This week’s oral argument audio and transcripts now available on Oyez

This week’s oral argument audio and transcripts now available on OyezOyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: McWilliams v. Dunn Davila v. Davis Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County BNSF Railway Co. v. Tyrrell Sandoz Inc. v. Amgen Inc. Maslenjak v. United States

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This week’s oral argument audio and transcripts now available on Oyez

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

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Argument analysis: The Supreme Court struggles with the ACA’s patent provisions

In a surprise to virtually no one, the oral argument in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz showed the Supreme Court struggling to understand both the highly complex patent provisions in the Affordable Care Act (aka the “Obamacare” statute) and the many procedural complexities of the underlying litigation. The argument […]

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In a surprise to virtually no one, the oral argument in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz showed the Supreme Court struggling to understand both the highly complex patent provisions in the Affordable Care Act (aka the “Obamacare” statute) and the many procedural complexities of the underlying litigation.

The argument began with an unusual announcement by Chief Justice John Roberts, who told the lawyers for the two battling pharmaceutical firms that “the Court has decided to give each of you five extra minutes” of argument time.  Each advocate must have thought, “Wow, five whole minutes! For each of us! How generous!”

Joking aside, however, I’m sure that the advocates understood what the court was doing. The court could not possibly have thought that the five more minutes would really bring much more clarity to the issue. Even five extra hours of argument might not have helped much. The extra time signals to the lawyers, and to the larger biomedical community that cares about these legal issues, that the court understands that this litigation is far more complex than most others and that the justices are willing to put in extra effort to try to resolve the relevant issues in a conscientious manner.

The five additional minutes might signal something else too. There is, I believe, a real chance that the court might decline to rule on some or even all of the issues presented in these consolidated cases. You read that correctly: The justices may not decide any of the issues but instead might dismiss as improvidently granted the petitions for certiorari in the case (a so-called “DIG” of the petitions). The extra minutes might be designed to show that the court was not merely trying to avoid work or otherwise being cavalier in waiting to opine on the issues until another day.

Such DIGs are unusual, but so are the consolidated cases here. In one of the most highly cited cases concerning DIGs, The Monrosa v. Carbon Black Export, Inc., the court wrote that its function is to “decide[] questions of public importance,” but only “in the context of meaningful litigation,” and not simply to answer questions in an “administrative or managerial” role.

At multiple points in the oral argument, the parties seemed to be encouraging the justices to assume just such an administrative or managerial role with respect to this statute (the 17-page biosimilars subchapter contained in the larger ACA).  As mentioned in my argument preview, all of the issues in this particular case are moot, and the court granted certiorari based on the exception to mootness for issues “capable of repetition yet evading review.” Yet as the argument played out, this particular litigation seemed more unusual and less typical, and the parties were seeking rulings that may or may not be relevant to future cases. Justice Stephen Breyer was the most vocal of the justices in rejecting such a role, as he repeatedly stated that the issues would be better resolved in a comprehensive administrative rulemaking rather than in Supreme Court litigation.

Below I will discuss the specific issues raised in the litigation, and in doing so, I will follow the structure of my argument preview, which described the issues in five layers. Throughout my discussion, however, I will point out the places in the argument where comments by the justices and even by the attorneys seem to hint that the case may be a poor vehicle for answering the questions presented.

*                      *                    *

Very few questions at the oral argument focused on the two most general aspects of the case: (i) the long-running policy war over the optimal level of patent protection for medicines, and (ii) the complex technology of biologics and biosimilars. The dearth of questions on those matters is to be expected. The justices clearly understood that, in enacting the relevant statute, Congress was trying to strike a balance between patent protection and access to medicines, and that the underlying complexities of the technology partly explain why the statute is so complex. The justices were instead devoting almost all of their attention to trying to discern what balance had been struck by Congress.

The first specific legal issue that gave rise to the litigation between Amgen and Sandoz is whether, under the statute, Amgen was entitled to obtain Sandoz’s FDA application to market a biosimilar to Amgen’s drug filgrastim (trade name Neupogen). One of the very first steps in the statutory “exchange of information” process is that the applicant for a biosimilar license – here Sandoz – “shall provide to the [research pharmaceutical company] a copy of the application submitted [to the agency] under subsection (k).” Amgen’s position is that “shall” in that sentence means that the disclosure is mandatory, and that a federal court may issue injunctive relief if the application is not disclosed. Sandoz argues that disclosure is optional, with the statute merely permitting a declaratory judgment action about possible patent infringement if the application is not provided.

A few points of clarity emerged on this issue, but no real resolution. The court seemed willing to assume that the word “shall” bespeaks a mandatory duty. At one point in his questioning of Amgen’s lawyer—former Solicitor General Seth Waxman — Justice Neil Gorsuch said, “let’s say I spot you that … ‘shall’ means shall.”  The hard issue is then whether the statute’s listed consequences for nondisclosure are the exclusive remedies, and as Justice Gorsuch noted, “it’s hard to divorce a right from its remedy.”

Justice Sotomayor questions Seth P. Waxman, the lawyer for Amgen (Art Lien)

Justice Stephen Breyer then identified the key ambiguity in the statute, stating: “You’re right. ‘Shall’ means ‘shall.’ Okay? But [the remedial provision in the federal statute] doesn’t say that’s the only remedy or that there are others.” The statute provides a remedy for the applicant’s non-disclosure of its FDA application, but it is ambiguous as to whether that remedy is exclusive.

