The Supreme Court’s November calendar has been in flux as litigation surrounding the controversial Texas statute S.B. 8 has raced to the Court’s attention. Be sure to check this post for updates, as future shifts in the calendar may well be in store.
November 2
Houston Community College System v. Wilson
No. 28-804, 5th Cir.
Preview by Jacob Orgel, Online Editor
In Houston Community College System v. Wilson, the Supreme Court is set to decide whether the First Amendment restricts the authority of an elected body to issue a censure in response to a member’s speech. The case could have implications for the ability of local, state, and federal government entities to take positions on issues of public importance which undermine or criticize the stances taken by a member of that entity.
Houston Community College System (“HCC”) operates community colleges in the greater Houston area under the direction of its Board, which is made up of nine elected trustees. Houston Cmty. Coll. Sys. v. Wilson, 955 F.3d 490, 493 (5th Cir. 2020). “Each trustee is elected by the public from single-member districts to serve a six-year term without remuneration.” Id. Respondent David Wilson was elected to serve as one of the nine trustees in 2013. Id.
Starting in 2017, Wilson began voicing concerns about the operations of HCC and the behaviors of individual Board trustees. Id. Wilson filed lawsuits, conducted radio interviews, and maintained a website with his list of concerns—on which he identified HCC and the individual trustees by name—to publicly expose his allegations about the operation. Id. In response to Wilson’s public criticisms and lawsuits against HCC and the trustees, the Board voted to publicly censure Wilson and to prohibit him from holding Board officer positions as well as limiting his access to the funds in his Board account. Id. at 494; Brief for Respondent at 8, Houston Community College System v. Wilson, No. 28-804 (U.S. filed Sept. 17, 2021).
Wilson then initiated this litigation, arguing the Board’s censure and disciplinary action in response to his public criticisms of HCC and its trustees violated his First Amendment right to free speech. Wilson, 955 F.3d at 494. The district court initially found that Wilson did not assert an actionable claim, dismissing the suit for a lack of standing due to lack of cognizable injury, but the Court of Appeals reversed. Id. at 496–97. Explaining that the Supreme Court “has long stressed the importance of allowing elected officials to speak on matters of public concern”, the Fifth Circuit reaffirmed its precedent that “censures of publicly elected officials can be a cognizable injury under the First Amendment.” Id. at 497. Finding potential corruption in HCC operations to qualify as a matter of public concern, the Fifth Circuit deemed Wilson to have asserted an actionable claim. Id. at 499.
Wilson’s brief before the Supreme Court highlights the inhibitions on free speech that would flow from the permissibility of disciplinary censures upon the extra-legislative expression of duly elected officeholders. Brief for Respondent at 13–14. Grounded in the historical context of James Madison’s refutation of President Washington’s proposed censure of the Whiskey Rebellion insurrectionists, Wilson argues that a censure itself is a “severe punishment” that becomes a “direct threat to liberty of speech” when used against political dissent. Id. at 11–12.
HCC takes the position that it would instead be a suppression of speech to limit an institution’s capacity to respond to remarks by one of its members. Brief for Petitioner at 8–9, Houston Community College System v. Wilson, No. 28-804 (U.S. filed July 14, 2021). Similarly grounding its stance in a historical context, HCC argues that censures of some form have traditionally been a staple of institutional response to members taking a position that varies from that of the institution. Id. HCC claims that the Fifth Circuit has created a new category of identifiable First Amendment violations—the mental anguish of an elected official—and that the adoption of this category would inhibit legislative debate and open discourse on matters of public importance. Id. at 17.
Amici primarily focus on the potentially concerning implications of limiting government’s capacity to respond to rogue members that could result from the Fifth Circuit standard, such as an unintended prohibition on censures like that of Senator Joseph McCarthy. See, e.g., Brief Amicus Curiae of American Jewish Committee in Support of Petitioner Houston Community College System v. Wilson, No. 28-804 (U.S. filed July 21, 2021). Oral arguments will be held on November 2 and will feature a fifteen-minute allotment for the Acting Solicitor General.
Badgerow v. Walters
No. 20-1143, 5th Cir.
Preview by Joshua Keyser, Senior Online Editor
Badgerow v. Walters presents a relatively narrow procedural question: How federal courts should consider questions of jurisdiction for certain motions related to the Federal Arbitration Act (FAA).
The case comes to the Supreme Court after a complicated procedural history. Petitioner Denise Badgerow initially sued Respondents for claims related to her allegedly wrongful termination from employment at REJ Properties, Inc. in 2016. Badgerow v. Walters, 975 F.3d 469, 471 (5th Cir. 2020), cert. granted, 141 S. Ct. 2620 (2021). At compelled arbitration, an arbitral panel dismissed all of Badgerow’s claim, and she followed with a new action in Louisiana state court. Id. Respondents removed the new case to the Eastern District of Louisiana, Badgerow’s motion to remand was denied, and her appeal to the Fifth Circuit ultimately brought the question of federal jurisdiction over her motion to vacate to the Supreme Court’s steps. Id.
The case will call upon the Court to refine the doctrine it articulated in Vaden v. Discover Bank, 556 U.S. 49 (2009). In Vaden, the Court ruled that federal district courts were permitted to “look through” motions to compel arbitration arising under Section 4 of the FAA to see if federal subject matter jurisdiction exists. Id. However, Vaden did not clarify whether the “look-through” doctrine applies when the motion is to confirm or vacate an arbitral award. Upon appeal in Badgerow, a divided Fifth Circuit joined the First, Second, and Fourth in adopting the “look through” for such motions, splitting from the Third and Seventh Circuits; the Court will now be called upon the resolve the circuit split. Petition For a Writ of Certiorari at 2, Badgerow v. Walters, No. 20-1143 (U.S. filed Feb. 12, 2021).
