SCOTUSblog

Supreme Court rules against union over strike liability

Fri, 02 Jun 2023 18:59:36 +0200

In an 8-1 opinion on Thursday, the justices provided a new definition to the limits on the right to strike under federal labor law. At issue in Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174was whether an employer could sue its employees’ union under state law for damage the employer incurred as a result of the union’s strike. The case produced a surprisingly broad majority agreeing that the strike at issue was not even arguably protected by the National Labor Relations Act. Only Justice Ketanji Brown Jackson dissented.

Federal labor law normally precludes any application of state law to labor activity under a doctrine called “Garmon preemption.” The workers in this case, who drive concrete mixers, went out on strike. Drivers allowed Glacier to load their trucks with concrete. At the appointed hour for the strike, several drivers drove their trucks back to Glacier’s headquarters and walked off the job. The company was unable to deliver the concrete and some of it hardened, requiring the company to scramble to find a way to safely dump the concrete, destroy it, and cart it away.

Glacier sued the union in state court for “tortious destruction” of its property – the spoiled concrete. The Washington Supreme Court dismissed the case, finding that it wasn’t appropriate to apply state tort law to a labor dispute even arguably covered by NLRA under Garmon.

In a decision by Justice Amy Coney Barrett that was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, the court held that Glacier could sue the union in state court for damages because the Teamsters’ strike was not even arguably protected by the NLRA. The court ordered the case remanded to the state court for further proceedings.

The court’s decision rests on a fact-specific assessment of whether the Teamsters took “reasonable precautions” to protect Glacier’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” The National Labor Relations Board – the federal agency responsible for enforcing labor law — has long held that unions that fail to take “reasonable precautions” may not be protected by the NLRA when strikes lead to damage to perishable goods or property. The court’s decision on Thursday relied on Glacier’s allegations that the Teamsters purposely timed the strike to ensure that the concrete would harden by choosing to strike only after Glacier had “batched” the wet concrete into the trucks.

The majority distinguished a long line of cases in which the NLRB had held that the NLRA protected strikes that resulted in the loss of perishable goods like slaughtered poultry and fresh milk. Here, the majority found that the union’s decision about when to start the strike resulted not only in the destruction of a perishable product, like in the poultry and milk cases, but that – unlike the other perishable goods cases – the decision about timing also “prompted the creation of the perishable product.” Specifically, the court found determinative and distinguishing that the Teamsters allowed Glacier to batch the wet concrete when they knew that they had no intention of delivering the concrete and that the result would likely be spoiled concrete and possibly damaged trucks. The majority then sent the case back to the state court for it to consider Glacier’s tort suit.

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, agreed with the result that the majority reached but not its reasoning. Alito explained that he would have allowed Glacier’s tort suit to proceed based simply on a finding of intentional damage to the concrete. Thomas, in a separate opinion joined by Gorsuch, urged the court to reconsider Garmon preemption in a future case.

In her first solo dissent as a justice, Jackson faulted the majority for ignoring the fact that the NLRB had undertaken its own investigation of the facts since Glacier filed its tort suit. The agency found that those facts supported the issuance of a complaint alleging that Glacier had filed the tort suit to retaliate against the Teamsters for striking. Implicit in the NLRB’s complaint, Jackson found, is a conclusion that the strike is arguably protected. Once the NLRB has even nodded in the direction of protection for a strike, Jackson said, the it should be given the opportunity to resolve the issue and require the state court to engage in a “jurisdictional hiatus.” Jackson admonished the majority for not following precedent. “Garmon makes clear that we have no business delving into this particular labor dispute at this time,” she wrote.

Jackson also disputed the majority’s characterization of the facts. She wrote that the Teamsters’ handling of the concrete was well within the lines drawn by the other perishable-goods cases. In her most strongly worded passage, Jackson accused the majority of requiring workers to undercut their own power by giving notice of their intent to strike. “Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”

The majority opinion leaves open a number of questions. As for what comes next, it could be that the state court takes cognizance of the NLRB’s proceedings and puts the tort suit on hold. The tort suit could also go forward, even if that risks an inconsistent NLRB decision, or the state trial court could do more factfinding to make a new assessment of whether the strike activity is arguably protected. As for the possible consequences, employers and state courts could read the opinion as a highly fact-specific one with little impact on other strikes. Or it could open the door to employers trying to expand the impact by filing many more tort suits over strikes and it could lead to fewer strikes as unions shy away from the liability risk.

While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.

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The morning read for Friday, June 2

Fri, 02 Jun 2023 16:16:54 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

Supreme Court Backs Employer in Suit Over Strike Losses (Noam Scheiber, The New York Times)
U.S. Supreme Court gives boost to whistleblowers in drug pricing case (John Kruzel, Reuters)
Jackson defends “the right to strike” in her first big dissent (Chris Geidner, Law Dork)
There’s Unsettling New Evidence About William Rehnquist’s Views on Segregation (Richard L. Hasen & Dahlia Lithwick, Slate)
Descendants asking US Supreme Court to rename Brown v. Board of Education for SC case (Jessica Holdman, The Post and Courier)

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Justices limit suits challenging misleading securities registration statements

Thu, 01 Jun 2023 21:08:27 +0200

As expected, Thursday’s decision in Slack Technologies v. Pirani rejected a lower-court ruling that had substantially broadened liability for publicly traded companies under Section 11 of the Securities Act of 1933. That provision imposes liability for false or misleading material in a statement registering securities with the Securities and Exchange Commission. The justices ruled on Thursday that the provision permits lawsuits only by those who purchased the securities registered under that statement.

