February 22
Florida v. Georgia
No. 142, Original
Preview by Austin Martin, Senior Online Editor
This case concerns a decades-long dispute over rights to the waters flowing from Georgia into Florida’s Apalachicola Bay. The states previously reached the Supreme Court in 2018 when Florida claimed that its portion of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”) suffered environmental and economic harm due to Georgia’s alleged overconsumption of water from the Basin. The Court appointed Special Master Ralph Lancaster to issue a report recommendations based on the parties’ arguments. Special Master Lancaster concluded that Florida’s alleged injury would not be redressable by the Court in this case because the Army Corps of Engineers, not Georgia, controlled river flow into Florida. The Court disagreed, holding that Special Master Lancaster was too strict in his analysis of whether Florida met its burden to show redressability. See Florida v. Georgia, 138 S. Ct. 2502, 2516 (2018). Instead of requiring Florida to show “clear and convincing evidence” that the Court could issue a workable decree to allocate water among the states, the Court stated that Florida need only prove that a workable decree is likely possible. Id. Although Florida had satisfied this standard, the Court remanded with instructions for further consideration of certain evidentiary questions that Special Master Lancaster had left unresolved. The Court also appointed a new Special Master, Judge Paul Kelly Jr. of the Tenth Circuit.
In December 2019, Special Master Kelly issued a report recommending denial of Florida’s request for a decree to allocate water among the states. See Report of Special Master Kelly 7 (Dec. 11, 2019). Florida now challenges that report and urges the Court not to adopt it. See Exceptions to Report of the Special Master by Plaintiff State of Florida and Brief in Support of Exceptions, Florida v. Georgia, No. 142 (U.S. filed Apr. 13, 2020). Florida contends that Special Master Kelly ignored the Court’s command to “conduct the equitable-balancing inquiry” and focused too much on whether Georgia’s consumption was reasonable, rather than on whether Florida’s equal right to reasonable use was harmed. Florida, 138 S. Ct. at 2518; Exceptions to Report at 18–20. Florida leans on Special Master Lancaster’s report finding that the state suffered “real harm” from Georgia’s upstream consumption, in contrast to Special Master Kelly’s finding that “Florida has not suffered any harm from Georgia’s consumption.” Exceptions to Report at 21 (quoting Kelly Report 25). Furthermore, Florida asserts that an apportionment decree would pose little cost and would greatly benefit Florida’s economy and ecological health by improving its oyster fisheries in the ACF Basin.
Georgia argues that Special Master Kelly did exactly as directed by the Court, which was to evaluate the evidentiary issues left unresolved by Special Master Lancaster. The result, Georgia argues, is that Florida has failed to fulfill its burden to “prove by ‘clear and convincing evidence’ that it has suffered a serious injury “‘through the action of the other State.’” See Georgia’s Reply to Florida’s Exceptions to the Report of the Special Master at 15, Florida v. Georgia, No. 142 (U.S. filed Jun. 26, 2020) (quoting Florida, 138 S. Ct. at 2514). Georgia also argues that its consumption of ACF waters is reasonable and that the costs of any decree would significantly outweigh any minimal benefit the decree could offer. Georgia contends that Florida created its own problems by mismanaging its waters and has relied on untested, unreliable water consumption models specifically for this litigation. See id. at 15–17, 28.
Florida’s Apalachicola Bay oysters rely on freshwater flows from the Apalachicola River to decrease water salinity and drive away predators. Oyster beds themselves play a crucial ecological role by filtering nutrients from the water and creating feeding and nesting habitats in the ACF basin. Further, Apalachicola’s local community has long thrived on a deeply ingrained culture of “oyster stewardship,” which has made its oysters famously tasty and highly lucrative. Brief of Franklin County Seafood Workers Association as Amicus Curiae at 6, Florida v. Georgia, No. 142 (U.S. filed Jun. 26, 2020). At the same time, the Atlanta metropolitan area relies on the upstream waters of the Chattahoochee river to supply freshwater to its population of over 6 million people. See Amicus Curiae Brief in Support of the State of Georgia by the Atlanta Regional Commission, et al. at 2–4 Florida v. Georgia, No. 142 (U.S. filed Aug. 7, 2020). The Court’s decision in this case could have significant effects on these competing, vastly different southern communities.
February 23
Wilkinson v. Dai (formerly Rosen v. Dai)
No. 19-1155, 9th Cir.