The parties present straightforward statutory interpretation arguments. Petitioner Badgerow notes that Sections 9 and 10 of the FAA contain no jurisdictional language whatsoever and should be subjected to a plain-text reading that would prevent federal courts from conducting even a “look through.” Brief for Petitioner at 15, Badgerow v. Walters, No. 20-1143 (U.S. filed July 22, 2021). According to Badgerow, the differing jurisdictional requirements more appropriately mirror how arbitration typically proceeds: a federal court may have jurisdiction to hear a case, but enforcement of the contractual obligations produced by arbitration are controlled by state law. Id. at 22. Respondents argue that the Court should read the FAA as a whole, as it purportedly “authorizes motions to courts to facilitate arbitration of an underlying substantive controversy from cradle to grave.” Brief for Respondents at 19, Badgerow v. Walters, No. 20-1143 (U.S. filed Sept. 10, 2021).
Badgerow’s highly procedural issues mean that the case will probably remain off the front page. However, ADR practitioners will be paying close attention; the current circuit split on whether state or federal courts will enforce of arbitral awards has led to confusion in arbitration practice. John Lewis, The Supreme Court Now To Determine the Boundaries of Federal Court Jurisdiction Over Federal Arbitration Act Proceedings, JDSupra (June 17, 2021), https://www.jdsupra.com/legalnews/the-supreme-court-now-to-determine-the-1923069/. The Court’s ruling here will potentially clarify uncertainty and forum shopping in federal arbitration practice.
November 3
N.Y. State Rifle & Pistol Ass’n v. Bruen
No. 20-843, 2nd Cir.
Preview by Jessica Ojeda, Online Editor
On November 3, 2021, the Supreme Court will hear what is perhaps the most important Second Amendment case since District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). N.Y. State Rifle & Pistol Ass’n v. Bruen involves a challenge to a 108-year-old New York state law which requires applicants for a handgun license to demonstrate “proper cause” when seeking an unrestricted license to carry a concealed firearm outside the home. Amy Howe, In Major Second Amendment Case, Court Will Review Limits on Carrying Concealed Gun in Public, SCOTUSBlog (Oct. 27, 2021), https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves. Id. The challenge to this law is of particular interest to gun control interest and advocacy groups because several states, including California, Hawaii, Maryland, Massachusetts, and New Jersey, have similar restrictions that could be impacted by the court’s ruling. Id.
The two plaintiffs in this case—Robert Nash and Brandon Koch—were denied concealed-carry licenses under this law. See id. Backed by the New York State Rifle & Pistol Association, they first challenged the “proper cause” requirement in the Northern District of New York, arguing that it violates the Second Amendment. Margaret J. Finerty, Supreme Court Takes Gun Law Case for the First Time in a Decade, NYSBA (May 27, 2021), https://nysba.org/does-new-yorks-concealed-carry-law-violate-the-second-amendment/#_edn15. The district court rejected the challenge to the law in 2018, and in 2020, the Second Circuit, relying on its 2012 decision in Kachalsky v. County of Westchester, affirmed by summary order the district court’s rejection of the challenge. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Beach, No. 1:18-cv-00134 (BKS) (ATB) (N.D.N.Y.) (order granting motion to dismiss, filed Dec. 17, 2018); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (holding the proper cause requirement is substantially related to New York’s compelling interests in public safety and crime prevention); N.Y. State Rifle & Pistol Ass’n Inc. v. Beach, No. 19-00156 (2d Cir.) (opinion affirming judgment of district court, issued Aug. 26, 2020).
In their brief on the merits, petitioners contend that the “text, history, and tradition of the Second Amendment” are so plain that New York’s concealed-carry scheme must be rendered wholly unconstitutional under any interpretation. Brief for Petitioners at 3, N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (U.S. filed Jul. 13, 2021). The state’s respondent brief counters that the right to carry a gun is not absolute and that a long tradition and history afford states the right to develop gun regulations that “suit local needs and values.” Brief for Respondents at 28, No. 20-843 (U.S. filed Sept. 14, 2021). Respondents also assert that the court should apply intermediate scrutiny, rather than the harsher strict scrutiny standard. See id. at 37–42. Under an intermediate scrutiny standard, the state argues that the gun regulations are both sufficiently tailored and justified by a compelling interest in lowering rates of violent crime and gun violence. See id. at 43–48.
This case received over eighty amici curiae briefs, including one from the Biden Administration in support of New York. Amy Howe, In Major Second Amendment Case, Court Will Review Limits on Carrying Concealed Gun in Public, SCOTUSBlog (Oct. 27, 2021), https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/. Interestingly, several advocacy groups representing minority communities have weighed in against the law, saying it leaves the minority groups most in need of protection vulnerable when they are unable to obtain licenses. See id. On the other hand, prominent Republican groups have implied that the District of Columbia’s public-carry restrictions likely prevented open gun violence during the January 6th insurrection. See id. Given the broad implications this decision will have across the country for ongoing gun reform efforts, this is certainly a case to watch.
November 8
Federal Bureau of Investigation v. Fazaga
No. 20-828, 9th Cir.
