Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting!
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[Ballotpedia's Bold Justice]

Welcome to the March 2 edition of _Bold Justice_, Ballotpedia's newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Stay up-to-date on the latest news by following us on Twitter ([link removed]) or subscribing to the Daily Brew ([link removed]) .
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[We #SCOTUS so you don't have to]
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** ARGUMENTS
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The Supreme Court will hear five hours of arguments this week. Click here ([link removed]) to read more about SCOTUS' current term.

In its October 2018 term ([link removed]) , SCOTUS heard arguments in 69 cases. Click here ([link removed]) to read more about SCOTUS' previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

*
MARCH 2

*
In _Nasrallah v. Barr ([link removed]) _, Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce. An immigration judge determined that one of Nasrallah's convictions involved moral turpitude, which Nolo's Plain-English Law Dictionary ([link removed]) defines as "conduct that is shamefully wicked, an extreme departure from ordinary standards of morality, justice, or ethics." The immigration judge also determined the conviction constituted a particularly serious crime, making Nasrallah subject to removal as an alien. However, the judge granted Nasrallah protection from removal under the Convention Against Torture (CAT).

The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge's decision, and ordered Nasrallah's removal. Nasrallah petitioned the U.S. Court of Appeals for the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition, holding it lacked jurisdiction under 8 U.S. Code § 1252(a)(2)(C).

Section 1252(a)(2)(C) ([link removed]) prohibits courts from having "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain criminal offenses.

THE ISSUE (FROM SCOTUSBLOG ([link removed]) ): "Whether Section 1252(a)(2)(C), which bars judicial review of factual determinations in final orders of removal on criminal grounds, also bars judicial review of Nasrallah’s challenge to the denial of his application for deferral of removal under the CAT."

*
In _Department of Homeland Security v. Thuraissigiam ([link removed]) _, Vijayakumar Thuraissigiam, a Sri Lankan native, illegally entered the United States by crossing the border with Mexico in 2017. A U.S. Customs and Border Protection officer apprehended Thuraissigiam and the U.S. Department of Homeland Security (DHS) began expedited removal proceedings. An asylum officer and later an immigration judge decided Thuraissigiam did not have a credible fear of persecution in Sri Lanka.

Thuraissigiam filed a petition for a writ of habeas corpus ([link removed]) in the U.S. District Court for the Southern District of California. The district court dismissed the petition for lack of subject matter jurisdiction, ruling the court was not authorized to review claims under 8 U.S.C. § 1252(e).

On appeal, the 9th Circuit Court of Appeals reversed and remanded the district court's ruling. The 9th Circuit held § 1252(e)(2) violated Thuraissigiam's rights under the U.S. Constitution's Suspension Clause, which bars a writ of habeas corpus from being suspended once it has been issued.

DHS filed a petition for review with the U.S. Supreme Court.

THE ISSUE: Whether 8 U.S.C. § 1252(e)(2) is unconstitutional under the Suspension Clause.

*
MARCH 3

*
_Seila Law v. Consumer Financial Protection Bureau ([link removed]) _ concerns the extent of the president’s appointment and removal powers. The Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to the California-based firm, Seila Law. Seila Law refused to comply, so the agency petitioned the U.S. District Court for the Central District of California, asking it to enforce the demand. Seila Law responded by arguing that the CFPB violated the U.S. Constitution's separation of powers doctrine. The district court rejected Seila Law's argument and ordered it to comply.

Seila Law appealed to the 9th Circuit Court of Appeals, which affirmed the district court's order.

THE ISSUES:

* Whether the vesting of substantial executive authority in the CFPB, an independent agency led by a single director, violates the separation of powers.
 

*
If the CFPB is found unconstitutional on the basis of the separation of powers, can 12 U.S.C. §5491(c)(3) be severed from the Dodd-Frank Act?
The Dodd-Frank Act created the CFPB in 2010. 12 U.S.C. §5491(c)(3) ([link removed]) of the Act established one agency director, a presidential appointee subject to Senate confirmation. The director serves a five-year term, and can be removed only for cause—"inefficiency, neglect of duty, or malfeasance in office."
 

