Arguments: Week of January 16, 2018

With only two argument days this week, the Court will hear argument in four, quite different cases with issues ranging from arcane civil procedure questions to whether a capital defendant’s lawyer can, in the hopes of avoiding a death sentence, effectively concede guilt against the defendant’s express objection.

The death penalty case is McCoy v. Louisiana, which the Court will hear on Wednesday, January 17, 2018.  The state of Louisiana tried McCoy in 2011 on three counts of first-degree murder for the 2008 murders of Christine and Willie Young – the mother and stepfather of McCoy’s estranged wife, Yolanda – and Gregory Colston, Yolanda’s son. McCoy maintained his innocence, but his lawyer conceded McCoy’s guilt in an unsuccessful attempt to prevent a death penalty sentence. The New York Times has an analysis of the case and its history.

The Washington Post also discusses the case, including quotes from Lawrence J. Fox, a visiting lecturer at Yale Law School who filed a brief on McCoy’s behalf. Fox notes that, “[t]he decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense — a right that personally belongs to the accused.” For similar reasons, the libertarian Cato Institute wrote in support of McCoy.

On Wednesday, the Court will also hear arguments in Encino Motorcars v. Navarro, which presents the question of whether service advisors at car dealerships are exempt from the Fair Labor Standards Act‘s overtime-pay requirements. Respondents sued the employer car dealership, seeking time-and-a-half overtime pay for working more than 40 hours per week. The FLSA exempts from its overtime requirements “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” 29 U.S.C. §213(b)(10)(A). The Ninth Circuit found Respondents non-exempt under a 2011 Department of Labor regulation. The Supreme Court vacated that decision, holding that the Department’s 2011 regulation should not control. The Ninth Circuit again found Respondents non-exempt on remand. The Ninth Circuit also acknowledged again that its holding conflicts with published decisions of the numerous courts, including the Supreme Court of Montana and the Fourth and Fifth Circuits. Bloomberg Law’s Big Law Business predicts that the case could be a harbinger of how the Court interprets exemptions in the future and may implicate some tensions among the Justices over deference to agencies.

On Tuesday, January 16, 2018, the Court will hear arguments for Dalmazzi v. United States and Hall v. Hall. In Dalmazzi (consolidated with Ortiz v. United States and Cox v. United States), the Court will consider whether a military judge is statutorily or constitutionally precluded from serving on a military Court of Criminal Appeals while  simultaneously serving an appointment to the United States Court of Military Commission Review.

Petitioner Nicole A. Dalmazzi was convicted by a military judge of wrongfully using Ecstasy, a Schedule I, controlled substance by. The US Air Force Court of Criminal Appeals (“CCA”) affirmed the findings and sentence of Dalmazzi’s dismissal and confinement for one month. Colonel Martin T. Mitchell participated as a judge on the CCA panel while also appointed as a judge to the United States Court of Military Commission Review (“CMCR”), a statutorily created entity that hears appeals from military commissions.

Dalmazzi moved the CCA to vacate the decisions in her case, on the grounds that Mitchell’s dual position on the CCA and the CMCR violated statutory and constitutional prohibitions on dual-officeholding, specifically 10 U.S.C. §973(b), a Civil War-era dual officership ban, and the Appointments Clause of Article II of the Constitution. Before the CCA ruled on that motion, Dalmazzi filed a petition for a grant of review with the Court of Appeals for the Armed Forces (“CAAF”). The CAAF vacated and then denied Dalmazzi’s petition for grant of review as moot; though Judge Mitchell had been confirmed to the CMCR by the Senate, President Obama did not sign his commission until after the CCA had issued its decision in Dalmazzi’s court-martial. Petitioners thus challenge Dalmazzi’s conviction and also ask the Court to consider whether the CAAF erred in finding the claim moot, arguing that §973(b) is triggered once a military officer “holds” or “exercises the functions of” a civil office; even though his commission was not yet signed by the President, he was still exercising the functions of a CMCR judgeship when the CCA sentenced Dalmazzi.

