As the 2024 Supreme Court term gets underway, several pivotal cases are set to challenge and refine existing legal precedents across a wide range of issues. From questions about federal authority and constitutional rights to crucial interpretations of criminal law, the following case previews provide a glimpse into the issues the Court will tackle and their broader implications for the legal system.
Table of Contents
Delligatti v. United States
No. 22-448, 2d Cir. (Argument Nov 12, 2024)
Preview by Jordan Morris, Associate
In Delligatti v. United States, No. 23-825, the Supreme Court will address whether attempted second-degree murder in violation of the Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a)(5), qualifies as a crime of violence under 18 U.S.C. § 924(c)(3). In other words, the Court will grapple with whether crimes that require proof of bodily injury that may be committed by failure to act necessarily include the use of physical force such that they are violent crimes.
This case arose from the murder scheme organized by Petitioner Salvatore Delligatti, an associate of the Genovese Crime Family (“Family”) of New York. Petitioner accepted money to coordinate the murder of Joseph Bonelli, a local “bully” who had been working against and stealing from associates of the Family. Brief for Respondent at 2–3. Petitioner organized a “murder gang,” provided the gang with a firearm, and created the plan for Bonelli’s murder. Id. at 3. Law enforcement arrested Petitioner before the gang carried out the plan. Brief for Respondent at 3.The Southern District of New York convicted Petitioner of multiple felonies, including one count of attempted-murder in aid of racketeering activity in violation of the VICAR statute, 18 U.S.C. § 1959(a)(5), predicated on attempted second-degree murder in violation of New York State Penal Law § 20.00, 125.25(1), and one count of using and carrying a firearm during and in relation to “a crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(A)(i), predicated on the VICAR attempted-murder charge. Brief for Petitioner at 5. Petitioner was sentenced to a term of 300 months of imprisonment. Id. at 6. The United States Court of Appeals for the Second Circuit affirmed Petitioner’s conviction. Id.
Petitioner contests his Section 924(c) firearms charge, predicated on his VICAR attempted-murder charge. Brief for Petitioner at 4. The VICAR statute prohibits “attempting . . . to commit murder . . . in violation of the laws of any State or the United States . . . or the purpose of maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)(5). Thus, the VICAR statute requires that the defendant’s conduct violates a state or federal statute, in addition to being committed for the purpose of racketeering activity. Here, Petitioner’s VICAR attempted-murder charge is predicated on Petitioner’s commission of attempted second-degree murder in violation of New York State Penal Law § 20.00, 125.25(1). Petitioner argues that the VICAR attempted murder charge, predicated upon New York’s second-degree murder statute, cannot serve as the predicate crime for the Section 924(c) firearms charge because second-degree murder is not a “crime of violence.” Brief for Petitioner at 7. Section 924(c)(3) defines “crime of violence,” in relevant part, as an offense that is a felony and “has an element the use, attempted use, or threatened use of physical force against the person.” 18 U.S.C. § 924(c)(3). Thus, whether Petitioner’s VICAR attempted-murder charge may serve as a predicate crime for the Petitioner’s Section 924(c) firearms charge turns on whether attempted second-degree murder under New York State Penal Law “has an element the use, attempted use, or threatened use of physical force against the person,” constituting a “crime of violence” under 18 U.S.C. § 924(c). When determining whether an offense satisfies this definition, a court uses the categorical approach: the court determines whether the “least culpable” conduct necessary to sustain a conviction would “necessarily involve” “the use, attempted use, or threatened use of physical force” in all instances. 18 U.S.C. § 924(c)(3)(A). Brief for Respondent at 5. Under this approach, the court disregards the particular facts of the case and instead focuses on the elements of the crime in question.
Petitioner argues that VICAR attempted murder based on the New York second-degree murder statute does not satisfy Section 924(c)’s use of force requirement because it can be committed by an omission or a failure to act, which, Petitioner argues, does not involve the use of force. Brief for Petitioner at 7. Based on the text of the statute, Petitioner argues that the word “use” conveys an “active endeavor” that “entails a physical act.” Conversely, Petitioner argues, second-degree murder may be committed by “total inaction,” where the defendant may “exert no physical force at all on the victim.” Id. at 12–13. For example, Petitioner posits, a parent may be charged with manslaughter for failing to obtain medical care for his or her child. Such a crime is one that requires proof of bodily injury or death but may be committed solely through the defendant’s inaction and, thus, does not involve the use of force. Id. at 8, 18, 22. According to the Petitioner, even an offense resulting in serious bodily injury or death does not involve the use of physical force if the offense can be committed by failure to perform a legally imposed duty, including second-degree murder. Finally, Petitioner argues that the Rule of Lenity, which encourages courts to resolve statutory ambiguities in favor of criminal defendants, resolves the issue in Petitioner’s favor. Id. at 42. Petitioner argues that this reading of the statute, combined with the Rule of Lenity, entails that VICAR attempted-murder charge predicated on New York second-degree murder charge does not necessarily involve the “use, attempted use, or threatened use of physical force” and, thus, is not a “violent crime” under Section 924(c). Id.
Conversely, Respondents argue that physical force can be employed through indirect methods and should be measured by how it affected the victim, not by what the defendant did. Respondents argue that “use of physical force” entails a “volitional” or “active” employment of force, which “necessarily includes attempting to cause the death of a person with intent to do so.” Brief for Respondent at 11. Even when attempted-murder is accomplished by indirect means, the knowing or intentional causation of bodily injury necessarily involves the use of physical force. Id. at 16. Respondent argues that knowingly employing an indirect method as a device to cause physical harm to a victim qualifies as the use of physical force against the person of another because it is directed or targeted at another. For example, Respondents posit, the sprinkling of poison of a victim’s food is a use of force, not because the actual act of sprinkling the poison is forceful, but because the act of knowingly employing poison as a device to cause physical harm. Id. at 10–11. Further, Respondent notes, the use of force is apparent regardless of whether conduct is an omission because the statutory test does not distinguish between omission and commission, and common law has rejected such a distinction. Id. at 11.
The outcome in Delligatti is particularly significant because it will both resolve a circuit split and impact the reading of other federal statutes. Eight circuits have found that a crime requiring proof of death or bodily injury necessarily involves the use of physical force, even if that crime may be committed by a failure to act. Brief for Respondent at 16. The Third Circuit, however, recently held that first-degree aggravated assault is not a violent felony because it can be committed by omission. Id. at 8. The Court’s decision in this case will not only impact the law of one or many of the circuits but may also impact the interpretation of multiple other statutes containing similar use-of-force language, including the Armed Career Criminal Act, 18 U.S.C. § 924(e), the Pre-trial detention statute, 18 U.S.C. § 3142(g), the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F), and the Career Offender enhancement of the US Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(1). Brief for Respondent at 16. The Court is scheduled to hear oral argument on the matter on November 12, 2024.
Dewberry Group, Inc. v. Dewberry Engineers, Inc.
No. 23-900, 4th Cir. (Argument TBD)
Preview by Benjamin Heidloff, Member
Dewberry Group, Inc. v. Dewberry Engineers Inc. concerns the calculation of damages under the Lanham Act. Following a trademark infringement determination, 15 U.S.C. § 1117(a) allows a plaintiff to recover a defendant’s profits, damages, and costs, “subject to the principles of equity.” Petitioner Dewberry Group seeks reversal of a nearly $43 million profit disgorgement order affirmed by the Fourth Circuit. Brief for Petitioner at 25.
The district court calculated the disgorgement amount using the profits from Dewberry Group’s infringing but nonparty subsidiaries. Id. at 24. Dewberry Group recorded no profits in the relevant period and argues that disgorged profits, if any, must have been earned solely by named parties under the Lanham Act. Id.
