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SCOTUS Oral Argument Preview: Week of February 23, 2015

By Mark Wilson, Esq. on February 19, 2015 | Last updated on March 21, 2019

The Supreme Court is ready to begin its February oral arguments -- well, in what's left of February, anyway. After two weeks of arguments in January dealing with religious speech, housing discrimination, and whistleblowers, the Court took some time off (while one justice took a nap at an inopportune time).

Now that Justice Ginsburg has had her beauty rest, let's see what's in store for next week.

Kerry v. Din (Monday, February 23)

From the Ninth Circuit, a U.S. citizen filed a visa petition on behalf of her husband. The visa was denied and the government refused to go into detail why. The government claimed the denial wasn't subject to judicial review thanks to the doctrine of "consular nonreviewability," but the Ninth Circuit disagreed under a narrow exception: Courts can determine whether a consular official had a "facially legitimate and bona fide reason" for denial.

Coleman-Bey v. Tollefson (Monday, February 23)

Prisoners can file pro se complaints in federal district court without paying the filing fee if they can prove they're indigent. To curb abuse of the court system, Congress passed the Prison Litigation Reform Act, which prevents a prisoner from claiming IFP (in forma pauperis) status if he's filed three or more frivolous lawsuits. The question here is whether a "strike" counts if it's still on appeal. The Sixth Circuit said it was, creating a split with several other circuits that don't count a strike until a prisoner has exhausted his appeals.

Henderson v. U.S. (Tuesday, February 24)

Former Border Patrol agent Tony Henderson was convicted of several federal crimes and had to turn over his 19 firearms as a condition of his bond. After he pleaded guilty to the charges, he asked for the guns back so that he could at least sell them to a third party. The district court said "no way," and the Eleventh Circuit agreed.

Tibble v. Edison International (Tuesday, February 24)

Edison International introduced retail-class mutual funds into its retirement plan mix, but these funds carried administrative fees with them, which the plan administrator took out of fund assets. In return, Edison received a credit on its invoices. Edison employees claimed this "revenue sharing" agreement breached the pension's plans fiduciary duties, but the Ninth Circuit said the decision about which plans to include was within the discretion of the plan administrator. The sole question for the Supreme Court, though, is whether six or three years is the statute of limitations for bringing this claim under ERISA.

EEOC v. Abercrombie & Fitch (Wednesday, February 25)

Everyone's watching this employment discrimination case, in which a prospective employee of an Abercrombie store claimed she wasn't hired because of her religion, which the employer was aware of because she wore a hijab to the interview. The Tenth Circuit granted summary judgment to Abercrombie because it didn't have any knowledge that she wore the hijab for religious reasons. The Supreme Court will have to decide whether an employer must have "actual knowledge" about a religious accommodation that comes directly from an employee.

Baker Botts v. ASARCO (Wednesday, February 25)

The law firms Baker Botts and Jordan Hyden helped ASARCO with its bankruptcy and were awarded fee enhancements of 20 percent and 10 percent, respectively, by the bankruptcy court "for their unusually successful fraudulent transfer litigation." The Fifth Circuit upheld the fee enhancement awards, but prudently reversed awards to the law firms for litigating their own fee applications. The relatively straightforward question is whether a bankruptcy court can order fee enhancements solely for exceptional work.

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