Federal Courts

The President's Judicial Legacy

Litigation Practice Group Teleforum Monday, May 02, 02:00 PMFederalist Society Teleforum Conference Call

After almost eight years in office, President Obama’s 322 appointments to the federal courts have already begun to make a substantial impact on the law. In this teleforum, two litigators will talk about whether and how these new judges are shaping the law and the judiciary. They will focus in particular on the U.S. Courts of Appeals for the D.C. and Ninth Circuits.


  • Damien Schiff, Principal Attorney, Pacific Legal Foundation
  • Brett Shumate, Partner, Wiley Rein LLP

Simmons v. Himmelreich - Post-Argument SCOTUScast

SCOTUScast 3-28-16 featuring Aaron Nielson
Aaron Nielson March 28, 2016

On March 22, 2016, the Supreme Court heard oral argument in Simmons v. Himmelreich. This case arises from a lawsuit filed by federal prisoner Walter Himmelreich as the result of an assault by a fellow prisoner.  Although several of Himmelreich’s claims were dismissed in an initial round of litigation, the U.S. Court of Appeals for the Sixth Circuit allowed two to proceed on remand, of which one was a “Bivens” claim made against certain officials in their individual capacities for failing to protect him in violation of the Eighth Amendment. The district court ultimately dismissed the claim, concluding that the “judgment bar” of the Federal Tort Claims Act (“FTCA”) precluded Himmelreich from pursuing a Bivens action against the officials individually when his underlying FTCA claim against the government had failed. On a subsequent appeal the Sixth Circuit disagreed and again revived the Bivens claim, reasoning that the grounds on which the FTCA claim had failed--namely, an exception to liability--indicated a lack of subject matter jurisdiction that did not trigger the FTCA judgment bar.  The federal officials sought certiorari.

The question before the Supreme Court is whether, in an FTCA action brought under Section 1346(b), a final judgment dismissing the claim on the ground that relief is precluded by one of the FTCA exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.

To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

Americold Realty Trust v. ConAgra Foods - Post-Decision SCOTUScast

SCOTUScast 3-11-16 featuring Erik Zimmerman
Erik Zimmerman March 11, 2016

On March 7, 2016, the Supreme Court decided Americold Realty Trust v. ConAgra Foods, a case giving rise to a dispute over the scope of federal courts’ diversity jurisdiction. A group of corporations whose food perished in a warehouse fire sued the warehouse owner, currently known as Americold Realty Trust, in Kansas state court. Americold then removed the suit to the U.S. District Court for the District of Kansas, which accepted jurisdiction and resolved the dispute in favor of Americold. On appeal, however, the U.S. Court of Appeals for the Tenth Circuit held that the district court had lacked jurisdiction. Although the parties argued that diversity jurisdiction existed because the suit involved citizens of different states, the Tenth Circuit disagreed. As a trust and not a corporation, the court reasoned, Americold’s citizenship depended on that of its members, including shareholders.  Given the lack of evidence regarding the shareholders’ citizenship, the court held, the parties had failed to demonstrate that the plaintiffs were citizens of different states than the defendants.

By a vote of 8-0, the Supreme Court affirmed the judgment of the Tenth Circuit, holding that for purposes of diversity jurisdiction, the citizenship of an unincorporated entity depends on the citizenship of all of its members. Under Maryland law a real estate investment trust is held and managed for the benefit of its shareholders, the Court explained, so Americold’s members include its shareholders. Justice Sotomayor delivered the opinion for a unanimous court.

To discuss the case, we have Erik Zimmerman, who is an attorney with Robinson Bradshaw in Chapel Hill, North Carolina.

Sturgeon v. Frost - Post-Argument SCOTUScast

SCOTUScast 2-17-16 featuring Gale Norton
Gale Norton February 17, 2016

On January 20, 2016, the Supreme Court heard oral arguments in Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing.

The question before the Court is whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System.

To discuss the case, we have Gale Norton, who served as the 48th U.S. Secretary of the Interior.

Spokeo, Inc. v. Robins - Post-Argument SCOTUScast

SCOTUScast 12-9-15 featuring Erin Hawley
Erin M. Hawley December 09, 2015

On November 2, 2015, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. Robins sued website operator Spokeo, Inc. under the Fair Credit Reporting Act, complaining that Spokeo had published inaccurate personal information about Robins.  The district court determined that Robins had failed to allege an injury-in-fact and dismissed the case for lack of standing.  The U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Spokeo’s alleged violations of Robins’ statutory rights constituted sufficient injury, and that Robins satisfied the other requirements for Article III standing.

The question Spokeo raises before the Supreme Court is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

To discuss the case, we have Erin Hawley, who is Associate Professor of Law at University of Missouri School of Law.