Preview by Reid Ostrom, Online Editor
For the second consecutive month, the Supreme Court will hear a case on the state secrets privilege: On October 6, the Court heard United States v. Zubaydah, concerning the CIA’s torture of a Guantanamo Bay detainee, and today, it hears Federal Bureau of Investigation v. Fazaga, about the FBI’s surveillance of members of Southern California mosques.
In 2006–07, the FBI conducted a counterterrorism operation called “Operation Flex,” which employed an undercover informant, Craig Monteilh, to pose as a convert to Islam and infiltrate several large mosques in Orange County, California. The FBI directed Monteilh to gather information on people in the Muslim community without identifying any specific targets with terrorist or criminal ties, instead telling him to focus on those who appeared more devout and hence “more suspicious.” Brief for Respondent at 10, Federal Bureau of Investigation v. Fazaga, No. 20-828 (U.S. filed Sept. 21, 2021). Monteilh secretly recorded hundreds of hours of private conversations, religious prayers in mosques, and videos of mosques, homes, and businesses. As instructed by his FBI informants, Monteilh eventually started expressing interest in violence, and encouraged his Muslim “friends” to visit jihadist websites. Members of a mosque became alarmed and reported Monteilh’s behavior to the FBI, unwitting that Monteilh was an FBI informant trying to gain information and leverage on them. The FBI shortly after ended its work with Monteilh, and the government later revealed Monteilh’s identity as an informant in a public court hearing in 2009.
Plaintiffs, respondents here, are mosque members who were targeted by this surveillance. They sued the FBI for illegal searches under the Fourth Amendment, the Foreign Intelligence Surveillance Act (FISA), and the Federal Tort Claims Act. They also alleged unlawful targeting of religion under the First and Fifth Amendments, 42 U.S.C. § 1985(3), the Religious Freedom Restoration Act, and the Privacy Act, and sought damages and expungement or disclosure of the unlawful surveillance.
At the district court, the FBI and U.S. government asserted the states secret privilege over information concerning the particular targets, reasons, sources, methods, and results of any FBI counterterrorism investigation. Brief for Petitioner at 11-12, Federal Bureau of Investigation v. Fazaga, No. 20-828 (U.S. filed July 30, 2021). The district court upheld the government’s assertion of privilege and dismissed the claims. The 9th Circuit reversed, holding that FISA’s special review procedures, which requires the court to conduct ex parte in camera review to determine whether the surveillance was lawfully conducted, displaced the “dismissal remedy” of the state secrets privilege. Brief for Respondent at 16.
The FBI argues that FISA’s special review procedures do not apply here because the government seeks to prevent the use or disclosure of information under the state secrets privilege rather than through FISA’s special procedures. Brief for Petitioner at 37. The FBI argues that FISA was intended to coexist with the state secrets privilege, which is rooted in constitutional duties of the executive to protect national security and conduct foreign affairs. Id. at 3 (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). Therefore, the government argues, any ambiguity in the application of FISA should be resolved consistently with the state secrets privilege, in accordance with the canon of constitutional avoidance. Id. at 42.
In contrast, the respondents argue that the state secrets privilege allows for the exclusion of evidence, not the dismissal of a case, where the defendants want to use secret information to defend themselves. Brief for Respondent at 2. Respondents also argue that the state secrets privilege is a common law evidentiary rule, not a constitutional mandate, that can be overruled by statute. Id. at 34. FISA’s special review procedures, respondents argue, displace the state secrets privilege in this case because 50 U.S.C § 1806(f)’s catch-all provision requires ex parte in camera review “notwithstanding any other law” where, as here, the plaintiffs requested return of illegally obtained surveillance and the government seeks to introduce secret information as a defense. Id. at 39.
This case presents an interesting statutory interpretation question turning on the meaning and application of FISA—a statute of massive importance in national security law. In considering this statutory interpretation question, the Supreme Court will have to balance the complex, and perhaps conflicting, constitutional issues of executive power and free exercise of religion. Embedded in this analysis is the fundamental question of how much deference the judicial branch should give the executive when considering state secrets privilege claims, which the Supreme Court also confronted last month in United States v. Zubaydah.
Both cases illustrate the dangers of executive power run amok in times of heightened public fear and pose essential questions of how to balance bona fide national security concerns with extremely prejudicial overreactions resulting from hysteria in times of crisis. It is important to deal with these complex legal questions while recognizing the severe harm caused by shameful post-9/11 anti-Muslim hysteria to determine the best legal framework for responding to crises in the future.
Unicolors, Inc. v. H&M Hennes & Mauritz, LP
No. 20-915, 9th Cir.
Preview by Charlotte Cuccia, Member
The issue before the Court in this case is whether referral to the Copyright Office is required where there is no indicia of fraud or material error in a copyright registration.
In December 2010, design company Unicolors developed a fabric design designated as EH101, which was included in a collection of thirty-one designs that Unicolors presented to its sales team and released to its showroom in January 2011. Brief for Petitioner at 9–10, Unicolors, Inc. v. H&M Hennes & Mauritz, LP., No. 20-915 (U.S. filed Aug. 3, 2021). Unicolors applied for copyright registration with the U.S. Copyright Office in February 2011 for the entirety of its January collection, and the Copyright Office granted the application for all thirty-one designs, issuing a certificate of registration. Id. at 11.