The parties had an initial trademark dispute in the mid-2000s, when Petitioner, then operating as “Dewberry Capital,” sent a demand letter to Respondent Dewberry Engineers asserting a likelihood of confusion in the real estate space. Brief in Opposition to Petition for Certiorari at 5. Dewberry Engineers owned two trademark registrations for DEWBERRY covering various real estate services, however, and the parties settled in 2007 with a coexistence agreement largely favorable to Respondent. Id.
Petitioner violated the settlement agreement in 2017 with its rebrand to Dewberry Group. Id. at 5–6. Following demand letters and USPTO proceedings, Dewberry Engineers filed suit and prevailed on its trademark infringement and breach of contract claims at summary judgment. Id. at 6–8. Following a bench trial on damages, the district court found that Dewberry Group’s tax returns provided an incomplete depiction of profits, given the management structure and consistent economic losses of the management entity. Dewberry Eng’rs Inc. v. Dewberry Grp., Inc., No. 1:20-cv-00610, 2022 WL 1439826, at *9–10 (E.D. Va. Mar. 2, 2022). The Fourth Circuit determined that the district court did not pierce the corporate veil, but instead “considered the revenues of entities under common ownership with Dewberry Group in calculating Dewberry Group’s true financial gain from its infringing activities that necessarily involved those affiliates.” Dewberry Eng’rs Inc. v. Dewberry Grp., Inc., 77 F.4th 265, 292 (4th Cir. 2023).
Dewberry Group contends that the plain language of the Lanham Act, allowing disgorgement of “defendant’s profits,” is restricted to named parties only. Brief for Petitioner at 20–23. Dewberry Group also argues that the “principles of equity” that the lower courts based the $43 million award on import limitations as well as flexibility, such as the presumption of corporate separateness and several principles of equity. Id. at 25–36.
Dewberry Engineers maintains that the profit disgorgement order is solely against Petitioner, and that the corporate veil would need to be pierced only to collect from Petitioner’s subsidiaries, if Petitioner could not pay. Brief in Opposition to Petition for Certiorari at 16–17. Respondent further emphasizes that the district court computed the profit disgorgement with the affiliates’ profits out of necessity, because Dewberry Group asserted there were no profits to disgorge and provided no alternative calculations. Id. at 25–26.
Five amicus briefs were filed. The United States government supports remand for a more detailed analysis of the infringing profits, contending that the Lanham Act is focused on economic substance and that “an infringer’s bookkeeping entries are not dispositive when a court seeks to quantify the infringer’s profits.” Brief for the U.S. as Amicus Curiae Supporting Neither Party at 23–26. Likewise, AIPLA supports remand and suggests that contributory infringement or compulsory joinder may be appropriate remedies. Brief of Amicus Curiae American Intellectual Property Law Association in Support of Neither Party at 10–15. Three briefs argue that traditional equitable principles incorporated into the Lanham Act do not permit recovery of nonparty profits. Brief for Professors Samuel L. Bray and Paul B. Miller as Amici Curiae Supporting Petitioner at 8–10; Brief of Washington Legal Foundation as Amicus Curiae Supporting Petitioner at 12–16; Brief of Amicus Curiae The International Trademark Association in Support of Neither Party at 9–13.
Regardless of the outcome, this case presents a cautionary tale for the legal and business communities. Dewberry Group had ample opportunity to not breach the initial settlement or to negotiate a second settlement, which would have avoided nearly three years of USPTO proceedings, five years of litigation, and the risk of a $43 million damages order. Indeed, the district court identified nine “red flags” in its finding that Dewberry Group engaged in intentional and bad faith trademark infringement. Dewberry Eng’rs Inc., WL 1439826, at *2–6. These red flags included repeated USPTO rejections and the plain text of the 2007 settlement agreement, id., which each represent an offramp not taken.
Food and Drug Administration v. Wages and White Lion Investments, LLC
No. 23-1038, 5th Cir. (Argument TBD)
Preview by Ryan Hudson, Member
In the upcoming Fall 2024 term, the Supreme Court will hear Food and Drug Administration v. Wages and White Lion Investments, LLC, a case bound to shape the landscape of e-cigarette regulation in the United States. The dispute originates from the FDA denying Respondent Wages and White Lion Investments, LLC’s (dba Triton Distribution) application for authorization to market flavored e-cigarette products. Brief for Respondents at 18. Under the Family Smoking Prevention and Tobacco Control Act (“TCA”), manufacturers of tobacco are required to demonstrate that their products are “appropriate for the protection of public health.” 21 U.S.C. § 387j(c)(2)(A). According to the FDA, Triton’s flavored e-cigarettes failed to meet that standard. Brief for Petitioner at I. Siding with Triton, the Fifth Circuit found that the FDA’s decision to reject Triton’s application was arbitrary and capricious, Wages & White Lion Invs., LLC. v. FDA, 90 F.4th 357, 385 (5th Cir. 2024); that the FDA failed to provide sufficient notice of new requirements for marketing approval, id.; and that the FDA ignored critical aspects of Triton’s application, including plans to prevent youth from accessing their products. Id. at 392.
In its brief, the FDA sought to justify the denial of Triton’s application by highlighting its responsibility, as directed by Congress, to ensure that new tobacco products do not pose too great a risk to public health. Id. at 16. As the FDA explained, flavored e-cigarettes have contributed to an alarming increase in youths becoming addicted to nicotine even when measures have been taken to protect against those risks, such as verifying buyers’ ages. Id. at 33. Although the FDA recognizes that e-cigarettes may be less harmful than traditional cigarettes for adult smokers, it weighed such benefits against the risks posed to youth. Id. at 48–49. The FDA rejected Triton’s application on the basis that it did not provide sufficient scientific evidence to show that their products offered benefits outweighing public health risks. Id. at 8.
Alternatively, Triton challenges the FDA’s approach based on procedural flaws. Importantly, Triton mentions that the FDA did not change its criteria for approving flavored electronic nicotine delivery system (“ENDS”) products until after it submitted its application to market its products and that the FDA did not provide adequate notice or consider reliance interests in violation of the Administrative Procedure Act. Brief for Respondents at 22. Triton also contends that the FDA arbitrarily dismissed their efforts to restrict youth access to their products. Id. at 26–27. Because the company submitted comprehensive marketing and sales plans designed to prevent youth from using their products, Triton argues that the FDA’s blanket assumption that no such plan could mitigate underage access to ENDS products was not the product of “reasoned decision making.” Id.
Finally, Triton asserts that the FDA’s decision to treat all flavored ENDS products—whether they be cartridge-based or open-system e-liquids—as equally risky to youth was unsupported by the FDA’s 2020 Enforcement Guidance. Id. at 14. Triton raises the fact that the FDA’s 2020 Enforcement Guidance drew distinctions between different types of ENDS products, noting that small and easily concealable cartridge-based products like JUUL have higher youth usage rates. Id. at 12–13. Triton argues that their open-system products, which are sold primarily in vape shops and require more active consumer participation, were not the focus of the same level of concern in the guidance. Id. at 14.
This case has important implications for public health and regulatory authority. A ruling for the FDA would solidify the agency’s power to impose strict public health protections, particularly regarding flavored e-cigarettes, reinforcing its ability to prevent youth nicotine addiction and potentially leading to the continued ban of most flavored products. Alternatively, ruling for Triton would weaken the FDA’s regulatory reach, allowing for more flavored e-cigarettes to stay on the market and requiring agencies to provide clearer notice when changing regulatory standards. Such a ruling would set a precedent that increases judicial scrutiny over how federal agencies create and implement new rules.
