April 15
Iancu v. Brunetti
No. 18-302, Fed. Cir.
Preview by Boseul (Jenny Jeong), Online Editor
This case arose out of the U.S. Patent and Trademark Office (“USPTO”)’s decision to refuse Brunetti’s trademark registration based on 15 U.S.C. § 1052(a), which bars the registration of, among other things, immoral and scandalous marks. The Federal Circuit found that the agency’s decision was supported by substantial evidence, but still reversed the decision, ruling that the provision unconstitutionally restricted freedom of speech. The government’s appeal followed.
The case below was preceded by the Court’s decision in Matal v. Tam, 137 S. Ct. 1744 (2017), in which all eight justices who participated agreed that 15 U.S.C. § 1052(a), which bars registration of disparaging remarks, was a violation of the First Amendment. There was a supplemental briefing following Tam and the Federal Circuit ultimately reversed the USPTO’s decision.
Here, Petitioner argues that the Tam decision is only relevant when viewpoint factors in as a basis for decision making. And because barring immoral and scandalous marks is a viewpoint-neutral restriction, the provision is constitutional in this regard. Respondent suggests that Petitioner is changing the interpretation to make a superficial distinction between the two cases.
Petitioner also argues that the restriction on immoral and scandalous marks is not a restriction on speech because (1) it “declines to promote” it, Brief for the Petitioner at 12, Iancu v. Brunetti, No. 18-302 (U.S. filed Feb. 15, 2019) (quoting Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009)); and (2) the provision “reflect[s] an offensive ‘mode of expressing whatever idea the speaker wishes to convey’” and is thus viewpoint neutral. Id. (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 393 (1992)). Additionally, Petitioners argue the application of strict scrutiny would disrupt the registration program whose reference to content is “inherent and inescapable,” and thus Federal Circuit’s application of strict scrutiny is wrong. Id. at 25 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)).
Respondent, on the other hand, argues the provision regulates offensive speech and is not content neutral. Respondent also argues there is no “mode of expression,” government subsidy, or any other exception that would allow lesser scrutiny to this provision as Petitioner suggested. See Brief for Respondent at 16, 28, Iancu, No. 18-302 (U.S. filed Mar. 18, 2019). Alternatively, even if the provision is not a limitation of speech, the correct standard to apply is strict scrutiny, under which the provision should be invalidated.
Respondent added another argument that the provision is unconstitutionally vague under the First and Fifth Amendments because (1) the Department of Commerce and the Department of Justice use a different interpretation; and (2) the provision is inconsistently applied. Petitioner responded by pointing to USPTO’s limitation on the attorney’s use of subjective views in determining whether registration would violate the scandalous-marks provision, and to the consistency of application through judicial reviews.
Granting registration based on statutory criteria has been a part of the federal trademark system since 1905. Should the Court affirm the decision of the Federal Circuit, it would bring a huge change to a longstanding practice.
Emulex Corp. v. Varjabedian
No. 18-459, 9th. Cir.
Preview by John M. Hindley, Articles Editor
Varjabedian presents the Court with an opportunity to address a circuit split created by the Ninth Circuit when it held that Section 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e) (2012), created a private cause of action that requires a showing of negligence, rather than scienter, which five other circuits required. Varjabedian v. Emulex Corp., 888 F.3d 399, 408 (9th Cir. 2018).
The case arose out of an April 2015 tender offer made by Avago Technologies Wireless Manufacturing, Inc. to purchase outstanding stock in Emulex Corporation, “an electronic-equipment producer,” at $8.00 per share, a 26.4% premium, as part of a merger plan between the two companies. Brief for the Petitioner at 11, Emulex Corp. v. Varjabedian, No. 18-459 (U.S. filed Feb. 19, 2019). Emulex’s board filed a Recommendation Statement with the SEC, which included a “fairness opinion” from a Goldman Sachs financial advisor, encouraging shareholders to tender their shares. Brief for the Respondent at 2, Emulex Corp., No. 18-459 (U.S. filed Mar. 21, 2019). Respondents filed a federal securities class action, the lead plaintiff being Gary Varjabedian, against Emulex, its board, and Avago, pursuant to Section 14(e), alleging that they made material misstatements and omissions for promoting a below-average premium. Id. at 3. The district court dismissed the class’s amended complaint holding that it failed to adequately allege scienter (in other words, knowingly made misleading statements in its recommendation). Varjabedian v. Emulex Corp., 152 F. Supp. 3d 1226, 1240 (C.D. Cal. 2016).
The Ninth Circuit reversed by parsing out the following language of Section 14(e):
It shall be unlawful for any person [1] to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or [2] to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer . . . .
Varjadabedian, 888 F.3d at 404 (quoting 15 U.S.C. § 78n(e)) (emphasis and alterations in original). Relying on Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), and Aaron v. SEC, 446 U.S. 680 (1980), the Ninth Circuit held that the plain language of Section 14(e), which tracks Rule 10b-5’s language, see 17 C.F.R. § 240.10b-5, delineates two separate prohibited acts in which the first clause does not have a scienter, but rather a negligence, requirement. See Ernst & Ernst, 425 U.S. at 212–14 (holding that Rule 10b-5’s scienter requirement did not come from the text of the regulation but from the authorizing statute, Section 10(b), and therefore is only limited to intentional conduct); Aaron, 446 U.S. at 696–97 (citing 15 U.S.C. § 77q(a)(2)) (holding that Section 17(a)(2), which has parallel language to the first clause of Section 14(e), does not have a scienter requirement).
