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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at
220 Episodes
On April 29, 2019, the Supreme Court decided Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity. In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Gary Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed their complaint for lack of subject-matter jurisdiction. On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception,” and immunity therefore applied. The Supreme Court unanimously reversed the judgement of the Eleventh Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Kagan, the Court held that the TVA’s sue-and-be-sued clause, which waives sovereign immunity, is not subject to a discretionary-function exception. Rather, on remand the court below should consider whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, immunity does not apply. If it is governmental, immunity may apply--but only if prohibiting the kind of suit in question is necessary to avoid grave interference with the governmental function at issue. To discuss the case, we have Richard Peltz-Steele, Professor at the University of Massachusetts School of Law.
On March 26, 2019, the Supreme Court heard argument in Rucho v. Common Cause and Benisek v. Lamone, two cases involving gerrymandering.Rucho v. Common Cause involves whether North Carolina’s 2016 congressional map involves unconstitutional gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I. In March 2017, a three-judge district court ruled that North Carolina’s 2016 Congressional Redistricting Plan constituted unconstitutional gerrymandering because the state General Assembly improperly relied on “political data” to draw districts to increase the number of Republicans in North Carolina’s congressional delegation. The court ordered new maps to be drawn for use in future elections. Following the court’s instructions, the General Assembly drew a new congressional district plan according to criteria identified by the Joint Select Committee on Redistricting. One such criterion was “partisan advantage,” which, relying on population data and political data, would “make reasonable efforts to construct districts in the 2016 plan to maintain current partisan makeup of North Carolina’s congressional delegation.” The plan was approved by the committee, the North Carolina Senate and North Carolina House of Representatives, all along party lines. Others filed objections to the plan and asked that the court reject it as partisan gerrymandering. The court held that the plan constituted unconstitutional partisan gerrymandering, enjoined North Carolina from using the plan in any election after November 6, 2018, and directed the parties to submit briefs relating to whether the court should allow the plan to be used in the 2018 election and allow the General Assembly a third opportunity to draw a plan. Although the U.S. Supreme Court vacated the district court judgment and remanded the case for reconsideration in light of its 2018 decision in Gil v. Whitford on standing, the district court subsequently concluded that the plaintiffs had standing and reasserted its earlier determination on the merits. In August 2018, the district court concluded that there was not enough time to review a new plan before the seating of the new Congress in 2019 as well as determined that a new schedule for elections would interfere with North Carolina’s electoral machinery. Thus, the court declined to enjoin use of the plan in the November 2018 election. The Supreme Court thereafter granted certiorari to consider (1) whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander. Lamone v. Benisek involves Maryland’s 2011 redistricting plan, particularly whether the State redrew the boundary of one district to burden Republicans. Following the 2010 census, Maryland redrew the lines of its congressional districts and state legislative districts. The Sixth Congressional District had grown by approximately 10,000 residents, which required adjustment of the district boundaries. If only a slight adjustment for population had been applied, the district would have been unquestionably Republican. Instead of this slight adjustment, the plan swapped half the population of the former Sixth District with about 24,000 voters. The change created in effect a difference in 90,000 Democratic votes. Plaintiffs argued that in enacting 2011 law, the State deliberately diluted Republican votes in violation of the First Amendment. A three-judge district court agreed with plaintiffs, enjoining the State from using the 2011 congressional redistricting plan after the 2018 congressional election and requiring it promptly to adopt a new plan for use in the 2020 congressional elections. The Supreme Court granted certiorari to consider (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.To discuss the cases, we have Derek Muller, Associate Professor at Pepperdine University School of Law.
