February 22-24 cases

Post-Scalia oral arguments begin next week, in cases involving veteran preferences, unlawful searches and the exclusionary rule, and federalism concerns in criminal law.

Monday, February 22

The first case today involves the preference for veteran-owned small businesses (VOSB) to be awarded government contracts.  Federal law requires that government agencies “shall award contracts” to a VOSB if two or more bid for the contract at a fair price.  In Kingdomware Technologies, Inc. v. United States, the VA wanted a new type of information technology. It consulted a list of companies that have supply contracts with the government and selected one that was not a VOSB.  A VOSB company challenged this, saying the VA should have conducted a market analysis, seen that VOSBs could have provided this tech, and put it up for bid.  It emphasizes the “shall award” part of the law; the VA emphasizes the “contracts” part of the law, asserting that a new order through a company with an existing government contract is just an order and not a contract, so not covered by the “shall award contracts” law.  In addition, there are two conflicting “canons of construction” (i.e., rules for how to interpret laws) that come into play in this case.  The first is known as “Chevron deference” and holds that courts should not override a federal agency’s interpretation of a law if there is ambiguity and the agency’s interpretation is not unreasonable.  This would, obviously, favor the VA.  But there is also the “veterans canon” which holds that if a law is ambiguous and involves veterans, it should be interpreted to favor veterans.  Take a look at this relatively long article.  If you go, be prepared to follow some jargon and alphabet soup.

The second case today is an important consideration of the exclusionary rule, which holds that evidence obtained illegally may not be used against the defendant.  In Utah v. Strieff, the police received an anonymous tip about a drug house and an officer stopped someone who came out of the house, demanded his ID, and ran a warrants check.  This was unlawful; the government concedes that the officer did not have reasonable suspicion to require the individual to stop and identify himself, as required for a “Terry stop.”  The unlawful stop and ID check resulted in realization that he had an outstanding “small traffic warrant,” so he was then arrested and searched, and found to be in possession of meth and drug paraphernalia.  The defendant moved to suppress the incriminating evidence because its discovery all flowed from an illegal seizure.  The government argues that the intervening event of discovery of an outstanding warrant makes the initial illegal stop irrelevant.  Ultimately, this case will reveal something about the Court’s attitude toward the exclusionary rule as a means to curb and correct unlawful searches, as this article discusses in more detail.

Tuesday, February 23

The first case today involves Federalism concerns in the context of criminal law.  The Hobbs Act makes it a federal crime to commit robbery or extortion that affects interstate commerce. It was originally enacted to reach racketeering, but now is often used in other context, such as drug crimes (as in this case, Taylor v. US).  The question in this case is whether the government has to show a connection with interstate commerce in each individual case or if it can rely upon a general principle “that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.”

The second set of arguments are on two consolidated cases involving damages for patent infringement. The Patent Act provides for enhanced damages (extra money), but the courts have limited that to willful misconduct under a stringent test.  The Supreme Court appears suspicious of those limitations, and has granted cert on the question of “Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness, LLC v. ICON Health & Fitness, Inc. for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.”

[Wednesday’s cases involve complex issues under Federal Energy Regulatory Commission (FERC) programs and would not be recommended for the casual observer.  Recommendations for the week of Feb 29 will be posted later.]