The Week Ahead – April 24, 2017

This morning, the Court issued orders from the April 21 Conference, and convened to hear arguments in McWilliams v. Dunn and Davila v. Davis. The Order List was somewhat anticlimactic, as the Court did not grant any new cases. Many were expecting to see some grants now that Justice Gorsuch has joined the Court, but as it turned out, he did not participate in most of the orders, and several high profile cases remain pending. Among today’s denials of certiorari was Salazar-Limon v. City of Houston, in which a district court granted summary judgment to an officer who shot the plaintiff despite a disagreement between the plaintiff and the officer about exactly what happened. Justice Sotomayor, joined by Justice Ginsburg, dissented from the denial of certiorari, while Justice Alito, joined by Justice Thomas, wrote a brief opinion explaining that the case involved the kind of case-specific error-correction that the Court generally avoids. William Baude takes issue with Alito’s argument, here, and Amy Howe of SCOTUSblog has more on today’s Order List.

The issue in the first case being argued on Monday, McWilliams, is whether, following the Court’s holding in Ake v. Oklahoma, an indigent defendant is entitled to independent expert psychiatric assistance. In 1986, James McWilliams was tried and convicted of for the rape and murder of Patricia Reynolds. Before the sentencing hearing, the court appointed a psychiatrist who examined McWilliams and issued a report to the prosecution, the defense, and the court two days before the hearing. The Eleventh Circuit determined that McWilliams was given adequate expert assistance required by Ake, but McWilliams, in his appeal, contends that the assistance is only adequate if the expert is independent and reports only to the defendant. As Alan Blinder of the New York Times explains, the issue in McWilliams is also presented in two pending cases in Arkansas, where officials have been trying to carry out an unusually large number of executions in a short period of time before their supply of drugs expires. In the two cases that parallel McWilliams, both the Arkansas Supreme Court and SCOTUS have agreed that the executions should be stayed until that case is decided.

Davila concerns a plea for habeas relief filed by Erick Daniel Davila. Davila was convicted of capital murder in 2009. Davila lost his direct appeal in front of the Texas Court of Criminal Appeals and was then denied state habeas. He then filed for federal habeas relief, citing that he received ineffective counsel at the trial, appellate, and state habeas levels. The federal district court denied this claim, concluding that because Davila did not raise his claim of ineffective appellate counsel at the state habeas level, his federal claim was procedurally flawed, a holding that was affirmed by the Fifth Circuit. Davila appeals to the Court, arguing that precedent established in Martinez v. Ryan and Travino v. Thaler – that ineffective state habeas counsel can overcome the procedural default (failure to raise in state court) of an ineffective assistance of trial counsel claim – should also be applied to overcome the procedural default of an ineffective assistance of appellate counsel claim. In his article “Supreme Court to consider when a criminal defendant must pay with his life for his lawyer’s error,” Michael Dorf of Justia analyzes ineffective counsel law and precedent.

Tuesday’s theme is personal jurisdiction, as the Court will hear arguments in two cases concerning general and specific jurisdiction: Bristol-Myers Squibb Co. v. Superior Court of California and BNSF Railway Co. v. Tyrrell. The issue in Bristol-Myers Squibb Co. is whether 575 non-California residents (along with 86 California residents) are able to bring a class-action suit against Bristol-Myers Squibb (BMS) for injuries received from Plavix, a drug manufactured by BMS. Leslie Brueckner from the Legal Examiner provides a synopsis of the case here and describes the personal jurisdiction defense brought by BMS, which argues that it would be fundamentally unfair to bring the corporation into a jurisdiction that it had only a minimal connection to. She also describes an amicus brief (that she coauthored) filed by Public Justice on behalf of the plaintiffs, arguing “that there is nothing unfair about suing a national corporation in a state where it has aggressively marketed and sold massive numbers of defective products to an unsuspecting public, particularly where it was simultaneously being sued on identical claims by dozens of in-state residents. In fact, given the extent of Bristol Myers’ contacts with California, and the fact that it is has conceded jurisdiction over identical claims brought by in-state residents, the notion that it would be “unfair” to require the company to be “haled” into a California court on the plaintiffs’ claims is almost laughable.”

BNSF Railway Co. is another case about personal jurisdiction, and it comes from the Supreme Court of Montana. The issue is whether or not the state court can exercise personal jurisdiction over a defendant who is not at home in the forum state in a FELA suit filed against the defendant, contrary to the Court’s holding in Daimler AG v. Bauman. Will Baude, in an article for the Washington Post, describes a notable amicus brief filed by Professor Stephen Sachs, from Duke University School of Law. The brief urges the Court to rule solely on the statutory question in the case, and not the constitutional argument raised by BSNF, that FELA, as enacted in 1910, would allow state courts to exercise personal jurisdiction in a way that violated the Fourteenth Amendment. Baude describes the importance of briefs that urge the Court not to act, stating that they “perform an important service by trying to prevent bad precedent from being made or extended, especially in cases where that may not be the first priority of the parties and may not be obvious to the court. . . such briefs are more likely to be effective than briefs which ask the court to adopt an unargued academic theory, since they make the more modest request to ‘do no harm.’”

On Wednesday, the Court will hear arguments in Sandoz Inc. v. Amgen Inc. and Maslenjak v. United States. Sandoz Inc. is an intellectual property case that asks whether or not Sandoz properly complied with the notice requirement stipulated by the Biologics Price Competition and Innovation Act of 2009, and if the company did not, whether Amgen Inc. is entitled to damages, despite the fact that they are not alleging patent infringement. Sanya Sukduang and Jonathan R. Davies, partners at Finnegan, a large intellectual property firm, discuss Sandoz, Inc. and its impact on patenting biosimilar products, in a podcast here.

Maslenjak comes from the Sixth Circuit and concerns whether or not a naturalized American citizen can lose her citizenship in a criminal proceeding based on an immaterial false statement of fact. Divna Maslenjak and her family were granted refugee status following the Bosnian civil war, after Maslenjak told an immigration official that her family feared persecution in modern-day Bosnia because her husband, Ratko, had avoided being drafted into the Bosnian Serb militia. Maslenjak became a naturalized citizen in 2007, which is the same year that Ratko was convicted of making false statements during his immigration process, as he concealed the fact that he actually was an officer in the Serbian military during the same period that the Serbian military orchestrated a genocide against Bosnian Muslim civilians. Maslenjak was charged and convicted of naturalization fraud because of these false statements and was deported back to Serbia. In contrast to holdings in the 1st, 4th, 7th and 9th Circuits, the 6th Circuit affirmed Maslenjak’s conviction and concluded that the lower court was correct to strip her citizenship even though the false statements she provided were immaterial. Amy Howe of SCOTUSBlog provides an argument preview here, and describes other implications that the holding in this case might have for other immigrants. “The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years,” she write. “Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship.”

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