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Kaal posted:It's actually the name that was chosen by the DC city council and used in the admission act that was passed by the US House. Personally I find "State of Washington, Douglass Commonwealth" to be kind of a gimmicky mouthful, but some of the supporters love it and it's just a name.
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May 22, 2021 17:43
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KOTEX GOD OF BLOOD posted:My state is literally named "Massachusetts" and we get by just fine That's the name of the local native ethnic group though.
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May 23, 2021 00:21
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KOTEX GOD OF BLOOD posted:My state is literally named "Massachusetts" and we get by just fine Like I said, it's just a name. If Massachusetts was determined to be appropriative and officially renamed "Maine's Accidental Super Small Ally Could Help Us Sell Enormous Tanks To Ships" then you'd ultimately just wince at the meagre ambition and move on with life.
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May 23, 2021 03:23
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Fuschia tude posted:That's the name of the local native ethnic group though.
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May 23, 2021 03:30
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Kaal posted:It's actually the name that was chosen by the DC city council and used in the admission act that was passed by the US House. Personally I find "State of Washington, Douglass Commonwealth" to be kind of a gimmicky mouthful, but some of the supporters love it and it's just a name. The point of the name change is to officially replace one of the genocidal assholes with someone much more worthy of a state name. I'd love to see the Washington bit taken out, too, but that would require businesses change names and that's usually too big of an ask. Anyway, it's certainly not worse than "Washington, District of Columbia" Stickman fucked around with this message at 04:12 on May 23, 2021 |
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May 23, 2021 04:10
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Stickman posted:The point of the name change is to officially replace one of the genocidal assholes with someone much more worthy of a state name. I'd love to see the Washington bit taken out, too, but that would require businesses change names and that's usually too big of an ask. District Taco would like a word 
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May 23, 2021 16:31
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https://mobile.twitter.com/fairforall_org/status/1396609227490275329
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May 24, 2021 02:52
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 Opinions! Now back to unanimity for the moment.UNITED STATES v. PALOMAR-SANTIAGO TLDR: If you’re removed from the US, it’s illegal to reenter without authorization. However, you can raise the invalidity of your previous removal order if you’re charged with unlawful reentry (a “collateral challenge” to that prior order). The law allowing that challenge has 3 requirements: 1. You tried everything you could before the agency (“exhausted any administrative remedies); 2. You were improperly deprived of the opportunity for judicial review; and 3. The order was fundamentally unfair. Even if the conviction you were removed under was later found not to be a removable offense (the list of convictions that are an automatic removal changes over time), you still have to show all 3. Unanimous opinion. Holding / Majority Opinion (Sotomayor) In 1998, respondent Refugio Palomar-Santiago was removed from the United States based on a conviction for felony driving under the influence (DUI). He later returned to the United States and was indicted on one count of unlawful reentry in violation of 8 U. S. C. §1326(a). Between Palomar-Santiago’s removal and indictment, this Court held that offenses like his DUI conviction do not in fact render noncitizens removable. Palomar-Santiago now seeks to defend against his unlawful-reentry charge by challenging the validity of his 1998 removal order. By statute, defendants “may not” bring such collateral attacks “unless” they “demonstrat[e]” that (1) they “exhausted any administrative remedies that may have been available to seek relief against the [removal] order,” (2) the removal proceedings “improperly deprived [them] of the opportunity for judicial review,” and (3) “entry of the order was fundamentally unfair.” §1326(d). The question for the Court is whether Palomar-Santiago is excused from making the first two of these showings, as the Court of Appeals for the Ninth Circuit held, because his prior removal order was premised on a conviction that was later found not to be a removable offense. The Court holds that the statute does not permit such an exception. … Palomar-Santiago waived his right to appeal [his removal order based on a felony DUI] and was removed to Mexico the next day. Six years later, this Court held in Leocal v. Ashcroft that “a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense” is necessary for an offense to qualify as a crime of violence. Accordingly, Palomar-Santiago’s DUI conviction was not a crime of violence under 18 U. S. C. §16(a), and so not an aggravated [violent] felony under 8 U. S. C. §1101(a)(43). Palomar-Santiago’s removal order thus never should have issued. In 2017, Palomar-Santiago was found again living in the United States. A grand jury indicted him on one count of unlawful reentry after removal. Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of Leocal. The District Court granted the motion, and the Court of Appeals for the Ninth Circuit affirmed. Both courts were bound by Ninth Circuit precedent providing that defendants are “excused from proving the first two requirements” of §1326(d) if they were “not convicted of an offense that made [them] removable.”Other Courts of Appeals do not excuse similarly situated unlawful-reentry defendants from meeting §1326(d)’s first two requirements. ... The Ninth Circuit’s interpretation is incompatible with the text of §1326(d). That section provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” that three conditions are met: (1) they have “exhausted any administrative remedies,” (2) they were “deprived . . . of the opportunity for judicial review,” and (3) “the entry of the order was fundamentally unfair.” The requirements are connected by the conjunctive “and,” meaning defendants must meet all three. When Congress uses “mandatory language” in an administrative exhaustion provision, “a court may not excuse a failure to exhaust.” Yet that is what the Ninth Circuit’s rule does. Without the benefit of the Ninth Circuit’s extrastatutory exception, §1326(d)’s first two procedural requirements are not satisfied just because a noncitizen was removed for an offense that did not in fact render him removable. Indeed, the substantive validity of the removal order is quite distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the BIA) or was deprived of the opportunity for judicial review (by filing a petition for review of a BIA decision with a Federal Court of Appeals). Palomar-Santiago raises two counterarguments based on the text of §1326(d). Neither is persuasive. First, he contends that further administrative review of a removal order is not “available” when an immigration judge erroneously informs a noncitizen that his prior conviction renders him removable. Noncitizens, the argument goes, cannot be expected to know that the immigration judge might be wrong. Because noncitizens will not recognize a substantive basis for appeal to the BIA, that administrative review is not practically “available” under §1326(d)(1)....Administrative review of removal orders exists precisely so noncitizens can challenge the substance of immigration judges’ decisions. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Second, Palomar-Santiago contends that the §1326(d) prerequisites apply only when a defendant argues that his removal order was procedurally flawed rather than substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid from the moment they are entered. Palomar-Santiago’s position ignores the plain meaning of both “challenge” and “collateral attack.” … The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Sotomayor, unanimous. https://www.supremecourt.gov/opinions/20pdf/20-437_bqmc.pdf TERRITORY OF GUAM v. UNITED STATES TLDR: The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, commonly known as CERCLA, is a hideously complicated environmental law. If you settle up with the United States or a State for what you owe, you get to sue other people for their share related to the land. But that settlement has to specifically mention CERCLA and not just environmental law generally. Holding / Majority Opinion (Thomas) The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, commonly known as CERCLA, establishes a complex statutory scheme for responding to certain environmental hazards. Several of its provisions address what is often the crucial question in a remedial action: Who pays? Today’s case involves §113(f )(3)(B) of the Act,1 which allows “[a] person who has resolved its liability to the United States or a State” in a settlement to seek “contribution”— that is, money from another responsible individual. The question is whether a party must resolve a CERCLA-specific liability in order to trigger this right, or whether a broader array of settlements involving environmental liability will do. We hold that CERCLA contribution requires resolution of a CERCLA-specific liability. Guam and the United States are engaged in a long-running dispute over the Ordot Dump, a “‘280-foot mountain of trash’” near the center of the island. The Navy constructed the dump in the 1940s, and then allegedly deposited toxic military waste there for several decades. The United States later ceded control of the site to Guam, which itself used the dump as a public landfill. But that did not end the Federal Government’s involvement. In the late 20th century, the Environmental Protection Agency (EPA) determined that the dump posed an ecological hazard. After Guam allegedly failed to comply with agency directives to remediate the site, the EPA sued under the Clean Water Act, asserting that Guam was “‘discharging pollutants . . . into waters of the United States without obtaining a permit.’” That litigation ended in 2004, when Guam and the EPA entered into a consent decree. The decree required Guam, among other things, to pay a civil penalty and to close and cover the dump. Guam’s compliance would, in turn, be “in full settlement and satisfaction of the civil judicial claims of the United States . . . as alleged in the Complaint”—that is, claims under the Clean Water Act. Id., at 116. But Guam was not completely free. As the agreement explained, “the United States d[id] not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations,” “[e]xcept as specifically provided [i]n [the decree].” Thirteen years later, it was Guam’s turn to sue—this time under CERCLA. According to Guam’s complaint, the United States’ earlier use of the dump exposed it to liability on two fronts. The first was a cost-recovery action under §107(a), which allows a State (or here, a Territory), to recover “all costs of [a] removal or remedial action” from “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” The second was a §113(f ) “contribution” action. Under that provision, a “person who has resolved its liability to the United States . . . for some or all of a response action or for some or all of the costs of such action in [a] settlement may seek contribution from any person who is not [already] party to a [qualifying] settlement.” Rather than increase Guam’s odds of recovery, however, the second legal theory led to the dismissal of its complaint. According to the D. C. Circuit, if a party can assert a contribution claim under §113(f ), it cannot assert a cost-recovery claim under §107(a).The court then determined that Guam possessed a contribution claim—at least at one point—because the remedial measures and conditional release in the Clean Water Act decree sufficiently “‘resolved Guam’s liability’” for the dump. But because the 2004 decree had triggered the since-expired 3-year statute of limitations for contribution actions, Guam had no remedy at all. Guam now attacks two links in this chain of reasoning: First, Guam retreats from its complaint and argues that it never had a viable contribution claim under §113(f ), leaving it free to pursue a cost-recovery action under §107(a). The reason, argues Guam, is that a contribution claim arises only if a settlement resolves liability under CERCLA, and not under some other law such as the Clean Water Act. Second, Guam contends that even if resolution of a nonCERCLA liability is enough, the decree did not adequately “resolve” any sort of liability because Guam did not formally admit responsibility and because the agreement left Guam open to future enforcement action. We need only address the first point to decide this case. A settlement must resolve a CERCLA liability to trigger a contribution action under §113(f )(3)(B). Our analysis focuses on the totality of subsection 113(f ), which governs the scope of a “contribution” claim under CERCLA. This subsection begins with an anchor provision—entitled “contribution”—that allows “[a]ny person [to] seek contribution from any other person who is liable or potentially liable under section [1]07(a) of [CERCLA], during or following any civil action under section [1]06 of [CERCLA] or under section [1]07(a) of [CERCLA].” … That this subsection centers on and is entitled “contribution” is the first clue that it is concerned only with the distribution of CERCLA liability. A contribution suit does not exist in a vacuum, but rather is a tool for apportioning the burdens of a predicate “common liability” among the responsible parties….The most obvious place to look for that threshold liability is CERCLA’s reticulated statutory matrix of environmental duties and liabilities. After all, “[s]tatutes must ‘be read as a whole’”—an especially salient approach in this case given that CERCLA’s very title reinforces that it is a “Comprehensive” Act. Remaining within the bounds of CERCLA is also consistent with the familiar principle that a federal contribution action is virtually always a creature of a specific statutory regime. In fact, there is no “general federal right to contribution” whatsoever. … This §113(f ) family of contribution provisions anticipates a predicate CERCLA liability, especially when properly read in “sequenc[e]” as “‘integral parts of a whole.’” The §113(f )(1) anchor provision is especially clear on this point, allowing contribution “during or following any civil action under §[1]06 of this title or under §[1]07 of this title.” And though §§113(f )(2) and 113(f )(3) are not quite as explicit, their phrasing and context still presume that a CERCLA liability is necessary to trigger contribution. … The most natural reading of §113(f )(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability. We thus reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Thomas, unanimous. https://www.supremecourt.gov/opinions/20pdf/20-382_869d.pdf
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May 25, 2021 22:56
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I love how immigrant party automatically gives a 9-0 gently caress you every* time
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May 26, 2021 00:30
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Nah, it's just SCOTUS once again reminding the 9th Circuit that they can't just ignore laws they don't like.
