On March 26 at 1:00 p.m. ET, join the State and Local Legal Center for a webinar on upcoming decisions this term at the Supreme Court affecting state and local government. Panelists Elizabeth Prelogar of Cooley, Grant Sullivan of the Colorado Attorney General’s office and Kimberly Strawbridge Robinson of Bloomberg Law will discuss high-profile cases on faithless electors, abortion, state judicial appointments, the First Amendment and more.

Click here for more info and to register.


The Supreme Court heard oral argument yesterday in Lomax v. Ortiz-Marquez, this term’s case about the hastily drafted and much-litigated 1996 Prison Litigation Reform Act.

Under the PLRA’s “three strikes” provision, 28 U.S.C. § 1915(g), absent “imminent danger of serious physical injury,” prisoners may not file or appeal a federal civil action in forma pauperis if they have had three or more federal civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim.” (For prisoners, IFP status does not waive the filing fee, but rather allows them to pay fees over time, after filing.) The issue in this case is what counts as a strike, and in particular (in the court’s own version of the question presented), “Does a dismissal without prejudice for failure to state a claim count as a strike under 28 U.S.C. §1915(g)?”

Brian T. Burgess for petitioner (Art Lien)

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Thursday round-up

By on Feb 27, 2020 at 6:40 am

The court released three more opinions yesterday, all of them unanimous. In Holguin-Hernandez v. United States, the court held that a criminal defendant is not required to object formally to his sentence to preserve a challenge to the length of the sentence on appeal. Rory Little analyzes the opinion for this blog. The justices decided in Shular v. United States that a state drug offense is not required to match the elements of a generic analogue offense in order to qualify as a “serious drug offense” under the Armed Career Criminal Act, which enhances the sentences of repeat offenders who commit crimes involving guns. This blog’s opinion analysis comes from Leah Litman.

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In October of 2015, after Christopher Sulyma, a former Intel employee, sued Intel’s plan fiduciaries for imprudently managing the retirement plans sponsored by the company, Intel moved to dismiss the complaint as time-barred under Section 413(2) of the Employee Retirement Income Security Act of 1974.

Section 413(2) of ERISA imposes a three-year limitations period from the earliest date on which the plaintiff “had actual knowledge” of the alleged fiduciary breach. The three-year window under Section 413(2) shortens the six-year period that otherwise runs from the end of the fiduciary breach, violation or omission.

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Justice Ruth Bader Ginsburg didn’t have the first opinion of October Term 2019 or the first opinion from the October sitting. But she made up for it by having the first opinions from the November, December and January sittings. (Technically, both she and Justice Brett Kavanaugh issued an opinion from the December sitting on February 25.) And she issued her opinion from the January sitting, in Shular v. United States, a mere 36 days after the case was argued.

The unanimous opinion in Shular is a breezy 11 pages. Although the opinion did not garner much attention (some Supreme Court commentators even called it “uninteresting”), it confirms two realities of the court’s docket. The first is the ease with which the court finds unanimity in ruling against criminal defendants; the second is the sprawling reach of federal criminal law, particularly with respect to drugs, guns and immigration.

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In a succinct six-page opinion, the Supreme Court ruled today in Holguin-Hernandez v. United States that a federal criminal defendant who “advocates for a shorter sentence than the one ultimately imposed” has sufficiently preserved a claim on appeal that a longer sentence is unreasonable, thereby avoiding “plain error” review under Federal Rule of Criminal Procedure 52(b). Justice Stephen Breyer’s opinion for the court was unanimous, although Justice Samuel Alito concurred separately (joined by Justice Neil Gorsuch) to opine briefly on three related issues that the court emphasized it was “not deciding.”

As previewed, Gonzalo Holguin-Hernandez was sentenced to 60 months of imprisonment for a second marijuana distribution offense. That offense also constituted a violation of the conditions of his supervised release from the first offense. At a revocation hearing, the government argued for a further imprisonment sentence within a guidelines range of 12-18 months. Holguin-Hernandez’s counsel argued that no additional time should be imposed, but the district court imposed an additional consecutive 12 months in prison. On appeal, the U.S. Court of Appeals for the 5th Circuit held that Holguin-Hernandez had forfeited his arguments that the 12-month sentence was unreasonable by not stating an objection at the end of the sentencing hearing. Applying the more deferential “plain error” standard of review established in subsection (b) of Rule 52 for errors that were not objected to at trial, the 5th Circuit affirmed the sentence. Continue reading »

Editor’s Note: An earlier version of this post ran on January 27, 2020, as an introduction to this blog’s symposium on June Medical Services v. Russo, as well as at Howe on the Court, where it was originally published.

When he ran for president in 2016, then-candidate Donald Trump promised that, if elected, he would appoint “pro-life” Supreme Court justices, which would result in the overturning of Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion. In the three years since taking office, Trump has put two new justices on the bench: Justice Neil Gorsuch, who filled the vacancy created after the February 2016 death of Justice Antonin Scalia, and Justice Brett Kavanaugh, who was confirmed in October 2018 after the retirement of Justice Anthony Kennedy. On March 4, the Supreme Court will hear oral argument in a challenge to the constitutionality of a Louisiana law regulating abortion. Although the case does not directly implicate Roe, the justices’ ruling may signal what direction the Roberts Court is likely to take in future abortion cases. Continue reading »

Some Supreme Court decisions send shock waves across and beyond the legal universe. The court’s unanimous ruling Tuesday in Rodriguez v. Federal Deposit Insurance Corp. is not one of them. The result, a remand to the U.S. Court of Appeals for the 10th Circuit with instructions to try again, is unlikely to affect many case outcomes—and possibly won’t even alter the resolution of the case at hand.

The opinion does, however, serve to illustrate at least two important trends. One is the court’s continued cabining of “federal common law,” the set of doctrines developed by federal courts that are not based on the Constitution, acts of Congress or agency rules. The other is the court’s retreat in recent years from issues central to the interpretation of the Internal Revenue Code toward cases at the federal tax system’s periphery. Continue reading »

Yesterday the Supreme Court heard argument in United States v. Sineneng-Smith, a government appeal from a reversal of criminal convictions by the U.S. Court of Appeals for the 9th Circuit. At issue was 8 U.S.C. § 1324(a)(1)(A)(iv), which imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.” Evelyn Sineneng-Smith had a large business helping noncitizens obtain lawful permanent resident status. When a major federal program she used expired, she kept doing paperwork under it anyway, charging fees for filing forms that she knew could not lead to legal status. Her mail fraud convictions for this conduct were affirmed and are no longer at issue. However, the 9th Circuit reversed her convictions for encouraging and inducing noncitizens to come to, enter or reside in the United States, concluding that the statute is unconstitutionally overbroad in violation of the First Amendment.

Mark C. Fleming for respondent (Art Lien)

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We live-blogged as the court released opinions from the 2019 term on Wednesday, February 26, in Intel Corp Investment Policy Committee v. Sulyma, Holguin-Hernandez v. United States and Shular v. United States. SCOTUSblog is sponsored by Casetext, the most intelligent way to search the law.

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