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On the Docket’s Preview of April Supreme Court Arguments

After more than a year as an eight member body, the Supreme Court finally has a new Associate Justice. President Trump’s nominee, Neil Gorsuch, will officially take his seat on the bench this Monday to hear arguments in three cases: Perry v. Merit Systems Protection Board, dealing with the proper venue for an appeal of an anti-discrimination suit against an employer after dismissal for jurisdictional problems; Town of Chester v. LaRoe Estates, addressing the standing requirements for intervenors; and California Public Employees’ Retirement System v. ANZ Securities, clarifying statutes of limitations for class action suit participants.

The most highly anticipated case this month is Trinity Lutheran Church v. Comer. Known colloquially as the “Playground Case,” it will give legal scholars serious insight into how Justice Gorsuch will deal with the separation of church and state. The preview below also details the arguments heard during a debate at the Newseum on April 8, 2017.

The Court will also hear several criminal law cases this month. One, McWilliams v. Dunn, deals with expert testimony and indigent defendants, while another, Davila v. Davis, concerns ineffective assistance of counsel and the meaning of “trial” in the Sixth Amendment. Davila v. Davis will test Justice Gorsuch’s textualist background through a determination of what the founders meant in the Sixth Amendment by “trial”—whether they meant only a trial court, or if “trial” includes appeals.

Needless to say, Justice Gorsuch is jumping in with both feet over the next two weeks. Scholars will learn much from the questions he asks during each oral argument, and On the Docket will be on the lookout for hints as to where he leans on each case.

On the Docket has researched the parties’ court filings and summarized the factual and procedural history of each case so that readers may acquaint themselves with each before they are argued. When opinions are handed down, On the Docket will provide in-depth analyses from legal scholars who are acutely knowledgeable of each decision’s impacts. But for now, the previews below will provide you with all the information you need to keep up with the full-strength Court.

April 17

Perry v. Merit Systems Protection Board
No. 16-399; D.C. Cir.

Anthony Perry, a former Census Bureau worker, was suspended and dismissed from his position, in part due to absences during work hours which Perry thought he and his supervisor had agreed were necessary to accommodate his osteoarthritis. Perry and the Bureau appeared to reach a settlement whereby Perry agreed to a suspension and early retirement; however, Perry claims he was coerced into settling. When Perry challenged his suspension and early retirement under federal civil-service laws and federal anti-discrimination laws, the U.S. Merit Systems Protection Board (“MSPB”) dismissed his case for lack of jurisdiction, citing the voluntary nature of the settlement agreement.

Generally, when a decision of the MSPB is appealed, disputes arising entirely under federal civil service laws are subject to judicial review in the Federal Circuit, whereas challenges based solely on federal anti-discrimination laws are subject to judicial review in federal district courts. Where Perry’s “mixed” case should be heard is the question the Supreme Court is now poised to answer.

The Court likely took this case to clarify its prior ruling in Kloeckner v. Solis, which held that federal employees appealing a MSPB decision relating to the violation of anti-discrimination laws can appeal to a district court rather than the Federal Circuit. However, Kloeckner was dismissed for procedural flaws and not decided on the merits. In ruling on Perry, the D.C. Circuit used Kloeckner to distinguish cases dismissed for procedural flaws and cases with jurisdictional issues, and held that cases with jurisdictional issues, like Perry’s, should be appealed to the Federal Circuit, where MSPB decisions of non-appealability are reviewed.

Perry argues that his case is instead rightfully subject to judicial review in federal district court, preserving de novo review of his discrimination claims. In contrast, he argues that the Federal Circuit can only decide whether the MSPB properly dismissed Perry’s claim, not rule on the merits of the claim itself. The MSPB argues that Perry’s case is not a “mixed” case at all, because dismissal on jurisdictional grounds makes the case non-appealable, and thus—under Kloeckner—the Federal Circuit has sole jurisdiction to review.

The Court ultimately must decide whether a petitioner whose case is dismissed on jurisdictional grounds has the opportunity to have his or her discrimination claims heard on the merits at all. Resolving the technicalities of the proper avenues for federal employees to seek relief from an adverse employment decision will give clarity to the protections available under the Civil Service Reform Act.