The disputed garment is a patterned black-and-white jacket, sold by retailer H&M, which Unicolors characterizes as having “a design virtually identical to EH101.” Id. Unicolors sued for copyright infringement, and H&M responded that it did not know about or copy EH101. Rather, it maintains that the pattern on the black-and-white jacket was designed independently in China. Brief for Respondent at 11, Unicolors, Inc. v. H&M Hennes & Mauritz, LP., No. 20-915 (U.S. filed Sep. 21, 2021).
The jury found for Unicolors, and H&M appealed, questioning the validity of Unicolors’ copyright. Unicolors listed designs it characterizes as “confined” (removed from the showroom and reserved for particular customers) and “non-confined” on the same application for registration; H&M argues that by doing so, it “knowingly misrepresented to the Copyright Office that all of the designs in the group had been published concurrently.” Id. at 18.
Unicolors filed all thirty-one designs “as a single work,” which is permissible so long as those works were “included in a single unit of publication.” Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194, 1198 (9th Cir. 2020). H&M argues that for the collection at issue to be registered as a “single unit,” all the works should have been “published” together, and therefore Unicolors’ copyright registration was invalid. Id. at 1197–98.
The Ninth Circuit agreed, finding that the collection was not a single unit because the individual works were not “first published as a singular, bundled unit.” Id. at 1200. At issue is before the circuit court was interpretation of the relevant statutory language: “[W]ith knowledge that it was accurate.” Id. at 1197. The Ninth Circuit found that the correct inquiry wasn’t whether Unicolors knew that registering this combination was inaccurate but whether Unicolors knew that some of its designs were confined and some were not. See id.
Unicolors argues that this is a mistaken interpretation, conflating mistake-of-law and mistake-of-fact, and that other circuits faced with the same issue found that “an inadvertent mistake was insufficient to invalidate registration.” Brief for Petitioner at 20. H&M maintains that the Ninth Circuit ruling should merely be understood to hold that, under the statute, there is no intent-to-defraud requirement. See Brief for Respondent at 19.
The Supreme Court will consider if the Ninth Circuit acted properly “where there is no indicia of fraud or material error” as to the registered work. Id. at 22. The two parties hotly disagree on what this means: H&M interprets “indicia of fraud” as intent-to-defraud, and it asserts that Unicolors is arguing a different question than what it originally asked the Court to decide. Id.. Unicolors argues that “indicia of fraud” includes subjective knowledge of the inaccurate information, and that it resisted H&M’s earlier attempt to narrow the question presented to intent-to-defraud. Reply of Petitioner at 1, Unicolors, Inc. v. H&M Hennes & Mauritz, LP., No. 20-915 (U.S. filed Oct. 14, 2021). If the Court agrees with H&M that Unicolors is arguing a different question than the question presented, this case could turn on that error.
Both companies and their legal teams have frequently gone up against each other and, in many ways, represent the most high-profile debates in copyright today: Should copyright registration have a higher burden to prevent mass registration of various works then litigated broadly for perceived infringement? How would the musicians, writers, and artists who wish to protect their work be impacted? Should the public’s interest in access to some of these works, like less expensive clothing options, play a role? H&M calls Unicolors a “prolific copyright troll” seeking to extract money and accuses its attorneys by name as pioneering excessive lawsuits. Brief for Respondent at 6–7. Unicolors responds by characterizing H&M as an “infringer in a fast-fashion notorious for stealing.” Reply of Petitioner at 2.
Copyright cases often walk this balance. Unicolors v. H&M could tip the scales towards “copyright trolls” or the fast fashion industry.
November 9
United States v. Vaello-Madero
No. 20-330, 1st Cir.
Preview by Jessica Ojeda, Online Editor
U.S. v. Vaello-Madero is, as one news outlet describes, a case about “colonialism and [American] democracy.” Ian Millhiser, The Surprisingly High Stakes in a Supreme Court Case About $28,000, VOX (Nov 5, 2021), https://www.vox.com/2021/11/5/22751097/supreme-court-puerto-rico-ssi-united-states-vaello-madero-democracy-colonialsm-rational-basis. At its heart is Jose Louis Vaello-Madero, an American citizen who moved from New York to Puerto Rico to be with family after becoming seriously ill in 2011. Id. As a result of his illness, Vaello-Madero was left unable to work and began receiving Supplemental Security Income (SSI) benefits. Id. However, it was only in 2016 that the government became aware that Vaello-Madeo was residing in Puerto Rico—a discovery that led to disastrous consequences for Vaello-Madero. Id.
By law, SSI benefits are only available to people living in the fifty states, the District of Columbia, or the Northern Mariana Islands; Puerto Rico is specifically excluded. Id. Although Puerto Ricans are eligible for a program called Aid to the Aged, Blind, and Disabled (AABD), they are eligible for only a fraction of the benefits they would receive under SSI ($58 per month on AABD compared to $418 on SSI). Id. After discovering Vaello-Madero’s relocation, the federal government sued, demanding he repay more than $28,000 in benefits he’d received since his relocation. Id.
The Justice Department argues that the determination of SSI benefit eligibility is a legislative one, not judicial. See Brief for Petitioner at 10–11, No. 20-303 (U.S. filed June 7, 2021). Therefore, because it is a legislative choice, any judicial review (including for equal protection) should be subject to a rational basis test, a relatively low bar under which government action is justified when it rests on some rational basis within the knowledge and experience of the legislators. Id. at 9. Moreover, the government argues there are two controlling precedents which bind the court in this case: Califano v. Gautier Torres, 435 U.S. 1 (1978), and Harris v. Rosario, 446 U.S. 651 (1980). In both cases, the Court concluded that Congress may “treat Puerto Rico differently from States” for purposes of a welfare program if “there is a rational basis” for the distinction. Brief for Petitioner at 5–6 (citing Rosario, 446 U.S. at 651–52; Torres, 435 U.S. at 5).
