Opinion analysis: Court offers clear statement of black letter law on international service by mail

Opinion analysis: Court offers clear statement of black letter law on international service by mailIn Water Splash v. Menon, the Supreme Court resolved whether the Hague Service Convention –formally known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters – prohibits or authorizes service by mail. Eight members of the court (Justice Neil Gorsuch did not participate) unanimously adopted the view […]

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Opinion analysis: Court offers clear statement of black letter law on international service by mail

In Water Splash v. Menon, the Supreme Court resolved whether the Hague Service Convention –formally known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters – prohibits or authorizes service by mail. Eight members of the court (Justice Neil Gorsuch did not participate) unanimously adopted the view advocated by the U.S. solicitor general, which one might also dub the Goldilocks approach: The convention neither authorizes nor prohibits service by mail. Instead, it does something in between, requiring courts to look to the rules of the sending and receiving jurisdictions.

A primary purpose of the Hague Service Convention is to require signatory states to designate a central authority that can handle cross-border service requests. But the convention does not require litigants to use that central authority to serve documents; it also authorizes other methods of service, such as via consular agents, and permits signatory countries to authorize still other methods via bilateral agreement or international law. However, the convention (at least in its English translation) is less clear about whether cross-border service by mail is permissible, giving rise to a split among lower state and federal courts.

In this case the court and parties agreed that Article 10 of the convention was the controlling provision. Specifically, Article 10(a) provides that as long as the receiving state does not object, the convention “does not interfere with” “the freedom to send judicial documents, by postal channels, directly to persons abroad.” In contrast, Articles 10(b) and 10(c) refer to the possibility of “effecting service” through “judicial officers, officials, or other competent persons of the State of destination.” Tara Menon, arguing that service by mail is impermissible under the convention, reasoned that “sending” judicial documents must mean something different than – and exclusive of – “effecting service” of them; otherwise, there would have been no reason for the convention’s drafters to use different words. This argument succeeded before the Texas 14th Court of Appeals, which set aside Water Splash’s default judgment against Menon based on its conclusion that Water Splash’s attempts to serve Menon by mail did not comport with the convention.

Rejecting Menon’s argument, Justice Samuel Alito began with one narrow point and one broad one. First, he observed that the word “send” “is a broad term, and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service).” And second, the sole purpose of the Hague Service Convention is the one suggested by its name as well as its drafting history: to regulate “service abroad.” In light of this purpose, Alito reasoned that it would be “quite strange” if Article 10(a) “concerned something other than service of documents.” Moreover, the convention’s limited purpose would render Article 10(a) superfluous if that provision applied only to documents transmitted for purposes other than service: Because the convention does not apply to non-service documents at all, there is no need for it to disclaim any interference with the freedom to send such documents by mail. Menon attempted to avoid this outcome by arguing that Article 10(a) could be read to permit service by mail only of “post-answer” documents, drawing a distinction between “service of process” and service of other documents, but Alito rebuffed that view as “lack[ing] any plausible textual footing in Article 10.”

Alito also offered several additional reasons for rejecting Menon’s argument that “sending” and “effecting service” must refer to different things. Among them, he observed that the choice to use the two different phrases could be explained if “sending” included both service and other types of delivery; in other words, Menon’s textual argument did not rule out the possibility that “send” was broader than (but inclusive of) “effect service.” Further, Alito explained that the “equally authentic” French version of the convention uses in 10(a) the word “addresser,” which is understood to refer to service. And if these reasons were not enough, the court concluded, “traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash’s favor.” Those tools include “the Convention’s drafting history, the views of the Executive, and the views of other signatories,” the latter two of which reflect the unbroken consensus of the last 50 years that the convention does not prohibit service by mail.

Ultimately, the court rejected Menon’s attempt to complicate a relatively straightforward case. (For example, the court did not engage with Menon’s constitutional arguments, including her assertion that it would be unconstitutional for the judiciary to defer to the executive branch’s interpretation of a treaty.) However, it did leave Menon a narrow window on remand: She may attempt to argue that Texas law precludes international service by mail, a point that the Texas appeals court did not reach. That is because Alito concluded his opinion with an important caveat: Although Article 10(a) “encompasses service by mail,” it does not affirmatively authorize it. “In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” Thus, anyone hoping that this interpretive puzzle would be resolved with a clear statement of black letter law should be satisfied: Provided that receiving jurisdictions do not object, sending jurisdictions may authorize (or not) cross-border service by mail.

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Opinion analysis: Justices rein in Federal Circuit’s lax rules on patent venue

Opinion analysis: Justices rein in Federal Circuit’s lax rules on patent venueWhere have I read this before: U.S. Court of Appeals for the Federal Circuit – patent-holding plaintiffs win; Supreme Court – corporate defendants win. The Supreme Court struck yet another blow against the expertise of the Federal Circuit, the specialized appellate court for patent cases, with Monday morning’s opinion in TC Heartland LLC v. Kraft […]

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Opinion analysis: Justices rein in Federal Circuit’s lax rules on patent venue

Where have I read this before: U.S. Court of Appeals for the Federal Circuit – patent-holding plaintiffs win; Supreme Court – corporate defendants win. The Supreme Court struck yet another blow against the expertise of the Federal Circuit, the specialized appellate court for patent cases, with Monday morning’s opinion in TC Heartland LLC v. Kraft Foods Group Brands, rejecting the rules on patent venue that the Federal Circuit has been administering for more than 25 years. The odd part of it is that this time it was the Federal Circuit saying that patent litigation should look more like conventional litigation and the Supreme Court saying that patent litigation needs to have special rules different from the rules of ordinary civil cases. The Federal Circuit can’t win even when it decides that patent litigation should follow the well-developed rules of mainstream civil procedure!

To understand the issue dividing the Federal Circuit from the Supreme Court, a little background about federal civil procedure is useful. Generally speaking, modern venue statutes treat corporations as present in any state in which they conduct a substantial amount of business. Because venue rules generally permit a plaintiff to sue a defendant in any state in which it is present, that means that in general civil litigation, a plaintiff suing a large company that does business nationwide usually can pick just about any state that seems to provide a forum favorable to the plaintiff. That practice replaced an earlier 19th-century regime, in which corporations were treated as residing in (or “inhabiting”) only the single state in which they were incorporated.

