Wednesday round-up

By on Nov 22, 2017 at 7:03 am

At Supreme Court Brief (subscription required), Tony Mauro reports that “Deputy U.S. Solicitor General Michael Dreeben will detour from special counsel Robert Mueller’s legal team next week to argue before the U.S. Supreme Court in high-profile privacy case,” Carpenter v. United States, which asks whether the government must obtain a warrant for cell-site-location information. At the Washington Post’s Volokh Conspiracy blog, Will Baude explains why “the positive law model” of the Fourth Amendment, under which “it is a search for the government to gather information in a way that a similarly situated private party would not be allowed to do,” provides “an alternative theory” for evaluating Carpenter “that may avoid a lot of line-drawing problems.”

Briefly:

  • The editorial board of The New York Times weighs in on two cert petitions the court will consider next week that ask whether sentences of life without parole for juvenile offenders are unconstitutional, arguing that “for the sake of the hundreds of juveniles in [Michigan and Louisiana], many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.”

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Petition of the day

By on Nov 21, 2017 at 8:20 pm

The petition of the day is:

17-618

Issues: (1) Whether, under the Equal Access to Justice Act, prevailing party status on appeal is separate and distinct from prevailing party status in the entire litigation; (2) whether separate claims brought under the Administrative Procedure Act seeking the identical remedy are distinct in all respects for fee purposes; and (3) whether a district court may raise objections to a fee request sua sponte, without giving the party making the request an opportunity to respond.

Thar she blows

In 2010, Congress was all about reforesting the new wasteland of American finance created by the 2008 financial crisis; the result was the Dodd-Frank Wall Street Reform and Consumer Protection Act, which transformed the banking and financial-services industry. Early in the legislative process, it was agreed that paying bounties for information would be a nifty idea; the result was a proposal that if information reported to the Securities and Exchange Commission led to monetary penalties, the commission could reward the reporter with part of the take. The term “whistleblower” was employed throughout the new, several-page-long Section 21F of the Securities Exchange Act of 1934 and was specifically defined as “any individual who provides … information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”

The whistleblower award structure created by Section 21F sensibly included protection against employer retaliation. Two proposed subsections prohibited retaliation against whistleblowers for providing information to the commission and for participating in any judicial or administrative actions based on or related to the information provided.

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On December 1 at 12 p.m., Becker & Poliakoff and Spectrum Gaming Group will host a media briefing on Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting. Speakers include, but are not limited to, Theodore Olson, Elbert Lin, and Rep. Frank Pallone Jr., a Democrat of New Jersey. More information about this event at the National Press Club in Washington, including a full list of speakers and panels, is available in this media advisory.

 
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Securities litigators have spent the last two decades working out the implications of two statutes Congress passed in the closing years of the last century, both designed to limit securities class actions. The first was the Private Securities Litigation Reform Act of 1995, known as the PSLRA. When that statute produced more of a flight to state courts than it did a decline in class actions, Congress responded with the Securities Litigation Uniform Standards Act of 1998, known as SLUSA. It is a testament both to the high stakes involved in securities litigation and to the sloppy drafting of both the PLSRA and SLUSA that the Supreme Court has faced numerous questions of interpretation under those statutes. Indeed, to the outsider the most remarkable thing about the argument next week in Cyan, Inc. v. Beaver County Employees Retirement Fund may be how many basic questions about the two statutes remain unsettled.

Because Cyan does not involve any regulations, the Supreme Court confronts a pure question of statutory interpretation. And because the relevant statutes are so intricate, some considerable discussion of the contested provisions is necessary to elucidate the problem at hand. The first point to understand is the tradition of concurrent jurisdiction over securities claims. From the enactment of the Securities Act of 1933 during the Great Depression, Congress traditionally expected (and explicitly provided in the statute) that securities litigation would proceed in both state and federal courts. Thus, the statute always has stated (in 15 USC § 77v) that the “district courts shall have jurisdiction, concurrent with State courts, of actions to enforce any liability created by [the Securities Act of 1933].” Responding to the PSLRA-driven flight of securities class actions from federal court to state court, SLUSA added a major qualification to Section 77v, which now provides that the state courts exercise concurrent jurisdiction “except as provided in section 77p … with respect to covered class actions.”

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Tuesday round-up

By on Nov 21, 2017 at 7:12 am

Yesterday the U.S. government asked the Supreme Court to allow all the provisions of President Donald Trump’s September 27 entry ban to go into effect while the government appeals a nationwide injunction issued by a district court judge in Hawaii that now blocks enforcement of key portions of the ban. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Josh Gerstein at Politico, Jess Bravin for The Wall Street Journal, Lyle Denniston at his eponymous blog, and Ariane de Vogue at CNN.

At Constitution Daily, Scott Bomboy looks at Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim. The Los Angeles Times editorial board weighs in on the case, arguing that “if the 1st Amendment means anything, government officials shouldn’t be able to punish dissenters, even rude ones, by selectively subjecting them to arrest — even if the arrest might be justified on other grounds.”

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UPDATES: The justices have asked the challengers to file a response to the government’s filing. The response is due on Tuesday, November 28, by 12 p.m. On Tuesday evening, the justices also fielded another request from the government in the travel-ban litigation: As the government indicated that it would do in Monday’s filing, it has also asked the court to intervene in the parallel challenge, currently pending in the U.S. Court of Appeals for the 4th Circuit, to block a ruling by a Maryland judge that bars the government from enforcing part of the September 24 order. The justices quickly instructed the challengers in that case to file a response by next Tuesday as well.

The battle over the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries came to the Supreme Court on Monday. In a filing late in the day, the Trump administration asked the justices to allow the full set of restrictions – often known as the “travel ban” – to go into effect while the government appeals a ruling by a federal district judge in Hawaii blocking the ban.

It seemed all but inevitable that litigation over the travel ban would return to the Supreme Court after the justices dismissed the challenges to an earlier iteration of the ban. That earlier version, issued on March 6, halted the issuance of new visas to nationals from six predominantly Muslim countries (Syria, Libya, Yemen, Sudan, Somalia and Iran) and temporarily suspended the admission of refugees into the United States. The Supreme Court had been scheduled to hear oral arguments in the challenges on October 10, but the court removed the two cases from its calendar (and eventually dismissed them) in the wake of a new order from the president, issued on September 24.

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Petition of the day

By on Nov 20, 2017 at 8:20 pm

The petition of the day is:

17-616

Issues: (1) Whether a court of appeals may rely on extra-record factual research to decide a petition for review of a removal order despite a statutory command that such a petition be decided “only on the administrative record,” 8 U.S.C. § 1252(b)(4)(A); and (2) whether federal court authority to decide constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D) permits review of legal error in exemption determinations under 8 U.S.C. § 1182(d)(3)(B)(i).

The second case of the Supreme Court’s patent day next Monday is SAS Institute v. Matal. That case should be a relief; after considering the weighty constitutional concerns summarized in my preview in Oil States Energy Services v. Greene’s Energy Group, the justices will turn to a straightforward question of statutory interpretation. The statutory provision at issue, like the constitutional problems the justices will confront in Oil States, involves the “inter partes review” process that Congress added to the patent law in 2011 as part of the Leahy-Smith America Invents Act.

As I explain in the Oil States preview, inter partes review provides a streamlined two-step administrative adjudication of the validity of recently issued patents. At the first step, the Patent Trial and Appeal Board reviews a petition challenging the patent and decides whether a full-blown review of the patent is appropriate. The statute says little about how the board should decide when a review proceeding is justified; the sole constraint bars the board from initiating a proceeding unless it determines that “there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” At the second stage, if it decides to institute a review proceeding, the board adjudicates the validity of the challenged patent, subject to review on appeal by the U.S. Court of Appeals for the Federal Circuit.

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It will be patent day at the Supreme Court when the justices return to the bench next Monday for their December sitting. The morning brings a pair of cases considering the “inter partes review” process that Congress added to the patent law in 2011 as part of the Leahy-Smith America Invents Act. The adoption of inter partes review implements Congress’ desire to shift a share of patent litigation away from the judicial process – criticized as slow and expensive – toward an administrative process that Congress (with considerable naiveté) expected would be swift, inexpensive and uncontroversial.

In general, inter partes review proceeds in two stages. First, competitors unhappy about the issuance of a patent file a petition asking the director of the Patent and Trademark Office to institute a review proceeding. After giving the patent holder an opportunity to respond to the petition, the PTO must decide within three months whether to institute a review proceeding; within the PTO, the decision is made by the Patent Trial and Appeal Board. If a competitor convinces the Patent Trial and Appeal Board that the PTO erred in issuing the patent, the board has the authority to invalidate the patent, subject to review by the United States Court of Appeals for the Federal Circuit.

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