Town of Chester v. LaRoe Estates, Inc.
No. 16-605; 2d Cir.

Steven Sherman hoped to build a subdivision in Chester, N.Y., and agreed to sell some of the lots to LaRoe Estates (“LaRoe”). However, he never obtained approval from the town planning board. After the bank foreclosed on his land, Sherman (who has since passed away) sued the town, alleging a regulatory taking. LaRoe sought to intervene in the case, either by right, through Federal Rule of Civil Procedure 24(a)(2), or permissively, through Rule 24(b). The district court found that LaRoe lacked standing and could not intervene on either ground. The Second Circuit, however, disagreed, holding that so long as the original plaintiff had standing to sue, LaRoe was not required to have independent Article III standing.

To have standing, Article III requires the party claiming relief to show an injury that is both fairly traceable to the defendant’s behavior and redressable by a court. Under Rule 24(a), a party must have a “legally protectable” interest in a proceeding to be able to intervene by right. The question for the Court to decide is whether the two standards (for plaintiffs and for intervenors) require the same showing.

The Town of Chester argues that a party intervening as of right under Rule 24(a) must have Article III standing. Noting that intervenors, by right, enjoy the same rights as a party, including discovery and subpoena rights, the Town argues that allowing parties without standing to intervene would undermine Article III’s requirement that federal courts hear only cases and controversies. Moreover, the Town argues that, as a practical matter, the test the Court has developed for who may intervene under Rule 24(a) mirrors the inquiry for who has standing under Article III. Allowing parties to intervene without meeting the requirements of Article III would overburden the federal courts with the claims of parties lacking an actual interest in the suits they join.

LaRoe argues that so long as one party to a suit fulfills the requirements of Article III, intervenors need not independently satisfy those requirements. Mandating otherwise, LaRoe asserts, would unnecessarily delay judicial proceedings while courts decide complicated issues related to each party’s standing. Certain parties without standing, such as permissive intervenors and amicus curiae, are already able to make use of the judicial machinery. Finally, LaRoe argues for a bright-line to be drawn between the requirements of Article III and Rule 24(a): While the former requires an actual injury for the court to redress, the latter requires only a connection between the interests of the intervening party and the lawsuit.

California Public Employees’ Retirement System v. ANZ Securities, Inc.
No. 16-373; 2d Cir.

The collapse of Lehman Brothers spurred global economic calamity and resulted in numerous lawsuits, including the instant case.

Before its bankruptcy, Lehman Brothers issued billions of dollars in debt securities. California Public Employees’ Retirement System, (“CalPERS”), a large pension fund, purchased millions of dollars of these securities. In 2008, another retirement fund filed a class action suit against Lehman Brothers claiming that Lehman Brothers made material misrepresentations and omissions in statements regarding those offerings, and was liable under Section 11 of the Securities Act of 1933.

In February 2011, over three years since the debt offerings, CalPERS independently sued Lehman Brothers, again claiming that Lehman Brothers made material misrepresentations and omissions in statements regarding the debt offerings. The case was then merged with the pending class action; later that year, the parties in the class action settled. CalPERS, not satisfied with the settlement, opted out of the settlement agreement to pursue its own claims.

However, the district court dismissed CalPERS’s case as having been untimely filed. The Securities Act of 1933, under which the claim was brought, sets out the statute of limitations and statute of repose, and states that all claims under the Act must be brought within one year of discovery of the violation or within three years after the security involved was first offered to the public. The Second Circuit affirmed the dismissal.

CalPERS argues that the Supreme Court ruling in American Pipe & Construction Company v. Utah, which held that statutes of limitations are suspended for all individuals who would be members to a potential class action, should also apply to the statute of repose. The Second Circuit relied on its earlier ruling in Police & Fire Retirement Systems of the City of Detroit v. IndyMac MBS, Inc., which held that “American Pipe tolling does not affect the status of repose embodied in section 13,” and further stated that “unless and until the Supreme Court informs us that our decision was erroneous, IndyMac [721 F.3d 95 (2d Cir. 2013)] continues to be the law of the Circuit and its reasoning controls the outcome of this case.” The Supreme Court had agreed to hear the IndyMac appeal, but the parties settled and the case was dismissed as improvidently granted.