For most of the 20th century, litigation involving patents proceeded on a different track, retaining the old limited-venue rule that permitted suits against corporate defendants only in the jurisdiction in which they were incorporated. The Supreme Court confirmed that regime in its 1957 decision in Fourco Glass v Transmirra Products. In that case, the Supreme Court held that the rules for corporate “residence” in a separate statute for patent venue (Section 1400(b)) should continue to apply narrowly notwithstanding Congress’ adoption of a broad conception of corporate venue in the general venue statute (Section 1391). In 1990, however, the Federal Circuit held that venue in patent cases should follow general venue rules, reasoning that congressional amendments to the general venue statute had superseded Fourco.

That all might sound overly technical, but it had a very tangible result: Since 1990 patent litigation under the Federal Circuit doctrine has become centralized in a single federal court in the Piney Woods in East Texas – where, the conventional wisdom has it, juries are likely to be favorable to patent-holders. Indeed, we know from the briefs that one-quarter of all patent cases nationwide in the last three years have been assigned to a single federal judge in that court sitting in the bustling community of Marshall, Texas. Plaintiffs have flocked to that forum and defendants have objected to the travesty of a procedural system under which “all roads lead to Marshall.”

As you would expect from an opinion authored by Justice Clarence Thomas, there is not even an allusion to the concerns that made this such a high-profile issue at the Federal Circuit. Instead, what we get is an opinion that is brief even by Thomas’ standards – not even ten pages. The opinion, joined by all of the justices except for Justice Neil Gorsuch (who joined the court shortly after the argument), turns on a single interpretive move, the adoption of a clear statement rule that calls for a “relatively clear indication … in the text” before the Supreme Court will read a statute as rejecting one of the court’s earlier statutory interpretation decisions. Thomas backed up his “relatively clear indication” standard with a lengthy quote from a treatise on “Reading Law,” co-written by Thomas’ late colleague Antonin Scalia, which explains that a “clear, authoritative judicial holding on the meaning of a particular provision should not be cast in doubt” simply because Congress has adopted some “related though not utterly inconsistent provision.”

Because the opinion already has explained in its summary of the facts that Fourco “definitively and unambiguously held that” the reference to a “reside[nce]” in Section 1400(b) “refers only to the State of incorporation,” the clear-statement rule is all that is required to resolve the case. Having recited that rule, the court needs only to note that Congress has never amended Section 1400(b) since the decision in Fourco and that “[t]he current version of § 1391 does not contain any indication that Congress intended to alter the meaning of § 1400(b) as interpreted in Fourco.” At that point, the outcome is clear.

Recognizing that the summary above is entirely pedestrian, I should adhere to standards of craft by mentioning at least one item of more particular interest from the opinion. For that purpose, I point the reader to footnote 2. Perhaps it says more about my day job teaching courses in commercial law than it does about the justices, but to me that footnote shows a court straining to decide a question that is not before it. As decided, the case involves the indisputably weighty question of where a corporation resides for venue purposes in patent cases. But the justices have decided that question in a case that clearly does not involve a corporate defendant. The defendant is “TC Heartland LLC.” As any second-year law student can tell you, a name that ends in “LLC” cannot be the name of a corporation but must instead be the name of a limited liability company, a wholly distinct type of business enterprise. Thomas notes in footnote 2 that the parties “suggest that petitioner is, in fact, an unincorporated entity.” We can only assume that this bland statement reflects an intentional effort at the ambiguity necessary to permit the court to reach the corporate question presented as opposed to a fundamental failure to understand the identity of the parties in this case. In any event, the footnote certainly will pave the way for further litigation about the venue status of the many non-corporate businesses involved in patent litigation, for whom a single-jurisdiction venue rule would be even more remarkable than it is for corporations.

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Opinion analysis: Court strikes down N.C. districts in racial gerrymandering challenge

Two North Carolina congressional districts, District 1 and District 12, have – as Justice Elena Kagan observed today – “quite the history before” the Supreme Court. In the last 25 years, the districts have been at the heart of four earlier racial gerrymandering cases at the court. Last year, a three-judge district court invalidated both […]

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Two North Carolina congressional districts, District 1 and District 12, have – as Justice Elena Kagan observed today – “quite the history before” the Supreme Court. In the last 25 years, the districts have been at the heart of four earlier racial gerrymandering cases at the court. Last year, a three-judge district court invalidated both of the districts, on the ground that state legislators had illegally packed the districts with African-American voters, which in turn reduced the influence of African-American voters in other districts. The Supreme Court today upheld that decision, in a major ruling on racial gerrymandering.

In her opinion for the court, Kagan explained that racial gerrymandering challenges like this one boil down to two questions. First, was race the predominant factor behind the legislature’s decision to move voters in or out of a district? And if it was, can the state show that it had “good reasons” to believe that it would violate the Voting Rights Act if it didn’t use race to draw the districts? Kagan noted that the Supreme Court’s inquiry on the first question is relatively limited, because it only reviews a district court’s findings of fact – such as whether race played a predominant role – to determine whether they are clearly wrong. Therefore, a district court’s finding can survive as long as it is “plausible,” even if the justices might reach a different conclusion.

Justice Kagan with opinion in North Carolina redistricting case (Art Lien)

Located in the northeastern part of the state, District 1 has been likened to an octopus, with a body that starts at the state’s border with Virginia and tentacles that stretch west, south and east. Writing for the court, Kagan explained that, before drawing the boundaries of District 1, the state’s map makers “purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population.” But fulfilling this goal, she continued, resulted in a “district with stark racial borders. Within the same counties, the portions that fall inside District 1 have black populations two to three times larger than the portions placed in neighboring districts.” ”Faced with this body of evidence,” she determined, the district court was not clearly wrong in “finding that race predominated in drawing District 1. Indeed,” she continued, “as all three judges recognized, the court could hardly have concluded anything but.”

Turning to the second part of the court’s inquiry, Kagan found that the state did not have “good reasons” to believe that it had to either consider race or risk violating the VRA with its redistricting plan. In fact, she pointed out, the state had “no reason” at all to think that it needed to increase the number of black voters in District 1, because the district had consistently elected – often by “landslides” – minority representatives. The Supreme Court, Kagan acknowledged, has made clear that states are entitled to some leeway in redistricting. But even so, she emphasized, District 1 still cannot survive.

