oral argument

Supreme Court Oral Argument, Judicial “Tipping”, and Pre-Decision Dismissal

Matthew L.M. Fletcher

Earlier this year, the Oneida Indian Nation successfully persuaded the Supreme Court to GVR a case that most observers would agree the Nation would have a difficult time winning — by informing the Court of changed circumstances, initiated by the Nation, that effectively mooted the case. This is all detailed in Kaighn Smith’s new article in this month’s edition of the Federal Lawyer.

Right now it is rare for the Supreme Court to grant a case and then change its mind. Occasionally, the parties force the Court to dismiss a granted petition by agreeing to settle the matter or if one of the parties walks on (in cases like criminal cases).

Tribal advocates in recent years have openly feared the Supreme Court, which appears very hostile to their clients’ interests (and the stats are in strong agreement). The Oneida effort to moot the case in light of a likely bad outcome raises a few other questions about strategic behavior before the Court.

Given how many members of the Supreme Court appear to strongly articulate (“tip”?) their views and positions during oral argument (witness yesterday’s argument in the massive WalMart class action employment discrimination case, which the plaintiffs now must realize will crash and burn given the overt hostility of the Court), could a tribal party wait and see how oral argument goes — where they very possibly will learn whether or not they have a real chance of prevailing — and then seek a way to dismiss the action? The recent oral argument in Tohono O’odham Nation offered little in the way of clear tipping, but another argument (in Jicarilla Apache Nation) will afford the tribal interests an opportunity to analyze their chances (and count votes).

Of course, once this is done (and already has been done) a few times, the Court will catch on. Then the Court will perhaps begin to react with its own form of strategic behavior.

Ultimately, the Supreme Court’s (Justice Thomas excepted, of course) tipping of its likely decision during oral argument in some, but not all cases, encourages such behavior.

Water Wheel v. LaRance Ninth Circuit Oral Argument Audio

Matthew L.M. Fletcher

Here.

Madison County v. Oneida Indian Nation Oral Argument Set for Feb. 23

Matthew L.M. Fletcher

Here is the SCT docket sheet.

And a news article on the issue, via Pechanga.

U.S. v. Tohono O’odham Oral Argument Recap (Patricia Millett and James Meggesto)

Matthew L.M. Fletcher4 Comments

United States v. Tohono O’odham Nation
No. 09-846
Argument Recap

On Monday, the Supreme Court heard oral argument in United States v. Tohono O’odham Nation, No. 09-846, an important case concerning the ability of Indian tribes and a broad range of other potential plaintiffs (such as government contractors and plaintiffs challenging regulatory takings) to obtain full redress for claims they have against the United States government.  The case concerns the proper interpretation of 28 U.S.C. § 1500, a statute that strips the Court of Federal Claims (“CFC”) of jurisdiction over any claim “for or in respect to which” the plaintiff has another claim pending in federal district court.  Since the CFC is, for most intents and purposes, the only court that can provide monetary relief to plaintiffs in claims against the United States, the question under the statute that this case presented is whether plaintiffs that have claims for equitable relief (here, an accounting) already pending in federal district court can then seek money damages in the CFC for the United States’ breach of its duties managing that same trust in the CFC.  Anthony Yang argued the case for the Government while Danielle Spinelli argued the case for the Tohono O’odham Nation.

Unlike some recent Supreme Court cases involving issues implicating tribal interests (such as Plains Commerce Bank or City of Sherrill), the Justices’ questions suggested that they found difficulties with both sides’ positions and were struggling to understand the practical implications of a ruling for either side.  In particular, given some skeptical questions asked by Chief Justice Roberts, it was far from clear that a majority of the Court would be willing to adopt the very broad rule sought by the Government , which would preclude CFC jurisdiction in any case in which a “related” case is pending in another court, even if it seeks different relief.  Justice Ginsburg tested the limits of that position early in the argument by asking Mr. Yang whether sequential suits could be brought such that a case brought to final judgment in the district court could then be brought in the CFC.  While he conceded that the statute did allow for such sequencing, he nonetheless recognized that some suits may not be completed before the statute of limitations would run on the CFC claim.  He argued that Congress, aware of the possibility that complete relief may not be available to a plaintiff depending on the timing, nevertheless enacted Section 1500, knowing that plaintiffs would be forced to choose to pursue their claims in the CFC or the district court but not both.  Thus, if there are hardships created by that “strict” reading of the statute, Yang argued, Congress can remedy the situation.  But the Court should not permit parties to take “two bites at the apple.”