In the underlying litigation, Amgen sued Sandoz and received Sandoz’s application in discovery, so the issue of the remedy for nondisclosure is moot in this litigation. Nevertheless, the justices speculated about whether such a disclosure-via-discovery solution would always be present or was the exception.  Questioning Sandoz’s counsel — former Assistant to the Solicitor General Deanne Maynard — Justice Sonia Sotomayor asked whether other litigants would generally have “a good-faith basis” for bringing such a suit so that the FDA application could be obtained in discovery. That question led to extended speculation about possible future lawsuits, and that sort of speculation might very well be a signal to the court that it’s a bad idea to decide a moot legal question without seeing the issue arise in a more concrete context.

The next issue in the case was whether the biosimilar applicant Sandoz provided proper notice to Amgen. The statute required Sandoz to provide notice “not later than 180 days before the date of the first commercial marketing of the biological product licensed [by the FDA].” Sandoz sent the notice while its biosimilar application was still pending before the FDA, and the U.S. Court of Appeals for the Federal Circuit held that notice to be too early. Logically, the Federal Circuit believed, the notice would have “to follow licensure, at which time the product, its therapeutic uses, and its manufacturing processes are fixed.”

Breyer again identified the precise ambiguity in the statute that creates uncertainty here. He rhetorically asked: “What does this notice [have to] say?” He then started to paraphrase the statute and realized that the statute does not provide any indication about the information that should be in the notice. It’s a “crucial ambiguity,” he noted. At that point, he suggested that the contents of the notice would be better decided by administrative regulation, admitting that he was “operating in a field I know nothing about,” and then asking “[s]o why isn’t the way to go about this case to ask the agency to issue some regulations?”

Later in the argument, Breyer returned to that idea, but admitted that the court may not be able to prod the agency into action: “I would stick with the idea of the FDA doing this first, but maybe I can’t get there. And if I can’t get there, I’m stuck.”

Deanne E. Maynard, the lawyer for Sandoz (Art Lien)

The last issue in the case is whether federal courts could provide injunctive remedies that are not expressly authorized in this particular statute. In my preview, I worried that the court might inadvertently decide a major issue concerning the scope of federal equity powers without realizing the full implications of such a decision. The oral argument, however, focused on a different theory — a theory that (no surprise here) is hopelessly muddled in this litigation.

The oral argument focused on Amgen’s theory that, to remedy any violations of the biosimilar provisions in the ACA, Amgen could rely on the California’s Unfair Competition Law, which authorizes injunctive relief for any “unlawful, unfair or fraudulent business act or practice.”

I did not discuss that theory in my preview because my reaction to the argument was similar to that of John Roberts, who commented: “[T]his is a very reticulated statute with enormous consequences, and you’re reading along and you finally figure it out, and all of a sudden up pops California law.” Roberts seemed to indicate that he thought such a combination of state and federal law would be “odd” and that the state law could not be used to supplement the federal statute under “well-established preemption” principles.

Amgen’s lawyer Waxman had an answer for that: “[P]reemption was waived” by Sandoz! Roberts was unpersuaded, but not because he disagreed that the issue had been waived. Rather, he said: “I understand [the waiver problem], but I’m not going to interpret a Federal statute based on the decisions of one party to waive the argument or not.”

To any sophisticated observer of the Supreme Court, the entire exchange between Waxman and Roberts points to what’s wrong with this case. Roberts is absolutely correct that the court isn’t in the habit of “interpret[ing] a Federal statute based on the decisions of one party to waive the argument.” But the court doesn’t routinely forgive waivers either. In fact, the justices do not usually hear such cases at all because they typically deny certiorari when a case has such a significant procedural problem.

*                      *                    *

In closing, I’ll note a final general impression about the argument. At numerous points, the advocates and the justices found themselves speculating about how this statute might work, but it’s clear that the discussion was speculative because the statute is so new.

For example, the Roberts asked “how often” a particular issue is likely to arise, and Waxman answered “[w]e don’t have a sufficient data set [because the FDA] has only granted 5 [applications], the last one being last Friday.” Earlier in the argument, Justice Elena Kagan asked Maynard whether “as a matter of practice, … that’s the way people operate under this statute.” Maynard answered that Amgen took that course in this case and “this is the only situation in which I’m aware ….”

The best line — one that received a good bit of laughter — came after Maynard speculated about the strength of the “incentives” provided by the statute for parties to take certain actions, and Sotomayor interrupted: “All incentives have a way of failing. Just look at our society.”

It’s a funny line. But it hints at a serious question about the proper role of the court in deciding complex issues arising under a new statutory scheme, and the justices seem to be thinking about that as much as about the substantive issues presented in these consolidated cases. We will know more about how that concern plays out by the end of June.

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Argument analysis: Concerns about prosecutorial discretion likely to lead to ruling for Bosnian Serb in immigration case

At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to […]

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At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to Serbia. U.S. immigration officials stripped her of her citizenship after she admitted that she had lied about her husband’s service in the Bosnian Serb military, but the justices seem likely to give her another shot at keeping it. Although they may not have been fans of Maslenjak personally, though, the justices were even less enthusiastic about the prospect of ruling for the government, expressing concern that such a ruling would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.

During the first part of the argument, things didn’t necessarily look good for Maslenjak. The government had charged her with violating a federal law that authorizes both a fine and a prison sentence for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.”  The government argued that, when Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking to come to the U.S. as a refugee. Maslenjak countered that the government couldn’t take away her citizenship just because she lied; the lie had to be a “material” one – that is, one that would not have affected the immigration officials’ decision.

 But some justices didn’t regard the distinction between a material and immaterial lie as an easy line to draw. Justice Anthony Kennedy told Christopher Landau, who was representing Maslenjak, that whether a false statement influenced the government’s decision to grant citizenship is sometimes “known only after the fact.” “You can have a statement that everyone thinks is immaterial, it’s subjectively immaterial, but it might have a causal connection at the end of the day.”