* In _Liu v. Securities and Exchange Commission ([link removed]) _, the Securities and Exchange Commission (SEC) sued business partners Charles Liu and Lisa Wang, alleging they had misappropriated funds and defrauded investors in their EB-5 visa business. The U.S. District Court for the Central District of California ruled in favor of the SEC, finding that Liu and Wang violated the Securities Act of 1933, and imposed civil penalties in addition to a disgorgement order requiring Liu and Wang to surrender to the SEC the millions of dollars they raised from investors.

The 9th Circuit Court of Appeals affirmed the lower court's ruling. Liu and Wang appealed to the U.S. Supreme Court, arguing the SEC lacked the legal authority to ask the district court to impose a disgorgement order.

Disgorgement ([link removed]) is a "remedy requiring a party who profits from illegal or wrongful acts to give up any profits he or she made as a result of his or her illegal or wrongful conduct."

THE ISSUE: Whether the SEC may seek and obtain disgorgement from a court as "equitable relief" for a securities law violation even though the U.S. Supreme Court has determined that such disgorgement is a penalty.

*
MARCH 4

*
_June Medical Services v. Gee ([link removed]) _ is consolidated with _Gee v. June Medical Services_.

June Medical Services, a clinic in Shreveport, Louisiana, challenged Louisiana Act 620 in court. Act 620 established requirements for doctors performing abortions, specifically that they be able to admit patients and provide diagnostic and surgical services to a hospital within 30 miles of the facility where the abortion is performed.

The U.S. District Court for the Middle District of Louisiana issued a preliminary injunction. Louisiana appealed to the 5th Circuit Court of Appeals, which lifted the injunction. The U.S. Supreme Court then restored the injunction.

While June Medical Services' lawsuit was ongoing, the U.S. Supreme Court held in _Whole Woman's Health v. Hellerstedt_ that a Texas law similar to Act 620 was unconstitutional.

On remand, the Middle District of Louisiana held Act 620 was unconstitutional. On appeal, the 5th Circuit reversed the district court's ruling and denied an en banc rehearing.

June Medical Services petitioned the U.S. Supreme Court for a writ of certiorari, arguing the 5th Circuit's ruling "conflicts with Whole Woman's Health in its result and its reasoning."

THE ISSUE: Whether the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the U.S. Supreme Court’s binding precedent in _Whole Woman’s Health v. Hellerstedt_ (2016).

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** OPINIONS
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SCOTUS ruled on seven cases since our February 24 issue. The court has issued rulings in 11 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since February 24:

*
FEBRUARY 25

* _McKinney v. Arizona ([link removed]) _ was argued before the court on December 11, 2019.

THE CASE: James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A U.S. district court denied McKinney's petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence.

THE OUTCOME: In a 5-4 opinion, the court affirmed the Arizona Supreme Court's ruling, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty.

Justice Brett Kavanaugh delivered the opinion of the court. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
 
* _Rodriguez v. Federal Deposit Insurance Corporation ([link removed]) _ was argued before the court on December 3, 2019.

THE CASE: United Western Bank, a subsidiary of Colorado corporation United Western Bancorp, Inc. (UWBI), closed in 2011 after suffering $35.4 million in losses. The Federal Deposit Insurance Corporation (FDIC) was appointed as United Western Bank's receiver. An agency or court appoints a receiver as an alternative to filing for bankruptcy. The receiver manages the assets of a bankrupt business.

Also in 2011, the parent company, UWBI, filed a tax refund request of $4.8 million to recover a portion of United Western Bank's 2008 taxes. In 2012, UWBI filed for bankruptcy. Both the FDIC and UWBI argued in bankruptcy court that the tax refund belonged to them. The bankruptcy court ruled the refund belonged to UWBI.

On appeal, the U.S. District Court for the District of Colorado reversed the bankruptcy court's decision. Simon Rodriguez, the Chapter 7 trustee for UWBI's bankruptcy estate, appealed to the 10th Circuit Court of Appeals, which affirmed the district court's ruling and remanded the case to the bankruptcy court.