North Carolina’s District 12 has been described as “serpentine”: As the court explained today, it “begins in the south-central part of the State (where it takes in a large part of Charlotte) and then travels northeast, zig-zagging much of the way to the State’s northern border.” The only question before the justices was whether race was a predominant factor in drawing the district, as the challengers alleged. The state countered that race didn’t play any role in the maps; instead, the legislature drew the district to pack it with Democrats, many of whom happen to be African Americans. Given the close correlation in many places between race and party affiliation, Kagan suggested, district courts may face a “formidable” task in ferreting out the legislature’s actual motives when states raise a partisan defense in racial gerrymandering case. But here, she stressed, the Supreme Court just has to decide whether the district court was clearly wrong that race, rather than party affiliation, was behind District 12 — and, she concluded, it was not.

The court rejected the state’s argument that the challengers could only prevail in showing that race was a predominant factor if they provided their own example of a map that would have achieved the legislature’s goals without shifting so many African-Americans into the district. Kagan acknowledged that such maps can be helpful, but she emphasized that they are not the only way to show that race was a predominant factor in redistricting.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Anthony Kennedy, disagreed strenuously with the majority’s conclusions about District 12. (The court’s newest justice, Neil Gorsuch, was not yet on the bench when the case was argued last year and did not participate in the ruling.) This means that the crucial fifth vote to uphold the district court’s ruling invalidating District 12 came from Justice Clarence Thomas, whom many regard as one of the court’s most conservative justices.

In Alito’s view, the court’s 2001 decision in another challenge to District 12 should have required the challengers to provide their own map. Alito lamented that a Supreme Court ruling “should not be treated like a disposable household item – say a paper plate or napkin – to be used once and then tossed in the trash.” Mandating an alternative map, he reasoned, “is a logical response to the difficult problem of distinguishing between racial and political motivations when race and political party preference closely correlate.” And in any event, he continued, the record in this case makes clear that race did not play a predominant role.

More broadly, Alito warned that today’s ruling confusing “a political gerrymander for a racial gerrymander” “illegitimately invades a traditional domain of state authority” and creates a real risk that “the federal courts will be transformed into weapons of political warfare.” Voting rights activists may disagree with this characterization of the court’s opinion, but there can be little doubt that it does indeed open the doors to more racial gerrymandering challenges.

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Opinion analysis: Justices approve filing stale claims in consumer bankruptcies

Opinion analysis: Justices approve filing stale claims in consumer bankruptciesA sharply divided Supreme Court yesterday held that debt collectors do not violate the Fair Debt Collection Practices Act when they file in a bankruptcy proceeding a claim for a debt that has become uncollectible because the statute of limitations has expired. Writing for a 5-3 majority (the case was argued before Justice Neil Gorsuch […]

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Opinion analysis: Justices approve filing stale claims in consumer bankruptcies

A sharply divided Supreme Court yesterday held that debt collectors do not violate the Fair Debt Collection Practices Act when they file in a bankruptcy proceeding a claim for a debt that has become uncollectible because the statute of limitations has expired. Writing for a 5-3 majority (the case was argued before Justice Neil Gorsuch arrived), Justice Stephen Breyer disposed of Midland Funding, LLC, v. Johnson in a short and antiseptic opinion. Explaining that the statute punishes conduct by debt collectors that is “false,” “deceptive,” “misleading,” “unconscionable” or “unfair,” the court’s opinion first explained why filing stale claims is not false, deceptive or misleading, and then why it is not unconscionable or unfair.

On the first point, the court essentially concluded that it is not misleading to file a time-barred claim in a bankruptcy proceeding because that obligation remains a “claim” for purposes of bankruptcy law. The opinion noted the court’s repeated statements that “Congress intended [when it adopted the Bankruptcy Code] to adopt the broadest available definition of ‘claim.’” It also emphasized that the statutory text directly recognizes the possibility that an obligation would be a “claim” even if it were unenforceable; specifically, the statute “says that, if a ‘claim’ is ‘unenforceable,’ it will be disallowed. It does not say that an ‘unenforceable’ claim is not a ‘claim.’”

The court went on to explain that “[t]he law has long treated unenforceability of a claim (due to the expiration of the limitations period) as an affirmative defense.” Against that historic practice, “we see nothing misleading or deceptive in the filing of a proof of claim that, in effect, follows the Code’s similar system.” Adding one last point, the court emphasized that “determin[ing] whether a statement is misleading normally requires consideration of the legal sophistication of its audience” and that the “audience in [consumer] bankruptcy cases includes a trustee … likely to understand [the importance of objecting to an untimely claim].”

The court acknowledged that it is “a closer question” whether filing a stale claim is unfair or unconscionable, but had no trouble disposing of that issue as well. The opinion noted that several lower courts have found it improper to enforce stale claims directly (by filing suit on them), largely based on the view that “a consumer might unwittingly repay a time-barred debt.” But for Breyer, those considerations should “have significantly diminished force in the context of a Chapter 13 bankruptcy.” The opinion made two main points. First, Breyer suggested that because the “consumer initiates [the bankruptcy] proceeding, … the consumer is not likely to pay a stale claim just to avoid going to court.” Second, the opinion pointed again to the “knowledgeable trustee” as a likely source of objections protecting the consumer.

Breyer closed with a structural point, describing the Bankruptcy Code as embodying a “delicate balance of a debtor’s protections and obligations” that would be “upset” by application of the FDCPA to create such a “new significant bankruptcy-related remedy” without any “language in the Code providing for it.” By “requir[ing] creditors … to investigate the merits of an affirmative defense (typically the debtor’s job to assert and prove),” the “upshot could well be added complexity, changes in settlement incentives, and a shift from the debtor to the creditor [of] the obligation to investigate the staleness of a claim.”

The opinion prompted a scorching dissent from Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan. Longer than the majority’s opinion, Sotomayor’s dissent summarized the immense market for consumer debt (“trillions of dollars”), and the recent rise of large-scale debt buyers who buy long-stale “debts for pennies on the dollar.” Noting that the Federal Trade Commission and the Consumer Financial Protection Bureau have pursued debt buyers (including the buyer involved in this case) with claims that their litigation of stale claims is “unfair” under the FTCPA, Sotomayor concluded that the [d]ebt collectors’ efforts to entrap consumers … have no place in honest business practice.” She ridiculed the court’s claim that routine trustee objections to these claims can be expected to limit their value, pointing out that the claims have monetary value only because of the possibility the trustee will forget to object to them. She closed with a rhetorical flourish: “It takes only the common sense to conclude that one should not be able to profit from the inadvertent inattention of others. It is said that the law should not be a trap for the unwary. Today’s decision sets just such a trap.”