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May 26, 2021 17:09
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Yeah, just because a law is a hideous violation of basic human rights doesn't mean that it shouldn't be applied to the strictest possible standard to maximize criminalization of people who's rights have already been severely violated by the US government 
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May 26, 2021 19:08
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Ah yes, the hideous human rights violation of (checks notes) requiring a non-resident alien with a DUI who was found living in the country illegally to exhaust administrative remedies to challenge his prior removal before turning to the courts. They're not even saying there is no way to overturn his prior removal, just that he actually had to try to do so through administrative procedures.
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May 26, 2021 20:33
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https://mobile.twitter.com/TonyOrtega94/status/1398016072088010756
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May 28, 2021 01:32
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Stephen Breyer is going to give me an ulcer.quote:Supreme court justice Stephen Breyer: Democrats must ‘get Republicans talking’ How does he still not understand. He has been on the Supreme Court since 1994. He was in the dissent on Bush v. Gore. He has seen how the GOP handled SCOTUS appointments over the last five years. How does he still not get it.
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May 30, 2021 14:32
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SCOTUS 2021: Zero days since Breyer said he won't retire
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May 30, 2021 14:40
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vyelkin posted:Stephen Breyer is going to give me an ulcer. Old person whose mind is starting to go coupled with just not wanting to admit the truth because it means they have to accept that the institute they're a part of is a farce and that the GOP has been spending decades turning it into their own weapon while Dems like him (and RBG) huff their own farts. He's going to pull an RBG.
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May 30, 2021 18:23
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vyelkin posted:Stephen Breyer is going to give me an ulcer. Breyer is a third-way Democrat who has been sitting on an un-elected ruling council for decades and is accountable to no one but God.
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May 30, 2021 18:30
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Evil Fluffy posted:Old person whose mind is starting to go coupled with just not wanting to admit the truth because it means they have to accept that the institute they're a part of is a farce and that the GOP has been spending decades turning it into their own weapon while Dems like him (and RBG) huff their own farts. I don't think Breyer is going to end up one of the most lauded Justices to ever preside on the Supreme Court, but I guess stranger things have happened? Edit: come to think of it, I wonder how betrayed RBG felt when Hillary lost the election because segments of the population couldn't recognize a meaningful difference between her and trump. The idea that she has any real culpability for the current makeup of the court is a very, very stupid delusion Grip it and rip it fucked around with this message at 19:16 on May 30, 2021 |
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May 30, 2021 19:13
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Grip it and rip it posted:I don't think Breyer is going to end up one of the most lauded Justices to ever preside on the Supreme Court, but I guess stranger things have happened? It’s pure arrogance to refuse to think strategically about your political goals because you assume you’ll be able to live in perfect health up until the moment you decide you want to retire. People appointed to the court seem to really internalize the idea that they are above and outside of the systems that govern other people. It’s not outrageous that they would forget their own mortality.
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May 30, 2021 19:42
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SCOTUS 2021: More Breyer Health Scares Please
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May 30, 2021 19:49
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Grip it and rip it posted:I don't think Breyer is going to end up one of the most lauded Justices to ever preside on the Supreme Court, but I guess stranger things have happened? Stranger things like people thinking RBG's legacy isn't going to be one of shame and the court rapidly undoing a lot of social progress? RBG might be one of the most lauded were it not for that whole "I'm staying because nobody's good enough to replace me. Oh whoops an insane rightwing zealot got my seat instead of another Sotomayor or Kagan" thing. She's a good example that someone can (usually) have good legal opinions while still being a selfish, ruinous rear end in a top hat who doesn't give any thought to the welfare of the country after you've left the bench (and the means by which you leave it).
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May 30, 2021 23:08
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Evil Fluffy posted:Stranger things like people thinking RBG's legacy isn't going to be one of shame and the court rapidly undoing a lot of social progress? Lol it's sweet that you've constructed your own little expanded universe of RBG thoughts in order to justify attacking someone who served progressive causes their entire life as arrogant and selfish. The fact is that that there was vanishingly small amounts of time where the process of appointing her replacement could have taken place, and RBG managed to survive them up until the Democratic party lost to Donald Trump. I think laying the fact that she was replaced by Trump as a lack of "strategic thinking" or "selfishness" is a lovely backwards looking rationalization. When exactly, in your beautiful mind, should she have stepped down?