Rodriguez petitioned the U.S. Supreme Court to review the 10th Circuit's decision, arguing circuit courts were divided on the question of tax refund ownership.

THE OUTCOME: In a unanimous opinion, the court vacated and remanded the judgment of the 10th Circuit Court of Appeals, holding the Bob Richards rule ([link removed]) "is not a legitimate exercise of federal common lawmaking," in which federal judges—instead of Congress, agencies, or states—make laws. SCOTUS held federal judges "may appropriately craft the rule of decision in only limited areas."

The Bob Richards rule came from a 9th Circuit decision in In re Bob Richards Chrysler-Plymouth Corp., Inc. in 1973. The rule "presumes that a tax refund belongs to the subsidiary that caused the underlying loss unless the parties have entered into a tax agreement clearly assigning the refund to the parent."

Justice Neil Gorsuch ([link removed]) delivered the opinion of the court.
 
* _Hernandez v. Mesa ([link removed]) _ was argued before the court on November 12, 2019.

THE CASE: U.S. Customs and Border Patrol Agent Jesus Mesa shot and killed 15-year-old Mexican national Sergio Hernandez. The Hernandez family filed charges against Mesa. The U.S. District Court for the Western District of Texas dismissed the case.

After several appeals, the U.S. Supreme Court heard arguments in _Hernandez v. Mesa_ in 2016. Click here ([link removed]) for more information about the 2016 case. At that time, SCOTUS vacated the 5th Circuit's judgment and remanded the case so the 5th Circuit might reconsider its ruling in light of the Supreme Court's opinion in _Ziglar v. Abbasi ([link removed]) _ (2017). In Ziglar, the U.S. Supreme Court held that it could not authorize an action for implied damages against former federal officials under the court's precedent in _Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics_ (1971).

On remand, the 5th Circuit ruled the Hernandez family could not rely on Bivens to file charges and affirmed the district court's dismissal of the case. Bivens provides for relief under the Fourth and Fifth Amendments when a U.S. government agent uses excessive, deadly force.

THE OUTCOME: The court affirmed the decision of the United States Court of Appeals for the 5th Circuit in a 5-4 ruling, holding that the plaintiffs cannot sue the U.S. Customs and Border Patrol agent for damages under the U.S. Constitution and that the _Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics_ holding does not extend to claims based on a cross-border shooting.

Justice Samuel Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
 
* _Monasky v. Taglieri ([link removed]) _ was argued before the court on December 11, 2019.

THE CASE: _Monasky v. Taglieri_ concerned the standard of review for "habitual residence" and how to establish "habitual residence" for purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

Domenico Taglieri, an Italian citizen, and Michelle Monasky, an American citizen, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.'s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T's return to Italy under the Hague Convention. The district court granted Taglieri's petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court's ruling.

THE OUTCOME: The U.S. Supreme Court affirmed the 6th Circuit's decision in a unanimous ruling, holding an actual agreement between the parents on where to raise a child is not necessary to establish the child's habitual residence.

Justice Ruth Bader Ginsburg delivered the opinion of the court. Justice Clarence Thomas joined as to Parts I, III and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Samuel Alito filed an opinion concurring in part and concurring in the judgment.

*
FEBRUARY 26

*
_Intel Corp. Investment Policy Committee v. Sulyma ([link removed]) _ was argued before the court on December 4, 2019.

THE CASE: The case concerned the interpretation of the Employee Retirement Income Security Act (ERISA) statute of limitations.

Christopher Sulyma worked at Intel from 2010 to 2012, where he participated in retirement accounts an Intel investment committee managed. In 2015, Sulyma sued Intel, claiming the committee mismanaged his retirement accounts and violated the ERISA. The U.S. District Court for the Northern District of California granted summary judgment in favor of Intel, who argued Sulyma's claims were untimely under Section 1113(2) of the ERISA.

Section 1113(2) ([link removed]) limits filing suit related to alleged fiduciary breaches to "three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation."