On April 23, 2019, just one week after argument, the Supreme Court decided Emulex Corp. v. Varjabedian, a case involving a circuit split regarding Section 14(e) of the Securities Exchange Act of 1934 and whether it supports an inferred private right of action based on negligence or scienter. Emulex Corp. is a computer component seller that entered into a merger agreement with Avago Technologies Wireless Manufacturing. In the merger agreement, Avago offered to pay $8 per share, which reflected a premium of 26.4% on the price of Emulex stock the day before the merger was announced. Emulex filed with the Commission a public recommendation statement supporting the tender offer, recommending that Emulex shareholders tender their shares and noting that that Emulex shareholders would receive a premium on their stock. The statement also included a summary of a “fairness opinion” generated by Goldman Sachs, indicating its view that the tender offer was fair to shareholders. Omitted from the recommendation statement, however, was a one-page premium analysis by Goldman indicating that the takeover premium offered by Avago was actually below average, though within the normal range for mergers involving similar companies. The merger went forward, but thereafter Gary Varjabedian and other Emulex shareholders collectively brought suit against Emulex under Section 14(e) of the Securities Exchange Act, alleging that omission of the premium analysis page rendered the recommendation statement materially misleading. Emulex moved to dismiss, arguing that the facts alleged by plaintiffs did not sufficiently support the scienter required under Section 14(e). The district court agreed and ruled for Emulex but the U.S. Court of Appeals for the Ninth Circuit reversed. Although five other federal circuit courts of appeals had interpreted Section 14(e) to require scienter, the Ninth Circuit reasoned that the better reading of the provision in light of its legislative history required merely a showing negligence and not scienter. The Supreme Court granted certiorari to address whether Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer. During oral argument, however, the Justices questioned whether certiorari had properly been granted, as the courts below had not thoroughly considered whether Section 14(e) authorizes a private right of action at all. Indeed, just over one week after oral argument, the Supreme Court issued a per curiam opinion dismissing the writ of certiorari as improvidently granted. To discuss the case, we have Cory Andrews, Senior Litigation Counsel at the Washington Legal Foundation.
On January 8, 2019, the Supreme Court decided Henry Schein Inc. v. Archer and White Sales Inc., a case involving the “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator. Archer and White Sales is a dental distributor that entered into a business agreement with Pelton and Crane, a dental equipment manufacturer. Henry Schein, Inc. is the successor-in-interest to Pelton and Crane. The business relationship grew tense, and White Sales sued Henry Schein, alleging violations of federal and state antitrust law, seeking monetary and injunctive relief. The contract provided for arbitration of any dispute, except for certain actions seeking injunctive relief. Schein asked the court to refer the matter to arbitration, but Archer and White contended that the matter was not arbitrable because it sought injunctive relief. Schein argued that an arbitrator should decide that question. The district court sided with Archer and White, finding the basis for Schein’s arbitration request to be “wholly groundless.” Schein appealed to the U.S. Court of Appeals for the Fifth Circuit, which affirmed the judgment of the district court. The Supreme Court granted certiorari, unanimously vacating the judgment of the Fifth Circuit and remanding the case. In an opinion delivered by Justice Kavanaugh, the Supreme Court rejected the “wholly groundless” exception to the general rule that courts must enforce arbitration contracts according to their terms. Such an exception, the Court held, is inconsistent with the Federal Arbitration Act and the Court’s own precedent. On April 24, 2019, the Supreme Court decided Lamps Plus, Inc. v. Varela, a case considering whether an ambiguous agreement, in this case an employment contract, can provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. In 2016, a hacking scheme revealed the tax information of about 1,300 employees of Lamps Plus, Inc. Frank Varela, one of the employees affected by this hack, brought a class action suit in federal district court against the company. Lamps Plus responded by seeking to compel individual arbitration, relying on the terms of Varela’s employment contract. The district court rejected Lamps Plus’ request, instead authorizing arbitration on a classwide basis and dismissing Varela’s claims. The U.S. Court of Appeals for the Ninth Circuit affirmed that judgment, determining that the Supreme Court’s 2010 decision in Stolt-Nielsen v. AnimalFeeds Int’l Corp--that a court may not compel classwide arbitration when an agreement is silent on the availability of such arbitration--did not control here because Varela’s employment agreement was ambiguous rather than silent regarding arbitration. The Supreme Court granted certiorari, and by a vote of 5-4 reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the Supreme Court held that under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. The Chief Justice’s majority opinion was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, joined by Justices Breyer and Sotomayor. Both Justices Breyer and Sotomayor filed dissenting opinions. Justice Kagan filed a dissenting opinion, in which joined Justices Ginsburg and Breyer, and in which Justice Sotomayor joined as to Part II.