Free Speech Coalition, Inc. v. Paxton
No. 23-1122, 5th Cir. (Argument TBD)
Preview by Elya Nassaj, Member
In Free Speech Coalition v. Paxton, the Supreme Court will determine whether Texas’s law requiring age verification for websites distributing sexual content is subject to strict scrutiny, or if it can be upheld under the more deferential rational-basis review. Free Speech Coalition is appealing the Fifth Circuit’s decision that held the Texas House Bill 1181 (“H.B. 1181”)—aimed at protecting minors from harmful online content—as constitutional under rational-basis review. Petitioner’s Brief at 1. The Fifth Circuit’s decision overturned the trial court’s ruling and set up a legal battle by creating a circuit split, as it departed from the lower court’s application of the prevailing notion that age-verification laws affecting access to online content are subject to strict scrutiny.
H.B. 1181 mandates that websites containing more than one-third of content that is “sexual material harmful to minors” must verify the ages of its users, typically through government-issued identification. Id. The law also requires such sites to display “health-warnings” about the alleged dangers of pornography, including risks of addiction and brain damage. Id. at 8. Texas argues it has a compelling interest in this law because it has an interest in protecting children from harmful effects, like those of online pornography, which it claims is easily accessible online and is contributing to a public health crisis. Brief in Opposition at 26.
The petitioners challenging the law argue that it violates the First Amendment by imposing a burden on adult access to lawful speech. Petitioner’s Brief at 13. They claim that H.B. 1181 is similar to the Child Online Protection Act (COPA), which the Supreme Court struck down under a strict scrutiny basis of review in Ashcroft v. ACLU (2004). Id. at 14. According to the petitioners, H.B. 1181 is a content-based restriction on speech, and the state must demonstrate that it is narrowly tailored to serve a compelling interest—something they argue Texas has not done. Id.
Texas, represented by Attorney General Ken Paxton, contends that the Fifth Circuit correctly applied rational-basis review to H.B. 1181’s age-verification requirements, arguing that the law serves a legitimate state interest in protecting minors and that no circuit split has been created. Brief in Opposition at 23. The state believes that technological advances now make it easier to verify a user’s age without infringing on an adult’s rights and notes that age-verification methods are already used in other industries like alcohol and tobacco sales and gambling. Id. at 7, 29. Texas also argues that the law’s requirements are commercially reasonable and narrowly focused on preventing minors from accessing harmful material without unduly restricting adults. Id. at 32–33.
This case is significant because it could reshape the legal landscape surrounding First Amendment protections on online content regulation. If the Fifth Circuit’s ruling is affirmed, it could empower states to pass similar laws aimed at protecting minors, potentially expanding state control over online content as challenges to those laws would be viewed in a more deferential light in favor of the states. On the other hand, a ruling in favor of the petitioner could reaffirm the application of strict scrutiny to laws affecting adult access to constitutionally protected content, which would limit the extent to which states can regulate online speech in the name of child protection.
The Court’s decision will likely address broader concerns about the application of previous rulings, such as Reno v. ACLU and Ashcroft v. ACLU, to modern technologies, especially in an era where digital privacy and free speech are increasingly at the forefront of public discourse. See 521 U.S. 844 (1997); 542 U.S. 656 (2004). With other states considering similar laws, the outcome of Free Speech Coalition v. Paxton could have far-reaching implications for online content regulation and the balance between a state’s interest in protecting children and adults’ free speech rights.
Facebook, Inc. v. Amalgamated Bank
No. 23-980, 9th Cir. (Argument Nov 6, 2024)
Preview by Natalie de Benedetti, Associate
In 2015, political consulting company Cambridge Analytica wrongfully harvested the data of millions of Facebook users to curate content and target voters to support the presidential campaign of Senator Ted Cruz. See Patrick Svitek & Haley Samsel, Ted Cruz’s Campaign Once Employed Cambridge Analytica, the Firm at the Center of Facebook Scandal, Tex. Trib. (Mar. 20, 2018), [https://perma.cc/YK77-4KT5]. Though Facebook asked Cambridge Analytica to delete the improperly acquired data, the consulting company did not do so, and instead repeated its activity in 2016, employing user data to assist the presidential campaign of Donald Trump. See Scott Detrow, What Did Cambridge Analytica Do During the 2016 Election?, NPR (Mar. 20, 2018, 4:21 PM), [https://perma.cc/RQD8-PWV7]. Amalgamated Bank claims that Facebook did not publicly share that Cambridge Analytica refused to confirm in writing that it deleted the user data. According to Facebook, whose parent company is Meta, it was not until 2018, “when Cambridge Analytica’s continued use of the data became [publicly] known, [that] Meta’s stock price fell.” Brief for the Petitioners at 3.
Respondents, Amalgamated Bank and other Facebook shareholders, filed suit against Facebook for securities fraud. Respondents allege that some of the risk disclosures submitted in Meta’s 2016 10-K filing, including the disclosure that “security breaches, loss of user trust in Meta’s products, and misuse of user data by third parties could or may result in harm to Meta’s business,” were misleading. Brief for the Petitioners at 3. A private securities fraud claim under SEC Act Section 10(b) and SEC Rule 10b-5(b) requires plaintiffs to prove the defendant intentionally made a material misrepresentation or omission in connection with the purchase or sale of a security, that the plaintiff relied on that misrepresentation or omission, that the plaintiff suffered a loss, and that that loss was caused by the defendant’s misrepresentation or omission. 15 U.S.C. § 78j(b); 17 C.F.R. § 240-10b-5.Specifically at issue here is the definition of a “material misrepresentation” or “omission.”
The district court ruled in favor of Facebook and dismissed the Respondent’s claims, however, the Ninth Circuit reversed in part, concluding, as the Respondents frame it, that “treating . . . a material adverse event as a merely hypothetical prospect can be misleading even if the event has not yet produced follow-on business harm because the company has kept the truth from the public.” Brief for Respondents at 1. After this ruling in favor of Amalgamated Bank, Facebook petitioned the Supreme Court for certiorari.
The Court will decide whether a risk disclosure in the SEC-mandated “Risk Factors” section of a 10-K filing is false or misleading when the disclosure does not reveal that the warned-of risk has materialized for the company in the past, notwithstanding that there exists no ongoing or future harm from that past materialized risk.
Respondents argue that the disclosures were misleading because they did not reveal that the risk of security breaches and misuse of user data by third parties was not merely speculative but rather was a potentially ongoing occurrence conducted by Cambridge Analytica. Brief for Respondents at 8. Respondents agree with Facebook that not all past risks need to be disclosed, and therefore, if the actions of Cambridge Analytica did not pose an ongoing or future risk, the 2015 data breach would not be a required disclosure. Id. at 9. Respondents disagree with Facebook, however, when arguing that the past circumstances involving Cambridge Analytica are material because they did pose a risk of ongoing or future harm. Id. at 12–13. Facebook argues that “[r]isk disclosures . . . [are] not misleading merely because they do not disclose previous occurrences of the specified triggering event or the present risk of harm from such occurrences.” Brief for the Petitioners at 18.
If the Court rules in favor of Facebook’s shareholders by concluding that past risks with potential ongoing or future negative impacts must be disclosed, already burdensome filing requirements for companies may greatly increase. The Supreme Court’s willingness to grant certiorari in this case also indicates a desire to resolve ongoing circuit splits.
Garland v. VanDerStok
No. 23-852, 5th Cir. (Argument Oct. 8, 2024)
Preview by Ian McCormack, Member
In Garland v. VanDerStock, the Court will address a 2022 rule issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to address the urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms commonly called “ghost guns.” Brief for Petitioners at 2. “Ghost guns” are kits designed to be assembled into firearms but were not previously defined as firearms nor subject to the same regulations until the 2022 ATF rule.
