After federal government filing, 9th Circuit rules in DACA dispute

After federal government filing, 9th Circuit rules in DACA disputeThree days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th […]

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After federal government filing, 9th Circuit rules in DACA dispute

Three days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th Circuit – could review the government’s appeal from district court rulings against it. Today the 9th Circuit issued its ruling in the challenge to the termination of the program, known as DACA, which allows some undocumented immigrants who came to the United States as children to apply for protection from deportation. The ruling means not only that the Supreme Court is now more likely to take up the DACA dispute, but that it could do so this term.

In its filing on Monday, the federal government complained that the 9th Circuit had heard oral argument in the dispute in mid-May but had not yet issued its ruling. Arguing that the Supreme Court would inevitably have to weigh in on the DACA dispute, the government urged the justices to go ahead and do so now, without waiting for the courts of appeals to rule. Otherwise, the government contended, the Supreme Court might not decide the question until next term, which would require the government to keep DACA in place even though it believes the program is not legal.

In an opinion issued today, a three-judge panel of the 9th Circuit upheld a federal district court’s order requiring the government to keep the DACA program in place. Although the 9th Circuit’s ruling went against the government, the decision likely helped the government’s cause at the Supreme Court, because the justices rarely grant petitions for review before the courts of appeals have ruled; the justices prefer to have the benefit of those courts’ opinions, even if they often do not follow them.

The challengers’ response to the government’s petition is currently due on December 5. Assuming that the court does not extend that deadline, the justices could announce as soon as mid-January whether they will take up the dispute.

This post was originally published at Howe on the Court.

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Argument analysis: Justices struggle with cap on attorney’s fees for successful representation of Social Security disability claimants

Argument analysis: Justices struggle with cap on attorney’s fees for successful representation of Social Security disability claimantsAt Wednesday’s oral argument in Culbertson v. Berryhill, the justices undertook to resolve a split among the courts of appeals as to whether the Social Security Act imposes an aggregate cap of 25 percent on attorney’s fees for successful representation before both the agency and a court, or whether a separate 25 percent cap applies […]

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Argument analysis: Justices struggle with cap on attorney’s fees for successful representation of Social Security disability claimants

At Wednesday’s oral argument in Culbertson v. Berryhill, the justices undertook to resolve a split among the courts of appeals as to whether the Social Security Act imposes an aggregate cap of 25 percent on attorney’s fees for successful representation before both the agency and a court, or whether a separate 25 percent cap applies to attorney’s fees for successful representation before a court.

Daniel Ortiz, representing the petitioner, Richard Culbertson, an attorney who successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court, argued in favor of a separate cap. Anthony Yang, representing the respondent, Nancy Berryhill, the acting social security commissioner, also argued in favor of a separate cap. Because both the petitioner and respondent argued in favor of a separate cap and thus reversal and remand, the Supreme Court appointed Amy Weil to argue in favor of an aggregate cap in support of the judgment below.

Ortiz presented the case as turning on the meaning of two words, “such representation,” in 42 U.S.C. § 406(b). Section 406(b) provides in relevant part:

Whenever a court renders a judgment favorable to a claimant under [Title II of the Social Security Act] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

Ortiz argued that both the dictionary meaning of the word “such” and common sense confirm that the 25 percent cap on attorney’s fees in Section 406(b) references explicitly and solely work done in the court.

Yang similarly focused on the text of Section 406(b). He argued that there is “one and only one operative provision in this case:” Section 406(b)(1)(A), and the text of the statute fully resolves the case.

Undoubtedly, the text of Section 406(b) supports Ortiz and Yang’s position that Section 406(b) imposes a separate cap on attorney’s fees. Indeed, Justice Brett Kavanaugh said to Yang that “you obviously have a good textual argument.”

Weil faced a much more difficult textual argument. Looking at Section 406 as a whole, rather than Section 406(b) in isolation, she argued that the statute “is not a model of clarity. It’s a piecemeal statute that was enacted over a series of amendments over a course of 50 years.” She contended that the best interpretation of the statute as a whole is that it imposes a 25 percent aggregate cap on agency and court fees.

Justice Elena Kagan told Weil she was “struggling with” Weil’s textual argument. “I don’t quite get the argument.” Kavanaugh, who appeared more sympathetic to Weil’s position, nevertheless pointed several times to the missing words “in the aggregate” in Section 406(b) and noted that those words were used in another part of the statute. Weil elicited laughter when she responded: “That is unfortunate. This is not the best written statute.”

If, in deciding the case, the justices focus solely on the language of Section 406(b) in isolation, Ortiz and Yang will undoubtedly win. Oral argument, however, was not limited to the text of the statute. Instead, many of the justices asked about the practical implications of holding that Section 406(b) imposes a separate cap. How much might be awarded in attorney’s fees? Could fees be 50 percent or even reach 75 percent? How would attorneys recover fees that exceed 25 percent? Do attorneys actually recover fees that exceed 25 percent? What happens “in the normal case?” May attorneys look to Equal Access to Justice Act fees to recover fees that exceed 25 percent?

Apart from these practical questions, Justice Sonia Sotomayor raised concerns about whether clients are being adequately represented. She said she was “troubled by these fee disputes.” Was the client in this case advised of the potential conflict of interest and advised to seek separate counsel? Ortiz was unable to provide Sotomayor with any such assurance but did note that the client in this case, Katrina Wood, was “informed of what was happening” and consented.

Justice Ruth Bader Ginsburg asked if there is a cap on the amount that can be taken from the plaintiff’s recovery. Ortiz explained that the agency will set aside (withhold) a maximum of 25 percent of claimants’ past-due benefits for payment of attorney’s fees under both Sections 406(b) and 406(a). This amount was referred to as the 25 percent pool, pot or fund throughout oral argument. Initially, Kavanaugh thought this 25 percent cap was mandated by the statute and that the cap suggested that Congress must have thought that Section 406 imposed an overall limit on attorney’s fees of 25 percent. Ortiz and Yang explained that the statute did not mandate a 25 cap on the pool but that the agency used its discretion to impose the cap.

Sotomayor was “troubled by the idea of attorneys attempting to collect fees directly from their clients.” She asked all three attorneys how attorney’s fees that exceed the 25 percent fund are to be collected. “Are we going to have people garnishing something or attaching something that belongs to clients?” Ginsburg too asked “where would you go” to get the fees that exceed 25 percent.

Ortiz responded that if the claimant can’t pay more than the 25 percent withheld by Social Security, “you would take your lumps and leave. The lawyer at that point would swallow the loss in fees, is typically what happens.” Ortiz contended, however, that in the case of say, Bill Gates, the attorney could go after the client to collect the remaining fee.

Ginsburg wanted to know the practical consequences of the court’s agreeing to a separate cap when an attorney “can’t get more than 25 percent out of the Social Security benefits themselves.” Ortiz responded that the practical implication of the aggregate rule is that attorneys are less willing to take on these cases knowing that they will not be paid for work in court because the pool has been expended.

Justice Neil Gorsuch seemed to find this response compelling. He asked Weil whether a rational Congress could think that in an unusual case it might be necessary to allow attorney’s fees that exceed 25 percent. Weil responded that such a scheme would not be irrational, but that is not the approach that Congress took. Gorsuch also suggested that cases that go to court are the hardest and thus the most in need of incentives for lawyers to represent clients.

Kagan was troubled by the possibility of attorneys’ fees of 75 percent if the case goes to a court of appeals. She asked, “could that possibly have been what Congress wanted?” Yang assured her that the government’s view is that the Section 406(b) 25 percent cap is for all court proceedings, including appeals, and that normally, fees should not exceed 50 percent.

Kavanaugh expressed concern about fees of 50 percent. He noted that attorney’s fees are coming “right of the claimant’s pocket” and “it’s unusual to have a 50 percent chunk out of a claimant’s” pocket.

Justice Stephen Breyer announced that this was a “tough statute” for him. He was concerned that an attorney’s fees are based solely on a claimant’s past-due benefits and that the value of future benefits may far exceed the value of past-due benefits on which the attorney’s fee is based. Gorsuch also asked about the value of future benefits relative to past-due benefits.

Asked by Sotomayor what a lawyer can do to recover attorney’s fees that exceed the 25 percent pool withheld by the agency, Weil offered a couple of potential ways in which attorneys may try to recover fees. Chief Justice John Roberts noted that Ortiz had said that lawyers don’t go after recipients. He wanted to know who is right. Weil contended she was right. She asserted that the lawyers are“not asking for a Pyrrhic victory. They’re asking for the money.”

Editor’s Note: Analysis based on transcript of oral argument.

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A “view” from the courtroom: The investiture of Justice Brett Kavanaugh

A “view” from the courtroom: The investiture of Justice Brett KavanaughToday the Supreme Court held an investiture ceremony for Justice Brett Kavanaugh. Kavanaugh took the oath of office on October 6, shortly after he was confirmed, and he began to participate in the Supreme Court’s cases two days later, so this morning’s six-minute ceremony is largely a formality, at which the court will officially receive […]

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A “view” from the courtroom: The investiture of Justice Brett Kavanaugh

Today the Supreme Court held an investiture ceremony for Justice Brett Kavanaugh. Kavanaugh took the oath of office on October 6, shortly after he was confirmed, and he began to participate in the Supreme Court’s cases two days later, so this morning’s six-minute ceremony is largely a formality, at which the court will officially receive Kavanaugh’s commission; the ceremony, which is followed by a reception, also gives Kavanaugh a chance to celebrate with his family, friends and colleagues.

It hasn’t been that long – less than 18 months – since the court held an investiture ceremony for Justice Neil Gorsuch, so many of the details are familiar to the press corps. We are ushered to our seats in the press section roughly 40 minutes before the ceremony begins, giving us plenty of time to gossip and crane our necks to try to spot the notables in the audience.

From left to right: retired Justice Anthony M. Kennedy, Associate Justices Neil M. Gorsuch, Sonia Sotomayor, Stephen G. Breyer, Clarence Thomas, Chief Justice John G. Roberts, Jr., President Donald J. Trump, First Lady Melania Trump, Associate Justice Brett M. Kavanaugh, Mrs. Ashley Kavanaugh, Associate Justices Samuel A. Alito, Jr. and Elena Kagan. (Fred Schilling, Collection of the Supreme Court of the United States)

Many (if not all) of the judges of the U.S. Court of Appeals for the District of Columbia Circuit, where Kavanaugh was a judge until recently, are in attendance, sitting in the front row of the public section. The group includes Merrick Garland, who was nominated in 2016 by President Barack Obama to fill the seat that Gorsuch now holds.

Sitting several rows ahead of Garland is Mitch McConnell, the Senate majority leader, who famously refused to hold a hearing for Garland. McConnell is accompanied by his wife, Elaine Chao, the Secretary of Transportation.

Senator Lindsay Graham, a staunch defender of Kavanaugh during Kavanaugh’s Senate confirmation hearings, is also in attendance, as is former White House counsel Don McGahn.

Shortly before the ceremony begins, White House press secretary Sarah Sanders is escorted to one of the seats normally reserved for lawyers. Sanders, whose relationship with the press has sometimes been contentious, does not follow the example set by her predecessor, Sean Spicer, who sat with reporters in the press section during the Gorsuch investiture.

The real show gets underway when Kavanaugh and his wife, Ashley, are escorted into the room and Kavanaugh takes a seat in what the court’s Public Information Office explains is the same chair that was “used by Chief Justice John Marshall during the early 19th century” and has since been used “for the investiture of every member of the Court since Lewis F. Powell, Jr., took his Judicial Oath in 1972.”

The next entrants on to the stage are President Donald Trump and his wife, Melania. They are seated in the front row of the seats perpendicular to the bench, normally reserved for the justices’ guests, next to retired Justice Anthony Kennedy, whom Kavanaugh succeeds. Justice John Paul Stevens, who is 98 years old, attended the Gorsuch investiture but is not here today.

The justices themselves then take the bench, but there is a notable absence. Shortly before we came upstairs, the Public Information Office issued a press release announcing that 85-year-old Justice Ruth Bader Ginsburg has been admitted to George Washington University Hospital for “observation and treatment” after falling last night in her office at the court. She has, the court tells us, three broken ribs.

Chief Justice John Roberts welcomes the president and first lady, along with Kennedy. He does not mention Ginsburg’s absence.

The next part of the ceremony draws more interest than we would have expected a few days ago. Matthew Whitaker, whom the president named as acting attorney general yesterday in the wake of Jeff Sessions’ resignation, rises to present Kavanaugh’s commission – the piece of paper formally appointing him to the court – to the justices. Like Deputy Attorney General Rod Rosenstein, who is seated with Whitaker at the table usually designated for lawyers who are arguing at the court, Whitaker is dressed in a formal morning coat, and when he presents the commission his voice is very different from Sessions’ southern drawl.

Scott Harris, the clerk of the Supreme Court, then reads Kavanaugh’s commission aloud. Notably, although it was presented to the court by Whitaker, it was signed before yesterday, by the president and Sessions.

With the ceremony nearing the end, Kavanaugh ascends to the bench to take the judicial oath. On his way to the middle of the bench, where the chief justice is waiting, Kavanaugh passes Gorsuch and Justices Sonia Sotomayor, Stephen Breyer and Clarence Thomas and shakes hands with them. After taking the oath, Kavanaugh then moves toward his seat on the far opposite end of the bench, shaking hands with Justices Samuel Alito and Elena Kagan along the way.

After Roberts issues a “warm welcome” to Kavanaugh, the ceremony is over – although a reception, to which the press corps is not invited, will likely go on for far longer than the six-minute ceremony.

Kavanaugh’s investiture ceremony differs from Gorsuch’s in one other way: It is a lovely fall day in Washington, but Kavanaugh did not make the traditional walk down the front steps of the Supreme Court building. In a statement issued last week, the court’s press office indicated that there would not be any opportunities for the press to take photos today; according to Bloomberg’s Greg Stohr, Kathleen Arberg, the chief public information officer at the court, said that the decision not to include the walk was made out of an “abundance of caution due to security concerns.”

This post was originally published at Howe on the Court.

