December 2
New York State Rifle and Pistol Association Inc. v. City of New York, New York
No. 18-280, 2d Cir.
Preview by Michael Fischer, Online Editor
In the State of New York, an individual may not possess a firearm without a license. In order to keep a handgun in one’s home, New York citizens must obtain a “premises” license for their specific residence. Under New York City rules, the handgun may not be removed from the premises except under limited circumstances. One circumstance where removal is permissible is transporting handguns directly to and from authorized shooting ranges in New York City. Plaintiffs brought suit in federal district court seeking a declaratory judgement that the restrictions violated their Second Amendment rights.
The district court found that any burdens imposed on the plaintiffs’ rights were modest and that while the New York law regulates their Second Amendment rights, it does not restrict them. The court also found that the law did not violate the fundamental right to travel or the dormant Commerce Clause. The district court’s holding was affirmed by the Second Circuit Court of Appeals. Plaintiffs subsequently appealed to the United States Supreme Court, which granted certiorari on January 22, 2019. The issue before the Court is whether the New York statute banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violate the Second Amendment, the Commerce Clause, or the constitutional right to travel.
Petitioners argue that the New York statute directly interferes with their right to keep and bear arms and that Respondents, in defending the law, have characterized this right too narrowly. Reply Brief for Petitioners at 2–7, N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, No. 18-280 (U.S. filed Sept. 4, 2019). Furthermore, Petitioners assert that Respondent’s public safety justification cannot survive strict scrutiny since no evidence exists demonstrating that transporting handguns outside of New York City poses an appreciable risk to the public. Id. at 14. Finally, Petitioners claim that the statute violates the Commerce Clause by discriminating against out of state commerce, and implicates the right to travel by directly burdening the egress of certain gun owners. Id. at 21–23.
Respondents counter that Petitioners’ case has been rendered moot by changes in state law which now allow gun owners to transport handguns to shooting ranges outside of New York City. Brief of Respondents at 10, N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, No. 18-280 (U.S. filed Aug. 5, 2019). Notwithstanding this point, Respondents allege that the previous statute did not violate the Second Amendment since regulations of the location and manner of firearms training have existed throughout the country’s history. Id. This, Respondents argue, demonstrates that the law did not impose meaningful restrictions on Petitioner’s Second Amendment rights. Id. at 10–11. Lastly, Respondents argue that the regulatory regime did not impermissibly control transactions outside of New York State nor did it penalize individuals for leaving the state. Id. at 11–12.
This is the first major challenge to state legislation concerning the scope of the Second Amendment since Justices Gorsuch and Kavanaugh joined the Court. In light of the relative infrequency of Second Amendment decisions from the Court, the holding in this case will be instructive as to whether the Court will apply an increasingly expansive interpretation of Second Amendment rights.
Georgia v. Public.Resource.Org Inc.
No. 18-1150, 11th Cir.
Preview by Amy Orlov
This case concerns the application of the government edicts doctrine to the Official Code of Georgia Annotated. The government edicts doctrine holds that government proclamations, such as judicial decisions and legislative enactments, are not protected under U.S. copyright law. As a consequence, these writings will not be accepted nor processed for copyright registration. This doctrine derives from the public policy notion that citizens should have unrestrained access to the laws that govern them.
The Official Code of Georgia Annotated is a compilation of Georgia’s statutes, accompanied by various annotations, consisting of “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.” Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1233 (11th Cir. 2018). While the annotations are a part of the official code, they do not themselves hold the force of law. The annotations are prepared through a partnership between a private publishing company and the State of Georgia through the Code Revision Commission, a body of Georgia elected officials and members of the State Bar of Georgia.
In 2015, the State of Georgia brought a copyright infringement lawsuit against the website Public.Resource.Org for republishing 186 volumes of the Official Code of Georgia Annotated on its website, which could then be viewed by the public for free. The district court ruled for Georgia and the Commission, finding that because the annotations lack the force of law, they can be copyrighted. Thus, the district court held that Public.Resource.Org’s actions constituted infringement. On appeal, the Eleventh Circuit reversed, holding that all of the Official Code of Georgia, including the annotations, constituted public domain material because the annotations “represent a direct exercise of sovereign authority” and are “attributable to the constructive authorship of the People.” Id. at 1254, 1255.
The question on appeal to the Supreme Court is “[w]hether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.” Petition for a Writ of Certiorari at I, Georgia v. Public.Resource.Org, Inc., No. 18-1150 (U.S. filed Mar. 1, 2019). This will be the first time that the Supreme Court considers the government edicts doctrine in more than a century. Georgia argues that protecting the annotations as copyright material is necessary in order to incentivize third-party publishing companies to assist in both producing annotations and distributing the official code. Public.Resource.Org argues that the annotations should not be copyrighted in order to allow the public greater access to the law without having to pay fees.
