Supreme Court Cases

On April 18, 2012 the Supreme Court announced its decision in Kappos v. Hyatt. This case involves the Patent Act of 1952, under which an applicant who is denied a patent by the Patent and Trademark Office (PTO) is permitted to challenge that decision by filing a lawsuit in federal court. The question here concerns the extent to which an applicant can introduce in federal court evidence that was not presented to the PTO--and the standard that the court should apply in considering such evidence.

In an opinion delivered by Justice Thomas, the Court held unanimously that when introducing new evidence in federal court, an applicant is not subject to limits beyond those set forth in the Federal Rules of Evidence and of Civil Procedure. The Court further held that if such evidence pertains to disputed issues of fact, it should be assessed by the federal trial court under a de novo standard of review. Justice Sotomayor filed a concurring opinion, in which Justice Breyer joined.

To discuss the case, we have David Olson, who is an Assistant Professor at Boston College Law School.

On April 25, 2012, the Supreme Court announced its decision in United States v. Home Concrete & Supply, LLC, a case involving a dispute over the language of certain tax code provisions and regulations. Generally, if the IRS believes that a taxpayer’s return has understated the amount of tax owed, the IRS has three years to assess additional tax. The tax code, however, extends that three-year period to six years when the taxpayer improperly “omits from gross income” a sum that exceeds 25% of the gross income that the taxpayer stated on the return. The question here was whether an understatement of gross income that occurred when a taxpayer overstated the “basis” in sold property should count as an “omission” from gross income that triggers the extended six-year assessment period.

The Court held by a vote of 5-4 that the understatement of gross income does not trigger the extended six-year assessment period. Justice Breyer delivered the majority opinion of the Court, with the exception of Part IV-C. The Chief Justice and Justices Alito and Thomas joined the opinion in full, while Justice Scalia joined the opinion in all except Part IV-C. Justice Scalia also filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.

To discuss the case, we have Kristin Hickman, who is a Professor of Law at the University of Minnesota Law School.

On April 24, 2012, the Supreme Court heard oral argument in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak. Both cases consider whether an individual may file suit to challenge the federal government’s placement of land into a trust for use by Indian tribes.

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Court will consider whether the Quiet Title Act’s reservation of sovereign immunity in suits involving “trust or restricted Indian lands” applies when the plaintiff does not actually claim title to the land in question.

In Salazar v. Patchak the Court will consider whether, notwithstanding the Quiet Title Act, the Administrative Procedure Act waives sovereign immunity in a suit challenging the United States’ title to lands held in trust for an Indian tribe.

In both cases the Court will also face a question of “prudential standing”; namely, whether the plaintiff can base his standing to sue on an effort to “police” agency compliance with the law, or on interests protected by a statute other than the one on which his suit is based.

To discuss these cases we have Thomas Gede, who is a commissioner on the Indian Law and Order Commission and Of Counsel with Bingham McCutchen LLP.

On January 23, 2012, the Supreme Court announced its decision in United States v. Jones. The question in this case is whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violates the Fourth Amendment. A lower court had reversed the defendant’s conviction on the grounds that admission of the evidence obtained from the GPS violated the Fourth Amendment.

By a vote of 9-0, the Supreme Court affirmed the lower court’s judgment. Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held for the majority that the government’s attachment and use of the GPS was a search for purposes of the Fourth Amendment. Justice Sotomayor also filed a separate concurring opinion. Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, filed an opinion concurring in the judgment but relying upon a different rationale.

To discuss the case, we have Paul Rosenzwieg, who is the Principal and founder of Red Branch Law and Consulting, PLLC.

On April 24, 2012, the Supreme Court announced its decision in Wood v. Milyard. The question in this case concerns the authority of a federal court to raise, on its own initiative, a statute of limitations defense to a habeas corpus petition.

In an opinion delivered by Justice Ginsburg, the Court held that a federal court may generally raise a statute of limitations defense on its own initiative--but may not do so where the State was aware of the defense and intelligently chose not to rely upon it in the court of first instance. Because the State had deliberately waived the limitations defense in this case, the Court explained, the U.S. Court of Appeals for the Tenth Circuit abused its discretion by resurrecting the defense on appeal. Accordingly, the Supreme Court reserved the Tenth Circuit’s dismissal of the habeas petition and remanded the case for further proceedings.

