January 11
Pham v. Guzman Chavez
No. 19-897, 4th Cir.
Preview by Nick Contarino, Online Editor
The Immigration and Nationality Act (“INA”) sets out a comprehensive scheme for the detention and removal of noncitizens unlawfully located in the territory of the United States. 8 U.S.C. § 1101 et seq. (2018) The Act provides a streamlined method for removing noncitizens unlawfully located within the United States “who have previously been removed from the United States under a final order of removal.” Brief for the Petitioners at 2, Pham v. Guzman Chavez, No. 19-897 (U.S. filed Aug. 21, 2020). There are two methods by which noncitizens can avoid or defer removal. First, noncitizens can avoid removal if they show that their removal to a country would cause them to subsequently face persecution tied to their “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)). Second, a noncitizen may avoid or defer removal if they can establish that they would face torture if removed to the country in question. See Brief for the Petitioners at 3–4 (citing Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]).
The respondents are noncitizens previously removed from the United States who were allegedly “persecuted, tortured, or threatened . . . in the countries to which they had been removed” and who allegedly would face similar harm if they were to be removed again. Brief for Respondents at 8, Pham v. Guzman Chavez, No. 19-897 (U.S. filed Nov. 4, 2020). After they were detained, the respondents sought individualized bond hearings under § 1226 of the INA. Id. Section 1226(a) governs the detention of noncitizens “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). The government denied that the respondents were entitled to such hearings, arguing that their detention was actually governed by § 1231(a) of the INA. See Brief for the Petitioners at 8. Section 1231(a)(1)(A) reads: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States.” The issue for the Court is whether § 1231(a) or § 1226 governs the detention of the respondents given that they are subject to a reinstated removal order and are pursuing its withholding or deferral under § 1231(b)(3) and CAT.
Section 1231(a)(5) states that if a noncitizen who previously exited the United States under an order of removal reenters the United States illegally, then their removal order is automatically reinstated, the order is not subject to review, and the noncitizen is ineligible for relief under the INA. 8 U.S.C. § 1231(a)(5). The government argues that because the respondents’ removal orders have been reinstated in virtue of their illegal reentry into the United States, they have “by definition[] been ‘ordered removed.’” Brief for the Petitioners at 11. The government contends that the fact that respondents are currently pursuing statutory withholding under the INA and CAT is irrelevant, as any withholding decision would only affect “where and when [respondents’] removal may occur,” not the fact that respondents have already been ordered removed. Id. The government argues that a plain reading of the text supports its position, and additionally state that the Court should afford Chevron deference to their interpretation of the provisions. Id. at 11–12.
The respondents argue § 1226 governs because of the pendency of the respondents’ § 1231(b)(3) and CAT protection proceedings. See Brief for Respondents at 12–13. The respondents state that Congress specifically designed § 1226 to govern such proceedings and that the government’s contrary position is an implausible construction of the statute. Id. The respondents assert that the “text and placement of the reinstatement provision,” 8 U.S.C. § 1231(a)(5), demonstrates that the INA “does not establish that the ‘removal period’ begins for noncitizens well before the INA authorizes removal anywhere.” Id. at 13. They further state that construing the INA so that the removal period does not begin until the INA would otherwise authorize removal advances the legitimate purposes of the INA while “avoid[ing] routine constitutional violations,” unlike the government’s alternative construction. Id. at 13–14. Finally, in response to the government’s plea for Chevron deference, the respondents first note that the government failed to raise that argument in their petition for certiorari and further assert that Chevron deference is baseless given that no applicable regulation applies under the facts of the case. Id. at 15.
January 12
Uzuegbunam v. Preczewski
No. 19-968, 11th Cir.
Preview by Emma Liggett, Online Editor
In 2016, Georgia Gwinnett College, a public institution, enforced a Speech Zone Policy that only allowed speech in two designated “free speech expression areas.” Brief for Respondents at 3, Uzuegbunam v. Preczewski, No. 19-968 (U.S. filed Nov. 19, 2020). Speech in other campus areas required authorization from school officials. Chike Uzuegbunam, a student at the time, was distributing religious literature in a plaza when campus police stopped him because the plaza was not a designated free speech expression area. Uzuegbunam later reserved a designated speech area and spoke for approximately twenty minutes before campus police stopped him again, this time due to complaints and concerns that he was carrying out “disorderly conduct” in violation of the Student Code of Conduct. Id. at 4. Uzuegbunam ceased his expression and left the area without further attempts. After learning about the school’s enforcement of the policies against his fellow student, petitioner Joseph Bradford refrained from publicly speaking and distributing religious literature on campus. Uzuegbunam and Bradford, who have both since graduated, filed complaints alleging that the Speech Zone and Student Conduct policies violated their First and Fourteenth Amendment rights, both facially and as applied. Georgia Gwinnett officials involved in enforcement of the policies (“Gwinnett officials”), filed a motion to dismiss and revised the Speech Zone Policy, allowing students to speak anywhere on campus without prior approval (unless involving a group of thirty or more). See id. at 5. Gwinnett officials also removed the “disorderly conduct” provision from the Code of Conduct.
