Supreme Court issues first two opinions of 2019-20 term

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Welcome to Saturday! If you missed it, this week we voted on our favorite holiday cookie. Check out the results here ([link removed]) and as always your week of federal news is below.

Read the full Tap online ([link removed])

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** U.S. SENATE CONFIRMS TWO FEDERAL APPEALS COURT JUDGES, HAS CONFIRMED 50 SUCH JUSTICES DURING TRUMP'S PRESIDENCY
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* The U.S. Senate confirmed Patrick Bumatay ([link removed]) and Lawrence VanDyke ([link removed]) to the U.S. Court of Appeals for the 9th Circuit. The Senate confirmed Bumatay by a 53-40 vote and VanDyke by a 51-44 vote. Neither nominee received support from their home-state senators. 
 
* Overall, the Senate has confirmed 174 of President Trump’s judicial nominees—120 district court judges, 50 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
 
* After they receive their judicial commission, the 9th Circuit will have no vacancies, 16 Democrat-appointed judges, and 13 Republican-appointed judges. This breakdown is consistent with the court's current levels since Bumatay and VanDyke are succeeding two Republican-appointed judges who did not vacate their seats before the confirmation of their successor. 
 
* President Trump has appointed the most judges to the U.S. Courts of Appeal of the past 20 presidents on or before December 1 of their third year in office.

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** SUPREME COURT ISSUES FIRST TWO OPINIONS OF 2019-20 TERM
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* The U.S. Supreme Court released the first two opinions of the 2019-2020 term this week. The court released an opinion in _Rotkiske v. Klemm_ on December 10 and in _Peter v. NantKwest_ on December 11. Click here ([link removed]) for more information about the court's 2019 term.
 

* In Rotkiske v. Klemm ([link removed]) , the court affirmed the decision of the U.S. Court of Appeals for the 3rd Circuit, holding that the Fair Debt Collection Practices Act's (FDCPA) "statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered." Justice Clarence Thomas wrote the 8-1 opinion. Justice Sonia Sotomayor filed a concurring opinion. Justice Ruth Bader Ginsburg wrote an opinion dissenting in part and dissenting from the judgment. The case was argued on October 16, 2019.
 

* Kevin Rotkiske accumulated credit card debt between 2003 and 2005. His bank referred to Klemm & Associates (Klemm) for collection. In 2009, someone accepted service for a debt collection lawsuit on Rotkiske's behalf without his knowledge. Klemm obtained a default judgment of approximately $1,500.
 
* Rotkiske discovered the default judgment in 2014. He sued Klemm for violating the FDCPA. Klemm moved to dismiss the claim as untimely. The U.S. District Court for the Eastern District of Pennsylvania granted Klemm's motion. Rotkiske appealed and the U.S. Court of Appeals for the 3rd Circuit affirmed the district court's ruling. The 3rd Circuit held Section 1692k(d) of the FDCPA's "one-year limitations period begins to run when a would-be defendant violates the FDCPA, not when a potential plaintiff discovers or should have discovered the violation."
 
* In affirming the district court's ruling, the 3rd Circuit rejected Rotkiske's argument that the FDCPA incorporates a "discovery rule" that "delays the beginning of a limitations period until the plaintiff knew of or should have known of his injury," as the 4th Circuit and the 9th Circuit have held. Rotkiske then petitioned the U.S. Supreme Court to review the case, which concluded with this ruling.
 

* In Peter v. NantKwest ([link removed]) , the court issued a unanimous ruling affirming the decision of the U.S. Court of Appeals for the Federal Circuit. SCOTUS held the United States Patent and Trademark Office (PTO) cannot recover attorneys fees and expenses under Section 145 of the U.S. Patent Act. Justice Sotomayor wrote the opinion. The case was argued on October 7, 2019.
 

* In 2010, the PTO rejected Dr. Hans Klingemann and NantKwest, Inc.'s, patent application. The Patent Trial and Appeal Board affirmed the rejection. Klingemann challenged the rejection under Section 145 of the U.S. Patent Act in the U.S. District Court for the Eastern District of Virginia. The district court and the U.S. Court of Appeals for the Federal Circuit affirmed the PTO's patent rejection. 
 
* The PTO filed a motion for reimbursement of attorneys' fees under Section 145, which the district court denied. On appeal, a divided Federal Circuit panel reversed the district court's judgment. Sitting en banc (when all of a court's active judges hear a case), the Federal Circuit then vacated the panel's decision and affirmed the district court's initial rejection of the motion for attorneys' fees reimbursement.
 
