Common legal wisdom holds that the Supreme Court is more than the sum of its parts, and the addition or removal of a Justice transforms the Court as a whole. The adage has undoubtedly proven true in the weeks since Antonin Scalia’s passing, and as we enter into the Court’s second sitting with only eight Justices, the long shadow cast by the late jurist continues to linger over the courtroom.
Justices have recused themselves in a number of the most closely watched cases of the coming month, leaving a bench of seven to decide controversies with far-reaching legal and political implications. In Monday’s RJR Nabisco, Inc. v. The European Community, for instance, Justice Sotomayor will not take part in deciding whether the organized crime busting RICO Act may be applied outside of the borders of United States due to her involvement with the case in a lower court. Similarly, Justice Alito has declined to participate in Tuesday’s Puerto Rico v. Franklin California Tax-Free Trust, in which the Court will be called upon to determine whether the island may pass its own bankruptcy laws for the relief of its debt-besieged public utilities. Unlike many of the controversial cases of the term, Scalia’s unexpected absence from these deliberations will actually eliminate the possibility of a tie vote that affirms the lower court decision, completely shifting the legal dynamic in ways that are difficult for even the most avid Court watchers to predict.
This is pointedly not the case, though, in the latest challenge to President Obama’s signature Affordable Care Act, Wednesday’s Zubik v. Burwell. Like the 2014 case of Burwell v. Hobby Lobby, Zubik centers on the obligations of religious objectors with respect to contraceptive insurance coverage. The Court initially took up the case to resolve a split among the nation’s lower courts as to whether those opposed to providing the coverage themselves may be required to notify the government in order to trigger coverage by a third-party provider. If the Justices’ vote is divided along the same lines as in the earlier case, however, Scalia’s absence will leave the Court deadlocked. With the split unresolved, differing legal standards will apply throughout the country, creating a bureaucratic nightmare for the agencies that administer the program and those women that benefit from it.
What follows is On the Docket’s preview of the Supreme Court’s March docket. We’ve broken down the cases for you, explained the key facts and legal principles involved, and outlined the significance of the outcome. Read on to familiarize yourself with the coming arguments, and as always, don’t forget to check back for analysis and commentary from prominent legal scholars when opinions are announced!
March 21
RJR Nabisco, Inc. v. The European Community
No. 15-138; 2nd Cir.
There is perhaps no federal crime more commonly known to the American public than the RICO Act. The Racketeer Influenced and Corrupt Organizations Act (“RICO Act”) was created to help crack down on organized crime, and if you’ve ever watched The Sopranos or any other Mafia-related movie or TV show, it’s a term you’ve come to know, even if you don’t know exactly what it means. The RICO Act creates liability for members of organizations who commit two or more crimes, known as “RICO predicates,” within a ten-year period. There are about three dozen RICO predicates, ranging from gambling and embezzlement to murder and terrorism.
The Court will hear arguments on Monday to determine to what extent, if any, the RICO Act applies to conduct and plaintiffs who are outside of the United States. The European Community’s complaint brings with it the makings of the next TV show to use the RICO Act as a central story line. The EC alleges a drug and money-laundering scheme in which Russian and Colombian groups smuggle drugs into Europe, earning income that was then sold at a discounted price to cigarette importers who would then purchase cigarettes from defendant RJR Nabisco.
The EC has somewhat of an uphill battle in this case: the Court has not been very hospitable to foreign plaintiffs in the past several years, often finding against them or their standing. In 2013, the Court rejected the idea that the Alien Torts Statute applies extraterritorially. Applying the traditional statutory canon of interpretation that laws are presumed not to apply extraterritorially, the Court declined to allow for a group of Nigerian plaintiffs to sue a Dutch company for conduct that happened in Nigeria. This presumption against extraterritoriality is where the Justices will begin on Monday.
RJR Nabisco argues that there is no indication whatsoever that Congress intended for the RICO Act to apply to foreign conduct. Furthermore, they contend, there is no ability for private civil suits in this case because there is no domestic injury alleged, nor is any of the illicit activity alleged related to the United States. The District Court agreed with RJR’s interpretation of the statute, and dismissed the case.
The Second Circuit, however, agreed with the EC and allowed the case to proceed. The EC contends that first, it doesn’t matter if the statute applies extraterritorially because RJR Nabisco is an American enterprise. Given that part of the decision in 2013 was based on the fact that it was a “foreign-cubed” case with foreign plaintiffs, defendants, and conduct, this argument may be enough for the EC to proceed with its case. However, the EC continues by saying that the statue does apply to foreign conduct, as evidenced by the language of the statute. First, the statute borrowed language from an antitrust statute which has long been held to apply extraterritorially. Second, the EC contends that some of the RICO predicates are inherently extraterritorial in nature, such as killing a US national outside of the United States. This should project a sense of extraterritoriality onto the law itself, they argue.
In this second case of the Court’s term concerning foreign plaintiffs in US courts, whether the RICO Act will be applied extraterritorially could have immense consequences for the US court system if the decision is a broad application of extraterritoriality. It is worth a final note that, although Justice Scalia’s seat remains empty, this case will come to a decision without the possibility of a tied vote. Justice Sonia Sotomayor will recuse herself from this decision because of her involvement with the case during it’s time in the Second Circuit.
Wittman v. Personhuballah
No. 14-1504, E.D.V.A.
Race and redistricting once again make an appearance at the High Court. After striking down Section 4 of the Voting Rights Act (VRA) in Shelby County v. Holder and redefining the requirements of Section 5 of the VRA in Alabama Legislative Black Caucus v. Alabama, the Court will now take up the issue of race as a factor in redistricting plans in Wittman v. Personhuballah.
In 2013, the Virginia General Assembly created a redistricting plan for the state. This redistricting plan increased the amount of African-American voters in Congressional District 3, which was already a majority African-American district. A year later, a group of voters sued the Republican lawmakers behind the new plan, claiming that District 3 was racially gerrymandered to consolidate African-American voters into one district, decreasing minority voters’ ability to elect minority candidates in other districts. Defendants argued that the redistricting was done primarily for political purposes, to increase the chances that Republican candidates would win the districts surrounding District 3. The district court found that the redistricting plan was unconstitutional because race was a predominate factor in the plan and the use of race was not narrowly tailored.
In this case, the Court will first consider whether the lawmakers have standing to appeal. They argue that they have standing because the district court’s judgment will harm at least one of their chances of being reelected by shifting Democratic voters from District 3 (as it exists under the challenged redistricting plan) to the surrounding majority-Republican districts. The voters argue that maintaining a favorable demographic in one’s district is not a legally protected interest, meaning that Appellants do not have standing to appeal.
If the Court holds that the Appellants have standing, the Court will address three questions:
1) Whether the district court erred in its finding that race was the predominate factor in the redistricting plan rather than race-neutral objectives?
State legislatures are allowed to consider race when drawing voting districts, and some are even required to do so to an extent to comply with Section 5 of the VRA. (Section 5 requires that states with histories of discrimination must contain some majority-minority districts, ensuring that minorities are able to elect a candidate of their choice in some districts.) In Shaw v. Reno, however, the Supreme Court held that race cannot be the predominate factor in redistricting plans unless its use is narrowly tailored and it furthers a compelling state interest. Here, the district court found that race was the predominate factor in Virginia’s redistricting plan, and thus it did not pass Constitutional muster. The lawmakers argue that the district court based this finding only on the legislature’s recognition that compliance with the VRA was a consideration in the redistricting plan, even though the legislature’s stated primary purpose was protecting the incumbent’s likelihood of reelection. To resolve this issue, the Court will have to evaluate the evidence and determine if enough exists to support the district court’s conclusion.
2) Whether the district court should have required the plaintiffs to show that an alternative redistricting plan existed that would bring about a greater racial balance than the Enacted Plan while achieving the legislature’s political goals and not using race as the primary consideration?
If the Court finds that sufficient evidence exists to support the district court’s conclusion as to the first question, the second question will be moot. A plaintiff challenging the use of race in redistricting is only required to show that the legislature could have enacted an alternative plan and accomplished its goals without using race as a factor if direct evidence does not show that race was the predominate factor. If the Court finds that there is not sufficient evidence to support the district court’s finding, it will likely also find that the district court erred when it failed to require the plaintiffs to present an alternative redistricting plan.
3) Whether narrow tailoring requires that legislatures only use race as a factor to the extent that it is absolutely necessary to comply with Section 5?
Finally, if the Court finds that race was the predominate issue in the redistricting, the plan must survive strict scrutiny. Both parties acknowledge that complying with Section 5 of the VRA is a compelling state interest and that a legislature may use race as a predominate factor to comply with Section 5 with “good reason”. The parties however disagree about whether the Virginia state legislature had good reason to use race as a predominate factor. The legislature believed that maintaining the minority voting-age population at 55% was necessary to comply with Section 5, so they used this benchmark as a threshold when drawing the districts. The voters argue that the use of this percentage was arbitrary and unnecessary, and thus not narrowly tailored as required by the Constitution. Here the Court will decide what narrow tailoring requires when it comes to using race as a factor in redistricting.
Because the law on the use of race in redistricting is largely settled with respect to the issues at play, this case is unlikely to have an impact beyond the parties involved and Virginia’s specific redistricting map. Further, because this case is on direct review from the initial trial, the issues are predominately a review of the district court’s fact-finding and thus the decision is unlikely to result in far-reaching precedent. The one exception may be the issue of standing. If the Court decides that the lawmakers have a legally protected interest in maintaining a favorable demographic in their voting districts, the number of lawsuits challenging redistricting plans could increase substantially. Such a decision would allow any politician whose district was changed in a way that unfavorably altered the demographics of the district to challenge the new map in court.
March 22
Puerto Rico v. Franklin California Tax-Free Trust
No. 15-233, 1st Cir.
Like Washington, D.C., Puerto Rico holds a peculiar place within the U.S. federal system. Although the island is a U.S. territory and its inhabitants are U.S. citizens, it is not represented by voting members of Congress and does not enjoy many of the rights typically afforded to states. This status as a quasi-independent territory has been a sore spot among activists for years, but the island’s recent debt crisis has brought tensions to a head. The Supreme Court is now called upon to decide whether the territory may restructure its own financial obligations, and the Court’s diminished bench may play a decisive role in determining the future of non-state U.S. holdings.
The 2008 recession was particularly devastating for Puerto Rico, and the island’s unemployment rates remain more than twice that of the United States as a whole. The lack of economic opportunity has prompted a massive exodus of young workers, undercutting the tax base and placing strain on the government’s social services. The island took on large amounts of debt in order to close budget shortfalls and buoy its struggling economy, and this eventually led to a series of credit downgrades that greatly raised its borrowing costs. The increasingly dire situation led the Puerto Rican Legislative Assembly to pass the Puerto Rico Public Corporation Debt Enforcement and Recovery Act in 2014, which created a debt restructuring mechanism for its local municipalities similar to federal Bankruptcy laws.
In most areas of the United States, debtors may avail themselves of the debt-protections provided by Chapter Nine of the federal Bankruptcy Code, which allows for the discharge of debt through a court-structured partial repayment plan. The Code allows states to authorize their local governments and other public entities to seek this protection, as exemplified by Detroit’s 2013 bankruptcy. Until 1984, the law undisputedly extended the same privilege to Puerto Rico. That year, however, Congress enacted the Bankruptcy Amendments and Federal Judgeship Act. The law modified the definition of “state” within the Bankruptcy Code to include Puerto Rico and the District of Columbia “except for the purpose of defining who may be a debtor under chapter 9 of this title.” The legislative history does not indicate the purpose behind the change, but Puerto Rico concedes the shift in language precludes it from authorizing its public utilities to seek federal Chapter Nine protection.
Where the island and its creditors diverge is their interpretation of a related provision that prohibits “states” from creating and enforcing their own methods of municipal debt restructuring. The same day Puerto Rico’s governor signed the Recovery Act into law, a group of bond holders filed suit in federal court, claiming that the federal law forbids the island from enacting its own bankruptcy system. The district court agreed, and a divided panel of the Court of Appeals for the First Circuit affirmed the ruling on appeal.
The bond holders have the advantage of the plain language of the law, which declares that Puerto Rico should be treated as a state for all purposes within the Bankruptcy Code except authorizing municipal debtors under Chapter Nine. Because the preemption provision applies to “state law” and does not clearly fall under the exception, it can be read textually as applying to Puerto Rico. The island argues, however, that it is unfair to exclude it from the benefits of Chapter Nine while also subjecting it to the burdens imposed by the law, and Congress could not have intended the 1984 Act to create a “no man’s land” immune from regulation under both federal and local law.
Lurking beneath the surface of the case are serious constitutional considerations. When first enacted as part of the New Deal, a 1930s Supreme Court hostile to federal intervention struck down the preemption clause of Chapter Nine as an impermissible intrusion on state power. It was only after Congress added the state level authorizations from which Puerto Rico is now excluded that the law was able to withstand Constitutional scrutiny. The Constitution also expressly empowers Congress to enact “uniform Laws on the subject of Bankruptcies throughout the United States” (emphasis added). To the extent this authorization may be read as a requirement for uniformity, the exclusion of Puerto Rico from Chapter Nine protections may undermine it. Lastly, the Supreme Court has previously ruled that the Equal Protection Clause of the Fourteenth Amendment requires that Congress have a rational basis when it passes laws that treat Puerto Rico differently from the remainder of the country. In the absence of any discernable intent in the legislative history, it is not clear that the 1984 amendment satisfies this test. Puerto Rico does not now raise any of these Constitutional challenges, but rather cautions that the Court should avoid these questions by narrowly construing the preemption provision as not applying to the island.
Adding a layer of complexity to an already unpredictable controversy, the Supreme Court’s bench will be two seats shorter than usual when it hears the case. In addition to the vacancy left by Justice Scalia’s passing, Justice Alito has recused himself, presumably because of personal investments that create a conflict of interest. In an environment where only four votes may create controlling precedent, it is anyone’s guess where the Court will land on this important issue that touches on so many areas of statutory and constitutional law.
Simmons v. Himmelreich
No. 15-109; 6th Cir.
The United States Government cannot typically be sued by private citizens in federal court. A principle derived from English common law makes the United States immune from those types of claims in the interest of efficiency and governmental discretion. Congress realized that there were certain areas of the law from which governmental employees acting in the scope of their job shouldn’t be immune, however, and enacted the Federal Tort Claims Act to establish general liability. With the FTCA also came a list of exceptions (in case this concept wasn’t confusing enough), whereby the government couldn’t be sued for certain torts, including any action that the employee took that falls within the discretion of his role. Furthermore, the FTCA also provides that any judgment on an FTCA claim constitutes a bar to further claims arising out of the same act or omission of action.
Walter Himmelreich, convicted of producing child pornography, was put into the same prison yard as a man who had vocalized his desire to “smash a pedophile.” When such an assault occurred, Himmelreich brought suit against many of the prison employees, alleging several causes of action including violations of his First and Eighth Amendment rights. Himmelreich brought both FTCA and Bivens claims. Under Bivens, there exists a federal tort cause of action for violations of constitutional rights.
The District Court dismissed both of Himmelreich’s claims; his FTCA claim under the discretionary exception, and the Bivens claim under the FTCA’s “judgment bar.” He appealed to the Sixth Circuit, where he succeeded two times. Under review of the Court now is whether the District Court was correct as to the second matter: does the “judgment bar” clause of the FTCA preclude Himmelreich’s Bivens claims?
The federal government argues that it does. Simply put, the government proffers that the language of the FTCA clearly precludes further action once a judgment has been entered, and the dismissal of the FTCA claim under the discretionary function exception constitutes a judgment. Himmelreich counters that claim, however, by saying that the judgment bar does not apply to the Court’s dismissal for lack of jurisdiction under the discretionary judgment exception.
At the end of the day, the real effect will be to determine how much access to federal courts prisoners and others constitutionally wronged by federal employees will truly be afforded.
March 23
Zubik v. Burwell
No.14-1418, 3d Cir.
Zubik v. Burwell consists of seven cases consolidated for review by the Supreme Court. At issue in these cases is the Affordable Care Act (ACA) mandate requiring employers to provide contraceptive coverage to their employees. Specifically, the issue is whether the accommodation to the ACA’s birth control coverage mandate that the government has provided to religious non-profit institutions violates the Religious Freedom Restoration Act (RFRA).
The ACA requires employers to provide certain forms of birth control to employees as part of the Act’s health insurance requirements, but the ACA gives exemptions or religious accommodations to certain classes of employers. For religious non-profits, the government currently provides an accommodation whereby a non-profit may notify the government of the non-profit’s objection to the coverage requirement. After doing this, the non-profit is relieved of the requirement to provide the contraception itself, and the non-profit’s insurance provider or a third-party administrator covers the costs of the contraception, ensuring that the contraception is still available to the non-profit’s employees at no cost.
The petitioners—non-profit institutions—argue that even the process of notifying the government of their objection to the contraception requirement violates their sincerely held religious beliefs, because it triggers their insurance company or a third party to provide the contraception, meaning the non-profits are complicit in providing the contraception. The government argues that even though the non-profits have sincere religious objections to having any role in the provision of contraception to employees, such objection does not allow them to inhibit the government’s attempts to provide contraception to the non-profits’ employees through a third party, because, according to the government, providing contraception at no cost is a compelling government interest.
The Court will address several issues in this case. First, the Court will have to determine if the requirement to which the petitioners object—notifying the government of their objection—constitutes a substantial burden. If the Court finds that it is not a substantial burden, the inquiry will end there and the petitioners will lose. If the Court finds that the requirement is a substantial burden, it will turn to the two-part strict scrutiny inquiry that RFRA requires: whether the requirement advances a compelling government interest and does so through the least restrictive means.
The Court briefly addressed the compelling interest question in Hobby Lobby, where they assumed for the sake of argument that providing contraception at no cost was a compelling government interest. Four of the justices in the Majority (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) seemed skeptical that this was a compelling government interest. Justice Kennedy’s concurrence, however, suggested that he believed that providing contraception at no cost was sufficiently compelling, and this belief was shared by the four dissenting justices. The Court may still go either way on this issue, although without Justice Scalia, it is unlikely that the Hobby Lobby majority’s position will again carry the day.