The Petitioner makes two primary arguments. First, Petitioner argues that Section 14(e) does not even create an inferred private cause of action because there was neither congressional intent to create such a right nor does the statute contain “rights-creating language” as required by Alexander v. Sandoval, 532 U.S. 275, 288 (2001). Interestingly, the Supreme Court already foreclosed a private right of action under Section 14(e) for “a tender offeror[] suing in his capacity as a takeover bidder” but did not explicitly foreclose the possibility for shareholders. Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 42 n.28 (1977). Second, even if there is a private right of action, Section 14(e) does not contain “reasonableness” language and procedural limitations typically associated with negligence in the securities laws whereas the scienter requirement usually contains language such as “fraudulent,” “deceptive,” and “manipulative.” Such language does not encompass negligence but imputes scienter like Rule 10b-5. See Ernst & Ernst, 425 U.S. at 212–14. Based on the “whole-text canon,” the text should be considered as a whole rather than parsed out like the Ninth Circuit did. Brief for the Petitioner at 27, Emulex Corp., No. 18-459 (U.S. filed Feb. 19, 2019).
In a twist of events, the government submitted a brief and will be arguing before the court as amicus curiae. The government’s position is that in fact Section 14(e) does allow a showing of negligence but does not create a private cause of action. Brief for the United States as amicus curiae in Support of Neither Party, Emulex Corp., No. 18-459 (U.S. filed Feb. 26, 2019).
April 16
Parker Drilling Management Services, Ltd. v. Newton
No. 18-389, 9th. Cir.
Preview by Taylor Dowd, Senior Online Editor
In Parker Drilling, the Court will decide whether or not the Outer Continental Shelf Lands Act allows borrowing of state law only when there is a gap in federal law, a question on which the Fifth and Ninth Circuits disagree.
The outer Continental Shelf is comprised of underwater lands subject to United States, not state, jurisdiction. 43 U.S.C. § 1331(a) (2012). The Respondent, Newton, works 14-day shifts on an oil platform on the Outer Continental Shelf. He spends the entirety of the shift on the platform, but 12 hours each day are spent off-duty. After California decided that an employer and employee cannot agree to exclude sleep time from an employee’s compensation, Newton sought backpay for his uncompensated sleep time. The Fair Labor Standards Act, however, does not support compensation for sleep.
Applying the Outer Continental Shelf Lands Act, the Ninth Circuit borrowed state law and found sleep time could be compensated. Newton v. Parker Drilling Mgmt. Servs., 881 F.3d 1078 (9th Cir. 2018). The Petitioner, Parking Drilling, argues that under the Act, the court should not have borrowed state law. The Act states that federal law covers the outer Continental Shelf, but also states that when “applicable and not inconsistent” with federal law, state laws “are declared to be the law of the United States . . . .”43 U.S.C. § 1333(a)(2)(A). Parker Drilling argues that the California law and the Fair Labor Standards Act are inconsistent because one does and one does not allow compensation for every hour, and that they are both considered federal law causes a “glaring inconsistency.” Brief for Petitioner at 16, Parker Drilling Mgmt. Servs. v. Newton, No. 18-389 (U.S. filed Feb. 20, 2019). Parker Drilling also argues that state law is not “applicable” when there is not a gap in the federal law because establishing that federal law governs the outer Continental Shelf was the “most fundamental decision Congress made” in the enactment of the Outer Continental Shelf Lands Act. Id. at 15.
Newton, however, interprets “applicable” to mean that borrowed state law must pertain to the relevant subject matter, and contends that Parker Drilling’s interpretation of “applicable” is not supported in the statute or legislative history. Brief for Respondent at 28, Parker Drilling Mgmt. Servs., No. 18-389 (U.S. filed Mar. 22, 2019). Newton also argues that the Ninth Circuit correctly held that the two laws are not inconsistent because the Fair Labor Standards Act contains a savings clause that upholds application of state laws that provide greater protections than the Fair Labor Standards Act. Id. at 29–32.
North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust
No. 18-457, N.C.
Preview by Sean Lowry, Online Editor*
In Kaestner, the question presented to the Court is whether the due process clause prohibits states from taxing trusts based on a beneficiary’s in-state residency.
North Carolina law provides that the Department of Revenue (the “Department”) may tax trust income “that is for the benefit of a resident of this State.” N.C. Gen. Stat. § 105-160.2. Under this statute, the Department assessed taxes on the Kimberley Rice Kaestner Family Trust (the “Family Trust”) from 2005 to 2008, and the Family Trust paid approximately $1.28 million in taxes under protest before filing the suit. The only connection between North Carolina and the Family Trust is that Ms. Kaestner, sole beneficiary of the Family Trust, resided in the state from 2005 to 2008. The original trust in question was created in New York, the trustee (trust administrator) was a resident of Connecticut, and the assets underlying the trust are located in Massachusetts. During these years, the Family Trust did not make any distributions to Ms. Kaestner.