The Supreme Court’s decision could have broader implications as there are currently several other states that hold copyrights for annotations in their general codes. If the Court rules in favor of Public.Resoure.Org, those copyrights could be at risk of invalidation.
December 3
Rodriguez v. Federal Deposit Insurance Corp.
No. 18-1269, 10th Cir.
Preview by Sean Lowry, Online Editor*
A parent corporation and its subsidiaries may elect to file a single, consolidated federal income tax return to the Internal Revenue Service (“IRS”). The benefits of filing a consolidated return include lower tax administration costs and the ability to maximize tax benefits across the consolidated group in the current tax year. The parent files the consolidated return and any IRS refunds are made “directly to and in the name of” the parent corporation. 26 C.F.R. § 1.1502-77(c), (d)(5). When making this procedural election, the group members typically enter into a tax allocation agreement (“TAA”), either explicitly or implicitly, to allocate tax liabilities and benefits between themselves.
Courts generally agree that the members of a consolidated group can allocate tax liability or benefits as they wish under the explicit terms of a TAA, and that an agreement can be implied as a matter of state law. Absent a clear agreement, though, the circuits are split on how a refund to a consolidated group arising from losses from one subsidiary should be legally allocated between the parent and that subsidiary. The Fifth, Ninth, and Tenth Circuits apply the common law rule that emerged from In re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262 (9th Cir. 1973). Under the Bob Richards rule, a parent is under a duty to transfer the entirety of the refund to the subsidiary that caused the underlying loss, unless the parties have entered into an agreement unambiguously stating otherwise. In contrast, the Second, Third, Sixth, and Eleventh Circuits do not apply the Bob Richards rule and instead use state law to fill in any gaps in the TAA.
In Rodriguez, the members of a consolidated group in the banking industry entered into an explicit TAA, whereby each member bank’s share of a refund would be the amount the subsidiary would have received by filing a separate return but no more than the refund received by the parent holding company. In 2008, the parent filed a refund claim of $4 million, which was entirely attributable to the losses of one subsidiary bank. Federal regulators closed down the subsidiary, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. The parent later filed for bankruptcy. Then, the IRS issued the $4 million refund. The FDIC filed a claim alleging that it, as receiver for the subsidiary, was the owner of the refund. The trustee for the parent’s bankruptcy estate, Rodriguez, filed a competing claim for the refund.
After wins for each side at the bankruptcy and district court levels, the Tenth Circuit ruled in favor of the FDIC. The Tenth Circuit found that the text of the TAA was ambiguous as to the legal ownership of any tax refunds. However, the court concluded that awarding the refund to the subsidiary bank would better effectuate the intent of the parties because a clause in the TAA said that any ambiguity should be resolved “in favor of any insured depository institution.” In re United W. Bancorp, Inc., 914 F.3d 1262, 1274 (10th Cir. 2019).
Petitioner argues that the Tenth Circuit misinterpreted the relationship between the parent and subsidiary. Instead, it argues, the TAA established a debtor-creditor relationship between the parent and subsidiary, respectively, and that any refund paid to the parent would be its property and the FDIC would have an unsecured, nonpriority claim for its share of the refund. (This was the conclusion of the bankruptcy court.) Petitioner also argues that the Tenth Circuit’s analysis effectively follows the Bob Richards rule and the Court should use the instant case as a vehicle for striking down the judge-made doctrine. Respondent, FDIC, with the support of the U.S. Solicitor General, argues that Petitioner misconstrues the Tenth Circuit’s analysis, and maintains that it engaged in sound analysis of state contract law and did not rely on the Bob Richards rule. Respondent’s brief does not defend the Bob Richards rule, but instead argues that the facts of the instant case do not require resolution of the circuit split.
The Court’s ruling in Rodriguez could affect how tax agreements between corporate affiliates are drafted.
Atlantic Richfield Co. v. Christian
No. 17-1498, Mont.
Preview by Mary Crowell
For almost 100 years, the Anaconda Copper Mining Company emitted thousands of tons of toxic metals including arsenic, lead, and other heavy metals that blanketed a nearby town: Opportunity, Montana. These heavy metals contaminated soil and tainted water with arsenic. Atlantic Richfield Company (“ARCO”) bought the Anaconda Company in 1977, acquiring both the smelting facility and its liability for decades of toxic contamination.
Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), the Environmental Protection Agency (“EPA”) lists priority sites for hazardous waste cleanup (called Superfund sites) and then manages the remediation process. The EPA designated the 300 square-mile area surrounding the Anaconda Company smelter site, including land owned by residents of Opportunity, Montana, a Superfund site in 1983. Over the past 35 years, the EPA has managed the site’s cleanup.
