The Supreme Court has agreed to hear the following cases for the upcoming term. There are several high profile cases involving DACA, copyright for annotated statutes, the insanity defense, sexual orientation discrimination, and “bridgegate”, among other topics.

Cases with argument dates in October:

Peter v. NantKwest, Inc. (No. 18-801) Argument date 10/7: The question presented by the case is whether the phrase “all the expenses of the proceedings” from 35 U.S.C. § 145 includes personnel expenses incurred by the U.S. Patent and Trademark Office (USPTO) when its employees defend the agency in Section 145 litigation. NantKwest, Inc. is the successor-in-interest as an assignee of its predecessor-in-interest’s application for a patent for a method of treating cancer cells, which was rejected for being obvious and thus not patentable. The examination process was alleged to have been solely based on the testimony of the putative inventor. During the Section 145 litigation, NantKwest relied on a new expert witness and the USPTO retained its own expert to respond. The district court granted summary judgement for the USPTO on patentability and the court of appeals affirmed in an unpublished opinion.

The USPTO then filed a motion in the Eastern District of Virginia for reimbursement in the amount of $111,696.39, which included $78,592.50 in personnel costs for the two attorneys and paralegal handling the action as well as $33,103.89 for the expert witness. The personnel fees were calculated as a pro rata share of their salaries for almost 1000 hours of work. The district court granted the request for expert witness fees, but denied the personnel expense request finding that the phrase “all the expenses of the proceedings” was not specific and explicit to include such expenses due to the presumption under the “American Rule” that litigants pay their own attorneys’ fees (quoting Baker Botts L.L.P. v. Asarco LLC, 135 S. Ct. 2158, 2164 (2015)). The Court of Appeals for the Federal Circuit reversed and did not decide that the American Rule is relevant to interpreting the language, but looked at the ordinary usage in 1839 when Congress first required the payment of expenses in such suits, the history and purpose of the statute, and Supreme Court precedent, and concluded that the statute authorized the award of fees because expenses include attorneys’ fees. The Court of Appeals, sitting en banc, then vacated the opinion of the panel and reheard the case. The full court affirmed the denial of the attorneys’ fees by 7-4, holding that the American Rule applies, despite the fact that the Fourth Circuit had analyzed a similar provision and allowed the collection of such attorneys’ fees (898 F.3d 1177).

Ramos v. Louisiana (No. 18-5924) Argument date 10/7: The question presented by the case is whether the XIV Amendment fully incorporates the VI Amendment guarantee to a unanimous verdict. Petitioner was charged with second-degree murder and chose to have a jury trial. After deliberations, only 10 of the jury members found that the government had proven its case. The other two jurors found that the prosecutor had not proved the case beyond a reasonable doubt. However, Louisiana has a non-unanimous verdict law and so a guilty verdict was entered against petitioner and he was sentenced to life in prison without the possibility of parole. The petitioner and court-appointed counsel lodged an appeal with the Fourth Circuit Court of Appeal in Louisiana claiming insufficient evidence to support the conviction. The petitioner also raised a pro se argument that the non-unanimous verdict violated his constitutional rights. The court rejected his argument and ruled that non-unanimous verdicts are constitutional. The petitioner appealed to the Louisiana Supreme Court, which denied review without providing any reasons for the denial.

Kahler v. Kansas (No. 18-6135) Argument date 10/7: The question presented is whether the VIII and XIV Amendments permit states to abolish the insanity defense. In Kansas, mental illness that prevents a criminal defendant from knowing his/her actions were wrong is not a defense to criminal liability.

The petitioner was convicted of capital murder and sentenced to death for killing four members of his family. At the time of the crime, the petitioner was suffering from a deep depression and experiencing dissociation from reality. He was under the care of psychologists and psychiatrists and being prescribed medication, but he was refusing to take most of his medicines as directed. A lifealert recording of the shooting captured petitioner saying “Oh s**t! I am going to kill her . . . God damn it!” After his arrest he was evaluated by two forensic psychiatrists who both agreed he was exhibiting major depressive disorder, obsessive-compulsive, borderline, paranoid, and narcissistic personality tendencies. The defense expert felt that he may have suffered from stress induced short-term dissociation, which would explain his inability to recall his actions that day. He felt that petitioner did not make a rational choice to kill, but felt compelled to act as he did and for a short time lost control. However, the jury could not hear this because of the lack of insanity defense available in Kansas. Furthermore, the court denied petitioner’s request to argue diminished capacity. The jury was only allowed to consider mental capacity during the penalty phase for mitigation purposes after conviction.

The Kansas Supreme Court affirmed petitioner’s conviction and sentence and stated that the due process arguments were previously considered and rejected in Kansas v. Bethel, 66 P.3d 840 (Kan. 2003). One Justice dissented on the grounds that Bethel was not a death penalty case so the court should independently analyze the argument (410 P.3d 105).

Bostock v. Clayton County, GA (No. 17-1618) and Altitude Express, Inc. v. Zarda (No. 17-1623) Argument date 10/8: The question presented by these consolidated cases is whether discrimination of an employee based on sexual orientation is prohibited employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964.

Petitioner Bostock worked for the Clayton County Juvenile Court System as a child welfare services coordinator. He alleges that he was fired by the county because he is gay after the county found out that he participated in a recreational softball league for gay individuals. He claims that the county accused him of mismanaging public funds as a pretext to fire him for being gay. Petitioner initially filed a suit pro se alleging a violation of his civil rights under Title VII, and after securing counsel, filed two amended complaints. The Magistrate Judge filed a Report and Recommendation stating that the second amended complaint should be dismissed with prejudice, agreeing with the county that Title VII does not include claims of discrimination based on sexual orientation and dismissing the added claim for sex discrimination based on gender stereotype for sufficient factual allegations to support the claim. Petitioner filed an objection to the Report and Recommendation. The district court stayed decision in the case pending a decision by the Eleventh Circuit in Evans v. Ga. Reg’l. Hosp., 850 F.3d 1248 (11th Cir. 2017) because that case also presented a question over whether an action for discrimination based on sexual orientation under Title VII can be brought. A divided panel of the Eleventh Circuit found that an action for discrimination based on sexual orientation cannot be brought under Title VII, claiming that it needed to follow the precedent set by Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir.
1979).  The district court then followed Evans and ruled against petitioner. The Eleventh Circuit upheld the district court’s dismissal and affirmed Evans (723 F. App’x. 964).

In Zarda, Rosanna Orellana and her boyfriend David Kengle went skydiving with Altitude Express. Both signed up for tandem skydiving where individuals are strapped hip-to-hip and shoulder-to-shoulder with the instructor, who is responsible for pulling the parachute and providing guidance. Zarda was the instructor for Orellana. During the dive, Zarda reportedly told Orellana that he was homosexual and had an ex-husband. After a successful dive, Orellana reportedly told her boyfriend that Zarda inappropriately touched her and disclosed his sexual orientation to excuse such conduct. Zarda alleged that he often told women skydivers of his sexual orientation to allay any awkwardness about their position during the dive. Kengle called Altitude Express and its owner to complain about Zarda. Zarda had a history of inappropriate complaints and was fired shortly thereafter. One month after he was fired, Zarda filed a claim with the EEOC alleging discrimination on the basis of his sexual orientation. He claimed that all the men made light of the position instructors are put in during tandem skydiving, but only he was fired because he was truthful about his sexual orientation.

Zarda brought a claim in the Eastern District of New York alleging sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of the New York Human Rights Law. Petitioners moved for summary judgment. The district court determined that there was a genuine issue of material fact regarding the reason for his termination and concluded that Zarda was entitled to a limited trial on the state claim, but dismissed the federal Title VII claim for failing to make a prima facie showing of sex stereotyping. While the case was still pending, the EEOC issued a decision in Baldwin v. Foxx stating that allegation of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. The EEOC identified three ways a claimant can illustrate the inescapable link between allegations of sexual orientation discrimination and sex discrimination: 1) sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of their sex; 2) sexual orientation discrimination is associational discrimination because the employee is claiming the employer took his/her sex into account by treating him/her differently for associating with a person of the same sex; and 3) sexual orientation discrimination necessarily involves discrimination based on gender stereotypes. Based on the EEOC decision, Zarda sought to have his Title VII claim reinstated, but the court denied the motion. After a trial, Zarda’s remaining claims were determined unfounded and dismissed with prejudice. A unanimous panel of the Second Circuit upheld the dismissal of the Title VII claims.

Zarda petitioned for a rehearing en banc, which was granted on the issue of whether sexual orientation claims are allowed under Title VII “because of sex”. The Second Circuit sitting en banc reversed the decision of the district court on the Title VII claim and remanded for further proceedings, holding that sexual orientation discrimination is motivated at least partly by sex and thus a subset of sexual discrimination under Title VII (888 F.3d 100).

R.G. & G.R. Harris Funeral Homes v. EEOC (No. 18-107) Argument date 10/8: Certiorari was granted and limited to the question of whether Title VII prohibits discrimination against transgender people based on their status as transgender or sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Petitioner is a family owned funeral business in operation since 1910. The petitioner has sex specific dress codes for employees who interact with clients. Male employees are required to wear suits and females are required to wear dresses or skirts. Funeral directors are to wear suits, with pantsuits required for men and skirt suits required for women. Stephens was hired in 2007 as a funeral director. In 2013, Stephens wrote a letter to the owner of the funeral home identifying as female rather than male and told him that he planned to have sex reassignment surgery and present as a female and wear female clothes at work. A few weeks later, the owner told Stephens that it would “not work out” and offered Stephens a severance package.  The owner fired Stephens because Stephens’ plan would violate the dress code and he did not want female employees to be forced to share a restroom with Stephens. The owner claims he would not have fired Stephens if Stephens wore male clothes while at work. The owner does hold deep religious beliefs that influenced his decisions.