Three levels of North Carolina state courts ruled against the Department, with the North Carolina Supreme Court holding, 6–1, that the use of North Carolina Statute § 105-160.2 was unconstitutional under the due process clauses of the U.S. and North Carolina constitutions where taxation of a trust is based solely on the fact that the beneficiary resided in North Carolina. See Kimberley Rice Kaestner 1992 Family Trust v. N.C. Dep’t of Revenue, 814 S.E.2d 43 (N.C. 2018). Here, the Family Trust lacked sufficient connection with North Carolina for due process purposes.
Respondents, representing the State of North Carolina, claim in their petition for certiorari that there is a split among state courts as to whether a trust and its beneficiary are legally separate, for the purposes of due process clause analysis. Petition for a Writ of Certiorari at 9, N.C. Dep’t of Revenue v. Kimberly Rice Kaestner 1992 Family Trust, No. 18-457 (U.S. filed Oct. 9, 2018). North Carolina requests that the Court “modernize” its trust taxation jurisprudence to eliminate formal distinctions that have prevented states from taxing trusts based primarily on the beneficiary’s contacts with the jurisdiction.
In contrast, counsel for the Family Trust argues that the trustee had absolute discretion over the trust and Ms. Rice was not guaranteed to receive a distribution during her residency in North Carolina. In support, the Family Trust points to precedent in Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83 (1929) (holding that a nonresident trust could not be taxed solely based on the residency of a beneficiary), and Hanson v. Denckla, 357 U.S. 235 (1958) (holding that a state lacked jurisdiction over a nonresident trust because the trustee did not “purposefully avail” itself of the state’s laws).
At stake for states are concerns of federalism and their taxing power, and, perhaps more importantly, how that power is divided among the states to tax billions of dollars of income annually reported by trusts. Several states, like North Carolina, tax undistributed income when a trust beneficiary lives in the state and have had such laws on the books for decades.
Interestingly, the amicus briefs show that Kaestner has split legal academics. Separate briefs were filed in support of North Carolina by law professors specializing in trust and tax law. One professor specializing in conflict of laws argues that North Carolina does not have a right to tax the Family Trust. Another brief filed by constitutional law scholars argues that the case should be remanded under the dormant commerce clause, rather than the due process clause.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
April 17
United States v. Davis
No. 18-431, 5th Cir.
Preview by Arnab Datta, Articles Editor
In Davis, the Court will address whether the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the “limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime,” is unconstitutionally vague. Petition for Writ of Certiorari at I, United States v. Davis, No. 18-431 (U.S. filed Oct. 3, 2018). The issue is one in a line of Supreme Court cases that followed the landmark decision in Johnson v. United States. 135 S. Ct. 2551 (2015). Johnson held that the residual clause of the Armed Criminal Career Act, which defined “violent felony” to include “any felony that ‘involves conduct that presents a serious potential risk of physical injury to another,’” was unconstitutionally vague. Johnson, 135 S. Ct. at 2555, 2557 (citing 18 U.S.C. § 924(e)(2)(B) (2012)).
Since 2015, there have been several challenges to statutes with similar language to the statute struck down in Johnson. Davis presents another such challenge for the Court. In 2018, (after the convictions of United States v. Davis defendants Davis and Glover), the Court held in Sessions v. Dimaya, that language identical to Section 924(c)(3)(b) was unconstitutionally vague. 138 S. Ct. 1204, 1210 (2018).
In the original jury trial, Maurice Davis and codefendant Andre Glover were convicted of conspiracy to commit robbery and multiple counts of robbery, all in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They were also convicted on two counts of “brandishing a short-barreled shotgun during a crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(i). Petition for Writ of Certiorari at 5, United States v. Davis, No. 18-431 (U.S. filed Oct. 3, 2018). Section 924(c)(3)(B) defines “crime of violence” to include a crime “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Fifth Circuit upheld their convictions. United States v. Davis, 677 F. App’x 933, 936–37 (5th Cir. 2017), cert. granted, judgment vacated, 138 S. Ct. 1979 (2018), and cert. granted, judgment vacated sub. nom., Glover v. United States 138 S. Ct. 1979 (2018).
On appeal from the Fifth Circuit, the Supreme Court vacated the lower court’s affirmances, and remanded the case for reconsideration in light of Dimaya. Davis v. United States, 138 S. Ct. 1979. On remand, the Fifth Circuit held the clause unconstitutional, applying the “categorical approach.” Under the categorical approach applied in Dimaya, courts do not look to the particular facts underlying a conviction, but to the elements of the crime, and whether “‘the ordinary case’ of an offense poses the requisite risk.” Dimaya, 138 S. Ct. at 1207 (citing James v. United States, 550 U.S. 192, 208 (2007)). The Fifth Circuit wrote that “[b]ecause the language of the residual clause here and that in § 16(b) [the statute at issue in Dimaya] are identical, this court lacks the authority to say that, under the categorical approach, the outcome would not be the same. We hold that § 924(c)’s residual clause is unconstitutionally vague.” United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018), cert. granted, 139 S. Ct. 782 (2019).