The Supreme Court will now settle the question of whether the filing of a putative class action serves, under the American Pipe rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. This is the same question the Court agreed to hear in IndyMac and essentially asks whether the American Pipe doctrine also applies to the Securities Act’s statute of repose.

The outcome of this case will have a wide breadth. According to petitioners, it will resolve a circuit split between the Tenth Circuit, which “holds that the filing of a putative class action constitutes filing of each individual’s claim for purposes of both the statute of limitations and the statute of repose,” and the “First and Sixth Circuits [which] hold the opposite.” Further, the outcome of the case could have tremendous litigation strategy consequences, as many plaintiffs may no longer wait to sue, pending the outcome of a class action, and the number of individual suits could rise dramatically.

April 18

Kokesh v. SEC
No. 16-529; 10th Cir.

Determining the true meaning of disgorgement will have vast implications for the SEC and how it brings enforcement actions. Despite the potentially damaging effect the Court’s decision may have on the government’s biggest prosecutor of financial crimes, the SEC encouraged the Court to grant certiorari to settle this open question once and for all.

The issue facing the Court is whether 28 U.S.C. § 2462’s five-year limitation period applies to SEC disgorgement claims. The statute states: “An action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within 5 years from the date when the claim first accrued.” In other words, there is a strict five-year statute of limitations for bringing an enforcement action from the time the violations first began.

When it comes, however, to disgorgement actions—the SEC’s most commonly sought remedy—the SEC has never abided by this five-year statute of limitations. The SEC has consistently claimed that disgorgement—which deprives defendants of any ill-received gains—does not fall within the statute because it does not constitute forfeiture. Whether disgorgement is a forfeiture turns on the question of whether it is remedial or punitive. If it is remedial, such that it merely places the wrongdoer in the position he would have been in without the misconduct, then it is not a forfeiture and the five-year statute of limitations will not apply. Alternatively, if disgorgement is punitive, as Mr. Kokesh argues, then the statute of limitations applies. Whether disgorgement is remedial or punitive has generated a circuit split.

Here, the SEC commenced an enforcement action against Mr. Kokesh in 2009, alleging he misappropriated funds from 1995 through 2006 and seeking disgorgement as the remedy. The SEC won at trial, and Mr. Kokesh was ordered to disgorge $34.9 million in ill-gotten gains. Yet if the Supreme Court decides that the five-year statute of limitations applies, Mr. Kokesh would need only to disgorge the ill-gotten gains after 2004 (five years before the commencement of the action), limiting disgorgement to a mere $5 million, which is only about 15% of the original $34.9 million.

However the consequences of the Court’s decision here will go far beyond Mr. Kokesh’s case. If the Court determines that disgorgement actions do not fall under the five-year statute of limitations, the SEC will simply continue to bring enforcement actions against individuals or companies, without regard to the often extended period of time the fraudulent activity covered. While some may argue this allows the SEC to essentially reach as far back as it wants and, as a result, might actually obstruct business and investment activity, it simply will not change the SEC’s conduct. Alternatively, if the Court determines that disgorgement actions do fall within the five-year statute of limitations, the SEC will have to make big changes, including potentially foregoing opportunities to commence actions in older frauds, as well as conducting investigations and filing actions more rapidly. The SEC will be anxiously awaiting the Court’s final decision.

Henson v. Santander Consumer USA
No. 16-349; 4th Cir.

Under the Fair Debt Collection Practices Act, “debt collectors” are subject to regulations aimed at protecting debtors from abusive debt collection practices, like harassment and excessive consumer contact regarding debt. Santander Consumer USA purchases delinquent debt from lenders and attempts to collect the debt from debtors. The question for the Supreme Court is whether Santander is considered a “debt collector” and is thus subject to the Act.

Petitioners are consumers who defaulted on their car loans. The loan company sold $3.55 billion in loans to Santander, who subsequently began to collect on the debts. Petitioners allege that Santander used collection methods barred by the Fair Debt Collection Practices Act, like misrepresenting the debt amount. They assert that the trigger for status as a “debt collector” rather than a “creditor” under the Act is whether the debt is in default. Under the Act, a “debt collector” has its principal business in collecting debt or regularly collects debts owed or due to another. If the debt is not in default at the time it is purchased, then the purchasing company is exempt from being defined as a debt collector under the Act.