Traditionally, the process of going public for a young company involves filing a registration statement with the SEC that describes shares that the company will issue and sell in an initial public offering on the public securities markets. In recent years, some companies (including Slack Technologies, the defendant in this case) have experimented with a different process, a “direct listing” in which Slack itself sells no shares. Rather, shareholders sell theirpreexisting shares into the public securities market. Often, as in this case, there is a registration statement, because other provisions of the securities laws obligate some, but not all, of those shareholders to register their shares before selling them. The question before the justices was whether Section 11 liability applies to all of the purchases or instead only to the purchases of registered shares. The answer, Justice Neil Gorsuch wrote for a unanimous court, is that Section 11 liability is available only for purchasers of the registered shares.

Gorsuch explained that the biggest problem with extending Section 11 liability to the unregistered shares is the language of Section 11, which describes a “registration statement [that] contained an untrue statement of a material fact [or was otherwise] misleading,” and then says that “any person acquiring such security” may file suit based on the misleading registration statement. The key “question we face,” he wrote, is whether “the term ‘such security’ refer[s] to a security issued pursuant to the allegedly misleading registration statement? Or can the term also sometimes encompass a security that was not issued pursuant to the allegedly misleading registration statement.”

The “challenge” in understanding the statute, Gorsuch pointed out, is that “there is no clear referent in § 11(a) telling us what ‘such security’ means.” In his view, though, the “context” offers “several clues” that make the meaning plain. “For one thing, the statute imposes liability for false statements or misleading omissions in ‘the registration statement.’” – rather than simply “a” or “any” registration statement. For him, the “us[e of] the definite article … seems to suggest the plaintiff must ‘acquir[e] such security’ under that document’s terms.”

Gorsuch also cited other phrases in Section 11 using the word “such,” all of which seem to refer to “the particular registration statement alleged to contain a falsehood or misleading omission.” He discerned a similar usage in “[o]ther provisions in the 1933 Act,” which limit the effect of the law to the securities described in the registration statement. Perhaps most telling, in his view, is Section 11(e), which “caps damages against an underwriter in a § 11 suit to the ‘total price at which the [registered] securities … were offered to the public.” Gorsuch explained that the cap would “mak[e] little sense” if the statute applied even to the unregistered securities “for if § 11(a) liability extended beyond registered shares presumably available damages would too.”

Turning from the text, Gorsuch acknowledged that nothing “we say here [is] particularly novel,” pointing to the famous 1967 decision of the U.S. Court of Appeals for the 2nd Circuit, Barnes v. Osofsky, authored by the renowned Judge Henry Friendly (for whom Chief Justice John Roberts was a law clerk). Gorsuch added that “[s]ince Barnes, every court of appeals to consider the issue has reached the same conclusion” until the lower-court decision in this case.

As I suggested above, none of Gorsuch’s reasoning should surprise any observer. My argument analysis explained that none of the justices who spoke at the argument offered any support for the lower court’s extension of Section 11 to unregistered securities. The only question on which the justices seemed to be uncertain was what to do about the lower court’s similar extension of Section 12. We get the answer to that question in a brief footnote to the last word of Gorsuch’s opinion: The justices will not address that question. Gorsuch commented that the court had “no need to reach the merits of that particular dispute,” explaining that the lower court’s ruling rested on the view that Section 11 and Section 12 “necessarily travel together.” Accordingly, the court’s reversal of the lower court’s ruling on Section 11 suggests that “the best course is to vacate its judgment with respect to … [the] § 12 claim … for reconsideration in light of our holding today about the meaning of § 11.”

The closest thing to a substantive comment on Section 12 is the final phrase of the footnote, “caution[ing] that the two provisions contain distinct language that warrants careful consideration.” That well might reflect the detailed analysis Justice Elena Kagan offered at the oral argument supporting liability under Section 12, notwithstanding the apparent limitations on Section 11 that Gorsuch explains in his opinion. What the lower court will think of that we can only speculate.

Disclosure: Lawyers associated with SCOTUSblog are among the counsel to Fiyyaz Pirani in this case. The author of this article is not affiliated with the firm.

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Supreme Court maintains focus on defendant’s subjective beliefs in False Claims Act cases

Thu, 01 Jun 2023 20:56:04 +0200

In a unanimous opinion on Thursday, the Supreme Court rejected an attempt to shift the knowledge standard in False Claims Act cases that had the potential to gut the government’s primary anti-fraud statute. The justices avoided, for now, more nuanced questions that could ultimately affect the balance of power between the government and industry in FCA cases.

The Department of Justice has used the FCA to recover more than $70 billion since 1986, largely in cases related to health care and defense contracting. Under the FCA, a defendant is liable for submitting a false claim to the government for payment if it acted “knowingly,” which the statute defines as acting with actual knowledge, deliberate ignorance, or reckless disregard. At issue in two consolidated cases – United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway – was whether and when a defendant’s subjective belief is relevant in determining knowledge if its conduct represented an objectively reasonable interpretation of the relevant issue. The U.S. Court of Appeals for the 7th Circuit had found it was never relevant. Vacating the 7th Circuit’s rulings, as was expected following oral argument in April, Justice Clarence Thomas explained for the unanimous court that “[w]hat matters for an FCA case is whether the defendant knew the claim was false. Thus, if [the defendants] correctly interpreted the relevant phrase and believed their claims were false, then they could have known their claims were false.”

The 7th Circuit’s framework would have meant defendants could not be found liable under the FCA as long as they were able to come up with an objectively reasonable interpretation after the fact – even if they never actually believed that interpretation. The court rejected that view, making clear the focus is on what the defendant thought when it submitted the false claims, noting “[t]he FCA’s scienter element refers to [the defendants’] knowledge and subjective beliefs — not to what an objectively reasonable person may have known or believed.”

In the joined cases, the plaintiffs, whistleblowers suing on behalf of the government under the FCA’s qui tam provision, alleged that SuperValu and Safeway, which operate hundreds of retail drug pharmacies nationwide, violated the FCA by overcharging Medicare, Medicaid, and the Federal Employee Health Benefits Program for prescription drugs. Under the rules of those programs, pharmacies cannot collect more from the government than the “usual and customary” price for a drug, which is defined as the cash price charged to the general public. The whistleblowers alleged that the pharmacies overbilled the government by millions of dollars when they began offering discounted prices to customers under a price-match program designed to compete with other pharmacies such as Walmart (SuperValu and Safeway) and a membership discount program (Safeway), but did not adjust their “usual and customary” prices, instead continuing to charge the government higher prices.