Preview by Amy Orlov, Online Editor
This case concerns required findings by an immigration judge in a removal hearing. The facts of this case involve a native and citizen of China, Ming Dai, who sought asylum in the United States rather than return to his home country. An immigration judge denied Dai his application for asylum as well as two other forms of relief: (1) withholding of removal and (2) protection under the Convention Against Torture. However, the immigration judge did not expressly find that Dai’s testimony lacked credibility. Dai appealed to the Board of Immigration Appeals, which affirmed the immigration judge’s decision.
Dai appealed to the U.S. Court of Appeals for the Ninth Circuit. The court took issue with the lower courts’ absence of a finding that Dai was not credible. As such, the Ninth Circuit held that Dai was entitled to a presumption of credibility and, under similar standards, a withholding of removal proceedings. See Ming Dai v. Sessions, 884 F.3d 858, 869, 874 (9th Cir. 2018). The court thus overturned the Board of Immigration Appeals’ and immigration judge’s ruling.
The issue before the Supreme Court is whether an Article III court, such as the Ninth Circuit here, can presume that an immigrant’s testimony is credible absent a specific finding from an immigration judge of an explicit adverse credibility determination. A secondary issue in this case concerns whether the Ninth Circuit should have remanded the case back to the agency upon its credibility holding. However, this is a minor issue deviating from the merits.
The attorneys for Dai argue that the agency’s decision denying Dai his asylum petition was not supported by substantial evidence and that administrative silence as to credibility is equivalent to accepting the noncitizen’s testimony as credible. See Brief for the Respondent at , 27, Rosen v. Dai, No. 19-1155 (U.S. filed Jan. 4, 2021). As such, under administrative law principles, the Ninth Circuit could not make its own adverse credibility determinations as the court of review and must view the immigrant as credible. See id. at 28–29.
The Department of Justice argues that a court of appeals is required to sustain a Board of Immigration Appeals’ denial of relief so long as that determination is supported by substantial evidence, and the Board’s determination here satisfied that substantial evidence standard. See Brief for the Petitioner at 20–22, Barr v. Dai, No. 19-1155 & 19-1156 (U.S. filed Nov. 16, 2020). Furthermore, the Immigration and Nationality Act does not authorize a court of appeals to conclude that an immigrant’s “factual contentions are true” merely because the agency did not make an adverse credibility finding. Id. at 27.
Wilkinson v. Dai is consolidated with Wilkinson v. Alcaraz-Enriquez. These cases present an interesting temporal aspect in that three different attorneys general or acting attorneys general have served the Department of Justice since their filing, hence the changes in named petitioner. It is not clear if the Biden administration supports the same previous stances in these cases as the Trump administration.
February 24
Lange v. California
No. 20-18, Cal. Ct. App., 1st Dist.
Preview by Jacob Reiskin, Online Editor
The Court in Lange confronts for the first time whether the exigent circumstances exception to the Fourth Amendment prohibition on warrantless entry should be extended to officers who are in hot pursuit of misdemeanor offenders. The Court’s precedent recognizes that officers in pursuit of a person suspected of a felony offense may not be thwarted by the suspect’s decision to run into their home. See United States v. Santana, 427 U.S. 38, 42–43 (1976). The disagreement is whether a categorical rule should be applied to persons suspected of committing misdemeanors.
Arthur Lange was driving home, playing loud music, and occasionally honking when an officer began following him. The officer only turned on his police lights as Lange was approaching his driveway. Lange did not stop, and instead proceeded up his driveway and into his garage, which he started to close. The officer got out of his car, stuck his foot under the door before it closed to trigger it to go back up, and then walked into the garage. The officer smelled alcohol and Lange was later arrested and cited for driving under the influence. Lange challenged the misdemeanor in the lower courts on the basis of a Fourth Amendment violation. Lange lost in the courts below and appealed to the U.S. Supreme Court after the California Supreme Court declined to take up a discretionary review.
The Court-assigned amicus advocate argues to the contrary that precedent does not recognize a difference in hot pursuits stemming from misdemeanor or felony offensesSee Brief of Court-Appointed Amicus Curiae Amanda K. Rice in Support of The Judgment Below at 10–13, Lange v. California, No. 18–20 (U.S. filed Jan. 8, 2021). She also points out the strong government interest in preserving government authority to conduct police work and apprehend suspects who are evading arrest. To this end, she argues that a case-specific approach is not administrable for fast-moving pursuits. See id. at 23–24. The United States also submitted an amicus brief arguing that the categorical rule for warrantless entry stemming from hot pursuit should also apply to misdemeanors. The United States determined that the officer’s action in this case was reasonable and that understanding the totality of the circumstances is critical to weighing Fourth Amendment procedure. See Brief for the United States as Amicus Curiae Supporting Affirmance at 30–32, Lange v. California, No 18-20 (U.S. filed Jan 15, 2020).