Christopher Landau for petitioner (Art Lien)

Justice Samuel Alito echoed this sentiment. He told Landau that requiring the government to show that it would have rejected Maslenjak’s citizenship application if it had known the truth would be an “awfully hard” burden for the government to bear, because “even if somebody says something that has a real potential to affect the naturalization decision, you would still have to go back and show that in this case it actually did make a difference.”

And other justices were skeptical that, even if the court were to adopt the rule that Maslenjak herself urged and require the lies to be material, Maslenjak could prevail. Justice Ruth Bader Ginsburg asked Landau, “Why isn’t this obviously material?” Maslenjak, Ginsburg observed, lied to U.S. government officials about her husband’s activities in Bosnia. “She said he was trying to avoid military conscription when, in fact, he was in the service and in the unit that was committing atrocities. Under what circumstances,” Ginsburg went on, “would that be immaterial?”

Alito seemed to agree. He asked Landau whether the jury in Maslenjak’s case could also hear evidence about her husband’s military service in Srebrenica, the town where Bosnian Serb soldiers killed over 8,000 Muslim men and boys in 1995. If so, Alito suggested, “I don’t know how well you are going to do” in front of the jury. Landau agreed with Alito that Maslenjak would have a “tough row to hoe” on remand, but he argued that his client at least deserved a chance to have the jury decide whether her lies were material.

Chief Justice John Roberts had been largely silent during Landau’s argument. Robert Parker, the assistant to the U.S. solicitor general who argued on behalf of the federal government, quickly learned why. Roberts is generally no friend of criminal defendants, but he has often expressed concern about federal laws that give too much leeway to prosecutors, thereby creating the potential for abuse and uneven enforcement. Today was one of those days.

Roberts noted that one question on the naturalization application form asks whether the applicant has “ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested.” “Some time ago,” Roberts confessed, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen,” he declared incredulously, “you can knock on my door and say, guess what, you’re not an American citizen after all.”

Chief Justice Roberts questions Assistant to the Solicitor General Robert A. Parker (Art Lien)

Parker tried to offer Roberts some assurances that the hypothetical naturalized scofflaw would have little to fear, but he didn’t make much headway. “So you really are looking for the listing of every time somebody drove over the speed limit,” Roberts concluded.

Justice Sonia Sotomayor piled on, asking Parker whether failure to disclose a childhood nickname – another question on the naturalization application form – could constitute cause to take away someone’s citizenship.

Parker pushed back, reassuring Sotomayor that the government was not interested in childhood nicknames. However, Justice Stephen Breyer retorted that, even if Sotomayor’s example could be distinguished, “that isn’t the point.” The point, Breyer emphasized, is that the questions on naturalization application form are “unbelievably broad.” “To me,” Breyer said, “it’s rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of naturalized citizens.”

Perhaps thinking of the difficulties that might follow from requiring a lie to be “material,” Breyer suggested some alternative standards, potentially less onerous for the government, that would still call for a connection between the lie and the naturalization decision. What about requiring that the lie “had a tendency to affect a reasonable immigration officer in his judgment” or “influence the decision”?  All those are wrong? he queried.

Breyer later admonished Parker that the government’s interpretation “would raise a pretty serious constitutional question” when it could take away someone’s citizenship “because 40 years before, he did not deliberately put on paper what his nickname was, what his speeding record was 30 years before that, which was, in fact, totally immaterial.”

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed,  the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Kennedy was also clearly uneasy about the government’s interpretation. Your argument, he admonished Parker, is “demeaning” to the “priceless value of citizenship.” Kennedy added, “you are arguing for the government of the United States, talking about what citizenship is and ought to mean.”

Landau tried to capitalize on this unease in his rebuttal, telling the justices that “the questioning today makes it chillingly clear that the government’s position in this case would subject all naturalized Americans to potential denaturalization at the hands of an aggressive prosecutor.” And that, Landau concluded, “is not what Congress intended” and “not what is in the language of the statute.” Even if the justices agree, Maslenjak may not be home free, because the government would almost certainly try to show that her lies would have influenced immigration officials’ decision to grant her citizenship – which, the justices seemed to suggest today, might not be a particularly difficult task. But she does seem likely to at least get what Landau asked for today: “an opportunity to debate” that issue in front of a jury.

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Argument analysis: Justices cautious about validating California court’s jurisdiction over claims by out-of-state litigants against out-of-state defendants

Tuesday morning’s argument in Bristol-Myers Squibb v. Superior Court of California brought the justices a case at the intersection of class actions and personal jurisdiction. The case involves litigation by several hundred individuals from 33 states (many, but not all of them, from California) for injuries associated with the Bristol-Myers drug Plavix. The question for […]

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Tuesday morning’s argument in Bristol-Myers Squibb v. Superior Court of California brought the justices a case at the intersection of class actions and personal jurisdiction. The case involves litigation by several hundred individuals from 33 states (many, but not all of them, from California) for injuries associated with the Bristol-Myers drug Plavix.

The question for the justices is whether California courts have the authority to adjudicate the claims brought against Bristol-Myers by individuals from other states. Although Bristol-Myers has extensive contacts with California, nothing about the claims of these particular plaintiffs involves California: Bristol-Myers did not develop or manufacture the drug in California and there is no reason to think that marketing, promotion or distribution in California was involved in the injuries of the out-of-state plaintiffs. The only way in which their claims relate to California is that the marketing and promotion of the pharmaceutical was conducted on a nationwide basis: The same advertising and distribution arrangements that reached the out-of-state plaintiffs were the ones that reached the in-state plaintiffs (who plainly can sue in California courts).