The district court had determined that defendants’ discounted prices were the “usual and customary” prices, and that by not reporting those prices, the pharmacies had submitted claims that were false. The pharmacies prevailed before the district court and 7th Circuit, however, on the question of whether they had “knowingly” submitted the false claims, which the 7th Circuit said was impossible as long as their acts were consistent with an objectively reasonable interpretation of the relevant law, even if they never actually believed that interpretation.

Thomas’s opinion rejected that view. The pharmacies’ submission of the false claims “might have been a forgivable mistake if [they] had honestly read the phrase as referring to retail prices, not discounted prices,” Thomas observed, but the 7th Circuit was wrong to look at whether “other people might make an honest mistake,” rather than at whether the pharmacies had made a mistake.

The 7th Circuit relied heavily on the Supreme Court’s 2007 decision in Safeco Insurance Co. v. Burr, a Fair Credit Reporting Act case holding that an erroneous interpretation was not reckless as a matter of law because it was not objectively unreasonable when made. But that reliance was wrong, Thomas noted, because the FCA is “largely a fraud statute” that “largely tracks the traditional common-law scienter requirement for claims of fraud,” while Safeco interpreted a different statute with a different knowledge standard.

The court’s decision left open more nuanced questions raised at oral argument. Justice Brett Kavanaugh had proposed the following hypothetical: “At the time, you have three different interpretations possible, and one’s clearly safe, one’s a little more aggressive, and the third’s really aggressive, but you still think it’s reasonable, and you go with that third one, and it’s later – [the courts] don’t agree later on, so it’s ‘false.’” As Kavanaugh suggested at oral argument they would, the court’s decision Thursday left that question for another day.

The whistleblowers were backed not only by the government but also by a “friend of the court” brief from Senator Charles Grassley (R-Iowa), the FCA’s long-time champion. He warned that if the court followed the 7th Circuit’s analysis, “it will not be long before the centerpiece of the government’s anti-fraud arsenal becomes unusable.” Observers speculated that a decision upholding the 7th Circuit’s interpretation might lead to attempts in Congress to amend the FCA. Any such thoughts are likely on hold in the wake of Thursday’s decision.

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Prohibiting trademarks using other people’s names — and hypothetical jurisdiction

Thu, 01 Jun 2023 20:43:47 +0200

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

This week the court will be considering 150 certiorari petitions and applications at its conference Thursday. It will be considering only two cases for the second time.

Vidal v. Elster is vying for another spot on the court’s growing docket of cases related to our 45th president. Section 2(c) of the Lanham Act prohibits federal registration of any trademark that “[c]onsists of or comprises a name … identifying a particular living individual except by his written consent,” or the name “of a deceased President of the United States during the life of his widow,” “except by the written consent of the widow.” Steve Elster sought to register the mark “Trump too small” for use on T-shirts to convey a political message about the then-President Donald Trump. The United States Patent & Trademark Office refused registration under Section 2(c), and the Trademark and Trial Appeal Board upheld that decision because the mark identified the by-then-former president without his consent. The U.S. Court of Appeals for the Federal Circuit reversed. Holding that Elster’s trademark goes to “the heart of the First Amendment,” the court held that the government has no plausible “interest in restricting speech critical of government officials or public figures in the trademark context.” It thus declared Section 2(c) unconstitutional as applied to Elster’s trademark.

The Biden Administration, seeking to protect institutional interests and Congress’s ability to legislate, now seeks review. It argues that the Federal Circuit erred in holding that the refusal to register a mark under Section 2(c) violates the First Amendment when the mark contains criticism of a government official or public figure. The government argues that the court usually grants review when a court of appeals has invalidated the application of a federal statute, and that the court granted review in both Iancu v. Brunetti, involving prohibitions on “immoral or scandalous” trademarks, and Matal v. Tam, involving prohibitions on trademarks that disparage. (Both restrictions were held to violate the First Amendment.) And the government contends that this case presents a recurring First Amendment issue that Tam and Brunetti left open: “whether a Lanham Act bar” on the registration of a trademark is “a condition on a government benefit or a simple restriction on speech.” Elster argues in opposition that the issue arises rarely and the court should wait for a circuit split. The government responds that a split is unlikely to develop, because before filing suit, an aggrieved public figure would have to first petition to cancel the registration, and that decisionmaker would be bound by the Federal Circuit.

Our second case is Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP. In Steel Co. v. Citizens for a Better Environment, the Supreme Court denounced the practice of federal courts of “assuming” jurisdiction, explaining that the “statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers” that must be addressed first before reaching the merits of a case. Since then, however, several courts of appeals have interpreted that to mean that courts may assume the “statutory” element of subject matter jurisdiction, as distinguished from Article III (“constitutional”) jurisdiction, if the claim fails on the merits on obvious grounds. The U.S. Court of Appeals for the 11th Circuit has held that courts cannot assume even statutory jurisdiction.

Stanley Waleski sued the law firm of Montgomery, McCracken, Walker & Rhoads, LLP in Pennsylvania state court for legal malpractice relating to its representation of him in a bankruptcy matter. The law firm first removed the matter to federal court, and then succeeded in having the case transferred to the bankruptcy court that handled the underlying bankruptcy. That court dismissed the claim on the merits because it was filed after the two-year statute of limitations had expired. On appeal, the U.S. Court of Appeals for the 2nd Circuit sidestepped what it recognized was a “difficult” question of whether it had subject matter jurisdiction by assuming “hypothetical jurisdiction” under the bankruptcy laws so that it could proceed to the much simpler issue, concluding that Waleski’s malpractice claim was untimely under the governing statute of limitations.