Despite these strong precedents, Vaello-Madero’s lawyers evoke an equal protection claim under the Equal Protection Clause of the Fifth Amendment, urging the court to instead apply strict scrutiny, a much higher burden, based on the long and easily traced history of discrimination against Puerto Rican’s and “purposeful unequal treatment.” Brief for Respondents at 25, No. 20-303 (U.S. filed Aug. 30, 2021). One potential problem with this claim is that the Equal Protection Clause has never before been read to protect against geographic discrimination.
Vaello-Madero compellingly argues that he suffered a great injustice. What is less clear is how the Court could remedy that harm in light of strong precedent that it seems unlikely to overturn. Just as the legislature created this problem, so too may it be best positioned to fix it.
Ramirez v. Collier
No. 21-5592, 5th Cir.
Preview by Reid Ostrom, Online Editor
In 2004, John Henry Ramirez robbed and murdered an innocent bystander, Pablo Castro, stabbing him twenty-nine times in a convenience store parking lot. After robbing a second victim and attempting a third robbery, Ramirez fled to Mexico, where he evaded arrest for over three years. See Ramirez v. Stephens, 641 F. App’x 312, 314 (5th Cir. 2016). Ramirez was convicted of murder in a Texas state court and sentenced to death. After his state court appeals and petition for a writ of habeas corpus were denied, his execution date was set for September 8, 2021.
Ramirez filed suit under 42 U.S.C. § 1983, contending that the way in which Texas plans to execute him violates his religious rights under both the First Amendment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. Texas planned to allow a pastor into the execution chamber, but refused to allow the pastor to put his hands on Ramirez’s body or pray out loud as Ramirez is executed. The district court and the 5th Circuit both denied Ramirez’s motion to stay his execution, citing the government’s compelling interest in ensuring an orderly and safe lethal injection process. Ramirez v. Collier, 10 F.4th 561 (5th Cir. 2021).
On September 8, the night of his planned execution, the Supreme Court granted Ramirez’ emergency application to postpone his execution, agreeing to hear his appeal on the merits.
Under RLUIPA, a state cannot substantially burden an inmate’s sincere religious exercise unless that is the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000cc-1(a). This is essentially a form of strict scrutiny which “alleviates exceptional government-created burdens on private religious exercise” of prisoners while recognizing a prison’s “need to maintain order and safety.” Cutter v. Wilkinson, 544 U.S. 709, 720–722 (2005).
Ramirez, the petitioner here, argues that Texas’s policy of preventing the pastor from touching him or audibly praying during his execution is a substantial burden on his religious exercise, and the government cannot articulate a specific compelling reason for this restriction—a bare assertion of security is not sufficient. Brief for Petitioner at 25, Ramirez v. Collier, No. 21-5592 (U.S. filed Sept. 27, 2021). Ramirez also points to a long history and tradition in the U.S. of audible prayer and touch during executions, including in Texas itself, as well as other states that currently allow these practices. Id. at 29-35. See also Brief for United States as Amicus Curiae Supporting Neither Party at 25-28, Ramirez v. Collier, No. 21-5592 (U.S. filed Sept. 27, 2021); Brief of the Becket Fund for Religious Liberty as Amicus Curiae in Support of Petitioner, Ramirez v. Collier, No. 21-5592 (U.S. filed Sept. 27, 2021). This history and practice cast doubt on Texas’s claim that this categorical ban of audible prayer and touch in the execution chamber is the least restrictive means possible to ensure security and safety. Brief for Petitioner at 28.
Bryan Collier, the Executive Director of the Texas Department of Criminal Justice, and the respondent here, argues that Ramirez has strategically shifted the posture of his appeal over the recent years to try to further delay his execution. Brief for Respondent at 14–18, Ramirez v. Collier, No. 21-5592 (U.S. filed Oct. 15, 2021). Even on the merits, Collier argues, Ramirez is unlikely to succeed because Texas is not substantially burdening his exercise of religion, but merely refusing to grant him a special religious accommodation which would interfere with prison security, a compelling government interest. Id. at 33.
The Supreme Court has considered a series of execution cases in the past couple years, which are often dealt with on the so-called “shadow docket.” These shadow docket cases, especially ones concerning the death penalty, often receive a great deal of media attention, even though the Supreme Court rarely issues full decisions on the merits due to the emergency nature of execution stays. This case presents an opportunity for the Supreme Court to fully consider the merits and clarify some of these complex issues surrounding the religious rights of inmates facing the death penalty, although the Court may be inclined to remand based on the fairly thin, ad hoc record.
November 10
City of Austin v. Reagan Nat’l Advert. of Austin, Inc.
No. 20-1029, 5th Cir.
Preview by David DeFelice, Senior Production Editor
This case considers whether the City of Austin’s sign code distinction between permitting digitizing on-premises signs but not off-premises signs is an unconstitutional speech regulation under the First Amendment. Austin City Code § 25-10-102 (2014) (“Sign Code”) (current version at Austin City Code § 25-10-103 (2021)); Brief for Petitioner 14, 19, City of Austin v. Reagan Nat’l Advert. of Austin, Inc., No. 20-1029 (U.S. filed Aug. 13, 2021). The applicable standard of review lies at the heart of the controversy. In short, the case will turn on how expansive, or narrow, a reading the Court wishes to give to “subject matter” distinctions to decide whether the Austin sign code in question is violative of the First Amendment by impermissibly giving some topics a medium for communication but not others.