The Fourth Circuit held that Santander, who was collecting defaulted debt but then purchasing the defaulted debt, was no longer a “debt collector” under the Act once it purchased the defaulted debt because the debt was no longer “due to another” but due instead to Santander. Two other circuits subscribe to this interpretation of the Act, but five circuits consider companies who engage in this practice to continue to be “debt collectors” under the Act.

The Supreme Court must now resolve the circuit split and determine whether this practice makes companies like Santander “debt collectors” or “creditors”. If the Court rules for the petitioners, companies like Santander will be required to adhere to the regulations under the Act regarding communications with debtors. If the Court rules for Santander, then companies can purchase the debt they are collecting on behalf of another—as a debt collector—and turn themselves into creditors, exempt from regulations regarding communication with debtors.

April 19

Trinity Lutheran Church v. Comer
No. 15-577; 8th Cir.

The “Playground Case” will almost certainly be the most important case of the term, as well as the first true partisan challenge for the newly confirmed Justice Gorsuch. It arose when the Trinity Lutheran Church applied for a grant from the state of Missouri to fund the purchase of a rubber surface for its playground. The Church’s preschool and daycare center utilize the playground, currently covered in pea gravel and grass, a much less forgiving surface than rubber. Initially, Missouri’s Department of Natural Resources ranked Trinity Lutheran very high on the grant list. After realizing, however, that the state constitution forbids Missouri from contributing money to religious organizations, the Department denied Trinity Lutheran’s bid.

In anticipation of this crucial test of the Establishment Clause, The George Washington Law Review Online Team attended a moot court hosted by the Newseum. Erik Stanley of the Alliance for Defending Freedom (“ADF”) participated on the side of Trinity Lutheran Church and Daniel Mach of the ACLU stood in for Comer.

Mr. Stanley, on behalf of the ADF (which will be arguing this case in front of the Supreme Court), began by asserting that the grant has absolutely nothing to do with religion. Acceptance of the grant is contingent upon the applicant’s match with sixteen neutral, non-religious criteria. The program providing the grants, he argued, is nothing more than a neutral initiative intended to protect children from getting hurt on the playground (the rubbery surface is a much safer option than alternatives, such as the existing pea gravel).

Mr. Mach responded that, despite its good intentions, the Church simply does not have the right to force taxpayers to help fund its activities, as this would directly violate the Establishment Clause of the First Amendment. Mr. Mach stressed that Missouri only needed to establish that they have the authority not to help fund religion, as held in Locke v. Davey. Mr. Mach asserted that this authority is rather obvious because three quarters of U.S. states do not support churches with taxpayer dollars, and the Supreme Court has consistently warned against direct cash payments of this kind.

Mr. Stanley argued that this case does not involve a valid Establishment Clause concern, again stressing both that this is a neutral grant program and that a playground is just about as far from religion as it gets. In other words, the fact that this case involves a playground is crucial because a playground is obviously secular. Mr. Stanley instead stated that there is a Free Exercise Clause concern, because the Church’s bid was denied solely because of its religious status.

Mr. Mach countered that the Church itself claims that religion is infused in everything the school does. “Sure,” Mr. Mach asserted, “there is nothing religious about tires. There’s also nothing religious about wood, but that wood could be used to build a chapel.” Mr. Stanley responded that there are controls in place to ensure the grant is only used to reimburse the Church for purchasing the tires. But Mr. Mach warned that there is no certainty as to what this playground will be used for in the future—perhaps for outdoor religious services—and there is no way for the grant program to know that at the time of application. In other words, Mr. Mach stressed that even a narrow ruling in this case would be a slippery slope for future cases. While the Court might find a playground to be sufficiently secular, what will the next case bring, and how will the Court rule?

Finally, Mr. Mach closed his argument with a warning: “Be careful what you wish for.” Noting the numerous exemptions and special benefits religious organizations currently receive, Mr. Mach argued that the Supreme Court could take all of those away if it rules in favor of Trinity Lutheran. “Sometimes you have to pay your own way,” he concluded with an implied wink.

After contentious confirmation hearings involving questions of partisanship, it is an open question as to where Justice Gorsuch will land. Based on prior rulings, it is likely he will be sympathetic to promoting the free exercise of religion.

