SCOTUS Crowd Turns Out for Civ Pro Arguments (and Gorsuch)


Gorsuch HIGH FIVE
I’ve long suspected that there were a huge numbers of closet civ pro fans in the Washington area, but the proof came Monday April 17 when hordes turned out for a rare-trifecta of U.S. Supreme Court arguments featuring civil procedure issues.

Oh yeah, and it was Justice Neil Gorsuch’s first day on the high court bench too.

First up for the new justice was a case about judicial review of so-called mixed cases, “those in which a federal worker appeals a serious personnel action, such as discharge or suspension, and also alleges that unlawful discrimination motivated the adverse action,” according to Bloomberg BNA’s labor reporter Kevin McGowan.

The question in No. 16-399, Perry v. Merit Systems Protection Board, is where such cases should go if the MSPB tosses the case on jurisdictional grounds—a federal district court or the U.S. Court of Appeals for the Federal Circuit.
The case “hinges on statutory interpretation” and was therefore “a fitting start for Gorsuch, known for taking a strict, text-focused view of the law,” Kevin said.

While Gorsuch seemed to think his approach to statutory interpretation made the case an easy one, Justice Samuel A. Alito Jr. had more difficulty with the text.

The statute was so complex, Alito wondered who could write such a scheme. “Somebody who takes pleasure out of pulling the wings off flies?” Alito quipped.

But don’t worry … Kevin’s simplified the statute and the argument for you here.

Keeping on the civ pro theme, the court next considered whether intervenors must meet Article III standing requirements, in No. 16-605, Town of Chester v. Laroe Estates.

It’s a question that has split the lower federal appellate courts, Bloomberg BNA’s Bernie Pazanowski said. Some circuit courts say intervenors must meet the standing requirements, some say no. It looks like the Supreme Court might take a middle ground.

Read why here.

Finally, the justices planned a rare treat for their new colleague’s first day on the bench … an extra argument! Though the court typically only hears two arguments per day, the court also heard No. 16-373, CalPERS v. ANZ Securities on Monday after a short lunch break.

The question is whether the “filing of a class action stops the clock on a three-year time limit set out in securities law provisions governing when lawsuits must be filed,” Bloomberg BNA’s securities reporter Antoinette Gartrell said.

“The issue is important to institutional investors who often opt out of securities class litigation to bring their own individual suits,” Antoinette said.

The argument was too close to call, but it’s unlikely that the case “will have a significant effect on securities litigation over the long term,” Antoinette said.

Read why here.

Day two of this week’s oral arguments brought … you guessed it … another civ pro case! This one, No. 16-529, Kokesh v. SEC, asks if a federal statute of limitations is applicable to a particular federal securities action.

The answer is likely yes, according to Bloomberg’s Supreme Court reporter Greg Stohr.

The justice “signaled they will scale back the power of the Securities and Exchange Commission to recoup money taken years earlier in violation of federal law,” Greg said.

Read more about the argument here.

Returning to normal practice, the court heard just one other case on Tuesday, No. 16-349, Henson v. Santander Consumer USA.

The case asks if a company that regularly attempts to collect defaulted debts that it purchased is subject to the burdensome requirements of the Fair Debt Collection Practices Act.

The justices have been interested in the precise contours of the act, hearing several FDCPA cases over the last few terms.

The court got deep into the weeds in this case over the specifics of hypothesized financing structures, but ultimately it wasn’t clear which way the case would turn out.

You can read the transcript here.

Finally, the Supreme Court rounded out Gorsuch’s final week with a much-anticipated religious-freedom showdown.

It’s been widely speculated that the court has been holding onto No. 15-577, Trinity Lutheran Church v. Comer for over a year in hopes that there would be a full bench to hear the case and avoid a 4-4 decision.

The case involves the murky Establishment Clause and whether states can refuse to give funding to churches that is generally available to non-religious groups.

It’s an issue that has divided the court’s liberal and conservative blocs in the past.

But Wednesday’s argument seemed far from close.

Several justices—including Democratic-appointees Stephen G. Breyer and Elena Kagan—“seemed skeptical about Missouri's ban on public funding to churches,” Bloomberg BNA’s Patrick Gregory said.

“The outcome could undo 39 states’ bans on such funding,” Patrick said.

Read why here.

Finally, the court finished up the week with a criminal law case, No. 16-240, Weaver v. Massachusetts.

There, the justices considered what a defendant must prove to get a new trial when their attorney fails to object to something that amounts to a “structural error.” Prejudice from structural errors is generally assumed, such that a defendant doesn’t have to demonstrate it.

Here, however, the structural error comes to the court via an ineffective assistance of counsel claim, where prejudice generally isn’t presumed, but must instead be proven by the defendant before a court will order a new trial.

“The government is putting defendants in the ‘Kafkaesque’ position of proving something the court has repeatedly said is unprovable, Justice Elena Kagan said,” according to Bloomberg BNA’s criminal reporter Alisa Johnson.

But not all justices were as sympathetic to the defendant here as Kagan. Gorsuch, like Chief Justice John G. Roberts Jr., wondered if the “error in this case was too trivial to warrant relief,” Alisa said.

Read more about the error and the argument here.

That’s all for this week’s oral arguments. The court will hear its last arguments of the 2016 term next week.

Until then, you can follow along with the latest Supreme Court news with a free trial to United States Law Week.