This ruling contrasts with that of the Second Circuit, which held that the statute was not unconstitutionally vague because it “can be applied to a defendant’s case-specific conduct.” United States v. Barrett, 903 F.3d 166, 178 (2d Cir. 2018). This circuit split sets up a showdown at the Supreme Court. The government argues that the categorical approach applied by the Fifth Circuit was incorrect, and instead that the case should be assessed using a “case-specific” approach. Petition for Writ of Certiorari at 12, Davis, No. 18-431 (U.S. filed Oct. 3, 2018). Under such an approach, courts would assess the defendant’s conduct during the actual offense. Id. The defendant argues that the categorical approach should apply. Brief for Respondent at 12, Davis, No. 18-431 (U.S. filed Mar. 14, 2019).
It now falls to the Supreme Court to decide between the case-specific and the categorical approaches.
McDonough v. Smith
No. 18-485, 2d Cir.
Preview by Michael Fischer, Online Editor
In September 2009 investigators exposed a plot to influence the outcome of the Working Families Party primary election in Troy, New York through the use of forged absentee ballots and ballot applications. A special prosecutor was appointed to investigate the matter and in January 2011 a grand jury indicted County Board of Elections Commissioner Edward McDonough on 38 counts of felony forgery and 36 counts of felony criminal possession of a forged instrument. McDonough’s first trial ended in a mistrial and he was later acquitted after a second trial on December 21, 2012. Three years later, McDonough filed suit against investigators and the special prosecutor under 42 U.S.C. § 1983 alleging that they had violated his constitutional rights by fabricating evidence against him for use at his trials.
In finding for the defendant, the U.S. District for the District of New York held that although McDonough suffered a liberty deprivation when he was required to appear at his two trials, his Section 1983 claim should be dismissed as untimely. According to the district court, the three year statute of limitations began to run when McDonough learned, or should have learned, of the fabricated evidence, which the court found occurred before his acquittal. The Second Circuit affirmed the district court’s ruling, holding that contrary to the Third, Ninth, and Tenth Circuits, the established precedent of the circuit has held that the statute of limitations begins to run on a fabrication of evidence claim when the plaintiff has reason to know of the injury which is the basis of their § 1983 action. McDonough appealed the Second Circuit’s holding and the Supreme Court granted certiorari on January 11, 2019. The question before the Court is whether the statute of limitations for a § 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the Second Circuit held below.
McDonough argues that the Court should adopt the limitations rule governing the analogous tort of malicious prosecution since the gravamen of his claim is based on the error of the criminal proceedings against him and because he is seeking damages for the period after the legal process. Brief for Petitioner at 14–15, McDonough v. Smith, No. 18-485 (U.S. filed Feb. 25, 2019). Additionally, McDonough urges the Court to adopt favorable termination as an element of his claim, citing precedent for using this standard for malicious prosecution–type claims as a way to avoid collateral attacks on criminal proceedings. See id. at 16–17. Finally, McDonough asserts that since he alleged a continuing violation and not a discrete act, the statute of limitations does not begin to run until the violation ceases. Id.
In response, Respondent argues that regardless of how McDonough characterizes the constitutional right implicated by his fabrication of evidence action, his claim must be barred. Brief for Respondent at 8, McDonough, No. 18-485 (U.S. filed Mar. 27, 2019). Respondent reasons that since a fabrication of evidence claim does not require favorable termination of the proceedings, time accrual is not predicated on a favorable termination for the claimant. Id. at 9. Likewise, Respondent also contends that claims of indictment without probable cause, a constitutional violation under the Fourth Amendment, would be barred by absolute immunity. Id. at 21.
April 22
Food Marketing Institute v. Argus Leader Media
No. 18-481, 8th Cir.
Preview by Taylor Dowd, Senior Online Editor
If the Court finds Article III standing in Food Marketing Institute v. Argus Leader Media and proceeds to the merits, it will consider whether to confirm a test that has been used for 40 years, or adopt a more “ordinary” definition.
South Dakota newspaper Argus Leader submitted a Freedom of Information Act (“FOIA”) request to obtain data concerning the amount of money that the U.S. Department of Agriculture (“USDA”) provides to food retailers under the Supplemental Nutrition Assistance Program (“SNAP”). USDA asserted Exemption 4, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4) (2012). The district court compelled disclosure, and Food Marketing Institute intervened and appealed the decision.
Exemption 4’s substantial-competitive-harm test requires a showing that competitive harm is likely to result from disclosure of the requested data. Respondent Argus Leader argues that Congress has ratified this longstanding test by adopting the language in other statutory provisions, and the test should endure. Brief for Respondent at 36–37, Food Mktg. Inst. v. Argus Leader Media, No. 18-481 (U.S. filed Mar. 18, 2019). Petitioner, Food Marketing Institute, however, asserts that the plaining meaning of “confidential” is appropriate, pointing out that the dictionary and case law define confidential as “private and not publicly disclosed,” and that the substantial-competitive-harm test is “atextual” and superfluous. Brief for Petitioner at 3, 16–22, 23, Food Mktg. Inst., No. 18-481 (U.S. filed Feb. 15, 2019).
