February 24
United States Forest Service v. Cowpasture River Preservation Association; Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Association
No. 18-1584 & 18-1587, 4th Cir.
Preview by Taylor Dowd, Senior Online Editor
Is the Appalachian Trail, the 2,200-mile-long stretch running from Georgia to Maine, “land,” or just a footpath traversing land?
The Appalachian Trail is administered by the National Park Service, but the trail lands are not exclusively federally owned. The Mineral Leasing Act authorizes the Secretary of the Interior to grant “[r]ights-of-way through any Federal lands” for “pipeline[s]” that “transport[] oil, natural gas, synthetic liquid or gaseous fuels.” 30 U.S.C. § 185(a) (2018). Under the statute, “Federal lands” does not include lands in the National Park System. Id. § 185(b)(1).
One of the petitioners, Atlantic Coast Pipeline LCC, applied to the Federal Energy Regulatory Commission (“FERC”) in 2015 to build a natural-gas pipeline from West Virginia to North Carolina that would cross the Appalachian Trail.
Respondents, environmental organizations, challenged the proposal through comments to FERC, but The National Forest Service granted the right-of-way under the Mineral Leasing Act. The Fourth Circuit agreed with Respondents, finding the grant of the right-of-way improper because of noncompliance with environmental standards, the availability of alternative routes, and failure to properly consider environmental risks. Lastly, and mostly importantly for the case in front of the Supreme Court, the Fourth Circuit held that the Forest Service lacks statutory authority to grant rights-of-way for pipelines through the Appalachian Trail under the Mineral Leasing Act. Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150, 179 (4th Cir. 2018). It concluded that the lands the Appalachian Trail passes through are National Park System lands, and therefore do not fall under the Mineral Leasing Act’s authorization to the Secretary of the Interior. See id. at 180.
Atlantic Coast Pipeline argues that this conflicts with the National Trails System Act, which it argues confirms the jurisdiction of federal agencies over federal lands through which a trail passes. Brief for Petitioner at 21–27, Atl. Coast Pipeline, LLC v. Cowpasture River Pres. Ass’n, No. 18-1587 (U.S. filed Dec. 2, 2019). The Petitioner also expresses doubt that Congress would intend to use these provisions to create a barrier for natural gas resources reaching the coast because it “neither hides elephants in mouseholes nor buries major obstacles to economic development in definitional provisions.” Id. at 41 (citing Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)).
The Respondents argue that the Appalachian Trail must be “land.” They explain that the nearly 240,000 acres comprising the trail must be considered land because it clearly a “National Park System Unit,” which is defined using the term “land.” Brief for Respondents at 22, 30, U.S. Forest Serv. v. Cowpasture River Pres. Ass’n; Atl. Coast Pipeline, LCC v. Cowpasture River Pres. Ass’n, Nos. 18-1584 & 18-1587 (U.S. filed Jan. 15, 2020). The Respondents also reject any distinction between “footpaths” and “land,” arguing simply that “[l]and is what you walk on.” Id. at 3.
Opati v. Republic of Sudan
No. 17-1268, D.C. Cir.
Preview by Jalen LaRubbio
Does the Foreign Sovereign Immunities Act apply retroactively to allow recovery of punitive damages against foreign state sponsors of terrorism for events that occurred before § 1605A was enacted?
Foreign states are generally immune from suit in the courts of the United States. However, under the Foreign Sovereign Immunities Act (“FSIA”), an exception permits plaintiffs to recover damages from state sponsors of terrorism. 28 U.S.C. § 1605A (2018). Though the terrorism exception dates back to 1996, the current version of the statute, which created a federal cause of action against foreign states for acts of terrorism, was enacted in 2008.
In 1998, al-Qaeda terrorist attacks on the United States Embassies in Nairobi, Kenya and Dar-es-Salaam, Tanzania killed more than 150 government employees and injured thousands of people. Petitioners are 567 individuals, including 159 U.S. Government employees who were injured or killed by the bombings, their family members, and their estates. In 2011, the district court found that Respondent, the Republic of Sudan, provided critical services and assistance to al-Qaeda. In 2014, the district court awarded compensatory and punitive damages in accordance with the FSIA.