Weaver v. Massachusetts
No. 16-240; Mass.

A jury convicted Kentel Weaver of first-degree murder for the shooting death of a 15-year-old boy outside of Boston. While Mr. Weaver’s trial attorney failed to press it at the time, his appellate lawyer correctly argued that there was a violation of Mr. Weaver’s rights when the judge declined to make two days of jury selection open to the public, including to Mr. Weaver’s family. As a result of his trial attorney’s “structural” error in failing to object to a non-public trial (and thus failing to correct a constitutional wrong), Mr. Weaver asked for a new trial, but was denied. While the court held he needed to prove prejudice—that this error somehow affected the outcome of his trial—Mr. Weaver’s attorney claimed the court could presume prejudice where a structural error impacting his constitutional rights occurred. The question at issue—whether the courts can presume prejudice or whether counsel must prove case-specific prejudice in these circumstances—has created a circuit split that the Court is now poised to resolve.

Advocates of Mr. Weaver’s view claim that certain errors are so structural in nature that it is nearly impossible to ascertain a prejudicial impact, and thus courts should simply presume prejudice. They argue that the presence of a structural error alone mandates a new trial. Advocates, like the ACLU, claim that refusing to presume prejudice will unfairly harm indigent defendants who are more likely to be represented by incompetent attorneys who make these types of errors.

Supporters of the opposing view claim courts should consider prejudice on a case-by-case basis and consider whether the effect of the error was pervasive, thus requiring the defendant to prove how he was prejudiced by the error. They say accepting a presumption will lead to inefficiency and resource waste, as attorneys will need to re-litigate cut-and-dry cases like this one.

The Court’s decision in this case will certainly impact convictions like Mr. Weaver’s. If the Court decides that the structural error of failing to object to a non-public trial requires a presumption of prejudice, then Mr. Weaver’s case will need to be retried. This could potentially open the floodgates to similarly situated prisoners seeking a retrial for their attorneys’ structural errors. Unless the decision is particularly narrow, it will also likely provide direction as to whether prejudice should be presumed in the context of other types of errors.

April 24

McWilliams v. Dunn
No. 16-5294; 11th Cir.

When an indigent defendant is entitled to meaningful expert assistance, must that assistance be independent of the prosecution? That is what the Court is set to decide in McWilliams v. Dunn.

James McWilliams is an inmate on Death Row in the State of Alabama. On December 30, 1984, McWilliams raped and robbed Patricia Reynolds, a convenience store clerk, shot her with a handgun, and fled. Later that evening, Reynolds died in surgery and McWilliams was arrested. A jury convicted McWilliams of first degree robbery and first degree murder during rape.

Before the murder, McWilliams voluntarily sought therapy from Dr. Sherill Rhodes and underwent psychological testing with Dr. Marci Davis. McWilliams’ defense team subpoenaed Dr. Rhodes to testify, but Dr. Rhodes ignored the subpoena. As such, only McWilliams and his mother testified at trial. McWilliams was allowed to read Dr. Davis’ report but, because he is not a trained psychologist, he could not explain technical details on cross-examination. The prosecution presented two mental health experts who testified that McWilliams was faking psychological symptoms and was not mentally ill. The jury voted, 10-2, for the death sentence.

At sentencing, McWilliams’ counsel moved for McWilliams to undergo neuropsychological testing for brain damage based on the information revealed during trial. The court granted the motion and ordered the Alabama Department of Corrections (“DOC”) to perform the testing. The DOC doctor concluded there was possible impairment, but was unable to complete all testing and asked the court to find another doctor, independent of the DOC, to finish the testing and avoid conflict. The new doctor concluded that there were some genuine neuropsychological problems and diagnosed McWilliams with organic personality syndrome.

McWilliams’ team subpoenaed his medical and psychiatric records multiple times in advance of the sentencing phase, but the DOC failed to comply until the day of the hearing. The final report arrived at 10 am the morning of the sentencing hearing. The court denied McWilliams’ motion for a continuance, and McWilliams was sentenced to death by electrocution. The conviction and sentence were affirmed on appeal.