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Argument analysis: Court hard to read in Sudan service dispute

Argument analysis: Court hard to read in Sudan service disputeThe Supreme Court heard oral argument today in a lawsuit alleging that the Republic of Sudan provided support to the al Qaeda terrorists who bombed the USS Cole in 2000, killing 17 sailors and injuring 42 others. The question before the court was not whether Sudan can be held liable; a federal court has already […]

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Argument analysis: Court hard to read in Sudan service dispute

The Supreme Court heard oral argument today in a lawsuit alleging that the Republic of Sudan provided support to the al Qaeda terrorists who bombed the USS Cole in 2000, killing 17 sailors and injuring 42 others. The question before the court was not whether Sudan can be held liable; a federal court has already entered a default judgment of over $300 million against it. Instead, the justices are considering a threshold question: whether the plaintiffs in the case – the victims and their families – gave the Sudanese government proper notice of their lawsuit when they sent their complaint to the Sudanese embassy in Washington, D.C. After an hour of debate today, the outcome was hard to predict: Although the justices seemed at first to be leaning toward a ruling for Sudan, it was less clear at the end of the argument how they are likely to rule.

Christopher M. Curran for petitioner (Art Lien)

The case before the justices today hinges on the interpretation of the Foreign Sovereign Immunities Act, a federal law that bars most lawsuits against foreign countries in U.S. courts but also contains an exception for countries, like Sudan, that the U.S. government has designated as “state sponsors” of terrorism. For cases in which lawsuits are permitted, the FSIA specifies how the plaintiffs should serve foreign governments with their complaint: The provision now at issue before the Supreme Court instructs plaintiffs to send the summons and the complaint (along with a translation of the documents) to “the head of the ministry of foreign affairs of the foreign state concerned.”

The plaintiffs in this case sent their complaint to the Sudanese ministry of foreign affairs at Sudan’s embassy in Washington. When Sudan didn’t respond by the deadline, a federal district court in Washington entered the default judgment against it. In the process of trying to enforce that judgment, the case wound up in the U.S. Court of Appeals for the 2nd Circuit, which agreed with the plaintiffs that sending the complaint to the foreign minister at Sudan’s embassy in the United States complied with the FSIA. The complaint did not, the 2nd Circuit ruled, need to be served on the foreign minister at the foreign ministry in Khartoum, Sudan’s capital.

Arguing on behalf of the Sudanese government today, attorney Christopher Curran urged the justices to reverse the 2nd Circuit’s decision. The FSIA’s requirement that the complaint be “addressed and dispatched” to the foreign minister means, he said, that it should be sent to the foreign minister at his address in Sudan. If Congress had wanted the complaint to go through an intermediary like the embassy, Curran emphasized, it would have said so specifically, as it did elsewhere in the FSIA.

Some justices disagreed with Curran, suggesting that as a practical matter, it would be more efficient and convenient to serve the foreign minister at Sudan’s embassy in the United States. Who knows, Chief Justice John Roberts wondered aloud, how long it would take the complaint to get to the foreign country; the complaint would be “much more likely” to reach the foreign ministry if it were sent to the foreign country’s embassy in the United States.

Justice Samuel Alito reiterated this idea, asking Curran whether, when Congress passed the FSIA, it thought that sending a set of documents to Khartoum with a request for a return receipt (another requirement imposed by the FSIA) was simple.

Curran parried Alito’s question by responding that Congress knew that, in some cases, the return receipt might never come back from the foreign country. But Alito remained skeptical, observing that Curran’s interpretation of the FSIA would require the receipt to come back “from the far reaches of the world.”

Justice Elena Kagan also seemed dubious, telling Curran that the FSIA does not specify that the mailing be sent to the foreign minister “at his own office.” There seems to be, she suggested, something special about embassies that would lend themselves to receiving complaints in lawsuits against a foreign government. Everyone understands, she continued, that embassies are intended to be a foreign government’s point of contract with the country that hosts them.

Some of Kagan’s colleagues, however, took a contrary view. Justice Sonia Sotomayor noted that she had looked at state laws governing the service of complaints and that virtually all states require service where the defendant lives or does business. The idea, she concluded, is that you serve someone where you are likely to find him – which, for a foreign minister, is not normally an embassy overseas.

Justice Stephen Breyer posited that service on the foreign ministry, rather than the embassy, was preferable to avoid having the complaint fall through the cracks. The Sudanese embassy in Washington, he pointed out, operates with only minimal staffing: one ambassador and one assistant, along with four American employees working in the mailroom. Who knows what’s going to happen to the complaint if it gets sent to the embassy? Breyer queried.

Arguing for the plaintiffs, attorney Kannon Shanmugam echoed Roberts’ suggestion that allowing service by mail at the embassy is perhaps the most reliable method to ensure that the foreign minister actually receives the complaint, which is the concern at the heart of the state laws cited by Sotomayor. Indeed, Shanmugam stressed, when this lawsuit was filed in 2004, it was hard to find someone willing to deliver the complaint to the foreign ministry in Khartoum because the country was consumed by a civil war.

Kannon K. Shanmugam for respondents

In a move that Shanmugam sharply criticized in his briefs, the federal government filed a “friend of the court” brief that sympathized with the plaintiffs in the case but ultimately urged the justices to rule in favor of Sudan. Some justices seemed somewhat perplexed by the government’s filing, with Alito and Justice Brett Kavanaugh asking Assistant to the U.S. Solicitor General Erica Ross to describe how exactly the government would be harmed by a ruling for the plaintiffs.

Ross explained that the U.S. government has many embassies, so that it would be problematic to accept complaints at all of them, not to mention the U.S. consulates that could also be affected by the court’s decision.

It was not clear that the justices were satisfied with the government’s rationale, but on the other hand Kavanaugh and Justice Neil Gorsuch also seemed to suggest that a ruling against the plaintiffs might, in essence, be the lesser of two evils, because plaintiffs could still serve foreign governments through the U.S. State Department (under another provision of the FSIA) even if service by mail at the foreign ministry proved unsuccessful.

Shanmugam’s chances seemed to wane when he acknowledged that he was not aware of any case in which service through the State Department had not worked. But the momentum somehow seemed to shift after Alito asked Shanmugam whether, if the plaintiffs were to lose and had to serve Sudan through the State Department, the Sudanese government would make an appearance in the proceedings.

Shanmugam emphasized that the case would “have to start over,” and during his rebuttal Curran assured the justices that Sudan would “appear and defend itself.”

But that response prompted the justices to pepper Curran with questions that boiled down to an inquiry into what Sudan had known about this lawsuit against it, and when it knew it. In other words, had Sudan actually failed to learn about the lawsuit in time, or was it using the service question to try to evade the judgment?

Alito seemed to think it was the latter. Had the Sudanese government forgotten about the USS Cole incident, he asked Curran, or did it not know that the litigation was going on?

Justice Ruth Bader Ginsburg chimed in: Did Sudan have notice of the lawsuit?

Curran confirmed that someone at the Sudanese embassy had known about the lawsuit, although it was less clear whether anyone at the foreign ministry in Khartoum had known about it.

When did they know about it, Breyer asked?

Curran answered that, as far as he could tell from the record, the embassy employee had known about it after the motion for the default judgment was filed, but before the district court actually entered the default judgment.

With his time running out, Curran told the justices that the plaintiffs’ proposed rule was “broad and unpredictable” and “leaves too much creativity for plaintiffs and courts.” Five justices may well agree with him, but with the tide seeming to change at the end the case may wind up being much closer than expected.