On appeal, Sudan argued that § 1605A does not authorize punitive damages for acts occurring prior to the 2008 amendments. Owens v. Republic of Sudan, 864 F.3d 751, 812 (D.C. Cir. 2017). The D.C. Circuit agreed and vacated the punitive damages award, finding that there was no “clear statement” by Congress “authorizing punitive damages for past conduct.” Id. at 816. The Supreme Court granted certiorari to determine whether the FSIA authorizes retroactive punitive damages against foreign state sponsors of terrorism.
Petitioners contend that the presumption against retroactivity does not apply to the FSIA, and that the courts must defer to the political branches because this is a foreign policy matter and the Supreme Court has adopted the principle that “foreign sovereign immunity is a matter of grace and comity consigned to the political branches.” Brief for Petitioners at 23, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Sept. 17, 2019). The United States, as amicus curiae in support of Petitioners, argues that based on the text of § 1605A, “once one accepts that the federal cause of action applies to pre-enactment conduct, and that it makes economic, solatium, and pain and suffering damages available for such conduct, there is no textual basis for reaching a different conclusion with respect to punitive damages.” Brief for the United States at 19, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Sept. 24, 2019). Respondents have not challenged the D.C. Circuit’s conclusion that under the 2008 amendments plaintiffs clearly may recover economic, solatium, and pain and suffering damages. Id. at 18. Further, according to Petitioners the historical context and the legislative history surrounding the 2008 amendments demonstrate that Congress and the Executive understood the statute to authorize punitive damages for conduct that occurred before the statute was enacted. Id. at 21–22.
On the other hand, Respondents first challenge the subject matter jurisdiction of the district court. Brief for Respondents at 20, Opati v. Republic of Sudan, No. 17-1268 (U.S. filed Nov. 22, 2019). Turning to the question presented, Respondents contend that the presumption against retroactivity, which would prohibit retroactivity absent a clear statement of Congress’s intention to apply the authorization retroactively, bars punitive damages here because Congress did not make a clear statement authorizing punitive damages for pre-enactment conduct. Id. at 30–41.
February 25
United States v. Sineneng-Smith
No. 19-67, 9th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is centered around a federal criminal provision, codified at 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), that prohibits “encouraging or inducing illegal immigration for commercial advantage or private financial gain.” Petition for a Writ of Certiorari at (I), United States v. Sineneng-Smith, No. 19-67 (U.S. filed July 12, 2019). The Court is asked to determine the constitutionality of this provision on its face.
The main contention between the parties is whether the provision is unconstitutionally overbroad on its face. The Ninth Circuit held in favor of the Respondent, who argued the provision is so broad that it criminalizes protected speech under the First Amendment. The Petitioner, the United States, argued the Ninth Circuit misapplied an as-applied challenge principle to a facial challenge case.
Both parties argue the text, context, and history are on their side. The key for the textual argument is whether the verb “encourage” or “induce” refers to facilitation and solicitation, or encompasses broader speech. The United States argues that in the criminal law context, these words have a narrower meaning evidenced by Congress’s first incorporation of them into statutory schemes and other elements of crime. On the contrary, the Respondent focuses on the general use of the term, including the use by the United States in other contexts. It also points out differences between this provision and conventional “aiding-and-abetting” provisions.
The sweep of the provision is another key issue. The United States emphasizes how non-speech acts like selling a fake passport are criminalized under this provision, and argues the Ninth Circuit failed to identify a realistic chilling effect. The Respondent replied by pointing to the United States’ acknowledgement that this provision was not redundant of other statutory schemes. The Respondent argues that the expansion was to include speech.