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May 31, 2021 18:05
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Grip it and rip it posted:Lol it's sweet that you've constructed your own little expanded universe of RBG thoughts in order to justify attacking someone who served progressive causes their entire life as arrogant and selfish. The fact is that that there was vanishingly small amounts of time where the process of appointing her replacement could have taken place, and RBG managed to survive them up until the Democratic party lost to Donald Trump. When she had a Democratic President and Senate around 2008-2012 and she started having health issues
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May 31, 2021 18:19
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Its a funny question to ask because there were a ton of people both here and in the news and in the Democratic party loudly begging her to step down around.. 2010 I think it was? Because otherwise we risked her getting replaced by a conservative bootlicker. And she basically told people she would never step down, her replacement would be left up to chance because that was her decision. I'm not sure what you imagine is the reason for that decision if not arrogance.
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May 31, 2021 18:23
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I can understand it, you've hit the capstone of your career; this is it, this is everything you're life up until now has led up to and you'll never step any higher than this, you're having fun, it's rewarding work, and you're making history every single day. Even if you're often on the losing end of that history you still have a chance to make it clear what you felt is right and maybe in the future when history swings back to vindicate you people will look back and use your words to reestablish what's right. In a way being asked to step down out of tactical and strategic considerations reduces you from a dignified and important pillar of the constitutional order, of the checks and balances of government, into a tool of partisan power politics of the executive and legislative branches of government instead of being a co-equal branch of government. If you straight up do as they ask, were you really picked for your talent and intellect? Couldn't anyone rubber stamp the will of your "allies" then? I think to anyone it's a little galling. I think you just need to be imaginative and imagine how things should be, and it makes a perfectly cromulent amount of sense.
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May 31, 2021 18:38
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GlyphGryph posted:Its a funny question to ask because there were a ton of people both here and in the news and in the Democratic party loudly begging her to step down around.. 2010 I think it was? Because otherwise we risked her getting replaced by a conservative bootlicker. I mean, I'd probably be pissed off if people told me that I should quit a job I like, am good at, and where I feel like I'm making a positive contribution to society for the sake of the greater good. "Sorry, we think you're great, but you're old and are probably going to die soon, and we'd rather make sure our guy pick you replacement rather than risk somebody on the other side do it, So if you'll just let us know where you want your retirement dinner to be, that would be great. I know a great Italian place I think you'd like."
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May 31, 2021 18:39
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It's difficult to have too much sympathy for an un-elected leader who gets affronted at the idea of sharing power or concerns about societal stability after their death. Americans are rightfully opposed to foreign statesmen who are only concerned with maintaining their own status and power, but we tolerate it from our own "ruling council" so long as we call them judges rather than lords. The whole institution is a disgrace to democracy. Congress should disband it and start it afresh.
Kaal fucked around with this message at 19:15 on May 31, 2021 |
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May 31, 2021 19:11
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Kaal posted:It's difficult to have too much sympathy for an un-elected leader who gets affronted at the idea of sharing power or concerns about societal stability after their death. Americans are rightfully opposed to foreign statesmen who are only concerned with maintaining their own status and power, but we tolerate it from our own "ruling council" so long as we call them judges rather than lords. The whole institution is a disgrace to democracy. Congress should disband it and start it afresh. The supreme court isn't a "ruling council" they weren't born into the position, or picked by unelected party insiders; they're picked by elected representatives. There's a big difference between a justice that serves for life and a monarch.
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May 31, 2021 19:35
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Grip it and rip it posted:Lol it's sweet that you've constructed your own little expanded universe of RBG thoughts in order to justify attacking someone who served progressive causes their entire life as arrogant and selfish. The fact is that that there was vanishingly small amounts of time where the process of appointing her replacement could have taken place, and RBG managed to survive them up until the Democratic party lost to Donald Trump. When the Democrats were begging her to do so in 2010 or 2014 when they had the ability to appoint a liberal/progressive replacement and she refused because she didn't think any replacement would be good enough. (e: it's weird that you think someone who's progressive can't also be selfish) You do know you can use Google to type in stuff like "did RBG refuse to retire" and find articles about it right? Or look back in the SCOTUS thread to 2014 when it was discussed at the time. So yes, as I said before: her legacy is going to be that after years of good progressive rulings she ultimately was replaced by a right wing zealot with the intent to rapidly undo decades of progress and this was made possible by her, an elderly woman who had multiple run-ins with cancer, refusing to resign because she arrogantly felt nobody was good enough to get appointed to fill her seat. Part of someone's legacy is how things are affected by their departure. RBG had the chance to make sure she left on a positive note and instead stuck around long past the age anyone should be working, much less working at the highest level of government. There is nothing noble about working until your death, especially when it means you had a huge gift to the people who hate (almost) everything you support. Me, back in April 2014 posted:Considering the decades each likely have before they'll retire or die it's pretty much incalculable unless the Democrats hold on to the Senate in November and Obama decides "gently caress these 5 assholes" and adds more judges to the bench. Which he won't because his own party would likely push back enough to ensure even going nuclear will lack votes. The names are different but we still ended up with a GOP POTUS appointing a fellow right-winger not because they're a good judge but because they're a loyal conservative thanks to RBG being too stubborn to admit that she was already lucky as hell to beat cancer as much as she did, especially as an octogenarian. Raenir Salazar posted:The supreme court isn't a "ruling council" they weren't born into the position, or picked by unelected party insiders; they're picked by elected representatives. There's a big difference between a justice that serves for life and a monarch. SCOTUS nominees are absolutely picked by party insiders (even Miers, though nobody expected her to be that bad at her hearings) and you shouldn't try to kid yourself otherwise. All of Trump's picks came directly from lists curated by Republican political groups and rubber-stamped by the GOP in the Senate. Evil Fluffy fucked around with this message at 20:16 on May 31, 2021 |
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May 31, 2021 20:02
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Being curated by special interest groups but ultimately approved by the legislature is not the same thing. At the end of the day it's the duly elected representatives who can agree or deny.