The Court will answer whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968 (“GCA”) and whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the Act.
The case is on appeal from the 5th Circuit, which sided with the district court, ruling for VanDerStock, and held that the 2022 ATF rule “flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy.” VanDerStok v. Garland, 86 F.4th 179, 182 (5th Cir. 2023), cert. granted, 144 S. Ct. 1390 (2024).
Previously, the Northern District of Texas attempted to bar the ATF from enforcing the Rule anywhere in the U.S. while the case was ongoing, but the Supreme Court twice intervened to allow the rule to continue to be enforced during litigation. Now, the Supreme Court will take up the case on its merits.
Petitioners argue that the Rule is in line with both the congressional intent and the language of 18 U.S.C. § 921(a)(3)(A), which broadly defined “firearm” to include “any weapon” that “may readily be converted to expel a projectile by the action of an explosive.” Brief for Petitioners at 16. They also argue that the rule correctly clarifies that “frame[s]”and “receiver[s],” 18 U.S.C. § 921(a)(3)(B), include “partially complete, disassembled, or nonfunctional” frames and receivers that “may readily be completed, assembled, restored, or otherwise converted to function as” frames or receivers, 27 C.F.R. § 478.12(c)— for example, by drilling a few holes and removing temporary plastic rails. Id. at 17. They also contend the “Fifth Circuit’s interpretation would frustrate the Act’s manifest design by transforming its central definition into an invitation to evasion,” implying that the “ghost gun” manufacturers are attempting to circumvent the existing rules and the 2022 ATF Rule was closing loopholes in line with congressional intent. Id. at 17.
Respondents argue that “the Rule, however, goes further and includes precursors that may ‘readily be converted’ to function as frames or receivers,” and this violates the plain text of the GCA. Brief for Respondents at 15. They also note the practical problems with the ATF definition, as under the 2022 Rule, “Americans who own AR-15 rifles, one of America’s “most popular firearms,” see 87 Fed. Reg. 24,652, run the risk of violating the federal prohibition on unregistered machine guns in the NFA.” Id. at 15.
Respondents also argue that “the GCA does not define “firearm” to include anything that may “readily be . . . converted” to function as a firearm, but rather any “weapon” that may readily be converted to do so.” Id. at 16. They also cite public policy concerns, arguing,“[t]he evidence suggests that the precursors and weapon parts kits targeted by the Rule are favored by hobbyists, while the vast majority of criminals prefer to get fire-arms that have been professionally manufactured.” Id. at 17. Finally, echoing the 5th Circuit, they point to this as an example of executory agency overreach: “[T]o the extent there is any basis for a federal regulatory response to these items it is up to Congress, not ATF, to make it.” Id. at 17.
This case will have extreme effects on the “ghost gun” industry. Many individual manufacturers have faced increased scrutiny and several lawsuits from states and municipalities. Numerous amicus briefs have been filed supporting the Respondents by those manufacturers and other gun rights organizations, as well as 27 states, led by West Virginia and Montana. 20 major cities, 22 states and the District of Columbia, and other interest groups have provided amicus briefs supporting the Petitioners.
This case will also have a significant impact on the ATF’s ability to interpret statutes and regulate firearms—a contentious constitutional and politically charged issue. Although the Court has allowed the ATF to continue to enforce the Rule until now, the Court was divided 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicating that they would have denied the government’s request and allowed the ban on enforcement of the rule to continue. Now that the case has arrived at the Court to be heard on its merits, it is unclear which way the court will eventually decide.
Glossip v. Oklahoma
No. 22-7466, Okla. Crim. App. (Argument Oct. 9, 2024)
Preview by Tegan Oliver, Member
Glossip v. Oklahoma is a capital case about the 1997 murder of Barry Van Treese. Brief for Petitioner at 1. The issue before the Court is whether petitioner Richard Glossip should be given a new trial after new evidence came out undermining his conviction. Id. at 3. Specifically, the Court will decide whether an Oklahoma state appellate court erred in rejecting the State’s concession of constitutional errors in Glossip’s trial and refusing to decide the substantive issues in the case. Brief for Respondent at i. In the meantime, the Court granted a stay of Glossip’s execution. Glossip v. Oklahoma, 143 S. Ct. 2453 (2023).
It is undisputed that Justin Sneed murdered Barry Van Treese. Brief for Petitioner at 1. During the initial investigation of the crime, Sneed told prosecutors that Richard Glossip planned the murder. Id. In return, prosecutors promised not to pursue the death penalty for Sneed. Id. This testimony is the only direct evidence connecting Glossip to the murder, and based on this evidence, Glossip was convicted of murder and sentenced to death. Id. at 5–6.
On appeal, the Oklahoma Court of Criminal Appeals reversed Glossip’s conviction and remanded for a new trial based on ineffective assistance of counsel. Glossip v. State, 29 P.3d 597, 605 (Okla. Crim. App. Aug. 17, 2001). Glossip was convicted again in a second trial, and the Court of Criminal Appeals this time affirmed. Glossip v. State, 157 P.3d 143, 164 (Okla. Crim. App. Apr. 13, 2007).
Nearly two decades after Glossip’s initial conviction, in 2023, the prosecution released documents showing that after Sneed’s arrest, a psychiatrist prescribed him lithium. Brief of Petitioner at 1–2. At trial, the prosecutors failed to disclose the psychiatrist visit and prescription to Glossip’s attorneys and allowed Sneed to testify that he had never seen a psychiatrist. Id. at 2. Glossip says that this prescription, in combination with Sneed’s bipolar disorder and methamphetamine addiction, would have called into question Sneed’s memory of the incident and supported the alternative theory that Sneed impulsively killed Van Treese. Id. Other evidence undermining Glossip’s conviction turned up at the same time, including evidence of the prosecutor and Sneed’s attorney altering Sneed’s testimony and lying to the trial court about it, as well as evidence offering an innocent explanation for the cash that Glossip had on his person when he was arrested––which prosecutors had used in their case. Id.
Even before this evidence came to light, Oklahoma legislators and the Attorney General had commissioned two independent investigations of Glossip’s conviction, each of which independently concluded that the conviction should be set aside because of misconduct and errors. Id. at 2–3. This array of errors led the State to call for Glossip’s conviction to be vacated. Id. at 3. Nonetheless, the Oklahoma Court of Criminal Appeals upheld Glossip’s conviction and sentence a second time. Glossip v. State, 529 P.3d 218, 228 (Okla. Crim. App. Apr. 20, 2023). The defense applied for a stay of execution and filed a petition for a writ of certiorari at the Supreme Court, with the State’s support. Brief for Petitioner at 20; see generally Brief for Respondent. The Supreme Court granted the stay and petition. Glossip v. Oklahoma, 143 S. Ct. 2453 (2023) (stay); Glossip v. Oklahoma, 144 S. Ct. 691 (2024) (petition).
Glossip makes two principal arguments in favor of a new trial. First, Glossip says prosecutors’ failure to disclose Sneed’s psychiatric treatment violated the Brady rule that prosecutors must disclose all evidence “favorable to an accused” and “material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963); Brief for Petitioner at 21. Second, under Napue v. Illinois, 360 U.S. 264 (1959), Glossip argues he is entitled to a new trial because prosecutors knowingly did not correct Sneed’s false testimony regarding his psychiatric treatment, Brief for Petitioner at 21, which meets the new trial standard under Napue of “any reasonable likelihood” of an effect on the jury’s judgment, 360 U.S. at 271.