The court’s high praise of the bankruptcy trustees is notable, though arguably a bit unrealistic. As Sotomayor noted in her dissent, the trustees’ trade association filed an amicus brief in support of the debtor, explaining the impractical burden of interposing objections to the flood of stale claims appearing in consumer bankruptcies in recent years. I have the strong sense that trustees as a group would have been happier with a little less laudatory description and a little more appreciation of the constrained resource setting in which they operate. As Justice Sotomayor noted, they’ll have to hope now for relief from Congress because they won’t be getting it from the courts.

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Opinion analysis: Justices rebuff Kentucky rule invalidating arbitration agreements signed under power of attorney

Opinion analysis: Justices rebuff Kentucky rule invalidating arbitration agreements signed under power of attorneyFor anybody who thought that the Supreme Court’s protective attitude toward arbitration agreements would differ in the absence of the late Justice Antonin Scalia, the decision this morning in Kindred Nursing Centers Limited Partnership v. Clark will come as a surprise. By a 7-1 margin, the court firmly rejected a Kentucky decision that adopted a […]

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Opinion analysis: Justices rebuff Kentucky rule invalidating arbitration agreements signed under power of attorney

For anybody who thought that the Supreme Court’s protective attitude toward arbitration agreements would differ in the absence of the late Justice Antonin Scalia, the decision this morning in Kindred Nursing Centers Limited Partnership v. Clark will come as a surprise. By a 7-1 margin, the court firmly rejected a Kentucky decision that adopted a clear-statement rule under which a general power of attorney, valid to authorize the execution of contracts generally, would not validly authorize execution of an arbitration agreement unless the power of attorney explicitly addressed that topic.

Resembling more than anything last term’s decision in DIRECTV, Inc. v. Imburgia, the opinion shows a Supreme Court bristling at the lack of candor shown by state courts that disagree with its favorable treatment of pre-dispute arbitration agreements. Doctrinally, the case is written as a routine application of the court’s existing rules holding that the Federal Arbitration Act obligates state courts to put arbitration agreements on an “equal footing” with other contracts and invalidates defenses that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.”

To the extent there is any new law in this case, it comes in the opinion’s explanation of the last point in the previous paragraph. As demonstrated in today’s decision, the court is now forbidding not only a law “prohibiting outright the arbitration of a particular type of claim,” but also “any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” In this case, the Kentucky Supreme Court adopted a rule for all contracts that waive the “divine God-given right” to a jury trial, requiring “an explicit statement before an attorney-in-fact … could relinquish that right on another’s behalf.” Applying the rule summarized above, the Supreme Court held that the Kentucky decision must fall because the state court “adopt[ed] a legal rule hinging on the primary characteristic of an arbitration agreement—namely, a waiver of the right to go to court and receive a jury trial.” As the opinion puts it, “[s]uch a rule is too tailor-made to arbitration agreements—subjecting them, by virtue of their defining trait, to uncommon barriers.”

The Supreme Court’s emphatic quotation of the Kentucky court’s description of the religious underpinnings of the jury-trial right is just one indication that the justices are skeptical about the state court’s sincerity. For example, the opinion quotes the suggestion of the Kentucky court that the rule applied here “could also apply when an agent endeavored to waive other ‘fundamental constitutional rights’ held by a principal.” Writing for the majority, Justice Elena Kagan responds sarcastically: “But what other rights, really? No Kentucky court, so far as we know, has ever before demanded that a power of attorney explicitly confer authority to enter into contracts implicating constitutional guarantees.” Kagan also points out that “[n]othing in the decision below (or elsewhere in Kentucky law) suggests that explicit authorization is needed” for other agreements “relinquishing the right to go to court,” such as “a settlement agreement or consent to a bench trial.” The opinion takes that as “yet another indication that the [Kentucky] court’s demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials.” In summary, the opinion concludes, the Kentucky court’s unpersuasive protestations that its rule was neutral toward arbitration “only makes clear the arbitration-specific character of the rule, much as if it were made applicable to arbitration agreements and black swans.”

For me, the 7-1 vote was the most salient thing about this decision. All of the participating justices agreed except for Justice Clarence Thomas, who could not endorse the outcome based on his longstanding view that the FAA does not apply in state courts. By contrast, the vote last year in the quite similar case of Imburgia was 6-3. Perhaps the justices were motivated here less by their views about the FAA than by their views about the proper response to insincere state supreme courts.

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Opinion analysis: Unanimous court rules for veteran in family law case

Today’s opinion in Howell v. Howell exemplifies the bread and butter of the Supreme Court’s docket: It is a decision with significant real-world consequences that will nonetheless largely fly under the radar. The court unanimously handed a victory to Air Force veteran John Howell, who was divorced from his former wife, Sandra, over 25 years […]

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Today’s opinion in Howell v. Howell exemplifies the bread and butter of the Supreme Court’s docket: It is a decision with significant real-world consequences that will nonetheless largely fly under the radar. The court unanimously handed a victory to Air Force veteran John Howell, who was divorced from his former wife, Sandra, over 25 years ago. Although the divorce decree had ordered John to share half of his retirement pay with Sandra, John later opted to waive part of that retirement pay (on which he pays taxes) to instead receive disability benefits (which are not taxable), thereby reducing the money that Sandra received. The justices today ruled that John cannot be required to reimburse Sandra for the $125 per month that she no longer gets as a result of his choice.

Justice Breyer with opinions in two cases; Justices Sotomayor and Gorsuch absent (Art Lien)

The dispute before the court has its roots in John and Sandra Howell’s 1991 divorce. With John’s retirement only a year away, the couple’s divorce decree specified that Sandra would receive half of his military retirement pay. But in 2005, John gave up $250 of his $1,500 in retirement pay so that he could receive the same amount as disability benefits. Sandra went back to court, where she argued that, even if John’s retirement pay had been reduced, she should still receive half of what his retirement pay would have been without the disability benefits. The state courts agreed with her, but today the Supreme Court reversed, in a decision by Justice Stephen Breyer.

For the eight justices (Justice Neil Gorsuch joined the court after the case was argued and did not participate), the ruling hinged on the Uniformed Services Former Spouses’ Protection Act, a 1982 federal law governing the disposition of military retirement pay in divorces, and a 1989 Supreme Court case interpreting that statute. The act makes clear that state courts can divide up “disposable retired pay,” which it defines as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits. And in Mansell v. Mansell, the court ruled that the act does not permit state courts to treat retirement pay that has been waived to receive veterans’ disability benefits as something that can be divided.