Stephens filed a charge of discrimination with the EEOC and alleged unlawful discharge based on sex and gender identity. The EEOC investigated and then filed suit against petitioner for violating Title VII by firing Stephens because Stephens is transgender and sought to transition sexes and because Stephens failed to conform to petitioner’s gender based preferences, expectations, or stereotypes. Petitioner moved to dismiss. The district court declined to dismiss the claim, finding that although there is no Sixth Circuit or Supreme Court precedent supporting the position that transgender status is a protected class under Title VII, there is Sixth Circuit precedent supporting the alternate claim of sex stereotyping under Price Waterhouse. After discovery and cross-motions for summary judgment, the court ruled for petitioner holding that the Religious Freedom Restoration Act (RFRA) prohibited the EEOC from applying Title VII under the facts of this case owing to the owner’s sincerely held religious beliefs. The Sixth Circuit allowed Stephens to intervene on appeal and held that under Price Waterhouse, employers unlawfully participate in sex stereotyping when they administer sex-specific policies according to employees’ sex rather than gender identity. The Sixth Circuit then amended the word “sex” in Title VII to “gender identity” and held that discrimination based on transgender status violates Title VII. The court further stated that Title VII also protects transitioning. Finally, the court found that RFRA was not a defense and thus granted summary judgment to the EEOC on the unlawful termination claim (884 F.3d 560).

Financial Oversight Bd. v. Aurelius Investment (No. 18-1334) Argument date 10/15
Aurelius Investment v. Puerto Rico (No. 18-1475)
Official Committee of Debtors v. Aurelius Investment (No. 18-1496)
United States v. Aurelius Investment (No. 18-1514)
Utier v. Financial Oversight Bd. (No. 18-1521): The question presented in these combined cases is whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board of Puerto Rico.

In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in order to address the territory’s financial crisis. Congress created a new entity, the Financial Oversight and Management Board, in order to oversee restructuring of the island’s debt and to implement needed fiscal reforms. The Board was organized as an entity within the territorial government. Congress used its powers under Article IV, section 3 of the Constitution. The Board was to be comprised of seven members and the Governor or a designee of the Governor would serve as an eight ex officio member. The President was given the power to appoint the seven voting members, one of whom could be appointed at his/her sole discretion, and the other six to be appointed off of lists compiled by Congressional leadership. If the President chooses to select someone not on the list, that person would need to be confirmed by the Senate under advice and consent procedures. The Board is responsible for prosecuting Title III restructuring cases on behalf of the Commonwealth and oversees certification of annual fiscal plans and budgets. On August 31, 2016, the President announced the appointment of seven board members, six of whom were chosen from lists prepared by Congress and one selected by himself. The Board went to work immediately, but Puerto Rico’s debt only increased when Hurricanes Maria and Irma hit in September 2017.

Respondent Aurelius Capital Management is a hedge fund that invested heavily in distressed Puerto Rican bonds. On August 7, 2017, Aurelius moved to dismiss a Title III case initiated against it by the Board, arguing that the Board was inappropriately appointed in a manner that was not consistent with the Appointments Clause. The Board responded by saying that the Supreme Court has recognized that territories are local political subdivisions of the U.S. and that Congress can legislate for territorial government just as states legislate for municipalities; therefore, the appointments do not need to follow normal rules of advice and consent. Petitioner UTIER is a labor union created as a close corporation under the laws of Puerto Rico. The Board imposed a fiscal plan for UTIER’s employer, Puerto Rico Electric Power Authority (PREPA). UTIER challenged the Board appointments through an adversary complaint.

The district court denied the motion to dismiss and held that the Board members were territorial rather than federal officers and did not need to be appointed according to the Appointments Clause. The court of appeals reversed and framed the question as whether Congress’ Article IV powers allow it to ignore structural limitations for choosing federal officers. Therefore, the court seemingly assumed that officials of territorial governments are federal officers within the territories if Congress created the office. The court further held that the Territories Clause does not supplant the Appointments Clause. The court held that the Board members are principal officers of the United States who require Senate confirmation. The court invalidated the provisions of PROMESA that allowed the appointment of Board members without Senate confirmation and severed the remainder of the statute. The court did not dismiss all the Title III petitions and upheld the actions the Board had taken in good faith under color of official title (915 F.3d 838).

Rotkiske v. Klemm (No. 18-328) Argument date 10/16: The question presented is whether the discovery rule applies to toll the one year statute of limitations under the Fair Debt Collection Practices Act. This question is one that the circuits do not agree on. The Fourth and Ninth Circuits have held in the affirmative, but the Third Circuit disagreed.

Rotkiske accrued credit card debt from 2003 -2005 and the debt was referred by his bank to the Respondent. Respondent sued for payment in March 2008 and attempted service at an address where Rotkiske no longer lived. The suit was withdrawn when Respondent could not locate Rotkiske. Respondent refiled the suit and attempted service at the same address in January 2009 and someone incorrectly accepted service. Rotkiske discovered the judgment in 2014 when applying for a mortgage. Rotkiske filed a claim in district court alleging that the collection efforts violated the Fair Debt Collections Practices Act (FDCPA) by obtaining a default judgment against an individual which was knowingly served to an incorrect address. Respondents moved to dismiss alleging that the complaint was barred by the FDCPA’s one year statute of limitations. The district court held that the statute of limitations began to run on the date of the defendant’s last opportunity to comply with the statute not on petitioner’s discovery of the violation. Petitioner appealed and a panel heard oral argument. Then, the Third Circuit, sua sponte, ordered rehearing en banc and held that the FDCPA “says what it means and means what it says: that the statute of limitations runs from ‘the date on which the violation occurs'” (890 F.3d 422).

Mathena, Warden v. Malvo (No. 18-217) Argument date 10/16: The question presented is whether a new constitutional rule announced in an earlier decision applies retroactively on collateral review. The Fourth Circuit splits from the decisions of other courts and the highest court in Virginia.

Respondent Malvo was one of the two snipers who terrorized the D.C. metro area in September and October 2002. Ten people died and several others were injured during this time period. Malvo admitted that he was the triggerman in 10 of the shootings. Malvo was indicted in two different Virginia jurisdictions. He was tried for one murder in Chesapeake, VA after the trial was moved from Fairfax, VA. There he was convicted by a jury, which recommended life without parole. After that conviction he plead guilty to another murder and attempted murder for a sentence of life without parole. On June 25, 2013, Malvo filed 2 petitions for habeas corpus alleging that his life without parole sentence violated VIII Amendment in light of the decision of the Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012). The district court dismissed the actions as time barred, concluding the Miller did not apply retroactively. Malvo appealed and the Fourth Circuit remanded the case in light of the decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). On remand, Petitioner claimed that Montgomery makes no difference because Virginia does not impose a mandatory life without parole sentence like that prohibited in Miller and Miller does not extend to discretionary sentencing. The district court concluded that after Montgomery it does not need to determine if sentencing is mandatory or discretionary since Miller applies to all cases where a juvenile receives a life without parole sentence. Therefore, the court vacated his sentences and ordered him re-sentenced. The Fourth Circuit affirmed (893 F.3d 265). Re-sentencing has been stayed pending a decision in this case.

Kansas v. Garcia (No. 17-834) Argument date 10/16: The questions presented in this case are whether the Immigration Reform and Control Act (IRCA) expressly preempts states from using any information entered or appended onto a Form I-9, including common information, in a prosecution of any person when that same information appears on non-IRCA documents and forms. Additionally, the Court will look at whether IRCA impliedly preempts Kansas’ prosecution of respondents.

This case involves three separate cases. In State v. Garcia, Garcia was stopped for speeding in Overland Park, Kansas. Garcia was asked why he was speeding and he replied that he was late for work at the Bonefish Grill. A records check showed that he was under investigation and later that day, a police detective contacted his employer to get employment records, including the I-9.  It was discovered that he used the Social Security Number (SSN) of a woman in Texas in the I-9 and other state and federal tax forms. Garcia was charged with identity theft under Kans. Stat. Ann. §21-6107. Garcia moved to suppress the I-9 and all other forms with the same information claiming IRCA preempted use by the state of the I-9. The state agreed not to use the I-9 but claimed it could use the other forms with the same information and the trial court agreed. Garcia was found guilty by a jury.

In State v. Morales, a special agent with the Social Security Administration (SSA) received information from the Kansas Department of Labor about an irregularity with a SSN used by an employee at a Jose Pepper’s restaurant. After investigating, the agent determined that Morales was using the SSN issued to someone else. During the investigation the agent reviewed Morales’ employment file, which included an I-9, employment application, and state and federal tax forms. Morales admitted that he purchased the card so he could work. Morales was charged with one count of identity theft in violation of Kan. Stat. Ann. § 21-4018 and two counts of making a false writing in violation of Kan. Stat. Ann. § 21-3711. He was convicted on all three counts after a bench trial.

In State v. Ochoa-Lara, investigators were trying to contact Christian Ochoa-Lara and discovered that the apartment in question was leased to Respondent Ochoa-Lara. Officers obtained a copy of the lease and saw that Respondent used the SSN of another person to lease the apartment. The officers contacted the person with the SSN, and she claimed she did not authorize its use and did not know about its use by Respondent. Officers determined that Respondent worked at a steakhouse and went to get the W-4, which also used the SSN.  Ochoa-Lara was convicted after a bench trial of two counts of identity fraud in violation of Kan. Stat. Ann. § 21-6107.

All three defendants appealed to the Kansas Court of Appeals, arguing that IRCA preempts the use of any information used on an I-9 for any purpose not specified by IRCA, even if the information appears on documents other than the I-9. The court concluded that IRCA did not preempt the prosecutions by the state. The Kansas Supreme Court granted review and reversed the cases as follows: in State v. Garcia, the majority concluded that IRCA preempts application of state identity theft and fraud laws whenever any of the information necessary for prosecution is contained in or appended to an I-9. The court also concluded that there need be no presumption against preemption. Using the rationale in Garcia, the court reversed the other convictions as well. One justice concurred but argued field preemption applies rather than express preemption. Two justices dissented and argued that there was no preemption (401 P.3d 588).

Cases with Argument Dates in November:

Kansas v. Glover (No. 18-556) Argument date 11/4: The question presented by this case is whether it is reasonable for an officer conducting a traffic stop to suspect that the registered owner of the vehicle is the one driving the vehicle absent any contrary information.

While working on routine patrol duty, Sheriff Deputy Mark Mehrer ran a registration truck on a pickup truck with Kansas plates. The check indicated that the truck was registered to Charles Glover, Jr. and that his license had been revoked. The Deputy then stopped the truck to investigate if the driver had a valid license since he assumed the registered owner was also the driver. Nothing other than the registration check led the officer to make the stop. Glover was in fact the driver and was charged as a habitual violator for driving without a license. Glover moved to suppress all evidence from the stop as it violated his IV Amendment rights.

The Kansas District Court concluded that it was not reasonable for an officer to infer that the registered owner was the driver of the vehicle and granted the motion to suppress. The Kansas Court of Appeals reversed the decision and held that an officer has a reasonable suspicion to initiate a stop to investigate if the driver has a valid license when the officer knows the registered owner does not have a valid license and there is no other evidence or circumstance that could be used to infer that the registered owner is not the driver. The court determined that requiring the officer to get more evidence would change the standard to probable cause rather than reasonable suspicion. The Kansas Supreme Court reversed and held that an officer lacks reasonable suspicion to stop the vehicle in such a case unless the officer has more evidence the owner is the driver (422 P.3d 64).

Barton v. Barr, Att’y Gen. (No. 18-725) Argument date 11/4: The issue presented is whether a lawfully admitted permanent resident who is not seeking admission to the U.S. be rendered inadmissible for purposes of the stop-time rule under 8 U.S.C. § 1229b(d)(1).

Barton is a native and citizen of Jamaica, but lawfully admitted as a permanent resident of the U.S. back in June 1992, subsequent to his admission to the country on a visitor visa in May 1989. In January 1996, he was arrested and charged with aggravated assault, criminal damage to property, and first-degree possession of a firearm during the commission of a felony. He was again arrested in 2007 and 2008 for possession of drugs. After the 2008 arrest, the government served Barton a notice to appear and initiated removal proceedings. The government alleged that Barton could be deported under 8 U.S.C. § 1227(a)(2). Barton conceded removability and the immigration judge found him removable. Barton then applied for cancellation of removal under 8 U.S.C. § 1229b(a). The government objected on the grounds that Barton was ineligible for cancellation of removal, because the stop-time rule was activated by his 1996 arrest and he had not amassed the requisite seven years presence by that point. The government alleged that the 1996 crime qualified as a crime of moral turpitude, which rendered him inadmissible. The immigration judge agreed with the government, but did note that she would have granted the cancellation of removal if he had been eligible for that relief, since his positive factors outweigh the negative factors and he had not been in trouble for over ten years.

Barton appealed the immigration judge decision to the Board of Immigration Appeals. The BIA dismissed the appeal, agreeing with the immigration judge that the stop-time rule precluded Barton from seeking cancellation of removal. The Eleventh Circuit denied Barton’s request to review the decision of the BIA. The Eleventh Circuit ruled that the 1996 offense rendered Barton inadmissible for purposes of the stop-time rule, reasoning that an alien could be rendered inadmissible regardless of whether the alien is actually seeking admission. The Eleventh Circuit entertained Barton’s argument that the stop-time rule requires both an offense be referred to in 8 U.S.C. § 1182(a)(2) and that the offense render the alien inadmissible under that rule, which results in surplusage of the second point, but rejected the argument. The court reasoned that there was no surplusage because one needs to be convicted of the crime in order to be rendered inadmissible (904 F.3d 1294).

Allen v. Cooper, Gov. of NC (No. 18-877) Argument date 11/5: The issue presented is whether Congress abrogated sovereign immunity when passing the Copyright Remedy Clarification Act (CRCA) and providing remedies for authors whose federal copyrights are infringed by States.

In November 1996, Intersal, Inc., a private research and salvage firm retained Petitioner Allen and his company, Nautilus Productions, LLC, to document the salvage operations of the newly discovered Queen Anne’s Revenge, which was Blackbeard’s flagship sunk back in 1718. Allen and his company filmed the salvage operations over an almost twenty-year period. Allen registered his works related to documenting the salvage operations with the U.S. Copyright Office and the works are licensed to Nautilus Productions. Petitioner alleged that the State of North Carolina and its Department of Natural and Cultural Resources (DNCR) infringed the copyright by uploading and posting the works online. In October 2013, North Carolina, the DNCR, and others entered into a settlement agreement with Nautilus, in which they paid $15,000 for prior infringements and agreed not to infringe in the works in the future. North Carolina initially took down the works, but then uploaded them again and passed “Blackbeard’s Law”, which converted the works into public record materials that could freely be used. Nautilus issued a takedown notice to the State, which was ignored.

Nautilus sued the State in December 2015, seeking to hold the State liable for infringement under the Copyright Act. The State moved to dismiss the claims, arguing that the XI Amendment provision of state sovereign immunity shields them from suit in federal court. The State relied on the Supreme Court decision in Florida Prepaid Post-Secondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999), where the Court ruled that Congress exceeded its powers enacting the Patent Remedy Act and abrogating state sovereign immunity for patent infringement. The district court denied the motion to dismiss, ruling that the CRCA validly abrogated state sovereign immunity from suit. In the holding, the judge noted that Congress clearly expressed their intent to abrogate immunity, and Congress acted appropriately in doing so under section 5 of the XIV Amendment. A unanimous panel of the Fourth Circuit reversed the decision and held that the CRCA did not validly abrogate state sovereign immunity (895 F.3d 337).

CITGO Asphalt Refining v. Frescati Shipping Co. (No. 18-565) Argument date 11/5: The question presented is whether a safe birth clause in a voyage charter is a guarantee of a ship’s safety under maritime law as determined by the Third and Second Circuits; or if it is merely a duty of due diligence as held by the Fifth Circuit.

The case involves claims for damages against CARCO resulting from an oil spill caused by the tanker Athos I striking a submerged and uncharted anchor in the Delaware River. In 2001, Frescati, the owner of the ship, chartered it to Star Tankers, Inc. under a time charter. Three years later, Star chartered the tanker to CARCO for a single voyage under a voyage charter. Any disputes in the voyage charter were to be litigated under U.S. law. The voyage charter made no mention of Frescati. The accident happened on November 26, 2004 in a federally maintained area. 263,000 gallons of crude oil spilled as a result of the accident and this was cleaned up pursuant to the Oil Pollution Act of 1990 (OPA). OPA defines the responsible parties who must pay for the cleanup in the first instance and allows responsible parties to limit liability. Frescati filed to limit its liability and reimburse it for cleanup costs incurred above the limit. The National Pollution Fund Center (NPFC) limited Frescati’s liability and reimbursed it, thus giving the U.S. Frescati’s rights against third parties.

On January 31, 2005, Frescati filed an admiralty claim in district court seeking exoneration from or limitation of liability. CARCO filed a claim for its loss of cargo. Then Frescati counterclaimed against CARCO in tort and contract for un-reimbursed cleanup costs as well as additional damages. Frescati claimed that CARCO violated the safe birth clause in its voyage charter contract. Since the U.S. was a partial subrogee to Frescati, the U.S. filed an action against CARCO to recover the payment made to Frescati. At trial, the U.S. claims were limited to contract claims. After a 41-day bench trial, CARCO was found not liable in tort or contract. The court found no evidence that CARCO or any party to the suit knew about the anchor and thus the fault lay with the owner of the anchor who abandoned it and did not notify anyone. The district court found that CARCO did not violate the safe berth clause. The Third Circuit vacated most of the district court decision and remanded the case. The court determined that the contract claim was viable. It also determined that the district court incorrectly used the Fifth Circuit determination about the safe berth clause and should use the definition of the Second Circuit that a safe berth provision guarantees safety without regard to the diligence of the charterer. The case was remanded to determine if the safe berth clause was breached. On remand, CARCO faced strict liability to Frescati under the contract CARCO had with Star. After a “successor judge” hearing that lasted 31 days, Frescati won on the contract and negligence claims. The district court used the Third Circuit ruling that Frescati was a third-party beneficiary of the CARCO-Star contract and a safe berth provision absolutely guarantees safety of the berth. The court included no consideration of CARCO’s conduct or lack of knowledge regarding the location of the anchor. Another panel of the Third Circuit affirmed the damages awards based on strict liability, but vacated the negligence findings. The Supreme Court denied the cert. petition back in February 2018 without prejudice

County of Maui, HI v. Hawaii Wildlife Fund (No. 18-260) Argument date 11/6: The question presented by the case is whether the Clean Water Act requires a permit when pollutants originate from a point source but conveyed to navigable waters by a nonpoint source.

The case involves a dispute over what law applies to four Underground Injection Control (UIC) wells at the Lahaina Wastewater Reclamation Facility. Everyone agrees that the wells are subject to both state and federal drinking water programs and that the wells comply with these programs. The disagreement is over whether the wells are also subject to permitting requirements under the National Pollutant Discharge Elimination System (NPDES) or if the well falls under the nonpoint source program or another program under the Clean Water Act. Some effluent from the wells does reach the ocean through groundwater flow. Before the litigation, the EPA never alleged that the County needed NPDES permits for the wells. EPA only raised the issue after the initial summary judgment ruling.

Respondents sued the County claiming that injection of effluent without a NPDES permit violates the Clean Water Act. The district court granted summary judgment for the Respondents in three orders. The Ninth Circuit affirmed the district court. In doing so, the court crafted a new test for NPDES permitting of point source pollution based on traceability and volume of pollutants reaching navigable waters. Using this test, the court found that the County discharged pollutants from a point source (the wells); the pollutants were fairly traceable from the point source to the navigable water such that it is the functional equivalent of a discharge into navigable water; and the pollutants reached the navigable water at more than de minimis levels. The court did not provide any limit on this new test. Additionally, the court did not adopt the district court’s conduit theory (886 F.3d 737). Note: On Friday September 20, the Maui County Council voted to settle the case. This could impact whether the case is actually argued before the Supreme Court as scheduled.

Retirement Plans Comm. of IBM v. Jander (No. 18-1165) Argument date 11/6: The issue is whether the “more harm than good” pleading standard from Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014) can be generalized by allegations that the harm of inevitable disclosure of an alleged fraud generally increases over time.

IBM has offered Employee Stock Ownership Plans (ESOPs) to its employees since 1983, including an option to invest through the Company’s 401(k) Plus Plan. The plan offers multiple investment options including the IBM stock fund. Petitioner Retirement Plans Committee of IBM is named as the fiduciary. Other named petitioners were members of the committee. In 2015, two related actions were filed in district court against IBM and some of its officers. One claim was under securities laws and the other under the Employee Retirement Income Security Act (ERISA). Both claimed that the market rate of IBM stock was artificially inflated in 2014. In the securities fraud action, the allegation was that IBM fraudulently concealed impairment of their micro-electrics unit. The ERISA action claimed the same fraud and that this fraud made investing in IBM stock an imprudent investment for the ESOP; further, the plaintiffs claimed that the company should have either made corrective disclosures or ceased investing ESOP in IBM stock. Both lawsuits were dismissed by the district court for failing to meet pleading standards and failing to state a claim respectively. The plaintiffs filed amended complaints stating that the disclosure of the fraud was inevitable and the magnitude of the loss from the necessary correction of the stock market would only increase over time. The amended complaint was also dismissed for pleasing insufficiency under Fifth Third.

On appeal, the Respondents only put forth the early corrective disclosure argument. The Second Circuit reversed the dismissal of the duty of prudence claims, finding that there was sufficient pleading because no prudent fiduciary in the plan would have concluded that earlier disclosure would have done more harm than good (910 F.3d 620). This decision creates a conflict with decisions of the Fifth and Sixth Circuits that require rigorous pleading and not generalized allegations.

Hernandez v. Mesa (No. 17-1678) Argument date: 11/12: The question presented is whether if a plaintiff makes a plausible allegation that a rogue federal law enforcement officer violated IV and V Amendment rights for which there is no other remedy, federal courts can and should recognize a claim for damages under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

The Petitioners are the parents of Sergio Adrián Hernández Güereca, a 15-year-old Mexican national killed while playing in a cement culvert separating El Paso, Texas from Ciudad Juarez, Mexico. On June 7, 2010, Sergio was playing in the culvert that used to contain waters from the Rio Grande. He and his friends would run up the culvert, touch the fence on the U.S. side of the border, and then run back down. Respondent worked for U.S. Border Patrol. Respondent detained one of the friends when he arrived on the scene. Sergio then ran back across the international border and stood on the Mexican side when Respondent fired two shots across the border, hitting and killing Sergio. Petitioners alleged that Respondent and others violated their son’s IV and V Amendment rights. The District Court for the Western District of Texas granted Respondent’s motion to dismiss. The Fifth Circuit affirmed in part and reversed in part, ruling that Hernandez lacked IV Amendment rights, but Petitioners were entitled to a Bivens remedy on the V Amendment claim. In an en banc ruling the entire Fifth Circuit affirmed the decision of the district court finding that Respondent was entitled to qualified immunity on the V Amendment claim. The Supreme Court heard an appeal and reversed the decision that Respondent was entitled to qualified immunity, because at the time of the incident, the Respondent did not know that the victim was a Mexican national without substantial voluntary connections to the U.S. at the time he fired his weapon. The Supreme Court reserved judgment on whether the shooting violated his IV Amendment rights and whether Petitioners could assert claims for damages under Bivens. These questions were returned to the court of appeals. On remand, the Fifth Circuit once again affirmed the dismissal. The opinion focused on the Bivens question and held that no cause of action should be recognized ( 885 F.3d 811).

Dept. of Homeland Security v. Regents of Univ. of CA (No. 18-587)
Donald J. Trump, President of U.S. v. NAACP (No. 18-588)
McAleenan, Sec. of Homeland Security v. Vidal (No. 18-589) Argument date 11/12: These combined cases present the issue of whether the Department of Homeland Security (DHS) decision to wind down the Deferred Action for Childhood Arrivals (DACA) program is lawful and whether that decision is judicially reviewable.

The DACA policy was announced in 2012. Deferred action is a process whereby the Secretary of DHS uses his/her discretion to refrain from seeking removal of an alien from the country for a specified period. DACA made this deferred action available to certain young people brought into the United States as children. Under DACA, after a background check, those who passed would be granted two years of deferred action with the possibility for renewal. The DHS explained at the beginning that information disclosed in the DACA request process would not be used for immigration enforcement proceedings unless certain national security or public safety conditions were met or the individual met requirements for a Notice to Appear.  However, DHS did state that the policy could be amended or rescinded at any time and without any notice. In 2014, a new policy known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was created. This worked similarly to DACA but provided deferred action to those who had a child who was a U.S. citizen or lawful permanent resident. In 2014, the DACA program deferred action was also extended to three years instead of two.

Texas and 25 other states brought a lawsuit back in 2015 to enjoin DAPA and the DACA expansion. The district court in Texas issued a preliminary injunction and found that the claim that the policies should have gone through the notice and comment requirements of the Administrative Procedure Act (APA) had a likelihood of success. The Fifth Circuit affirmed the injunction and held that the expanded DACA and DAPA likely violated the APA as well as the Immigration Naturalization Act (INA). In 2016, the Supreme Court affirmed the Fifth Circuit decision and left the nationwide injunction in place. In June 2017, Texas and the other plaintiffs announced that they were amending the complaint to challenge the original DACA policy. On September 5, 2017, DHS decided to wind down the DACA program and issued a rescission memorandum. Shortly after this, the respondents brought suits challenging the rescission of the program in the Northern District of California. They alleged that rescission of the program violated the APA as an arbitrary and capricious action and violated the notice and comment provisions of the APA. Similar suits were brought in other federal district courts. Litigation over the record ensued, but in the meantime, the government filed for dismissal under Federal Rules of Civil Procedure (FRCP) 12(b)(1) and (6). The FRCP 12(b)(1) claim was denied and a preliminary injunction was issued requiring DHS to maintain DACA nationwide. The district court then granted in part and denied in part the dismissal under FRCP 12(b)(6). The court did not dismiss the claims that DHS was arbitrary and capricious, violated equal protection, and violated substantive due process, but dismissed the claims relating to lack of notice and comment, procedural due process, equitable estoppel, regulatory flexibility act violations, equal protection to have the right to a job. The government appealed to the Ninth Circuit and as of the date of the petition, the Ninth Circuit had not ruled. However, in November 2018, the Ninth Circuit affirmed the preliminary injunction (908 F.3d 476).

Comcast Corp. v. National Assn. of African Am.-Owned Media (No. 18-1171) Argument date 11/13: The issue is whether a claim of race discrimination under 42 U.S.C. § 1981 fails without but-for causation.

Byron Allen, an African American actor/comedian/entrepreneur founded Entertainment Studios Networks (ESN) in 1993. Today, ESN owns and operates seven HD television networks and claims to be the only 100% African American owned multiple channel media company in the United States. ESN, just like other networks, depends on carriage agreements with distributors like Time Warner Cable and Comcast in order provide their content to televisions. ESN met and spoke with senior Comcast executives responsible for licensing networks many times between 2008 and 2015. At the meetings, Comcast is alleged to have expressed concerns with ESN’s ability to gain traction with their subscribers and provided suggestions on how to make their applications better. However, Comcast ultimately did not agree to license ESN networks. Nearly all large distributors also refused to enter into carriage agreements with ESN.

ESN and the National Association of African American Owned Media (NAAAOM), which was founded by Byron Allen, filed lawsuits against the distributors claiming that the decision not to carry ESN networks was based on race and that there was a conspiracy among the distributors to exclude African American owned media. This action was originally filed against Comcast, the former FCC Commissioner Meredith Attwell Baker, the NAACP, National Urban League, National Action Network, Al Sharpton, and Time Warner Cable, alleging that they all worked in concert to discriminate against 100% African American owned companies. All of the defendants moved to dismiss for failure to state a claim and some moved to dismiss for lack of personal jurisdiction. The district court dismissed, finding that the court lacked personal jurisdiction over all plaintiffs except Comcast and Time Warner, but that they failed to allege a plausible claim for relief from those two companies. The Plaintiffs then filed an amended complaint only naming the two companies. The district court again granted the motion to dismiss under FRCP 12(b)(6). Plaintiffs then filed a second amended complaint, which was again dismissed. The district court added that the Plaintiffs could better support their claim by providing actual number of viewers gained.

Plaintiffs’ appeal was argued on the same day and before the same Ninth Circuit panel hearing NAAAOM v. Charter Commc’ns., Inc. The opinion in Charter discussed the same legal questions and the unpublished opinion in this case applied the holding of Charter (743 Fed. Appx. 106). The Ninth Circuit held that mixed motive claims are recognizable under § 1981, such that even if racial animus was not the but-for cause of a refusal to contract, a plaintiff can still prevail by showing discriminatory intent was a factor in the decision. The court determined that it was necessary to conduct a thorough comparison of channels to see if Charter was contracting with white-owned similarly situated channels, and that this analysis was inappropriate in review of a 12(b)(6) motion. The Ninth Circuit ruled that the district court improperly dismissed the claims in the second amended complaint because plaintiffs only needed to plausibly allege discriminatory intent was a factor in the refusal to contract.

Ritzen Group, Inc. v. Jackson Masonry, LLC (No. 18-938) Argument date 11/13: The issue is whether an order denying a motion for relief from an automatic stay is a final order under 28 U.S.C. § 158 (a)(1).

On March 21, 2013, Petitioner and Respondent entered into a contract for the sale of real estate for $1.55 million. The contract did not close and so in December 2014, Petitioner initiated a state court action for default. During the state court action, Petitioner filed multiple motions to compel discovery from the Respondent. Respondent filed for chapter 11 bankruptcy only 17 minutes before a second sanctions hearing on one of the motions to compel discovery. The bankruptcy filing stayed the state court proceedings. Petitioner fought for relief from the automatic stay, arguing that Respondent was financially sound and was merely using chapter 11 to get out of the lawsuit. The bankruptcy court ruled in favor of the Respondent. The denial order resulted in having the Petitioner litigate the state action in bankruptcy court to determine if he had a claim in the bankruptcy case. Respondent succeeded in bankruptcy court and then Petitioner appealed the denial order and the order adjudicating the dispute to the district court. The district court held that the appeal from the denial order was not timely and the Sixth Circuit affirmed (906 F.3d 494). This decision creates a conflict with the First and Third Circuits who use a case-by-case approach to whether the order is final, whereas the Sixth Circuit has a blanket rule that all orders adjudicating a request for relief from an automatic stay are final.