Before the Supreme Court, Waleski argues that assuming “hypothetical jurisdiction” is impermissible and here allowed a federal court to resolve questions of state law when it may have had no statutory authority over the case. The law firm argues that the vast majority of courts, like the 2nd Circuit, permit the practice, and “the Eleventh Circuit positions itself as the sole outlier.” The firm argues that Steel Co. did not purport to state an absolute rule about statutory jurisdiction, but that claim is hard to square with the court’s statement in Ruhrgas AG v. Marathon Oil Co.that “subject-matter jurisdiction necessarily precedes a ruling on the merits.” Others have flagged this circuit split for the court. Although a majority of the circuits have permitted courts to pretermit statutory jurisdiction when the merits are easy, Steel Co. and Ruhrgas are clear enough that a summary reversal is not beyond the pale here.

That’s all for this week. We should know more after the court releases its order list next Monday. See you next time!

New Relists

Vidal v. Elster, 22-704
Issue: Whether the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure.
(relisted after the May 25 conference)

Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP, 22-914
Issue: Whether a federal court may assume “hypothetical” subject matter jurisdiction to reach a decision on issues of state law against the party challenging the court’s jurisdiction, when the very issue presented on appeal is that of federal subject matter jurisdiction.
(relisted after the May 25 conference)

Returning Relists

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 2, Dec. 9, Jan 6 and May 11 conferences)

Luczak v. United States, 21-8190
Issue: Whether the Supreme Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; and (2) whether it violated the due process clause of the Fifth Amendment for the district court to sentence Gary Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Jan 6 and May 11 conferences)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; and (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Jan 6 and May 11 conferences)

Harness v. Watson, 22-412
Issue: Whether any amendment to a law originally adopted for an impermissible racially discriminatory purpose, no matter how minor the amendment and no matter the historical context, cleanses the law of its racist origins for 14th Amendment purposes unless the party challenging the law can prove that the amendment itself was motivated by racial discrimination.
(relisted after the May 18 conference; rescheduled before the Feb. 17, Feb. 24, Mar. 3, Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28 and May 11 conferences)

Ross v. United States, 22-5993
Issue: Whether a judge denies a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal.
(relisted after the May 18 conferences; rescheduled before the Mar. 31 and May 11 conferences)

Cain v. United States, 22-6212
Issue: Whether either the jury trial right contained in the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence based on conduct that a jury’s verdict rejected.
(relisted after the May 18 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Sanchez v. United States, 22-6386
Issue: Whether the use of acquitted conduct to determine a defendant’s sentence violates the Fifth and Sixth Amendments.
(relisted after the May 18 conference; rescheduled before the Apr. 21 and May 11 conferences)

Martin v. United States, 22-6736
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18 conference; rescheduled before the May 11 conference)

Merry v. United States, 22-6815
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing (enhancing) a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18 conference)

Beachem v. United States, 22-6838
Issues: (1) Whether a court can take into account acquitted, dismissed, or uncharged conduct, of which no jury ever found petitioner guilty of and which he never admitted; and (2) whether a court can enforce an appeal waiver provision when enforcement would result in a miscarriage of justice.
(relisted after the May 18 conference; rescheduled before the Mar. 17 and May 11 conferences)

Leavell-Keaton v. Alabama, 22-6895
Issue: Whether, when a capital defendant’s death sentence is vacated and the case is remanded for a new sentencing at which the death penalty is an available sentence, the defendant has a constitutional right under Skipper v. South Carolina to present evidence of her good behavior in prison.
(relisted after the May 18 conference)

Little v. United States, 22-6940
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentencing on uncharged conduct which was never admitted by the defendant nor proven to a jury beyond a reasonable doubt and which was only found by the sentencing court to be proven by a preponderance of the evidence.
(relisted after the May 18 conference; rescheduled before the Apr. 14 and May 11 conferences)

Jenkins v. United States, 22-7148
Issues: (1) Whether the district court erred in not appointing new counsel; and (2) whether the district court violated the Fifth and Sixth Amendments by basing its drug weight calculations on acquitted conduct.
(relisted after the May 18 conference; rescheduled before the Apr. 21 and May 11 conferences)

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The morning read for Thursday, June 1

Thu, 01 Jun 2023 15:40:51 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

Majority of Americans favor affirmative action in colleges as Supreme Court seems poised to end it, poll says (Char Adams, NBC News)
Texas man urges Supreme Court to stay out of major Second Amendment case (Ariane de Vogue, CNN)
Could Hunter Biden be the next poster child for Second Amendment rights? (Betsy Woodruff Swan, Politico)
The Supreme Court Sleeper Case That Poses an Existential Threat to Artistic Freedom (Mark Joseph Stern, Slate
The Problem With Wealth-Based Affirmative Action (Richard Rothstein, The Atlantic)

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Announcement of opinions for Thursday, June 1

Thu, 01 Jun 2023 06:00:01 +0200

On Thursday, June 1, we will be live blogging as the court releases opinions in one or more argued cases from the current term.

Click here for a list of FAQs about opinion announcements.

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Court rules for Maryland prison official on procedural issue

Wed, 31 May 2023 18:16:21 +0200

The Supreme Court on Thursday gave a Maryland prison official another chance to defend himself against a federal civil rights claim. Last week’s unanimous ruling in Dupree v. Younger rested on procedural issues, but it was an important one for the litigants involved – and, as Justice Amy Coney Barrett observed in announcing it, for law professors.

The case arose from a 2013 attack on Kevin Younger, who was being held before trial at a state prison in Baltimore, by three prison guards. The guards beat Younger severely and slammed his head against a toilet, leaving him unconscious and bleeding. Younger was left with permanent injuries to his face, wrist, ribs, hand, and leg.

The three prison guards who were directly responsible for the attack were convicted of assault. But Younger also filed a federal civil rights claim against Neil Dupree, a lieutenant in the prison, alleging that he had ordered the attack.