John had argued that the act and the court’s decision in Mansell easily resolved this case, while Sandra told the justices that this case is different because the veteran in Mansell had waived his right to military retirement pay before the divorce. The justices agreed with John, explaining that under federal law state courts simply lack the authority to divide up John’s disability benefits, even if it means that Sandra winds up receiving less money that she might have originally expected. And the state can’t get around the restrictions imposed by federal law by characterizing the award to Sandra as an order to John to “reimburse” her for the money that she no longer receives.

Breyer acknowledged that the federal statute and today’s ruling could make things harder for former military spouses like Sandra. But he suggested that, going forward, state courts can try to account for the possibility that a veteran could later waive some part of retirement pay in favor of disability benefits, or they can recalculate spousal support based on later changes in circumstances. In this case, however, the state courts did not do that. Instead, the Supreme Court noted, the state courts’ rulings “rested entirely upon the need to restore Sandra’s lost portion.”

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Opinion analysis: Justices raise bar for claims under FISA’s expropriation exception

Opinion analysis: Justices raise bar for claims under FISA’s expropriation exceptionAfter the government of Venezuela nationalized a General Motors factory in that country late last month, the Detroit-based car company vowed to “vigorously take all legal actions, within and outside of Venezuela, to defend its rights.” If those promised actions include a lawsuit in the United States, GM could face a tougher battle after a […]

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Opinion analysis: Justices raise bar for claims under FISA’s expropriation exception

After the government of Venezuela nationalized a General Motors factory in that country late last month, the Detroit-based car company vowed to “vigorously take all legal actions, within and outside of Venezuela, to defend its rights.” If those promised actions include a lawsuit in the United States, GM could face a tougher battle after a ruling today by the U.S. Supreme Court in another case involving the jurisdiction of U.S. courts over lawsuits brought against the Venezuelan government.

The case decided by the court today was filed by Helmerich & Payne International, a U.S. company, and its Venezuelan subsidiary, Helmerich & Payne de Venezuela. Helmerich & Payne de Venezuela started drilling for the state-owned oil company in the 1970s, but in 2010, then-President Hugo Chavez issued a decree appropriating the subsidiary’s drilling rigs, which the state-owned oil company now uses. A little over a year later, the two companies filed a lawsuit in federal court in Washington, D.C.

Under the Foreign Sovereign Immunities Act, a federal law enacted in 1976, foreign countries generally cannot be sued in U.S. courts. But the two companies relied on the “expropriation” exception to that rule, which applies to situations in which a foreign government has nationalized privately owned property. That exception allows lawsuits against foreign governments to go forward in the United States when “rights in property taken in violation of international law are in issue” and there is a commercial connection to the United States.

Venezuela argued that the case should be dismissed because the expropriation exception did not apply. The court of appeals (in an opinion joined by Chief Judge Merrick Garland, whom President Barack Obama nominated to the Supreme Court) rejected that argument, holding that the claims by Helmerich & Payne and its subsidiary could go forward as long they were not “wholly insubstantial or frivolous.” The court of appeals explained that the two companies only needed to clear “an exceptionally low bar” – which, the court concluded, they had. Venezuela asked the Supreme Court to weigh in, and today eight justices (the court’s ninth and newest justice, Neil Gorsuch, did not participate) unanimously agreed that the bar is in fact higher.

In an opinion by Justice Stephen Breyer, the court explained that when there is no dispute about the facts of a case, the expropriation exception will apply, and a U.S. court will have jurisdiction, only when the facts “do show (and not just arguably show) a taking of property in violation of international law.” As an example, the court described a scenario in which the owner of a house that had been nationalized in a foreign country filed a lawsuit in the United States. If the foreign government asserted sovereign immunity from the lawsuit, the court reasoned, the owner would have to show both that “he claimed ‘property’ (which a house obviously is) and also that the property was ‘taken in violation of international law.’” But, to survive a motion to dismiss, the owner would not need to show that he owned the property: “That question,” the court emphasized, “is part of the merits of the case and remains ‘at issue.’” And it added that in cases like this one, U.S. courts should decide any questions about whether they have jurisdiction “as close to the outset” of the case “as is reasonably possible.”

The court stressed that its interpretation of the expropriation exception is most consistent with both the text and the history of the law. In particular, it observed, setting the higher bar for jurisdiction will provide clarity to foreign governments and minimize the extent to which they are involved in litigation in U.S. courts. And that, the court suggested, will in turn reduce the likelihood of friction with other countries and retaliatory litigation against the United States overseas.

The justices sent the dispute back to the lower courts “for further proceedings consistent with this opinion” – presumably, for them to determine whether Helmerich & Payne and its subsidiary can meet the significantly more stringent standard announced today. By raising the bar, today’s ruling is likely to make it more difficult to bring future cases under the expropriation exception, including perhaps against Venezuela in the not-too-distant future.

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Opinion analysis: Five justices keep city’s discriminatory lending lawsuit alive

The Supreme Court handed a partial but significant victory to cities today, holding that the Fair Housing Act allows the city of Miami to bring a lawsuit alleging that two banks, Bank of America and Wells Fargo, violated the law when they issued riskier but more costly mortgages to minority customers than they had offered […]

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The Supreme Court handed a partial but significant victory to cities today, holding that the Fair Housing Act allows the city of Miami to bring a lawsuit alleging that two banks, Bank of America and Wells Fargo, violated the law when they issued riskier but more costly mortgages to minority customers than they had offered to white borrowers. But it was hardly a complete win for the city, as the court also ruled that the lower court should have applied a tougher test to determine whether the city can recover compensation for its losses. This means that the case will now return to the lower court for it to decide whether there is enough of a connection between the banks’ lending practices and the city’s economic injuries to hold the banks liable.

Sketch by Art Lien

Miami filed its lawsuit in 2013, arguing that the banks had violated the FHA, a 1968 civil rights law that bars discrimination in the sale, rental and financing of housing, in several ways. First, the banks allegedly made loans to minority borrowers that – as the court today described them – included “excessively high interest rates, unjustified fees, teaser low-rate loans that overstated refinancing opportunities, large prepayment penalties, and—when default loomed—unjustified refusals to refinance or modify the loans.” This, the city contended, not only led to higher default and foreclosure rates among minority borrowers than their white counterparts, but also imposed significant burdens on the city: More foreclosures meant lower property values, which led to a drop in property tax revenues and an uptick in demand for city services like police and fire protection.

