On Nov. 5, 2019, the U.S. Supreme Court heard argument in Allen v. Cooper, which involves a dispute over the way state sovereign immunity and federal copyright law interact when an author alleges state infringement of that author’s federal copyright.
Petitioner Frederick Allen and his company, Nautilus Productions, contend that North Carolina violated their federal copyrights by publishing video and photographic footage that Allen had taken of the pirate Blackbeard’s sunken flagship, Queen Anne’s Revenge. Allen also challenges the validity of a recently passed North Carolina statute providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records. This law, he contends, was enacted in bad faith to undermine his copyright claim.
Allen and Nautilus sued North Carolina and various of its officials in federal district court. Although the district court rejected defendants’ invocation of sovereign immunity from suit, the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, concluding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment sovereign immunity, which ultimately shields respondents from all of Allen’s and Nautilus’s claims.
The U.S. Supreme Court subsequently granted certiorari to consider whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
To discuss the case, in this special panel episode, we have Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law, Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston, and our moderator, Kevin R. Amer, Deputy General Counsel at the U.S. Copyright Office.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.
The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law.
To discuss the case, we have Peter Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Nov 6, 2019, the U.S. Supreme Court heard County of Maui, Hawai’i v. Hawai’i Wildlife Fund, which involves a dispute over whether the Clean Water Act’s permit requirement applies when pollutants originate from a concrete point but are only conveyed to navigable waters indirectly, via groundwater.
Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.
Hawai’i Wildlife Fund and various other organizations filed suit against the County, alleging that it was violating the CWA by discharging effluent through groundwater into the ocean without an NDPES permit. The district court agreed with the plaintiffs and the U.S. Court of Appeals for the Ninth Circuit affirmed, rejecting the County’s argument that no violation occurred because the pollutants did not issue directly from the point source (the wells) into navigable water (the ocean), but rather traveled indirectly to the ocean via groundwater. The Ninth Circuit’s reading sharpened a split among the federal circuit courts of appeals on the proper interpretation of the CWA, and the Supreme Court granted certiorari to address whether the CWA requires a permit “when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
To discuss the cases, we have Glenn Roper, attorney at the Pacific Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Nov. 4, 2019, the U.S. Supreme Court heard argument in Kansas v. Glover, a case involving a dispute over the “reasonable suspicion” necessary to justify a traffic stop when the registered owner of a vehicle has a revoked license but the actual driver of the vehicle has not been identified.
A county sheriff’s deputy pulled over Charles Glover, Jr. after running a registration check on the vehicle Glover was driving and finding that the registered owner had a revoked license. Although Glover was, in fact, the registered owner, the deputy did not attempt to confirm his identity before making the stop; nor did he witness any traffic violations. The deputy had simply assumed the registered owner was the person driving the vehicle. Glover moved to suppress evidence obtained during the traffic stop, arguing that the officer had lacked the requisite “reasonable suspicion” of illegal activity to authorize the stop. The Kansas Supreme Court ultimately agreed with Glover, holding that the officer “lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver's license.”
This decision conflicted with those of various other state supreme courts and federal circuit courts of appeals on similar questions, and the U.S. Supreme Court subsequently granted Kansas’s certiorari petition to consider whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
To discuss the cases, we have Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On October 16, 2019, the Supreme Court heard oral argument in Mathena v. Malvo, a case which concerns the scope of a new constitutional rule when applied retroactively on collateral review.
In 2004, respondent Lee Boyd Malvo was convicted in Virginia on various counts of capital murder due to his participation in the “DC Sniper” attacks of 2002. As he was 17 years old at the time, he avoided the death penalty and was sentenced to four terms of life imprisonment without parole. In 2012, the Supreme Court held in Miller v. Alabama that sentencing a person younger than 18 to mandatory life imprisonment without parole violates the Eighth Amendment’s prohibition on cruel and unusual punishments. In 2016, the Court then held in Montgomery v. Louisiana that Miller had announced a new substantive rule applicable retroactively in cases on state collateral review.
When Malvo raised these issues on collateral review, the Fourth Circuit held that his sentences of life without parole must be vacated based on Miller, and the cases remanded for resentencing to determine whether his crimes reflected a “permanent incorrigibility” that would justify reimposition of the life-without-parole sentence. This judgment created a conflict with the Supreme Court of Virginia, which had concluded that Montgomery did not extend the applicability of Miller to discretionary sentencing schemes (including life without parole), but only applied Miller retroactively to cases on collateral review involving mandatory sentences of life without parole.
The Supreme Court thereafter granted certiorari to address whether the Fourth Circuit erred in concluding that Montgomery--when addressing whether the new constitutional rule announced in Miller applies retroactively on collateral review--may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
To discuss the case, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On October 8, 2019, the U.S. Supreme Court heard argument in two consolidated cases asking whether discrimination “because of … sex,” which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination based on sexual orientation.
In Altitude Express, Inc. v. Zarda, gay skydiving instructor Donald Zarda was fired after a female client with whom he was preparing a tandem jump alleged that he had touched her inappropriately, though he had disclosed his sexual orientation to protest that his intentions were not sexual. His lawsuit alleged that his employer discriminated against him because he was honest about his sexual orientation and did not conform to a “straight male macho stereotype.”
