The Least Interesting Branch: Why Supreme Court Leaks Reveal Little

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on a recent series of articles published on CNN.com purporting to reveal deep secrets about the U.S. Supreme Court’s deliberations. Dorf points out that the so-called revelations about the Court reveal little or nothing that Court watchers don’t already know or infer, which, paints a reassuring picture of the Court as operating behind closed doors exactly as we expect it to.

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Tobler v. Sables, LLC

Docket: 19-15251

Opinion Date: August 4, 2020

Judge: Daniel P. Collins

Areas of Law: Banking, Real Estate & Property Law

A request for judicial relief under Nevada's Foreclosure Mediation Rules is the exclusive remedy under Nevada law for challenging a lender's conduct in the foreclosure mediation process. Plaintiffs filed suit alleging contractual and tortious breaches of the implied covenant of good faith and fair dealing against BNYM and its agents, Sables and Bayview. The Ninth Circuit affirmed the district court's dismissal of the complaint for failure to state a claim, holding that plaintiffs' claims rest on defendants' asserted failure to comply with the various requirements of the foreclosure mediation program, and these claims could have been raised in a timely request for review under the Foreclosure Mediation Rules. The panel explained that plaintiffs' exclusive remedy under Nevada law for addressing these deficiencies was a timely request for judicial review filed within the applicable 10-day period set forth in Nevada F.M.R. 20(2). Therefore, the district court correctly held that plaintiffs' state common-law claims and related requests for declaratory and injunctive relief failed to state a claim upon which relief could be granted.

Hanson v. Shubert

Docket: 19-35839

Opinion Date: August 4, 2020

Judge: Richard G. Seeborg

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law

The Ninth Circuit dismissed, based on lack of appellate jurisdiction, defendants' appeal of the district court's denial of summary judgment, which resulted in a denial of qualified immunity, and the district court's denial to reconsider the summary judgment order. In this case, defendants grounded their motion for reconsideration in the district court ostensibly on both Federal Rules of Civil Procedure 59(e) and 60(b). At oral argument, defendants acknowledged that their motion for reconsideration was brought under Rule 59(e) to alter or amend the judgment. The panel held that it lacked jurisdiction over the appeal of the summary judgment order in this case, because it is untimely where there is no dispute that the appeal was filed nearly a year after the underlying summary judgment order. Furthermore, the filing of an untimely motion will not toll the running of the appeal period. The panel also held that it lacked jurisdiction over the order denying the Rule 59(e) motion for reconsideration of a denial of qualified immunity, where it did not have jurisdiction over the appeal of the underlying order. Finally, the panel declined to exercise its discretion to award plaintiff attorney's fees for this appeal.

United States v. United States ex rel. Thrower

Docket: 18-16408

Opinion Date: August 4, 2020

Judge: Kim McLane Wardlaw

Areas of Law: Civil Procedure, Government & Administrative Law

A district court order denying a government motion to dismiss a False Claims Act case under 31 U.S.C. 3730(c)(2)(A) is not an immediately appealable collateral order. In this case, the Ninth Circuit dismissed, based on lack of jurisdiction, the government's appeal from the district court's order denying a government motion to dismiss a FCA case. The panel noted that this issue was not before the Supreme Court in United States ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009). The panel held that the collateral order doctrine did not apply because the district court's order did not resolve important questions separate from the merits. Because the interests implicated by an erroneous denial of a government motion to dismiss a FCA case in which it has not intervened are insufficiently important to justify an immediate appeal, the panel held that they fall outside of the collateral order doctrine's scope.