The first oral arguments for the month of March will commence when the Court convenes this coming Monday. Since our last set of argument previews was released, the Court has issued opinions in nine different cases, including a consequential ruling in Jennings v. Rodriguez.
The Court’s March schedule will undoubtedly generate momentous decisions as well, as the Court will confront a wide array of issues throughout the month. Indeed, the arguments before the Court this month will range in subject matter from the Contracts Clause of the Constitution (Sveen v. Melin) to retaliatory gerrymandering (Benisek v. Lamone), traversing the intersection of the First Amendment and reproductive rights along the way (National Institute of Family & Life Advocates v. Becerra). Additionally, in Hughes v. United States and Koons v. United States, the Court will have the opportunity to consider the effect of important reforms to the federal sentencing guidelines.
The Court did make some changes to its calendar this week, as Salt River Project v. Tesla was initially removed from the March calendar due to settlement negotiations before being placed on the calendar again. In this case, SolarCity, a home and business solar panel provider and subsidiary of Tesla, sued Salt River Project, a utility company based in Arizona, claiming that Salt River’s rates violated antitrust laws by unfairly penalizing individuals or business owners who installed rooftop solar systems on homes and businesses. Salt River claimed that it was immune under antitrust law’s state-action immunity doctrine, whereby immunity attaches to a sub-state government entity only if the activities are undertaken pursuant to a clearly articulated and express state policy to displace competition. The district court rejected this argument and allowed the case to move forward. Salt River immediately appealed this decision to the Ninth Circuit, but the court dismissed the action. The Supreme Court granted certiorari to decide whether orders denying the use of the state action immunity doctrine may be appealable under the collateral-order doctrine. Arguments in this case have since will now be heard on April 17.
For the remaining items on the Court’s March Calendar, On The Docket has reviewed the background of each case and drafted a primer for each of the arguments. These short pieces, which can be found below, will help you understand key issues in the cases before the Court begins hearing arguments on Monday. We hope you will enjoy reading our previews this month, and that you will return to On The Docket for thoughtful and timely analysis from legal academics and practitioners as the Court continues to issue opinions.
March 19
Sveen v. Melin
No. 16-1432, 8th Cir.
Under Minnesota law, the designation of one spouse as a beneficiary on the other spouse’s life insurance policy is automatically revoked when the couple divorces. In this case, the Court will consider whether this law may be constitutionally applied to designations made before the law was passed.
Mark Sveen and Kaye Melin got married in 1997. In 1998, Sveen named Melin as a beneficiary on his life insurance policy. Subsequently, in 2002, the Minnesota legislature passed the so-called “revocation-upon-divorce” statute, Brief of Respondent at 14, Sveen v. Melin, No. 16-1432 (U.S. filed Feb. 21, 2018), depriving Melin of her status as a beneficiary when the couple divorced in 2007. Although Melin has averred that Sveen verbally agreed to retain her as a beneficiary even after the divorce, the statutory default of revocation can be altered only by express agreement. Thus, when Sveen passed away in 2011, the money from the insurance policy was set to go to Sveen’s children. Melin objected.
The Sveen children assert that they should receive the proceeds of the insurance policy by operation of the revocation-upon-divorce statute. Melin, on the other hand, claims that it would violate the Contracts Clause of the Constitution to apply the statute to agreements entered into before the statute was enacted. The district court held for the Sveen children, but the Eighth Circuit reversed, ruling the statute unconstitutional when applied retroactively.
The Contracts Clause of the Constitution provides in relevant part that “No State . . . shall pass any . . . Law impairing the Obligation of Contracts.” U.S. Const. art. I § 10, cl. 1. In their appeal to the Supreme Court, the Sveen children assert that a beneficiary designation is not among the transactions that the Contracts Clause regulates. Alternatively, they contend that any “impairment” caused by the retroactive application of the revocation-upon-divorce statute “would be insufficiently substantial to implicate the Contracts Clause.” Brief of Petitioners at 4, Sveen v. Melin, No. 16-1432 (U.S. filed Jan. 22, 2018).
The latter of these contentions reflects what will likely be a central issue in the case. Indeed, the outcome of the case may hinge on whether the Court finds that the statute causes a “substantial impairment” under the circumstances, according to the standard laid out in Allied Structural Steel Co. v. Spannaus and its progeny. 438 U.S. 234, 244 (1978). A good number of states have enacted or are cotemplating revocation-upon-divorce statutes, so the Court’s decision in this case could have far-reaching implications. See Brief of Petitioners at 8-9, Sveen v. Melin, No. 16-1432 (U.S. filed Jan. 22, 2018).