The justices were fully engaged, with pointed questions for advocates on both sides. The biggest problem for the defendant Bristol-Myers (represented by Neal Katyal) was the prospect of “piecemeal litigation,” a theme Justice Sonia Sotomayor reiterated throughout the argument. Her concern was that a constitutional rule preventing one forum from adjudicating all the claims against a single defendant would cast a shadow over commonplace procedural devices such as the class action and multidistrict litigation.

Neal K. Katyal for petitioner (Art Lien)

Katyal’s answer was that the rules for due process in federal courts and state court are quite different, emphasizing that federal courts, founded on national sovereignty, have an easy justification for nationwide service of process and the like, while state courts, founded on the limited territorial sovereignty of any particular state, have a much less easy time justifying the exercise of jurisdiction for nonlocal claims involving nonresidents. Justice Anthony Kennedy plainly agreed with that point, commenting that “there’s a different set of criteria [that] you apply” when assessing due process concerns at the two levels; “[t]he States are limited in their [ability to exercise] jurisdiction … nationwide, the Federal government isn’t.”

But Sotomayor was far from satisfied. As she stated, “I have no idea how you draw that [state-federal] line.” Sotomayor’s questioning was particularly pointed during the presentation of Rachel Kovner, an assistant to the U.S. solicitor general who argued in support of Bristol-Myers. For example, positing a hypothetical about a foreign defendant, Sotomayor pointed out that “[u]nder your theory, [a] foreign corporation might be sued in the particular State in which an injury occurred. But since it has no home State in the United States, that means that in that situation, there’s no place for plaintiffs to come together and sue that person, correct?” Similarly, returning to her concern about the need for efficient nationwide litigation, she asked Kovner: “If due process says that you can’t hale someone into a court with which they’ve had no contacts, how do you justify the many criminal statutes we have – RICO, CERCLA, there’s a whole bunch of them – that permit the joinder of all of these defendants in one indictment?”

Parallel to that problem was a “so what’s the big deal” theme, put most clearly by Justice Elena Kagan. All agree that Bristol-Myers is subject to suit in California at the behest of the hundreds of California residents who used Plavix, and all agree that Bristol-Myers can hardly be surprised at the location of that litigation given its marketing and distribution in the state. Given those points, Kagan asked, “why is it unfair to glom on Texas claims and New York claims to the California claims, once we already have a mass action which will have multiple jury trials? … [Y]ou already know because this is … nationwide marketing … that you’re subject to jurisdiction in any of the 50 States.”

That’s not to say that it was smooth sailing for Thomas Goldstein (appearing on behalf of the non-resident plaintiffs, trying to preserve the California forum). Several of the justices seemed firmly set against his argument that Bristol-Myers’ contacts with California residents should have any weight in assessing its vulnerability to a California suit brought by nonresidents.

Thomas C. Goldstein for respondents (Art Lien)

So, for example, one group of justices thought his argument failed to give due weight to the states outside California. In Justice Anthony Kennedy’s view, Goldstein was offering “a very patronizing view of federalism. California will tell Ohio ‘Oh, don’t worry, Ohio. We’ll take care of you.’ That’s … not the idea of the Federal system. The Federal system says that States are limited.” In the same vein, Kagan asked what Goldstein had to say “about the interest of the State the Bristol-Myers resides in? In other words, they might have an interest in not having their citizens haled into court against their will in another part of the country.”

More generally, Kagan seemed to find Goldstein’s proposed due process framework inconsistent with her understanding of the cases. She likened his argument to a Rube Goldberg arrangement in which “the claim relates to another claim that relates to contacts with the forum.” In her view, by contrast, the law requires a direct relationship between the plaintiff and the defendant’s contacts with the forum:

I’m missing what the relationship is between an Ohio plaintiff’s claim and the defendant’s contacts with the forum that doesn’t go through another claim…. But I guess what I’ve always thought that our personal jurisdiction cases require is … something like … [t]he plaintiff’s claim relates to or arises out of the defendant’s contacts with the forum State. … And I just want you to tell me how an Ohio plaintiff’s claim arises out of or relates to the defendant’s contacts with California.

Following up on that point with similar skepticism, Justice Stephen Breyer at one point asked “what is it I say in a single sentence that … make[s] it clear to that defendant why he is here?”

In response, Goldstein pointed to the role of McKesson – the California-based distributor through which Bristol-Myers distributed much (though not all) of its Plavix sales. McKesson’s role as a distributor leaves it a defendant alongside Bristol-Myers with respect to many of the out-of-California plaintiffs. Because McKesson is based in California, California plainly has the authority to adjudicate all of the claims of nonresidents against McKesson. Picking up on an earlier interchange between Justice Ruth Bader Ginsburg and Kovner, in which Kovner had acknowledged that under Bristol-Myers’ theory, there might be no other “place where these plaintiffs could sue McKesson as well as Bristol-Myers,” Goldstein suggested that the role of McKesson provided yet another reason why this particular case could be adjudicated in California. That prompted a curt rejoinder from Justice Neil Gorsuch, who found it “a very fact-specific argument.” Gorsuch went on to add that “we took this, I thought, to decide whether we … permit this sliding scale business that California engages in, as a legal matter.” When Goldstein responded that McKesson’s role was integral to the lower court’s analysis and that it would be “very confusing to the lower courts to simply cast it aside,” Gorsuch retorted: “What’s confusing, though, about simply saying ‘here’s the correct test, reverse, remand, go apply the correct test’?”