If the argument in the courtroom was largely a dry discussion of legal and practical issues, the scene outside the Supreme Court building after the argument was more emotional. Two service members who were on the ship when it was bombed had come to Washington to watch the argument, and they were joined by the family members of three sailors who were killed in Yemen.

The named plaintiff in the case, Rick Harrison, described how he and his shipmates “spent 19 days fighting for our lives and fighting for the ship.” Harrison suffered a fractured spine, a major concussion, and damage to his knees.

Another service member who was on board the Cole, David Morales, emphasized that the lawsuit was not about the money, but instead about accountability. “To see our country” siding with Sudan “is very painful,” he said. Morales carries a piece of the Cole’s hull with him at all times to remember the day.

Lorrie Triplett lost her husband, Andrew, in the bombing. She told reporters that her “emotions were so high” and she didn’t “understand why we have to endure such pain.”

A decision in the case is expected sometime next year.

This post was originally published at Howe on the Court.

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Argument analysis: Hating on Chevron

Argument analysis: Hating on <em>Chevron</em>It wasn’t until the very end of her rebuttal time in BNSF Railway Company v. Loos on Tuesday morning that BNSF Railway’s counsel, Lisa Blatt, finally mentioned the dreaded C-word. “I hate to cite it, but I will end with Chevron,” Blatt told the justices. “I mean, [the respondent] has to win under the plain […]

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Argument analysis: Hating on <em>Chevron</em>

It wasn’t until the very end of her rebuttal time in BNSF Railway Company v. Loos on Tuesday morning that BNSF Railway’s counsel, Lisa Blatt, finally mentioned the dreaded C-word. “I hate to cite it, but I will end with Chevron,” Blatt told the justices. “I mean, [the respondent] has to win under the plain language for you to affirm.”

Chevron,” of course, refers to Chevron U.S.A. v. Natural Resources Defense Council, the 1984 case that held that federal courts should defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. It’s a decision that has emerged as a lightning rod for criticism in recent years — including from the justices themselves. Justice Clarence Thomas has written that “Chevron deference raises serious separation-of-powers questions”; Justice Neil Gorsuch has suggested that the Chevron is “a judge-made doctrine for the abdication of judicial duty”; and Justice Brett Kavanaugh has expressed his own doubts about Chevron deference. There do not appear to be five votes to jettison Chevron just yet, but yesterday’s argument augurs a fate that is, in some ways, even worse: Sophisticated litigants may simply ignore Chevron even if the justices do not formally overrule the decision.

If not for the writing on the wall with respect to Chevron, one might have thought that the deference doctrine would have been among BNSF Railway’s best arguments. The question in the case is whether a payment to a railroad employee for lost wages on account of a personal physical injury is subject to employment taxes under the Railroad Retirement Tax Act. BNSF says “yes”; respondent Michael Loos argues “no”; and the statute in its current form says nothing specifically with regard to lost wages. Meanwhile, a 1994 IRS regulation states that “pay for time lost” is taxable under the RRTA — an interpretation that clearly favors BNSF. As long as the statute is ambiguous and the IRS’s interpretation is reasonable, then the Chevron doctrine would seem to be outcome-determinative.

But you wouldn’t know it from Blatt’s presentation until her very last breath. And Rachel Kovner, an assistant to the solicitor general, who appeared as a friend of the court in support of BNSF, likewise ignored the Chevron issue until a moment before she sat down. That lack of emphasis was no doubt strategic. Both Blatt and Kovner are seasoned Supreme Court practitioners who presumably concluded that Chevron arguments have become too toxic in the current jurisprudential climate. So although Chevron was scarcely spoken of during yesterday’s argument, that in itself speaks volumes about the future of agency deference.

As for the case at hand, the justices’ questions gave us a glimpse of the issues most likely to factor into their final decision. Gorsuch expressed interest in the straightforward textual argument adopted below by the U.S. Court of Appeals for the 8th Circuit: The RRTA imposes taxes on “compensation”; the statute defines “compensation” as “money remuneration paid to an individual for services rendered as an employee”; and — in Gorsuch’s words — “I think of a judgment of the court for negligence … awarded involuntarily against the employer’s consent is something very different.” Justice Elena Kagan picked up the textualist thread later on. “[O]ne of the things that strikes me as a little bit odd about an award like this fitting into the ‘services rendered’ language is that, unlike most kinds of compensation that you can think of, you could get this if you were injured your first hour on the job without having worked at all, without having rendered any services,” Kagan observed. Both Blatt and Kovner sought to reconcile their clients’ shared interpretation with the statutory text, but the fact that the justices repeatedly returned to this point suggests that they might not have been totally convinced.

Justice Sonia Sotomayor, meanwhile, appeared to be concerned about the practical implications of taxing lost-wage awards, particularly given that damages for pain and suffering and past medical expenses are by all accounts exempt. “[I]n most state law verdicts, there is just a payment,” Sotomayor noted. “It’s a general verdict. How are you going to figure out which part of the award is subject to the [exemption]?” Blatt said that the court should apply “a presumption that a personal injury award, the entire amount, is treated for lost time” and thus subject to the RRTA unless the parties agree to a different allocation. That is evidently the rule for computing pension benefits under the companion Railroad Retirement Act, though as David Frederick, counsel for Loos, would go on to emphasize, tax statutes and benefit statutes are not always interpreted the same way.

Kavanaugh, for his part, pressed Blatt to explain a series of statutory changes that might seem to undermine BNSF’s position. Prior to 1975, the statute explicitly included “pay for time lost” in its definition of taxable “compensation.” But it amended the statute that year and again in 1983 to excise any reference to lost wages. Blatt suggested that Congress removed the reference to “time lost” because it didn’t think it was necessary. Blatt also noted that the statute now explicitly excludes workers’ compensation and certain sickness and disability payments, and “those exceptions wouldn’t be in there unless they were otherwise included within the operative definition.”

Frederick urged the justices to remain focused on the text. He proposed a “pretty straightforward” test to determine whether payments are subject to tax under the RRTA. “You ask the question: Is the work and the pay here, the compensation, for services rendered? And if it’s not, which clearly it couldn’t be here because Mr. Loos was unable to render services, then it is outside the realm of the RRTA.” Workers’ compensation, according to Frederick, would fall within his definition of “compensation” because the employer contributes to an insurance fund for every period that the employee works. The same for sick and vacation pay: Employees generally accrue sick and vacation days the more they work, so “those are all for the services that you rendered as an employee.”

The justices who appeared to be most resistant to Frederick’s argument were Kavanaugh and Justice Stephen Breyer. Kavanaugh pointed to a 1946 case, Social Security Board v. Nierotko, that held that back pay awarded by the National Labor Relations Board to an employee who was wrongfully discharged for union activity qualified as “remuneration … for services performed by an employee” under the Social Security Act. Frederick argued that Nierotko is not controlling: The decision in Nierotko addressed the computation of social security benefits rather than the computation of tax liability, and the Supreme Court has subsequently said that the same language need not be construed symmetrically for benefits purposes and for tax purposes. Breyer, for his part, did not seem entirely convinced: “We’re not saying it’s necessary, but it’s a plus to treat the taxing statutes symmetrical with” the benefits statutes, Breyer responded. Frederick acknowledged that lost-wages awards conceivably could make railroad employees eligible for more in retirement benefits, though he added that “as a practical thing,” it’s rarely the case that the award would have any effect on a railroad employee’s pension.