On February 26, 2019, the Supreme Court decided Nutraceutical Corp. v. Lambert, a case considering whether Federal Rule of Civil Procedure 23(f), which imposes a 14-day deadline for appealing from a grant or denial of class-action certification, is subject to equitable tolling. Troy Lambert filed a class action lawsuit against Nutraceutical Corp., a drug manufacturer, alleging violations of U.S. Food and Drug Administration requirements and various California consumer protection statutes. The district court initially certified the class action, but following reassignment of the case to a new judge and discovery raising concerns about Lambert’s classwide damages model, Nutraceutical moved to decertify the class and the district court granted the motion on February 20, 2015. Under Rule 23(f), Lambert had fourteen days from the date the motion was granted to seek permission in the Court of Appeals to appeal the order. Lambert indicated on March 2 that he intended to file a motion for reconsideration, but did not do so until March 12, 2015, which fell within a deadline set by the district court but beyond 14-day window specified in Rule 23(f). The district court denied Lambert’s motion, and only then did he seek permission in the U.S. Court of Appeals for the Ninth Circuit to appeal the class decertification. Nutraceutical objected that Lambert’s petition was untimely under Rule 23(f). The Court disagreed, reasoning that Rule 23(f) was non-jurisdictional and the deadline could therefore be equitably tolled given Lambert’s general diligence in following the district court’s instructions. Reaching the merits, the Ninth Circuit then reversed the decertification order on the grounds that the district court had abused its discretion. Nutraceutical successfully petitioned for certiorari. In an opinion written by Justice Sotomayor, the Supreme Court unanimously reversed the judgment of the Ninth Circuit and remanded the case, holding the Rule 23(f) is not subject to equitable tolling. To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.
On March 18, 2019, the Supreme Court heard argument in Virginia House of Delegates v. Bethune-Hill, a case considering racial gerrymandering claims in the the redistricting of Virginia House of Delegates districts. In 2011, the Virginia House of Delegates redrew the 100 Virginia House of Delegates districts. Under the plan, each district was required to have 80,000 residents. Under the 2001 plan, there were twelve districts with a majority black voting age population (BVAP). These districts did not meet the 80,000 resident requirement for the 2011 plan, which meant that “any new plan required moving significant numbers of new voters into these districts in order to comply with the principle one person, one vote.” Title 52 U.S.C. § 10304--section 5 of the Voting Rights Act (VRA)--required that any new plan not “diminish the number of districts in which minority groups can ‘elect their preferred candidates of choice.’” To ensure that at least twelve districts remained, the House of Delegates proposed that the twelve majority-minority districts were required to have a minimum 55% BVAP in the 2011 plan. The bill was passed and signed into law. In 2014, registered voters in the twelve majority-minority districts filed suit against the Virginia State Board of Elections, claiming racial gerrymandering in violation of the Fourteenth Amendment. In 2015 the three-judge district court ruled that race was not a predominant factor in the construction of 11 of the 12 challenged districts, but did predominate in one district, (District 75), though in that situation strict scrutiny was satisfied. In 2017, the U.S. Supreme Court affirmed the district court’s judgment with respect to District 75 but vacated the judgment as to the other 11 districts and remanded the case, concluding that the district court had relied on a flawed standard when assessing whether race predominated. On remand, the three-judge district court concluded that race predominated in the drawing of all 11 districts and that none satisfied strict scrutiny. The Virginia House of Delegates appealed to the Supreme Court for further review, raising various concerns regarding the district court’s predominance and strict scrutiny analyses, as well evidentiary issues. For their part the appellees sought dismissal of the appeal for lack of jurisdiction, and the Court directed the parties to address whether the House of Delegates lacked standing to bring this appeal. To the discuss the case, we have Scott Keller, Partner at Baker Botts.
On March 25, 2019, the Supreme Court heard argument in The Dutra Group v. Batterton, a case considering whether punitive damages may be awarded in a general maritime action for unseaworthiness. Christopher Batterton was a deckhand on a ship owned by the Dutra Group. In the course of Batterton's work, a hatch cover that covered a compartment storing pressurized air blew open and crushed Batterton’s left hand. The hatch cover allegedly blew because of the ship's lack of a mechanism for exhausting over-pressurized air. Batterton was permanently disabled because of the injury. He brought suit against Dutra Group in federal district court in California, seeking (among other things) punitive damages for unseaworthiness. Dutra Group moved to dismiss the claim for punitive damages, arguing that although the U.S. Court of Appeals for the Ninth Circuit had allowed such damages in its 1987 decision Evich v. Morris, that precedent had been implicitly overruled by the Supreme Court's 1990 decision in Miles v. Apex Marine Corp, which held that the parent of a deceased seaman could not recover loss of society damages in a general maritime action. The district court denied the motion and the Ninth Circuit affirmed, concluding that punitive damages differed materially from loss of society damages, and that, under the Jones Act, Evich remained good law: punitive damages are awardable to seamen for their own injuries in general maritime unseaworthiness actions. That ruling, however, put the Ninth Circuit in direct conflict with a contrary ruling by the U.S. Court of Appeals for the Fifth Circuit on the same issue, and the Supreme Court subsequently granted certiorari to address whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel. To the discuss the case, we have Daryl Joseffer, Senior Vice President and Chief Counsel for Appellate Litigation at the U.S. Chamber Litigation Center.