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May 31, 2021 20:22
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“Duly elected” is pretty debatable, as is the degree to which they represent the will of the people.
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May 31, 2021 20:58
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Raenir Salazar posted:The supreme court isn't a "ruling council" they weren't born into the position, or picked by unelected party insiders; they're picked by elected representatives. There's a big difference between a justice that serves for life and a monarch. Eh. Nobody elected the Supreme Court. Even if you elect a president and they nominate someone to the Supreme Court, it's debatable whether that represents the "will of the people". They have a pretty sweet gig serving on the court for life, unaccountable to anyone.
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May 31, 2021 21:53
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Grip it and rip it posted:The fact is that that there was vanishingly small amounts of time where the process of appointing her replacement could have taken place It could have been done any time in the 6 years between 2009 and 2015 lol
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May 31, 2021 21:54
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Boy this sure is a novel conversation that will lead somewhere useful!
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Jun 1, 2021 05:31
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Raenir Salazar posted:Being curated by special interest groups but ultimately approved by the legislature is not the same thing. At the end of the day it's the duly elected representatives who can agree or deny. Members of parliament tried to argue something similar prior to the American Revolution. It went poorly.
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Jun 1, 2021 06:12
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Slaan posted:I love how immigrant party automatically gives a 9-0 gently caress you every* time Dead Reckoning posted:Nah, it's just SCOTUS once again reminding the 9th Circuit that they can't just ignore laws they don't like. Both of you should look at Garland v. Ming Dai...it happened again. Opinions! Now back to unanimity for the moment.CITY OF SAN ANTONIO, TEXAS, ON BEHALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED TEXAS MUNICIPALITIES v. HOTELS.COM, L. P., ET AL. TLDR: Federal Rule of Appellate Procedure 39(d) does not give a district court discretion to waive costs of the appeal. Narrow procedural point worth about $2.3 million to hotels.com. Unanimous opinion. Holding / Majority Opinion (Alito) Civil litigation in the federal courts is often an expensive affair, and each party, win or lose, generally bears many of its own litigation expenses, including attorney’s fees that are subject to the so-called American Rule. But certain “costs” are treated differently. Federal Rule of Appellate Procedure 39 governs the taxation of appellate “costs,” and the question in this case is whether a district court has the discretion to deny or reduce those costs. We hold that it does not and therefore affirm the judgment below. There is a longstanding tradition of awarding certain costs other than attorney’s fees to prevailing parties in the federal courts. Today, Federal Rule of Appellate Procedure 39 sets out the procedure for assessing and taxing costs relating to appeals. Subdivision (a) provides a series of default rules that govern “unless the law provides or the court orders otherwise.” Under these default rules: “(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; “(2) if a judgment is affirmed, costs are taxed against the appellant; “(3) if a judgment is reversed, costs are taxed against the appellee; “(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.” The remaining subdivisions of the Rule deal with related issues...subdivision (e) lists four categories of “costs on appeal” that “are taxable in the district court for the benefit of the party entitled to costs under this rule.” This case concerns one of the categories of costs that are taxable in the district court under subdivision (e): “premiums paid for a bond or other security to preserve rights pending appeal.” [if you don’t pay for a bond, generally you would have to satisfy all of the amount of a judgment pending appeal or win a stay.] The cost dispute before us arises out of litigation between the city of San Antonio—acting on behalf of a class of 173 Texas municipalities—and a number of popular online travel companies (OTCs). In 2006, San Antonio alleged that the OTCs had been systematically underpaying hotel occupancy taxes by calculating them using the wholesale rate that the OTCs negotiated with hotels rather than the retail rate that consumers paid for hotel rooms. After a jury trial, the District Court entered a judgment of approximately $55 million in favor of the class. The OTCs quickly sought to secure supersedeas bonds to stay the judgment. They negotiated with San Antonio over the terms of the bonds, and the city ultimately supported the OTCs’ efforts to stay the judgment with supersedeas bonds totaling almost $69 million, an amount that was calculated to cover the judgment plus 18 months of interest and further taxes. The District Court approved the bonds, which were subsequently increased at San Antonio’s urging to cover what grew to be an $84 million judgment after years of post-trial motions. The OTCs eventually appealed, and the Court of Appeals held that the OTCs had not underpaid the hotel occupancy taxes. Its mandate stated: “[T]he judgment of the District Court is vacated and rendered for OTCs.” In accordance with Federal Rule of Appellate Procedure 39(d), the OTCs filed a bill of costs with the Circuit Clerk and requested $905.60 to cover the appellate docket fee and the cost of printing their briefs and appendix. These items were taxed without objection. Back in the District Court, the OTCs filed a bill of costs for more than $2.3 million. The lion’s share of these costs were supersedeas bond premiums. San Antonio objected, urging the District Court to exercise its discretion and decline to tax all or most of those costs. The city argued, among other things, that the OTCs should have pursued alternatives to a supersedeas bond and that it was unfair for San Antonio to bear the costs for the entire class rather than just its proportional share of the judgment. The District Court thought San Antonio had made “some persuasive arguments.” But based on Circuit precedent, the court held that it lacked discretion “regarding whether, when, to what extent, or to which party to award costs of the appeal” and that “its sole responsibility [was] to ensure that only proper costs are awarded.” The court ultimately taxed costs of just over $2.2 million. … We hold that Rule 39 does not permit a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e) of that Rule. Rule 39 creates a cohesive scheme for taxing appellate costs. As noted, it sets out default rules that are geared to five