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined Justice Ginsburg’s opinion. Justice Thomas filed an opinion concurring in the judgment, which was joined by Justice Scalia.

To discuss the case, we have Brian Means, who is a federal habeas corpus litigator in the Eastern District of California, the U.S. Court of Appeals for the Ninth Circuit, and the United States Supreme Court.

On April 17, 2012 the Supreme Court heard oral argument in Dorsey v. United States and Hill v. United States. Both cases involve the Fair Sentencing Act of 2010 (FSA), which dramatically increased the quantities of crack cocaine that must be involved in various drug trafficking offenses before certain mandatory minimum penalties will be triggered. The question in Dorsey v. United States is whether the FSA applies to all defendants sentenced after its enactment, even if their crime and conviction occurred prior to its passage. The analogous question in Hill v. United States is whether the relevant date for determining the applicability of the FSA is the date of the underlying offense or the actual date of sentencing.

To discuss the cases, we have William Otis, who is an adjunct professor at Georgetown University Law Center and a former federal prosecutor.

On April 18, 2012, the Supreme Court heard oral argument in Salazar v. Ramah Navajo Chapter. This case involves the federal Indian Self-Determination and Education Assistance Act, which allows Native American tribes to take over the administration of various federally funded educational and social service programs, and to receive full coverage for the cost of doing so. The question in this case is whether, given that Congress has capped the total amount that may be expended to cover such costs--and that the amount is inadequate to cover all tribes’ costs in full--the government may simply divide the available support funds among the tribes, or must pay the support costs of each tribe in full notwithstanding the statutory cap.

To discuss the case, we have Jonathan Cohn, who is a Partner in the Washington D.C. office of Sidley Austin LLP.

On April 17, 2012, the Supreme Court announced its decision in Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk. This case involves drug manufacturer “use codes,” which are patent descriptions that brand name drug manufacturers submit to the Food and Drug Administration for use in determining whether a given generic drug, if approved for marketing, will infringe a patent held by a brand name manufacturer. The question in this case is whether a generic drug company can, in the course of a patent infringement suit brought by a brand name drug company, file a counterclaim challenging the accuracy of a particular use code.

In an opinion delivered by Justice Kagan, the Court unanimously held that a generic drug manufacturer may indeed challenge the use code in this manner. Justice Sotomayor filed a concurring opinion.

To discuss the case, we have Gregory Dolin, who is Associate Professor and Co-Director of the Center for Medicine and Law at the University of Baltimore School of Law.

On April 18, 2012 the Supreme Court announced its decision in Mohamad v. Palestinian Authority. The question in this case was whether organizations, and not merely natural persons, can be held liable for violations of the Torture Victim Protection Act (TVPA).

In an opinion delivered by Justice Sotomayor, the Court held unanimously that the term "individuals" in the Torture Victim Protection Act encompasses only natural persons, such that organizations cannot be held liable for violations of the TVPA. Justice Scalia joined the majority opinion in all except Part III-B, and Justice Breyer filed a concurring opinion.

To discuss the case, we have Eugene Kontorovich, who is a professor at the Northwestern University School of Law.

On April 16, 2012, the Supreme Court heard oral argument in Christopher v. SmithKline Beecham Corp. This case presents two questions: first, whether courts must defer to the Department of Labor’s interpretation of its regulations addressing the “outside salesman” exemption from the overtime requirements imposed on employers by the Fair Labor Standards Act; and second, whether pharmaceutical sales representatives, who cannot themselves sell prescription drugs, are considered “outside salesmen” and thus not entitled to overtime pay under the Act.

To discuss the case, we have Anthony Caso, who is an Associate Professor at Chapman University School of Law.

On April 2, 2012 the Supreme Court announced its decision in Rehberg v. Paulk. The question in this case was whether a person who served as a “complaining witness” in a grand jury proceeding, and was later accused of presenting false testimony, was entitled to the same absolute immunity from suit that protects a witness who testifies at trial.

In an opinion delivered by Justice Alito, the Court unanimously held that the a grand jury witness is entitled to the same immunity as a trial witness; namely, absolute immunity from any civil rights claim that is based on the witness’ testimony.

