwards appealed to the U.S. Court of Appeals for the 5th Circuit, which refused to issue a certificate of appealability. In a habeas corpus proceeding, an applicant seeking to file an appeal from a state court is unable to do so without a certificate of appealability.

• The question presented: Whether the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020) applies retroactively to cases on federal collateral review. In Ramos, the U.S. Supreme Court held that the 6th Amendment’s right to a unanimous jury verdict to support a conviction applies in both federal and state courts.

• The outcome: In a 6-3 opinion, SCOTUS upheld the 5th Circuit’s ruling, holding that the jury-unanimity rule does not apply retroactively on federal collateral review. Justice Brett Kavanaugh delivered the majority opinion of the court. Justice Elena Kagan filed a dissenting opinion, in which Justices Stephen Breyer and Sonia Sotomayor joined. 

BP P.L.C. v. Mayor and City Council of Baltimore

• The case: The mayor and city council of Baltimore, Maryland (“Baltimore”) filed a claim and sought relief in state court against 26 multinational oil and gas companies, alleging that the companies contributed to and were responsible in part for climate change and that the companies’ actions caused injury to Baltimore. Two of the companies filed to move the case to federal court, claiming that the issues concerned federal law. Baltimore filed a motion to remand the case back to state court. The district court granted Baltimore’s request. The companies appealed to the 4th Circuit and the court affirmed the district court’s ruling.

• The question presented: Whether 28 U.S.C. 1447(d) allows a court of appeals to review any issue included in a district court’s order remanding a case to state court where the removing defendant premised removal in part on the federal officer removal statute, §1442, or the civil rights removal statute, §1443.

• The outcome: In a 7-1 ruling, the court vacated the U.S. Court of Appeals for the 4th Circuit’s ruling and remanded the case for further proceedings consistent with the court’s opinion. The court held that the 4th Circuit erred in its conclusion that it lacked jurisdiction to consider all of the defendants’ grounds for removal under §1447(d). Justice Neil Gorsuch authored the majority opinion and Justice Sotomayor filed a dissenting opinion. Justice Samuel Alito recused himself from the case and took no part in its consideration or decision.

CIC Services v. Internal Revenue Service

• The case: In 2004, Congress authorized the Internal Revenue Service (IRS) to identify and gather details about potential tax shelters. In 2016, the IRS identified certain “micro-captive transactions” as “transactions of interest,” under the umbrella of transactions that must be reported to the IRS. In 2017, risk management consulting firm CIC Services challenged the updated requirements in district court as being beyond the scope of the IRS’ authority and sought to block enforcement. The IRS argued that the court should dismiss the case because it lacked subject matter jurisdiction. The court agreed with the IRS and dismissed the case. On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed the district court’s dismissal. 

• The question presented: Whether a suit to block the updated requirements triggered the Anti-Injunction Act (AIA), a federal law barring lawsuits to prevent the assessment or collection of taxes, even though a violation of the notice may result in a tax penalty.

• The outcome: In a unanimous decision, the court reversed the 6th Circuit and remanded the case for further proceedings, holding that the AIA does not apply to lawsuits challenging certain IRS regulations. Justice Elena Kagan authored the majority opinion. Justices Sotomayor and Kavanaugh filed concurring opinions. 

Caniglia v. Strom

• The case: In 2015, Edward Caniglia and his wife had an argument at their Rhode Island home. The next day, the police conducted a wellness check on Caniglia and seized firearms and ammunition from the home. Later, Caniglia attempted to retrieve his firearms from the police department several times. His requests were denied. Caniglia filed suit in U.S. district court, alleging violations to the U.S. Constitution and to state law. The firearms were returned to Caniglia. The district court held that the police officers’ seizures were protected under the community caretaking exception to the Fourth Amendment’s warrant requirement, where police officers are permitted to perform community caretaking functions on private premises. On appeal, the U.S. Court of Appeal for the 1st Circuit upheld the district court’s ruling.

• The question presented: Whether the community caretaking exception extends to the home.

• The outcome: In a unanimous opinion, the court vacated the U.S. Court of Appeals for the 1st Circuit’s ruling and remanded the case for further proceedings, holding that neither the ruling nor logic of Cady v. Dombrowski justifies the removal of Caniglia’s firearms from his home by police officers under a community caretaking exception. Justice Clarence Thomas delivered the opinion of the court. Chief Justice John Roberts filed a concurring opinion, in which Justice Breyer joined. Justices Samuel Alito and Kavanaugh also filed concurring opinions.

To date, SCOTUS has issued 36 opinions this term. Seven cases were decided without argument. 