In 2004, McWilliams filed a petition for a writ of habeas corpus, arguing that he was denied his due process rights under Ake v. Oklahoma which held that, in capital cases, the Fourteenth Amendment requires the government to provide an indigent defendant with the psychiatric assistance necessary to prepare an effective insanity defense. The district court denied the petition without addressing all claims.

The Eleventh Circuit vacated the denial of the petition and remanded the case back to the district court to address the specific claims. The district court again denied the petition, which was affirmed on appeal. The court held that McWilliams’ was not denied due process because he was provided with a competent psychiatric expert, satisfying Ake, and any harm he might have suffered was not prejudicial to the outcome.

The Court will decide whether the assistance required by Ake must be independent of the prosecution. Its decision will resolve a circuit split on the issue: most circuits have held that a neutral, shared, court psychiatrist does not satisfy due process, while a minority of circuits believe that is enough.

Davila v. Davis
No. 16-6219; 5th Cir.

In 2009, Erick Davila was tried for the murders of Annette Stevenson and her granddaughter in a botched drive-by shooting. Davila admitted responsibility for the shooting in three separate statements to police, but argued that he did not have the requisite intent to kill more than one person and thus could not receive the death penalty.

In Texas, a capital defendant must have specific intent to commit two murders to receive the death penalty. The jury entered a guilty verdict after receiving instructions that said “a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated or risked is that . . . a different person . . . was injured, armed, or otherwise affected.”

Davila’s appellate counsel did not attack the jury instruction on appeal, even though the instruction repudiated the Texas Penal Code by allowing the jury to ignore the specific intent requirement in death penalty cases. Davila’s state habeas corpus counsel missed a filing deadline, did not attack the appellate counsel’s performance, and apparently suffered from a stroke in a car accident that likely impaired his ability to prepare for Davila’s hearing.

Under Martinez v. Ryan and Trevino v. Thaler, if a prisoner had the opportunity to raise ineffective assistance of counsel claims in an initial-review collateral proceeding but did not, the prisoner is generally said to have defaulted on that claim unless he or she can show good cause, like further ineffective assistance of counsel. In this case, Davila argues that his habeas counsel was ineffective in not raising the ineffectiveness of his appellate counsel, and he has not defaulted on his right to appeal his Sixth Amendment right to effective counsel.

Martinez and Trevino dealt with state, not federal, courts, and Davila is now asking the Court to apply the Martinez and Trevino principles to ineffective assistance of federal appellate counsel. Texas argues that the Sixth Amendment extends only to effective assistance of counsel at the trial level, not the appellate level, because appeals do not center on guilt or innocence and thus are not what the Amendment seeks to protect.

April 25

Bristol-Myers Squibb Co. v. Superior Court of California
No. 16-466; Cal.

Three years ago, in Daimler AG v. Bauman, the Supreme Court limited the circumstances under which a state court may exercise general jurisdiction over a defendant—jurisdiction that attaches when a defendant’s contacts with a state are so substantial that the defendant can be sued there on any claim. Now, the Court could impose stricter limits on state courts’ exercise of specific jurisdiction—jurisdiction that results from the defendant’s contacts with the state related to the subject of the litigation at issue. A broad new pronouncement from the Court on specific jurisdiction could have significant ramifications for large corporations.

Individuals from California and 33 other states sued Bristol-Myers in California state court on product liability claims related to its prescription drug Plavix. Bristol-Myers is incorporated in Delaware and headquartered in New York. Although it marketed and sold Plavix nationally, including in California, none of the non-California plaintiffs obtained the drug there. Bristol-Myers argues it is not subject to specific jurisdiction in California with respect to the non-California plaintiffs because none of their injuries arose from its activities within the state.

The California Supreme Court disagreed. Although it found that Bristol-Myers could not be subject to general jurisdiction under the more stringent requirements of Daimler (requiring contacts with a state “so continuous and systematic” that the corporation “is fairly regarded as at home” in the state) it applied a “sliding scale” to determine if the company was subject to specific jurisdiction. Under that approach, as a defendant’s contacts with a state grow more extensive, the connection between those contacts and the litigation necessary to support specific jurisdiction becomes less direct. Given the breadth of Bristol-Myers’ operations in the state, the court found the non-California plaintiffs’ claims were sufficiently connected to its in-state operations to support jurisdiction.