Notwithstanding this cleanup effort, some residential property owners inside the Superfund site (the “Landowners”) have been unsatisfied.
In 2008, the Landowners filed suit against ARCO in Montana State Court seeking restoration damages to fund the removal of more pollution from their property. In addition to remediation work already required by the EPA, experts hired by the residents recommended removing two feet of contaminated topsoil from yards and installing treatment wells to remove arsenic from the groundwater.
In the state district court, both parties moved for partial summary judgment on the claim for restoration damages. After the district court denied ARCO’s motion, the Montana Supreme Court granted ARCO’s writ for supervisory control of the case. ARCO argued that the Landowners’ claim constituted a “challenge” to the EPA’s remedy. “Challenges” to a CERCLA cleanup are barred from federal court jurisdiction by § 113(h) of CERCLA. Regardless of whether § 113(h) actually bars states from hearing such claims, the court held that the Landowners’ claim does not challenge the cleanup because it did not “seek[] to compel EPA to do, or refrain from doing, any action.” Atlantic Richfield Co. v. Mont. Second Judicial Dist. Court, 408 P.3d 515, 522 (Mont. 2017). Instead, the restoration damages would be a concurrent state law remedy to EPA’s remedy. ARCO also unsuccessfully argued that the Landowners were “potentially responsible parties” under CERCLA and that CERCLA would preempt Landowners’ claim. Ultimately, the Montana Supreme Court affirmed the district court’s decision to deny ARCO’s motion for summary judgment. Id. at 523.
The Supreme Court granted certiorari on June 10, 2019. Three main issues remain in the case: (1) whether this state law claim “challenges” the EPA’s remedy such that CERCLA bars the claim under § 113(h); (2) whether the Landowners are “potentially responsible parties” that would need EPA approval before conducting remediation activities; and (3) whether CERCLA preempts the Landowners’ attempt to restore land when that attempt conflicts with EPA’s prescribed remedy.
ARCO turns to § 113(b) in CERCLA to argue that all “controversies arising under” CERCLA, which are under exclusive federal jurisdiction, includes all § 113(h) “challenges” to an EPA remedy. Brief for Petitioner at 21, Atlantic Richfield Co. v. Christian, No. 17-1498 (U.S. filed Aug. 21, 2019). Here, the Landowners’ claim challenges EPA’s cleanup because the claim questions and contradicts remediation efforts already undertaken by the agency; therefore, this challenge would be under exclusive federal jurisdiction. Id. at 21–22. ARCO also argues that the Landowners are “potentially responsible parties” because they own land impacted by the hazardous waste. Id. at 22–23. Such parties must have EPA approval before taking any remedial action at a Superfund site. Id. Finally, ARCO argues that CERCLA preempts state law restoration damages because it is impossible to comply with both the state and federal remedy, and the restoration work would interfere with EPA’s cleanup efforts accomplished through carefully assigned statutory roles and responsibilities. Id. at 24–25.
The Landowners argue that § 113(h) only restricts federal jurisdiction over challenges to EPA orders, so state court claims are not barred. Response Brief for Gregory A. Christian, et al. at 15, Atlantic Richfield Co. v. Christian, No. 17-1498 (U.S. filed Oct. 15, 2019). Furthermore, the respondents argue that this claim does not “challenge” any EPA order—the Landowners do not raise CERCLA claims, nor do they require “proof EPA erred.” Id. at 15–16. The Landowners also argue that “potentially responsible parties” only describes property owners who face possible CERCLA liability. Id. at 16. Here, the Landowners cannot be at risk for liability because the statute of limitations has run. Id. Finally, the Landowners argue that CERCLA does not preempt their claim because ARCO can concurrently comply with restoration damages and CERCLA obligations, and the restoration would not be an obstacle to CERCLA’s aim, but rather an added obligation as a result of decades of pollution. Id. at 17.
December 4
Intel Corp. Investment Policy Committee v. Sulyma
No. 18-1116, 9th Cir.
Preview by Jalen LaRubbio
Under the Employee Retirement Income Security Act (“ERISA”), does a plaintiff have “actual knowledge” of a breach or violation when the defendant disclosed all of the relevant information to the plaintiff, but the plaintiff either chose not to read or could not recall having read the information?
Under ERISA, there is a six-year general limitations period, which applies unless the three-year limitations period comes earlier and the plaintiff has “actual knowledge of the breach or violation.” 29 U.S.C. § 1113(2). If applicable, the three-year limitations period runs from “the earliest date on which the plaintiff had actual knowledge.” Id.