Article III grants federal courts the power to adjudicate cases and controversies that have real stakes for the parties. If an injury cannot be redressed by a favorable court outcome, then the court is without jurisdiction to hear the case. Due to the policy revisions, Uzuegbunam and Bradford’s graduation from Georgia Gwinnett, and their request for nominal damages but not compensatory damages, the district court dismissed the case as moot. See id. at 5–6. In affirming the district court, the Eleventh Circuit relied on Flanigan’s Enterprises, Inc. v. City of Sandy Springs, Ga., in which it held that the repeal of an unenforced ordinance moots plaintiffs’ claims for nominal damages because the award “would serve no purpose other than to affix a judicial seal of approval to an outcome that has already been realized.” 868 F.3d 1248, 1263–64 (11th Cir. 2017) (en banc). The court of appeals explained that Uzuegbunam and Bradford only have abstract injuries, not actual ones, and thus there is no Article III jurisdiction to hear the case. The issue before the Supreme Court is whether a post-filing change of policy moots nominal damages claims regarding past violations of constitutional rights.
Gwinnett officials argue that claims for nominal damages become moot when interfering events end future threat of injury. See Brief for Respondents at 8. Nominal damages—usually around $1—represent a “legal symbol” that the plaintiff is in the right and seeks to preclude ongoing or threatened injuries, but they do not actually redress any injury or make a plaintiff whole like compensatory damages. Id. at 7–8. Because Gwinnett officials permanently revised the policies, there is no longer any future threat of injury that nominal damages can vindicate, the claims are mooted, and federal courts lack Article III jurisdiction to hear this case.
Uzuegbunam and Bradford argue that a case is moot only when there is no relief available at all. See Brief for Petitioners at 14, Uzuegbunam v. Preczewski, No. 19-968 (U.S. filed Sept. 22, 2020). Nominal damages do provide relief because they remedy past harms that are not quantifiable but are still just as important, and permanently modify the relationship between the parties. The officials’ subsequent revision of the policies did not change the fact that Uzuegbunam and Bradford suffered injuries that need redress. Furthermore, they argue that the Eleventh Circuit’s holding creates an Article III exception carving out nominal-damages awards from proper jurisdiction. Id. at 15. This contrasts with the majority of federal circuits and interferes with years of precedent. Id. Uzuegbunam and Bradford also stress that Gwinnett officials are confusing “redressability with quantifiability.” Reply Brief for the Petitioners at 2, Uzuegbunam v. Preczewski, No. 19-968 (U.S. filed Dec. 21, 2020). If Uzuegbunam and Bradford had suffered even one cent of compensatory harm, for example from the use of chalk to express their religious views that was then washed away, their claims would be justiciable. Id. at 3. Just because their harms are not quantifiable does not mean they are not redressable.
Americans place immeasurable value on constitutional rights, particularly freedom of speech. The immeasurable quality of harms to these rights should not render them meaningless. Furthermore, college campuses are integral educational environments where individuals should feel free to have open discussion about thought-provoking topics. One can imagine policies like these being used to stamp out unpopular views. The Court’s decision will affect the ability of individuals to gain symbolic wins for incalculable violations of fundamental rights.
January 13
AMG Capital Management, LLC v. Federal Trade Commission
No. 19-508, 9th Cir.
Preview by Jacob Reiskin, Online Editor
In AMG Capital Management, LLC v. Federal Trade Commission (FTC) the Court will decide the meaning of the word “injunction” in § 13(b) of the Federal Trade Commission Act (“FTC Act”). Pub L. No. 63-203, 38 Stat. 717 (1914). The Government argues that it has the authority to impose restorative monetary sanctions on offenders. The two offenders in the consolidated case here argue that the statute does not give the FTC the authority to impose monetary awards because injunctions are not retrospective.