The most difficult portion of Goldstein’s presentation came when he suggested (echoing Kagan’s point from earlier in the morning) that California jurisdiction is made more palatable by the presence of several hundred indisputably local claims involving local residents. The implicit suggestion of a balancing test involving the number of local residents struck a raw nerve with Chief Justice John Roberts, who interjected that “we’re dealing with a jurisdictional rule, and when we do that, we want the rules to be as simple as possible. … [Y]ou’re articulating a rule that [governs] businesses trying to figure out where to do business and plaintiffs where to sue and courts whether it’s [permissible]. Your rule depends upon some line between [a] handful and … hundreds.”

Then, when Goldstein tried to defend that line, Kagan brusquely cut him off, arguing that Goldstein’s comments to Roberts contradicted his earlier discussion with her:

It seems to me, on your theory, it could be zero California plaintiffs, because here’s what you told me. You told me that the reason that … an Ohio citizen’s claim arises out of the contacts in California is because the contacts in California are really nationwide contacts. And if that’s so, it’s met regardless of whether there are any California plaintiffs or not.

Somewhat surprisingly, it was only near the end of the argument that the discussion turned to the problem of specific and general jurisdiction that occupied so much of the briefing. Responding to the interchange with Roberts and Kagan by acknowledging some tension between his position and some of the court’s recent cases, Goldstein suggested that it would make sense for the court to adjust the details of its rules for specific jurisdiction (a state’s power to hear a case based on its connection to that particular dispute, the power at issue here) to accommodate its marked narrowing in Daimler AG v. Bauman of rules for general jurisdiction (a state’s power to hear a case based on its connection to the defendant). Raising that topic got the attention of Justice Ruth Bader Ginsburg (the author of the Daimler opinion), who pointedly remarked that “[w]hat you’re suggesting is that the Court was wrong in … Daimler” and added that this case could be viewed as “an attempt to reintroduce general jurisdiction, which was lost in Daimler, by the back door.” As noted here, the discussion of Daimler continued during the next hour’s argument in BNSF Railway Co. v. Tyrrell, in which several justices seemed set on reaffirming or extending Daimler. To the extent that same intuition carries over to this case, it poses a challenging hurdle for the plaintiffs.

At the end of the day, the argument makes it clear that the justices will tread cautiously here, recognizing the broad systemic implications of pronouncements about the constitutional limits on judicial authority. The combination of caution with the intricate framework of the relevant cases suggests that we will be waiting several weeks for a resolution in this one.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]

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Opinion analysis: Justices decline to extend sovereign immunity to tribe employees

Today the Supreme Court held that the sovereign immunity of Indian tribes does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party in interest.” Lewis v. Clarke involved a run-of-the-mill car accident: The plaintiffs, Brian and Michelle Lewis, citizens of Connecticut, were driving on an interstate […]

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Today the Supreme Court held that the sovereign immunity of Indian tribes does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party in interest.”

Lewis v. Clarke involved a run-of-the-mill car accident: The plaintiffs, Brian and Michelle Lewis, citizens of Connecticut, were driving on an interstate highway outside the boundaries of the Mohegan Reservation when they were rear-ended by the defendant, William Clarke, also a citizen of Connecticut. Clarke was an employee of the Mohegan Tribe, however, and the accident occurred while he was driving customers to the tribe’s casino.

Justice Sotomayor with opinion of the court (Art Lien)

The Lewises sued Clarke in Connecticut state court for damages resulting from the accident. Clarke moved to dismiss the lawsuit, arguing that he was cloaked in the tribe’s sovereign immunity because he was acting as a tribal employee or, in the alternative, because the tribe had agreed to indemnify him for any damages arising from his official acts in furtherance of the tribe’s interests.

The Connecticut trial court dismissed the suit on the ground that the remedy the plaintiffs sought — money damages from Clarke—did not, as today’s opinion put it, “affect the Tribe’s ability to govern itself independently.” The Supreme Court of Connecticut reversed, holding that permitting a plaintiff to overcome tribal immunity simply by styling his complaint as against the defendant in an individual capacity would render tribal immunity a nullity.

A unanimous Supreme Court reversed, in an opinion written by Justice Sonia Sotomayor. The court concluded that there is a readily discernible difference between suits in an individual capacity and those in an official capacity, only the latter of which are subject to sovereign immunity. Drawing on familiar actions, like a Bivens action or a Section 1983 suit under federal law, the court reasoned that a relatively bright line can be drawn between suits against officials acting in their official capacities and officials acting as individuals. For instance, the court noted that in the former case, if the official being sued were replaced, perhaps because of a change in administration, the suit would proceed against the new office-holder, while in the latter case, the defendant would remain the same. Addressing Clarke’s second contention, the court concluded that “[t]he Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign.”

In reaching this straightforward but somewhat arbitrary conclusion, the court was essentially leveling the playing field between states and tribes. All agree that if Clarke were an employee of Connecticut instead of the Mohegan tribe, the case would be an individual one, and there would be no sovereign immunity. The decision in this case stands for the proposition that tribal immunity is no greater than state immunity. That seems right, both as a matter of history and logic.

Although the details of state and tribal sovereignty differ somewhat here and there, depending on the area of law or statute in question, there is no reason that sovereign immunity rules should differ. Whatever the basis for these rules, there is nothing about tribal sovereignty that makes them cut one way or the other. Under the landmark ruling in Montana v. United States, the boundary of core tribal jurisdiction does not extend “beyond what is necessary to protect tribal self-government.” As noted above, the lower court, whose opinion was effectively reinstated by the Supreme Court’s holding, found that nothing in this case implicated the ability of the tribe to govern itself.