In addition to considering whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the CCA, the Court must also consider the threshold question of whether it has jurisdiction to review this type of case in the first place. The United States argues that while federal law does allow the Supreme Court to review decisions of the CAAF in certain situations, the governing statute, 28 U.S.C. §1259(3), only allows review of cases in which the CAAF grants a petition for review. Because the CAAF vacated its order granting review of Dalmazzi’s petition and then denied the petition for review as moot, the CAAF did not grant the petition for review and the the government argues that Court does not have jurisdiction to review the decision. Petitioners argue that this interpretation would allow the CAAF to insulate decision from review by the Supreme Court by simply vacating the grant of the review at the end of a decision.

The only amicus brief in this case was filed by Aditya Bamzai, a professor at the University of Virginia School of Law. He argues that the Supreme Court does not have jurisdiction to review decisions from the CAAF because, though called a “court” by statute, it is an entity of the Executive Branch; citing Marbury v. Madison, Bamzai argues that the Court does not have Article III appellate jurisdiction over a body of the Executive Branch. In a very unusual move, the Court granted Bamzai’s motion to participate in oral argument, and will allow him ten minutes to outline his position.

In its second case on Tuesday, Hall v. Hall, the Court will considers whether the holding in Gelboim v. Bank of America, a 2015 case concerning jurisdiction in multidistrict consolidated cases, should be applied in the same way to single-district consolidated cases. In Gelboim, the Court unanimously held that when a district court dismisses the only claim in a case that is consolidated with other actions for pretrial proceedings in multidistrict litigation, the dismissal acts as a final, appealable order, even if not all other claims in the multidistrict litigation had been resolved. Here, the Court must determine whether, in a single-district consolidated case, the entry of a final judgment in one case makes that case immediately appealable, even if other cases are still pending in the same district.

The dispute initially started when the elderly Ethlyn Hall, both in her individual capacity and as a trustee of her inter vivos trust,  filed suit against her son, Samuel Hall, who was acting as her attorney, after she became displeased with his management of property in the U.S. Virgin Islands. Ethlyn moved to Florida to live near her daughter Elsa. After Ethlyn died while the case was pending, Elsa took her place as plaintiff as the representative of Ethlyn’s estate. Samuel then filed suit against Elsa for a variety of causes of action, including intentional infliction of emotional distress allegedly caused by Elsa turning Ethlyn against him. The District Court of the Virgin Islands consolidated the cases pursuant to Federal Rule of Civil Procedure 42(a)(2), which allows the consolidation of cases with “common questions of law or fact.” A jury rejected the estate’s claims, and awarded Samuel $2 million dollars in compensatory and punitive damages against Elsa. The district court entered separate judgments for each action and ordered a new trial for Samuel’s claims against Elsa, after finding the jury might have relied on a legally untenable basis for its finding. When Elsa appealed the judgment regarding the estate’s claims against Samuel to the Third Circuit, the court dismissed her appeal, as a final judgment had not been entered in the retrial for Samuel’s case against her. The Third Circuit emphasized that the circuit does “not employ a bright line rule and instead consider[s] on a case-by-case basis whether a less-than-complete judgment is appealable.”

Elsa, the petitioner in this case, argues that the case-by-case approach employed by the Third Circuit is too uncertain and increases the risk of having an appeal dismissed as untimely if an appellant must wait until all other consolidated cases have been resolved. The petitioner also cites 28 U.S.C. §1291, which provides that a court of appeals “shall” have jurisdiction over a final judgment of a district court. Petitioner argues that this is mandatory language, and the Third Circuit erred in concluding it did not have jurisdiction because of the pending case.

Respondent Samuel argues that, because the cases were consolidated pursuant to Rule 42(a)(2), they should be considered substantively and procedurally unitary, and that the text of Rule 42(a) “indicates that fully consolidated actions formally become a single case.” As such, Samuel argues that fully consolidated cases should be treated the same way as multiple claim actions – “as a single ‘judicial unit’ appealable only when all claims are decided.”

This post was drafted by ISCOTUS Fellows Bridget Flynn and Elisabeth Hieber, both Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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