The case follows from a circuit split. AMG Capital Management, run by convicted criminal Scott Tucker, was ordered by a district court to pay $1.3 billion in restitution for a multi-billion-dollar payday lending scheme. The Ninth Circuit affirmed, and AMG Capital Management now appears as a petitioner. See FTC v. AMG Capital Management, LLC, 910 F.3d 417 (9th Cir. 2018). Credit Bureau Center, LLC and its owner, Michael Brown, faced a similar district court holding, however the Seventh Circuit reversed the monetary judgement while affirming the business operations injunction. See FTC v. Credit Bureau Ctr., LLC, 937 F.3d 764 (7th Cir. 2019). Credit Bureau Center now appears as a respondent.
Both companies argue for a narrow reading of the FTC Act and argue that injunctive relief is prospective and not retrospective. The companies claim that other parts of the statute would be rendered redundant if § 13(b) is read to include monetary relief. On the contrary, the FTC finds that the word “injunction” allows “restorative remedies” under a traditional definition of injunction and equity. Brief for the Federal Trade Commission, at 3, AMG Cap. Mgmt., LLC v. FTC, No. 19-508 (U.S. filed Nov. 30, 2020). The FTC concedes that injunctions are mostly forward looking, but it insists that legal theory and precedent has always recognized that injunctions can be used to restore unfair conditions through monetary relief. See id. After giving a long tour through legal history and theory, the FTC emphasizes that § 13(b) relief money is returned to victims who suffered losses from defendants’ illegal behavior. The FTC also explains that since the FTC Act passed in 1914, Congress has only expanded the power of the Commission over the course of the last 100 years, in part by creating parallel administrative and judicial enforcement paths. Id. at 41.
The companies combine their textual arguments about the limited nature of injunctions and the absence of any mention of monetary relief with concerns about fairness. Credit Bureau Center argues that § 13(b) lacks fair procedure, like what is required by § 19 of the statute. See Opening Brief for Respondents Credit Bureau Center, LLC and Michael Brown at 33–39, AMG Cap. Mgmt., LLC v. FTC, No. 19-508 (U.S. filed Sept. 25, 2020). Credit Bureau Center finds that this reinforces the view that Congress intended the FTC to proceed with rulemaking and not ad hoc § 13(b) enforcement for any possibility of monetary relief. See id. at 38.
This case implicates a core enforcement power of the FTC and will determine whether the Commission has the tools to recover stolen money from fraudsters or whether victims will be required to file separate suits under consumer protection statutes. See Reply Brief for Petitioners at 25, AMG Cap. Mgmt., LLC v. FTC, No. 19-508 (U.S. filed Dec. 30, 2020).
January 19
FCC v. Prometheus Radio Project
No. 19-1231, 3d Cir.
Preview by Amy Orlov, Online Editor
This case concerns agency reason-giving requirements under the Administrative Procedure Act’s arbitrary and capricious standard. The facts stem from the Federal Communications Commission’s (“FCC”) regulatory actions with respect to the Telecommunications Act of 1996. 47 U.S.C. § 303 note. Through its regulations, the FCC governs the ownership of broadcast media to promote “competition, diversity, and localism in broadcast services.” See In re 2002 Biennial Regulatory Review, 18 FCC Rcd. 13,620, 13,645 (2003). Section 202(h) of the 1996 law requires the FCC to review its rules governing broadcast media ownership every four years and to repeal and modify any regulations that it deems are no longer in the public interest.
Many entities, including Prometheus Radio Project, have litigated against the FCC for rule changes under the 1996 Act since the start of the 21st century. This case concerns a 2017 FCC order repealing and relaxing several of the Commission’s ownership rules, including rules concerning newspapers, television, and radio stations to permit greater consolidation in media markets. The respondents, Prometheus Radio Projects and others, challenged various FCC regulatory changes on the basis that the Commission did not sufficiently consider the effects that the changes would have on broadcast media ownership diversity when it attempted to repeal and modify the already-existing rules.
The U.S. Court of Appeals for the Third Circuit found that although the FCC purportedly considered the effects of its rule changes on broadcast media ownership by women and racial minorities, its analysis was “so insubstantial” that it could not provide a reasonable foundation for the modifications. Prometheus Radio Project v. FCC, 939 F.3d 567, 573 (3d Cir. 2019). As such, the Court held that the FCC’s rule changes were arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) and vacated the order. See id. at 589.