Dupree filed a motion for summary judgment – that is, a motion asking the trial judge to rule in his favor on legal grounds, because there is no real dispute about the facts. He contended that federal law required Younger to pursue all available remedies, also known as exhaustion, in the prison system before going to court, but Younger had failed to do so. U.S. District Judge Richard Bennett turned down Dupree’s request, noting that the state prison system had conducted an internal investigation of the assault.

The jury found Dupree liable and awarded Younger $700,000 in damages. Dupree appealed to the U.S. Court of Appeals for the 4th Circuit, arguing that Bennett was wrong to reject his exhaustion argument. But that court dismissed his appeal, relying on its earlier cases holding that a claim or defense that was rejected at summary judgment can only be raised on appeal if it was renewed in a post-trial motion – which Dupree had not done.

On Thursday the justices reached a different conclusion. Barrett, who taught civil procedure as a law professor at Notre Dame, explained that, as a general rule, the losing party is only entitled to one appeal, after the trial court’s decision has become final. But some of the district court’s rulings along the way, Barrett observed, are effectively unreviewable once there is a final judgment – such as the denial of a motion for summary judgment on the ground that the evidence is insufficient, because the record in the case continues to develop after the summary judgment motion is denied. It is for that reason, Barrett emphasized, that the Supreme Court in 2011 held that a party who wants to appeal the denial of a motion for summary judgment on sufficiency-of-the-evidence grounds must renew that motion after the trial: It gives the district judge, who will be most familiar with the case and the witnesses, the chance to “take first crack at the question that the appellate court will ultimately face.”

But that rationale does not, Barrett continued, apply to Dupree’s case. Unlike factual findings, she explained, “a district court’s purely legal conclusions at summary judgment are not ‘supersede[d]’ by later developments in the litigation.” As far as the appeals court is concerns, she wrote, “there is no benefit to having a district court reexamine a purely legal issue after trial, because nothing at trial will have given the district court any reason to question its prior analysis.”

Barrett conceded that, as Younger suggested, the line between factual and legal questions may not always be a clear one. As a result, she agreed, some lawyers may err on the side of filing a post-trial motion to renew their arguments “out of an abundance of caution.” But the experience in the federal courts of appeals, most of which already apply the rule that the Supreme Court announced last week, shows that the lower courts will readily be able to “separate factual from legal matters,” Barrett stated. “And for all the virtues of bright-line rules,” Barrett concluded, “Younger’s would come at a steep cost: the loss of appellate review for unwary litigants who think it futile to relitigate an already-rejected legal argument.”

Dupree’s case now returns to the 4th Circuit, which will decide (among other things) whether his exhaustion argument is a purely legal one, so that he would not have had to renew it in a post-trial motion.

This article was originally published at Howe on the Court.

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The morning read for Wednesday, May 31

Wed, 31 May 2023 16:32:29 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:

US Supreme Court spurns ex-Shkreli lawyer Greebel’s challenge to prosecutors (Mike Scarcella, Reuters)
What the Supreme Court’s ruling means for the future of wetlands (Lyric Aquino, Grist)
Elite High School’s Admissions Plan May Face Supreme Court Test (Adam Liptak, The New York Times)
The Urgent Warning That Got Cut From a Supreme Court Opinion 20 Years Ago (Richard L. Hasen, Slate)
The Supreme Court was enabling corruption well before the Clarence Thomas scandal (Ciara Torres-Spelliscy, The Los Angeles Times)

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The morning read for Tuesday, May 30

Tue, 30 May 2023 15:53:39 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Tuesday morning read:

US supreme court end-of-term decisions could transform key areas of public life (Ed Pilkington, The Guardian)
Ranchers hail, environmentalists fear Supreme Court clean water ruling (Lillie Boudreaux, Cronkite News)
US Supreme Court Turns Away Social Media Sex Trafficking Case (Emily Birnbaum, Bloomberg Law)
Guns, Trump, and the G.O.P. (Amy Davidson Sorkin, The New Yorker))
The Supreme Court Is Crippling Environmental Protections. Where Is Congress? (Jim Murphy, The New York Times)

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Israeli citizen challenges U.S. wire-fraud conviction for foreign financial scheme

Fri, 26 May 2023 16:52:55 +0200

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Supreme Court has issued a number of decisions in recent years limiting the reach of the federal wire-fraud statute, which outlaws the use of “the wires” – including internet and phone lines – to commit fraud. This week, we highlight cert petitions that ask the court to consider, among other things, whether the reach of that law extends to a fraudulent scheme that was devised abroad by a foreign citizen but involved digital communications to the United States.

Lee Elbaz lived and worked in Israel as the CEO of Yukom Communications. During her tenure, Yukom was allegedly involved in swindling more than $100 million from investors around the globe through so-called binary-option investments. These vehicles set a “strike price” for an asset, like an individual stock, and a deadline in the near future. If the asset is worth more than the strike price at the deadline, the purchasers net a profit; if not, they forfeit their investment.

The scheme involved the use of false advertisements to entice investors to deposit funds to purchase binary options. Once customers had committed, Yukom would then encourage them to deposit more money and refuse to let them withdraw funds. Some of the victims of the scheme were U.S. investors. As part of its retention efforts, Yukom employees emailed two investors in Maryland and contacted a third by phone call.

Federal prosecutors arrested Elbaz while she was on vacation in New York and charged her with three counts of conspiracy to commit wire fraud related to the Maryland communications. Elbaz sought unsuccessfully to have the charges dropped, arguing that the wire-fraud statute does not apply “extraterritorially” to conduct outside the United States. A jury ultimately found Elbaz guilty on all three counts; she was sentenced to 22 years in prison and ordered to pay $28 million in restitution.