Lange v. California marks another stop in a line of Supreme Court cases concerning warrantless entry. With a new Court makeup and heightened public concern over police invasion into the home, however, this case will have ripple effects for policing nationwide.
March 1
United States v. Arthrex, Inc.
No. 19-1434, Fed. Cir.
Preview by Josh Carrigan, Associate
The Federal Circuit’s Halloween decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), sent shockwaves through the patent law community and plunged the status of more than 250 Administrative Patent Judges (“APJs”) into a cloud of uncertainty. Since the advent of the Leahy-Smith America Invents Act (“AIA”), APJs have adjudicated litigation-like disputes between private parties, making binding determinations about the patentability of disputed claims. In Arthrex, the Federal Circuit held that APJs are unconstitutionally appointed principal officers and remedied the defect by severing Title 5 civil service tenure protection, thereby making APJs removable at will by the Director of the United States Patent and Trademark Office (USPTO).
The Constitution provides only four valid methods to appoint “Officers of the United States.” Officers may be appointed by the President “by and with the Advice and Consent of the Senate,” by the “President alone,” the courts, or “the Heads of Departments.” U.S. Const. art. II § 2 cl. 2. The latter three methods are permissible only in the case of “inferior Officers.” Id. With no constitutionally provided line dividing so-called principal officers—those who must be appointed by the President and confirmed by the Senate—and inferior officers, the distinction has been the source of much litigation, often in the context of a challenge to an allegedly unconstitutionally appointed officer’s actions. Under current Supreme Court precedent, an inferior officer is one “whose work is directed and supervised at some level by” principal officers. What remains unclear, and at the heart of the Arthrex controversy, is the extent of supervision which renders an officer inferior.
Relying on Edmond, the Federal Circuit distilled at least three factors critical to determining whether an officer is principal or inferior: whether an appointed official has (1) the authority to remove the officer in question, (2) the authority to review or reverse another officer’s decisions, and (3) supervisory oversight over the officer. See id. at 664–66. The Federal Circuit found that two of these factors—authority to remove and authority to review or reverse—weighed in favor of finding that APJs are principal officers, while only one—supervisory oversight—weighed in the other direction, and the court held that the APJs were unconstitutionally appointed principal officers. See Arthrex, 941 F.3d at 1335. To remedy the defect, the court tipped one factor—removal authority—back toward a finding that APJs are inferior by invalidating the APJs’ statutory removal protections to make them removable at will by the Director. See id. at 1338.
None of the parties to the Federal Circuit proceedings came away happy: all three—Arthrex, Smith & Nephew, and the United States as intervenor—petitioned for certiorari. The Supreme Court accepted, agreeing to review two issues: whether APJs are principal officers (merits), and if so, whether the Federal Circuit’s remedy cured the constitutional defect (remedy).
On the merits, the controversy is squarely centered on the test for determining whether an officer is principal or inferior. The United States and Smith & Nephew argue that the Federal Circuit’s “checklist approach” to its Edmond application gave undue weight to certain mechanisms for control (or the absence thereof). Brief for the United States at 15, United States v. Arthrex, Inc., Nos. 19-1434, 19-452, & 19-1458 (U.S. Nov. 25, 2020). Arthrex largely agrees with the Federal Circuit’s result on the merits but goes further, urging the Court to hold that review authority is essential for agency adjudicators to be inferior. See Brief for Arthrex, Inc. at 19–20, United States v. Arthrex, Inc., Nos. 19-1434, 19-452, & 19-1458 (U.S. filed Dec. 23, 2020).
As for remedy, the United States and Smith & Nephew argue that the Court need not reach the issue, but Arthrex argues primarily that the Federal Circuit’s remedy does not cure the defect . See Brief for Arthrex, Inc. at 45–47. Implicit in Arthrex’s argument against severance of tenure protection is the proposition that the remedy here lies with Congress, not the courts. In a forthcoming Essay to be published in The George Washington Law Review Arguendo, I explore this idea in greater depth, arguing that no matter how the Court decides on the merits, the only path to harmonizing patent adjudication at the USPTO with the countless other agency adjudication regimes is through an act of Congress.
It may well be that the Court answers a burning question in administrative law when it decides Arthrex, further defining the contours of the line between principal and inferior officer. This is particularly important in the realm of agency adjudication, not just at the USPTO, but in the many other agencies where such adjudications occur. A balance must be struck between the need for impartial adjudicators and political accountability. Whatever answer the Court gives, it remains to be seen whether anyone will come away happy from this case; perhaps the parties would fare better with an appeal to Congress.