Christopher Sulyma, an employee of Intel, was automatically enrolled in the company’s 401(k) plan and an additional retirement plan. Sulyma received quarterly account statements by mail, as mandated by ERISA, and also had access to “fact sheet” documents posted online, which included additional information regarding his plans. However, though Sulyma set up an account and visited the website periodically, he claims that he did not actually access the relevant fact sheets. Consequently, Sulyma alleges that he did not know that his plans were imprudently invested. He commenced this suit against Intel within ERISA’s general six-year limitations period.
In its motion to dismiss, Intel contended that the three-year limitations period should apply. Sulyma v. Intel Corp. Inv. Policy Comm., 909 F.3d 1069, 1072 (9th Cir. 2018). The district court agreed and granted summary judgment, finding that Sulyma had “actual knowledge.” Id. However, the Ninth Circuit unanimously reversed, holding that the plaintiff had to be “actually aware of the facts constituting the breach” for the three-year limitations period to apply. Id. at 1076. The Supreme Court granted certiorari to determine what constitutes “actual knowledge” under ERISA, and to resolve a circuit split that resulted from the Ninth Circuit’s ruling, which was contrary to the Sixth Circuit’s view in Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564 (6th Cir. 2010).
In its brief, Intel contends that, based on ERISA’s text, statutory structure, and purpose, a plan participant has actual knowledge of information that is disclosed to him, whether he chooses to read it or not. Brief for the Petitioners at 17, Intel Corp. Inv. Policy Comm. v. Sulyma, No. 18-1116 (U.S. filed Aug. 21, 2019). Accordingly, says Intel, “purely subjective cognition of a particular fact” is not necessary to establish “actual knowledge” under ERISA. Id. at 24. Further, Intel argues that a purely subjective rule would upset the balance that Congress has struck between the competing concerns of employee rights and employer burdens by “requiring individualized determinations of every plaintiff’s subjective state of mind.” Id. at 40.
In response, Sulyma argues that the “actual knowledge” provision’s plain text requires an inquiry into whether a plaintiff actually knows the facts constituting the breach, and that therefore, constructive knowledge through available disclosures is insufficient. Brief of Respondent at 17–18, Intel Corp. Inv. Policy Comm. v. Sulyma, No. 18-1116 (U.S. filed Oct. 21, 2019). Thus, Sulyma’s mere receipt of information on how to access a document does not provide him with “actual knowledge” of the document’s contents. Id. at 21–22. Sulyma maintains that along with its plain text, ERISA’s structure and history confirm his interpretation. Id. at 18–19.
Banister v. Davis
No. 18-6943, 5th Cir.
Preview by Megan Walden
In this case, the Court will determine whether a Federal Rules of Civil Procedure (“Federal Rules”) Rule 59(e) motion involving a habeas claim should be treated as a successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
In Gonzalez, the Supreme Court determined that a Federal Rule 60(b) relief from judgment motion that challenges a court’s previous judgment on a habeas claim or adds a new habeas claim should be treated as a successive habeas petition. The Fourth, Fifth, Eighth and Tenth Circuits have extended Gonzalez to Rule 59(e) motions to alter or amend a judgment, reasoning that this approach prevents petitioners from relitigating claims that district courts have already considered on their merits. The Third, Sixth, and Seventh Circuits have declined to extend Gonzalez to Rule 59(e) motions, reasoning that Rule 59(e) was designed to allow courts to correct their own errors before appeal, thereby avoiding unnecessary reversals and unfair results. These differences in approach have led to some confusion among habeas petitioners.
In 2002, Gregory Dean Banister was convicted of aggravated assault with a deadly weapon and sentenced to thirty years imprisonment. In 2014, Banister filed a habeas petition challenging his detention, raising more than fifty claims. The district court denied Banister’s petition on the merits and denied a Certificate of Appealability (“COA”).
Less than thirty days later, Banister filed a timely Rule 59(e) motion to alter or amend the district court’s judgement on the petition. The district court denied Banister’s motion to amend.
Thirty days later, but more than sixty days after the habeas petition’s initial denial, Banister filed a notice of appeal and an application for a COA in the district court. After the district court again considered and denied his application for a COA, Banister filed a timely application for a COA with the Fifth Circuit.
The Fifth Circuit determined that Banister’s notice of appeal was not timely because it was filed more than thirty days after the judgment and denied a COA based on jurisdiction. The Fifth Circuit noted that although Banister had filed a timely 59(e) motion, the motion was really as a successive habeas petition under Gonzalez. Therefore, unlike a typical Rule 59(e) motion, Banister’s motion did not toll the time for appeal. The Fifth Circuit determined that Banister therefore had missed his opportunity to appeal the denial of his habeas petition by waiting for judgement on the 59(e) motion.