March 20
National Institute of Family & Life Advocates v. Becerra
No. 16-1140, 9th Cir.
California’s Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act requires a “licensed covered facility” to provide a notice to clients about free or low-cost pregnancy-related services that are offered through the State’s public programs. Cal. Health & Safety Code § 123472(a)(1) (West 2018). The Act also requires an “unlicensed covered facility” to provide a notice to clients indicating that it is not a medical facility licensed by the State of California. Health & Safety § 123472(b)(1).
Petitioners claim that California’s FACT Act notice requirement violates the Free Speech Clause of the First Amendment. Petitioners also claim that unlicensed covered facilities are impermissibly required to notify clients about California’s public programs that provide pregnancy-related services, including contraception and abortion—services that conflict with Petitioners’ pro-life beliefs and ideology. Petitioners sought a preliminary injunction to bar enforcement of the Act as violative of the First Amendment. The district court denied the injunction.
The specific notice at issue for a “licensed covered facility” states: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].” Health & Safety § 123472(a)(1).
There is a separate notice requirement for an “unlicensed covered facility.” These facilities must provide a notice stating: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Health & Safety § 123472(b)(1).
In affirming the district court’s decision, the Ninth Circuit ruled that the Act is subject only to intermediate scrutiny because it regulates professional speech to clients in a private setting. The Ninth Circuit ruled that the Act neither regulates professional conduct, which would require a rational basis test, nor regulates a professional’s public dialogue, which would require strict scrutiny. Instead, the Court ruled that the Act regulates professional speech to clients in a private setting—something in between professional conduct and public dialogue—and determined that intermediate scrutiny should be applied.
Petitioners contend that the Ninth Circuit’s application of intermediate scrutiny was in error because the notice requirements are viewpoint- and content-based. Petitioners argue that other circuit courts and the Supreme Court have established that viewpoint- or content-based attempts to limit speech are subject to strict scrutiny. Petitioners further claim that strict scrutiny applies to professional speech, arguing that the Supreme Court applied strict scrutiny to professional speech with regard to legal services in both In re Primus, 436 U.S. 412 (1978) and NAACP v. Button, 371 U.S. 415 (1963). Respondents claim that intermediate scrutiny applies because the Act merely imposes notice requirements on professional speech.
March 21
Upper Skagit Indian Tribe v. Lundgren
No. 17-387, Wash.
In Upper Skagit Indian Tribe v. Lundgren, the Court will consider the issue of whether the exercise of in rem jurisdiction overrides the sovereign immunity of an Indian tribe.
This case began as a land dispute in the state of Washington between the Upper Skagit Indian Tribe and two individuals, Sharline and Ray Lundgren. The disputed parcel of land was initially occupied by the Tribe, but was conveyed to the United States in 1855 as part of the Treaty of Point Elliott. The Tribe once again took possession of the land when it purchased the property in 2013.
Following the purchase, the Tribe conducted a survey of the land and discovered that its boundaries had been marked incorrectly. Thereafter, the Tribe told the Lundgrens, the owners of an adjacent parcel of land, of its desire to remove a fence that was erected according to the prior incorrect understanding of the property’s boundaries.
The Lundgrens responded by filing suit against the Tribe, claiming that they were the rightful owners of part of the Tribe’s land by adverse possession. The Tribe attempted to have the case dismissed by asserting sovereign immunity. The Tribe’s motion was denied by the Washington Superior Court, a ruling that was affirmed on appeal by the Washington Supreme Court.
In their appeal to the Court, the Tribe asserts that the Washington Supreme Court was incorrect in finding an exception to tribal sovereign immunity in cases involving in rem jurisdiction, stating that such a holding rests on an incorrect understanding of the precedent set by the Court in County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992). In response, the Lundgrens argue that sovereign immunity should not apply in in rem cases because such cases involve the exercise of jurisdiction over land rather than a person or entity.
The outcome of this case could, of course, have important implications for Indian tribes who, like the Upper Skagit Tribe in this case, want to expand their territory and regain possession of land that was once theirs.
March 26
United States v. Sanchez-Gomez
No. 17-312, 9th Cir.