The City of Austin prohibits off-premises signs except in cases where off-premises signs are considered nonconforming (i.e., the sign was legal when erected but made illegal due to the updated Sign Code). Even then nonconforming off-premises signs are subject to both restrictions and prohibitions; relevant here is the prohibition for a person to change or alter “the method of technology used to convey a message,” Sign Code § 25-10-152(b)(2)(b) (2014), but no such prohibition exists in the Austin sign code for on-premises signs. Brief for Petitioner at 4. Respondents, Reagan National Advertising of Austin and Lamar Advantage Outdoor Company, both offer outdoor advertising services in the form of billboards. Reagan and Lamar filed “applications to digitize [] existing ‘off-premises’ sign structures.” Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, 972 F.3d 696, 699, cert. granted, 141 S. Ct. 2849. Austin denied the applications, pointing to Section 25-10-152’s prohibition of altering a nonconforming sign’s technology. Brief for Petitioner at 5.
The District Court for the Western District of Texas found the on- and off-premises distinction to be a content-neutral speech regulation, thus triggering intermediate scrutiny, which it viewed as satisfied by the City of Austin. Brief for Petitioner at 6; Brief for Respondent at 10, City of Austin v. Reagan Nat’l Advert. of Austin, Inc., No. 20-1029 (U.S. Sept. 22, 2021). The U.S. Court of Appeals for the Fifth Circuit reversed, applying strict scrutiny instead from what it perceived as required by the Supreme Court’s decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015). In Reed, the Court found a sign code that prohibited the display of outdoor signs anywhere, with twenty-three listed exemptions, to be facially content based, thus requiring the application of strict scrutiny. 576 U.S. at 164. The Court reasoned that because categories like “Political Signs” and “Temporary Directional Signs” exist in the code, signs would then require an assessment of “communicative content” to accurately determine which restrictions apply. Id. at 170 (explaining speech restrictions based on speaker identity are “‘often simply a means to control content’”) (quoting Citizens United v. FEC, 558 U.S. 310, 340 (2010)). Reed stands for the principle that although a law by its text may not explicitly single out a subject or viewpoint, it may more subtly “regulate[] speech by its function or purpose,” which still epitomizes a facially content-based speech regulation subject to “strict scrutiny.” Id. at 163–64. Austin’s sign code was, therefore, determined not to be narrowly tailored to achieve Austin’s compelling state interests.
Justice Alito, concurring in Reed, gave several examples of permissible content-neutral speech regulations for municipalities to enact like, “Rules distinguishing between signs with fixed messages and electronic signs with messages that change” and rules that draw distinctions “between on-premises and off-premises signs.” Id. at 174 (Alito, J., joined by Kennedy & Sotomayor, JJ., concurring). Petitioner contends that Austin’s sign code is a content-neutral regulation and is justified insofar as it regulates a “special characteristic of the medium being regulated.” Brief for Petitioner at 31 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 652 (1994). Here, digitizing the medium—billboards—is irrespective of a particular topic or viewpoint. Id. Moreover, Petitioner finds the Fifth Circuit’s creation of a “read the sign” test when deciding if strict scrutiny should apply to speech regulations unpalatable. Such a test, in Petitioner’s eyes, would doom all sign regulations under the exacting scrutiny applied in Reed because “signs as a medium would necessarily require an enforcement official to read the sign to establish that it is, in fact, a sign, and not something else.” Id. at 34. Thus, Petitioner views Austin’s sign code as an illustration of Justice Kagan’s fear in Reed that the Supreme Court will become “a veritable Supreme Board of Sign Review” for reasonable sign code restrictions. Reed, 576 U.S. at 185 (Kagan, J., joined by Ginsburg & Breyer, JJ., concurring).
Respondents, on the other hand, find the Fifth Circuit’s application of a “read the sign” test to be in line with Reed’s demand to apply strict scrutiny for laws that require an assessment of communicative content. Brief for Respondents at 12. Respondents do not disagree with Justice Alito’s position that sign codes can indeed be content-neutral, but because Austin’s sign code, through the definition of what constitutes off-premises signs, creates a scenario much like the ordinance in Reed where the communicative content needs to be assessed to determine if a violation has occurred, the ordinance in question here is not one of those permissible content-neutral distinctions. Id. at 24–25. Respondents argue a sign code that regulates signs within a certain distance of any building, or that restricts size, lighting, and number would all be permissible as the code does not consider the ideas or viewpoints expressed in the signs. Id. at 25. Here, however, the only signs restricted from digitizing are the ones that “advertis[e] a business, person, activity, goods, products, or services.” Id. at 23–24. Therefore, enforcers would need to read the sign to determine if it fell into the definition of off-premises signs (a definition that only covers certain topics).
Implicit in this case is a tension between governmental interests and censorship and the public’s access to information in the marketplace of ideas. Austin’s sign code may very well prohibit a political candidate from campaigning in the most effective way possible (e.g., with digitized billboards) to the people of Austin because points of interaction to reach the public may happen to be off premises, or the Austin sign code may prevent drivers from becoming distracted by large, flashy, and fast-changing digitized billboards that could proliferate exponentially along thoroughfares.