Justice Thomas and Justice Ginsburg concurred separately, although their reasoning was similar. Both wanted the case decided on simpler grounds — Thomas on the ground that the conduct was off-reservation and of a commercial nature, and this defeated any immunity claims, and Ginsburg on the ground that the conduct was off-reservation and involved a non-tribal member.

In essence, both wanted the court to revisit its 1988 decision in Kiowa Tribe v. Manufacturing Technologies and its 2014 decision in Michigan v. Bay Mills Indian Community (in which both Thomas and Ginsburg dissented). These cases hold that tribal immunity can extend beyond reservation land, even in commercial cases.

The court declined to reconsider these precedents or other core issues of the scope of tribal sovereignty (such as whether there should be any separate tribal sovereignty). Although recent opinions have teed up these questions, it is possible that the court viewed a simple car accident between two non-tribal members occurring off the reservation as a poor vehicle (pun intended) for making such a sweeping change to tribal law.

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Argument transcripts

Argument transcriptsThe transcript in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County is here; the transcript in BNSF Railway Co. v. Tyrrell is here.

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Argument transcripts

The transcript in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County is here; the transcript in BNSF Railway Co. v. Tyrrell is here.

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Argument analysis: Justices likely to hand victory to railroad in jurisdictional dispute

The Supreme Court seemed ready to hand a victory to railroad company BNSF in a lawsuit brought by two of the company’s injured workers. A solid majority of the justices appeared unconvinced that the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers for injuries that occur on the […]

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The Supreme Court seemed ready to hand a victory to railroad company BNSF in a lawsuit brought by two of the company’s injured workers. A solid majority of the justices appeared unconvinced that the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers for injuries that occur on the job, allows the workers to sue the company – which is incorporated in Delaware and has its principal place of business in Texas – in Montana, even though neither worker lived in Montana or was injured there.

Arguing for BNSF, attorney Scott Tulumello told the justices that the Montana state court’s decision allowing the case against the railroad to go forward was flatly wrong. Under the Supreme Court’s 2014 decision in Daimler AG v. Bauman, he contended, the Montana courts could not have jurisdiction over the injured workers’ lawsuits because the railroad was not “at home” in Montana.

Andrew S. Tulumello for petitioner (Art Lien)

Justices Sonia Sotomayor and Ruth Bader Ginsburg challenged that assertion. Sotomayor asked Tulumello whether BNSF had registered its business in Montana. When Tulumello responded that it had, Sotomayor suggested that registration in Montana might “change things.” If she established residency in several different states, she observed, she could be sued in those states. Alluding to the court’s campaign-finance jurisprudence, she asked pointedly, “If you are going to treat a corporation like a person, which we seem to be doing,” why wouldn’t a corporation be subject to suit in the states where it is registered? Ginsburg echoed that idea, telling Tulumello that by registering in Montana, the company had effectively consented to jurisdiction in the state.

Tulumello pushed back, countering that the text of the Montana law that requires BNSF to register specifically provides that personal jurisdiction over companies cannot be based solely on registration in the state. And any traction that the two justices might have temporarily gained from their line of questions seemed to vanish when Chief Justice John Roberts asked Tulumello whether that issue was actually even before the Supreme Court. No, Tulumello responded.

Justice Samuel Alito also posed a fairly friendly question, asking Tulumello to address assertions by the workers’ supporters that a ruling for the railroad would “create chaos” in the court system. Tulumello assured Alito that the result would actually be the opposite, likening the current system to the “wild west.”

After a relatively easy time at the lectern, Tulumello sat down early, using only 11 of his 20 minutes. He was followed by Nicole Saharsky, the assistant to the U.S. solicitor general representing the federal government, which filed a brief supporting BNSF. The justices allowed Saharsky to speak at some length, and she too sat down early.

Julie Murray represented plaintiffs Robert Nelson, who contends that he suffered a serious knee injury while working as a fuel-truck driver, and Kelli Tyrrell, who alleges that her husband Brent died of cancer that he contracted as a result of his exposure to chemicals while working for BNSF. Murray emphasized the long history of injured railroad workers being able to sue under FELA. When it enacted FELA, she stressed, Congress expressly intended that workers would be able to bring these kinds of lawsuits, even when neither the workers nor the injuries had any connection to the state where they were filed. This is so, she explained, because Congress recognized that railroads operate differently from many other industries – for example, she noted, it is commonplace that railroad workers will never work in their home states.

Julie A. Murray for respondents (Art Lien)

Roberts was skeptical, reminding Murray that BNSF operates in over two dozen states. Does this mean, he asked Murray, that the railroad can be sued in one of those states even if the injury occurs elsewhere? Yes, Murray responded, that is what Congress intended.

Roberts wondered aloud whether the decision to sue BNSF in Montana might be related to the perception that Montana would be a more desirable forum in which to sue a large corporation. Murray explained that, because of the large volume of FELA cases filed in Montana, the state’s judges know the issues “like the back of their hand” – an answer that Roberts characterized as “a little circular.”

Alito seemed to agree with Roberts, telling Murray that he could understand why Congress would want an injured railroad worker to be able to sue in the state where the injury occurred, in the state where the worker lives, and in the state where the company is headquartered. But why, he queried somewhat rhetorically, should a worker be able to sue anywhere?

In more troubling news for Tyrrell and Nelson, some of the court’s more liberal justices also appeared dubious. Ginsburg noted that the language in the FELA provision on which the plaintiffs rely is found in “200-odd” other laws dealing with venue – that is, the place where lawsuits may be filed. It sounds like a venue provision, Ginsburg declared.