Banister, appearing pro se, will argue that extending Gonzalez to 59(e) motions will lead to error, unfair results and even greater confusion among pro se petitioners, who reasonably will not expect the Federal Rules to contain unwritten exceptions for habeas petitions. The Government will argue that the Court’s reasoning regarding Rule 60(b) in Gonzalez applies equally to Rule 59(e) and that the extension of Gonzalez promotes efficiency in the courts.
December 9
Guerrero-Lasprilla v. Barr
No. 18-776, 5th Cir.
Preview by Sean Lowry, Online Editor*
In two consolidated cases, the Court will consider whether a request for equitable tolling, as it applies to statutory motions to reopen immigration removal proceedings, is judicially reviewable by an appellate court as a “question of law.”
Mr. Ovalles, a lawful permanent resident, was deported in 2004 after being convicted of an aggravated felony (attempted possession of drugs), pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227. In 2007, Mr. Ovalles moved to reopen his immigration proceedings after the Court held in Lopez v. Gonzales, 549 U.S. 47, 55–58 (2006), that attempted drug possession convictions were not aggravated felonies. Citing 8 C.F.R. § 1003.2(d), the Board of Immigration Appeals (“BIA”) denied Mr. Ovalles’ motion because he had already physically departed the United States.
In 2017, Mr. Ovalles moved to reopen his case again by citing Fifth Circuit decisions issued in 2012 and 2016 that held that the physical departure bar in § 1003.2 did not apply to motions to reopen and allowed equitable tolling of statutory deadlines. “Equitable tolling” is the principle that a statute of limitations will not bar a claim if the plaintiff, despite reasonable care and diligent efforts, did not discover the injury until after the statute of limitations period expired. The BIA again rejected his motion, finding that he did not demonstrate the requisite due diligence to warrant equitable tolling because he waited eight months after the 2016 decision before he decided to seek relief. On appeal to the Fifth Circuit, Ovalles argued that the BIA abused its discretion when arriving at its finding. The Fifth Circuit denied Ovalles’ appeal, saying that the court lacked jurisdiction to review whether an alien acted diligently in attempting to reopen his deportation proceedings for the purposes of equitable tolling because it was a pure question of fact.
Counsel for Mr. Ovalles argues that there is a circuit split on whether appellate courts should be able to review questions of due diligence for equitable tolling purposes because they are mixed questions of law and fact. The Ninth Circuit exercises jurisdiction on this question, while the Fourth and Fifth Circuits do not. The U.S. Solicitor General, representing the respondent, Attorney General William Barr, argues that due diligence for equitable tolling purposes is a factual question, and, even if it is a mixed question of law and fact, Mr. Ovalles did not demonstrate that extraordinary circumstances stood in his way of timely filing his motion to reopen his immigration proceedings.
Thryv, Inc. v. Click-To-Call Technologies, LP
No. 18-916, Fed. Cir.
Preview by Taylor Dowd, Senior Online Editor
The dispute behind this case began in 2001, when Inforocket.Com, Inc. sued Keen, Inc. for infringement of U.S. Patent No. 5,818,836 (“’836 Patent”), which relates to anonymous phone communications. A few years later, the two companies merged, voluntarily dismissed the suit, and changed the resulting company’s name to Ingenio, Inc. In 2011, Click-to-Call Technologies obtained the ’836 Patent and subsequently brought infringement complaints against multiple parties, including Ingenio, which ultimately changed its name to Thryv Inc.
In 2013, Ingenio and other companies filed an inter partes review (“IPR”) petition to challenge the ’836 patent. IPR is a procedure created under the Leahy-Smith America Invents Act (“AIA”) that allows the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”) to review patent claims for patentability on limited grounds. In response to the IPR petition, Click-to-Call Technologies argued that it was time-barred because of the 2001 suit. PTAB found that it was not time-barred under 35 U.S.C. § 315(b) because of Keen and Inforocket.Com’s voluntary dismissal, and instituted an IPR, eventually holding the claims unpatentable. Click-to-Call then appealed PTAB’s finding that the IPR petition was timely, and the Federal Circuit held the petition time-barred. Although the Government conceded the misinterpretation of § 315(b), it argued the decision was not reviewable.
The Court will consider whether judicial review of PTAB’s decision to institute an IPR upon a finding that it is not time-barred is statutorily permissible. Under 35 U.S.C. § 314(d), “[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” Thryv argues that although there is a presumption of judicial review of agency decisions, here it is overcome by “clear and convincing” indications in the language of the AIA that Congress intended to obviate judicial review. Brief for Petitioner at 13, Thryv Inc. v. Click-To-Call Technologies, LP, No. 18-916 (U.S. filed Sept. 3, 2019). Click-to-Call, however, contends that this presumption, which is also codified in the Administrative Procedure Act, is too strong to be overcome by the statutory language and is supported by statutory context and structure.