To discuss the case, we have William Thro, who is University Counsel and Associate Professor of Constitutional Studies at Christopher Newport University, and the former Solicitor General of Virginia (2004-08).

On March 20, 2012 the Supreme Court announced its decision in Martinez v. Ryan. The question in this case was whether the failure of a state prisoner’s attorney to raise, in state collateral review proceedings, a claim of ineffective assistance of counsel at trial bars a federal court from considering the claim on subsequent federal habeas review.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 7-2 that such a “procedural default” does not bar a federal habeas court from considering a substantial claim of ineffective assistance at trial if, in the initial collateral review proceeding, there was no counsel or counsel in that proceeding was ineffective. The Court therefore reversed the lower court’s ruling to the contrary and remanded the case for further proceedings. Justice Kennedy’s opinion for the Court was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

To discuss the case, we have Ward Campbell, who is the Supervising Deputy Attorney General at the California Department of Justice.

On March 20, 2012, the Supreme Court announced its decision in Coleman v. Maryland Court of Appeals. The question here was whether Congress, in passing the “self-care” provision of the Family and Medical Leave Act, validly abrogated the sovereign immunity of states. Under the self-care provision, a state worker may sue if the state interferes with the worker’s statutory right to a certain amount of leave due to a personal, debilitating health condition. Here, the lower courts had dismissed such a lawsuit.

By a vote of 5-4 the Court affirmed the judgment of the lower courts, but did so without a majority opinion. Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito, filed a plurality opinion concluding that sovereign immunity barred the state worker’s suit. Justice Thomas also filed a separate concurring opinion. Justice Scalia filed an opinion concurring in the judgment, but relying upon a different rationale than the plurality. Justice Ginsburg filed a dissenting opinion in which Justice Breyer joined, and in which Justices Sotomayor and Kagan joined as to all except footnote one.

To discuss the case, we have Elizabeth Price Foley, who is a Professor at the Florida International University College of Law.

On April 2, 2012 the Supreme Court announced its decision in Florence v. Board of Chosen Freeholders. The question in this case was whether the Fourth Amendment permits the government to conduct a visual strip search of any person who is admitted to jail, even when there is no reasonable basis for suspecting that the person has hidden weapons or contraband.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the government may conduct a visual strip search of any person who is to be admitted to the general population of a jail. The Chief Justice, as well as Justices Scalia and Alito, joined Justice Kennedy’s opinion in full. Justice Thomas joined that opinion as to all except Part IV. The Chief Justice and Justice Alito also wrote separate concurring opinions. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.

To discuss the case, we have Sarah Hart, who is a prosecutor in Philadelphia.

On March 26, 2012 the Supreme Court announced its decision in Zivotofsky v. Clinton (also known as M.B.Z. v. Clinton). This case presented two questions concerning U.S. citizens born in Jerusalem: (1) whether courts can enforce a federal statute directing the Secretary of State to, if requested, record the birthplace of such citizens on passports and consular reports as “Israel”; and (2) whether that statute improperly interferes with the President’s constitutional authority to recognize foreign sovereigns. The lower appellate court dismissed the case on the grounds that these issues presented a nonjusticeable “political question.”

By a vote of 8-1 the Supreme Court vacated the appellate court’s decision and remanded the case for further proceedings. In an opinion joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan, Chief Justice Roberts indicated that federal courts “are fully capable of determining whether [the] statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.” Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Breyer joined as to Part I. Justice Alito filed an opinion concurring in the judgment, and Justice Breyer filed a dissenting opinion.

To discuss the case, we have John Elwood, who is a partner at Vinson & Elkins’s appellate group.

On March 28, 2012, the Supreme Court announced its decision in Sester v. U.S. The question in this case was whether a federal court can order that a federal criminal sentence begin to run after the criminal defendant finishes serving an anticipated state sentence that that has not yet been imposed by the state court.

In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that a federal court has discretion to impose such a sentence, and affirmed the judgment of the lower courts. Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Ginsburg.

To discuss the case, we have Allison Larsen, who is an Assistant Professor of Law at William and Mary Law School.

On March 26, 2012, the Supreme Court announced its decision in Credit Suisse Securities v. Simmonds. The question in this case was whether, under the Securities and Exchange Act of 1934, the two-year time limit on filing lawsuits to force a corporate insider to disgorge “short swing” profits only begins to run when the insider files the disclosure statement required by the Act. The U.S. Court of Appeals for the Ninth Circuit had ruled that the limitations period was tolled--and therefore did not begin to run--until the disclosure statement was filed.

In an opinion delivered by Justice Scalia and joined by all other Justices except the Chief Justice (who took no part in the consideration or decision of the case), the Court held that, even assuming the two-year limitations period could be extended, the Ninth Circuit erred in determining it was tolled until the disclosure statement was filed. The Court further indicated that it was divided 4-4 on whether the Ninth Circuit erred in rejecting the claim below that the two-year time limit created a “period of repose” not subject to equitable tolling. As a result, the Court affirmed that determination without precedential effect, but otherwise vacated the Ninth Circuit ruling and remanded the case for further proceedings.

To discuss the case, we have Deanne Maynard and Jordan Eth, who are both Partners and Morrison & Foerster, LLP.

On March 28, 2012 the Supreme Court announced its decision in Federal Aviation Administration v. Cooper. This case involves the Privacy Act, which governs the manner in which executive branch agencies collect, use and disseminate records containing information about individuals. The Act authorizes an award of money damages to an individual who establishes that government misuse of such records was intentional or willful and resulted in the individual suffering “actual damages.” The question here was whether mental and emotional injuries qualify as “actual damages” under the Privacy Act.

In an opinion delivered by Justice Alito, the Court held by a vote of 5-3 that mental and emotional distress does not constitute “actual damages” under the Privacy Act. Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined Justice Alito’s opinion. Justice Sotomayor field a dissenting opinion, which was joined by Justices Ginsburg and Bryer. Justice Kagan did not participate in the consideration or decision of the case.

To discuss the case, we have Richard Peltz-Steele, who is an Associate Professor at the University of Massachusetts School of Law-Dartmouth.

On March 28, 2012, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act. Both cases raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives. This is commonly referred to as a question of severability.

Both cases further raise the question whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion. That issue will be the subject of a separate podcast.

To discuss the issue of severability, we have David Rivkin, who is a Partner at Baker Hostetler, and Ian Millhiser, who is a policy analyst at the Center for American Progress.

On March 21, 2012 the Supreme Court announced its decisions in Lafler v. Cooper and Missouri v. Frye. The questions in both cases revolved around what happens when a criminal defendant receives deficient legal advice. In Lafler v. Cooper, the Court considered whether a criminal defendant who rejects a favorable plea offer based on his lawyer’s advice and later is convicted and received a harsher sentence can seek to overturn that sentence on the grounds that his attorney was unconstitutionally deficient. Missouri v. Frye considered whether a criminal defendant whose lawyer failed to communicate a plea offer from the prosecution can successfully claim ineffective assistance of counsel if he is later convicted and sentenced more harshly under a less favorable plea agreement.

In Lafler v. Cooper, the Court vacated and remanded the judgment of the lower court, holding by a vote of 5-4 that a criminal defendant who (a) rejects a plea offer based on legal advice so deficient that it violates the Sixth Amendment, and (b) later is convicted at trial and receives a harsher sentence, can (c) seek reconsideration of his sentence if he can show a reasonable probability that, but for the ineffective assistance of counsel, (1) the plea agreement would have been presented to and accepted by the court, and (2) the subsequent conviction and sentence (or both) under that plea agreement would have been less severe than the judgment and sentence that were actually imposed. Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion that was joined by Justice Thomas in full and by the Chief Justice as to all except Part IV, and Justice Alito filed a separate dissenting opinion.

The Court likewise vacated and remanded the judgment of the lower court by a vote of 5-4 in Missouri v. Frye, holding that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right to notice from one’s attorney of the terms of a plea offer from the prosecution. Failure to convey such terms to the defendant violates that right. To obtain relief, however, the defendant must still establish a reasonable probablility that, had he received effective assistance of counsel, (a) the defendant would have accepted the plea offer, (b) the resulting plea agreement would have been entered by the court, and (c) that agreement would have resulted in a plea to a lesser charge or a lighter sentence than was actually imposed. Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, filed a dissenting opinion.

To discuss the cases, we have Kent Scheidegger, who is the Legal Director of the Criminal Justice Legal Foundation.