The U.S. Court of Appeals for the 4th Circuit upheld Elbaz’s conviction. Although it agreed with her that the wire-fraud statute does not apply to foreign conduct, the court of appeals held that her convictions were nonetheless “permissible domestic applications of the wire-fraud statute.” The court reasoned that the focus of the wire-fraud statute is the misuse of U.S. wires, rather than the creation and execution of a fraudulent scheme. Despite the foreign nature of both the scheme itself and Elbaz’s involvement in it, the 4th Circuit concluded that Yukom’s emails and phone call to the three Maryland victims fell within the reach of federal prosecutors because they involved domestic wires.

In Elbaz v. United States, Elbaz asks the justices to grant review and reverse the 4th Circuit’s ruling. She argues that the courts of appeals are divided over both whether the federal wire-fraud statute applies extraterritorially and, if not, whether and when punishing the use of domestic wires in a foreign scheme is a domestic application of the statute. “The [4]th Circuit’s decision,” Elbaz writes, “effectively turns the United States into a global law enforcement officer over foreign financial crimes — all that is necessary is for the scheme to touch one person in the United States or travel through one U.S. wire.”

A list of this week’s featured petitions is below:

ABKCO Music, Inc. v. Sagan
22-1053
Issue: Whether direct liability for copyright infringement is limited to the person who actually “presses the button” to make the infringing copies.

Elbaz v. United States
22-1055
Issues: (1) Whether the federal wire-fraud statute, 18 U.S.C. § 1343, applies extraterritorially or is limited to domestic applications; and (2) whether, if the wire-fraud statute is limited to domestic applications, it can be applied to foreign conduct by foreign actors as part of a foreign scheme so long as the scheme involves an incidental domestic wire transmission, or whether the scheme must involve substantial domestic conduct, such as the use of domestic wires as an essential component of the fraudulent scheme.

Washington Alliance of Technology Workers v. Department of Homeland Security
22-1071
Issues: (1) Whether the statutory terms defining nonimmigrant visas in 8 U.S.C. § 1101(a)(15) are mere threshold entry requirements that cease to apply once a noncitizen is admitted, or whether they persist and dictate the terms of a noncitizen’s stay in the United States; and (2) whether, when Congress has enacted a statutory scheme governing a class of noncitizens in the Immigration and Nationality Act, the Department of Homeland Security’s power to extend employment authorization to that class of noncitizens through regulation is limited to implementing the terms of that statutory scheme.

Warner Chappell Music, Inc. v. Nealy
22-1078
Issue: Whether the Copyright Act’s statute of limitations for civil actions, 17 U.S.C. § 507(b), precludes retrospective relief for acts that occurred more than three years before the filing of a lawsuit.

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The morning read for Friday, May 26

Fri, 26 May 2023 16:51:49 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

Supreme Court Sharply Limits the EPA’s Ability to Protect Wetlands (Emma Ricketts, Inside Climate News)
How Supreme Court’s EPA ruling will affect U.S. wetlands, clean water (Timothy Puko & Robert Barnes, The Washington Post)
How Warhol Turned the Supreme Court Justices Into Art Critics (Adam Gopnik, The New Yorker)
In Capitols and Courthouses, No End to National Divide Over Gun Policy (Shaila Dewan, The New York Times)
Abortion Restrictions Pass Across U.S. as Republicans Overcome Divisions (Laura Kusisto & Jennifer Calfas, The Wall Street Journal)

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Justices rule Minnesota county violated takings clause

Thu, 25 May 2023 18:09:38 +0200

In 2016, a Minnesota county sold 94-year-old Geraldine Tyler’s condo at auction after she failed to pay her property taxes for several years. The sale yielded $40,000; Hennepin County kept not only the $15,000 in taxes, penalties, and costs that Tyler owed it, but also the $25,000 that was left over. The Supreme Court on Thursday ruled that the county’s actions violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owner.

Writing for a unanimous court, Chief Justice John Roberts began by addressing – and rejecting – the county’s argument that Tyler lacked a legal right, known as standing, to bring her takings claim at all. The county contended that Tyler was not actually harmed by the sale of her condo because she may have also had a mortgage for $49,000 on the property, as well as a $12,000 lien for unpaid homeowners’ association fees.

The justices dismissed the county’s protests as speculation, noting that the county had never actually provided evidence of either the mortgage or the lien. But in any event, Roberts continued, “Tyler still plausibly alleges a financial harm: The County has kept $25,000 that belongs to her.” If she had received that money, Roberts wrote, Tyler could have used it to pay down some of the debts linked to the condo.

Turning to the merits of Tyler’s challenge, Roberts framed the question before the justices as whether the $25,000 surplus remaining after Tyler’s condo was sold to pay her tax debt to the county is “property” for purposes of the takings clause. The county pointed to a 1935 state law that strips an owner who falls behind on her property taxes of her interest in the property. Therefore, the county argued, there was no property for the government to take.

The court disagreed, stressing that “property rights cannot be so easily manipulated.” Indeed, Roberts observed, even Minnesota itself “recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt.” Although the county can sell Tyler’s condo to recover the $15,000 that she owes it, Roberts wrote, it cannot “use the toehold of the tax debt to confiscate more property than was due.” By keeping the $25,000, Roberts concluded, the county “effected a ‘classic taking in which the government directly appropriates private property for its own use.’”

Because it ruled in Tyler’s favor on her takings clause claim, the court did not resolve Tyler’s argument that the county’s actions also violated the Eighth Amendment’s ban on excessive fines. In a concurring opinion, Justice Neil Gorsuch (joined by Justice Ketanji Brown Jackson) suggested that, in his view, Tyler would have prevailed on this ground as well.

Lawyer Christina Martin of the Pacific Legal Foundation, who represented Tyler in the Supreme Court, praised the court’s ruling in a press release. She said that it “affirms that property rights are fundamental and don’t depend solely on state law. The Court’s ruling makes clear that home equity theft is not only unjust, but unconstitutional.”

This article was originally published at Howe on the Court.