Lastly, the United States highlights the financial gain requirement that arguably narrows the scope of the provision, and argues the First Amendment does not categorically protect speech that “facilitates or solicits a civil violation of the law.” Brief for the United States at 15, United States v. Sineneng-Smith, No. 19-67 (U.S. filed Dec. 2, 2019). The Respondent instead suggests alternative challenges such as content and viewpoint discrimination, and vagueness.
Aside from these legal arguments, the two parties tell two very distinct stories: an immigration consultant who deceived her clients and the government versus an immigration consultant who helped employers and noncitizen employees in good faith. It will be interesting how the Court finds the facts and how the facts affect the Court’s decision, if at all.
February 26
Lomax v. Ortiz-Marquez
No. 18-8369, 10th Cir.
Preview by Summer Flowers
In Lomax v. Ortiz-Marquez, the Supreme Court will determine whether “a dismissal without prejudice for failure to state a claim count[s] as a strike under 28 U.S.C. § 1915(g)” and whether Lomax (“Petitioner”) is able to proceed in forma pauperis (“IFP”) in his civil rights action. Brief for Petitioner at i, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Dec. 9, 2019).
Federal law exempts indigent litigants from required court fees. With limited exceptions, the Prison Litigation Reform Act (“PLRA”) bars prisoners from proceeding IFP if they have “brought an action . . . that was dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim” on three or more occasions while incarcerated. 28 U.S.C. § 1915(g).
Petitioner is an inmate at the Limon Correctional Facility. He filed a motion to proceed IFP in a civil rights action. The district court denied Petitioner’s motion, and the Tenth Circuit affirmed because three of his previous actions were dismissed for failing to state a claim. Two of these actions were dismissed without prejudice.
Petitioner argues the Tenth Circuit incorrectly held that under PLRA § 1915(g), a dismissal without prejudice for failure to state a claim counts toward PLRA’s “three strikes.” Brief for Petitioner at 14, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Dec. 9, 2019). First, Petitioner argues that because the language in § 1915(g) was taken directly from the Federal Rule of Civil Procedure 12(b)(6), courts should apply § 1915(g) “in light of this legal backdrop” and because dismissals without prejudice under 12(b)(6) are not dismissals on the merits, dismissals without prejudice should not count as strikes under § 1915(g). Id. at 10–11. Second, Petitioner argues that because the only other types of dismissals referenced in § 1915(g) are dismissals “that cannot succeed and should not return to court,” Congress did not intend non-merits-based dismissals, such as dismissals entered without prejudice, to count as strikes. Id. at 22. Third, Petitioner cites PLRA’s legislative history and argues that because the law was intended to allow prisoners to pursue legitimate grievances, “imposing strikes for temporary and curable procedural errors” would be at odds with Congress’s intent. Id. at 12.
The Government (“Respondent”) argues a dismissal without prejudice for failure to state a claim should count as a strike under § 1915(g) based on numerous canons of statutory interpretation. First, Respondent cites Black’s Law Dictionary, which explains that “dismissed” includes dismissals with and without prejudice. Second, Respondent argues that courts’ presumption that 12(b)(6) dismissals are “with prejudice,” implies that some 12(b)(6) dismissals are “without prejudice” and thus the phrase “dismissal for failure to state a claim” includes dismissals with and without prejudice. Brief for Respondents at 16, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Jan. 15, 2020). Third, because § 1915(g) considers dismissals without prejudice for frivolous or malicious claims to be strikes, this section should also count dismissals without prejudice for failure to state a claim as a strike. Fourth, the phrase “dismiss for failure to state a claim” or its equivalent appears five times in the PRLA, and interpreting § 1915(g) to only refer to dismissals without prejudice would require the phrase to have different meanings within the same statute. Id. at 21–22. Fifth, while Congress typically differentiates between dismissals with and without prejudice, there is no such differentiation here. Finally, Respondent argues that legislative history demonstrates § 1915(g) was intended to limit frivolous access to federal courts and should be interpreted accordingly.