If the Court answers the substantial burden and compelling interest questions in the affirmative, it will turn to the least restrictive means question. Here, petitioners argue that a less restrictive means of providing contraception coverage exists for the government: the government could exempt religious non-profits from any part in providing contraception coverage and the employees of exempt non-profits could obtain contraception coverage through an exchange. The government contends that this would be costlier for the government and that it would be ineffective in advancing its compelling interest in providing contraception coverage because it would require more steps for women who want contraception coverage, which would make the coverage less accessible for some women.
This case could have substantial and far-reaching impact. First, either way the Court decides the substantial burden question will set a major precedent for future RFRA cases. If the Court holds that notifying the government of an objection is a substantial burden, that will lower the bar of what constitutes a substantial burden under RFRA. If simply sending the government a letter that sets into motion third party actions is a substantial burden, many more cases will be filed in which a plaintiff claims that his or her religious beliefs are burdened by actions that many may see as insignificant. If the Court holds that the notification process is not a substantial burden, it will set a precedent for future federal courts to evaluate religious beliefs based on the court’s opinion rather than on the religious convictions of the person claiming the religious objection. This could result in arbitrary decisions regarding what is a substantial burden to religion. It could especially affect minority religions, because judges may not be as understanding regarding what those belonging to an unpopular religion consider to be a substantial to their religious beliefs.
Regarding the compelling interest inquiry, if the Court decides that providing cost-free contraception is a compelling government interest, it will make it easier for the ACA’s birth control mandate to withstand future RFRA challenges, but if the Court decides that it is not a compelling government interest, the mandate will be unlikely to survive any future RFRA challenges. More broadly, the Court’s decision on this issue could expand the coverage of “compelling government interest.” If providing contraception at no cost is a compelling government interest, providing other sexual health products, or other health and wellness products, at no cost may be considered a compelling government interest in the future.
Finally, if the Court reaches the least restrictive means inquiry, the Court’s decision could affect this inquiry in future RFRA cases. First, if the Court holds that the government must find a less restrictive way to advance its interests, it could mean that in future RFRA cases the government may be required to remove as many burdens from the religious institution as possible, regardless of any cost to the government and any decreased effectiveness of advancing the government’s interests. Second, if the Court holds, as the government contends, that the current accommodation is the least restrictive means by which the government can advance its interests because other ways would be less effective, costlier, and would impose some burdens on women seeking contraception coverage, in future RFRA cases the government may only have to use the least restrictive means that is also the most effective and efficient way of advancing its interests. Finally, and most likely, the Court could simply use a balancing test similar to the one the Court used in the pre-RFRA cases Sherbert v. Verner and Wisconsin v. Yoder. This would require courts in future RFRA cases to balance the burden imposed on the religious institution with the cost imposed on the government and the effectiveness of the program, and would require the government to advance its interests by a means that was costly and effective but that least burdened the religious institution.
This case marks yet another trip to the Supreme Court for President Obama’s landmark legislation, and although the outcome of this case does not threaten the Act’s viability, it could have major impacts for the contraception mandate as well as future RFRA cases. The loss of Justice Scalia, who helped the Hobby Lobby Court reach a majority and who wrote a spirited dissent in the last Affordable Care Act case, King v. Burwell, will certainly have an impact on this case. However, it is still Justice Kennedy, the swing vote in Hobby Lobby, who likely holds the most important vote in Zubik. Justice Kennedy and his colleagues on the High Court may give a hint of how they will vote on this case during their questions at the oral argument on Monday.
March 28
CRST Van Expedited, Inc. v. EEOC
No. 14-1375, 8th Cir.
Congress often tasks federal agencies with initially responding to violations of federal law through administrative proceedings, reserving in-court litigation as a last resort. The exact procedures an agency is required to take before going to trial are not always clear, though, and the appropriate remedy for an agency’s failure to comply with these rules can be equally uncertain. The Supreme Court will tackle these difficult questions in CRST Van Expedited. Like the summary decision the Court handed down in January’s James v. Boise, the case centers on an award of attorney fees in an unsuccessful civil rights suit. This time, however, it is the federal government that is potentially on the hook for the failed litigation.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, national origin, and sex. To enforce this ban, the Title further created the Equal Employment Opportunity Commission (“EEOC”) and charged the agency with investigating claims of employment discrimination. The Act as amended requires the EEOC to first give an employer notice upon receiving a complaint against them, then perform an investigation to assess the merit of the claim. If the EEOC determines there is not sufficient evidence to support the complaint, the agency dismisses the charge, and the party alleging discrimination is free to pursue the matter further by suing the employer directly in court. If the EEOC determines that the charge has legal merit, however, the agency is required to initiate a “conciliation” proceeding with both parties and attempt to mediate an out of court settlement. Only when the parties fail to reach a settlement is the EEOC then allowed to file a lawsuit on behalf of the employee claiming discrimination.
