The fate of a high-profile challenge to the prolonged detention of immigrants facing deportation without a bond hearing appeared less certain tonight, with the announcement – made over a month after oral argument – that Justice Elena Kagan would no longer participate in the case. In a letter sent to lawyers for the two sides in Jennings v. Rodriguez, Scott Harris – the clerk of the Supreme Court – indicated that Kagan had learned only today that “while serving as Solicitor General, she authorized the filing of a pleading in an earlier phase” of the case.   Continue reading »

Petition of the day

By on Nov 10, 2017 at 4:44 pm

The petition of the day is:

17-552

Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.

Petitions of the day

By on Nov 9, 2017 at 5:16 pm

The petitions of the day is:

17-544

Issue: Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.

17-557

Issue: Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases
 
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Thursday round-up

By on Nov 9, 2017 at 6:58 am

Yesterday the Supreme Court issued its first full opinion of the October 2017 term, in Hamer v. Neighborhood Housing Services of Chicago, holding that a time limit in a court-made rule is not jurisdictional. Howard Wasserman analyzes the argument for this blog. Subscript offers a graphic explainer for the decision.

At Balkinization, Marty Lederman takes a close look at last week’s cert petition in Hargan v. Garza, in which the solicitor general asked the justices to vacate a lower-court decision in favor of a pregnant undocumented teen who was attempting to obtain an abortion and to discipline the teen’s attorneys, concluding that “there are serious questions whether the brief meets the high standards that OSG and DOJ have long insisted upon and that the Court has come to expect from the federal government.” In an op-ed for The New York Times, Linda Greenhouse argues that in its “breathtakingly audacious” petition, “the government itself [is] claiming a right not to follow the law.”

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It took less than one month and 10 slip-opinion pages for a unanimous Supreme Court to decide in Hamer v. Neighborhood Housing Services of Chicago that a rule of appellate procedure limiting the length of an extension for filing a notice of appeal is not a jurisdictional rule requiring dismissal of the appeal if the time limit is exceeded, but a “mandatory claim-processing rule” that can be waived or forfeited. Because Congress controls the jurisdiction of federal courts, only Congress can limit jurisdiction, including through regulations governing the time for filing an appeal. Justice Ruth Bader Ginsburg announced a rule of decision “both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category.” The U.S. Court of Appeals for the 7th Circuit therefore erred in dismissing Charmaine Hamer’s appeal, although seemingly untimely under a rule of appellate procedure, for lack of jurisdiction and without considering whether the defendants had forfeited the timeliness argument.

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Petition of the day

By on Nov 8, 2017 at 5:27 pm

The petition of the day is:

17-540

Issue: Whether a private party with Article III standing may be barred from asserting constitutional claims for money damages against the federal government because of the equitable doctrine of “third-party prudential standing.”

We live-blogged this morning as the Supreme Court released opinions. The transcript is available at this link.

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Wednesday round-up

By on Nov 8, 2017 at 6:53 am

Yesterday the Supreme Court heard oral argument in Patchak v. Zinke, in which the justices considered the separation-of-powers limits on Congress’ ability to direct the outcome of litigation. Ronald Mann analyzes the argument for this blog. At the Associated Press, Jessica Gresko reports that the “justices had tough questions Tuesday for a lawyer representing a Michigan man suing over a Native American tribe’s casino, with justices seeming to suggest that Congress acted properly when it shut down the lawsuit.” Additional coverage comes from Todd Ruger at Roll Call and Andrew Westney at Law360 (subscription required). Subscript offers a graphic explainer for the case. At The Narrowest Grounds, Asher Steinberg wonders why the justices would “go to the trouble of invalidating a phrase in a statute that has no real legal consequence.”

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Readers worrying that Justice Neil Gorsuch is hogging time at oral argument may find more cause for concern when I lead with his “where’s the beef” quip from today’s argument in Patchak v. Zinke. But a post about a separation-of-powers case doesn’t offer enough choices for a good lede that I can ignore his efforts. Pleasantries aside, though, the end point of a relaxed and thoughtful discussion this morning bodes ill for David Patchak’s effort to persuade the justices to invalidate a federal statute ratifying the decision of the Secretary of the Interior designating as Indian land a tract near Patchak’s home.

That’s not to say Patchak’s litigation efforts have not been impressive. His suit challenging the secretary’s decision has already been up to the Supreme Court once – leading to a remarkable 2012 ruling in Salazar v. Patchak that the Administrative Procedure Act waived the sovereign immunity of the secretary and that Patchak had standing to challenge the secretary’s action. Unfortunately for Patchak, the secretary (presumably tiring of the litigation) obtained a federal statute that explicitly ratified the secretary’s decision and purported to end the litigation, stating among other things that “an action … relating to the land [in question] shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

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