* The PTO appealed to the U.S. Supreme Court, arguing the Federal Circuit's en banc ruling "contravenes the ordinary meaning of 'expenses' and is inconsistent with Section 145’s history and purpose." In her opinion, Justice Sotomayor wrote that the language in Section 145 "does not invoke attorney's fees with the kind of 'clarity we have required to deviate from the American Rule.'" The "American Rule" is a principle in which each litigant pays his or her own attorney's fees unless the law or a contract says otherwise.

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** REP. YOHO (R-FLA.) BECOMES 32ND U.S. HOUSE MEMBER TO ANNOUNCE HE’S NOT RUNNING FOR RE-ELECTION IN 2020
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* Rep. Ted Yoho ([link removed]) (R-Fla.) announced that he would not seek re-election ([link removed]) in 2020. Yoho said he is honoring a promise he made to serve no more than four terms in the U.S. House. Yoho was first elected to represent Florida’s 3rd Congressional District in 2012. In each general election from 2012 to 2018, Yoho won by at least 15 percentage points. There are currently two Democrats and two Republicans filed to run for his seat in 2020.
 
* Yoho is the 23rd Republican member of the U.S. House to announce he would not be seeking re-election in 2020. There are also nine Democratic members of the U.S. House to announce 2020 retirements so far. In the 2018 election cycle, 52 members of the U.S. House—18 Democrats and 34 Republicans—did not seek re-election.
 
* Currently, Democrats hold a 233-197 majority in the U.S. House with one independent member of the chamber. In November 2020, all 435 seats will be up for election. Ballotpedia has identified 72 U.S. House races as general election battlegrounds. Of the 72 seats, 42 are held by Democrats and 30 are held by Republicans heading into the election.

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** HOUSE JUDICIARY COMMITTEE APPROVES TWO ARTICLES OF IMPEACHMENT AGAINST TRUMP
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* House Democrats introduced two articles of impeachment ([link removed]) charging Donald Trump ([link removed]) with abuse of power and obstruction of Congress on Friday. Following a full day of hearings on Thursday, the House Judiciary Committee approved both articles on Friday by a party-line vote of 23-17.
 
* A full House vote is expected next week before Congress goes on recess for the holidays. 

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** SEVEN DEMOCRATIC CANDIDATES TO PARTICIPATE IN SIXTH PRESIDENTIAL PRIMARY DEBATE
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* Seven Democrats will participate in the sixth presidential primary debate: Joe Biden, Pete Buttigieg, Amy Klobuchar, Bernie Sanders, Tom Steyer, Elizabeth Warren, and Andrew Yang.
 
* Three candidates who participated in the Nov. 20 debate will be missing from the stage: Cory Booker, Tulsi Gabbard, and Kamala Harris, who withdrew earlier this month.
 
* Thursday’s debate will take place at Loyola Marymount University in Los Angeles. PBS NewsHour and Politico are hosting the event with Judy Woodruff, Tim Alberta, Amna Nawaz, and Yamiche Alcindor moderating.
 
* Each candidate had to receive 4% support or more in at least four national or early state polls or 6% support or more in at least two single state polls to meet the debate’s polling threshold. The four early states are Iowa (Feb. 3), New Hampshire (Feb. 11), Nevada (Feb. 22), and South Carolina (Feb. 29).
 
* Candidates also had to meet a fundraising threshold with 200,000 unique donors and a minimum of 800 donors in at least 20 states.
 
* Six more debates are planned for the Democratic Party's presidential primary. The Democratic National Committee has not yet released the criteria for the next debate in January.

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** FILING PERIOD FOR CONGRESSIONAL CANDIDATES ENDS IN TEXAS
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* The major-party filing deadline passed to run for elected office in Texas ([link removed]) . Candidates filed for the following offices: 

* U.S. Senate ([link removed])

* Incumbent John Cornyn (R) filed for re-election.

* U.S. House of Representatives ([link removed]) - 36 seats

* The incumbent did not file to run for re-election in House districts 11, 13, 17, 22, 23, and 24.
 

* The primary is scheduled for March 3, and the general election is scheduled for November 3, 2020.
 
* Texas’ statewide filing deadline was the fifth ([link removed]) to take place in the 2020 election cycle. The next statewide filing deadline is on December 18 in Ohio.

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** SUPREME COURT HEARS ORAL ARGUMENTS IN CASES INVOLVING PATENT CLAIMS, CONGRESSIONAL APPROPRIATIONS, AND CAPITAL PUNISHMENT
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* The Supreme Court heard arguments in six cases this week. Click here ([link removed]) to read more about SCOTUS' current term.

 
** DECEMBER 9
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* In Guerrero-Lasprilla v. Barr ([link removed]) , Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with _Ovalles v. Barr_.

THE ISSUE: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a "question of law?"

(2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.