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Supreme Court curtails Clean Water Act

Thu, 25 May 2023 17:40:26 +0200

The Supreme Court on Thursday established a more stringent test to determine whether the Clean Water Act applies to a wetland. The ruling was a setback for the Environmental Protection Agency and a victory for an Idaho couple, Michael and Chantell Sackett, who have been battling with the federal government for over 15 years in their efforts to build a house on an empty lot near a large lake.

The Sacketts’ legal battle began shortly after they began backfilling their property to prepare the lot, which is about 300 feet from Priest Lake, for construction back in 2007. The Sacketts received a notice from the EPA to stop work because their lot contains wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “navigable waters.” The CWA defines navigable waters as “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’ lot fed into a non-navigable creek that then led to Priest Lake.

In agreeing that the Sacketts’ lot is a wetland, the U.S. Court of Appeals for the 9th Circuit applied the test outlined by Justice Anthony Kennedy in Rapanos v. United States: whether there is a “significant nexus” between the wetlands and waters that are covered by the CWA, and whether the wetlands “significantly affect” the quality of those waters.

On Thursday the Supreme Court reversed the 9th Circuit’s ruling. Instead, Justice Samuel Alito explained, courts should apply a more stringent test, outlined by four justices (including Alito, Chief Justice John Roberts, and Justice Clarence Thomas) in Rapanos, in which the CWA applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.

Alito pointed to the text of the CWA, emphasizing that the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some “adjacent” wetlands will also qualify as “waters of the United States.” This means, he wrote, that wetlands that are entirely separate from traditional bodies of water will not qualify. But the CWA will apply, Alito concluded, to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Under that test, Alito explained, the lower court’s ruling must be reversed. “The wetlands on the Sacketts’ property,” he reasoned, “are distinguishable from any possibly covered waters.”

Justice Clarence Thomas penned a separate concurring opinion that was joined by Justice Neil Gorsuch. Thomas contended that the Supreme Court’s ruling in the Sacketts’ case “curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial highways into something resembling ‘a local zoning board.’” But, Thomas cautioned, Congress limited federal power under the CWA, and the EPA and the U.S. Army Corps of Engineers should “respect that decision.”

Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning. In an opinion joined by the three liberal justices, Kavanaugh contended that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

This article was originally published at Howe on the Court.

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The morning read for Thursday, May 25

Thu, 25 May 2023 15:15:46 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

Biden administration backs Google in song lyrics case at Supreme Court (Blake Brittain, Reuters)
The Supreme Court gift list: Paintings, guns, and a sculpture of a hand (James Romoser, Politico)
There’s a Clear Model for How the Court Could Solve Its Ethics Problem (Norm Ornstein, Slate)
Kagan Takes Small But Real Step Toward High Court Transparency (Philip Allen Lacovara, Bloomberg Law)
Neil Gorsuch Has Given Himself Away (Jamelle Bouie, The New York Times)

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Announcement of opinions for Thursday, May 25

Thu, 25 May 2023 06:00:20 +0200

On Thursday, May 25, we will be live blogging as the court releases opinions in one or more argued cases from the current term.

Click here for a list of FAQs about opinion announcements.

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Acquitted-conduct sentencing returns

Wed, 24 May 2023 20:02:38 +0200

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.

After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.

The Supreme Court has relisted those original five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.

That brings us to Harness v. Watson. The Mississippi Constitution denies the vote to any person “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.” The state adopted the original version of that provision by constitutional amendment in 1890, and the state supreme court candidly acknowledged just a few years later that the “consistent, controlling, directing purpose” during the amendment process was “to obstruct the exercise of the franchise by the negro race.” The constitution made crimes thought to be “black crimes” subject to voter disenfranchisement and eliminated crimes thought to be “white crimes.” The statute was amended in 1950 to remove burglary from the list, and in 1968 it was amended to add rape and murder, in part because a federal civil rights commission noted the omission of such serious felonies from the list. The state legislature declined to add all felonies to the list, and — back when the preclearance provisions of the Voting Rights Act of 1965 were still in effect — the U.S. Department of Justice “precleared” Mississippi’s provision to permit it to enter effect.

Roy Harness and Kamal Karriem are Black men living in Mississippi who are disenfranchised under state law because they have been convicted of forgery and embezzlement. They filed suit under the Fourteenth Amendment seeking to enjoin the continued enforcement of the disenfranchisement provisions for the eight remaining crimes made subject to disenfranchisement in 1890, saying the list was adopted with a racially discriminatory purpose. They note that in Hunter v. Underwood, the Supreme Court invalidated a similar provision of the Alabama constitution that disenfranchised people convicted of crimes “involving moral turpitude.” The U.S. Court of Appeals for the 5th Circuit, by a divided vote, rejected those arguments, holding that Harness and Karriem had not demonstrated that the current version of the act “was motivated by discriminatory intent,” and that Mississippi had “conclusively shown that any taint associated with [the provision] has been cured.”

Before the Supreme Court, Harness and Karriem renew their arguments. The state in opposition argues that other courts of appeals have also held that the enactment of new criminal disenfranchisement provisions can cleanse the taint of earlier provisions that were racially motivated. Since January of this year, the court has rescheduled this case a remarkable 10 times, suggesting that one or more of the justices is taking a very active interest in the case.

Heather Leavell-Keaton was convicted of helping her boyfriend murder his two young children. During capital sentencing proceedings, Leavell-Keaton was given the opportunity to present mitigating evidence, and then she was supposed to be given an opportunity to make a statement on her own behalf before being sentenced. However, she was denied the opportunity to speak on her own behalf and was sentenced to death. Based on that denial, the Alabama Court of Criminal Appeals vacated her death sentence and sent the case back to the trial court. On remand, Leavell-Keaton sought to introduce additional mitigating evidence that she had had behaved well during her years on death row. The trial court refused to admit the evidence, found her statement unpersuasive, and again sentenced her to death.