March 2
Brnovich v. Democratic National Committee
Arizona Republican Party v. Democratic National Committee
No. 19-1257 & 19-1258, 9th Cir.
Preview by Nick Contarino, Online Editor
Section 2 of the Voting Rights Act (“VRA”) prohibits states from applying any policy that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color [or language-minority status].” 52 U.S.C. § 10301(a). Two Arizona voting restrictions are at issue in these consolidated cases: (1) Arizona’s “out-of-precinct policy” whereby Arizona discards ballots cast by a voter in a precinct other than the one to which the voter is assigned, even if the voter cast their vote in the correct county; and (2) Arizona’s “ballot-collection ban” whereby Arizona criminalizes non-fraudulent ballot collection. DNC Respondents’ Brief at 1, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Jan. 13, 2021). In examining these policies, the Ninth Circuit followed a two-part test whereby it first examined whether the challenged polices resulted in a disparate burden on members of a protected class. See id. at 24. Finding a disparate burden, the Ninth Circuit then evaluated “whether, under the ‘totality of the circumstances,’” there was “a legally significant relationship between the disparate burden on minority voters and the social and historical conditions affecting them.” Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1012 (9th Cir. 2020) (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)). The Ninth Circuit held that both policies violated Section 2 of the VRA. In determining if Arizona’s “out-of-precinct policy” and “ballot-collection ban” violated Section 2 of the VRA, the Supreme Court must also decide if the Ninth Circuit’s test was correct.
The Democratic National Committee (“DNC”)and the Arizona Secretary of State argue that the Supreme Court should affirm the Ninth Circuit, stating that the Ninth Circuit correctly found that Arizona’s policies disparately impact minorities and deny them an equal opportunity to participate in Arizona’s political process. See DNC Respondents’ Brief at 21; Brief of Respondent Arizona Secretary of State Katie Hobbs at , Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Jan. 13, 2021). The DNC states that Arizona’s “out-of-precinct policy” “has disenfranchised over 38,000 Arizonans since 2008.” DNC Respondents’ Brief at 2. Under that policy, minority voters are twice as likely to have their votes rejected as compared to white voters. Id. The DNC also argues that Arizona’s non-fraudulent ballot collection ban is “directly tied to racial discrimination.” Id. It notes that “[u]ncontested evidence in the district court established [that] . . . prior to the enactment of [the ban], a large and disproportionate number of minority voters relied on third parties to collect and deliver their early ballots.” Id. at 3 (quoting Hobbs, 948 F.3d at 1014) (alteration in original). The DNC argues that the Republican effort in the Arizona Legislature to ban ballot collection has “never been anything other than a racially-charged [method] to suppress minority votes.” Id. Respondents argue that the Ninth Circuit’s two-part test is consistent with the text and purpose of the VRA as well as the Supreme Court’s jurisprudence. Id. at 24; Brief of Respondent Hobbs at 16.
The Arizona Republican Party (“ARP”) and Mark Brnovich, the Arizona Attorney General, allege that the DNC’s arguments ignore the statutory text of the VRA and are unconstitutional. See Reply Brief for Private Petitioners at 2, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Feb. 12, 2021); Reply Brief for State Petitioners at 3, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Feb. 12, 2021). Focusing on the “denial or abridgment” language in the statute, the ARP argues that race-neutral rules setting the time, place, or manner of voting do not constitute the denial of the right to vote. Reply Brief for Private Petitioners at 2. The ARP states that subsection (b) of the VRA confirms its position, as subsection (b) states that a denial or abridgment occurs if minorities are afforded “less opportunity” to participate in the “political process” than non-minorities. Id. at 3; § 10301(b). The ARP argues that Arizona’s racially neutral policies merely define where, when, and how to vote, and thereby do not result in any racial group having “less opportunity” to participate in the political process. Id. The ARP and Brnovich also allege that if the Court adopted the DNC’s reading of the VRA, it would “let loose a runaway racial-proportionality train” that would raise serious constitutional concerns. Id. at 19. They state that the respondents’ reading “would require race-based action to favor minorities, mandating a sweeping overhaul of ordinary and important election rules without any plausible nexus to ‘enforcing’ the ban on intentional discrimination.” Id. at 17 (emphasis in original).