CRST Van Expedited, Inc. is a long distance trucking company that ships freight across the continental United States. The company employs two-person teams to drive its tractor-trailers in alternating shifts. Because of the high turnover rate in the industry, the teams often consist of a senior lead-driver who provides instruction to a trainee. At the conclusion of the drive, the lead-driver evaluates the new driver’s performance, and this assessment helps the company decide whether to offer the trainee a permanent position. The EEOC received complaints that male lead-drivers for CRST repeatedly sexually harassed their female trainees, and the agency launched an investigation into the claim of one named female driver. The Commission determined that the charge was meritorious and, following a failed attempt at conciliation, filed a Title VII suit on behalf of her and “a class of similarly situated female employees.”
Following discovery, the EEOC named 270 current and former female employees who claimed harassment as additional plaintiffs. The district court, however, dismissed the cases on a theory that Title VII required the EEOC to investigate and attempt conciliation on each of the women’s individual cases before filing suit. In doing so, the court took the unusual step of awarding CRST several million dollars in attorney fees and legal costs, stating that the EEOC’s failure to complete pretrial requirements was “unreasonable.” After initially remanding for procedural reasons, a divided Eighth Circuit Court of Appeals affirmed the dismissal but vacated the additional remedy. The court held that Supreme Court precedent requires a finding that each claim was “frivolous, unreasonable, or groundless” before an award of attorney fees is permitted. Further, because the case was not decided based “on the merits” of the claims, the court reasoned that CRST did not “prevail,” as is required for such an award. CRST appealed, and the Supreme Court granted certiorari.
The EEOC now argues that each of the women is still able to bring her claim individually, and thus CRST cannot be said to be the prevailing party. They also contend that the district court’s interpretation of Title VII’s pretrial requirements was novel and conflicted with court rulings in other circuits, and thus their failure to comply with the procedures could not possibly be unreasonable. In response, CRST asserts that restricting attorney fee awards to only cases that are decided on the merits would frustrate Congress’s intent to discourage all frivolous lawsuits, including those that are clearly barred by procedural rules like statutes of limitations. The company claims that such a policy would allow the EEOC to disregard its pretrial obligations with impunity, and the agency could then use the threat of expensive litigation to leverage settlements on claims of discrimination that are ultimately groundless.
Betterman v. Montana
No. 14-1457, Mont.
Nearly fifty years ago, Chief Justice Earl Warren wrote that the Sixth Amendment guarantee of a speedy public trial “is one of the most basic rights preserved by our Constitution.” It may come as a surprise, then, that the Supreme Court is still today deciding precisely what that basic right entails. In the modern criminal justice system, over ninety-five percent of cases never go to trial and are resolved by guilty pleas entered pursuant to bargains between defendants and prosecutors. Many commentators contend that sentencing has thus replaced the traditional jury trial as the focal point of criminal litigation. Given this pivotal role, should the Constitutional right to a speedy trial now extend to sentencing proceedings that take place after a defendant’s guilt has been determined to a legal certainty? Betterman v. Montana presents the Supreme Court with just this question, and the outcome of the case may change the way criminal courts function throughout the country.
In 2011, Brandon Betterman was convicted of domestic assault in a state court located in Butte, Montana. Betterman lived 200 miles away in Billings, and upon realizing that he had no money or means of transportation to return to the courthouse, the longtime alcoholic lapsed into drinking and missed his sentencing hearing. A bench warrant was entered for Betterman’s arrest, and two months later he turned himself into county jail. A judge promptly sentenced Betterman for the domestic assault conviction, but not before the state filed bail-jumping charges for his initial failure to appear. Because the additional charges remained pending, Betterman was returned to county jail rather than being committed to the prison where he was to serve his sentence. He was arraigned a month later on the bail-jumping charge and pled guilty, but the trial court stated that it would not hold a sentencing hearing until it received a report on Betterman from the probation office. The report was filed in October 2012, but the court waited an additional two months to set a sentencing date.
When a sentencing hearing was finally held nine months after Betterman’s guilty plea, he filed a written motion to vacate the bail-jumping charge, claiming that his speedy trial right had been violated. After another three months had passed, the court entered an order denying Betterman’s motion, reasoning that although a majority of the delay was attributable to the state, it was not due to bad faith. The court further stated that Betterman had neither diligently asserted his right prior to the sentencing hearing nor shown that the delay caused him undue hardship. In response, Betterman filed a motion for reconsideration, this time including an affidavit claiming that the delay had prevented him from completing programs required by his previous convictions, kept him from receiving proper medical care, and denied him the eligibility for conditional release he would have qualified for had he spent the preceding year in prison rather than county jail. The trial court denied his motion for reconsideration, and the Montana Supreme Court affirmed. On December 4, 2015, the Supreme Court granted certiorari.
