Supreme Court Update: Orders

March 8, 2018 Supreme Court Update

Greetings, Court Fans!

It's been ages since we last invaded your inboxes, but this time it's not because of a lack of activity at the Court. On the contrary, The Nine have handed down five new opinions since our last missive (on top of the four we previewed there), but we've been unable to tell you about them due to some mysterious network/server errors that are beyond our capacity to describe, except that they presumably were caused by Russian meddling. (If you receive any Updates from us in cryptic syntax describing rulings that upset the constitutional order, please forward them to Robert Mueller.) Our IT folks have finally resolved the problem, but meanwhile the entire February sitting has passed by and we've got a lot of catching up to do. Rather than inundate you with nine case summaries in one email, we'll give you the high-level overview here and roll out the more detailed summaries over the next few days, while we wait for the Court to return for its next sitting on March 19th.

As we reported in our last Update, the Court kicked off the February sitting with decisions in four cases:

  • Digital Realty Trust v. Somers (No. 16-1276), holding that the Dodd-Frank Act's anti-retaliation provision does not protect whistleblowers who report violations of the securities laws to their employers, but not to the SEC;
  • Rubin v. Islamic Republic of Iran (No. 16-534), holding that a recent amendment to the Foreign Sovereign Immunities Act did not create a new exception to immunity from attachment for the assets of state sponsors of terrorism facing judgments in U.S. courts;
  • Murphy v. Smith (No. 16-1067), holding that the statute governing attorneys' fees in prisoner civil-rights suits requires courts to apply as much as much of a plaintiff's judgment as necessary, up to 25%, to satisfy an award of attorney's fees, before a defendant is required to pay extra; and
  • Class v. United States (No. 16-424), holding that a criminal defendant does not waive his right to challenge the constitutionality of his statute of conviction when he enters into an unconditional guilty plea.

Last week, the Court handed down three more opinions, including a couple of biggies:

  • Patchak v. Zinke (No. 16-498), holding that that a congressional enactment specifically aimed at ending an ongoing lawsuit against the Secretary of the Interior was not an unconstitutional infringement on the judicial power;
  • Jennings v. Rodriguez (No. 15-1204), holding that detained aliens do not have a statutory right to periodic bond hearings during the course of their detention; and
  • Merit Management Group LP v. FTI Consulting (No. 16-784), holding that a "safe harbor" provision of the Bankruptcy Code that prohibits a bankruptcy trustee from avoiding a fraudulent transfer in the form of a settlement payment made in connection with a securities contract is limited to the specific transfer the trustee seeks to avoid.

Finally, earlier this week the Court added two more decisions:

While it was chipping away at the OT17 docket, the Court also continued adding to the docket for OT18, granting cert in six new cases:

  • Madison v. Alabama (No. 17-505) asks whether the Eighth Amendment prohibits a state from executing a prisoner whose mental disability leaves him with no memory of his commission of the capital offense. (If this sounds familiar, it's because the Court addressed a similar argument raised by Mr. Madison back in November. That appeal arose in the habeas context, and the Court rejected Madison's argument that it was clearly established that the Eighth Amendment prohibits the execution of an inmate in his position. Now, for complicated reasons involving new evidence and Alabama's mental-competency statute, the question is back before the Court "outside the AEDPA context.")
  • New Prime Inc. v. Oliveira (No. 17-340) asks whether a dispute over the applicability of Section 1 of the Federal Arbitration Act, which exempts employment contracts of seamen, railroad workers, and other workers engaged in interstate commerce from the FAA's scope, is itself an arbitrability issue that must be resolved through arbitration and whether Section 1 applies to independent contractor agreements.
  • Mount Lemmon Fire District v. Guido (No. 17-587) asks whether the Age Discrimination in Employment Act's 20-employee minimum applies to political subdivisions of a state, or if instead all political subdivisions are subject to the ADEA, regardless of size.
  • Knick v. Township of Scott, Pa. (No. 17-657) asks (1) whether the Supreme Court should reconsider the portion of Williamson Cnty. Regional Planning Comm'n v. Hamilton Bank (1985) that requires property owners to exhaust state court remedies before making federal takings claims and (2) whether takings claims asserting that a law causes an unconstitutional taking on its face are subject to Williamson's exhaustion requirement; and finally
  • Gundy v. United States (No. 17-6086) asks whether the federal Sex Offender Notification and Registration Act's delegation of authority to the attorney general to issue regulations making it retroactive violates the nondelegation doctrine. (You read that right…)

The bigger news on the cert front, though, was the Court's denial of certiorari before judgment in Dep't of Homeland Security v. Regents of California (No. 17-1003). That means we won't be getting a DACA decision this term, though the Court's order did stipulate that "[i]t is assumed that the Court of Appeals will proceed expeditiously to decide this case." Interestingly, a different DACA petition has been pending before the Court for almost a year now. In Brewer v. Arizona Dream Act Coalition (No. 16-1180), a preemption case, Arizona's governor argues that DACA is not a valid "federal law" and therefore cannot preempt state law. The Court called for the views of the Solicitor General at the end of last term, but the SG waited until Valentine's Day to weigh in. In his brief, the SG urged the Court to hold the Arizona case pending a decision in Regents. Now that Regents has been sent back to the Ninth Circuit, it will be interesting to see how the Court handles Brewer decision, which has been distributed for next Friday's conference.

Alright. With that, you at least have a sense of what you've missed over the last two+ weeks. We'll be back with our first catch-up installment—summarizing the first three opinions of the February sitting—this afternoon.