Murray added that even if the justices were to decide that FELA does not confer jurisdiction over BNSF, the Montana courts would still have jurisdiction over BNSF because of the company’s contacts with Montana. The railroad has a “gigantic footprint” in the state, she emphasized, and BNSF and its predecessor have been in Montana since before it even joined the Union.

This discussion led to one of the lighter moments of the morning. Agreeing that a railroad would have a “large physical plant” in a state, Roberts asked Murray whether other industries, like the trucking industry, could also be “at home” under this theory. How, he inquired, do we make that decision?

Murray told Roberts that her clients’ argument was limited to railroads, which she characterized as “unique” because of their reliance on fixed tracks. Trucking companies, she seemed to suggest, would be different because trucks could use roads to travel all over the state.

Roberts was unconvinced. No, he retorted, trucks would all generally use the same interstate highways to traverse the state. “They’ll take I-95,” he said, before hesitating. “What is it, I-90?”

The court’s newest justice, who hails from Colorado, chimed in. “It’s I-80, across Montana.”

Roberts then quipped, “It’s that geographic diversity.”

A few minutes passed, during which some of the justices apparently requested – and then passed around – atlases from the justices’ library. After some animated conversations with his neighbors on the bench, Sotomayor and Justice Stephen Breyer, Gorsuch interrupted Murray to apologize for an error. “It’s I-90 across Montana, and I-80 across Wyoming.”

Breyer then had a question that did not seem to portend well for Tyrrell and Nelson either. He asserted that, in the court’s earlier decision in Daimler, the company had an extensive operation in California, where the plaintiffs sought unsuccessfully to sue it. You’re “making a valiant effort,” he told Murray, “but I don’t really see a difference.”

Tulumello used only a few minutes of his remaining time when he returned to the lectern for his rebuttal. Due process, he contended, does not depend on what line of business you are in. Based on today’s argument, a clear majority of the court seems to agree with him.

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Argument analysis: Justices seem inclined to avoid creating “an enormous hole in the doctrine of procedural default” in nested ineffective-assistance case

It probably was not a good sign for Houston criminal-defense attorney Seth Kretzer, arguing yesterday on behalf of petitioner Erick Davila in Davila v. Davis, when, early in his opening presentation, Justice Ruth Bader Ginsburg suggested that the court could decide the case on narrower grounds than those presented in his petition – by ruling […]

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It probably was not a good sign for Houston criminal-defense attorney Seth Kretzer, arguing yesterday on behalf of petitioner Erick Davila in Davila v. Davis, when, early in his opening presentation, Justice Ruth Bader Ginsburg suggested that the court could decide the case on narrower grounds than those presented in his petition – by ruling that his client’s claim that his direct appellate counsel provided ineffective assistance was meritless. Kretzer did his best to persuade the justices that they should indeed reach the question presented, that is, whether a prisoner’s failure to raise the ineffectiveness of his direct appellate counsel in a collateral state post-conviction proceeding can be excused by the ineffectiveness of the post-conviction lawyer. But there seemed to be few takers across the bench for Kretzer’s argument that the Supreme Court should extend its 2012 decision in Martinez v. Ryan and answer that question in the affirmative. Indeed, if the justices are inclined to reach the question presented, it seemed clear by the end of Monday’s 59-minute argument that they would likely resolve it in favor of the respondent, Lorie Davis, director of the Correctional Institutions Division of the Texas Department of Criminal Justice.

Seth Kretzer for petitioner (Art Lien)

As noted in the argument preview, this case is, in many ways, a sequel to Martinez. In Martinez, a 7-2 majority held that the ineffective assistance of a prisoner’s lawyer in state post-conviction proceedings would excuse the prisoner’s failure to press the underlying ineffective assistance claim adequately — and would therefore allow a federal habeas court to reach the merits of the original claim of ineffective assistance by the prisoner’s counsel during his criminal trial. In Davila, the question is whether a failure to raise an ineffective-assistance claim in a state post-conviction proceeding could similarly be excused by the ineffective assistance of the post-conviction counsel when the underlying ineffective assistance was rendered on appeal, rather than at trial. And as multiple justices pointed out during Monday’s argument, that’s a significant distinction, because, in such cases, the issue was raised at trial, so that one of the concerns raised in Martinez – the fact that a defendant might never have a meaningful opportunity to press a viable constitutional claim – is not implicated.

With some help from Justices Elena Kagan and Sonia Sotomayor, Kretzer responded that Martinez was not only about ensuring that prisoners had at least one meaningful opportunity to raise constitutional objections to their convictions, but also about preventing prisoners from having meritorious arguments forfeited by deficient appellate lawyers. But perhaps the dominant theme of Kretzer’s presentation was the concern raised by Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito that extending Martinez to ineffective assistance of appellate counsel would, in Alito’s words, “blast an enormous hole in the doctrine of procedural default,” allowing federal habeas counsel to identify a range of issues not pressed by counsel on appeal and not raised in the state post-conviction proceeding that, if Martinez applied, could be litigated on federal habeas if both the appellate and post-conviction lawyers were constitutionally ineffective. And unlike Martinez and the subsequent decision in Trevino v. Thaler, which only apply to those states that either formally or functionally preclude defendants from raising ineffective assistance of trial counsel on direct appeal, extending Martinez to ineffective assistance of appellate counsel would potentially allow claims in every state, because, in every state, the collateral post-conviction proceeding is the first opportunity (whether in general or after the direct appeal) to raise an ineffective-assistance claim.

Kretzer usefully countered with anecdotal evidence about the lack of an explosion in claims after Martinez and Trevino were decided – even from the states to which they applied. But his efforts did not appear to move the needle.

