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National Law Journal
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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The justices this morning start the second week of the January argument session, no doubt with an eye on their beckoning long February break. On Friday, they added eight cases to the docket—but none included closely watched disputes involving LGBT workplace rights, transgender troops and DACA. We highlight the lawyers, including some veteran high court advocates, who likely will get to the lectern in those new cases. We also offer a brief look at a long-running tort fight that has reached the high court by injured military members hoping to overcome the "political question" doctrine. Thanks for reading Supreme Court Brief. We welcome comments and tips at tmauro@alm.com and mcoyle@alm.com.
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Justices Pick 8 Cases, But Put Off Blockbusters
As of Friday, the court has 19 unscheduled arguments on its docket. And if the justices keep their recent pattern of only two cases per day per two-week argument session, that leaves room for three more grants to fill the final April calendar—the final argument cycle of the term.
But, of course, the justices can do whatever they choose to do. They could schedule afternoon arguments, or could expedite briefing for late-granted cases. Whether this coming Friday's conference is the informal cutoff for grants to be heard this term only time will tell.
Here is a quick look at the latest grants and the lawyers who filed and opposed the petitions, and who may end up arguing the cases. The court granted two cases brought by former acting solicitor general Neal Katyal (above).
Also on the roster is Raffi Melkonian, a pillar of the #AppellateTwitter movement, and Wisconsin solicitor general Misha Tseytlin, who is unlikely to argue. His position was abolished as part of the state’s partisan squabbling last fall, and his name no longer appears in the state’s Justice Department website. Tseytlin was counsel of record on the state's December 5 brief in opposition, but Daniel Lennington, a senior counsel in the Wisconsin Department of Justice, is now listed as counsel of record on the court's docket.
>> Quarles v. United States
Does generic burglary in the Armed Career Criminal Act require “an intent-at-entry” element or is it enough that intent to commit a crime was formed while “remaining in” the building? For petitioner: Jeremy Marwell, Vinson & Elkins, Washington, D.C. For respondent: U.S. Solicitor General Noel Francisco.
>> Rehaif v. United States
When prosecuting an undocumented alien for possession of a firearm and ammunition, must the government prove that the defendant not only knowingly possessed a firearm but also knew he was unlawfully in the United States? For petitioner: Assistant Federal Defender Robert Godfrey of Orlando, Florida. For respondent: U.S. Solicitor General Noel Francisco.
>> Parker Drilling Management Services v. Newton
Do California wage-and-hour laws apply to claims by workers on drilling platforms on the outer continental shelf even though the federal Fair Labor Standards Act provides a comprehensive set of federal rights and remedies? For petitioner: Paul Clement, Kirkland & Ellis, Washington, D.C. For respondent: Michael Strauss, Strauss & Strauss, Ventura, California.
>> North Carolina Dept. of Revenue v. Kaestner Family Trust
Does the due process clause prohibit states from taxing trusts based on trust beneficiaries’ in-state residency? For petitioner: North Carolina Solicitor General Matthew Sawchak. For respondent: Thomas Myrick, Moore & Van Allen, Charlotte, North Carolina.
>> Food Marketing Institute v. Argus Leader Media
A rare Freedom of Information Act case that could end circuit splits over the meaning of the statute’s Exemption 4, which protects from disclosure all "confidential" private-sector "commercial or financial information" within the government's possession. The case has drawn considerable amicus support at the cert stage, including a Chamber of Commerce brief filed by John Elwood of Vinson & Elkins, and Adam Unikowsky of Jenner & Block for the Retail Litigation Center. For plaintiff: Gavin Villareal, Baker Botts, Austin, Texas. For respondent: Robert Loeb of Orrick Herrington & Sutcliffe, Washington, D.C.
>> McDonough v. Smith
In the case of Edward McDonough, a former election official from New York, the case may resolve when the statute of limitations begins to run for a Section 1983 civil rights claim based on fabrication of evidence in criminal proceedings. For plaintiff: Neal Katyal, Hogan Lovells, Washington, D.C. For respondent: Thomas O’Connor, Napierski, VanDenburgh, Napierski & O'Connor, Albany, New York.
>> Fort Bend County, Texas v. Davis
Whether the requirement in Title VII of the Civil Rights Act for employment discrimination claimants to first exhaust claims with the EEOC is a jurisdictional prerequisite or a waivable claim-processing rule. For plaintiff: Neal Katyal of Hogan Lovells. For respondent: Raffi Melkonian of Wright Close & Barger, Houston, Texas.
>> Mitchell v. Wisconsin
A test of the constitutionality of a Wisconsin law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. For plaintiff: Thomas Aquino, office of Wisconsin public defender, Madison, Wisconsin. For respondent: Daniel Lennington of the Wisconsin Department of Justice.
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Pitching Apolitical Case on Political Questions
If the justices are trying to keep the term as apolitical as possible, Stephen Vladeck of the University of Texas School of Law says he has a petition that they should find attractive, particularly to the newest justice, Brett Kavanaugh.
Vladeck has been working with Baltimore's Susan Burke, counsel of record, in Metzgar v. KBR Inc., which stems from the long-running fight to hold KBR liable for service members' injuries and deaths allegedly caused by the military contractor's disposal of toxic materials through open air "burn pits" in Iraq and Afghanistan. A team from Motley Rice is also counsel for the petitioners, who are U.S. military personnel, their families, and others.
Burke has been litigating a series of state-law tort claims since 2008 which the Judicial Panel on Multidistrict Litigation has consolidated for purposes of pre-trial proceedings and transferred to the U.S. District Court for the District of Maryland. The U.S. Court of Appeals for the Fourth Circuit in the Metzgar case, and four other circuits, have applied the political question doctrine to hold that these claims are not justiciable.
"One of things I admired by then-Judge Kavanaugh was how candid he has been about the disparity between how lower courts and the Supreme Court apply the political question doctrine," Vladeck said. "My hope is this is the kind of case that just not appeals to him, but that the court sees as a pretty important constitutional issue that’s not partisan or ideological."
Vladeck said KBR and others argue the more the government relies on contractors, the more courts should be wary about subjecting them to liability. "But the more we are outsourcing military functions to contractors, the more we ought to be thinking about accountability," Vladeck said. "That's a conversation someone ought to have and it hasn't been Congress."
Warren Harris of Houston's Bracewell, representing KBR in the high court, argues that appellate courts agree the political question doctrine bars tort suits challenging professional military judgments.
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Supreme Court Headlines: What We're Reading
• "In all of her work and days as a lawyer, then judge, she pursued justice with passion—heart, mind and soul. In her lifetime of achievement, she unsparingly devoted her efforts to advancing the health and welfare of humankind,” Justice Ruth Bader Ginsburg said about her former D.C. Circuit colleague Patricia Wald (above), who died Saturday at the age of 90. [NLJ]
• "A case to be argued before the United States Supreme Court on Wednesday may decide whether states can prohibit retail wine shops from shipping to consumers in another state." [NYT]
• "The current high court—and particularly Chief Justice John Roberts—has generally been wary of Trump-related controversies, deferring involvement when possible and often resolving issues with incremental steps." [Bloomberg]
• Justice Ruth Bader Ginsburg’s recovery from cancer surgery is “on track,” and she will work from home this week, the U.S. Supreme Court says. [NLJ]
• How Justice Clarence Thomas picked Atlanta solo Amy Weil for a coveted amicus argument. [NLJ]
• Former Covington lawyer and Alex Kozinski clerk Thomas Krause has been named the U.S. Patent and Trademark Office solicitor and deputy general counsel for intellectual property law. [NLJ]
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