Frederick also noted two points that, while not directly relevant to the merits of the case, may affect the justices’ evaluation of the equities. The first is that the district court explicitly instructed the jury — at BNSF’s request — that Loos’ award would not be subject to income tax. Although RRTA employment taxes are not technically “income” taxes, some members of the court might chafe at the idea that BNSF — after requesting and receiving that instruction — then turned around and argued that a portion of Loos’ award should be subject to a different type of federal tax. Second, as Frederick emphasized at the very end of his argument time, BNSF’s position in this case would mean that both it and its employees pay more in RRTA taxes. BNSF says that it’s worried about the solvency of the Railroad Retirement System, notwithstanding the Railroad Retirement Board’s statement that the system is financially secure for the next 29 years, but Frederick suggested a more sinister motive. According to Frederick, the railroad is seeking to gain “bargaining leverage” in settlement talks with injured employees because if employees agree to settle rather than take their cases to trial, the parties can allocate all of the settlement amount to pain and suffering rather than lost wages and thereby avoid RRTA taxes. Gorsuch and Justice Ruth Bader Ginsburg both picked up this point in their questioning of Blatt.

By the end, at least four justices — Ginsburg, Sotomayor, Kagan and Gorsuch — had asked questions that seemed to advance Loos’ case, while two justices — Breyer and Kavanaugh — had asked questions more sympathetic to BNSF. Predicting the ultimate vote alignment after oral argument is perilous, but one thing seems reasonably clear: Whatever tips the scales, it won’t be the Chevron doctrine.

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Reschedule Watch

Reschedule WatchJohn Elwood reviews Monday’s relists. If you’re reading a blog post that is entirely devoted to cases on the Supreme Court’s docket that haven’t even been granted yet, chances are you’re a law nerd. Thus, I will go ahead and make the heroic assumption that if you’re reading this, you already know about the six […]

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Reschedule Watch

John Elwood reviews Monday’s relists.

If you’re reading a blog post that is entirely devoted to cases on the Supreme Court’s docket that haven’t even been granted yet, chances are you’re a law nerd. Thus, I will go ahead and make the heroic assumption that if you’re reading this, you already know about the six relisted cases the court agreed on Friday to review. I will likewise assume that you already know that the court denied review outright in the seven “net neutrality” relists – although you may not yet appreciate that in doing so, the court adopted the position advanced by just two lonely attorneys against legions of lawyers (including the “Tenth Justice”) advocating either Munsingwear vacatur or plenary review. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the respondents in this case.] That is all noteworthy, but we at Relist Watch like to go even more obscure. As I said, we like our shadow docket shadowy.

Thus, we will begin Relist Watch the same improbable way we did last week: talking not about relisted cases but rescheduled ones. What’s the difference? When the Supreme Court reschedules a case, that case is moved on the court’s docket from one of the justices’ private conferences to the next one before the justices even have the opportunity to discuss it. By contrast, a relisted case is moved from one conference to the next after they have discussed it. I’ve linked dockets of a rescheduled case and a relisted case so you can see how both work.

Last week we remarked that Justice Sonia Sotomayor appeared to have repeatedly rescheduled Townes v. Alabama to give her the time to prepare an opinion respecting denial in the case. Justices traditionally have relisted cases in which they are writing an opinion respecting (or dissenting from) denial of cert. By rescheduling a case instead of relisting, the author of a draft opinion (or any other document – say, a memorandum to the other justices) would have the opportunity to prepare it fully before the case is considered by the entire court. Some bonehead speculated on Twitter that a justice might proceed by rescheduling rather than relisting because he or she suspects the case won’t interest the rest of the court, so there’s no point bringing it up repeatedly by relisting it; alternatively, rescheduling the case repeatedly allows the justice to make the best argument possible the very first time the case is considered at conference.

That long windup is a helpful introduction to this week’s relists, because every one of the relisted cases has been rescheduled, most of them repeatedly. Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent. Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty. The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme – under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death – violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death. The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty. But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida, 17-9284, Philmore v. Florida, 17-9556, Tanzi v. Florida, 18-5160, Reynolds v. Florida, 18-5181, Franklin v. Florida, 18-5228, Grim v. Florida, 18-5518, and Johnston v. Florida, 18-5793. The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant – or whether Sotomayor will be filing yet another dissent from denial on this issue. And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

That’s all we have for this week. Tune in this time next week to find out whether the court will be adding to its capital docket. Thanks again to Tom Mitsch for compiling the relists.

 

New Relists

Guardado v. Florida, 17-9284

Issues: (1) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi; (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst violations contravenes the Supreme Court’s decisions holding that harmless-error review cannot be “automatic and mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Philmore v. Florida, 17-9556

Issues: (1) Whether Florida violated the petitioner’s and similar situated defendants’ Eighth Amendment rights, and their equal protection and due process rights as guaranteed by the 14th Amendment, by denying the opportunity for full briefing of relevant, life-or-death, Hurst v. Florida issues; and (2) whether the Eighth and 14th Amendments require the petitioner and other similarly situated defendants to receive Hurst relief based on the Supreme Court’s decision in Caldwell v. Mississippi in light of evolving standards of decency, equal protection, and the Eighth Amendment’s prohibition against cruel and unusual punishment when the advisory panel at the penalty phase of trial was repeatedly instructed in violation of Caldwell.

(relisted after the November 2 conference)

 

Tanzi v. Florida, 18-5160

Issues: (1) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi; and (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst violations contravenes the Supreme Court’s decisions holding that harmless-error review cannot be “automatic and mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Reynolds v. Florida, 18-5181

Issues: (1) Whether the Florida Supreme Court’s plurality decision rejecting the petitioner’s Caldwell v. Mississippi claim is error when the jury was affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility; and (2) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi.

(relisted after the November 2 conference)

 

Franklin v. Florida, 18-5228

Issues: (1) Whether the per se harmless-error rule adopted by the Florida Supreme Court—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, recommended the death penalty by a unanimous vote, rather than a majority vote—violates the Supreme Court’s precedents prohibiting state courts from mechanically denying federal constitutional claims on harmless-error grounds without first conducting an individualized review of the record as a whole; and (2) whether the per se harmless-error rule violates the Eighth Amendment doctrine discouraging reliance on decisions made by jurors whose sense of responsibility for a death sentence was diminished.