Also before the Court is the question of if the substantial-competitive-harm test survives, what the test is exactly. Argus Leader argues that the test should stay the same, requiring a showing that competitive harm is likely. Brief for Respondent at 61–64, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). Food Marketing Institute, however, urges the Court to broaden the test to only require a showing of a “reasonable possibility” of injury from the disclosure. Brief for Petitioner at 47, Food Mktg. Inst., No. 18-481 (U.S. filed Feb. 15, 2019).
Argus Leader also contends that standing shortcomings could keep the Court from deciding on the merits in this case, and opines that the “Court may want to consider whether this remains the proper case for examining exemption 4.” Brief for Respondent at 1, 3, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). The Solicitor General pointed out that the USDA could disclose the data anyway despite having discretion through exemption 4 to withhold it, which Argus Leader believes precludes a demonstration of harm for standing purposes because the disposition of the case would not affect whether or not the data will be released. Brief for Respondent at 8, 9, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). Food Marketing Institute, on the other hand, asserts that the injury is redressable if USDA has the option to withhold disclosure of the food retailer data. Reply for Petitioner at 1, Food Mktg. Inst., No. 18-481 (U.S. filed Apr. 5, 2019).
Fort Bend County, Texas v. Davis
No. 18-525, 5th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is about whether the administrative exhaustion requirement of Title VII of the Civil Rights Act of 1964 is a jurisdictional requirement or a waivable rule.
Davis, Respondent, had filed a religious discrimination and a retaliation claim against her employer, Fort Bend, the Petitioner. The district court granted Petitioner’s summary judgement motion and the Fifth Circuit reversed in part and remanded the religious discrimination claim. In the subsequent proceedings, Petitioner brought up an argument that Respondent had not exhausted administrative proceedings and thus the court did not have jurisdiction. The district court agreed with Petitioner and dismissed the case with prejudice. On subsequent appeal, the Fifth Circuit reversed and remanded once again. This appeal followed.
Petitioner argues that Congress has the power to define the federal court’s jurisdiction according to the Constitution and when “fairly discernible” through the statute, Congress’s intention limits the district court’s jurisdiction. Petitioner argues that here, the “text, structure, and purpose” of Title VII, made Congress’s intention “fairly discernible.” Brief for Petitioner at 17, 18, Fort Bend Cty. v. Davis, No. 18-525 (U.S. filed Feb. 25, 2019) (quoting Elgin v. Dep’t of Treasury, 567 U.S. 1, 8–10 (2012)). Petitioner pointed to the (1) “detailed,” “elaborate,” and “comprehensive” process specified in Title VII, (2) absence of exceptions in terms of administrative exhaustion, and (3) danger of undermining the purpose of Title VII, which is to promote “[c]ooperation and voluntary compliance” and to give the EEOC its primary role in combating workplace discrimination. Id. at 12 (citing Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015)).
Respondent, on the other hand, argues that Congress’s “clear statement” is necessary to interpret a provision as a jurisdiction requirement. Respondent points to 42 U.S.C. § 2000e-5(f)(1), which requires a right-to-sue letter before suit, without explicit language or any reference to jurisdiction. The provision does not discuss the court’s authority, but rather describes a procedural obligation. Respondent also argues that no court has ruled that the “fairly discernible” standard is correct. Petitioner responds that the text, structure, and purpose still support their position under this standard because (1) the provision is under the statute’s “jurisdiction” caption; (2) the statute’s purpose is to promote “broader system-related goal[s],” id. at 14, (quoting John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008)); and (3) this Court has interpreted similar requirements in other statutes as a jurisdictional requirement.
Petitioner distinguished Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), from this case because Zipes was about a statutory deadline and it is common to see both a nonjurisdictional timeliness provision and a jurisdictional exhaustion requirement in one statute. Respondent agreed that the case was not specifically about the exhaustion requirement. However, she argued that the reasoning actually confirms that the exhaustion is not a jurisdictional requirement. Additionally, she quoted the Court’s ruling that “Congress necessarily adopted the view that the provision for filing charges with the EEOC should not be construed to erect a jurisdictional prerequisite to suit” while ratifying a decision to award relief “to class members who had not exhausted administrative remedies before the EEOC.” Brief for Respondent at 23, Fort Bend Cty., No. 18-525 (U.S. filed Mar. 27, 2019) (quoting Zipes, 455 U.S. at 397).
There has been a circuit split on this question. Three circuits have held that administrative exhaustion is a jurisdictional requirement and eight circuits have held that it is subject to waiver. This decision will resolve the split.
April 23
Department of Commerce v. New York
No. 18-966, S.D.N.Y.
Preview by Michael Fischer, Online Editor
Every ten years, the U.S. Census Bureau conducts a citizenship survey for the purposes of determining the number of U.S. House of Representatives seats and proportion of federal funding to be allotted to each state based on population. In March 2018, Commerce Secretary Wilbur Ross announced that the 2020 census would include a question regarding each respondent’s citizenship status. Secretary Ross asserted that the question was intended to provide the Civil Rights Division of the U.S. Department of Justice (“DOJ”) with data necessary to better enforce voting rights laws. In response, a group of states, localities, and civil rights organizations challenged the citizenship question, arguing that Secretary Ross’s proffered reasoning for it was a pretextual justification for undercounting undocumented and Hispanic residents who fear deportation and are less likely to respond. During the initial stages of litigation, the groups challenging the question sought depositions of several high-ranking officials including the acting head of the DOJ Civil Rights Division and Secretary Ross himself. The challengers were ultimately prohibited from deposing Ross until other fact-finding was first allowed to move forward, and the Supreme Court announced that while it would consider the interlocutory appeal on this issue, they would not stop the underlying trial from proceeding.