The Supreme Court’s test for specific jurisdiction requires, first, contacts between the defendant and the forum state and, second, that the litigation “arise out of or relate to” those contacts. Bristol-Myers’ submission is that, for litigation to arise out of the defendant’s contacts, those contacts must proximately cause the plaintiff’s alleged injury. Only those lawsuits proximately caused by, and thus foreseeable from, the defendant’s contacts comport with the purposes of the personal jurisdiction requirement: to respect the boundaries of the federal system, ensure predictability in litigation, and honor “traditional notions of fair play and substantial justice.” By contrast, Bristol-Myers argues that the California Supreme Court’s sliding-scale approach undermines Daimler by allowing suits unrelated to a defendant’s contacts in the state, even if it is not subject to general jurisdiction there.

The non-California plaintiffs reply that the Court’s test for specific jurisdiction is more flexible than Bristol-Myers’ proposed proximate causation requirement allows. Under their view of the doctrine, a court may exercise specific jurisdiction over claims that are reasonably related to the defendant’s contacts with the state even if they are not causally connected to them. Moreover, they argue that Bristol-Myers’ stricter test would have undesirable practical consequences by making it more difficult for courts to consolidate related claims and thus leading to a proliferation of unnecessary lawsuits.

Depending on how broad a ruling the Court issues, Bristol-Myers could combine with Daimler to reduce forum options for litigants against corporations operating across the country.

BNSF Ry. Co. v. Tyrrell
No. 16-405; Mont.

Along with Bristol-Myers Squibb, this case also suggests personal jurisdiction could undergo a significant doctrinal shift. Taken together, the cases present the Court with an opportunity to reappraise the extent of state-court jurisdiction over nation wide corporations.

Of the two cases, BNSF is less likely to result in a broad holding, in part because the exercise of jurisdiction at issue arises under a federal statute. The Federal Employers’ Liability Act (“FELA”) provides a cause of action for railroad employees injured on the job “in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action,” and provides for concurrent jurisdiction in state and federal courts. The plaintiffs in this case, one of whom is deceased, are former BNSF employees suing for workplace injuries. Although neither plaintiff lives in Montana nor alleges injuries that took place in Montana, they filed suit against BNSF in Montana.

According to BNSF, that was no accident: Montana is a “[m]agnet jurisdiction” affording plaintiffs several procedural and substantive advantages in pressing their claims. BNSF moved to dismiss the cases for lack of jurisdiction. Citing the Supreme Court’s recent decision in Daimler, BNSF argued that it is not subject to personal jurisdiction in Montana for claims not arising there because it is not “at home” in the state. The Montana Supreme Court, however, held that FELA confers jurisdiction over the plaintiffs’ claims. Moreover, the court held that Daimler did not require a different result because in Daimler, the defendant was a foreign corporation and the activity giving rise to the suit took place overseas.

BNSF argues that the Montana Supreme Court misread FELA’s language, which it asserts was intended to afford plaintiffs a wide choice of venue, not to enlarge the states’ personal jurisdiction over FELA claims. FELA’s conferral of jurisdiction, BNSF argues, is limited to subject-matter jurisdiction. Indeed, BNSF maintains that Congress cannot confer personal jurisdiction on state courts in violation of the Fourteenth Amendment. Urging the Court to apply its holding in Daimler to resolve the case, BNSF argues that Daimler was not limited to cases of defendants operating abroad. Because BNSF does not have sufficient contacts with Montana to render it at home there, it cannot be subject to suit on claims unrelated to the state.

Tyrrell emphasizes that Congress’s purpose in enacting FELA was to make it easier for injured employees to bring claims against railroads without forcing them to travel to the company’s headquarters or place of incorporation. Read against the statute’s purpose and legislative history, Tyrrell argues that FELA’s terms allow the states to exercise both personal and subject-matter jurisdiction concurrently with the federal courts. FELA’s conferral of personal jurisdiction creates no constitutional problems, Tyrrell argues, because Congress’s power to do so is subject only to the due process requirements of the Fifth Amendment, not the Fourteenth.

April 26

Sandoz Inc. v. Amgen Inc.
No. 15-1039; Fed. Cir.