The banks asked the court to dismiss the lawsuit. First, they contended that the city does not fall within the group of individuals or entities – known as the “zone of interests” – that Congress intended to protect when it passed the FHA. By a vote of 5-3, the court today rejected this argument. Writing for a majority that also included Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer explained that the FHA allows anyone who “claims to have been injured by a discriminatory housing practice” to bring a lawsuit. The Supreme Court, Breyer emphasized, has consistently ruled that this definition should be interpreted broadly; relying on that language, he added, the court has allowed similar lawsuits – including one by a “village alleging that it lost tax revenue and had the racial balance of its community undermined by racial-steering practices” – to go forward. Moreover, he noted, in the wake of those cases, Congress made changes to the FHA but left its definition of who can sue largely intact – effectively reaffirming the justices’ expansive reading of that definition.

The banks fared better on the second question they asked the court to address: whether the harms that Miami suffered are sufficiently related to a violation of the FHA that the banks should have to pay for them. In allowing the city’s lawsuit to continue, the U.S. Court of Appeals for the 11th Circuit ruled that the city could make that showing because the effects of the banks’ allegedly discriminatory lending practices were foreseeable. But that, the court held today, was too low a bar. Explaining that the “housing market is interconnected with economic and social life,” the court reasoned that an FHA violation could “be expected to cause ripples of harm to flow far beyond the defendant’s misconduct.” “Nothing in the statute,” the court continued, “suggests that Congress intended to provide a remedy wherever those ripples travel” – particularly when “entertaining suits to recover damages for any foreseeable result of an FHA violation would risk massive and complex damages litigation.”

Instead, the court explained, plaintiffs suing under the FHA must show a direct connection between the injury and the violation. Although the court suggested that damages would not be available when the injury is more than one step removed from the conduct at issue, it declined to provide any more specifics and sent the case back to the lower court, directing it to take a stab at defining the required direct connection and then determining whether the city can meet that requirement in this case.

Justice Clarence Thomas filed an opinion dissenting in part and concurring in part, which was joined by Justices Anthony Kennedy and Samuel Alito. (The court’s newest justice, Neil Gorsuch, joined the court after the case was argued and did not participate.) In Thomas’ view, the majority was wrong to conclude that Congress intended the FHA to protect cities like Miami, because the injuries that the city cited in its lawsuit are too remote from the act’s purpose. The FHA was intended to protect victims of discrimination or – perhaps – someone whose neighborhood remains segregated as a result of that discrimination, Thomas observed. “But nothing in the text of the FHA,” he stressed, “suggests that Congress was concerned about decreased property values, foreclosures, and urban blight, much less about strains on municipal budgets that might follow.”

Thomas agreed with the majority on one point: its conclusion that, as a general matter, a plaintiff suing under the FHA must show a direct connection between the injury and the violation in order to recover damages from the alleged violator. But he disagreed with the majority’s decision to send the city’s case back to the lower court for it to make that determination. Even the majority’s opinion, he contended, “leaves little doubt that neither Miami nor any similarly situated plaintiff can satisfy the rigorous standard” established today, when even Miami’s own pleadings demonstrate “that the link between the alleged FHA violation and its asserted injuries is exceedingly attenuated.”

Today’s ruling was reminiscent of the Supreme Court’s decision nearly two years ago in another FHA case, in which the justices agreed, by a vote of 5-4, that the statute allows lawsuits based on “disparate impact” – that is, allegations that a policy or practice has a discriminatory effect even if it was not necessarily intended to discriminate – but appeared to place new restrictions on when and how those lawsuits can be brought. Like the “disparate impact” lawsuit, today’s decision seems to have all the hallmarks of a compromise: It will allow Miami’s case (and those of the other cities that have brought similar lawsuits) to go forward, but it also establishes a fairly stringent test for damages that could put the brakes on many, if not most, cities’ lawsuits.

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Argument analysis: The Supreme Court struggles with the ACA’s patent provisions

In a surprise to virtually no one, the oral argument in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz showed the Supreme Court struggling to understand both the highly complex patent provisions in the Affordable Care Act (aka the “Obamacare” statute) and the many procedural complexities of the underlying litigation. The argument […]

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In a surprise to virtually no one, the oral argument in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz showed the Supreme Court struggling to understand both the highly complex patent provisions in the Affordable Care Act (aka the “Obamacare” statute) and the many procedural complexities of the underlying litigation.

The argument began with an unusual announcement by Chief Justice John Roberts, who told the lawyers for the two battling pharmaceutical firms that “the Court has decided to give each of you five extra minutes” of argument time.  Each advocate must have thought, “Wow, five whole minutes! For each of us! How generous!”

Joking aside, however, I’m sure that the advocates understood what the court was doing. The court could not possibly have thought that the five more minutes would really bring much more clarity to the issue. Even five extra hours of argument might not have helped much. The extra time signals to the lawyers, and to the larger biomedical community that cares about these legal issues, that the court understands that this litigation is far more complex than most others and that the justices are willing to put in extra effort to try to resolve the relevant issues in a conscientious manner.

The five additional minutes might signal something else too. There is, I believe, a real chance that the court might decline to rule on some or even all of the issues presented in these consolidated cases. You read that correctly: The justices may not decide any of the issues but instead might dismiss as improvidently granted the petitions for certiorari in the case (a so-called “DIG” of the petitions). The extra minutes might be designed to show that the court was not merely trying to avoid work or otherwise being cavalier in waiting to opine on the issues until another day.

Such DIGs are unusual, but so are the consolidated cases here. In one of the most highly cited cases concerning DIGs, The Monrosa v. Carbon Black Export, Inc., the court wrote that its function is to “decide[] questions of public importance,” but only “in the context of meaningful litigation,” and not simply to answer questions in an “administrative or managerial” role.

At multiple points in the oral argument, the parties seemed to be encouraging the justices to assume just such an administrative or managerial role with respect to this statute (the 17-page biosimilars subchapter contained in the larger ACA).  As mentioned in my argument preview, all of the issues in this particular case are moot, and the court granted certiorari based on the exception to mootness for issues “capable of repetition yet evading review.” Yet as the argument played out, this particular litigation seemed more unusual and less typical, and the parties were seeking rulings that may or may not be relevant to future cases. Justice Stephen Breyer was the most vocal of the justices in rejecting such a role, as he repeatedly stated that the issues would be better resolved in a comprehensive administrative rulemaking rather than in Supreme Court litigation.

Below I will discuss the specific issues raised in the litigation, and in doing so, I will follow the structure of my argument preview, which described the issues in five layers. Throughout my discussion, however, I will point out the places in the argument where comments by the justices and even by the attorneys seem to hint that the case may be a poor vehicle for answering the questions presented.

*                      *                    *

Very few questions at the oral argument focused on the two most general aspects of the case: (i) the long-running policy war over the optimal level of patent protection for medicines, and (ii) the complex technology of biologics and biosimilars. The dearth of questions on those matters is to be expected. The justices clearly understood that, in enacting the relevant statute, Congress was trying to strike a balance between patent protection and access to medicines, and that the underlying complexities of the technology partly explain why the statute is so complex. The justices were instead devoting almost all of their attention to trying to discern what balance had been struck by Congress.

The first specific legal issue that gave rise to the litigation between Amgen and Sandoz is whether, under the statute, Amgen was entitled to obtain Sandoz’s FDA application to market a biosimilar to Amgen’s drug filgrastim (trade name Neupogen). One of the very first steps in the statutory “exchange of information” process is that the applicant for a biosimilar license – here Sandoz – “shall provide to the [research pharmaceutical company] a copy of the application submitted [to the agency] under subsection (k).” Amgen’s position is that “shall” in that sentence means that the disclosure is mandatory, and that a federal court may issue injunctive relief if the application is not disclosed. Sandoz argues that disclosure is optional, with the statute merely permitting a declaratory judgment action about possible patent infringement if the application is not provided.

A few points of clarity emerged on this issue, but no real resolution. The court seemed willing to assume that the word “shall” bespeaks a mandatory duty. At one point in his questioning of Amgen’s lawyer—former Solicitor General Seth Waxman — Justice Neil Gorsuch said, “let’s say I spot you that … ‘shall’ means shall.”  The hard issue is then whether the statute’s listed consequences for nondisclosure are the exclusive remedies, and as Justice Gorsuch noted, “it’s hard to divorce a right from its remedy.”

Justice Sotomayor questions Seth P. Waxman, the lawyer for Amgen (Art Lien)

Justice Stephen Breyer then identified the key ambiguity in the statute, stating: “You’re right. ‘Shall’ means ‘shall.’ Okay? But [the remedial provision in the federal statute] doesn’t say that’s the only remedy or that there are others.” The statute provides a remedy for the applicant’s non-disclosure of its FDA application, but it is ambiguous as to whether that remedy is exclusive.

In the underlying litigation, Amgen sued Sandoz and received Sandoz’s application in discovery, so the issue of the remedy for nondisclosure is moot in this litigation. Nevertheless, the justices speculated about whether such a disclosure-via-discovery solution would always be present or was the exception.  Questioning Sandoz’s counsel — former Assistant to the Solicitor General Deanne Maynard — Justice Sonia Sotomayor asked whether other litigants would generally have “a good-faith basis” for bringing such a suit so that the FDA application could be obtained in discovery. That question led to extended speculation about possible future lawsuits, and that sort of speculation might very well be a signal to the court that it’s a bad idea to decide a moot legal question without seeing the issue arise in a more concrete context.

The next issue in the case was whether the biosimilar applicant Sandoz provided proper notice to Amgen. The statute required Sandoz to provide notice “not later than 180 days before the date of the first commercial marketing of the biological product licensed [by the FDA].” Sandoz sent the notice while its biosimilar application was still pending before the FDA, and the U.S. Court of Appeals for the Federal Circuit held that notice to be too early. Logically, the Federal Circuit believed, the notice would have “to follow licensure, at which time the product, its therapeutic uses, and its manufacturing processes are fixed.”

Breyer again identified the precise ambiguity in the statute that creates uncertainty here. He rhetorically asked: “What does this notice [have to] say?” He then started to paraphrase the statute and realized that the statute does not provide any indication about the information that should be in the notice. It’s a “crucial ambiguity,” he noted. At that point, he suggested that the contents of the notice would be better decided by administrative regulation, admitting that he was “operating in a field I know nothing about,” and then asking “[s]o why isn’t the way to go about this case to ask the agency to issue some regulations?”

Later in the argument, Breyer returned to that idea, but admitted that the court may not be able to prod the agency into action: “I would stick with the idea of the FDA doing this first, but maybe I can’t get there. And if I can’t get there, I’m stuck.”

Deanne E. Maynard, the lawyer for Sandoz (Art Lien)

The last issue in the case is whether federal courts could provide injunctive remedies that are not expressly authorized in this particular statute. In my preview, I worried that the court might inadvertently decide a major issue concerning the scope of federal equity powers without realizing the full implications of such a decision. The oral argument, however, focused on a different theory — a theory that (no surprise here) is hopelessly muddled in this litigation.

The oral argument focused on Amgen’s theory that, to remedy any violations of the biosimilar provisions in the ACA, Amgen could rely on the California’s Unfair Competition Law, which authorizes injunctive relief for any “unlawful, unfair or fraudulent business act or practice.”

I did not discuss that theory in my preview because my reaction to the argument was similar to that of John Roberts, who commented: “[T]his is a very reticulated statute with enormous consequences, and you’re reading along and you finally figure it out, and all of a sudden up pops California law.” Roberts seemed to indicate that he thought such a combination of state and federal law would be “odd” and that the state law could not be used to supplement the federal statute under “well-established preemption” principles.

Amgen’s lawyer Waxman had an answer for that: “[P]reemption was waived” by Sandoz! Roberts was unpersuaded, but not because he disagreed that the issue had been waived. Rather, he said: “I understand [the waiver problem], but I’m not going to interpret a Federal statute based on the decisions of one party to waive the argument or not.”

To any sophisticated observer of the Supreme Court, the entire exchange between Waxman and Roberts points to what’s wrong with this case. Roberts is absolutely correct that the court isn’t in the habit of “interpret[ing] a Federal statute based on the decisions of one party to waive the argument.” But the court doesn’t routinely forgive waivers either. In fact, the justices do not usually hear such cases at all because they typically deny certiorari when a case has such a significant procedural problem.

*                      *                    *

In closing, I’ll note a final general impression about the argument. At numerous points, the advocates and the justices found themselves speculating about how this statute might work, but it’s clear that the discussion was speculative because the statute is so new.