In Leavell-Keaton v. Alabama, she contends that it was error not to receive the newly proffered mitigating evidence. Leavell-Keaton argues that ordinarily, courts should not be precluded from considering any aspect of a defendant’s character or record as mitigation evidence. She also notes that in Skipper v. South Carolina, the Supreme Court recognized that good conduct in jail is “by its nature relevant to the sentencing determination.” Alabama argues that because Leavell-Keaton did not identify any error at the evidentiary phase of the trial, there was no error limiting the remand to her statement and denying her a do-over on mitigation.

Lastly, we have a foursome of newly relisted immigration cases. Mencia-Medina v. Garland, Castaneda-Martinez v. Garland, A.B. v. Garland, and Kumar v. Garland all appear to raise at least one of the issues the Supreme Court recently resolved in Santos-Zacaria v. Garland, in which it held that 8 U.S.C. § 1252(d)(1) — which requires noncitizens to “exhaus[t] all administrative remedies … as of right” before challenging a Board of Immigration Appeals final order of removal in federal court — is not a jurisdictional provision and does not require noncitizens to request discretionary forms of review. The Supreme Court has been holding all four of these cases for its decision in Santos-Zacaria. With that decision now issued, the court likely just needs more time to sort through the record in these four cases to decide how to dispose of them.

That’s all for this week. We should know more after the court releases its order list next Monday. See you next time!

New Relists

Mencia-Medina v. Garland, 21-1533
Issue: Whether, to satisfy 8 U.S.C. § 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference)

Castaneda-Martinez v. Garland, 22-191
Issue: Whether issues resolved sua sponte by the Board of Immigration Appeals are exhausted under 8 U.S.C. § 1252(d)(1) for purposes of judicial review.
(relisted after the May 18 conference)

A.B. v. Garland, 22-588
Issues: (1) Whether 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited; and (2) whether, to satisfy Section 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference)

Kumar v. Garland, 22-681
Issues: (1) Whether 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited; and (2) whether, to satisfy Section 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference)

Returning Relists

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The morning read for Wednesday, May 24

Wed, 24 May 2023 16:57:25 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:

Chief Justice Roberts says building a fence around Supreme Court was the ‘hardest decision’ of his tenure (Lawrence Hurley, NBC News)
Supreme Court approval rating declines amid controversy over ethics and transparency: Marquette poll (Devan Cole, CNN)
Who’s who in the Supreme Court’s affirmative action cases (Gabriella Borter, Reuters)
Should Americans worry about the Supreme Court’s ‘shadow’ docket? This expert says ‘yes.’ (John Fritze, USA Today
US Says Justices Should Skip on Charter School Skirt Rule Case (Patrick Dorrian, Bloomberg Law)

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The morning read for Tuesday, May 23

Tue, 23 May 2023 16:22:07 +0200

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Tuesday morning read:

US Supreme Court’s Andy Warhol decision keeps ‘fair use’ questions alive (Blake Brittain, Reuters)
Top Court’s Pork-Producer Ruling Could Affect Abortion-Pill Suit (Mary Anne Pazanowski, Bloomberg Law)
What It’s Like After the Supreme Court Rules Your Child’s Death Doesn’t Count (Shirin Ali, Slate)
DeSantis envisions shaping ‘7-2 conservative majority’ on Supreme Court (Hannah Knowles, The Washington Post)
How a Supreme Court decision went from red to blue in less than 2 decades (Alan Hurst, Deseret News)

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Justices rule on challenge to FDIC order

Mon, 22 May 2023 17:05:08 +0200

The Supreme Court on Monday issued a summary reversal – that is, a decision on the merits, but without additional briefing or oral argument – in a challenge to an order that would bar the former CEO of a Michigan community bank from ever working in the banking industry again. The justices’ ruling in Calcutt v. FDIC was the highlight of a list of orders from their private conference on Thursday, May 18. The court did not add any new cases to its merits docket for the 2023-24 term.

The seven-page unsigned opinion came in a challenge by Harry Calcutt, the former head of Northwestern Bank, to an order by the Federal Deposit Insurance Corporation that would bar him from working in the banking industry for life. After a divided panel of the U.S. Court of Appeals for the 6th Circuit upheld the order, Calcutt came to the Supreme Court, asking the justices to weigh in. Although the court of appeals agreed that the FDIC had made legal mistakes in concluding that the order was warranted, he noted, it affirmed the order anyway, reasoning that there was still enough evidence to support the FDIC’s findings. But under the Supreme Court’s decision in Securities and Exchange Commission v. Chenery, Calcutt contended, the court of appeals should have instead sent his case back to the FDIC for it to apply the correct legal standard to the facts.

Representing the FDIC, U.S. Solicitor General agreed with Calcutt that the 6th Circuit should have remanded the case to the FDIC, and on Monday the justices reversed that court’s decision. “It is ‘a simple but fundamental rule of administrative law,’” the court explained, that courts can only uphold a federal agency’s order on the ground on which the agency itself relied. Once the court of appeals concluded that the FDIC was wrong, the court continued, “the proper course … was to remand the matter back to the FDIC for further consideration of” Calcutt’s case.

The court acknowledged that there may be some “narrow” cases in which it is not necessary to send a case back to the agency – for example, when an agency is required to take an action, so that the rationale is less important. But in this case, the court reasoned, the FDIC’s decision about “whether to sanction [Calcutt]—as well as the severity and type of any sanction that could be imposed—is a discretionary judgment” that is “highly fact specific and contextual.” “To conclude, then, that any outcome in this case is foreordained is to deny the agency the flexibility in addressing issues in the banking sector as Congress has allowed.”

The court did not address a second question raised in Calcutt’s petition, involving his challenge to the structure of the FDIC, whose members can only be removed by the president for cause. But now Calcutt’s case will return to the FDIC, for it to take another look under the correct legal standard.

The justices’ next conference is scheduled for Thursday, May 25. The court is expected to release orders from that conference on Tuesday, May 30, at 9:30 a.m.

This article was originally published at Howe on the Court.

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