Cases with Argument Dates in December: 

Georgia v. Public.Resource.Org, Inc. (No. 18-1150) Argument date 12/2: The issue is whether the doctrine that government edicts cannot be copyrighted extends to copyrightable works that lack force of law such as annotations to statutes.

In 1977, the Georgia General Assembly created the Code Revision Commission to recodify Georgia’s laws for the first time in decades. The Commission contracted with the Michie Company to prepare and publish the Official Code of Georgia Annotated (OCGA). Michie prepared a manuscript of the unannotated code. After the Assembly voted to adopt that manuscript as their official code, Michie added annotations. The General Assembly has never voted to approve individual annotations and has expressly stated that only the statutory portion has the effect of law and not the annotations. The Commission now contracts with Matthew Bender & Co., which is part of LexisNexis, to maintain, publish, and distribute the OCGA.  The current agreement also requires the company to compile the statutory provisions along with the annotations. Georgia claims no copyright in the statutory text and numbering, but does hold a copyright in OCGA annotations. The agreement with Lexis grants the company the exclusive license to publish the OCGA in print, CD-ROM, and online. The Commission receives royalties on the CD-ROM and online sales and includes a price cap on the product. In order to provide the law to the public, the license requires Lexis to publish the unannotated statutory text online for free.

Respondent is a nonprofit corporation run by Carl Malamud. Its primary role is to publish government information online, including other state codes, and encouraging free access to government information. Respondent posted scanned versions of the OCGA and provided them to Georgia legislators as well. Georgia issued several cease and desist letters to Respondent before filing an infringement suit in the Northern District of Georgia. Respondent filed a counterclaim for a judgment of non-infringement. Both sides moved for summary judgment and the court ruled OCGA annotations were copyrightable, Respondent’s actions constituted infringement, and Georgia was entitled to injunctive relief. The court explained that the annotations are commentary portions and not enacted by the legislature, thus they do not have the force of law. Furthermore, nothing in the agreement between Lexis and Georgia made the material not copyrightable. The court rejected Respondent’s arguments that fair use applied or that the merger doctrine applied.

The Eleventh Circuit reversed, claiming that the material was not copyrightable under the government edicts doctrine. The court determined that the annotations were “sufficiently law-like” to be attributable to the constructive authorship of the people of Georgia. In making this decision, the court looked at who created the annotations, whether the annotations are authoritative, and the process of creation of the annotations. The court noted that the agreement instructed Lexis to create annotations and that the Commission retained editorial control over them and subject to approval by the General Assembly. Although the annotations may not carry the force of law, the court noted that they are merged with the statutory text, so they have been given legislative quality. Finally, the court found that it was important that the legislature voted to adopt the annotations as an integral part of the code (906 F.3d 1229).

NY State Rifle & Pistol v. New York, NY (No. 18-280) Argument date 12/2: The question presented is whether New York City’s ban on transporting a licensed, locked, and unloaded handgun to a home or range outside of the city violates the II Amendment, Commerce Clause, and constitutional right to travel.

New York law requires anyone wishing to possess a handgun in his or her home to obtain a license from the licensing officer in the city or county. New York City only allows its residents to possess a handgun if they are licensed. The license available to the majority of city residents only allows the holder to possess the handgun within his or her own home or en route to one of the 7 shooting ranges within the limits of New York City. The City alleges that the restrictions keep guns off the street and help maintain public safety. Petitioners have a license in NYC and all seek to transport their weapon outside of the city either to second homes, shooting ranges, or competitions. The district court held that the transport ban reasonably related to the interest in public safety and crime prevention. The Second Circuit affirmed. The court determined that inability to transport firearms to a second home or some other place does not limit the core intended purpose of having them for the home. Additionally, the court reasoned that although the right to bear arms does include training in using them, restricting the number of facilities that can be used through the transport ban does not substantially burden Petitioners’ rights. The court also found no violation of the commerce clause and right to travel since Petitioners could still travel to ranges outside of the city and simply borrow a weapon there even if they could not bring their own weapon ( 883 F.3d 45).

Atlantic Richfield Co. v. Christian (No. 17-1498) Argument date 12/3/19: This case presents several questions regarding the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). First, is a common law claim for restoration seeking cleanup remedies that conflict with EPA ordered remedies a challenge to the EPA’s cleanup jurisdiction and barred by Section 113 of CERCLA? Second, is a landowner at a Superfund site a potential responsible party that must get EPA approval under Section 122(e)(6) of CERCLA before engaging in cleanup action even if the EPA has not ordered the landowner to pay for cleanup? Finally, does CERCLA preempt state common law claims for restoration remedies that conflict with EPA ordered remedies?

Petitioner worked for 35 years with the EPA to remediate Montana’s Anaconda Smelter Superfund Site. The cost of this remediation was over $470 million. The Montana Supreme Court held that private landowners may bring state law restoration claims to require companies to pay for remedies that are in direct conflict with EPA ordered remedies. The court decided that CERCLA does not preempt such actions (408 P.3d 515). No other court adopted a view as rigid as that adopted by the Montana Supreme Court. Additionally, no other court has adopted the view that there is no preemption in the context of CERCLA.

Rodriguez v. FDIC (No. 18-1269) Argument date 12/3: The issue presented is whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law Bob Richards rule or based on the relevant state law.

United Western Bancorp., Inc. (UWBI) is a bank holding company based in Colorado. The Bank, one of its subsidiaries, is a federally chartered savings and loan association in Colorado. In 2008, UWBI and its subsidiaries entered into a Tax Allocation Agreement that deems UWBI and its subsidiaries an affiliated group under the meaning of 26 U.S.C. §1504(a). The agreement also includes procedures for the affiliates to pay taxes to UWBI and have UWBI repay any refunds it receives. The affiliates need to pay an amount equal to what they would need to pay in federal income taxes if they filed a separate return. Any overpayments are not refunded until the end of the tax year. UWBI is the agent of each affiliate for purposes of filing consolidated tax returns. UWBI generally must make payments to the affiliates for any refunds received within 10 business days of receipt. The agreement states that it is governed by Colorado law and applicable laws of the U.S.

This case began when UWBI sought a tax refund under this agreement. In 2008, UWBI filed a tax return claiming $34 million in taxable income. In 2010, the Bank suffered losses of $35 million. In 2011, UWBI carried back the losses and requested a refund of $4 million to recover some taxes paid in 2008. While the refund claim was pending, the Office of Thrift Supervision closed the Bank and appointed the FDIC as the receiver. Then, UWBI became insolvent and filed a petition for bankruptcy. Simon E. Rodriguez was appointed Trustee of UWBI’s estate. The IRS subsequently completed the refund request and refunded $4,081,334.67 to UWBI. In 2012, the FDIC filed a proof of claim in the bankruptcy case for the tax refund, claiming the Bank had equitable title to the refund since it allegedly stemmed from the business losses of the Bank. The Trustee began an adversary proceeding in bankruptcy court seeking declaratory and other relief and claiming UWBI was the equitable owner of the refund. Both parties moved for summary judgment. The bankruptcy court granted summary judgment to the Trustee finding that UWBI had at least bare legal title to the refund and analyzed the contract under Colorado law to determine if UWBI had a beneficial interest in the refund. The court find that UWBI has an equitable title to the refund.

The district court reversed finding that it needed to follow the Bob Richards rule. In re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262 (9th Cir. 1973). In applying that rule, the court determined that the equitable title resided with the subsidiary. The Tenth Circuit affirmed the decision of the district court finding that the Bob Richards rule applies even if there is a written agreement in place (914 F.3d 1262).

Intel Corp. Investment Policy Committee v. Sulyma (No. 18-1116) Argument date 12/4: The issue is whether the three year limitation period in Section 413(2) of ERISA stating that the period runs from the earliest date on which plaintiff had knowledge of the breach or violation, bars suits where the information was disclosed by defendants to plaintiff more than three years before plaintiff filed the complaint, but plaintiff did not read or could not remember reading the disclosure.

The Petitioners are retirement plans for employees of Intel along with some committees and individuals who administered the plans. The Respondent was a former employee of Intel. Petitioners send emails to plan participants, including Respondent, notifying that information about the plan is available online. Such information includes details about allocations, risks of investment, and changes in fees. Over three years after sending out the notices regarding allocation in alternative investments like private equity and hedge funds, which were seen as prudent by the committee to temper losses in a volatile equity market, Respondent filed a putative class action suit alleging a violation of fiduciary duty by the Petitioners for over allocating in alternative investments. The district court granted summary judgment to the Petitioners, holding that Respondent had actual knowledge of the facts more than three years before filing the suit. The court of appeals reversed, finding that Plaintiffs needed to establish that Respondent actually read the materials; it was not sufficient to have just sent the materials. Since the Respondent had stated that he could not recall reading the materials, there was a material issue of fact regarding whether he had actual knowledge (909 F.3d 1069). This is a departure from the Sixth Circuit interpretation of the rule.

Banister v. Davis (No. 18-6943) Argument date 12/4: The issue is whether and under what circumstances a timely Rule 59(e) motion should be classified as a second habeas petition under Gonzalez v. Garvey, 545 U.S. 524 (2005).

Banister was convicted of aggravated assault with a deadly weapon and sentenced to thirty years in prison. He filed a habeas petition, which was denied by the district court without a certificate of availability on May 15, 2017. On June 12, 2017, he filed a motion to amend or alter the judgment under FRCP 59(e). This was denied on the merits June 20, 2017. On July 20, 2017, Bannister filed a notice of appeal and application for certificate of appealability in the district court. This was denied on July 28, 2017. The Fifth Circuit granted an extension of time for Bannister to file a certificate of appealability application, which was eventually filed on October 11, 2017. On May 8, 2018, the Fifth Circuit issued an order denying the certificate of appealability application, finding that the notice of appeal was not timely filed, and the court lacked jurisdiction to consider the merits of the claim. The Fifth Circuit also denied a motion for rehearing.

Ovalles v. Barr, Att’y Gen. (No. 18-1015)
Guerrero-Lasprilla v. Barr, Att’y Gen. (No. 18-776) Argument date 12/9: The issue is whether the criminal alien bar of 8 U.S.C. §1252(a)(2)(c), tempered by § 1252(a)(2)(d) prevents a court from reviewing an agency decision finding a party lacked diligence for equitable tolling purposes, notwithstanding the fact that there is no factual dispute.