The question on appeal is rather specific. The Supreme Court must decide whether the Third Circuit erred in vacating the FCC’s order on grounds that it was arbitrary and capricious. The FCC argues that the APA grants much deference to the agency’s decisions, especially when the agency acts in the public interest as specified by the Telecommunications Act. See Brief for the Petitioners at 21, 23, FCC v. Prometheus Radio Project, No. 19-1231 (U.S. filed Nov. 16, 2020). The Commission further argues that its actions were not arbitrary and capricious because it made reasonable policy judgments based on the facts and evidence available concerning ownership diversity. See id. at 27. Prometheus Radio Project argues that the FCC falsely reinterpreted the facts leading to its rule changes and arbitrarily assessed past evidence. See Brief for Respondents Prometheus Radio Project, et al. at 31–36, 43–46, FCC v. Prometheus Radio Project, No. 19-1231 (U.S. filed Dec. 16, 2020).
While this case continues a long line of litigation against the FCC for rule changes concerning broadcast media, it also represents another action against the Trump administration for improper promulgation of regulations. Although the issue here is narrow, this case provides another opportunity for the Supreme Court to sharpen its definition of arbitrary and capricious rulemaking and APA requirements more broadly.
BP P.L.C. v. Mayor & City Council of Baltimore
No. 19-1189, 4th Cir.
Preview by Austin Martin, Senior Online Editor
This case stems from an action by the government of Baltimore against 21 domestic and foreign fossil fuel producers for alleged violations of Maryland law due to the companies’ role in furthering climate change and its resulting harms. Two defendants removed the case to federal court on eight grounds, one of which asserted that removal was warranted under the federal-officer removal statute. 28 U.S.C. § 1442 (2018). Baltimore moved to remand the case back to state court, and the district court approved Baltimore’s motion. The defendants appealed the motion and the Fourth Circuit affirmed, holding that 28 U.S.C. § 1447(d) deprived it of appellate jurisdiction to consider any of the defendants’ grounds for removal except for the federal-officer ground for removal, which is explicitly carved out for review in § 1447(d). The defendants, now petitioners, argue that the Fourth Circuit was wrong to hold that § 1447(d) did not allow appellate review of the entire order encompassing all grounds for removal. Brief for the Petitioners at 3, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. filed Nov. 16, 2020).
The Court must decide whether § 1447(d) allows appellate review of any issue in a district court order remanding a case that was removed pursuant to § 1442 (federal-officer removal) or § 1443 (civil-rights removal), or only those issues related to § 1442 and § 1443. The petitioners argue the former, urging that the plain text of § 1447(d) indicates that “a court of appeals may review the entire remand ‘order’ . . . where the defendant premised removal in part on the federal-officer or civil-rights removal statutes.” Id. at 11–12. The petitioners insist that the Court’s precedents compel this result. They point to cases under three other statutes in which the Court interpreted them to allow appellate review of an entire district court order, including issues distinct from the particular ground allowing appeal. See id. at 21–23 (discussing cases under 28 U.S.C. §§ 1292(a)(1), 1292(b), and 1253). Finally, the petitioners argue that the purposes of § 1447(d) support their asserted “plain-text” interpretation. See id. at 26–31. The United States submitted an amicus brief in favor of the petitioners that largely echoes these arguments. See Brief for the United States as Amicus Curiae Supporting Petitioners, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. filed Nov. 23, 2020).
Baltimore contends that the petitioners’ federal-officer ground for removal was meritless, and that a defendant should not be able to take advantage of a meritless claim to obtain review of every ground for removal. See Brief for Respondent Mayor & City Council of Baltimore at 1, 8, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. filed Dec. 16, 2020). Baltimore contends that the tools of statutory interpretation suggest that § 1447(d) “authorizes review of a remand order only insofar as it addresses federal-officer and civil-rights removal.” Id. at 1, 14–17. Baltimore contends that the petitioners’ interpretation harms the principles of federalism by “questioning the competence of state courts to adjudicate cases remanded by federal district courts.” Id. at 19. Additionally, Baltimore argues this case was not removed “pursuant to” federal-officer or civil-rights removal grounds because these grounds lacked merit and were not satisfied, meaning the district court’s order is not reviewable under § 1447(d). See id. at 23; § 1447(d). Furthermore, Baltimore argues that Congress ratified the circuit courts’ “uniform construction” of § 1447(d) when it amended the statute to include federal-officer removal as an express ground for appellate review. See id. at 31.
Although this case encompasses a narrow issue within the larger dispute over alleged climate change harms, the Supreme Court’s decision will be a consequential one. Nineteen related cases on climate change harms are pending in federal courts around the country, and the Court’s decision will affect ongoing removal disputes in those cases. See Brief for Petitioners at 6–7, n.1. Several amici have also weighed in to debate the limits of federalism and whether state or federal courts are the most competent fora for climate change tort claims. The Court’s decision may impact the degree of independence that state courts have in adjudicating these claims.