* In Thryv Inc. v. Click-To-Call Technologies, LP ([link removed]) , Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the "836 Patent"). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP ("CTC") acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board ("Board") allowed for an inter partes review (IPR) of the patent challenge.

An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit.

CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC's time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board's grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc.

THE ISSUE: Whether 35 U.S.C. § 314(d) permits appeal of the Board's decision to institute an IPR upon finding that § 315(b)'s one-year time bar did not apply.

Title 35 U.S.C. § 314(d) reads, "The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.

 
** DECEMBER 10
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* In Maine Community Health Options v. United States ([link removed]) , as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments.

Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress' appropriations provisions.

The case was consolidated with _Moda Health Plan Inc. v. United States _and _Land of Lincoln Mutual Health Insurance Co. v. United States_.

THE ISSUE: According to Amy Howe from SCOTUSblog ([link removed]) , "U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement."
 
* In Holguin-Hernandez v. U.S. ([link removed]) , 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.

THE ISSUE: 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.

 
** DECEMBER 11
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* Monasky v. Taglieri ([link removed]) concerns 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, and Michelle Monasky, an American, 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 ISSUE: (1) Whether a district court's determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court's findings—as seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review ([link removed]) , as the Fourth and Sixth Circuits have held.

(2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant's parents is necessary to establish her habitual residence under the Hague Convention.

* In McKinney v. Arizona ([link removed]) , James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal 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 ISSUE: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

(2) Whether the correction of error under _Eddings v. Oklahoma_, 455 U.S. 104 (1982), requires resentencing.

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** FILING PERIOD TO END FOR CONGRESSIONAL CANDIDATES IN OHIO
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* The statewide filing deadline will pass to run for elected office in Ohio ([link removed])  next Wednesday. The deadline for independent candidates is March 16, 2020. In Ohio, prospective candidates may file for the following offices:

* U.S. House of Representatives ([link removed]) - 16 seats
 

* Neither of Ohio’s United States Senate seats is up for election in 2020. 
 
* The primary is scheduled for March 17, and the general election is scheduled for November 3, 2020.
 
* Ohio’s statewide filing deadline is the sixth ([link removed]) to take place in the 2020 election cycle. The next statewide filing deadline is on December 20 in North Carolina.

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** STEYER LEADS DEMOCRATIC PRESIDENTIAL CANDIDATES IN BALLOTPEDIA PAGEVIEWS THIS WEEK
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* Tom Steyer's campaign page on Ballotpedia received 3,282 views for the week of December 1-7. Steyer's pageview figure represents 9.1% of the pageviews for the week. Andrew Yang had 8.8% of the pageviews for the week, followed by Pete Buttigieg with 8.5%. This is Steyer's second consecutive week leading in pageviews.
 
* Each week, we report ([link removed]) the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers show which candidates are getting our readers' attention.
 
* Every Democratic candidate other than Steyer, Buttigieg, and Tulsi Gabbard had more pageviews last week than the week before. The three candidates with the greatest week-over-week increases were Julián Castro (52.8%), Bernie Sanders (40.5%), and Joe Biden (37.5%).
 
* Andrew Yang remains the leader in overall pageviews this year with 150,806. He is followed by Pete Buttigieg with 144,572 and Joe Biden with 134,882.

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** FILING PERIOD TO END FOR CONGRESSIONAL CANDIDATES IN NORTH CAROLINA
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* The statewide filing deadline will pass to run for elected office in North Carolina ([link removed]) . In North Carolina, prospective candidates may file for the following offices:

* U.S. Senate ([link removed])
* U.S. House of Representatives ([link removed]) - 13 seats
 

* The primary is scheduled for March 3, and the general election is scheduled for November 3, 2020.
 
* North Carolina’s statewide filing deadline is the seventh ([link removed]) to take place in the 2020 election cycle. The next statewide filing deadline is on January 10, 2020, in Mississippi.

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** IS CONGRESS IN SESSION?
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* Neither the Senate nor the House will be in session next week. Click here ([link removed]) to see the full calendar for the first session of the 116th Congress.

 
** WHERE WAS THE PRESIDENT LAST WEEK?
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* On Monday, Trump participated in a roundtable on empowering families with education choice.
* On Tuesday, Trump met with the Minister of Foreign Affairs of the Russian Federation and spoke at a Keep America Great rally in Hershey, PA.
* On Wednesday, Trump participated in the swearing in of the secretary of energy.
* On Thursday, Trump spoke at the White House Summit on Child Care and Paid Leave: Supporting America’s Working Families.
* On Friday, Trump met with the President of the Republic of Paraguay.

 
** FEDERAL JUDICIARY UPDATE
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* 90 federal judicial vacancies
* 51 pending nominations
* 17 future federal judicial vacancies

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