potential outcomes of an appeal: dismissal, affirmance, reversal, affirmance in part and reversal in part, and vacatur. Each of these default rules tracks the “venerable presumption that prevailing parties are entitled to costs.” These default rules give way, however, when “the court orders otherwise.” Rule 39(a). The parties agree that this reference to “the court” means the court of appeals, not the district court, and we agree with that interpretation. … The parties do not agree, however, on what the court of appeals has the power to “orde[r].” San Antonio thinks that the appellate court may say “who can receive costs (party A, party B, or neither)” but lacks “authority to divide up costs.” So, the city argues, the district court must have the discretion to do that. By contrast, the OTCs argue that the appellate court has the discretion to divide up the costs as it deems appropriate and that a district court cannot alter that allocation. The OTCs have the better of the argument. The text of subdivision (a) cuts decisively in their favor. That provision states that the court of appeals need not follow the default rules, which allocate costs based on the outcome of the appeal, but can “orde[r] otherwise.” This broad language does not limit the ways in which the court of appeals can depart from the default rules, and it certainly does not suggest that the court of appeals may not divide up costs. On the contrary, the authority of a court of appeals to do just that is strongly supported by the relationship between the default rules and the court of appeals’ authority to “order otherwise.” For example, under Rule 39(a)(4), if a district court judgment is affirmed in part and reversed in part, “costs are taxed only as the court [of appeals] orders.” … Read properly, then, Rule 39 gives discretion over the allocation of appellate costs to the courts of appeals. With that settled, it is easy to see why district courts cannot exercise a second layer of discretion. Suppose that a court of appeals, in a case in which the district court’s judgment is affirmed, awards the prevailing appellee 70% of its costs. If the district court, in an exercise of its own discretion, later reduced those costs by half, the appellee would receive only 35% of its costs—in direct violation of the court of appeals’ directions. … Finally, San Antonio worries that parties will be unable to obtain review of their objections to Rule 39(e) costs if the district court cannot provide relief after the matter returns to that court. We agree that the current Rules and the relevant statutes could specify more clearly the procedure that such a party should follow to bring their arguments to the court of appeals, but this does not lead to the conclusion that a district court can reallocate those costs. Rule 27 sets forth a generally applicable procedure for seeking relief in a court of appeals, and a simple motion “for an order” under Rule 27 should suffice to seek an order under Rule 39(a). The OTCs also identify instances where parties have raised their arguments through other procedural vehicles, including merits briefing, see Rule 28, objections to a bill of costs, see Rule 39(d)(2), and petitions for rehearing, see Rule 40. We do not foreclose litigants from raising their arguments in any manner consistent with the relevant federal and local Rules. … The judgment of the Court of Appeals is affirmed. It is so ordered. Lineup: Alito, unanimous. https://www.supremecourt.gov/opinions/20pdf/20-334_5h26.pdf UNITED STATES v. COOLEY TLDR: A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law. Holding / Majority Opinion (Breyer) The question presented is whether an Indian tribe’s police officer has authority to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation. The search and detention, we assume, took place based on a potential violation of state or federal law prior to the suspect’s transport to the proper nontribal authorities for prosecution. We have previously noted that a tribe retains inherent sovereign authority to address “conduct [that] threatens or has some direct effect on . . . the health or welfare of the tribe.” We believe this statement of law governs here. And we hold the tribal officer possesses the authority at issue. Late at night in February 2016, Officer James Saylor of the Crow Police Department was driving east on United States Highway 212, a public right-of-way within the Crow Reservation, located within the State of Montana. Saylor saw a truck parked on the westbound side of the highway. Believing the occupants might need assistance, Saylor approached the truck and spoke to the driver, Joshua James Cooley. Saylor noticed that Cooley had “watery, bloodshot eyes” and “appeared to be non-native.” Saylor also noticed two semiautomatic rifles lying on the front seat. Eventually fearing violence, Saylor ordered Cooley out of the truck and conducted a patdown search. He called tribal and county officers for assistance. While waiting for the officers to arrive, Saylor returned to the truck. He saw a glass pipe and plastic bag that contained methamphetamine. The other officers, including an officer with the federal Bureau of Indian Affairs, then arrived. They directed Saylor to seize all contraband in plain view, leading him to discover more methamphetamine. Saylor took Cooley to the Crow Police Department where federal and local officers further questioned Cooley. In April 2016, a federal grand jury indicted Cooley on drug and gun offenses. The District Court granted Cooley’s motion to suppress the drug evidence that Saylor had seized. It reasoned that Saylor, as a Crow Tribe police officer, lacked the authority to investigate non-apparent violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation. [Appeals followed] … Long ago we described Indian tribes as “distinct, independent political communities” exercising sovereign authority. Due to their incorporation into the United States, however, the “sovereignty that the Indian tribes retain is of a unique and limited character.” Indian tribes may, for example, determine tribal membership, regulate domestic affairs among tribal members, and exclude others from entering tribal land. On the other hand, owing to their “dependent status,” tribes lack any “freedom independently to determine their external relations” and cannot, for instance, “enter into direct commercial or governmental relations with foreign nations.” Tribes also lack inherent sovereign power to exercise criminal jurisdiction over nonIndians. In all cases, tribal authority remains subject to the plenary authority of Congress. Here, no treaty or statute has explicitly divested Indian tribes of the policing authority at issue. We turn to precedent to determine whether a tribe has retained inherent sovereign authority to exercise that power. In answering this question, our decision in Montana v. United States, 450 U. S. 544 (1981), is highly relevant. In that case we asked whether a tribe could regulate hunting and fishing by nonIndians on land that non-Indians owned in fee simple on a reservation. We held that it could not. We supported our conclusion by referring to our holding in Oliphant that a tribe could not “exercise criminal jurisdiction over non-Indians.” We then wrote that the “principles on which [Oliphant] relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” At the same time, we made clear that Montana’s “general proposition” was not an absolute rule. Ibid. We set forth two important exceptions. First, we said that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Second, we said that a “tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” The second exception we have just quoted fits the present case, almost like a glove. The phrase speaks of the protection of the “health or welfare of the tribe.” To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats. Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation. As the Washington Supreme Court has noted, “[a]llowing a known drunk driver to get back in his or her car, careen off down the road, and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the Tribe.” … We also note that our prior cases denying tribal jurisdiction over the activities of non-Indians on a reservation have rested in part upon the fact that full tribal jurisdiction would require the application of tribal laws to non-Indians who do not belong to the tribe and consequently had no say in creating the laws that would be applied to them. Saylor’s search and detention, however, do not subsequently subject Cooley to tribal law, but rather only to state and federal laws that apply whether an individual is outside a reservation or on a state or federal highway within it. As the Solicitor General points out, an initial investigation of non-Indians’ “violations of federal and state laws to which those non-Indians are indisputably subject” protects the public without raising “similar concerns” of the sort raised in our cases limiting tribal authority. ... In short, we see nothing in these provisions that shows that Congress sought to deny tribes the authority at issue, authority that rests upon a tribe’s retention of sovereignty as interpreted by Montana, and in particular its second exception. To the contrary, in our view, existing legislation and executive action appear to operate on the assumption that tribes have retained this authority. For these reasons, we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Breyer, unanimous. Concurrence by Alito. Concurrence (Alito): I join the opinion of the Court on the understanding that it holds no more than the following: On a public right-ofway that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal police officer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene. https://www.supremecourt.gov/opinions/20pdf/19-1414_8m58.pdf GARLAND, ATTORNEY GENERAL v. MING DAI TLDR: The 9th Circuit’s rule that a reviewing court must treat a noncitizen’s testimony as credible and true absent an explicit adverse credibility determination made by the Board of Immigration Appeals or an Immigration Judge is contrary to the Immigration Nationality Act and has to be tossed out. Holding / Majority Opinion (Gorsuch) The Ninth Circuit has long applied a special rule in immigration disputes. The rule provides that, in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a petitioning alien’s testimony as credible and true. At least 12 members of the Ninth Circuit have objected to this judge-made rule, and we granted certiorari to decide whether it can be squared with the terms of the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq. … The question comes to us in cases involving Cesar Alcaraz-Enriquez and Ming Dai….The key question [for Alcaraz-Enriquez] became whether Mr. Alcaraz-Enriquez’s California conviction amounted to “a particularly serious crime.” The parties appear to agree that the answer to that question turns on which version of events one accepts: The version found in a probation report issued at the time of Mr. Alcaraz-Enriquez’s conviction, or the version he testified to years later as part of his removal proceeding. The IJ received and considered both. … Ultimately, the IJ held Mr. Alcaraz-Enriquez ineligible for relief, relying in part on the version of events in the probation report...On appeal, the Board of Immigration Appeals (BIA) “adopt[ed] and affirm[ed]” the IJ’s decision. The BIA held that the IJ had “properly considered all evidence of record,” “weighing and comparing [Mr. Alcaraz-Enriquez’s] testimony at the hearing and the probation officer’s report.” The BIA also stressed its view that the IJ was not required to credit Mr. Alcaraz-Enriquez’s “version of events over other plausible alternatives.” The Ninth Circuit saw the matter differently. Applying circuit precedent, it held that “‘[w]here the BIA does not make an explicit adverse credibility finding, [the court] must assume that [the alien’s] factual contentions are true.’”And because this rule required taking Mr. Alcaraz-Enriquez’s testimony as true—even in the face of competing evidence—the Ninth Circuit held that the BIA erred in denying relief and granted the petition for review. Ming Dai is a Chinese national who came to the United States on a tourist visa. Shortly after arriving, he sought asylum. To win relief, Mr. Dai bore the burden of proving that he was a “refugee”—someone “unable or unwilling” to return to China “because of persecution or a well-founded fear of persecution . . . for failure or refusal to undergo [involuntary sterilization] or for other resistance to a coercive population control program.” As in Mr. Alcaraz-Enriquez’s case, the parties have proceeded on the assumption that everything here turns on questions of fact—whether Mr. Dai was persecuted in the past or fears persecution in the future—and we do the same. Once more, the evidence before the IJ cut both ways….In the IJ’s view, the “principal area of concern” arose when Mr. Dai was confronted with his wife and daughter’s trip to the United States and their voluntary return to China. The record showed that Mr. Dai failed “to disclose” these facts in his own statements, and that he “paused at length” when confronted with them. The IJ concluded that “I do not find that [Mr. Dai’s] explanations for [his wife’s] return to China while he remained here are adequate.” … Much as it had in Alcaraz-Enriquez, a divided panel held that “in the absence of an explicit adverse credibility finding by the IJ or the BIA,” Mr. Dai’s testimony had to be “deemed” credible and true. … For many years, and over many dissents, the Ninth Circuit has proceeded on the view that, “[i]n the absence of an explicit adverse credibility finding [by the agency], we must assume that [the alien’s] factual contentions are true” or at least credible.This view appears to be an outlier. ... In both of the cases before us, the Ninth Circuit rested its decisions on its deemed-true-or-credible rule. … The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. Congress has carefully circumscribed judicial review of BIA decisions. When it comes to questions of fact—such as the circumstances surrounding Mr. Alcaraz-Enriquez’s prior conviction or Mr. Dai’s alleged persecution—the INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”Nothing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted. And it is long since settled that a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel. This does not mean that the BIA may “‘arbitrarily’” reject an alien’s evidence. But it does mean that, so long as the record contains “‘contrary evidence’” of a “‘kind and quality’” that a reasonable factfinder could find sufficient, a reviewing court may not overturn the agency’s factual determination. In this process, a reviewing court must be mindful too that the agency, like any reasonable factfinder, is free to “credit part of [a] witness’ testimony without” necessarily “accepting it all.” It does not matter whether the agency accepts all, none, or some of the alien’s testimony; its reasonable findings may not be disturbed. Admittedly, there is a wrinkle. Elsewhere, the INA does discuss a presumption of credibility. The statute provides that absent an “explici[t]” “adverse credibility determination,” “the applicant or witness shall have a rebuttable presumption of credibility on appeal.” At the same time, the statute cautions that outside the “appeal” there is “no presumption of credibility.” It’s easy to see how one might assume judicial proceedings in cases like ours constitute “appeals” subject to this presumption of credibility. But such an assumption would be mistaken. As the Ninth Circuit itself has recognized, in immigration cases like those before us, there is only one “appeal”—from the IJ to the BIA. Under the INA, subsequent judicial review takes place by means of a “petition for review.” … That the presumption of credibility applies only “on appeal” to the BIA makes sense as a matter of basic administrative law principles too. Reviewing courts have no need for a presumption of credibility one way or the other because they do not make credibility determinations. Instead, courts deferentially review the agency’s fact determinations. The IJ—who actually observes the witness—is best positioned to assess the applicant’s credibility in the first instance. The credibility presumption encourages the IJ to make specific findings about credibility. And then the BIA—which has experience with the sort of facts that recur in immigration cases and the ability to directly override the IJ’s factfindings—is well positioned to apply the credibility presumption if the IJ has not made an explicit finding. … The only question for judges reviewing the BIA’s factual determinations is whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule mistakenly flips this standard on its head. Rather than ask whether the agency’s finding qualifies as one of potentially many reasonable possibilities, it gives conclusive weight to any piece of testimony that cuts against the agency’s finding. That was error. The Ninth Circuit’s deemed-true-or-credible rule cannot be reconciled with the INA’s terms. Instead, immigration cases like these should proceed as follows. First, the factfinder—here the IJ—makes findings of fact, including determinations as to the credibility of particular witness testimony. The BIA then reviews those findings, applying a presumption of credibility if the IJ did not make an explicit adverse credibility determination. Finally, the court of appeals must accept the agency’s findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Nor can we affirm the Ninth Circuit’s judgments on alternative grounds. The Ninth Circuit failed to consider that the BIA may have implicitly rebutted the presumption of credibility. The Ninth Circuit also erroneously allowed credibility to operate as a trump card, foreclosing the possibility that even credible testimony may be outweighed by other more persuasive evidence or be insufficient to satisfy the burden of proof. Accordingly, the judgments of the Court of Appeals are vacated, and these cases are remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Gorsuch, unanimous. https://www.supremecourt.gov/opinions/20pdf/19-1155_new_197d.pdf
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Jun 1, 2021 17:51
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VitalSigns posted:It could have been done any time in the 6 years between 2009 and 2015 lol How many votes did you need to confirm a SCOTUS nominee during those years?
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Jun 1, 2021 17:58
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Stickman posted:“Duly elected” is pretty debatable, as is the degree to which they represent the will of the people. Considering the GOP lost the Senate voting handily in both 2016 and 2018 (they were shellacked in latter) and yet had majorities to confirm Kavanaugh and Barrett it clearly wasn't the will of the people. Was already embarrassing to defend Ginsburg's refusal to retire before she died it's mind blowing anyone would do it now it's come to pass.
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Jun 1, 2021 19:08
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Grip it and rip it posted:How many votes did you need to confirm a SCOTUS nominee during those years? Fifty-one. Or even fifty, if the Vice President uses a tie-breaker vote. The senate can filibuster everything, which requires 60 votes to break, but it only takes a simple majority vote to rule that something isn't filibusterable: the Democrats did it for all judicial nominations except the Supreme Court in 2013, and the GOP did it for the SC in 2017. If needs be, the Democrats could very well have done it in 2013 for the SC, too.
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Jun 1, 2021 19:23
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Grip it and rip it posted:How many votes did you need to confirm a SCOTUS nominee during those years? You keep making excuses to defend the indefensible instead of just accepting that RBG was arrogant and selfish in her refusal to retire when Dems could've picked a good replacement and has hosed the country (and her own life's work) as a result thanks to Supreme Court Handmaiden Barrett making the court 6-3. Kagan was confirmed by more than 60 votes in 2010, so it's entirely possible the Dems wouldn't have had to worry about the filibuster if RBG had retired back then. Considering they already removed the filibuster for non-SCOTUS votes in 2013, there's zero reason to believe they wouldn't have done so in 2014 if RBG had agreed to retire and if the GOP tried to get in the way of it. e: To be perfectly clear, when an 80+ year old multiple cancer survivor is asked to please retire so a good successor can take over and that person's response is roughly "gently caress you I'll do what I want" they are selfish and having made good rulings on court cases doesn't change that selfishness. Nor is it in any way noble or inspiring that someone 80+ years old insists on continuing to work long past the age when they or anyone else should retire. Evil Fluffy fucked around with this message at 20:29 on Jun 1, 2021 |
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Jun 1, 2021 20:11
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