On March 19, 2019, the Supreme Court decided Washington State Department of Licensing v. Cougar Den, Inc., a case involving the 1855 Treaty between the United States and the Yakama Nation of Indians, and whether the “right to travel” granted within the treaty preempts the state’s fuel tax on the importation of fuel. Cougar Den, Inc. is a wholesale fuel importer that is owned by a member of the Yakama Nation. Cougar Den imports fuel from Oregon via Washington public highways to the Yakama Reservation where it is sold to Yakama-owned gas stations within the reservation. In 2013, the Washington State Department of Licensing, because Cougar Den imports the gas by using Washington public highways, assessed the importer $3.6 million in taxes, penalties, and licensing fees. Cougar Den appealed to the Washington Superior Court, claiming that the 1855 Treaty between the United States and the Yakama Nation preempts this tax, since it reserves, among other things, the “right, in common with citizens of the United States, to travel upon all public highways.” The Washington Superior Court held that the tax was preempted by the Treaty, and the Washington Supreme Court affirmed that judgment on appeal. Washington then petitioned the U.S. Supreme Court for certiorari, arguing that the 1855 treaty does not forbid the State from imposing a state-wide tax on all fuel importers who transport fuel via ground transportation, including those members of the Yakama Nation. The Supreme Court granted certiorari to consider whether the 1855 treaty preempts this importation tax on members of the Yakama Nation. By a vote of 5-4, the Supreme Court affirmed the judgment of the Supreme Court of Washington, but without a majority opinion. Justice Breyer, joined by Justices Sotomayor and Kagan, concluded for a plurality that “the ‘right to travel’ provision of the 1855 Treaty between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation.” Justices Gorsuch and Ginsburg filed an opinion concurring in the judgment--thereby providing the necessary additional votes to affirm the lower court--but on a different rationale. Unchallenged factual findings as to the Yakamas’ understanding of the 1855 treaty terms, they reasoned, indicate that the treaty “does not permit encumbrances on the ability of tribal members to bring their goods to and from market.” Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. Justice Kavanaugh also filed a dissenting opinion, which was joined by Justice Thomas. To discuss the case, we have Tom Gede, Principal at Morgan Lewis.
On March 4, 2019, the Supreme Court decided Rimini Street Inc v. Oracle USA Inc., a case involving the scope of a federal district court’s ability to award “full costs” to a party in a copyright dispute according to 28 U. S. C. §§ 1821 and 1920. Oracle sued Rimini Street for copyright infringement in federal district court and won a multimillion dollar jury award. After judgment, the District Court ordered Rimini Street to pay Oracle $12.8 million for litigation expenses such as expert witnesses, e-discovery, and jury consulting. On appeal the U.S. Court of Appeals for the NInth Circuit rejected Rimini’s challenge to this award of costs. Although some of the expenses did not fit within the categories of costs authorized by the general federal statute applicable to such awards--28 U. S. C. §§ 1821 and 1920--the Ninth Circuit relied on language in the Copyright Act at 17 U. S. C. § 505, which gives federal district courts discretion to award “full costs” to a party in copyright litigation. The Supreme Court thereafter granted certiorari to resolve a split among the federal circuit courts of appeals on this issue: whether the term “full costs” in § 505 authorizes awards of expenses other than those costs identified in §§ 1821 and 1920. In an unanimous decision, delivered by Justice Kavanaugh, the Court held that a federal district court’s discretion to award “full costs” to a party in copyright litigation pursuant to 17 U. S. C. §505 is limited to the six categories specified in the general costs statute codified at 28 U. S. C. §§1821 and 1920. To discuss the case, we have James Heilpern, Law and Linguistics Fellow at BYU Law.
On March 4, 2019, the Supreme Court decided Fourth Estate Public Benefit Corp. v., a case involving a split among the Courts of Appeals regarding when a copyright owner may initiate a suit for infringement in federal court. Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, was required to remove all Fourth Estate content from its website before cancelling its account. Wall-Street cancelled its account but continued to display Fourth Estate articles, and Fourth Estate filed suit for copyright infringement against and its owner in federal district court. At the time Fourth Estate filed suit, it had submitted applications with the Registrar of Copyrights, but the Registrar had not yet acted upon them. moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but noted a split among the federal courts of appeals on the issue: whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach). Granting certiorari, the Supreme Court unanimously affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Ginsburg, the Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.
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