(relisted after the November 2 conference)

 

Grim v. Florida, 18-5518

Issues: (1) Whether a violation of Hurst v. Florida can be ruled harmless beyond a reasonable doubt based solely on a pre-Hurst “advisory” jury’s unanimous vote to recommend the death penalty to the judge in a case in which the advisory jurors heard none of the available mitigating evidence; (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst claims violates the Eighth Amendment in light of Caldwell v. Mississippi by relying exclusively on the number of advisory jurors who recommended the death penalty to the judge, when those jurors were repeatedly instructed that the judge alone, notwithstanding the recommendation of the majority of jurors, would make the findings of fact required for a death sentence under state law and bear ultimate responsibility for a death sentence; (3) whether the Florida Supreme Court’s per se harmless-error rule for Hurst claims, which relies entirely on pre-Hurst advisory jury recommendations that did not fulfill Sixth Amendment requirements as to any element of a Florida death sentence, contradicts Sullivan v. Louisiana and Neder v. United States; and (4) whether, when a defendant proffers uncontested evidence and requests a hearing on whether a state could meet its burden of establishing that a Hurst violation was harmless beyond a reasonable doubt, the Florida Supreme Court’s summary application of its per se harmless-error rule impermissibly shifts the burden of proof and contravenes the Supreme Court’s admonitions that harmless-error review cannot be “automatic or mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Johnston v. Florida, 18-5793

Issues: (1) Whether the Florida Supreme Court’s holding that a Hurst error is per se harmless when a jury issues a generalized unanimous recommendation for death, after receiving instructions that the judge would make both the findings of fact necessary for a death sentence and render the final decision on the death penalty, contravenes the Eighth Amendment under Caldwell v. Mississippi; and (2) whether the refusal of the Florida courts to consider the proffered scientific and sociological evidence to refute the notion of harmless Hurst error in this case resulted in violations of due process under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 2 conference)

 

Returning Relists

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2 and November 9 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2 and November 9 conferences)

 

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(relisted after the September 24, October 5, October 12, October 26 and November 2 conferences)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5, October 12, October 26 and November 2 conferences)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5, October 12, October 26 and November 2 conferences)

 

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

(relisted after the October 5, October 12, October 26 and November 2 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26 and November 2 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26 and November 2 conferences)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26 and November 2 conferences)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26 and November 2 conferences)

 

Stuart v. Alabama, 17-1676

Issue: Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood-alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.

(relisted after the October 26 and November 2 conferences)

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Justices call for additional briefs in dispute about “cy pres” class-action settlements

Justices call for additional briefs in dispute about “cy pres” class-action settlementsIt looks like we’ll have to wait a little longer than expected to find out what the justices think about “cy pres” class-action settlements: On Tuesday afternoon the justices called for additional briefing in Frank v. Gaos, a case argued last week in which the Supreme Court could address the propriety of those settlements. As […]

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Justices call for additional briefs in dispute about “cy pres” class-action settlements

It looks like we’ll have to wait a little longer than expected to find out what the justices think about “cy pres” class-action settlements: On Tuesday afternoon the justices called for additional briefing in Frank v. Gaos, a case argued last week in which the Supreme Court could address the propriety of those settlements. As I explained in my preview, a “cy pres” settlement is a common device in class actions that award trivial sums to a large class of plaintiffs. Specifically, when the costs of identifying class members and distributing proceeds make it difficult to identify all the plaintiffs, courts commonly distribute all or a portion of the settlement proceeds to some public-interest recipient thought to serve the interests of the plaintiffs in the class action. The court granted review in this case to consider the propriety of those arrangements.

As I wrote in my post about the argument, discussion on the merits was in large part superseded by the justices’ concern that the plaintiffs in this case may not have “standing” to bring the class action under the Supreme Court’s 2016 decision in Spokeo v. Robins. The Spokeo court held that a plaintiff in federal court cannot establish standing by alleging a violation of a federal statute; the plaintiff must identify some cognizable real-world harm. The district court’s order approving the settlement in this case was issued before the decision in Spokeo; the court found that the plaintiffs had standing solely because of the allegation that the defendants had violated a federal statute. Thus, the district court did not identify any cognizable harm that would make the case justiciable in a post-Spokeo regime.

Although the parties did not raise the problem, the solicitor general’s amicus brief emphasized it and suggested that the justices might wish to send the case back to the court of appeals for consideration of the issue. At the argument, all seemed to agree that the district court’s reasoning could not withstand scrutiny under Spokeo. The point of disagreement seemed to be whether there was any prospect that the plaintiffs could identify some new argument that would satisfy Spokeo at this late date. Some of the justices (including Justice Samuel Alito, the author of the court’s opinion in Spokeo) seemed to think the allegations could not possibly satisfy Spokeo, and that the Supreme Court might dismiss the case on that basis. Others (including Justice Ruth Bader Ginsburg) suggested that the lack of briefing made the question sufficiently doubtful to warrant sending the case back to the lower courts for further consideration.

Yesterday’s brief order (issued without dissent) suggests that the justices compromised: They will neither dismiss the case out of hand nor send it back to the lower courts for further deliberation. Rather, they decided to call for additional briefs on the question of justiciability, which would help to ensure that they are fully informed before addressing the question in the first instance. They did not call for reargument, though, as they did last week in Knick v Township of Scott. That means that the case will be ripe for decision as soon as the new briefs arrive. Because the new round of briefing will be complete before Christmas, the justices should have plenty of time to come to a decision before the end of the term next June.

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Argument analysis: Yukon-Charley continues to commandeer gray cells

Argument analysis: Yukon-Charley continues to commandeer gray cellsAlaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service’s ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon’s attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents […]

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Argument analysis: Yukon-Charley continues to commandeer gray cells

Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service’s ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon’s attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.

This is the second time the justices have had to wrestle with a section of ANILCA entitled “maps,” situated within a title that specifies Congress’ purposes, provides definitions and addresses boundary maps and land management status. Section 103(c) — a veritable Rubik’s Cube of legislative drafting — provides that lands conveyed to the state, native corporations or private parties are not subject to “regulations applicable solely to public lands” within Alaska conservation system units. According to Findley, this provision immunizes 18 million acres of nonpublic lands and waters from what he calls “extraterritorial” regulation by the Park Service.

Mere seconds into the argument, Justice Sonia Sotomayor lobbed the first question Findley’s way: “ANILCA in many places puts statutory duties on the government. … If the Park Service can’t do what you say, any regulation on these rivers, how can the secretary fulfill the statutory duties?” Findley replied that the service could fulfill its duties by recognizing that “ANILCA was not just a park enabling statute,” but instead was designed to resolve “multiple land use disputes within the state of Alaska.”

Not satisfied, Sotomayor expressed concern that the Park Service can’t protect rivers – many of which are specifically named by Congress in the provisions that created Yukon-Charley and other preserves in Alaska – if it can’t regulate activities on those rivers. Findley stated that it was enough to preserve the federally owned public lands surrounding the rivers, which in turn would protect the watersheds, but that the state-owned submerged lands underlying the navigable rivers, and the waters flowing through those rivers, were off limits.

Justice Elena Kagan jumped into the fray. She pushed Findley: “You don’t think it makes any difference if … both banks of a river are public lands, but still the federal government cannot regulate the river running through those lands?”

“The federal government may; the Park Service may not,” Findley asserted. “That was a power that was not delegated to the Park Service.”

Chief Justice John Roberts was perplexed by that response. “So an agency like [the Environmental Protection Agency] is — is fully empowered to regulate the waters?” Roberts asked.

Findley replied, “Yes, Your Honor, that’s exactly right. The EPA, the Coast Guard, any other federal, criminal — all of these still apply. It’s just simply that extra layer of Park Service regulation that was not supposed to apply once these lands and waters were surrounded by the ANILCA parks.”

At this point, Justice Samuel Alito was ready for a deep dive into statutory interpretation. He asked Findley point blank, “Which sentence of Section [103(c)] do you think wins this case for you?”

Findley replied, “The second sentence does the most work, but the second sentence needs to be read in conjunction with all three sentences and in conjunction with the context of the statute.” To which Alito quipped, “I’ve burned up an awful lot of gray cells trying to put together the pieces of this statute.”