Petitioner Ovalles was admitted to the U.S. in 1985 as a lawful permanent resident when he was six years old.  In 2003, he was put into removal proceedings after his conviction for attempted possession of drugs. DHS alleged that this crime qualified him for removal since it was also an aggravated felony.  An immigration judge found that it was not an aggravated felony, and he was thus statutorily eligible for cancellation of the removal, and the judge granted the cancellation. DHS appealed and the Board of Immigration Appeals (BIA) held, based on previous precedent, that he had committed an aggravated felony.  BIA ordered him removed to the Dominican Republic in 2004 and since that time, he has been trying to find a way to return to the U.S. In 2006, the Supreme Court overturned the BIA precedent used to decide that Ovalles committed an aggravated felony in Lopez v. Gonzales, 549 U.S. 47 (2006).

Petitioner Guerrero-Lasprilla entered the U.S. as a lawful permanent resident in March 1986. In 1988, he was convicted on conspiracy to possess with intent to distribute cocaine and was sentenced to 12 years imprisonment. Removal proceedings were started against him in 1998 based on his having committed an aggravated felony. He was removed to Colombia. In 2016, he filed a motion to reopen his removal with an immigration judge, which was denied. He filed an appeal with the BIA, which was also denied. He filed for review by the Fifth Circuit. The court dismissed the request for review, holding that the question of whether an alien was diligent in trying to reopen removal proceedings for purposes of equitable tolling is a question of fact and the court lacks jurisdiction to consider the question (737 F. App’x 230).

Thryv, Inc., fka Dex Media, Inc. v. Click-To-Call (No. 18-916) Argument date 12/9: The issue is whether the Patent Trial and Appeal Board (PTAB) decision to institute an inter partes review (IPR) upon finding that the time bar in 35 U.S.C. § 315(b) does not apply can be appealed under 35 U.S.C. § 314(d).

In 2001, Inforocket.com, Inc. sued Keen, Inc. for an infringement of Patent No. 5,818,836. Keen then sued Inforocket on its own patents. In 2003, Keen acquired Inforocket and the parties agreed to dismiss the proceedings without prejudice. Keen changed its name to Ingenio, Inc. after the merger. Respondent acquired Patent No. 5,818,836 in 2011 and in 2012, filed infringement complaints against multiple parties. This litigation was stayed pending resolution of IPR proceedings. Both before and during the proceedings, Ingenio went through a series of mergers, sales, and name changes, ultimately merging with YellowPages.com and being named Dex Media, Inc., the current Petitioner.

In May 2013, Ingenio, YellowPages.com, Oracle Corp., and Oracle OTC Subsidiary LLC filed an IPR petition challenging the patent on grounds of anticipation and obviousness. Respondent claimed that the petition was time barred because Ingenio had been served with the infringement complaint back in 2001 in the lawsuit against Keen. The board rejected the time bar argument, stating that the Federal Circuit has consistently found that a dismissal without prejudice leaves the parties as though the action never happened and thus nullifies the effect of service of the complaint. The board instituted the review on the grounds that there was a reasonable likelihood that petitioners could show that 13 identified claims of the patent were unpatentable. Respondent requested a rehearing, which was denied. A final written order was issued in October 2014 in which the PTAB found that 13 specified claims were either anticipated or obvious and thus unpatentable. Respondent appealed the decision of the PTAB to institute IPR. This was initially dismissed by the Federal Circuit for lack of appellate jurisdiction citing its decision in Achates Reference Publ’g, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) that section 314(d) prohibits the court from reviewing the PTAB decision to institute IPR based on its assessment of the time bar in section 315(b). Respondent then filed for cert. in 2016 and the Supreme Court granted cert., vacated the judgment, and remanded for further consideration in light of the ruling in Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016). The Federal Circuit again dismissed on remand citing its own more recent decision in Wi-Fi One, LLC v. Broadcom Corp., 837 F.3d 1329 (Fed. Cir. 2016), which found that Cuozzo did not overrule the previous decision in Achates. Respondent then filed for rehearing en banc. The Federal Circuit granted en banc review in Wi-Fi One in which a divided court overruled Achates and held that time bar determinations under section 315(b) are appealable. After that decision, the court treated the petition for the rehearing en banc as one for a rehearing by the panel and granted it. The panel vacated the prior dismissal in light of Wi-Fi One. Upon rehearing, the Federal Circuit issued an en banc ruling that the time bar of section 315(b) was triggered by service of any complaint, even those dismissed without prejudice. As such, the court vacated the PTAB final decision and remanded with instructions for the PTAB to dismiss the IPR.

Maine Community Health Options v. United States (No. 18-1023)
Moda Health Plan, Inc. v. United States (No. 18-1028)
Land of Lincoln Mutual Health v. United States (No. 18-1038) Argument date 12/10: These cases involve two issues. First, whether an appropriations rider which bars the agency from using certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, be  held to impliedly repeal the obligation by elevating the intent of the rider above its text and the text of the statute. Second, whether when the federal government has a statutory payment obligation under a program involving reciprocal commitments by the government and a private company participating in the program, does the presumption against retroactivity apply to the interpretation of an appropriations rider that claims to have impliedly repealed the government obligation.

This case involves section 1342 of the Patient Protection and Affordable Care Act (ACA), which established a three-year risk corridors program to protect against uncertainty in rate setting by sharing risks in both losses and gains with the insurers and the government. The program was to be similar to programs under Medicare Part D and was to be implemented by the Department of Health and Human Services (HHS). All participating insurers were required to participate. The section apportioned a share of the risk insurers would have in prospectively setting prices based on anticipated costs. If the insurer experienced higher than expected allowable costs, the government shall pay part of the excess costs. If the insurer experienced lower expected than allowable costs, the insurer would pay the government a portion of the savings. Respondent Health Options paid the government $2,045,819.48 in the first year (2014). The government owed Health Options more than $22 million for 2015 and more than $35 million for 2016. HHS issued policies and requirements for implementing the risk corridors program. It stated that it would carry out the payments in a budget neutral fashion and limit payments out to collections in, even though it had noted that there was no requirement for it to be budget neutral. It would postpone final accounting of what was owed to the end of the three-year period if it owed more than was being collected on an annual basis. In the appropriations for FY 15 Congress included a rider that held HHS to its stated intention to be budget neutral on payments under the program and prohibited HHS from using its lump sum FY 2015 allocation to make payments under section 1342 to insurers. It turned out that the amount collected in 2014 was far less than what was owed to insurers. Congress included similar riders in subsequent years. Even after the program ended, a large amount was still owing to insurers and Congress had not appropriated any funds to pay it.

Many insurers initially challenged the process of not paying out until the end of the three-year period. The challenges only increased after the end of the period, when Congress still did not appropriate funds for what had been acknowledged as obligations of the United States. Claims were filed in the Court of Federal Claims, which has jurisdiction over large money claims against the U.S. and which pays judgments out of the judgment fund, which is a standing appropriation of Congress. Health Options filed its claim in August 2016 and the Government moved to dismiss claiming that because the risk corridors program payments were not due annually, the claim was not ripe until the final accounting; that despite the shall pay language in the statute, the program was always supposed to be budget neutral and there was no obligation to pay without appropriation, and also that any payment obligation was abrogated by the riders to the appropriations barring HHS from making payments. The Court of Federal Claims concluded that the claim was ripe, but held that any obligation was irrelevant because the riders negated it.

The case was appealed to the Federal Circuit, but was stayed pending disposition of cases involving the other Petitioners involving the same issues. In Moda, all three judges on the panel decided that the plain language of the statute obligated the government to pay. The judges rejected the argument that the statute was enacted to be budget neutral. Additionally, they determined that the absence of appropriation did not affect the conclusion that a payment obligation was created. However, two judges on the panel determined that the riders suspended the obligation. The court looked at a GAO letter that identified portions of appropriations potentially available for payments under the section as well as a statement by House Appropriations Committee Chairman Rogers regarding the 2015 rider, in which he said that HHS stated by regulation that it would be a budget neutral program and the rider would prevent HHS from using money to pay under the section. The court went on to reason that suspend as used here meant indefinite cancellation of the obligation to pay (729 F. App’x 939).

Holguin-Hernandez v. United States (No. 18-7739) Argument date 12/10: The issue is whether a formal pronouncement of sentence is needed to invoke appellate reasonableness review of the length of sentence.

Petitioner was convicted in 2016 of possession of marijuana with intent to distribute in violation of federal law and sentenced to 24 months in prison, followed by two years of supervised release. He was again arrested in 2017 and charged with possession of marijuana with intent to distribute. After the arrest, a petition was filed to revoke his term of supervised release. Before the revocation hearing occurred, he plead guilty and was sentenced to the statutory minimum of 60 months on the new case. During the revocation hearing, the court asked Holguin-Hernandez how he plead to the allegations against him and he said True. The district court determined that the most serious of the two revocation violations qualified as Class A and that petitioner had a criminal history category of I, which meant a sentencing range of 12-18 months. Holguin-Hernandez’s attorney asked for a concurrent sentence on the revocation arguing that the new 60-month sentence was more than double the sentence he had received for his prior offense so a consecutive sentence would not provide more deterrent effect or advance any government interest expressed in the statutes. In the alternative counsel also argued that if it was a consecutive sentence, something below the 12-18 range would suffice. The district court revoked supervised release and sentenced Holguin-Hernandez to 12 months to run consecutively to the new marijuana conviction sentence.

Petitioner appealed claiming that the 12-month consecutive sentence on the revocation was unreasonable because it was greater than necessary to account for factors raised by the statute. The Fifth Circuit ruled that since he did not raise the challenges in district court he could only receive plain error review and so the sentence was affirmed (746 F. App’x 403).

Monasky v. Taglieri (No. 18-935) Argument date 12/11: There are two issues presented by this case. First, whether a district court determination of habitual residence under the Hague Convention should be reviewed de novo. Second, whether when an infant is too young to acclimate to her surroundings, a subjective agreement between the parents is necessary to establish habitual residence under the Hague Convention.