The State’s brief is written “in support” of the defense. Brief for Respondent at 1. In it, the State agrees that the prosecutors acted in violation of Brady and Napue, and says the Court of Criminal Appeals erred in 2023 by invoking an Oklahoma post-conviction procedural bar––and consequently refusing to decide the substantive issues in Glossip’s case––despite the State having waived the bar. Id. at 19.
The attorney appointed by the Court to argue on behalf of the State will likely say, mirroring the appellate court’s reasoning, that there was no Brady violation because reasonably diligent efforts could have found the information at issue, and there were not sufficient facts to suggest that, but for the error, no reasonable juror could have found Glossip guilty. See Glossip v. State, 529 P.3d 218, 226 (Okla. Crim. App. Apr. 20, 2023). The attorney will similarly argue that there was no Napue error because “[d]efense counsel was aware or should have been aware that Sneed was taking lithium at the time of trial” and “[t]his fact was not knowingly concealed by the prosecution.” Id.
All capital punishment cases are important. But particularly Glossip, given the State’s concessions of constitutional violations and support of Glossip’s request for a new trial. See Brief for Respondent at 19. What’s more, it’s not uncommon for death row inmates to be executed despite strong evidence of innocence; a Missouri man, Marcellus Williams, was the most recent of these cases. See, e.g., David A. Lieb & John Hanna, A Missouri man has been executed for a 1998 murder. Was he guilty or innocent?, AP News (Sept. 25, 2024), [https://perma.cc/FWY8-5ZVY]. The Supreme Court’s approach to questions like those posed in Glossip has critical consequences for the integrity of the criminal legal system. Id.
Hewitt v. United States
No. 23-1002, 5th Cir. (Argument TBD)
Preview by Read Brown, Member
In Hewitt v. United States and the consolidated case Duffey v. United States, the Court will consider whether § 403(a) of the First Step Act (“FSA”), which clarifies sentencing enhancements under 18 U.S.C. § 924(c), applies to individuals sentenced prior to the FSA but whose sentences were vacated and are being reimposed post-enactment.
18 U.S.C. § 924(c)(1)(C) imposes a minimum prison term of twenty-five years on defendants with previous convictions under that section. Otherwise, the minimum is only five years. Prior to the enactment of FSA in 2018, twenty-five year sentences could be “stack[ed]” together, meaning a defendant convicted of multiple violations of § 924(c)(1) could be sentenced to a mandatory twenty-five years in prison for each charge beyond the first, even with an otherwise clean record. Brief for Petitioner at 1–2. Responding to the unusually long sentences this scheme created, § 403(a) of the FSA amends § 924(c)(1)(C) to only apply if the defendant had prior convictions. Id. at 2. Additionally, § 403(b) states that this clarification applies retroactively to offenses that occurred before the FSA’s enactment on December 21, 2018, but that had not yet been sentenced as of that date. Id. at 3.
In 2008, Petitioner Tony Hewitt was convicted of several § 924(c)(1) charges connected to a string of Texas bank robberies. Id. at 9. Under the then-existing version of the statute, all but one of his charges mandated the twenty-five year minimum. Id. He received a 305 year prison term, 275 of which came from stacking. Id. Following an intervening Supreme Court decision in 2019, the district court vacated Hewitt’s sentence. Id. at 9–10. At resentencing, both Hewitt and the Government argued that he should be sentenced under the revised § 924(c)(1)(C), meaning he would be subject to the five year minimum rather than the twenty-five year enhancement. Id. However, both the district court and Fifth Circuit held that FSA’s retroactivity did not apply to vacated sentences, because they had been originally imposed pre-enactment. Id. at 10–11.
After the Fifth Circuit’s ruling, the Sixth Circuit followed suit, finding that a vacated sentence was still one imposed before FSA enactment for the purposes of § 924(c)(1). Pet. for a Writ of Cert. at 10. However, the Third and Ninth Circuits have held that the FSA reductions do apply to resentencing in such a situation. Id. at 9. The Supreme Court granted certiorari to resolve this circuit split. Brief for Petitioner at 2.
Both Petitioner and Respondent argue that Congress intended for vacated sentences to receive the benefits of the amended version of § 924(c)(1). Id. at 17. Citing Supreme Court and common law precedent dating back to 1592, the parties contend that a vacated sentence has always been intended to be “null and void,” leaving the defendant in the “same situation as if no trial had ever taken place.” Id. at 18. Therefore, Hewitt ought to be treated as if he never had been sentenced for his original conduct. Id. at 21. Additionally, dictionary definitions, rules of grammar, and the statutory context imply the statute conforms with Petitioner’s interpretation. See Brief for Respondent Supporting Petitioners at 16–42.
This case presents the unusual situation of the Government filing a brief in support of Petitioner rather than in opposition. Id. at 1. However, agreement between the parties does not guarantee a unanimous, or even necessarily a favorable, outcome. See, e.g., Lucia v. SEC, 585 U.S. 237 (2018). Petitioners argue that this decision has the potential to impact thousands of sentences, possibly leading to hundreds of years’ worth of reductions for the many federal prisoners convicted under § 924(c)(1). Petition for Writ of Certiorari at 25.
Medical Marijuana, Inc. v. Horn
No. 23-365, 2d Cir. (Argument Oct. 15, 2024)
Preview by Matthew Chang, Member
Medical Marijuana, Inc. v. Horn concerns whether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) permits a civil lawsuit for economic harm due to personal injuries. RICO provides that “[a]ny person injured in his business or property by reason of [racketeering activity which violates RICO] may sue . . . and shall recover threefold the damages he sustains.” 18 U.S.C. § 1964(c).
Respondent Horn, a trucker, was involved in a car accident which left him with chronic pain. Brief for Respondent at 4. After exhausting traditional methods of pain relief to no avail, Respondent learned about Dixie X, a CBD-rich pain medication that was advertised as THC-free and sold by Petitioner. Id. at 4–5. Respondent’s employment was contingent on passing routine drug tests—which THC would compromise. He purchased and used Dixie X only after doing extensive research to confirm that it was THC-free. Id. Shortly after using Dixie X, Respondent was drug tested, and the test came back positive for THC—though the parties disagree as to whether the Dixie X Respondent consumed actually contained THC. Id. at 5–6; Brief for Petitioner at 8–9. Respondent was then fired and subsequently brought suit under multiple causes of action, including 18 U.S.C. § 1964(c). Brief for Petitioner at 8–9.
Respondent argues that Petitioner “violated the Controlled Substances Act and engaged in mail and wire fraud—predicate offenses under RICO—and that, as a result, he suffered a compensable business or property injury in the form of lost employment.” Brief for Respondent at 6. Respondent argues that RICO’s recovery for a “person injured in his business” includes one’s economic harm due to loss of employment because (1) “injured” means “harmed;” (2) “business” includes employment; and (3) RICO “instructs courts to ‘liberally construe[]’ the statute to ‘effectuate its remedial purpose.’” Id. at 8, 11–13, 17–18; 18 U.S.C. § 1964(c).
Petitioner, however, contends that the nature of Respondent’s claim is personal injury (“ingesting a product allegedly containing THC”) which led to damages of a business nature. Brief for Petitioner at 11–12. Petitioner contends that plaintiffs “undisputedly cannot bring civil RICO suits for personal injuries,” so Respondent’s claim should be barred. Id. at 11. Petitioner supports its claim by (1) likening RICO to the Clayton Act, which has similar language that the Court has held excludes liability for personal injuries; and (2) arguing that Respondent’s interpretation renders the “business or property” requirement “without ‘restrictive significance.’” Id. at 11–12, 14–16, 25; 18 U.S.C. § 1964(c).