Findley’s belief that the second sentence made state-owned submerged lands “not a portion of the park,” prompted Alito to remark that “whether something can be within a unit but not be a portion of the unit is kind of a nice question.”

Findley offered that “the function of the word ‘solely’ is to distinguish between park management regulations and the regulations Mr. Chief Justice was talking about,” namely, Coast Guard and EPA regulations.

Alito took one more crack at it: “I understand that lands is defined by ANILCA to include water and waters and interests therein, but the second sentence after referring to lands refers to a conveyance, which I take it means the transfer of title.” He added that “nobody really has title to navigable waters” – including the United States, casting doubt on whether the navigable waters could be considered “public lands.” If not, it follows that the hovercraft ban is not a regulation applicable solely to public lands within the conservation unit and thus the ban would be allowed under Section 103(c).

Kagan confessed that she, too, was struggling with Section 103(c). She asked Findley, “How do I have to manipulate this language to get it to mean what you want it to mean?” Findley admitted that, “perhaps in hindsight,” Congress could have been clearer regarding management authorities over land and water within park units in Alaska.

Alaska’s Assistant Attorney General Ruth Botstein, arguing as a “friend of the court” in support of Sturgeon, said, “Understanding ANILCA requires understanding remote Alaska,” adding that Alaskans live along rivers and that, when it comes to transportation, “Our rivers are our only roads.” This theme picked up on a riff started by Findley: “That’s how they go to vote. That’s how to buy groceries.” According to Botstein, the Supreme Court should reject the Park Service’s “continuing attempts to commandeer control of Alaska’s navigable waters.”

Roberts immediately remarked that “‘commandeer’ is strong language.” Yet Roberts seemed sympathetic to the unique importance of traveling by waterways in Alaska, and got a few chuckles when he remarked that, although the government “may think the hovercraft is unsightly, … if you’re trying to get from point A to point B, it’s pretty beautiful.”

The nation’s most iconic national park, Yellowstone, was brought up on several occasions as a reference point. Justice Stephen Breyer wondered whether a ban on bonfires within the boundaries of Yellowstone National Park meant no bonfires on private inholdings within Yellowstone, too, but then withdrew the question.

For Botstein, Yellowstone provided a nice contrast to Alaska’s preserves. “[W]hen Congress created different national parks, it used vastly different jurisdictional language,” said Botstein. “When Congress created Yellowstone, which Justice Breyer mentioned, this is what it said: The Yellowstone National Park, as its boundaries now are defined or as they may hereinafter be defined or extended, shall be under the sole and exclusive jurisdiction of the United States.” She argued that any interpretation of Section 103(c) that would give “sole and exclusive federal jurisdiction” to the Park Service does “violence to Congress’s differing intent” in ANILCA.

Deputy Solicitor General Edwin Kneedler agreed that the Park Service does not have carte blanche over nonpublic lands in Alaska or elsewhere, but argued that the Park Service can regulate under ANILCA as well as under general authorities spelled out in other statutes.

Justice Brett Kavanaugh expressed skepticism that Congress could have intended to give the Park Service “plenary authority over all the navigable rivers.” Although Kneedler refused to characterize it as “plenary,” he stuck to his position that the Park Service had authority to manage navigable waters within park units to preserve the value of rivers and streams within them. Pointing to a 1976 statute that grants authority to regulate boating throughout the National Park System, Kneedler said that it would turn ANILCA — “a very water-centric statute”  — “upside down” if the Park Service could not regulate rivers within the boundaries of conservation units.

On one point, Kneedler and Findley came close to agreement. Findley equated the Nation River to an inholding, which would be off limits to Park Service rules. Kneedler didn’t go that far, but he conceded that the Park Service could not grant access to someone’s private inholding for subsistence uses, which are specifically prioritized in ANILCA, or for other purposes unless it acquired the inholding.

Findley’s rebuttal clothed the issue in federalism, emphasizing “the state’s authority to retain primary control over the use of its rivers.” He acknowledged that the United States has control, through the Coast Guard and the EPA, over the “quality of the river,” but under the special provisions of ANILCA, he said, the Park Service does not.

Given the statutory ambiguities, readers may wonder why the Park Service’s reading of ANILCA and its own enabling acts would not be entitled to deference from the Supreme Court under Chevron v. Natural Resources Defense Council, which requires a court to defer to an agency’s reasonable interpretation of an ambiguous statute that the agency administers. Curiously, Chevron wasn’t mentioned, not even once, not even by the government’s lawyer (though it does appear in a footnote of the government’s brief). That may be an indication of things to come, with the government being unwilling to put the Chevron doctrine on display for fear that the court will chip away at it – or overturn it altogether.

As for the fate of the hovercraft users on the Nation River, that too is unclear. Reading the tea leaves is dangerous, but the justices’ questioning suggests that Sotomayor and Kagan will side with the Park Service while Roberts and possibly Alito and Kavanaugh will be inclined to rule for Sturgeon, leaving four votes up for grabs.

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Opinion analysis: Federal age-discrimination law applies to all public employees

Opinion analysis: Federal age-discrimination law applies to all public employeesThe first opinion of the term is here, and it is unanimous: The Age Discrimination in Employment Act applies to all public employers, including those with fewer than 20 employees. This is a win for two firefighters, John Guido and Dennis Rankin, who may now pursue their discrimination case against the Mount Lemmon Fire District. […]

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Opinion analysis: Federal age-discrimination law applies to all public employees

The first opinion of the term is here, and it is unanimous: The Age Discrimination in Employment Act applies to all public employers, including those with fewer than 20 employees. This is a win for two firefighters, John Guido and Dennis Rankin, who may now pursue their discrimination case against the Mount Lemmon Fire District.

The case turned on the ADEA’s definition of “employer”:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.

Justice Ginsburg with opinion in Mount Lemmon Fire District v. Guido (Art Lien)

The fire district argued that the numerical limitation in the first sentence of that definition applies to it, because it is a “person engaged in an industry affecting commerce.” But the court rejected that argument in an opinion by Justice Ruth Bader Ginsburg, instead holding that the definition’s second sentence adds additional categories of qualifying employers – including states and their political subdivisions – without any numerical limitation. (Justice Brett Kavanaugh did not participate in the case, which was argued before he joined the court.)

Ginsburg began her opinion for the court by describing the evolution of the definitions of “employer” in both the ADEA and Title VII of the Civil Rights Act. Originally, those definitions were similar, and neither included public employers or small private employers. But in 1972, when Congress amended Title VII to include public employers, it did so in a way that unambiguously applied the statute’s existing numerical limitation to that new context – specifically, it amended the definition of “person” to include public employers. Two years later, Congress took a different approach when it amended the ADEA by adding that “employer” “also means” a state or municipal employer. And although the court concluded that these different approaches meant the ADEA diverged from Title VII with respect to its coverage of small public employers, the court concluded that “the better comparator” was the Fair Labor Standards Act, which Congress also amended in 1974 to include public employers of all sizes.

The court also rejected the fire district’s argument that the words “also means” perform a clarifying function by emphasizing that the first sentence in the statute includes public employers, rather than adding new categories of covered employers. The fire district’s reading, Ginsburg wrote, is inconsistent with both the court’s own precedent and Congress’ use of “also means” in other statutory contexts. Moreover, the fire district’s reading would yield an odd result in that it would apply the 20-employee threshold to a “state or political subdivision” but not to the immediately preceding clause, which covers “any agent” of a person engaged in an industry affecting commerce.