Petitioner is a U.S. citizen who was married to Respondent, an Italian citizen in 2011. They lived in Illinois. In 2013, respondent moved back to Italy and the parties lived apart for six months until petitioner joined him. Petitioner alleges that respondent sexually and physically assaulted her many times, leading to her pregnancy.  The pregnancy was difficult and petitioner was placed on bed rest. Both parties discussed divorce and petitioner claims that the abuse continued throughout the pregnancy. When petitioner was nine months pregnant, after another alleged assault, she stated she wanted to return to the U.S. with the baby. The baby was born via C-section a few days later. Petitioner’s mother stayed with her providing assistance for about two weeks before returning to the U.S. The parties stayed together after the mother left and petitioner worked on getting a U.S. passport for the child. Three weeks later, another altercation occurred and petitioner took her child to the police who placed them in a social services house for domestic violence victims; where they remained for two weeks until the passport arrived.  When they left, the child was eight weeks old.

Respondent filed a Hague Convention petition in district court seeking a return order for the child. The court granted the petition, finding that the infant’s habitual residence will be in the country where the matrimonial home exists. Petitioner sought a stay of the return order in the Sixth Circuit. The stay was denied by the Sixth Circuit and then at the Supreme Court by Justice Kagan. The child was returned to Italy and an Italian court terminated petitioner’s parental rights. The Sixth Circuit made its decision stating that when a child has resided in one country, that country is its habitual residence. Petitioner requested a rehearing en banc and the court again affirmed holding that the parents shared intent determines if an infant who is too young to acclimate to her surroundings has attained a habitual residence in the country from which she was removed (907 F.3d 404).

McKinney v. Arizona (No. 18-1109) Argument date 12/11: The case presents two issues. First, was the Arizona Supreme Court required to apply current law when weighing mitigating and aggravating circumstances to determine if a death sentence is warranted. Second, does the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982) require resentencing.

Petitioner was convicted of murder and sentenced to death by a judge in 1993. Twenty years later, the Ninth Circuit granted petitioner a conditional writ of habeas corpus, finding that Arizona courts over fifteen years refused to consider non-statutory mitigating evidence, which violated the decision in Eddings. In this case, the court did not consider that McKinney suffered PTSD as a result of childhood abuse. The Ninth Circuit found that this was not harmless error and ordered Arizona to correct the error in his sentence. In response, the state sought de novo review in the Arizona Supreme Court. Petitioner opposed, stating that he was entitled to sentencing by a jury, based on Supreme Court cases establishing that a jury rather than a judge is required to make findings necessary to impose a death sentence. The Arizona Supreme Court concluded that the Supreme Court precedent did not apply since it was issued after McKinney’s sentence became final in 1996. The court weighed the aggravating and mitigating circumstances and determined that the case had such aggravating circumstances that the mitigating circumstances did not outweigh them and affirmed his sentence (426 P.3d 1204).

Cases not yet scheduled for argument

Babb v. Wilkie, Sec. of VA (No. 18-882): The case presents the issue of whether the federal sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) requires the plaintiff to prove that age was a but-for cause of the challenged personnel action.

Petitioner joined the Bay Pines VAMC in 2004 and helped develop the geriatric pharmacotherapy clinic (GPC). In 2009, he was given an advanced scope by prior pharmacy management so that he could dispense medications without physicians present. In 2010, the VA announced the patient aligned care teams (PACT) initiative, which was similar to how GPC was operating. Pharmacy management rejected HR’s recommendation that module pharmacists be allowed to transition into CPS positions, with the exception of two pharmacists under 40. The three females over 50 were denied this advancement in their careers. Two of the clinical pharmacists filed EEO claims and Petitioner provided statements and testified on their behalf. Petitioner claims that she was not allowed to participate in discussions about the transition of GPC into PACT as a result of her support in the EEO actions and that two younger pharmacists were. Petitioner lost her advances scope.

Petitioner brought suit in district court alleging discrimination, retaliation, and discriminatory and retaliatory hostile work environment in violation of Title VII and ADEA. The district court granted the VA motion for summary judgment after discovery. Petitioner appealed arguing that the court erred in deciding that there were no issues of material fact, that the court failed to allow her to prove discrimination and retaliation claims under the motivating factor test, the evidence was sufficient to raise a jury question of whether retaliation and discrimination was a motivating factor for the action, and the court erred in dismissing the hostile work environment claim. The Eleventh Circuit panel felt that it was bound by the decision of the panel that heard the case of the two other claimants from the original EEO. In that case, the retaliation arose after the gender and age discrimination had resulted in substantially all career affecting adverse employment actions. However, the panel decided they were still bound by it and needed to apply a because of instead of but-for standard (743 F. App’x 280).

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. (No. 18-1048): The issue presented is whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards allows a non-signatory to an arbitration agreement to compel arbitration under the doctrine of equitable estoppel.

Respondents entered into contracts with Fives St. Corp. to purchase equipment. The contracts included provisions compelling arbitration in Germany for any disputes. Fives then subcontracted with Petitioner to provide the parts for the equipment in the contract. The parts failed and Respondent sued Petitioner in Alabama state court. The district court in Alabama adopted the report and recommendation of the Magistrate Judge and granted Petitioner’s motions to compel arbitration and dismiss. The Eleventh Circuit reversed and remanded (902 F.3d 1316). The Eleventh Circuit then denied Petitioner’s motion for rehearing en banc.

Kelly V. United States (No. 18-1059): The issue presented is whether a public official defrauds the government of its property by advancing a public policy reason for an official decision that was not the real reason for the decision.

This case arose out of “bridgegate” which occurred when several political officials in New Jersey and at the Port Authority of New York/New Jersey closed lanes to the George Washington Bridge, which led to extended traffic delays in the town of Fort Lee, N.J. The underlying allegation in the litigation was that the decision to close or reallocate lanes was taken as political payback against the Fort Lee mayor for failing to endorse Governor Christie’s in his re-election campaign. The action was taken as part of an alleged traffic study. Kelly, along with other defendants was convicted under wire fraud and fraud from federally funded programs statutes. The Third Circuit affirmed the convictions, reasoning that the defendants had defrauded the Port Authority of its property, which entailed the lanes and employee labor used to impose and study the realignment. The fraud was the concealment of the political motive behind the lane closings (909 F.3d 550).

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. (No. 18-1086): The issue presented is whether when a plaintiff asserts new claims, federal preclusion bars a defendant from raising defenses not actually litigated and resolved in prior cases between the two parties.

This is the third trademark case between the parties. Lucky is a well-known jean sold at stores. Lucky Brand is a trademark owned by Petitioner. Get Lucky is a trademark allegedly owned by Respondent. Respondent first sued petitioner in 2001 for trademark infringement and unfair competition for using the phrase “Get Lucky.” The parties signed a settlement to the action in 2003 in which petitioner agreed to desist from using that phrase as a trademark and respondent released petitioner from any and all claims arising from or relating to petitioner’s use of Lucky Brand in exchange for $650,000. About a year after the agreement, Ally Apparel Resources LLC and Key Apparel Resources, Ltd. launched a Get Lucky line of jeans and sportswear under a license from respondent. Petitioner then filed suit in the Southern District of New York against Ally, Key, Marcel, and the President of Marcel in 2005 alleging unfair business practices and infringement on Lucky Brand trademarks. Respondent counterclaimed alleging trademark infringement, seeking to invalidate Lucky Marks, about 40% of which were registered after the 2003 settlement, and seeking to enjoin petitioner from using the Get Lucky trademark or any similar trademark. Petitioner moved to dismiss the counterclaims based on the settlement agreement, but the court denied the motion without prejudice on the grounds that it could not say at that stage that all the relevant aspects of the disputed counterclaim were raised or could have been raised before the settlement agreement since some of the marks were dated after the agreement. At trial, the jury found that petitioner had infringed the Get Lucky mark after 2003. Respondent sought to enjoin petitioner from further use of Get Lucky and from further use of Lucky Brand trademarks and any other trademarks using the word Lucky. Petitioner objected to this and respondent ultimately dropped it.  The 2005 action resulted in a Final Order and Judgment issued June 10, 2005 under which petitioner was enjoined from using the mark Get Lucky and nothing else and ordered to pay damages for trademark infringement and breach of contract.

This current action stems from a lawsuit initiated by respondent in 2011 in the Southern District of Florida, seeking a new injunction prohibiting petitioner from using Lucky Brand marks. The case was transferred to the Southern District of New York and petitioner moved for summary judgment on the grounds that the Final Order precludes the claim. The district court agreed and granted summary judgment concluding that the claims were precluded by res judicata. The Second Circuit vacated and remanded, stating that the Final Order did not bar respondent from bringing a second suit seeking relief for further infringement that occurred subsequent to the Final Order. On remand, respondent moved for leave to amend the complaint and clarified that although the infringement occurred after the Final Order, the actual marks at issue predate it. Petitioner then moved for summary judgment on the grounds that the Settlement Agreement barred the claims. Respondent argued that the collateral estoppel effect of the Final Order precludes petitioner from relying on the Settlement Agreement, because petitioner could have raised these arguments before. The district court disagreed, granting the summary judgement, and found that issue preclusion does not apply because the Settlement Agreement’s release provision was not actually litigated and resolved in the 2005 action; and claim preclusion did not apply because petitioner is not asserting a claim against respondent and respondent’s claims are different from those litigated in 2005. The Second Circuit again vacated and remanded. The court held that a defendant may be precluded from raising defenses in a second action that could have been raised in the first, but were not (898 F.3d 232).

Espinoza v. Montana Dept. of Revenue (No. 18-1195): The issue is whether it violates the religion clauses or equal protection clause of the constitution to invalidate a generally available and religiously neutral student aid program just because it allows students to choose to attend religious schools.

The Montana Legislature enacted a tax credit scholarship program in May 2015, which is intended to provide parental and student choice in k-12 education. It provides an up to $150 tax credit to individuals and businesses who donate to private nonprofit scholarship organizations. The organizations then use the money to give scholarships to families who wish to send their children to private school. Shortly after the statute was enacted, the respondent enacted an administrative rule prohibiting scholarship recipients from using their scholarships at religious schools. Respondent claimed that the change was necessary in order to comply with the Blaine Amendment to the state Constitution, which prohibits any direct or indirect appropriation from any public fund or monies for any sectarian purpose. Petitioners are three families who claim this administrative rule severely limited their choices of private schools. Petitioners all send their children to Stillwater Christian School and all struggle to pay the fees.