Chief Justice Roberts appeared to take issue with such a simplified view of the statute and the potential harm that could be caused by the adoption of the rule the Government would have and, to that end, pressed Yang on the precise contours of accounting claims and the type of relief they afford.  Indeed, the Chief Justice appeared to agree, as the Nation had argued in its briefing, with the distinction between an accounting claim in the district court – which essentially asks “what have I got in my account” – and a claim that seeks money damages for breach of obligations regarding that same trust account.

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Initial Reaction to Tohono O’odham Argument

Matthew L.M. Fletcher3 Comments

Note: We anticipate commentary from additional experts as well a little later.

Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.

Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.

At page 20 of the transcript, Justice Breyer asked the following question:

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Oral Argument Audio in Wells Fargo v. Lake of the Torches

Matthew L.M. Fletcher

Here.

The appellate panel: Joel M. Flaum, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Terence T. Evans, Circuit Judge.

Case argued by Mr. James A. Klenk for Appellant Wells Fargo Bank, National Association and Monica M. Riederer for Appellee Lake of the Torches Economic Development Corporation.

New Yorker Article on Chief Justice Roberts

Matthew L.M. Fletcher

From the New Yorker (an excerpt):

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Oral Argument Transcript in Hawaii v. Office of Hawaiian Affairs

Matthew L.M. Fletcher

Available here.

NYTs on Justice Ginsburg’s Participation in the Navajo Nation Oral Argument

Matthew L.M. Fletcher

From NYTs:

WASHINGTON — Justice Ruth Bader Ginsburg, who underwent surgery for pancreatic cancer less than three weeks ago, was back on the Supreme Court bench on Monday, asking crisp and vigorous questions in the two arguments heard by the court.

Justice Ginsburg seemed to take particular interest in a case brought by the Navajo Nation claiming that the federal government had been complicit in a scheme to allow a private company to underpay for coal on tribal lands.

The case, United States v. Navajo Nation, No. 07-1410, was making its second appearance before the court. Justice Ginsburg wrote the majority opinion ruling against the tribe in 2003, and she asked forceful questions suggesting that she saw no reason to revisit her conclusions.

Carter G. Phillips, the tribe’s lawyer, was just starting his argument when Justice Ginsburg asked the first question. Quoting broad language from her original decision, she suggested that it covered the newer case, too.

“Do you think that was just carelessness on the court’s part?” she asked of the expansive language she had used, including the phrase “any relevant statute or regulation.”

“Oh, I would never assume that, Justice Ginsburg,” Mr. Phillips said in a light tone. Justice Ginsburg reacted with a broad smile.

A few minutes later, she quoted a second passage along similar lines, and Mr. Phillips again deferred to her. “Obviously, Justice Ginsburg, you are in a much better position to judge what was intended here,” he said, before going on to say that this case involved a different federal statute than the 2003 one.

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Navajo Nation and Office of Hawaiian Affairs Oral Argument Dates

Matthew L.M. Fletcher

From SCOTUSblog:

Mon., Feb. 23:

U.S. v. Navajo Nation (07-1420) — federal government duty to protect Indian tribe’s mineral rights

Rivera v. Illinois (07-9995) — effect on conviction of erroneous denial of peremptory challenge to a juror

Tues., Feb. 24:

Burlington Northern v. U.S. (07-1601) and Shell Oil v. U.S. (07-1607) — liability for cleanup of toxic waste dump (cases consolidated for one-hour hearing)

Carlsbad Technology v. HIF Bio, Inc. (07-1437) — Circuit Court authority to review District Court order returning case to state courts

Wed., Feb. 25:

Hawaii v. Office of Hawaiian Affairs (07-1372) — authority of a state to sell state lands

Flores-Figueroa v. U.S. (08-108) — proof needed under federal identity theft law