The parties also disagree on the implications of Cuozzo Speed Technologies, LLC v. Lee, 136 S.Ct. 2131 (2016), in which the Court explained that § 314(d) precludes judicial review when the rationale for challenging the initiation of an IPR consists of questions “closely tied” to the application of statutes related to the decision to institute an IPR. Cuozzo, 136 S.Ct. at 2141. Thryv claims that because the time bar in § 315(b) is a condition to an IPR, it is a “closely tied” statute and therefore PTAB’s decision is unreviewable under Cuozzo. Click-To-Call argues Cuozzo is too narrow to apply here and that instead, the holding in SAS Institute v. Iancu, 138 S.Ct. 1348 (2018) is instructive, which confirms that “the agency does not have unreviewable authority to construe the outer limits of its own power.” Brief for the Respondent Click-To-Call Technologies, LP at 8, Thryv Inc. v. Click-To-Call Technologies, LP, No. 18-916 (U.S. filed Oct. 28, 2019).
Lastly, while Thryv argues that the general purpose of the AIA supports preclusion of judicial review here because it was intended to promote efficiency, Click-To-Call argues that judicial review reflects the AIA’s purpose because the limitation on agency authority enforces Congress’s calculations concerning the interests of the patent owners.
This case has motivated several amici curiae to weigh in, such as the PTAB Bar Association, which emphasizes that the outcome could affect the reviewability of other PTAB time-bar determinations.
December 10
Maine Community Health Options v. United States
No. 18-1023, Fed. Cir.
Preview by Sean Lowry, Online Editor*
In two consolidated cases, the Court will decide whether a temporary cap on appropriations from certain specified funding sources may be construed, based on legislative history, to abrogate the government’s payment obligations to private entities under a formulary payment statute.
The Patient Protection and Affordable Care Act (“ACA”) provided for a temporary “risk corridors” program that reimbursed insurers who offered coverage in the ACA’s newly created insurance exchanges during the first years of the ACA’s implementation from 2014 through 2016. 42 U.S.C. § 18062. These risk corridor payments were intended to encourage insurers to participate in the exchanges by offsetting potential losses sustained by the short-term addition of many new enrollees, many of whom were only able to afford insurance following the ACA’s private insurance market reforms and subsidies to lower-income households.
Congress enacted language in an appropriations bill rider at the end of 2014 that significantly limited the Center for Medicare and Medicaid Services (“CMS”) from distributing the full risk corridor payments under the ACA’s statutory formula. See Pub. L. No. 113-235, § 227. Insurers, however, had set their 2014 insurance premiums almost a year before with the assumption that they would receive the payments. Congress enacted the same appropriations rider for 2015 and 2016 in subsequent legislation. The effects of the riders could have contributed to some insurers becoming insolvent, exiting the individual exchange markets, or raising insurance premiums on enrollees in subsequent years to make up for losses in previous years in which they would have received risk corridor payments.
Dozens of insurers, like Land of Lincoln Mutual Health Insurance Co., sued the federal government in the Court of Federal Claims for violation of express or implied contracts to which the government was a party, under the Tucker Act. See 28 U.S.C. § 1491. They argued that the government is obligated to make the full risk corridor payments totaling approximately $12 billion under the ACA’s statutory formula, notwithstanding Congress’s appropriation riders. The executive branch argued that Congress has repealed the full risk corridor payments by implication, via the appropriations riders.
Although the Court of Federal Claims ruled for insurers in one case and the federal government in another, the U.S. Court of Appeals for the Federal Circuit held that Congress intended to implicitly limit the federal government’s obligation to make risk corridor payments when it enacted the appropriation riders denying the full payments. See Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1329 (Fed. Cir. 2018). The Federal Circuit also rejected the insurers’ characterization of the payments as part of a contract, saying that the payments were an incentive policy and not a quid pro quo for services rendered in a contract. See id. at 1327.
In their briefs to the Court, the parties frame the precedents on legislation by implication in appropriations riders in favor of their respective positions. Insurers also bolster their framing of the case from a contract perspective, emphasizing the insurers’ reliance on the risk corridor payments in setting premiums, and the fact that they upheld their end of the “bargain” under the ACA. The Solicitor General argues that the Federal Circuit correctly rejected the claim that an implied-in-fact contract was brokered under the ACA.
Holguin-Hernandez v. United States
No. 18-7739, 5th Cir.
Preview by Michael Fischer, Online Editor
In January 2016, Gonzalo Holguin-Hernandez and several of his companions were apprehended near the U.S.-Mexico border by United States Border Patrol agents. Holguin-Hernandez admitted that he was in the United States illegally for the purpose of smuggling marijuana. After searching the bags of each suspect, the agents found approximately 272 pounds of marijuana. Holguin-Hernandez subsequently plead guilty to possession of marijuana with intent to distribute, in violation of federal law, and was sentenced to twenty-four months in prison followed by two years of supervised release.