The United States District Court for the Western District of New York sided with Petitioner, holding Respondent’s claim stemmed from a personal injury, thus falling outside the “business or property” requirement of a civil RICO claim. Brief for Petitioner at 10, 18 U.S.C. § 1964(c). The Second Circuit reversed, holding that RICO focuses “on the nature of the harm, not the source of the harm,” so recovery for economic harms due to prior personal injury are actionable under civil RICO. Brief for Petitioner at 10–11. Oral argument is set to take place on Tuesday, October 15, 2024.
NVIDIA Corp. v. E. Ohman J:or Fonder AB
No. 23-970, 9th Cir. (Argument Nov. 13, 2024)
Preview by Alexa Marsh, Member
In NVIDIA Corp. v. E. Ohman J:or Fonder AB, the Supreme Court will address the securities fraud pleading requirements for falsity and scienter under the Private Securities Litigation Reform Act (“PSLRA” or “the Act”). This case presents two legal issues: “i) whether plaintiffs seeking to allege scienter under PSLRA based on allegations about internal company documents must plead with particularity the contents of those documents; and ii) whether plaintiffs can satisfy the Act’s falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.” Brief for Petitioners at i.
American technology company NVIDIA Corporation and its CEO, Jensen Huang (“NVIDIA”), appealed a decision by the Ninth Circuit that found for the plaintiffs, Swedish investment management firm E. Ohman J:or Fonder AB. The class action complaint alleged that NVIDIA violated Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder by intentionally failing to disclose how much of its revenue was driven by sales to cryptocurrency miners. Brief for Petitioners at 12–13. The plaintiffs relied on an expert report that used public data on cryptocurrency mining to estimate the amount of NVIDIA’s revenue accrued by mining activities. Id. at 13. To establish scienter, the plaintiffs cited interviews with former employees who claimed, without particularity, that internal reports were available to NVIDIA’s CEO. Id. at 14–15. Instead of using particular facts, the complaint cited expert findings, speculating that NVIDIA’s internal data mirrored those trends. Id.
A divided Ninth Circuit panel partially reversed the district court’s dismissal, ruling that the plaintiffs had adequately alleged scienter based on the employee interviews and expert report. Id. at 16–17. The panel found that the amended complaint sufficiently alleged that NVIDIA’s CEO made materially false or misleading statements, thereby violating Exchange Act Section 10(b) and Rule 10b-5 thereunder. Id.
NVIDIA claims that the Ninth Circuit misinterpreted the PSLRA and maintains that Huang’s statements were neither false nor misleading. Id. at 19–20. In its appeal to the Supreme Court, NVIDIA cites circuit court splits on pleading requirements between the First and Ninth Circuits and the Second, Third, Fifth, Seventh, and Tenth Circuits. NVIDIA argues that the plaintiffs failed to plead with particularity the relevant contents of the internal documents Huang allegedly reviewed, thereby not satisfying the Act’s heightened pleading standards for scienter followed by the Second, Third, Fifth, Seventh, and Tenth Circuits. Id. at 27.
Royal Canin U.S.A., Inc. v. Wullschleger
No. 23-677, 8th Cir. (Argument Oct. 7, 2024)
Preview by Mitchell Davenport, Member
In a case that sounds quite like a 1L Civil Procedure hypothetical, the Respondents have turned Royal Canin U.S.A. v. Wullschleger into a case raising critical questions about stare decisis and statutory interpretation, threatening to upend over 100 years of precedent and usher in a radical tightening of the federal judiciary’s power.
The Court is tasked with determining whether, after removal to federal court, the plaintiff’s amendment of a complaint that excises all federal claims—but retains state law claims—strips the court of subject matter jurisdiction and requires remand to state court. Respondents ask whether the court has federal question jurisdiction or supplemental jurisdiction. Brief for Petitioners at i. The Respondents present another issue—whether the federal question jurisdiction test established in Grable & Sons should be overruled. See Brief for Respondents at i; Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005).
This case arose after Respondents, a group of pet owners, filed a class action, alleging Royal Canin and Nestlé Purina’s “prescription” pet food contains no medicinal ingredients, despite advertising as such and requiring a veterinarian’s prescription to purchase. Respondents further alleged Petitioners colluded to convince veterinarians and retailers to advertise their “prescription” pet food. Respondents filed in Missouri state court, with claims predicated on state law but including allegations that Petitioners violated federal Food, Drug, and Cosmetic Act (“FDCA”) and FDA regulations. Brief for Petitioners at 4. Petitioners removed the case to federal court, and two years later—after the Eighth Circuit found federal question jurisdiction on appeal—the Respondents amended their complaint, excising all mentions of federal law, and quickly filed a motion for remand, admitting the amendments were designed to “precipitate a return to state court.” Id. at 6. The district court denied the motion, but the Eighth Circuit reversed, finding that both subject matter and supplemental jurisdiction must be based on the amended complaint alone, breaking not only with circuit precedent, but, as Petitioners argue, with every other circuit. Id. at 7.
Petitioners argue that the Supreme Court has already stated that federal courts can exercise supplemental jurisdiction over state-law claims following the amendment of a complaint in a removed case, and Congress codified this case law in 28 U.S.C. § 1367. According to Petitioners, that much of the precedent comes before the enactment of Section 1367 makes no matter, because when issues are well-defined by the Court, new statutes “bring[] the old soil with it.” Brief for Petitioners at 17. Nor is it damaging to Petitioners’ claim that those cases presented vastly different questions and factual scenarios than those presented here. Compare Brief for Respondents at 42 (“[I]t would be a mistake to read judicial opinions like statutes, ascribing critical significance to every word.”), with Reply Brief for Petitioners at 12–13 (“Respondents cannot [refute] precedents . . . so they label those decisions dicta.”). In resolving these questions, the Court will be forced to determine the extent of the interpretative principle that transplanted terms bring precedent with them, see Brief for Petitioners at 2, the continuing validity of the Court’s pre-Section 1367 pendent jurisdiction precedent, see Reply Brief for Petitioners at 12–14, and wade through colorable yet competing textualist arguments from both parties, see Brief for Respondents at 32–40; Reply Brief for Petitioners at 4–12.
Of more consequence is the bomb dropped in the Respondent’s brief: whether to overrule Grable. Questions of federal question jurisdiction turn on the meaning of the jurisdiction-granting phrase “arising under the [Constitution, federal law, or treaties],” appearing in both the Constitution and the federal question jurisdiction statute. U.S. Const. art. III, § 2; 28 U.S.C. § 1331. In Grable, the Court held that federal courts have jurisdiction over claims not only predicated upon a federal cause of action but also those which “arise under” federal law when: (1) a federal issue is necessarily implicated by the state law claims; (2) the parties dispute over the “validity, construction, or effect of federal law”; (3) the issue is substantial; and (4) it would not upset the balance between state and federal judicial power. Grable, 545 U.S. at 312–14.
This type of jurisdiction is as prevalent in lower courts as it is uncommon in the Supreme Court since it was approved of in Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), with Justice Holmes’s limited formulation that “[a] suit arises under the law that creates the cause of action” largely discarded. Brief for Respondents at 12–14. Besides Grable, the Court has seldom upheld this type of jurisdiction, and in Merrell Dow Pharms. Inc v. Thompson, 478 U.S. 804 (1986), the Court ironically found a complaint implicating the FDCA, which Petitioners argued is the “federal issue” here, did not support federal question jurisdiction. Brief for Respondents at 22. Regardless, the Eighth Circuit found this type of jurisdiction existed over the original complaint. Brief for Petitioners at 5.