The 9th Circuit Court of Appeals reversed the ruling and remanded the case.

THE OUTCOME: The court affirmed the 9th Circuit's decision in a unanimous ruling, holding that to meet the "actual knowledge" requirement of Section 1113(2), a plaintiff must be aware of an alleged breach or violation. Justice Alito wrote, "The addition of 'actual' in §1113(2) signals that the plaintiff's knowledge must be more than 'potential, possible, virtual, conceivable, theoretical, hypothetical, or nominal.'"
 

*
_Holguin-Hernandez v. U.S. ([link removed]) _ was argued before the court on December 10, 2019.

THE CASE: Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court's judgment.

SCOTUS was considering ([link removed]) "whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant's sentence."

THE OUTCOME: The court vacated and remanded the 5th Circuit's decision in a unanimous ruling, holding a formal objection after a sentencing pronouncement is not necessary to invoke "an appellate challenge to the substantive reasonableness of the sentence."

Justice Breyer wrote, "A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is 'greater than necessary' has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence."
 

*
_Shular v. United States ([link removed]) _was argued before the court on January 21, 2020.

THE CASE: Eddie Shular pleaded guilty to charges of possession of a firearm by a convicted felon and possession of controlled substances. Shular was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA). The U.S. District Court for the Northern District of Florida overruled the objection and sentenced Shular to concurrent terms of 15 years in prison on each count. On appeal, the 11th Circuit Court of Appeals affirmed the district court's ruling.

Shular appealed to the U.S. Supreme Court, pointing to a circuit split regarding the determination of serious drug offenses under the ACCA.

THE OUTCOME: The court affirmed the 11th Circuit's decision in a unanimous ruling, holding the ACCA's "serious drug offense" definition refers to conduct and does not "call for a comparison to a generic offense." Justice Ginsburg wrote, "The 'serious drug offense' definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses."

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** UPCOMING SCOTUS DATES
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Here are the court’s upcoming dates of interest:

*
March 2: 

*
SCOTUS will release orders and/or opinions.

*
SCOTUS will hear arguments in two cases.

*
March 3: SCOTUS will hear arguments in two cases.

*
March 4: SCOTUS will hear arguments in one case.

*
March 6: SCOTUS will conference. A conference is a private meeting of the justices.

*
March 9: SCOTUS will release orders and/or opinions.

*
March 20: SCOTUS will conference.

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[SCOTUS trivia]
Sandra Day O'Connor was the first woman to serve on the U.S. Supreme Court. Before joining SCOTUS, O'Connor served as the first female majority leader in which state Senate?

*
a. Washington ([link removed])

*
b. Oklahoma ([link removed])

*
c. Florida ([link removed])

*
d. Arizona ([link removed])

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[Federal Court action]

 
** CONFIRMATIONS
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The Senate confirmed one new nominee since our February 24 issue.

*
Silvia Carreno-Coll ([link removed]) , confirmed to the U.S. District Court for the District of Puerto Rico ([link removed]) . After she received commission, the court had:

*
No vacancies.

*
Five Republican-appointed judges and two Democrat-appointed judges. 

Since January 2017, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

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** NOMINATIONS
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President Trump has not announced any new Article III ([link removed]) nominees since our February 24 edition.

The president has announced 245 Article III ([link removed]) judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here ([link removed]) .

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** VACANCIES
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The federal judiciary currently has 78 vacancies. As of publication, there were 36 pending nominations.

According to the Administrative Office of U.S. Courts ([link removed]) , an additional eight judges have announced their intention to leave active judicial status during Trump’s first term.

For more information on judicial vacancies during Trump's first term, click here ([link removed]) .

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** COMMITTEE ACTION
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The Senate Judiciary Committee ([link removed]) has not reported any new nominees out of committee since our February 24 edition.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count ([link removed]) , published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here ([link removed]) for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here ([link removed]) for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals ([link removed]) President Trump has nominated.

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[Looking ahead]
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We'll be back March 9 with a new edition of _Bold Justice_. 

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