United States v. Sanchez-Gomez involves a government appeal of the Ninth Circuit’s decision to rule on the claims of four individuals who objected to being placed in hand, leg, and waist restraints during pretrial proceedings, even though the underlying criminal prosecutions in all four cases had already been settled.
The dispute began when the respondents, Rene Sanchez-Gomez, Moises Patricio-Guzman, Jasmin Morales, and Mark Ring, were arrested in California for various crimes over a two-year period. For their court appearances, the respondents were each placed in so-called “five-point restraints” (that is, a combination of hand, leg, and waist restraints), Brief of Respondents at 3, United States v. Sanchez-Gomez, No. 17-312 (U.S. filed Feb. 21, 2018), pursuant to a policy of the United States Marshals Service for the Southern District of California.
The respondents each protested the use of the restraints, challenging the district policy as unconstitutional. When the district court dismissed their challenges, the respondents each appealed to the Ninth Circuit.
Before the court of appeals could rule on the issue, the criminal cases against the respondents were brought to a close. Nevertheless, the Ninth Circuit saw fit to rule on the respondents’ claims, relying on the collateral-order doctrine. See Brief of Petitioners at 8-9, United States v. Sanchez-Gomez, No. 17-312 (U.S. filed Jan. 22, 2018). The Ninth Circuit also stated that although the criminal charges against the respondents had all been settled, their claims related to the restraints were not moot “because the cases were ‘capable of repetition, yet evading review.'” Brief of Respondents at 10, United States v. Sanchez-Gomez, No. 17-312 (U.S. filed Feb. 21, 2018) (quoting United States v. Howard, 480 F.3d 1005, 1009 (2007)). Regarding the use of five-point restraints, the court found the district’s policy unconstitutional. The Ninth Circuit, sitting en banc, affirmed all of these decisions, but ruled that mandamus and not the collateral-order doctrine was the proper justification for the exercise of appellate jurisdiction.
In its appeal, the government challenges the Ninth Circuit’s findings regarding appellate jurisdiction and mootness. If the Court decides to affirm the decision below, it could call into question not only the restraint policy in the Southern District of California, but also similar policies in other districts.
China Agritech, Inc. v. Resh
No. 17-432, 9th Cir.
Supreme Court decisions are often clear rulings by a unanimous Court that leave little room for interpretation. These cases are recited decades later by citizens because they are so pivotal to understanding rights and liberties. Cases like Brown v. Board of Education, 347 U.S. 483 (1954) and Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) fit into this picture. There are also cases which, though decided by a divided Court, are nonetheless easily understood and remembered. See Roe v. Wade, 410 U.S. 112 (1973); Miranda v. Arizona, 384 U.S. 436 (1966). Sometimes, however, the Court will issue a unanimous decision that leaves questions unanswered, requiring the Court to clarify the decision in subsequent terms. One such case is American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), which was at the center of the issues presented last term in California Public Employees’ Retirement System v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017), and will again be interpreted in China Agritech, Inc. v. Resh.
China Agritech is a holding company listed on the NASDAQ Stock Exchange. The company operates through subsidiaries that sell fertilizers and other farm products. In February 2011, a market research company published a report alleging that China Agritech was not a functioning as a business, but rather being used to funnel money from shareholders to the founders. China Agritech denied the allegations, but was confronted by a hedge fund that published an article pointing out flaws in the denial. China Agritech’s share prices dropped the following day. In October 2012, the SEC revoked the registration of China Agritech stock.
In February 2011, just after the initial report came out, Theodore Dean filed a class action suit against China Agritech alleging that the company materially misstated revenue and income, but the complaint was dismissed as premature. When Dean amended the complaint, the court stated that individual issues predominated and thus did not certify the class. The plaintiffs proceeded as individuals. In October 2012, three weeks after the plaintiffs settled, Kevin Smyth filed a similar class action. The court also denied his motion for class certification.
In June 2014, Michael Resh filed a would-be class action. The plaintiffs alleged violations of U.S. securities law based on the same facts and circumstances that were present in the Dean and Smyth Actions. In September, China Agritech filed a motion to dismiss the complaint, stating that the action was time-barred by the two-year statute of limitations for actions such as the plaintiffs’. The motion to dismiss was granted in December. The plaintiffs argued that the class action was timely because American Pipe mandated that the statute of limitations be tolled pending the Dean and Smith actions. The district court held that American Pipe provides a tolled statute of limitations for individual class members, but did not determine whether the tolling also applies to an entirely new class action based upon a substantially identical class. The district court concluded that tolling would not apply in that scenario because doing so would allow classes to continually sue and indefinitely extend the limitations period.