In November 2017, while on supervised release, Holguin-Hernandez was again arrested for smuggling marijuana and he again plead guilty to new drug-trafficking violations. This time he was sentenced to sixty months in prison followed by five years of supervised release. The district court also imposed a twelve-month revocation term to run consecutively to the sixty-month sentence imposed for the second offense. Holguin-Hernandez appealed the reasonableness of his twelve-month revocation sentence to the Fifth Circuit Court of Appeals, arguing that it was greater than necessary to satisfy the federal sentencing guidelines. The Fifth Circuit affirmed the sentence imposed by the district court, finding that Holguin-Hernandez failed to make a formal objection after the announcement of his sentence.
Holguin-Hernandez appealed to the United States Supreme Court which granted certiorari on June 3, 2019. The question before the Court is whether a criminal defendant must make a formal objection after the pronouncement of his sentence to invoke appellate reasonableness review of the length of the sentence.
Petitioner argues that according to the plain text of Federal Rule of Criminal Procedure 51(b), no separate objection after the court has ruled is required once a party informs the court of the action it wishes the court to take. Brief for Petitioner at 8, Holguin-Hernandez v. United States, No. 18-7739 (U.S. filed July 29, 2019). Additionally, Petitioner contends that substantive reasonableness is merely a standard of appellate review instead of a freestanding claim. Id. at 9. Likewise, Petitioner argues that there is no utility in requiring defendants to repeat the same arguments after sentencing. Id.
In its brief, Respondent asserts that in order to preserve a claim of error for appellate review, a defendant must specifically identify a claim of error at sentencing. Brief for the United States Supporting Vacatur at 12, Holguin-Hernandez v. United States, No. 18-7739 (U.S. filed July 29, 2019). Furthermore, Respondent argues that a defendant’s request for a shorter sentence does not, by itself, preserve a procedural objection to the sentencing. Id. at 13. Finally, Respondent states that the Fifth Circuit assessed Petitioner’s reasonableness argument under the wrong standard of review and therefore the Court should vacate and remand the case for application of the correct standard. Id. at 14.
December 11
Monasky v. Taglieri
No. 18-1109, Ariz.
Preview by Summer Flowers
The central issues in Monasky v. Taglieri are (1) which standard of review courts should apply to a trial court’s habitual residence determination under the Hague Convention and (2) whether a subjective agreement between an infant’s parents is necessary to determine the infant’s country of habitual residence when the infant is too young to acclimate to their surroundings. The Hague Convention protects children who are wrongfully removed from their country of habitual residence by returning children to that country and allowing local courts to determine custody disputes. Brief for Respondent at 16, Monasky v. Taglieri, No 18-935 (U.S. filed October 7, 2019).
Here, Taglieri and Monasky married in Illinois and moved to Italy. While in Italy, Monasky gave birth to their daughter. Before reaching a subjective agreement about their child’s future home, Monasky took their daughter to the United States without Taglieri’s permission. Taglieri filed a petition seeking his daughter’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition to return his daughter to Italy, and the Sixth Circuit affirmed. In affirming, the Sixth Circuit weighed in on the existing circuit split regarding the standard of review for habitual residence determinations and held that the correct standard of review is clear error. Additionally, the Sixth Circuit created a new circuit split and held that a subjective agreement between an infant’s parents is not necessary to determine the infant’s country of habitual residence when the infant is too young to acclimate to their surroundings. The Supreme Court granted certiorari in Monasky v. Taglieri to resolve these splits.
On the first issue, Monasky argues de novo review is proper for the district court’s finding of habitual residence because the Supreme Court previously held that a given standard of review governs if (1) there is a “statutory command,” (2) there is a “long history of appellate practice,” and (3) a particular court is “better positioned” to decide this question. Brief for Petitioner at 15, Monasky v. Taglieri, No 18-935 (U.S. filed Aug. 15, 2019) (quoting Pierce v. Underwood, 487 U.S. 552, 558, 560 (1988)). Here, Monasky argues that because (1) Congress stressed the importance of interpreting the Hague Convention uniformly, (2) most circuits apply de novo review, and (3) appellate courts are “better positioned” to make these determinations, appellate courts should apply de novo review. Id.
Taglieri argues the Sixth Circuit correctly reviewed the finding of habitual residence using the clear error standard because the Supreme Court previously held that a deferential standard of review applies when courts examine narrow facts, weigh evidence, and make credibility judgments. Brief for Respondent, supra, at 19. Taglieri argues that those factors are present with habitual residence findings. Id. Taglieri also asserts that a deferential standard of review furthers the Hague Convention’s goals of promptly returning children removed from their country of habitual residence and decreases the chances of reversal. Id. at 20.