The DNC and Hobbs respond to the petitioners’ argument that the two-part test will lead to invalidation of neutral election laws nationwide by stating such a claim is “demonstrably hyperbolic.” DNC Respondents’ Brief at 40. They note that this two-part test is “employed by the majority of circuits.” Id. at 14. They also state that the courts, in applying this test, have never achieved the “outcome that Petitioners fear.” Id. at 40. Finally, the DNC and Hobbs also disagree with the ARP’s and Brnovich’s argument that racially neutral time, place, and manner laws do not run afoul of the VRA, noting that this interpretation of the VRA would nullify the VRA’s protections. See id. at 43.
March 3
Carr v. Saul
No. 19-1442, 10th Cir.
Preview by Austin Martin, Senior Online Editor
In Carr v. Saul, Willie Carr—an electrician from Tulsa, Oklahoma—challenges the denial of his application for disability benefits from the Social Security Administration (“SSA”) rendered by an administrative law judge (“ALJ”). Carr appealed the ALJ’s decision to federal district court. While appeal was pending, the Supreme Court decided in Lucia v. Securities and Exchange Commission that SEC ALJs are “inferior officers” of the United States under the Appointments Clause of the Constitution. 138 S. Ct. 2044 (2018). Under the Appointments Clause, only the President, a court of law, or a head of department may appoint inferior officers. U.S. Const. art II, § 2, cl. 2. Because the ALJ in Lucia was appointed by SEC staff members, the ALJ lacked authority as an inferior officer, rendering the ALJ’s decision invalid. See Lucia, 138 S. Ct. at 2049, 2055.
At the time Lucia was decided, Social Security ALJs “were selected by agency staff members with no involvement by the Commissioner.” Brief for Petitioners at 8–9, Davis v. Saul, No. 20-105 (U.S. filed Dec. 28, 2020). In response to Lucia, the Acting Commissioner of Social Security issued an order ratifying the existing ALJs’ appointment and directing them to deny any challenges to ALJ authority in prior decisions because of the Commissioner’s ratification. See Brief of Petitioners at 9, Carr v. Saul, No. 19-1442 (U.S. filed Dec. 28, 2020).
Carr argued in district court that the ALJ in his case was unconstitutionally appointed and therefore lacked the authority to deny his claim for benefits. The SSA did not dispute this argument, but instead argued that Carr did not raise the issue in the administrative proceeding, meaning the argument was not preserved for appeal. The district court ruled in favor of Carr, but the Tenth Circuit reversed, holding that Carr forfeited his Appointments Clause challenge by failing to raise it before the ALJ.
Carr asserts that “claimants need not challenge the constitutionality of ALJs’ appointments before the very ALJs charged with adjudicating their benefits claims in order to preserve the issue for judicial review.” Brief of Petitioners at 13, Carr v. Saul. Carr relies on Sims v. Apfel, which held that SSA “[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.” 530 U.S. 103, 112 (2000). Carr argues that Congress only contemplated issue exhaustion in SSA proceedings in one situation: where the SSA initiates proceedings to impose penalties on individuals who knowingly make false statements during benefits determinations. Further, Carr argues that ALJ proceedings are inquisitorial, not adversarial, meaning the ALJs should be able to spot Appointments Clause regardless of whether the parties raise them. Finally, Carr urges the Court to avoid judicially crafted exhaustion requirements in favor of the “Court’s longstanding remedy-exhaustion precedents” allowing for review of constitutional issues not raised in administrative proceedings. Brief of Petitioners at 36, Carr v. Saul.
The government argues that administrative law principles and Appointments Clause precedent weigh in favor of finding that Carr forfeited his objection not raised before the ALJ. Although the Court ordered a new hearing in Lucia to cure the Appointments Clause violation, the government distinguishes Lucia by arguing that a rehearing was available only for “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case.” Brief for the Respondent at 16–17, Carr v. Saul, No. 19-1442 (U.S. filed Jan. 27, 2021) (quoting Lucia, 138 S. Ct. at 2055) (emphasis in original). The government also seeks to minimize Carr’s concern about judicially crafted exhaustion and forfeiture rules, arguing that the Court has imposed them in several cases and that the federal courts of appeals have consistently applied forfeiture principles in Social Security cases. See id. at 27, 30.
Carr’s case is combined those of several other petitioners who seek reconsideration of their disability benefits by properly-appointed ALJs after Lucia. While the Court’s decision in this case certainly will impact their claims, the Court also has an opportunity to clarify where it is appropriate for the courts, rather than Congress, to implement prudential exhaustion requirements. This decision could therefore affect a swath of future SSA claimants and general litigation strategy in future cases where claimants pursue SSA benefits.