On appeal, the Ninth Circuit reversed and held that the plaintiffs’ would-be class action is not time barred because (1) the plaintiffs were unnamed plaintiffs in two earlier would-be class actions against many of the same defendants based on the same underlying events; (2) class action certification was denied in both cases; (3) the earlier actions were timely; and (4) the statute of limitations for the individual claims of would-be class members in the earlier actions was tolled during the pendency of those actions, as per American Pipe and its progeny.
When the Court convenes to hear oral arguments in this case, it will decide “[w]hether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.” Petition for Writ of Certiorari at i, China Agritech Inc. v. Resh, No. 17-432 (U.S. filed Sep. 21, 2017). While the details of this case are heavily peppered with securities litigation, the answer will have a broad impact on class action lawsuits generally.
March 27
Hughes v. United States
No. 17-155, 11th Cir.
In 2013, Erik Hughes was indicted on drug and firearm offenses. After discovering that federal sentencing guidelines recommended 188 to 235 months for his offenses, Mr. Hughes entered into a plea agreement with the prosecutor for a 180-month prison sentence under Federal Rule of Criminal Procedure 11(c)(1)(C). The district court reviewed the plea agreement and determined that the agreed-upon sentence complied with the sentencing guidelines. Thus, the court accepted the agreement and sentenced Mr. Hughes to 180 months in prison.
About two years later, the U.S. Sentencing Commission amended the guidelines related to Hughes’s offenses, such that the recommended sentencing range became 151 to 188 months (a difference of approximately three to four years). When Hughes found out about the amendment, he filed a motion to reduce his sentence. His motion was filed pursuant to a federal statute allowing a reduction for defendants who were sentenced based on a sentencing guidelines range that has subsequently been lowered. The district court denied Hughes’s motion, explaining that his sentence in his plea agreement was not “based on” a sentencing guidelines range, as required by the statute. In denying his motion, the court relied on Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011). In her opinion, Justice Sotomayor stated that a sentence from a plea agreement would need to explicitly state that the basis for the specified term was the sentencing guidelines in order to comply with the relevant federal statute. That is, a clear statement in the plea agreement is the only way to receive the reduced sentence. Thus, the district court explained, because the plea agreement did not explicitly mention the Sentencing Guidelines, Hughes could not receive a reduced sentence.
The question before the Court is twofold. First, was it proper for the district court to rely on Justice Sotomayor’s concurrence in Freeman? And second, is a defendant who enters into a plea bargain under Federal Rule of Criminal Procedure 11(c)(1)(C) eligible for a sentence reduction if the sentencing guidelines are amended subsequent to his sentencing?
The first question relates to how we interpret an important proposition from Marks v. United States, 430 U.S. 188, 193 (1977): when no single rationale gains the support of a majority of the Justices, “the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.” In Freeman, there was a four-Justice plurality, and Justice Sotomayor separately concurred to make it a 4-1-4 decision. Unfortunately, the four-Justice plurality and Justice Sotomayor’s concurrence shared no common rationale. While Marks explains what to do in situations where the opinions are narrower or broader, the lower courts have been left to determine what to do when the opinions are simply different. This has caused a circuit split, and one that is perhaps ripe for the Court to resolve in this case. On the other hand, the Court can simply avoid this question and move immediately to the more substantive question of this case.
With respect to the second question before the Court, the disagreement between Hughes and the Government is what “based on” means in this context under the relevant statute. For Hughes, “based on” is a causation question: was the sentence agreed upon in the plea agreement based on the sentence recommended in the sentencing guidelines? As evidence of this, Hughes points to the numerous places in the plea negotiations in which the sentencing guidelines were mentioned. He hopes to successfully convince the Court that the sentence can be reduced pursuant to the federal statute because it was based on the sentencing guidelines. The Government responds with the literal approach and rebuts Hughes’s argument that the term “based on” relates to causation. The Government asserts that the term refers to a sentence’s legal foundation, and that the sentence in this case is clearly based on Hughes’s plea agreement, not on the sentencing guidelines. Therefore, the Government argues, Mr. Hughes’s sentence should not be reduced.
