Editor's Note :

Editor's Note :

On Monday, we expect orders from the June 22 Conference at 9:30 a.m. and the final opinions of the term at 10 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

Thursday round-up

By on Jun 15, 2017 at 7:31 am

At his eponymous blog, Lyle Denniston reports that “President Trump moved on Wednesday to keep his restrictions on immigration in operation, if the Supreme Court now allows government officials to start enforcing those limits,” by “extend[ing] the planned expiration dates for the restrictions” in a new presidential order. At Take Care, Leah Litman assesses the implications of the extension, arguing that “the President has now formally severed the link between the government’s review of its internal visa procedures and the entry ban itself,” and that “[a]s a result, the government has undermined its own oft-repeated rationale for the order: imposing a temporary bar on entry while it studied the issue and considered more comprehensive vetting procedures” and has “further weakened the claim that its entry ban is, or ever was, enacted for national security purposes.” At the Lock Law Blog, Ryan Lockman adds that the “DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited briefing, and then asking in mid-June for a two week delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.” At The Washington Post’s Volokh Conspiracy blog, Sam Bray examines the immigration-law justifications for the national injunctions issued in the entry-ban cases, concluding that “no one has shown any compelling reason to think the naturalization clause authorizes national injunctions.”

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Petition of the day

By on Jun 14, 2017 at 10:25 pm

The petition of the day is:

16-8327

Issue: Whether a district court may order an in personam forfeiture money judgment against an impecunious criminal defendant in the absence of a statute expressly authorizing such a form of punishment.

 
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In Maslenjak v. United States, the Supreme Court will decide whether the government can revoke naturalization based on immaterial false statements made during the naturalization process. Although the issue is primarily one of statutory interpretation, major constitutional questions lurk beneath the surface. As Patrick Weil explains in his fascinating book, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic,” 50 years ago the Supreme Court put a stop to the government’s once-common practice of denaturalization, and in the process “redefin[ed] the country’s understanding of sovereignty and citizenship.” The court’s decision in Maslenjak is likely to be informed by this legal and historical precedent.

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Relist Watch

By on Jun 14, 2017 at 12:04 pm

John Elwood reviews Monday’s relists

After spending the better part of two terms in a holding pattern because they were down a justice and at risk of 4-4 splits, the court is back at full strength and next term is shaping up nicely. We’re not quite back in every-term-a-blockbuster mode, but October Term 2017 is looking not too shabby. Last week’s grant in the cell-site data case Carpenter v. United States, 16-402, got the ball rolling. Then there was Monday’s grant in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712, which is, to use a legal term of art, a Big Hairy Deal for the patent bar. Oil States involves the constitutionality of the administrative mechanism Congress created for revisiting the validity of issued patents, which has been hotly debated by bigger nerds than me for quite some time. With two cases involving the constitutional validity of partisan gerrymandering as serious prospects at tomorrow’s conference, next term is off to a decent start.

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In its conference of June 15, 2017, the court will consider petitions involving issues such as whether private parties can sue to enforce 52 U.S.C. § 10101; whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding; and whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

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Wednesday round-up

By on Jun 14, 2017 at 7:18 am

Yesterday, in the wake of Monday’s ruling by the U.S. Court of Appeals for the 9th Circuit rejecting the administration’s bid to reinstate the president’s March 6 executive order temporarily restricting entry into the U.S. by travelers from six Muslim-majority countries and suspending the admission of refugees, the court ordered a new round of briefing on the government’s request for a stay of the ruling; briefing will be completed by noon on June 21, the day before the court meets for its final private conference of the term. Amy Howe covers these developments for this blog, as does Lyle Denniston at his eponymous blog, who notes that “if the court has any thought about ruling — before the summer recess — on any of the issues regarding the executive order, it would have to act with unusual dispatch.” At Lock Law Blog, Ryan Lockman discusses the 9th Circuit’s ruling, noting that it “was the first appeals court decision on either travel ban to address only the statutory arguments.”

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Petition of the day

By on Jun 13, 2017 at 11:23 pm

The petition of the day is:

16-1150

Issue: Whether the clarity Gelboim v. Bank of America gave to multidistrict cases should be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case.

 
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UPDATED: This afternoon the Supreme Court ordered the federal government and the challengers to file additional briefs regarding the government’s request to reinstate the travel ban. The justices instructed the government to file its supplemental brief by 3 p.m. on June 15; the challengers will file their response by 12 p.m. on June 20; and the government will file its reply by 12 p.m. on June 21.

Yesterday the U.S. Court of Appeals for the 9th Circuit rejected the Trump administration’s request to reinstate the president’s March 6 executive order, often known as the “travel ban,” which put a temporary hold on visas for travelers from six Muslim-majority countries and suspended the admission of refugees into the United States. Today the federal government went to the U.S. Supreme Court, seeking to file additional briefs to address the 9th Circuit’s ruling. The government suggested a new schedule that would have all of the new briefs filed by June 22, the last day on which the justices are currently slated to meet to add new cases to their docket for the fall. But lawyers for the challengers in the case quickly opposed the proposed timeline, citing concerns about possible delays.

In today’s filing, which was signed by Acting Solicitor General Jeffrey Wall, the federal government noted that, because the 9th Circuit relied on a different theory from the U.S. Court of Appeals for the 4th Circuit and a Hawaii district court to uphold the Hawaii court’s order blocking the implementation of the travel ban, the Justice Department could file a new request to reinstate the travel ban that would “specifically address” the 9th Circuit’s reasoning. But the “more efficient” path, the government submitted, would be for it to file new briefs to supplement its existing request to restore the ban.

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When you see headlines announcing a major Supreme Court decision in a case called Microsoft v. Baker, you might expect another foray into the law of patents. This one, though, involves class actions, and the court’s decision reflected a unanimous vote (sans Justice Neil Gorsuch, who joined the bench after the oral argument) rejecting the U.S. Court of Appeals for the 9th Circuit’s tolerance of a litigation tactic involving procedures for class certification.

Traditionally, federal courts of appeal cannot review anything a district court does until it issues a final decision. When plaintiffs try to bring a class action, litigating as a group, the claims of individual plaintiffs survive even when a district court refuses to certify a case for adjudication as a class. Thus, a district court decision denying certification ordinarily does not produce a final order suitable for immediate review on appeal. The problem that plaintiffs face, though, is that adjudication of the individual claims often makes no sense without class relief; the costs and fees associated with a trial typically dwarf the possible recovery from any particular individual’s claim. Accordingly, plaintiffs often want to appeal immediately when a district court rejects class relief.

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Yesterday the Supreme Court vacated in part and reversed in part the U.S. Court of Appeals for the Federal Circuit’s decision in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz, completing the specialized circuit’s dismal 0-for-6 record in patent cases at the court this year.

The case involved another skirmish in the long-running battle between research pharmaceutical companies, which tend to seek more intellectual property and regulatory protections for their innovations, and generic pharmaceutical companies, which typically seek to curb intellectual property and regulatory protections.

The litigation arose after the generic pharmaceutical company Sandoz sought a license from the Food and Drug Administration to market an approximate copy — a “biosimilar” — of Amgen’s “biologic” drug filgrastim (trade name Neupogen). Sandoz’s application for an FDA license triggered a complex statutory mechanism for patent litigation under the Biologics Price Competition and Innovation Act, which is an approximately 17-page subchapter contained in the larger 906-page Affordable Care Act (aka Obamacare).

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