In Bostock v. Clayton County, Georgia, Gerald Bostock, a gay man who worked as a Child Welfare Services Coordinator for the Clayton County Juvenile Court System, was fired after Clayton County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members. His lawsuit alleged that the County falsely accused him of mismanaging public funds as a pretext for discharging him, with the real reason being his sexual orientation.
The U.S. Courts of Appeals in these cases reached mutually exclusive interpretations of Title VII’s language prohibiting discrimination “because of … sex.” In Zarda, the Second Circuit, sitting en banc, overruled its prior caselaw to conclude that Title VII prohibits discrimination based on sexual orientation. In Bostock, however, the Eleventh Circuit followed its longstanding precedent that Title VII does not support an action for sexual orientation discrimination. The U.S. Supreme Court subsequently granted certiorari in both cases to clarify whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII.
To discuss the cases, we have John J. Bursch, Owner, Bursch Law PLLC.
*Please note that Mr. Bursch argued a related Title VII case before the Supreme Court this term, Harris Funeral Homes v. EEOC.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas and Ramos v. Louisiana, both of which raise questions of constitutional criminal law.
In Kahler, a jury convicted James Kahler of capital murder. Among other things, he objected at trial to a Kansas statute limiting any “mental disease or defect” defense to formation of the requisite mental state for the charged offense. The statute, Kahler argued, denied him due process by depriving him of the ability to present an insanity defense. The Supreme Court of Kansas, following its precedent, noted that state law had deliberately “abandon[ed] lack of ability to know right from wrong as a defense,” and rejected Kahler’s argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Eighth and Fourteenth Amendments to the U.S. Constitution permit a state to abolish the insanity defense.
In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.
To discuss the cases, we have GianCarlo Canaparo, Legal Fellow at the Heritage Foundation.

On October 7, 2019, the Supreme Court heard oral argument in Peter v. NantKwest Inc., a case which considers whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees.
When a patent application is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.”
Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest, including nearly $80,000 in attorneys’ fees. The district court denied recovery based on the “American Rule” that parties in federal court typically bear their own fees unless otherwise directed by Congress. A divided en banc panel of the Federal Circuit ultimately affirmed the district court. This decision, however, was in tension with the U.S. Court of Appeals for the Fourth Circuit’s construction of similar language in the Lanham Act.
Thereafter, the Supreme Court granted certiorari to consider whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the PTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation.
To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.*
*Please note that Mr. Rando is co-Counsel on an Amicus brief filed on behalf of the Association of Amicus Counsel in this case.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement.
State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive, and contends that after he was handcuffed Nieves said: “[B]et you wish you would have talked to me now.”
Although Bartlett was charged with disorderly conduct and resisting arrest, the State ultimately dismissed the criminal charges against him. Bartlett then sued the officers in federal district court under 42 U.S.C. §1983, alleging that they had arrested him in retaliation for his speech, thereby violating his First Amendment rights. The court granted judgment in favor of the officers, concluding that they had probable cause to arrest Bartlett and that the existence of probable cause necessarily defeated Bartlett’s retaliation claim. The U.S. Court of Appeals for the Ninth Circuit reversed, however, arguing that even in the face of probable cause a claim of retaliatory arrest can prevail where the officers’ conduct would chill a person of ordinary firmness from First Amendment activity, and where the desire to chill speech was a “but for” cause of the arrest. The U.S. Supreme Court then granted certiorari to clarify the applicable legal standard.
By a vote of 6-3, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the court held that the existence of probable cause defeats a claim of retaliatory arrest as a matter of law--unless the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. The Chief Justice’s majority opinion was joined by Justices Breyer, Alito, Kagan, and Kavanaugh in full, and by Justice Thomas except as to Part II-D. Justice Thomas also filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor also dissented.

On March 19, 2019, the Supreme Court decided Nielsen v. Preap (and its companion case Wilcox v. Khoury), both of which consider the extent to which the mandatory detention provision of the Immigration and Naturalization Act applies to defendants who were not arrested by immigration officials immediately upon their release from criminal custody.
Aliens who are arrested in order to be removed from the United States typically can seek release or parole on bond while any dispute about their removability is being resolved. Title 8 U.S.C. § 1226(c)(1), however, creates an exception: aliens who have committed certain crimes or have a connection to terrorism must be arrested when released from custody relating to their criminal charges, and almost always held without bond until the question of removal is settled.
The U.S. Court of Appeals for the Ninth Circuit interpreted this mandatory detention provision to apply only when the alien is arrested immediately after release from prison. If a short period of time intervenes, the court concluded, the alien must be allowed the chance to apply for release on bond or parole.
By a vote of 5-4, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Respondent aliens who fall within the scope of § 1226(c)(1), the Court held, can be detained even if federal officials did not arrest them immediately upon release.
Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B-2, in which Chief Justice Roberts and Justice Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
To discuss the case, we have Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck.