Today the Supreme Court released three more opinions. A summary follows:
(1) Perry v. Merit Systems Protection Bd.: By a vote of 7-2, the judgment of the U.S. Court of Appeals for the D.C. Circuit is reversed and the case remanded. Per Justice Ginsburg's opinion for the Court: "This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA).... In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see §7703(c). When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as 'jurisdictional.' As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present." [Read More]
Today the Supreme Court issued six opinions and a new Order List.
(1) Ziglar v. Abbasi(with Ashcroft v. Abbasi and Hasty v. Abbasi): By a vote of 4-2, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed in part and vacated and remanded in part. Per Justice Kennedy's opinion for the Court: "After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.... The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.... If Bivensliability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril.... The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens.... One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.... [B]efore allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other 'sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy' in a suit like this one.... One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3).... [T]he Court has held that qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' Malley v. Briggs, 475 U. S. 335, 341 (1986).... Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.... The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings." [Read More]
(1) County of Los Angeles v. Mendez: By a vote of 8-0 the judgment of the U.S. Court of Appeals for the Ninth Circuit is vacated and the case remanded. Per Justice Alito's opinion for the Court: "If law enforcement officers make a 'seizure' of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force? The Ninth Circuit has adopted a 'provocation rule' that imposes liability in such a situation. We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure." [Read More]
(1) Cooper v. Harris: By a vote of 5-3 the judgment of the three-judge panel in the United States District Court for the Middle District of North Carolina is affirmed. Per Justice Kagan's opinion for the Court: "The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason. In this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority black. Applying a deferential standard of review to the factual findings underlying that decision, we affirm." [Read More]
The Supreme Court issued a new Order List this morning; in addition to several GVRs there were two new grants of cert. Opinions may issue on Tues and Wed of this week.
(1) U.S. Bank v. Village at Lakeridge: (grant limited to Question #2): Whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in this action.
(2) Leidos, Inc. v. Indiana Public Retirement Sys.: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.
CVSG: Snyder v. Doe (Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders' activities within school zones imposes “punishment” in violation of the ex post facto clause.)
Other Orders of Note:
Town of Chester v. Laroe Estates: Motion of Acting SG for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Nancy Sherman, Executrix for reconsideration of motion to be added as a respondent and for leave to participate in oral argument is denied.
Wilson v. Sellers: In light of the letter filed by respondent on March 15, 2017, the order inviting Adam K. Mortara, Esquire, of Chicago, Illinois, to brief and argue, as amicus curiae, in support of the judgment below is withdrawn.