Before the Court could hear argument of the evidentiary issues, the district court issued a decision in January enjoining the Secretary from reinstating the citizenship question. Based on the need to finalize the citizenship questionnaire by June, the government argued that it was necessary to bypass the Court of Appeals and have the matter resolved directly by the Supreme Court. The Court subsequently granted certiorari on February 15th. The questions before the Court are (1) whether the district court erred in enjoining the Secretary of Commerce from reinstating a question about citizenship to the 2020 census on the ground that the Secretary’s decision violated the Administrative Procedure Act, (2) whether extra-record discovery to examine the mental processes of the decisionmaker was proper, and (3) whether the addition of a citizenship question to the census violated the Enumeration Clause.
Petitioner argues that the district court erred in barring reinstatement of the citizenship question since Respondents lack Article III standing based on their inability to assert an injury fairly traceable to the inclusion of the citizenship question in the 2020 census. Brief for Petitioner at 12, Dep’t of Commerce v. New York, No. 18-966 (U.S. filed Mar. 6, 2019). The injuries alleged by Respondents, Petitioners argue, would only result from unlawfully providing false answers to the questions based solely on their fears that the government will in turn act unlawfully by using their answers for law enforcement purposes. Id. Furthermore, Petitioners allege that the Secretary’s decision to reinstate the question is committed to agency discretion and therefore unreviewable by the courts. Id. at 13. In addition, they also argue that the Secretary’s decision was not arbitrary and capricious because, among other reasons, the question had appeared on nearly every census dating back to 1820. Id. at 28, 39. Petitioners also contend that Secretary Ross’s rationale was not pretextual because the Department’s contemporaneous explanation was rational and that his decision was in accordance with the law because the question was included in his statutorily mandated report to Congress. Id. at 15–16.
Respondent counters that the harm resulting from the question’s reinstatement would not be speculative but would in fact result underreporting of approximately 6.5 million people and thereby lead to a loss of federal funding and congressional representation in many states. See Brief for Gov’t Respondents at 17, 22, Dep’t of Commerce, No. 18-966 (U.S. filed Apr. 1, 2019). Additionally, Respondent argues that Secretary Ross’s decision is in fact reviewable under the Census Act, 13 U.S.C. § 6(c), since it requires the Secretary to rely on administrative records rather than census questions in collecting demographic information. Brief for Gov’t Respondents at 17–18, No. 18-966 (U.S. filed Apr. 1, 2019). As a reviewable decision, they argue, the Court should find that it was arbitrary and capricious under the Administrative Procedure Act because the Secretary ignored empirical evidence suggesting that the citizenship question would render enumeration less accurate and he failed to justify how the purported benefit to DOJ would outweigh this harm. Id. at 18–19.
Mitchell v. Wisconsin
No. 18-6210, Wisc.
Preview by Michael Fischer, Online Editor
In May 2013 police found Gerald Mitchell staggering around the banks of Lake Michigan just outside of Sheboygan, Wisconsin with his van parked nearby. Mitchell was reportedly belligerent and having difficulty standing upright. The officers had received a call from Mitchell’s neighbor earlier that day, who reported that Mitchell was threatening to commit suicide shortly before taking off in his van. As he would testify later, Mitchell admitted he was depressed and had consumed a half-liter of vodka and Mountain Dew along with approximately 40 pills. After coming upon Mitchell, the officers administered a roadside breath test which showed a blood alcohol concentration (“BAC”) of .24 and thereafter took him to the police department.
Since the roadside testing device used by the police was of limited accuracy and as such the results were inadmissible by state statute, the officers wanted to obtain a more reliable reading of Mitchell’s BAC. Another breath test was not possible, however, since Mitchell was so intoxicated that he was having trouble staying conscious. The officers decided to instead take Mitchell to the local hospital for a blood test, but when they arrived he was completely unresponsive. Regardless, the blood test was conducted and the results were later used against him to secure a conviction for operating while intoxicated with a prohibited blood alcohol concentration.
Mitchell appealed his conviction on the grounds that the withdraw of his blood was an unlawful search and seizure, because it was taken without a warrant or exigent circumstances. The State countered that under Wisconsin’s implied-consent statute, motorists consent to tests of this nature simply by driving on state roads and that Mitchell had not withdrawn his consent. After both the court of appeals and Wisconsin Supreme Court found for the State, Mitchell appealed to the United States Supreme Court. The issue before the Court is whether a statute authorizing state actors to draw blood from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
Mitchell argues that the Wisconsin statute did not create an exception since Fourth Amendment consent principles do not permit the state to consider a motorist to have consented to an unconscious blood withdraw solely based on their decision to drive. Brief for Petitioner at 12, Mitchell v. Wisconsin, No. 18-6210 (U.S. filed Feb. 25, 2019). This would, according to Mitchell, be contrary to the Court’s consistent rejection of a categorical exceptions to the warrant requirement in the context of drunk-driving cases. Id. Furthermore, Mitchell contends that the Fourth Amendment does not permit the state to impose a warrantless blood withdraw on an unconscious person as a condition of driving because this would constitute an unreasonable search. Id. at 36.