This case gives the Court the opportunity to strike down Austin’s sign code as facially content-based and violative of the First Amendment if it fails strict scrutiny. That could result in an expansion of Reed to cover the distinction between on- and off-premises signs that Justice Alito saw as insular from strict scrutiny in his Reed concurrence. Alternatively, the Court may press on the brake to slow the momentum of Reed among the Circuits and use Austin’s sign code as an illustration of a content-neutral speech regulation that only requires intermediate scrutiny (an easier standard to meet for the government). The middle path, however, may just be for the Court to issue an opinion very similar to Reed in which the justices all agree the law is violative of the First Amendment because of subject matter distinctions in the definition of off-premises signs, much like the exemptions listed in Reed’s ordinance, and then splinter once again on the breadth of how far courts should take the application of strict scrutiny for sign codes. That would leave the question of how safe local sign codes are from constitutional scrutiny to be answered for another day.
November 29
Becerra v. Empire Health Foundation
No. 20-1312, 9th Cir.
Preview by Jacob Orgel, Online Editor
In Becerra v. Empire Health Foundation, the Supreme Court is set to determine the validity of a rule crafted by the Department of Health and Human Services (“HHS”) to alter federal hospital reimbursements for treatment of patients covered by Medicare.
Under the federal Medicare program, hospitals that serve “a significantly disproportionate number of low-income patients” are eligible for government reimbursement for the costs associated with providing that service. 42 U.S.C. § 1395ww(d)(5)(F)(i)(I). HHS is responsible for administering the reimbursement program through the Centers for Medicare and Medicaid Services.
To determine reimbursement figures, HHS uses various calculations intended to capture a hospital’s number of patient days attributable to serving certain groups of low-income patients. See Empire Health Found. v. Azar, 958 F.3d 873, 878 (9th Cir. 2020). The challenge at hand concerns a 2005 adjustment to HHS’s interpretation of the statutory phrase “entitled to [Medicare]” and the effect of that phrase on the inclusion of “dual eligible exhausted coverage patient days”—days in which patients eligible for both Medicare and Medicaid have exceeded the 90-day coverage limit—in reimbursement calculations. See id. at 879.
In the 2005 Rule, HHS removed the word “covered” from its calculation methodology codified in 42 C.F.R. § 412.106(b)(2)(i), adding dual eligible exhausted coverage patient days to both the numerator and denominator of its coverage calculations. See id. at 880. Since part of HHS’s reimbursement calculation involves determining the fraction of Medicare eligible patients seen by each hospital, this alteration had the net effect of decreasing reimbursement figures for hospitals, even when those hospitals treated the same number of indigent patients as they did prior to the 2005 change. See Brief for Respondent at 3–4, Becerra v. Empire Health Foundation, No. 20-1312 (U.S. filed Oct. 18, 2021).
Empire Health Foundation, bringing the action on behalf of Valley Hospital Medical Center, argued both that the rule change was procedurally defective under the Administrative Procedure Act and that the change was a substantive violation of the statutory authorizing the reimbursement program. See generally Azar, 958 F.3d at 873. The district court found for Empire on procedural grounds, but the Ninth Circuit disagreed, determining that the rule change was “a logical outgrowth of the notice and comments received” following previously proposed rule changes. Id. at 883–84. Instead, applying Chevron’s two-step analytical framework for substantive challenges to notice-and-comment rules, the Ninth Circuit found the 2005 Rule to be substantively in error. See id. at 884–85. Reaching only step one—whether Congress “has directly spoken to the precise question at issue”—the Court relied on its decision in Legacy Emanuel to find that precedent clearly differentiated the discrepancy in congressional intent between the use of “entitled” and “eligible”. See id. at 885. Legacy Emanuel held that Congress uses the word “entitled” to indicate a patient that has an absolute right to a payment, and “eligible” to indicate that a patient meets the Medicaid statutory criteria. See Legacy Emanuel Hosp. and Health Ctr. v. Shalala, 97 F.3d 1261 (9th Cir. 1996). Thus, given that the statutory text at issue here implicated patients “entitled to [Medicare]”, only patients with an absolute right to a payment should have been included in HHS’s calculations, and its broader inclusion was therefore improper.
The Supreme Court will now determine the propriety of the Ninth Circuit’s decision, which will set the breadth of reimbursement for which hospitals treating indigent patients are eligible to receive. Oral arguments are set for Monday, November 29.
November 29
American Hospital Association v. Becerra
No. 20-1114, D.C. Cir.
Preview by Maria Schaible, Member
In American Hospital Association v. Becerra, the Supreme Court will review a regulatory change by the U.S. Health and Human Services Department (HHS) that led to a nearly 30% cut in Medicare drug reimbursement rates for certain hospitals. These hospitals—known as “340B hospitals” in reference to their participation in the 340B Drug Pricing Program—typically pay drug manufacturers less than the average sales price (ASP) of covered drugs. The hospitals then seek reimbursement for the drugs under Medicare Part B. Until 2018, the rate at which 340B hospitals were reimbursed for these drugs was 106% of the ASP. The hospitals used the additional resources from drug reimbursement rates to provide critical healthcare services to underserved communities. In 2018, to address concerns about the size of the reimbursement-acquisition cost gap, HHS reconfigured the reimbursement rate to 77.5% of ASP—a nearly 30% reduction.