Respondents argue the Grable standard is unworkable, and federal question jurisdiction should be limited to cases with a federal cause of action, as Justice Holmes wrote. Brief for Respondents at 3. Without subject matter jurisdiction under Grable, the district court never would have had jurisdiction over the original complaint, much less the amended complaint, granting Respondents another path to victory.
Respondents likely have a supporter on the Court. Justice Thomas concurred in Grable, arguing Smith should be overruled, but feeling bound to uphold it because neither party asked the Court to overrule the case. Now, with the question before the Court, Justice Thomas’s ambivalent relationship to stare decisis may guarantee Respondents at least one vote. Furthermore, the Court cannot dodge Grable by emphasizing constitutional avoidance, as all three questions presented implicate federal subject matter jurisdiction—a constitutional issue.
However, the Court may be able to dodge Grable for another reason: the Court did not grant certiorari on that question. In fact, the Petitioners had not yet mentioned Grable in any of their court filings. Not a single amicus had mentioned Grable except to explain “arising under” jurisdiction. The Respondents had mentioned Grable in their opposition to the writ only to explain the Eighth Circuit’s finding of subject matter jurisdiction over the original complaint. Only in their merits brief do Respondents make this a critical issue of the case and spend half their brief doing so. Brief for Respondents at 11–30. Petitioners argue they were blindsided, and unable to “fully brief[]” the issue, demanding the Court not address the issue. Reply Brief for Petitioners at 17.
Even if the Court declines to address Grable, Respondents also argue that Merrell Dow is controlling. Thus, there was no federal question jurisdiction in the first place, and remand is required. Brief for Respondents at 22. Petitioners argue Merrell Dow is inapposite, as the Respondent’s original brief raised many more federal issues than in Merrell Dow, and, regardless, the Court should not overrule Grable. Reply Brief for Petitioners at 24–25.
Petitioners ask for a return to the status quo—to a rule that every circuit had understood as binding—and to ensure district courts have discretion whether to remand following amendment by the plaintiff. Brief for Petitioners at 48. In contrast, the scope of Respondents’ arguments threatens to upend the delicate balance between the state and federal judiciaries. Not only would federal courts lose jurisdiction over numerous cases in which they routinely do, but plaintiffs would gain another new tool to avoid federal court. Brief for Respondents at 35. If Respondents prevail, Royal Canin may enable plaintiffs to engage in extensive forum shopping, undermining defendants’ right to removal and disrupting the equitable administration of law, which relies on the balanced but broad concurrent jurisdiction of state and federal courts.
Stanley v. City of Sanford, Florida
No. 23-997, 11th Cir. (Argument TBD)
Preview by Andrew Bernstein, Member
In Stanley v. City of Sanford, Florida, the Court is asked to decide whether an ex-employee has standing to sue under Title I of the Americans with Disabilities Act (ADA) for discrimination in the post-employment distribution of benefits.
Petitioner Karyn D. Stanley was a firefighter with the city of Sanford, Florida, for nearly twenty years before her Parkinson’s disease diagnosis led her to take disability retirement in 2018. Brief for Petitioner at 11. While she was still employed in 2003, the City, due to cost-cutting measures, changed its health insurance policy. Brief in Opposition at 5. Before 2003, the plan provided a health insurance subsidy until the age of sixty-five for employees who served the City for at least twenty-five years, and employees retiring prior to twenty-five years were covered for qualifying disability reasons. Id. at 4. After the 2003 changes, which Stanley alleges she was never informed of, disabled employees who retired before twenty-five years of service were only paid the subsidy for twenty-four months, while employees who worked at least twenty-five years were still entitled to the subsidy until age sixty-five. Id. at 5. After Stanley retired and lost her health insurance subsidy following the twenty-four-month period, she sued under Title I of the ADA, the Rehabilitation Act, and the Florida Civil Rights Act.
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . terms, conditions, or privileges of employment.” 42 U.S.C. § 12112(a). The Act further defines a “qualified individual” as someone who “can perform the essential functions of the employment positions that such individual holds or desires.” § 12111(8). There is a current circuit split over whether ex-employees have standing under the “qualified individual” provision.
According to Stanley, the Eleventh Circuit’s statutory interpretation of Title I was wrong because the phrase “qualified individual” in the ADA addresses what kind of conduct by the employer counts as discrimination, not who can bring a claim. Petition for a Writ of Certiorari at 6. Instead, Stanley argues that ex-employees can bring suit because the Act’s “enforcement provisions” allow “any person” to sue for discriminatory compensation policies “each time . . . benefits . . . [are] paid.” Id. at 25 (quoting 42 U.S.C. §§ 12117(a), 2000e-5) (brackets and ellipses in original). Stanley says this language means proper standing is not limited to active employees, but rather plaintiffs have the right to sue whenever they are affected by, or subject to, a discriminatory compensation policy. Id. at 25–26.
The City, relying on the findings of the district court, argues that since its change in policy is not discriminatory, the resolution of the circuit split will “make no difference to the outcome of Petitioner’s case.” Brief in Opposition at 10, 20. The City argues that the 2003 changes were not discriminatory because: (1) they were rationally related to the legitimate interest of trimming the budget, as held by the district court; (2) they were based on the employee’s years of service, not disability; and (3) they still treated disabled employees better by providing them with the subsidy for twenty-four months after retirement, whereas non-disabled employees retiring before twenty-five years of service did not get the subsidy at all. Id. at 1, 5, 7. The City also rebukes Petitioner’s assertion that the ADA and its subsequent amendments should be read in tandem with Title VII and the Court’s decision in Robinson v. Shell Oil Company. Id. at 22; see also 519 U.S. 337 (1997) (allowing ex-employees to sue under Title VII). According to the City, the ADA contains “temporal modifiers” that Title VII does not, making the ADA’s definition of “qualified individual” different from Title VII’s definition of “employees” in that it uses the present tense which only applies to employees who desire or already have a job with the defendant at the time defendant commits the discriminatory act. Brief in Opposition at 26.
The Court granted the petition for certiorari on June 24, 2024, and the parties have until October 28, 2024 to file briefs on the merits. Stanley v. City of Sanford tees up not only a looming legal dispute over the proper statutory interpretation of the ADA but, more broadly, the policy implications for the act’s scope.
United States v. Skrmetti
No. 23-477, 6th Cir. (Argument TBD)
Preview by Elias Christensen, Member
In U.S. v. Skrmetti, the Supreme Court will consider whether a Tennessee law banning all medical care that affirms a minor’s gender identity violates the Equal Protection Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1. Transgender people, or those whose birth sex does not accord with their perception of their gender, commonly receive treatment to relieve the distress arising from this conflict by living outwardly in accordance with their gender identity. Transgender minors do not receive any medical intervention with drugs or surgery until the onset of puberty, after which a comprehensive medical evaluation may recommend the adolescent receive puberty-suppressing medication, known as “puberty blockers,” or cross-sex hormone therapy. See Petitioners Brief at 10–11. Tennessee Senate Bill 1 (“SB1”), bans all such treatments in minors only if the treatment is provided for the purpose of relieving distress from, or living as a gender in conflict with, the minor’s birth sex. Tenn. Code Ann. § 68-33-101, et seq. (2023). SB1 does not proscribe puberty blockers or hormone therapy for any other purpose and contains explicit exemptions for their use to treat congenital defects, precocious puberty, disease, or physical injury. Id.
The case was brought by three transgender adolescents living in Tennessee already receiving these treatments, their parents, and a Tennessee doctor who treats gender dysphoria in adolescents. The district court enjoined Tennessee officials from enforcing SB1, holding that because the law describes the prohibition in explicitly sex-based terms, it was subject to, and failed, heightened scrutiny for discrimination based on sex and transgender status. The Sixth Circuit reversed, holding that SB1 does not discriminate based on sex under the Equal Protection Clause and that discrimination against transgender individuals is subject only to rational basis review. The United States intervened on appeal and has moved for a divided argument with the respondent plaintiffs so that all parties to the suit may represent their interests before the Court at oral argument.