The opinion ends by rejecting the fire district’s argument that ADEA liability might endanger small public employers’ operations. “No untoward service shrinkages have been documented,” Ginsburg noted, despite the fact that the Equal Employment Opportunity Commission has consistently maintained that the ADEA applies to small state and local employers, and many state age discrimination laws also cover those employers.

This outcome seemed likely following oral argument, and the court’s unanimity can probably be explained by the fact that both textual and purposive approaches to statutory interpretation pointed toward the same result. Still, for those looking for a more counter-intuitive headline, perhaps it is notable that the Supreme Court just unanimously sided with employees and the U.S. Court of Appeals for the 9th Circuit, which was alone among the circuit courts in holding that the ADEA applies to small public employers.

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Argument analysis: Relatively subdued court is divided in lethal-injection case

Argument analysis: Relatively subdued court is divided in lethal-injection caseThe Supreme Court heard oral argument this morning in the case of Russell Bucklew, who was scheduled to die by lethal injection earlier this year. The court has already rejected several broad challenges to the constitutionality of lethal injection as a method of execution, but the justices put Bucklew’s execution on hold back in March […]

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Argument analysis: Relatively subdued court is divided in lethal-injection case

The Supreme Court heard oral argument this morning in the case of Russell Bucklew, who was scheduled to die by lethal injection earlier this year. The court has already rejected several broad challenges to the constitutionality of lethal injection as a method of execution, but the justices put Bucklew’s execution on hold back in March so that they could consider his argument that executing him by lethal injection would violate the Constitution’s ban on cruel and unusual punishment because, as a result of a rare medical condition, he is likely to undergo a “gruesome” and “excruciating” death even if the execution goes as planned. The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew.

Robert Hochman for petitioner (Art Lien)

Bucklew has been on death row in Missouri for 20 years for the 1996 murder of Michael Sanders, who at the time was living with Stephanie Ray, Bucklew’s former girlfriend. As part of the same series of events, Bucklew kidnapped and raped Ray, and he wounded a state trooper during a shootout. Bucklew has a condition known as cavernous hemangioma, which causes fragile blood-filled tumors to grow in his head, neck and throat.

One of the main points of contention before the court was Bucklew’s assertion that, if the state follows its lethal-injection protocol, he could wind up choking on his own blood and in extreme pain. Bucklew’s attorney, Robert Hochman, told the justices that the team carrying out the execution could have to try to administer the three drugs used in the lethal-injection protocol through Bucklew’s femoral vein – in essence, Hochman stressed, “carving up” Bucklew’s leg for up to 15 minutes. More broadly, Hochman complained, the execution team would not have critical information about Bucklew that would allow it to address his particular needs and potentially alleviate his pain, nor would Bucklew and his lawyers have information about the team’s training and experience. Hochman urged the court, at the very least, to invalidate the lower court’s ruling and send the case back for more fact-finding on whether the state’s lethal-injection protocol can be changed to reduce the likelihood that Bucklew will suffer.

Justice Elena Kagan asked only a few questions, but she appeared receptive to Bucklew’s arguments. She observed that the court’s earlier opinions rejecting challenges to lethal injection had emphasized the need to defer to states in determining the appropriate method of execution. But when state officials make decisions about what method of execution to use, she stressed, they are looking at the big picture and prisoners generally, rather than thinking about individual inmates. And that means, she suggested, that the state isn’t entitled to the same kind of deference here, because the state wasn’t thinking about an inmate like Bucklew.

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state. He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.” When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

D. John Sauer, Missouri state solicitor (Art Lien)

Sauer pushed back against the idea that Bucklew was likely to suffer at all if he were executed by lethal injection, emphasizing that Bucklew has suffered from cavernous hemangioma his entire life but only raised this challenge shortly before his execution. Bucklew’s real goal in pressing this case, Sauer told the justices, is delay – indeed, this is Bucklew’s third “method of execution” challenge.

Some of the court’s more conservative justices appeared to side with the state on this issue, as well as on the second point of contention in the case: whether Bucklew needs to suggest, and has in fact offered, another method of execution that will be less painful than lethal injection. Arguing for Bucklew today, Hochman maintained that inmates must suggest an alternate method of execution only when they are arguing that a method of execution is always unconstitutional (known as a “facial” challenge), rather than arguing, as Bucklew is here, that a method of execution is unconstitutional in his particular case (known as an “as-applied” challenge). But in any event, Hochman continued, other states have adopted lethal gas – the alternative Bucklew has proposed — as a method of execution, even if there are details about lethal-gas executions to be worked out.

Justice Neil Gorsuch, who spoke up very little during the oral argument, disagreed with Hochman. When it comes to suggesting an alternative method of execution, he asked, why wouldn’t the court do the exact same analysis for an as-applied challenge as it would do for a facial challenge?

Chief Justice John Roberts also pushed back, telling Hochman that the Eighth Amendment prohibits the unnecessary infliction of pain. To show that something is unnecessary, he explained, an inmate needs to demonstrate that there is a less painful alternative, and it’s impossible to make that showing with a method of execution that has never been used.

Sauer agreed with Roberts, telling the justices that Bucklew could have suggested already-tested methods of execution, such as hanging or the firing squad, instead of lethal gas. But he didn’t, Sauer stressed, because his real purpose was just to delay his execution.

Justice Sonia Sotomayor took a different view, telling Sauer that the court imposed the requirement that an inmate challenging the constitutionality of a particular method of execution propose another method to avoid a back-door attack on the death penalty itself. (The idea, as Roberts noted today, is that the death penalty itself is constitutional, so if an inmate is going to argue that one method is unconstitutional because it is too painful, there has to be another, less painful method that is constitutional. Sotomayor also had sharp words for the rule itself, which the Supreme Court adopted before she was a justice, observing that she didn’t know “where the Court made up this alternative remedy idea.”) But when one inmate is attacking the use of a method of execution in his specific case, she continued, there shouldn’t be any need for the inmate to suggest another method.

Justice Stephen Breyer also appeared receptive to Bucklew’s argument. The fact that a method of execution hasn’t been used before is a strike against it, he acknowledged, but it shouldn’t be a fatal strike. Later on, Breyer told Sauer that, if the state executes Bucklew by lethal injection, “it’s going to be like slowly drowning him to death.” But it can’t be, Breyer continued, that the state can’t use another method of execution without “15 years of testing” it.

At one point, Breyer addressed Sauer directly, asking “what do you recommend we do?” In Breyer’s view, the state should “deal with this as a person, not a lawyer” and hold a hearing to discuss Bucklew’s condition and how to move forward to minimize the risks that could arise at Bucklew’s execution. Sauer resisted, telling Breyer that sending the case back will simply cause more delay, and that the justices already have enough evidence to decide the case. As is so often the case, Breyer likely hopes that he can pick up five votes for a narrow ruling – perhaps one that sends the case back to the lower courts for more fact-finding, as Hochman suggested. Kavanaugh could be Breyer’s best hope for such a result, but we will probably have to wait several months to find out.

This post was originally published at Howe on the Court.

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