Newly confirmed Justice Brett Kavanaugh will sit out arguments later this fall in three cases involving securities, international immunities and Medicare—and potentially more as the term progresses.
All three cases arise from Kavanaugh’s previous service on the U.S. Court of Appeals for the D.C. Circuit. He sat as a member of a three-judge panel on two and participated in an en banc order in the third.
The three cases, which could result in 4-4 decisions because of his recusals, are:
>> Azar v. Allina Health Services. The justices will decide if the Medicare Act and the Administrative Procedure Act required the U.S. Department of Health and Human Services to give notice and opportunity for comment before implementing a rule that changed its Medicare reimbursement formula. Kavanaugh sat on the panel and wrote the opinion in favor of Allina. The petition, filed by U.S. Solicitor General Noel Francisco, was granted late last month, and arguments have not yet been scheduled. Stephanie Webster of Akin, Gump, Strauss, Hauer & Feld is counsel to Allina.
>> Jam v. International Finance Corp. Indian fishermen, farmers and others are seeking tort damages from the corporation. The court is asked whether the International Organizations Immunities Act gives international organizations the same immunity that foreign governments had at the time the act was passed, or what foreign governments currently enjoy. Kavanaugh was on the September 2017 order denying en banc review in the case. Stanford Law School’s Jeffrey Fisher represents Jam and others; Donald Verrilli of Munger, Tolles & Olson, is counsel to the corporation. The case is scheduled for argument on Oct. 31.
>> Lorenzo v. Securities and Exchange Commission. Kavanaugh dissented from the D.C. Circuit panel decision in this case. The justices will decide whether a false statement by someone who did not have ultimate authority over the statement can still be subject to a fraudulent scheme claim under Rule 10b-5. Robert Heim of New York’s Meyers & Heim is counsel to Lorenzo. Francisco represents the SEC. Arguments will be held on Dec. 3.
Kavanaugh joined the bench on Oct. 9 after a bruising confirmation proceeding, and he’s heard four cases so far. Other cases in the wings from the D.C. Circuit could present future recusal issues.