Betterman now argues that it is only logical to extend the Constitutional speedy trial right to sentencing procedures. The Supreme Court has previously held that it attaches not just to the trial itself, but to all pretrial proceedings that take place once a prosecution has been initiated. The Court has also stated that a prosecution does not terminate until sentencing is complete, and they have applied the “textually interwoven” right to a public trial to sentencing. Montana counters that the interests protected by the speedy trail clause of the Sixth Amendment simply do not apply to sentencing. The guarantee is meant to protect those that the criminal justice system presumes are innocent from lengthy pretrial incarceration, the state contends, as well as to ensure defendants are not hampered in preparing their defense. Neither consideration applies when a defendant has already been determined to be guilty, and allowing wrongdoers to escape punishment entirely because of administrative delays would undermine the public’s interest in justice being served. The state further asserts that defendants are already protected from untimely sentencing by the general rules of criminal procedure and the Due Process Clause of the Constitution.
As with many of the cases this term, the space left by Justice Scalia’s brand of Originalism will be keenly felt in Betterman, though one can only speculate how the late Justice would have ruled. At the time of the Constitution’s framing, most crimes carried fixed sentences, and thus the determination of punishment was built into the trial. It is undeniable that separate, discretionary sentencing is now a central feature of the American justice system, though, and the vast policy implications may be particularly likely to sway the remaining Justices in the absence of Scalia’s anchoring influence.
March 29
Sheriff v. Gillie
No. 15-338, 6th Cir.
High medical bills and student loans are a headache that many of us would rather forget. Unfortunately, Pamela Gillie and Hazel Meadows owed debts of these natures to the Ohio State Government. They received a letter seeking repayment of their debts on letterhead of the state Attorney General. The only problem? The letters weren’t coming from him – they came from private attorneys Ohio authorized its Attorney General to hire to aid in debt collection.
In 1977, Congress passed a law designed to combat abusive debt collection tactics. This law prohibits private, independent debt collectors from representing themselves as government officials. The District Court agreed with the attorneys, and held that because Ohio law authorizes the use of “special counsel” in governmental debt collection, they represented the state and therefore did not mislead Gillie and Meadows.
The Sixth Circuit overturned the District Court’s ruling, and determined that there was no real reason for the attorneys to use the Attorney General’s letterhead except for intimidation and a show of force. For that reason, the court concluded, that the attorneys were independent contractors and whether or not they mislead those indebted to the state was a material issue of fact. Both of these issues are before the court during their March arguments.
Ross v. Blake
No. 15-339, 4th Cir.
June 21, 2007 should have been another ordinary day for inmate Shaidon Blake, who was scheduled to move from one cell block to another. However, when Lieutenant Michael Ross and Lieutenant James Madigan showed up to move him from his cell, the Lieutenants were anything but courteous. Madigan shoved Blake repeatedly, and when they got to his new cell, Ross held Blake while Madigan punched Blake in the face with a key ring wrapped around his fingers, and dropped him on the ground.
After a year-long investigation, the Internal Investigation Unit of the Maryland Department of Public Safety and Corrections services confirmed that Madigan and Ross had used excessive force against Blake. Blake filed a pro se complaint against the two Lieutenants, believing that he had exhausted all administrative remedies before filing an action, as required by the Prison Litigation Reform Act. However, there existed an additional potential remedy within the prison system: the Administrative Remedy Procedure, which is available for all types of complaints. Ross asserted this point as an affirmative defense, and moved for summary judgment. The District Court granted Ross’ motion, and the case was dismissed.
The Fourth Circuit, however, adopted the Second Circuit’s two-pronged test to decide if “special circumstances” existed, which would excuse Blake from exhausting all possible remedies. First, they held, Blake was justified in believing that his complaints procedurally exhausted the remedies because of the confusing nature of the Maryland Correctional Facility’s remedial procedure. Second, they determined that he substantively exhausted all possible remedies because he afforded the authorities proper time to address the complaints internally. For these reasons, the Fourth Circuit concluded that his suit could proceed.
While the Second Circuit’s test is based on a concurring opinion by Justice Breyer, who noted that there are exceptions to exhaustion requirements, the U.S. Government has filed an amicus brief in support of Ross, arguing that the requirement to exhaust administrative remedies is absolute and there is no exception contained within the statue. To the US government and others, the Fourth Circuit misapplied Supreme Court precedents that don’t allow for mistakes in exhaustion of remedies, and therefore Shaidon Blake’s case must be dismissed.