Petitioners filed a case claiming that the administrative rule was ultra vires, unnecessary, and unconstitutional in December 2015. In March 2016, the trial court issued a preliminary injunction against enforcement of the rule on the grounds that it was likely both ultra vires and unconstitutional under the U.S. Constitution. In May 2017, the injunction was made permanent and the court granted summary judgment for the petitioners. The Montana Supreme Court reversed in a 5-2 decision in December 2018. The court held that the program’s inclusion of religious schools was unconstitutional under the Blaine Amendment, it was not severable from the rest of the scholarship program and thus the statute and the rule were invalid, and there was no conflict with the U.S. Constitution (393 Mont. 446). Petitioners moved the Montana Supreme Court to stay the effective date of its judgment pending appeal to the Supreme Court. The Montana Supreme Court granted a partial stay allowing the award of existing scholarship funds over the summer, but prohibiting further fundraising with the tax credits.

Romag Fasteners, Inc. v. Fossil, Inc. (No. 18-1233): The issue presented is whether Lanham Act Section 35 requires a willful infringement as a prerequisite for an award of an infringer’s profits for violation of section 43(a).

Petitioner sells magnetic snap fasteners under the trademark ROMAG for use in wallets, handbags, and other leather goods.  Respondent designs, markets, and distributes accessories, but contracts with factories to manufacture its designs. In 2002, the parties entered into an agreement to use petitioner’s fasteners in respondent’s products. Respondent agreed to instruct its manufacturers to purchase the fasteners from Wing Yip Metal Manufacturer Accessories, Ltd., which is the sole authorized manufacturer of the fasteners in mainland China. Between 2002 and 2008, Superior Leather, Ltd., which operated a factory manufacturing respondent’s products, purchased a minimum of tens of thousands of the fasteners. However, between 2008 and 2010 the number of fasteners purchased declined dramatically. The President of petitioner discovered that some of respondent’s products being sold in the U.S. had counterfeit fasteners bearing petitioner’s mark.

In November 2010, petitioner filed suit in the District of Connecticut against respondent and retailers of Fossil including Macy’s for patent and trademark infringement. Petitioner alleged that defendants knowingly adopted and used the Romag mark without consent. In April 2014, a jury found after a seven-day trial that Fossil infringed the trademark, falsely represented its products came from the same sources as Romag’s, and infringed Romag’s patents. None of the violations was found to be willful. The jury found that Fossil should pay $90,759.36 in profits to prevent unjust enrichment and another $6,704,046 in profits to deter future trademark infringement. The jury attributed 1% of Fossil’s profits to its infringement. Patent damages were also awarded at a rate of $0.09/unit for a total of $51,052.14 against Fossil and $15,320.61 against Macy’s. There was a separate two-day bench trial on the issue of equitable defenses and remedies, which ended in a decision that Romag was not entitled to any award of profits as a result of its failure to prove the infringement was willful.

Petitioner moved for judgment as a matter of law against Macy’s for trademark infringement. The court agreed finding that the evidence established that the fossil bags sold at Macy’s contained counterfeit snaps. Respondent filed a conditional motion for judgment as a matter of law and for a new trial. The district court denied the motion as unripe. Romag appealed to the Federal Circuit, which affirmed. Romag petitioned for a writ of certiorari to Supreme Court, which granted the petition, vacated the Federal Circuit decision, and remanded for further proceedings in light of the decision in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954 (2017). The Federal Circuit reinstated the appeal and remanded to the district court for entry of a new damages judgment amount consistent with SCA Hygiene Prods.

The district court entered an amended partial final judgment in November 2017 awarding patent damages in the full amount of the jury verdict against Fossil and Macy’s, but reserving whether petitioner was entitled to prejudgment interest. An amended final judgment in September 2018 awarded petitioner prejudgment interest, attorneys’ fees, and costs. Petitioner again appealed to the Federal Circuit in November 2018 and respondent moved to dismiss the portion of the appeal addressing question under the Lanham Act on the grounds that it was already litigated and affirmed by the Federal Circuit on remand from the Supreme Court. In February 2019, the Federal Circuit granted respondent’s motion to the extent that the appeal was limited to issues decided by the district court on remand.

Shular v. United States (No. 18-6662): The issue presented is whether the determination of a serious drug offense under the Armed Career Criminal Act (ACCA) requires the same approach as the determination of a violent felony under the act.

Petitioner was convicted on six separate controlled substances offenses in Florida. Five were for sale of cocaine and one was for possession with intent to distribute cocaine. Under the Florida law, knowledge of the illicit nature of a controlled substance is not an element of the offenses. Petitioner plead guilty to possession of a firearm by a previously convicted person under 18 U.S.C. § 922(g) as well as possession of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In the pre-sentencing report, petitioner was classified as an armed career criminal under the ACCA on the basis of the prior Florida convictions, which meant a mandatory minimum sentence of 15 years and a maximum of life in prison on the charge under section 922(g). Petitioner filed an objection to his classification, claiming that the Florida convictions did not qualify as serious drug offenses since Florida prosecutors did not need to prove a defendant’s knowledge of the illicit nature of a controlled substance and that Congress intended serious drug offenses to include that mens rea element. He also renewed the objections at sentencing. The district court stated that it needed to follow the decision in U.S. v. Travis Smith, 775 F.3d 1262 (11th Cir. 2014) and overruled the objection. Petitioner was sentenced to concurrent 180-month terms on each count. The Eleventh Circuit affirmed in an unpublished opinion.

Opati v. Sudan (No. 17-1268): The question presented is whether the Foreign Sovereign Immunities Act (FSIA) applies retroactively and permits recovery of punitive damages against foreign states for terrorist activities, which occurred prior to the current version of the statute.

The Petitioners are employees or contractors of the U.S. Government who were killed or injured in the bombings of U.S. embassies in Nairobi and Dar-es-Salaam back in 1998. Petitioners filed several actions in District Court against Sudan for its role in supporting Al Qaeda. Litigation took place at the District Court and Circuit Court level for over ten years. During the litigation, the FSIA was amended in 2008 to revise the terrorism exception to allowing a private right of action. In 2014, the District Court issued written decisions in each of the actions and ruled in favor of the Petitioners. Sudan filed notices of appeal after the judgments, after having been silent in the proceedings for several years prior. Sudan then filed Rule 60(b) motions to vacate the judgement, so the Circuit Court stayed proceedings until after the District Court ruled against Sudan on those motions. The District Court noted that Sudan had not acted in good faith during the litigation and should have raised many of their arguments sooner. The DC Circuit affirmed the final judgments in most respects, but vacated all punitive damage awards and certified a question of whether a plaintiff must be present at a terrorist bombing in order to recover for intentional infliction of emotional distress to the DC Court of Appeals. The DC Court of Appeals did not look at whether to retroactively apply the terms of the Foreign Sovereign Immunities Act and the 2008 amendments in light of the Supreme Court decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004) and instead analyzed the question under Landgraf v. USI Film Prods., 511 U.S. 244 (1994). Using this as the standard, the court determined that there is a presumption against retroactive legislation and thus barred the punitive award (864 F.3d 751).

Thole v. U.S. Bank, N.A. (No. 17-1712): The questions presented by the case are whether an ERISA plan participant or beneficiary may seek injunctive relief of fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or imminent risk of such loss. Additionally, can 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 imminent risk thereof. The Court also asked parties to brief whether Petitioners have demonstrated Article III standing.

Respondents are fiduciaries and sponsors of a pension plan for its employees. Petitioners participated in the plan. The plan is a defined benefit plan, which pays a set amount based on a contract. Respondents invested the entirety of the plan in high-risk equities. When the equities markets crashed in 2008, the fund lost over $1 billion. A more diversified portfolio would have reduced the amount of money lost. Such losses resulted in an underfunding of the plan. After Petitioners initiated a lawsuit, Respondents added money to the fund to ensure that it was once again overfunded. The District Court determined that this action meant that there was no longer the case or controversy as required by Article III. Petitioners allege that Respondents are still violating ERISA by continuing to invest their own proprietary mutual fund. A partially divided Eight Circuit affirmed the District Court decision (873 F.3d 617). The Eighth Circuit also refused to rehear the case en banc.

Sharp, Interim Warden v. Murphy (No. 17-1107, Argument date 11/27/18, Restored to calendar for reargument 6/27/19): The issue in this capital case is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an Indian Reservation under 18 U.S.C. § 1151(a) .

Murphy, a member of the Creek Nation, was convicted of murdering another member of the Creek Nation within the reservation and sentences to death. Murphy sought post-conviction relief, arguing that Oklahoma did not have jurisdiction under the Major Crimes Act, which provides for federal jurisdiction to prosecute murders by Indians in “Indian country” including reservations and certain allotments. The Oklahoma Court of Criminal Appeals (OCCA) ordered an evidentiary hearing and the trial court held that state jurisdiction was proper because it occurred on state land and rejected that the land was an allotment, but did not address the other claim that the land was a reservation. The OCCA affirmed and stated that “Indian Country” reserved the disestablishment question and in the absence of a decision by federal courts, would it would not make a finding. Murphy filed a petition for habeas relief, which was denied by the district court. The Tenth Circuit found that the refusal of the OCCA to make a finding was an adjudication on the merits and thus triggered a deferential review under the Antiterrorism and Effective Death Penalty Act (AEDPA) and assumed that there should be deferential review of jurisdictional questions. Applying the standard that Murphy needed to show that the OCCA decision was contrary to or an unreasonable application of clearly established federal law, the Tenth Circuit reversed the decision. It found that the OCCA decision ignored the required presumption that the Indian reservation continues to exist until Congress acts to disestablish it and did not consider the three factors from Solem (statutory language, contemporary historical evidence, and Congress’ own treatment of the area). The Tenth Circuit found that Congress had not disestablished the Creek reservation and since Oklahoma never argued that the conviction might stand even if the reservation remained, Oklahoma lacked jurisdiction (875 F.3d 896). Interestingly, there is no claim that Murphy did not commit the crime. The issue is one of jurisdiction and the contention is that the crime needs to be tried by the federal government and not Oklahoma.

After the argument, the court asked the parties to file supplemental briefs addressing two issues: 1) whether any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status and 2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U. S. C. §1151(a).