The court is scheduled to conference on May 20 and to issue orders on May 24.

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Annette Ziegler becomes chief justice of the Wisconsin Supreme Court

Annette Ziegler became chief justice of the Wisconsin Supreme Court on May 1, beginning a two-year term in that role. Ziegler succeeds Patience Roggensack, who had served as chief justice since April 2015.

Ziegler was first elected to the court in 2007. She previously served as a Washington County Circuit Court judge, becoming the first female judge in that county.

Justices on the Wisconsin Supreme Court are officially nonpartisan. Ballotpedia’s State Court Partisanship Study identifies Ziegler as a mild Republican.

Until 2015, the justice with the longest continuous service on the Wisconsin Supreme Court served as the chief justice, unless that justice declined (in which case the role passed to the next senior justice of the court). Voters passed a state constitutional amendment in April of that year that changed the selection method to a vote by current justices. 

Chief justices in Wisconsin and 22 other states are selected by chamber vote. Fourteen (14) states select chief justices by appointment, seven by popular vote, and six by seniority.

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Ballotpedia releases federal judicial vacancy count for April 2021

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from April 1 to May 1, 2021. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been six new judicial vacancies since the March 2021 report. There are 76 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, 79 of 890 active federal judicial positions are vacant.

Nominations: There were three new nominations since the March 2021 report.

Confirmations: There have been no new confirmations since the March 2021 report.

New vacancies

There were 76 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.7.

• The nine-member U.S. Supreme Court does not have any vacancies.

• Seven (3.9%) of the 179 U.S. Appeals Court positions are vacant.

• 67 (10%) of the 673 U.S. District Court positions are vacant.*

• Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.

*District court count does not include the territorial courts.

Six judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, 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.

• Judge Catherine Blake assumed senior status on the U.S. District Court for the District of Maryland.

• Judge Emmet Sullivan assumed senior status on the U.S. District Court for the District of Columbia.

• Judge Amy Totenberg assumed senior status on the U.S. District Court for the Northern District of Georgia.

• Judge Timothy Stanceu assumed senior status on the U.S. Court of International Trade.

• Judge Colleen McMahon assumed senior status on the U.S. District Court for the Southern District of New York.

• Judge George Daniels assumed senior status on the U.S. District Court for the Southern District of New York.

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 Joe Biden (D) to the date indicated on the chart.

File:US Court of Appeals vacancies chart 050121.png

The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Joe Biden (D) and as of May 1, 2021.

File:UUbHy-court-of-appeals-vacancies-biden-inauguration-.png
File:T7YhD-court-of-appeals-vacancies-may-1-2021-.png

New nominations

President Joe Biden (D) has announced three new nominations since the March 2021 report.

New confirmations

As of May 1, 2021, there have been no federal judicial confirmations during the Biden administration.

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U.S. Supreme Court holds rare May sitting on May 4

The Supreme Court of the United States (SCOTUS) held its May argument sitting on May 4, hearing one case in a one-hour session. In keeping with each sitting of this term, the court heard arguments remotely and provided live audio to the public.

Terry v. United States concerns sentencing reductions for crack cocaine offenses. In 2008, Tarahrick Terry was convicted of and pled guilty to possessing cocaine base, also referred to as crack cocaine, with the intent to distribute. In 2010, Congress passed the Fair Sentencing Act, modifying the weight limits for drug offenses. In 2018, Congress enacted the First Step Act, which defined covered offenses, including crack cocaine offenses, and set out rules for making relevant sentencing reductions. Terry petitioned the U.S. district court to reduce his sentence. The district court ruled that his offenses were not covered and were not eligible for reduction. On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s judgment. Terry petitioned the Supreme Court to review the lower court’s findings.

The case was originally scheduled for argument on April 20, 2021, but the session was postponed due to a change in legal counsel.

During the 2019-2020 term, the Supreme Court heard 10 hours of oral argument in 13 cases during its May argument session. Those cases had been postponed from the March and April sittings earlier in the term due to public health recommendations in response to COVID-19. According to SCOTUSblog, the last time the Supreme Court held a full May sitting was during the 1968 October Term.

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President Biden nominates three additional individuals to Article III judgeships

President Joe Biden (D) nominated three individuals to Article III judgeships on April 29. With the addition of these three, Biden has nominated a total of 13 individuals to Article III judgeships since the start of his term. At the time of this writing, none of Biden’s Article III nominees have been confirmed by the U.S. Senate.