Challenges to similar laws in other states are currently pending across several jurisdictions, but the Eighth and Eleventh Circuits are the only appellate courts to issue rulings thus far. Like the Sixth Circuit, the Eleventh Circuit held that a ban on gender-affirming care for minors was subject only to rational-basis review and that the law was likely to satisfy a rational basis standard. See Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1230 (11th Cir. 2023). Conversely, the Eighth Circuit ruled that such laws were subject to heightened scrutiny because “[t]he biological sex of the minor patient is the basis on which the law distinguishes between those who may receive certain types of medical care and those who may not.” Brandt v. Rutledge, 47 F.4th 661, 670 (8th Cir. 2022). The Eighth Circuit has granted a petition for an en banc rehearing of Brandt, and a similar petition is currently pending for Eknes-Tucker in the Eleventh Circuit. More decisions concerning laws aimed at transgender individuals have appeals pending before the Seventh and Tenth Circuits, while other cases are awaiting trial in districts in the Fourth and Ninth Circuits. The Court is thus weighing in on a pressing issue that will have significant impacts throughout much of the country.
The United States petitioner and the private plaintiffs argue that the law warrants heightened scrutiny because it “creates a sex-based classification on its face by defining the prohibited procedures based on the patient’s sex assigned at birth.” Petitioners Brief at 18 (internal citation omitted). They further contend that because similar principles underlie the Equal Protection Clause and Title VII, the Court’s reasoning in the Title VII discrimination case Bostock shows that discrimination based on transgender status is inherently a sex-based classification subject to greater scrutiny under the Equal Protection Clause. See id. at 13; Bostock v. Clayton Cnty., 590 U.S. 644 (2020). Under this level of scrutiny, petitioner and respondent plaintiffs argue that SB1 violates the Equal Protection Clause because the only interest served is an impermissible purpose of enforcing the legislature’s preference for minors identifying with their birth preference, and the law is both overinclusive and underinclusive of the state’s identified interest in minimizing healthcare risks to minors.
Respondent Jonathan Skrmetti, Attorney General and Reporter for Tennessee, argues that SB1 does not classify based on sex, but rather by age and nature of medical intervention, and therefore it should only be subject to rational basis review. He contends that the prohibited treatments are “not similar enough to other types of interventions using the medications in question, and thus are not a sex-based classification that triggers heightened scrutiny.” Respondents Brief at 24. He further argues that Bostock only applies in the context of Title VII, and its reasoning should, therefore, not be improperly extended to the Equal Protection Clause to find that transgender individuals are a suspect class entitled to greater judicial scrutiny. Id. at 13–14.
The Court’s decision will have significant impacts on the rights of transgender people throughout the country. If the Court finds that transgender people are a suspect class under the Equal Protection Clause, that decision would give a firm basis to challenge not only laws banning transgender medical treatments, but also other laws targeting transgender individuals and behavior. Conversely, even a narrow decision confined to the issue of transgender medical care in minors could result in states, where these laws are being passed, enacting even more expansive restrictions. A decision denying that transgender individuals are a suspect class entirely would close off many potential legal challenges. At a time when many transgender people and their families are already fleeing states with laws hostile to them, the Court’s decision to leave this issue to the states or recognize a constitutional claim will have great import to many.
Williams v. Washington
No. 23-191, Ala. (Oct. 7, 2024)
Preview by Aneesh Sood, Member
In Williams v. Washington, the Supreme Court will consider whether exhaustion of state administrative remedies is required for plaintiffs to bring claims under Title 42 U.S.C. § 1983 in state court. § 1983 provides plaintiffs with a cause of action against anyone who, under color of state law, deprives them of “any rights, liberties, or immunities secured by the Constitution and laws.” § 1983. Here, Petitioners are Alabama residents who experienced extreme delays in the processing of their unemployment benefits claims by the state’s Department of Labor. Brief for Petitioner at 6. Under Alabama’s statutory unemployment benefits scheme, claims are reviewed by a designated examiner who is to “promptly” make a determination. Id. at 4 (citing Ala. Code § 25-4-91(a)). If claimants wish to appeal this determination, they must seek a hearing with one of the Department’s “appeals tribunals” or the separate board of appeals, which may remove to itself an appeal before a tribunal. Id. Claimants must exhaust these administrative remedies and receive a decision from the reviewing body before seeking review by a state court. Id. at 5
Petitioners allege that the Department, led by Respondent Fitzgerald Washington, took months to make decisions on their claims and failed to schedule hearings for those who appealed adverse decisions. Id. In response, Petitioners brought § 1983 claims in the Circuit Court of Montgomery County alleging that the Department violated their rights under the Due Process Clause and the Social Security Act. Id. at 5, 11.
Respondent moved to dismiss the complaint on the grounds that the Circuit Court lacked jurisdiction, since Petitioners had not exhausted the administrative remedies provided by the Department of Labor. Id. at 11. The Circuit Court granted the motion, and the Supreme Court of Alabama affirmed, based solely on Petitioners’ failure to meet the exhaustion requirement. The Supreme Court granted certiorari.
Petitioners argue that the Court’s decisions in Patsy v. Board of Regents and Felder v. Casey resolve the case in their favor. See 457 U.S. 496 (1982); 487 U.S. 131 (1988). In Patsy, the Court held that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action” under §1983. Id. at 18 (citing Patsy, 457 U.S. at 516). While the Supreme Court of Alabama held that Patsy only applies to cases in federal court, Petitioners contend that it was a case about the general, substantive meaning of § 1983 and thus binding on both state and federal courts. Id. Petitioners argue this interpretation is confirmed by Felder, in which the Court relied on the Patsy rule to find that the application of Wisconsin’s notice-of-claim provision to § 1983 actions brought in state courts was inconsistent with the goals of federal civil rights laws. Id. at 21 (citing Felder, 487 U.S. at 138). The Court held that the provision, which required plaintiffs to notify government defendants of their claims and then refrain from filing suit for 120 days, essentially imposed an exhaustion requirement on Wisconsin residents who chose to assert their federal rights in state courts and thus violated Patsy’s no-exhaustion rule for § 1983. Id. at 23. Petitioners posit that in light of this precedent, and the fact that Alabama’s exhaustion requirement would alter the outcome of § 1983 claims depending on whether they were brought in federal or state court, § 1983 preempts the Alabama law and the Supreme Court should “adopt a categorical rule that, unless Congress has otherwise provided, exhaustion is never required before bringing a § 1983 claim in state court.” Id. at 33.
Respondent looks to § 1983’s text, which he claims Petitioners ignore, to argue that the statute does not expressly preempt the Alabama law. Specifically, Respondent contends that the Department of Labor’s adjudication process could qualify as an “other proper proceeding for redress” permitted by § 1983. Brief for Respondent at 15. Likewise, field preemption does not apply since Congress has not legislated so extensively regarding state court structure and jurisdiction as to leave no room for state legislation. Id. Respondent also points to the Court’s strong presumption against implied preemption in areas of historic state authority, like the power to regulate state courts, to argue there is no conflict between Alabama’s exhaustion provision and § 1983. Id. at 18.
The Court’s decision in Williams will have a significant impact on what civil rights plaintiffs must accomplish before seeking to assert their federal rights in state courts under § 1983. The case will also give the Court the opportunity to clarify its § 1983 precedent, which has been interpreted differently by Petitioners and Respondents.
