Federal Courts

Judicial Deference and Congressional Action - Event Audio/Video

Fifth Annual Executive Branch Review Conference
Ronald A. Cass, John O. McGinnis, Richard Pierce, M. Edward Whelan, Thomas B. Griffith June 07, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. The Conference began with an opening address by Senator Mike Lee and concluded with a closing address by OMB Director Mick Mulvaney.

This panel of the 2017 Executive Branch Review Conference was held at the Mayflower Hotel in Washington, D.C. on May 17, 2017.

Breakout Session: Judicial Deference and Congressional Action
2:15 p.m. – 3:45 p.m.
East Room

  • Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC 
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern Pritzker School of Law
  • Prof. Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
  • Mr. M. Edward Whelan, President, Ethics and Public Policy Center 
  • Moderator: Hon. Thomas B. Griffith, United States Court of Appeals, D.C. Circuit

Mayflower Hotel
Washington, DC

TC Heartland LLC v. Kraft Foods Group Brands LLC - Post-Argument SCOTUScast

SCOTUScast 4-6-17 featuring J. Devlin Hartline
J. Devlin Hartline April 06, 2017

On March 27, 2017, the Supreme Court heard oral argument in TC Heartland LLC v. Kraft Foods Group Brands LLC. TC Heartland LLC (Heartland) is organized under Indiana law and headquartered in Indiana. Kraft Food Brands LLC (Kraft) is organized under Delaware law with its principal place of business in Illinois. Kraft sued Heartland in federal district court in Delaware, alleging that products Heartland shipped to Delaware infringed on Kraft’s patents for similar products. Heartland moved to dismiss the claim, arguing that the federal court in Delaware lacked the necessary jurisdiction over Heartland’s person--i.e., “personal jurisdiction.” Alternatively, Heartland sought transfer of the case to a venue in the Southern District of Indiana. The district court denied the motion to dismiss, holding that Heartland’s contacts with Delaware were sufficient to justify the exercise of personal jurisdiction. The court also denied the request to transfer venue, citing precedent in the U.S. Court of Appeals for the Federal Circuit indicating that, under 28 U.S.C. Secs. 1391 and 1400, venue for a corporate defendant, including in a patent infringement suit, is proper in any district in which the defendant is subject to a federal court’s personal jurisdiction.  

Heartland then sought a writ of mandamus from the Federal Circuit ordering the district court to dismiss the case or transfer venue, arguing that Heartland did not “reside” in Delaware for purposes of the patent venue statute, 28 U.S.C. Sec. 1400. The Federal Circuit denied the writ, indicating that the lower court had acted properly and that Congress’ 2011 amendments to the venue statute did not provide cause to change the Federal Circuit’s prevailing interpretation of the statute.

The question now before the Supreme Court is whether the patent venue statute, 28 U.S.C. § 1400(b), which provides that patent infringement actions “may be brought in the judicial district where the defendant resides[,]” is the sole and exclusive provision governing venue in patent infringement actions and is not affected by the statute governing “[v]enue generally,” 28 U.S.C. § 1391, which has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

To discuss the case, we have J. Devlin Hartline, who is Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

Microsoft Corp. v. Baker - Post-Argument SCOTUScast

SCOTUScast 4-6-17 featuring Cory L. Andrews
Cory L. Andrews April 06, 2017

On March 21, 2017, the Supreme Court heard oral argument in Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case.

The question now before the Supreme Court is whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.

To discuss the case, we have Cory L. Andrews, who is Senior Litigation Counsel for Washington Legal Foundation.

Courthouse Steps: McLane v. EEOC - Podcast

Labor & Employment Law Practice Group Podcast
Karen Harned February 23, 2017

In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.

Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split.

Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and joined us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.


  • Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center


Remarks by Vice President Michael R. Pence - Event Audio/Video

Philadelphia Lawyers Chapter
Michael R. Pence, Eugene B. Meyer February 10, 2017

These remarks were given by the Honorable Michael R. Pence, Vice President of the United States on February 4, 2017, at Congress Hall in Philadelphia, Pennsylvania.

Vice President Pence was welcomed by Eugene B. Meyer, President of the Federalist Society. Prayer was led by Reverend Paul Rourke, SJ, Chaplain of the Georgetown University Law Center. The Pledge of Allegiance was led by Vance Thomas Yanney II of the Shipley School, and the national anthem was sung by Leigh Emery, Co-founder of Broadway Lights the Night.