Sandoz created a drug called Zarxio, which is a biosimilar of Amgen’s Neupogen. A biosimilar is a medicine that is highly similar to its reference biologic, not unlike a generic medicine, but different in how it is approved for sale and consumption. Biologics are critical medicines made within cells or organisms, and both Zarxio and Neupogen treat cancer-related illnesses.

The Biologics Price Competition and Innovation Act of 2009 (“BPCIA”) allows for an abbreviated approval process for biosimilars. However, the application process, specifically the requirements for disclosure, are currently murky. When the maker of a biosimilar applies for commercial marketing approval from the Food and Drug Administration (FDA), the biosimilar maker (here, Sandoz) and the reference biologic creator (Amgen) must negotiate regarding disclosure of licensing information. Further, the biosimilar maker must notify the reference biologic creator “not later than 180 days before the first commercial marketing of the biological product licensed.” The Act, through the abbreviated approval process, promotes competition for biologic medicines.

In this case, the Federal Circuit held that a biosimilar applicant “may only give effective notice of commercial marketing after the FDA has licensed its product.” Sandoz claims that this timeframe allows Amgen undue exclusivity in the market and disconnects the notice provision from patent resolutions. The Court will now decide how to interpret the Act’s notice requirement, and determine whether biosimilars can rapidly enter the market and begin competing or if biosimilars will have to wait longer to compete with their reference biologics.

Maslenjak v. United States
No. 16-309; 6th Cir.

Divna Maslenjak sought and obtained refugee status from the United States. Years later, she became a naturalized citizen. The Court will now decide whether a naturalized American citizen may be stripped of her citizenship in a criminal proceeding based on an immaterial false statement she once gave.

Maslenjak is a native of modern day Bosnia, and although she was born in a predominately Serbian village, much of the population in the surrounding region clashed with ethnic Serbs like herself. In the 1990s, during the breakup of Yugoslavia, the U.S. sent immigration officials to assist refugees fleeing Bosnia and the ethnic cleansing. In 1998, Maslenjak and her family met with an officer to seek refugee status based on fear of persecution. During that meeting, Maslenjak stated that her husband had remained in Serbia, while she returned to Bosnia, to avoid conscription into the Bosnian Serb army during the Bosnian civil war. Maslenjak and her family were granted refugee status in 1999, immigrated to the U.S. in 2000, and Maslenjak obtained permanent resident status in 2004.

In 2006, Immigration and Customs Enforcement (“ICE”) officials questioned Maslenjak’s husband, Ratko, about whether he failed to disclose his military service in Serbia on his immigration application. Ratko was subsequently charged with two counts of making a false statement on a government document. Shortly after Ratko’s arrest, Maslenjak filed for naturalization. The application asked whether she had ever “knowingly given false or misleading information to any U.S. government official while applying for any immigration benefit or to avoid deportation, exclusion, or removal” and whether she ever lied “to gain entry or admission into the United States.” Maslenjak answered “no” to both questions. On August 3, 2007, Maslenjak was naturalized as a United States citizen.

In October of 2007, Ratko was found guilty on both counts of making false statements. He was sentenced to probation and taken into ICE custody, and applied for asylum to avoid removal. Maslenjak testified at his asylum hearing and admitted that her husband served in the military and that they had lived together, contradicting her original statement that he remained in Serbia while she returned to Bosnia.

In 2013, Maslenjak was charged with two counts of naturalization fraud for denying that she ever gave false or misleading information to U.S. officials. At trial, the court instructed the jury that, in order to find Maslenjak guilty of fraudulently obtaining her naturalization, it need not find that the false statements she gave to U.S. officials were material to the approval of her naturalization application, but rather that she knew them to be false when they were made. Maslenjak was convicted on both counts, sentenced to two years of probation, and stripped of her citizenship. The Sixth Circuit affirmed her conviction.

Maslenjak argues that the Sixth Circuit’s decision creates a direct conflict with the First, Fourth, Seventh, and Ninth Circuits over whether a naturalized citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. The Sixth Circuit is currently the only circuit to answer that question in the affirmative, and what the Supreme Court decides will impact the Nation’s immigration policies.


This post was authored by The George Washington Law Review Online Editorial Team.

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