Justice Sotomayor questions Texas solicitor general Scott A. Keller (Art Lien)

Arguing on behalf of the state, Texas solicitor general Scott Keller did not miss the opportunity to capitalize on the justices’ skepticism during Kretzer’s argument, opening with the suggestion that “[e]xtending Martinez to appellate-IAC claims will have a huge systemic cost by opening up the entire trial and everything that happened at trial to Federal habeas review.” Sotomayor, with help from Justices Kagan and Stephen Breyer, spent a fair amount of energy pushing back against various threads of Keller’s argument, but when Kennedy’s sole intervention during the state’s argument in a capital case is to “fortify” the state lawyer’s argument, it’s usually an ominous portent for the prisoner. The real question, it seems, is not whether Texas prevails in this case, but whether the justices who are less openly hostile to the prospect of extending Martinez to ineffective assistance of appellate counsel can persuade their colleagues to save that question for another day.

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Argument analysis: Nine justices, with five votes for death row inmate?

Three decades ago, James McWilliams was convicted of the robbery, rape and murder of convenience store clerk Patricia Reynolds. An Alabama judge sentenced McWilliams to death, rejecting both his pleas to consult with an independent psychiatrist about psychiatric records that his attorney had recently received and his argument that he suffered from serious mental health […]

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Three decades ago, James McWilliams was convicted of the robbery, rape and murder of convenience store clerk Patricia Reynolds. An Alabama judge sentenced McWilliams to death, rejecting both his pleas to consult with an independent psychiatrist about psychiatric records that his attorney had recently received and his argument that he suffered from serious mental health issues. That denial of an independent expert, McWilliams’ attorney told the justices today, violated his client’s constitutional rights, established in a Supreme Court decision, Ake v. Oklahoma, issued just a few months after Reynolds’ murder. After an hour of oral argument this morning, the court’s four more liberal justices seemed to agree. And perhaps most critically for McWilliams, Justice Anthony Kennedy also seemed persuaded.

Stephen B. Bright for petitioner (Art Lien)

Under federal laws governing efforts by state prisoners like McWilliams to obtain relief from their convictions and sentences in federal courts, the right that they contend was violated must have been clearly established when their convictions became final in state court. Arguing for McWilliams, Stephen Bright emphasized that the court’s 1985 opinion in Ake had “clearly established” that a defendant is entitled to help from “an expert independent of the prosecution” when his mental health is a “significant factor” in the case.

Kennedy pressed Bright to explain exactly how the court should make that determination. If, at least for the sake of argument, Kennedy suggested, Ake was actually ambiguous on whether the defendant is entitled to help from an independent expert, but “over time, it became clear that” the expert should only be “consulting with the defense and not with the prosecution,” should the court say “that the basic right was clearly established, and that over time, we are simply making a refinement,” or would a ruling for McWilliams instead be “establishing a new right”?

Bright initially resisted, responding that the ruling was “quite clear.” But later on, he seemed to realize that Kennedy may have been throwing him a lifeline, and he assured the justices that “what really has happened here is refinement” of the principle first announced in Ake.

Chief Justice John Roberts was skeptical. McWilliams, Roberts observed, had pointed to several examples of how the right to an independent expert was clearly established in Ake, through the court’s descriptions of the kind of assistance an expert would provide. But some of those examples, Roberts suggested, did not “entail partisanship of any kind.” And a few minutes later, Roberts noted that a well-respected criminal law treatise had described the court’s decision in Ake as “deliberately ambiguous” on the question presented by McWilliams’ case.

And Justice Samuel Alito was dubious that, even if the state made an expert available to defendants like McWilliams, an expert “who is chosen by the court and paid by the court can ever” be truly “part of the defense team.” At most, Alito seemed to say, the expert would be a neutral expert.

The court’s newest justice, Neil Gorsuch, chimed in with what he viewed as another potential problem with the rule that McWilliams was advocating. If the court were to rule that a defendant has a right to a partisan expert, where should it draw the line in terms of other assistance for defendants? “Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?” And would it mean that the defendant is also entitled to a partisan lawyer, rather than just a competent one?

The court’s four more liberal justices tried to bypass some of these potential problems by shifting the focus of the conversation away from labels like “neutral,” “partisan” and “independent” to a more straightforward rule that, in their view, was grounded squarely in Ake. As Justice Stephen Breyer put it, “The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense. So why do we have to say more than” that? In this case, Breyer continued, “it seems to me that this defendant certainly did not get that help.”

Andrew L. Brasher, Alabama solicitor general (Art Lien)

Justice Elena Kagan made a similar point, telling Alabama Solicitor General Andrew Brasher, who argued on behalf of the state, that the “theme” of the court’s decision in Ake was that “you have to give the indigent defendants, just as you give the wealthier defendant, the tools that they need to establish what they want to establish about mental health. And then that’s consistent with these words that are repeated in the holding and elsewhere” in Ake.

Bright echoed these ideas in his rebuttal, reminding the justices that “what we come back to at the end on this case, is the proper working of the adversary system. And this certainly doesn’t put the defense in an equal position with the prosecutor, not by a long shot, but it at least gives the defense a shot, at least gives them one competent mental health expert that they can talk to, understand what the issues are, present them as best they can.”

In what McWilliams could view as a positive sign, Justice Ruth Bader Ginsburg asked Bright whether, if his client were to prevail, he would get a new sentencing hearing. (The answer was yes.) If – as it appears – McWilliams can pick up a vote from Kennedy in addition to the four more liberal justices, that new hearing might not be too far away.

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