March 2
Welch v. United States
No. 15-6418, 11th Cir.
Gregory Welch, along with hundreds of other inmates, is currently service a sentence that, if issued today, would be considered unconstitutional. Welch was sentenced under the Armed Career Criminal Act (“ACCA”), which extends prison sentences for felons convicted of owning a gun. His sentence without the ACCA extension would have been ten years; instead, the ACCA permitted his sentence to be extended to fifteen years.
Gregory Welch argues two points before the Supreme Court this month. First, he argues that one of his felonies, a strong arm robbery, does not qualify as a felony that should count to push his conviction into the guise of the ACCA. But more importantly, he argues second that the Supreme Court’s decision in Johnson v. United States, which found certain extended sentencing under the ACCA to be unconstitutionally vague, should be applied retroactively.
The Eleventh Circuit determined that Welch’s strong arm robbery does satisfy the standard that the Supreme Court set out in Johnson, so Welch’s conviction stands. However, the Court has appointed an outside attorney to argue the confirmation of the Circuit Court’s ruling – the Justice Department now supports the fact that Johnson sets forth a new rule of law and should apply retroactively to cases such that of Welch. The Court will decide this case on the last day of its March arguments to resolve the resulting circuit split, and there is no doubt that hundred of federal prisoners will be waiting to see if their release is imminent.
United States Army Corps of Engineers v. Hawkes Co., Inc.
No. 15-290, 8th Cir.
Hawkes Inc. sought to harvest peat moss from 530 acres of swampland on its property, which would entail Hawkes dredging and filling the swampland. This swampland was classified as wetlands and under the Clean Water Act (CWA), wetlands adjacent to a permanent water body, or which have a significant connection with traditional navigable waters, are subject to federal jurisdiction under the CWA. The CWA prohibits “discharge of any pollutant by any person” into wetlands except when the party discharging the pollutant has been authorized by the statute or by a permit from the United States Army Corps of Engineers (Corps), the Environmental Protection Agency (EPA), or an authorized State. Discharging dredged or fill material into the wetlands constitutes discharging a pollutant, so a party planning to dredge and fill in a wetland covered by the CWA must seek a permit to do so or face fines.
If a property owner is unsure of whether water on his or her property is covered by the CWA, he or she can seek a Jurisdictional Determination from the Corps, which is an official written statement giving the Corps’ opinion as to whether the body of water is subject to federal jurisdiction and covered by the CWA. Although an official statement from the Corps, this Jurisdictional Determination is not binding, it is simply a way to help the property owner determine if he or she should seek a permit before discharging pollutants into water on his or her land, or if it is safe to proceed without a permit.
In this case, the swampland that Hawkes sought to dredge was 120 miles away from the nearest river and no bodies of water connected the river to the swampland, so Hawkes reasoned that the swampland would not be covered by the CWA. Still, Hawkes sought a Jurisdictional Determination to clarify if the swampland was subject to federal jurisdiction. The Corps’ Jurisdictional Determination stated that the swamplands on Hawkes’ property was covered by the CWA; Hawkes disagreed with the determination and sought to challenge it in court.
Under the Administrative Procedure Act (APA), federal courts can review an agency action if the action is a final agency action and satisfies several other criteria. Hawkes challenged the Jurisdictional Determination, arguing that it was the Corps’ final action and thus ripe for judicial review. The Corps argues that the determination was not a final agency action, and not reviewable by a court. The District Court for the District of Minnesota found that the determination was not a final agency action and dismissed the case, but the Eight Circuit reversed, holding that the determination was a final agency action. This caused a split between the Eight Circuit and the Ninth and Fifth Circuits, so the Supreme Court granted certiorari to resolve the split.
The Supreme Court will answer the question of whether a Jurisdictional Determination of the Corps is a final agency action reviewable by a federal court, or whether Hawkes and parties in Hawkes’ position in the future must pursue further administrative remedies before challenging the determination in court. As a practical matter, this case is unlikely to have far-reaching effects. The Roberts Court prefers to craft narrow decisions, and the Court may only decide the issue as it applies to Jurisdictional Determinations of the Corps, not to other agency action. However, depending on how broadly the Court crafts its decision, this case could affect future appeals of agency actions. If the Court decides that a Jurisdictional Determination is ripe for judicial review and writes its decision in more general terms, it could pave the way for challenges to other agency actions by redefining what is a “final agency action” under the APA. Although such a broad opinion is unlikely, administrative agencies, as well as administrative law professors and practitioners will be anxiously awaiting the Court’s opinion here to determine the impact it may have on administrative law.
This post was authored by The George Washington Law Review Online Editorial Team.