In response, the State counters that through the implied consent law, Mitchell provided valid consent under the Fourth Amendment since voluntary consent can be inferred from the circumstances and does not require a “knowing on-the-spot waiver.” Brief of the Respondent at 24–31, Mitchell, No. 18-6210 (U.S. filed Mar. 27, 2019). Additionally, the State argues that providing unconscious drivers the opportunity to withdraw consent is not required and that inferring consent in these narrow circumstances is reasonable since the consent “flows from the driver’s own choices.” Id. at 33–37. The State also argues that Wisconsin has a compelling interest in acquiring blood evidence from unconscious persons who drive while intoxicated and that the unconscious driver presumption is a “narrowly tailored and minimally intrusive” consent exception to the Fourth Amendment. Id. at 47–52.
Rehaif v. United States
No. 17-9560, 11th Cir.
Preview by Sean Lowry, Online Editor*
Rehaif involves statutory interpretation of the government’s burden in demonstrating mens rea when prosecuting certain classes of individuals that are prohibited from possessing firearms.
Under federal law, persons of various statuses are prohibited from “possess[ing] in or affecting commerce, any firearm or ammunition.” 18 U.S.C § 922(g) (2012). Among the types of individuals covered are aliens “illegally or unlawfully in the United States.” Id. § 922(g)(5)(A). “Whoever knowingly violates subsection . . . (g) . . . of section 922 . . . shall be fined . . . imprisoned . . . or both.” 18 U.S.C. § 924(a)(2).
Mr. Rehaif, a citizen of the United Arab Emirates, was admitted as a student to the Florida Institute of Technology in 2013. He attended school there for three semesters. On January 21, 2015, the school sent Mr. Rehaif an email academically dismissing him and notifying him that his immigration status would be terminated unless he transferred or notified the school that he had already left the United States by February 5, 2015. Mr. Rehaif remained in the United States after his student visa expired. On December 2, 2015, he went to a shooting range in Florida, where he purchased a box of ammunition and rented a firearm for one hour of shooting. On December 8, law enforcement responded to a suspicious person complaint at the hotel where he was staying. FBI agents on the scene spoke with Mr. Rehaif, who acknowledged that he visited a shooting range. Soon after, he was indicted as an alien illegally and unlawfully in the United States who knowingly possessed a firearm and ammunition in violation of §§ 922 and 924(a)(2).
The trial judge instructed the jury that the government did not need to prove that Mr. Rehaif knew that he was in the United States illegally or unlawfully. Counsel for Mr. Rehaif opposed that instruction, arguing that the statute required the government to prove scienter of his illegal status at the time he possessed the firearm. The district judge overruled Mr. Rehaif’s objection and the jury found him guilty on both charges. The Eleventh Circuit affirmed.
The public defenders representing Rehaif are using the “Gorsuch brief,” hoping to swing the justice based on a prior opinion and his penchant for grammar-based textualism. In United States v. Games-Perez, 667 F.3d 1136 (10th Cir 2012), the defendant was charged with violating § 922 based on its prohibition of federal convicts’ possession of firearms. The defendant thought the prohibition did not apply to him because his conviction had been expunged. Then–Judge Gorsuch begrudgingly joined the majority to uphold, based on stare decisis, that the scienter requirement of § 924(a)(2) applied only to the possession element of the statute, even though he felt that the proper statutory interpretation would have been to carry the mens rea through to each material element of the crime. See Games-Perez, 667 F.3d at 1145 (Gorsuch, J., concurring). Plaintiffs here are hoping that Justice Gorsuch might be willing to carry out his view that “we might be better off applying the law Congress wrote . . . [i]t is a perfectly clear law as it is written, plain in its terms, straightforward in its application.” Id.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
April 24
Quarles v. United States
No. 17-778, 6th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
When the district court was sentencing Petitioner, it found that Michigan’s crime of third-degree home invasion was the “functional equivalent of generic burglary” which qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”). United States v. Quarles, 850 F.3d 836, 837–38 (6th Cir. 2017). The Sixth Circuit affirmed, finding that the Michigan’s third-degree home invasion was “categorically equivalent to generic burglary.” Id. at 837.
In Taylor v. United States, the Court laid out three elements of burglary: “[1] an unlawful or unprivileged entry into, or remaining in, [2] a building or other structure, [3] with intent to commit a crime.” 495 U.S. 575, 598–99 (1990). Quarles came down to the question of when an intent to commit a crime should be present under the definition of generic burglary presented in Taylor. Petitioner argues that the intent to commit a crime must be present at the time of the first unlawful entry, and Respondent argues that the intent only need to be formed at some point during unlawful presence.