David Estudillo is a nominee to the United States District Court for the Western District of Washington. Estudillo is currently the presiding judge on the Grant County Superior Court in Washington state. He was appointed to the court in 2015 by Washington Gov. Jay Inslee (D) and subsequently won election to the seat in 2016 and 2020. Prior to becoming a judge, he was an attorney in private practice. Estudillo earned his bachelor’s degree from the University of Washington in 1996 and his J.D. from the University of Washington School of Law in 1999.

Tana Lin is also a nominee to the United States District Court for the Western District of Washington. Lin is currently of counsel at the law firm of Keller Rohrback LLP, where she has practiced law in various capacities since 2004. She earned her bachelor’s degree, with distinction, from Cornell University in 1988 and her J.D. from the New York University School of Law in 1991.

Christine O’Hearn is a nominee to the United States District Court for the District of New Jersey. O’Hearn is currently a partner with the law firm of Brown & Connery LLP, which she joined in 1993. She earned her bachelor’s degree from the University of Delaware in 1990 and her J.D. from the James E. Beasley School of Law at Temple University in 1993.

Biden’s other 10 Article III nominees include:

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit

• Tiffany Cunningham, to the United States Court of Appeals for the Federal Circuit

• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit

• Regina Rodriguez, to the United States District Court for the District of Colorado

• Florence Pan, to the United States District Court for the District of Columbia

• Deborah Boardman, to the United States District Court for the District of Maryland

• Lydia Kay Griggsby, to the United States District Court for the District of Maryland

• Julien Xavier Neals, to the United States District Court for the District of New Jersey

• Zahid Quraishi, to the United States District Court for the District of New Jersey

• Margaret Strickland, to the United States District Court for the District of New Mexico

As of April 1, there were 69 Article III vacancies in the federal judiciary of 870 total Article III judgeships. These judges serve on courts authorized by Article III of the Constitution, which created and enumerated the powers of the judiciary. They are appointed for life terms. A vacancy occurs when a judge resigns, retires, takes senior status, or passes away.

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SCOTUS concludes April sitting

The Supreme Court of the United States (SCOTUS) concluded its April sitting for its 2020-2021 term on April 28. This sitting ran from April 19 through April 28, during which time the court heard 12 hours of oral argument. The cases argued before SCOTUS during its April sitting included:

• April 19: Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) and Sanchez v. Mayorkas

• April 20: Greer v. United States and United States v. Gary

• April 21: City of San Antonio, Texas v. Hotels.com, L.P. and Minerva Surgical Inc. v. Hologic Inc.

• April 26: Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra) and Guam v. United States

• April 27: HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association and United States v. Palomar-Santiago

• April 28: Mahanoy Area School District v. B.L. and PennEast Pipeline Co. v. New Jersey

The court is currently slated to hear one hour of oral argument during its May sitting scheduled for May 4. The case was originally scheduled to be heard in April. SCOTUS began hearing cases for the 2020-2021 term on Oct. 5. Its yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

As of April 22, the court had agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Five cases were removed from the argument calendar. The court had also issued opinions in 30 cases this term. Six cases were decided without argument.

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Unanimous U.S. Supreme Court: People may raise Appointments Clause challenges in federal court they did not mention during agency proceedings

On April 22, 2021, the U.S. Supreme Court issued a unanimous opinion in Carr v. Saul, ruling that people who were denied Social Security disability benefits by the Social Security Administration (SSA) do not lose the chance to challenge the appointment of SSA administrative law judges (ALJs) in court even if they do not first present Appointments Clause challenges during agency proceedings. 

The court held unanimously that issue exhaustion requirements, which say that people must bring up all legal objections in front of an agency before they can use those objections in federal court, do not apply to these Appointments Clause challenges.

Justice Sonia Sotomayor delivered the opinion of the court, which gave the following three reasons people should be allowed to make Appointments Clause challenges even if they did not raise the issue during SSA proceedings:

*The SSA process at issue was not adversarial enough to require issue exhaustion in the absence of an explicit statutory or regulatory requirement

*Agency adjudicators usually lack the technical expertise to address structural constitutional challenges

*Court precedent says exhaustion requirements do not apply to challenges agency officials lack the power to resolve

Justice Clarence Thomas wrote a concurring opinion, joined by Justices Neil Gorsuch and Amy Coney Barrett, agreeing with the outcome of the case but saying he would have ended his analysis with the first point, that nonadversarial agency processes do not require issue exhaustion.

Justice Stephen Breyer wrote a concurring opinion agreeing with the outcome but arguing that the nonadversarial nature of an agency proceeding “is generally irrelevant to whether the ordinary rule requiring issue exhaustion ought to apply.”

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

To learn more about the case or agency adjudication, see here:

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Link to the opinion:

https://www.supremecourt.gov/opinions/20pdf/19-1442_971e.pdf