For example, the Roberts asked “how often” a particular issue is likely to arise, and Waxman answered “[w]e don’t have a sufficient data set [because the FDA] has only granted 5 [applications], the last one being last Friday.” Earlier in the argument, Justice Elena Kagan asked Maynard whether “as a matter of practice, … that’s the way people operate under this statute.” Maynard answered that Amgen took that course in this case and “this is the only situation in which I’m aware ….”

The best line — one that received a good bit of laughter — came after Maynard speculated about the strength of the “incentives” provided by the statute for parties to take certain actions, and Sotomayor interrupted: “All incentives have a way of failing. Just look at our society.”

It’s a funny line. But it hints at a serious question about the proper role of the court in deciding complex issues arising under a new statutory scheme, and the justices seem to be thinking about that as much as about the substantive issues presented in these consolidated cases. We will know more about how that concern plays out by the end of June.

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Argument analysis: Concerns about prosecutorial discretion likely to lead to ruling for Bosnian Serb in immigration case

At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to […]

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At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to Serbia. U.S. immigration officials stripped her of her citizenship after she admitted that she had lied about her husband’s service in the Bosnian Serb military, but the justices seem likely to give her another shot at keeping it. Although they may not have been fans of Maslenjak personally, though, the justices were even less enthusiastic about the prospect of ruling for the government, expressing concern that such a ruling would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.

During the first part of the argument, things didn’t necessarily look good for Maslenjak. The government had charged her with violating a federal law that authorizes both a fine and a prison sentence for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.”  The government argued that, when Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking to come to the U.S. as a refugee. Maslenjak countered that the government couldn’t take away her citizenship just because she lied; the lie had to be a “material” one – that is, one that would not have affected the immigration officials’ decision.

 But some justices didn’t regard the distinction between a material and immaterial lie as an easy line to draw. Justice Anthony Kennedy told Christopher Landau, who was representing Maslenjak, that whether a false statement influenced the government’s decision to grant citizenship is sometimes “known only after the fact.” “You can have a statement that everyone thinks is immaterial, it’s subjectively immaterial, but it might have a causal connection at the end of the day.”

Christopher Landau for petitioner (Art Lien)

Justice Samuel Alito echoed this sentiment. He told Landau that requiring the government to show that it would have rejected Maslenjak’s citizenship application if it had known the truth would be an “awfully hard” burden for the government to bear, because “even if somebody says something that has a real potential to affect the naturalization decision, you would still have to go back and show that in this case it actually did make a difference.”

And other justices were skeptical that, even if the court were to adopt the rule that Maslenjak herself urged and require the lies to be material, Maslenjak could prevail. Justice Ruth Bader Ginsburg asked Landau, “Why isn’t this obviously material?” Maslenjak, Ginsburg observed, lied to U.S. government officials about her husband’s activities in Bosnia. “She said he was trying to avoid military conscription when, in fact, he was in the service and in the unit that was committing atrocities. Under what circumstances,” Ginsburg went on, “would that be immaterial?”

Alito seemed to agree. He asked Landau whether the jury in Maslenjak’s case could also hear evidence about her husband’s military service in Srebrenica, the town where Bosnian Serb soldiers killed over 8,000 Muslim men and boys in 1995. If so, Alito suggested, “I don’t know how well you are going to do” in front of the jury. Landau agreed with Alito that Maslenjak would have a “tough row to hoe” on remand, but he argued that his client at least deserved a chance to have the jury decide whether her lies were material.

Chief Justice John Roberts had been largely silent during Landau’s argument. Robert Parker, the assistant to the U.S. solicitor general who argued on behalf of the federal government, quickly learned why. Roberts is generally no friend of criminal defendants, but he has often expressed concern about federal laws that give too much leeway to prosecutors, thereby creating the potential for abuse and uneven enforcement. Today was one of those days.

Roberts noted that one question on the naturalization application form asks whether the applicant has “ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested.” “Some time ago,” Roberts confessed, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen,” he declared incredulously, “you can knock on my door and say, guess what, you’re not an American citizen after all.”

Chief Justice Roberts questions Assistant to the Solicitor General Robert A. Parker (Art Lien)

Parker tried to offer Roberts some assurances that the hypothetical naturalized scofflaw would have little to fear, but he didn’t make much headway. “So you really are looking for the listing of every time somebody drove over the speed limit,” Roberts concluded.

Justice Sonia Sotomayor piled on, asking Parker whether failure to disclose a childhood nickname – another question on the naturalization application form – could constitute cause to take away someone’s citizenship.

Parker pushed back, reassuring Sotomayor that the government was not interested in childhood nicknames. However, Justice Stephen Breyer retorted that, even if Sotomayor’s example could be distinguished, “that isn’t the point.” The point, Breyer emphasized, is that the questions on naturalization application form are “unbelievably broad.” “To me,” Breyer said, “it’s rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of naturalized citizens.”

Perhaps thinking of the difficulties that might follow from requiring a lie to be “material,” Breyer suggested some alternative standards, potentially less onerous for the government, that would still call for a connection between the lie and the naturalization decision. What about requiring that the lie “had a tendency to affect a reasonable immigration officer in his judgment” or “influence the decision”?  All those are wrong? he queried.

Breyer later admonished Parker that the government’s interpretation “would raise a pretty serious constitutional question” when it could take away someone’s citizenship “because 40 years before, he did not deliberately put on paper what his nickname was, what his speeding record was 30 years before that, which was, in fact, totally immaterial.”

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed,  the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Kennedy was also clearly uneasy about the government’s interpretation. Your argument, he admonished Parker, is “demeaning” to the “priceless value of citizenship.” Kennedy added, “you are arguing for the government of the United States, talking about what citizenship is and ought to mean.”

Landau tried to capitalize on this unease in his rebuttal, telling the justices that “the questioning today makes it chillingly clear that the government’s position in this case would subject all naturalized Americans to potential denaturalization at the hands of an aggressive prosecutor.” And that, Landau concluded, “is not what Congress intended” and “not what is in the language of the statute.” Even if the justices agree, Maslenjak may not be home free, because the government would almost certainly try to show that her lies would have influenced immigration officials’ decision to grant her citizenship – which, the justices seemed to suggest today, might not be a particularly difficult task. But she does seem likely to at least get what Landau asked for today: “an opportunity to debate” that issue in front of a jury.

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