A ruling in favor of Hughes in this case could have a profound impact not just on Hughes, but also on many others who have entered into plea agreements.
Koons v. United States
No. 17-5716, 8th Cir.
Defendants who offer substantial assistance to the government are eligible for sentence reductions. The question in Koons is whether a retroactive amendment to the sentencing guidelines entitles such defendants to further sentence reductions when their conduct was subject to a mandatory minimum sentence.
Koons consolidates the cases of five defendants charged with drug and firearm offenses. All five defendants were subject to statutory mandatory minimum sentences higher than those sentences calculated under the advisory sentencing guidelines. Under 18 U.S.C. § 3553(e) (2012), however, the courts reduced the defendants’ sentences below the mandatory minimums because they had provided substantial assistance to the government.
In 2014, an amendment to the sentencing guidelines reduced the advisory sentencing guidelines applicable to the defendants’ drug crimes. The Sentencing Commission made the amended guidelines retroactive. The defendants sought sentence reductions in district court under 18 U.S.C. § 3582(c)(2) (2012), which provides that a district court may reduce a defendant’s sentence when that sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The district court denied relief, holding that the defendants were not eligible for sentence reductions based on the original advisory sentencing guidelines because the statutory mandatory minimums had superseded those guidelines. The Eighth Circuit affirmed.
Thus, as is the case in Hughes v. United States, which will be argued on the same day, Koons turns on the meaning of “based on.” Petitioners argue that their original sentences were “based on” the advisory sentencing guidelines because the courts were required to consult those guidelines, even though the statutory minimums ultimately negated them. Indeed, because the defendants provided substantial assistance to the government, Petitioners argue that the sentencing guidelines effectively displaced the mandatory minimums so that the final sentences were based on the guidelines.
In response, the Government contends that the mandatory minimums are statutory requirements that the Sentencing Commission is not empowered to alter. As a result, the Government contends, the original sentences were based on statute, not the advisory guidelines. Indeed, the Government argues that § 3553(e) only applies to sentences imposed according to statutory minimums, and thus only permits courts to take into account the assistance a defendant provided, rather than other factors such as the guidelines. Although the Sentencing Commission has taken the opposite position, the Government argues that the Commission’s policy statement is contrary to the law.
March 28
Benisek v. Lamone
No. 17-333, D. Md.
Petitioners claim that the 2011 redistricting of Maryland’s Sixth Congressional District was an impermissible retaliation against political affiliation and voting history that violates the First Amendment. Specifically, Petitioners allege that Respondents intentionally gerrymandered the state to secure a Democratic win in the Sixth District.
In order to abide by the one-person-one-vote rule, which states that districts must have equal populations to safeguard equal voting power among individuals, 10,189 individuals needed to move out of the Sixth District. Due to the complexities of redistricting and alleged political motives, more than 360,000 individuals were cut from the district and others were moved into the district to ensure a net loss of 10,189 individuals.
Republican Roscoe Bartlett had been the Representative for Maryland’s Sixth Congressional District for twenty years, and in 2010, he won by more than 68,000 votes (28%). In the 2012 election, Bartlett lost by more than 64,000 votes (21%) to Democratic Representative John Delaney, the current representative for the Sixth District. The 2014 election, however, was very close: Delaney beat out the Republican candidate by fewer than 2,800 votes (1.5%).
In the district court, the majority specifically cited the 2014 election as evidence that Petitioners did not meet their burden for a preliminary injunction. For the injunction to issue, Appellants needed to show that the gerrymandering caused the Democratic victory and was not a result of a myriad of other election variables. The majority conceded that Petitioners’ showing may establish causation, but it did not meet the standard necessary for a preliminary injunction. Petitioners maintain that the burden-shifting framework established in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) instead requires the Respondents to demonstrate that the district map would be the same without any political motives. In Mt. Healthy, this standard was applied to a teacher’s First Amendment retaliation claim. Here, however, the district court refused to apply that standard to a claim of retaliatory partisan gerrymandering.
The Brennan Center for Justice at NYU School of Law and Professor Michael S. Kang, an expert on redistricting and election law, have filed briefs in support of Petitioners as amici curiae.
The States of Michigan, et al. (includes Arkansas, Colorado, Georgia, Indiana, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, Texas, and Utah) have filed a brief in support of Respondents as amici curiae.