Both parties argue that the plain meaning of the word is in their favor. Petitioner emphasizes the parallel between the word “entry” and “remaining,” and argues that reading “remaining” to signify a continuous condition will make the “entry” part superfluous. On the other hand, Respondent emphasizes that the dictionary definitions and common usage of the word “remain” refer to a continuous activity.
The parties’ interpretations differ regarding Congress’s purpose in ACCA. Petitioner argues Congress intended to reserve stringent penalties for “a small number” of dangerous career criminals. Brief for the Petitioner at 4, Quarles v. United States, No. 17-778 (U.S. filed Feb. 20, 2019) (quoting Taylor, 495 U.S. at 583). Meanwhile, Respondent points out that ACCA acknowledged “an invasive crime that presents a substantial risk of a violent encounter in an enclosed private space.” Brief for Respondent at 9, Quarles, No. 17-778 (U.S. filed Mar. 22, 2019) (citing Taylor, 495 U.S. at 581, 588).
On the other hand, Respondent argues Congress aimed to capture the meaning used in most states’ criminal codes. Respondent went further by saying no states have definitely adopted Petitioner’s interpretation at the time of ACCA’s enactment and more states thus far have explicitly adopted the interpretation that intent may form at any point. Petitioner responds that there is no proof that “most States” abandoned this interpretation.
Lastly, Petitioner argues for the application of the rule of lenity and brings up due process concerns. Respondent once again emphasizes that Congress intended a “generic meaning” of the term burglary and disregards Petitioner’s approach as muddling the meaning with an “arcane and counterintuitive distinction.” Brief for Respondent at 10, Quarles, No. 17-778 (U.S. filed Mar. 22, 2019).
Circuits are split on this issue. Two circuits held that the intent is required at the first unlawful act and four circuits held that the formation of intent during the unlawful remaining is sufficient.
Taggart v. Lorenzen
No. 18-489, 9th Cir.
Preview by Sean Lowry, Online Editor*
The question presented in Taggart is whether, under the federal Bankruptcy Code, a creditor’s good-faith belief that the discharge injunction does not apply precludes a finding of civil contempt.
This case arises out of a complicated set of facts and litigation arising out of a business dispute concerning interests in a limited liability corporation (“LLC”). Mr. Taggart was sued in state court for breach of contract by other members of an LLC (the “Creditors”), in which he owned an interest. Shortly before trial, Taggart filed for Chapter 7 bankruptcy protection, which stayed the state court proceedings against him and another business associate. Taggart received a discharge injunction from the bankruptcy court, preventing collections on prior debts, and then moved to dismiss the state court proceedings based on that discharge. The state court denied the motion, finding him a necessary party in the breach of contract proceedings (which continued against the person to whom he transferred his interest in the LLC). He provided testimony and argument in the trial. The parties agreed, though, that no monetary judgement would be sought from Mr. Taggart. The state court ruled in favor of the Creditors, and held that Taggart could be liable for their attorneys’ fees that were incurred after his bankruptcy discharge because he “returned to the fray” after his discharge, citing In re Ybarra, 424 F.3d 1018, 1026–27 (9th Cir. 2005) (holding that claims arising from debtor’s postdischarge petition pursuit of litigation commenced pre-petition are nondischargeable), cert. denied, 547 U.S. 1163 (2006). See Brief for Respondents at 8, Taggart v. Lorenzen, No. 18-489 (U.S. filed Mar. 21, 2019). Meanwhile, Taggart filed a motion in the bankruptcy court to reopen his proceedings, seeking to hold the Creditors in contempt for violating the discharge under the court’s powers to “issue any order, process, or judgment that is necessary or appropriate to carry out [the bankruptcy code].” See 11 U.S.C. § 105(a) (2012).
After a long bout of litigation through state and federal courts, the Ninth Circuit held that the Creditors could not be found in contempt because they did not willingly violate the bankruptcy discharge. Taggart v. Lorenzen, 888 F.3d 438, 444–45 (9th Cir. 2018). To fulfill the elements of a contempt sanction, Taggart needed to prove that the Creditors (1) knew the discharge injunction was applicable, and (2) intended to violate the discharge injunction. Here, the Ninth Circuit held that the Creditors’ subjective belief was lacking with respect to the first element.
Counsel for Taggart (who is now deceased) petitioned the Court for certiorari claiming that the Ninth Circuit’s decision created a split with the First, Fourth, and Eleventh Circuits and federal bankruptcy courts. Those courts do not recognize a creditor’s subjective belief of a good-faith mistake as a valid defense to civil contempt claims. Additionally, Petitioner argues that allowing a subjective intent defense to civil contempt would undermine the bankruptcy code’s goal of giving debtors a “fresh start,” free from pursuit of debtors that issued any debt later discharged. Brief for the Petitioner at 12, Taggart, No. 18-489 (U.S. filed Feb. 19, 2019).
In contrast, Respondents urge the Court to adopt the Ninth Circuit’s rule. To them, contempt is a severe remedy that should be imposed when a party directly disobeys a court order. Here, the state court gave them the green light to collect attorney’s costs. Also, as a policy matter, they argue that Petitioner’s “strict liability” interpretation of the contempt statute would chill creditors from collecting on nondischarged debts. Brief for Respondents at 15, Taggart, No. 18-489 (U.S. filed Mar. 21, 2019).
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