On the second issue, Monasky argues a subjective agreement is required to determine an infant’s country of habitual residence to discourage forum shopping, align with other country’s highest courts which require a subjective agreement, and comply with the Hague Convention’s requirement that a child’s presence in a country be “settled, continuous, and stable.” Brief for Petitioner, supra, at 16–17. Taglieri responds that no such agreement is necessary because the Hague Convention requires courts to consider other factors, other countries analyze factors other than shared parental intent, and courts can determine parents’ intent by reviewing the objective evidence. Brief for Respondent, supra, at 18. Furthermore, Taglieri argues that requiring a subjective agreement would endanger infants whose parents disagreed on the child’s habitual residence because the infant would lack a country of habitual residence. Id. at 19.
In Monasky v. Taglieri, the Supreme Court will resolve these circuit splits and determine (1) which standard of review courts should apply to habitual residence determinations, and (2) whether a subjective agreement is required to determine an infant’s country of habitual residence.
McKinney v. Arizona
No. 18-935, 6th Cir.
Preview by Michael Fischer, Online Editor
In February 1991, James McKinney and his half-brother Charles Hedlund burglarized the home of Christine Merten. Unfortunately, Merten was home during the burglary, which led McKinney and Hedlund to stab and shoot her in the course of stealing $120. The brothers next broke into the home of Jim McClain and, after stealing his money and valuables, shot McClain as he slept with a sawed-off .22 caliber rifle. Both McKinney and Hedlund were later apprehended and prosecuted. McKinney was found guilty of two counts of first-degree murder while Hedlund was convicted of one count of first-degree murder and one count of second-degree murder.
At McKinney’s sentencing hearing, a psychologist testified that McKinney suffered from Post-Traumatic Stress Disorder (“PTSD”) as a result of childhood abuse. Physical conflicts, the psychologist argued, could trigger childhood trauma and lead to McKinney’s diminished capacity. At the time, under Arizona law, a judge could not consider nonstatutory mitigating evidence that was unconnected with the crime. Therefore, the judge at McKinney’s sentencing was unable to consider the PTSD evidence and sentenced McKinney to death. The Arizona Supreme Court affirmed McKinney’s sentence and, following a denial of McKinney’s habeas petitions in federal district court, the Ninth Circuit Court of Appeals held that Arizona violated the Supreme Court’s holding in Eddings v. Oklahoma, 455 U.S. 104 (1982). The Court in Eddings held that judges in death penalty cases may not ignore any relevant mitigating evidence. After the Ninth Circuit remanded for resentencing, McKinney argued that he was entitled to resentencing by a jury under Ring v. Arizona, 536 U.S. 584 (2002). The Arizona Supreme Court ruled against McKinney, holding that his case was final before the U.S. Supreme Court decided Ring and subsequently affirmed his death sentence.
McKinney appealed to the U.S. Supreme Court, which granted certiorari on June 10, 2019. The issues before the Court are (1) whether the Arizona Supreme Court was required to apply current law, rather than the law as it existed at the time the defendant’s conviction became final, when considering mitigating and aggravating evidence in a death sentence hearing and (2) whether the correction of error under the Eddings holding requires resentencing.
Petitioner asserts that current law applies to all cases “pending on direct review or not yet final.” Brief for Petitioner at 15, McKinney v. Arizona, No. 18-1109 (U.S. filed Aug. 21, 2019) (citing Griffith v. Kentucky, 479 U.S. 314 (1987)). Additionally, Petitioner argues that by granting independent review of McKinney’s sentence, the Arizona Supreme Court reopened direct review, thereby rendering the sentence capable of modification and subject to current law. Id. at 15–16 (citing Jimenez v. Quarterman, 555 U.S. 113 (2009)). With regards to Eddings, Petitioner contends that a new sentencing hearing is necessary in order to obtain testimony untainted by the Arizona Supreme Court’s reliance on a standard that predates Eddings. Id. at 18.
Respondent counters that the Arizona Supreme Court never reopened direct review since a conditional habeas order cannot, in and of itself, reopen state review. Brief for Respondent at 14, McKinney v. Arizona, No. 18-1109 (U.S. filed Oct. 25, 2019). Since the Jimenez “capable of modification” standard only applies to direct review, Respondent argues, McKinney’s sentence was final and therefore Griffith did not apply. Id. at 14–15. Furthermore, Respondent asserts that requiring trial-level resentencing for all Eddings errors would damage the interests of justice by subjecting many longstanding final convictions to resentencing irrespective of the possibility of remedying any error in judgement. Id. at 16. According to Respondent, appellate error correction in these cases is more consistent with existing precedent and practice. Id.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