There are two provisions of the Medicare statute relevant to this case. The first is 42 U.S.C. § 1395l(t)(14)(A)(iii), which gives HHS two options for calculating drug reimbursement rates. Subclause (I) instructs HHS to set rates according to hospital acquisition cost survey data. 42 U.S.C. § 1395l(t)(14)(A)(iii)(I). When that data is not available, as is the case here, subclause (II) directs HHS to use the ASP of the drugs and then “adjust” the reimbursement rate “as necessary.” 42 U.S.C. § 1395l(t)(14)(A)(iii)(II). Because the agency did not have the data required under subclause (I), it changed the reimbursement rate under the direction of subclause (II). For the first time, however, HHS reduced only the reimbursement rate for 340B hospitals; the rate for non-340B hospitals remained at 106%.
The second relevant provision of the Medicare statute in this case is 42 U.S.C. § 1395l(t)(12), which precludes judicial review of certain decisions under the reimbursement program. The key question is whether changes to the reimbursement rates are among the list of nonreviewable actions.
In 2018, a group of hospitals and hospital associations brought a challenge to the HHS rate change in the District Court for the District of Columbia. The district court concluded that HHS exceeded its statutory authority when it adjusted the reimbursement rates. Am. Hospital Ass’n. v. Azar, 348 F.Supp.3d 62, 83 (D.D.C. 2018). The D.C. Circuit reversed and held that HHS had not exceeded its statutory authority and that the agency’s decision was reasonable under Chevron deference. Am. Hospital Ass’n. v. Azar, 967 F.3d 818, 833 (D.C. Cir. 2020).
There are two issues before the Supreme Court. First, whether 42 U.S.C. § 1395l(t)(12) precludes review of HHS’s reimbursement rate change and second, whether HHS’s decision to vary reimbursement rates by hospital groups—here, 340B hospitals—is permissible under Chevron deference.
On the first issue, the respondents argue that issues regarding the calculation of payment amounts under Medicare Part B are precluded from judicial review by section 1395l(t)(12). Brief for Respondents at 21, Am. Hospital Ass’n. v. Becerra, No. 20-1114 (U.S. filed Oct. 20, 2021). The petitioners’ rather straightforward argument is that 42 U.S.C. § 1395l(t)(12) does not bar review of the agency’s 2018 decision and that the respondents have not overcome the strong presumption in favor of judicial review of agency action. Brief for Petitioners at 14, Am. Hosp. Ass’n. v. Becerra, No. 20-1114 (U.S. filed Sept. 3, 2021).
On the issue of HHS’s authority to calculate the rate change and vary the rate according to hospital group, the petitioners argue that: (1) the significant reduction of nearly 30% in reimbursement rates does not constitute an “adjustment” under 42 U.S.C. § 1395l(t)(14)(A)(iii)(II) and (2) that reimbursement rates may only vary by hospital group if the agency first collects hospital acquisition cost survey data, which it has not done here. Id. The essence of HHS’s argument in response is that the 2018 change was within the statute’s purpose to produce reimbursement rates that more closely resemble acquisition costs. Brief for Respondents at 19. Respondents also argue that its decision to vary reimbursement rates by hospital group is permissible under its grant of authority in subclause (II) to adjust rates “as necessary.” Id. at 43.
The significance of the case should not be lost in the minutia. HHS regards its decision as reducing excessive Medicare payments to 340B hospitals. Id. at 12. As the hospitals see it, however, HHS’s 28.5% reduction in reimbursement rates slashed $1.6 billion annually in revenue to financially exposed hospitals that provide critical services to underserved communities. Brief for Petitioners at 39.
Cummings v. Premier Rehab Keller P.L.L.C
No. 20-219, 5th Cir.
Preview by Mikayla Sherman, Member
In Cummings v. Premier Rehab, the Supreme Court will address whether the compensatory damages available as a remedy under Title VI of the Civil Rights Act include compensation for emotional distress. See Cummings v. Premier Rehab Keller P.L.L.C, SCOTUSblog (last visited Nov. 2, 2021), https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/. Jane Cummings is legally deaf and blind and communicates through American Sign Language (ASL). See Cummings v. Premier Rehab Keller, P.L.L.C, 948 F.3d 673, 674 (5th Cir. 2020). She was referred to Premier Rehab Keller PLLC for back pain and requested an ASL interpreter, but Premier Rehab refused to provide one, and instead told her that she could either use written notes, lipreading, gestures, or bring her own interpreter. See id. at 674. Cummings then sued Premier Rehab in the Northern District of Texas for disability discrimination under the Americans with Disabilities Act (ACA), the Rehabilitation Act, the Patient Protection and Affordable Care Act, and the Texas Human Resources Code § 121.003, seeking both injunctive relief and damages. See id. at 674–75. The court held that emotional distress damages are not covered under the Rehabilitation Act or the ACA. See id. at 675. Cummings then appealed, seeking review of the district court’s decision regarding the emotional distress damages. See id. at 675. The Court of Appeals for the 5th Circuit held, referencing contract-law principles, that because Premier was not “on-notice” that it could be held liable for emotional distress damages under the RA or ACA, Cummings could not collect them. See id. at 676–77 (holding that because emotional distress damages are not traditionally available as breach of contract remedies, the defendant must be put on notice for such damages). For victims of violations of the Civil Rights Act, statutes such as the Rehabilitation Act and the Affordable Care Act allow for remedies including compensatory damages, but do not specify whether compensation for emotional distress is included. See 29 U.S.C. § 794; 42 U.S.C. § 18001.
Petitioner Jane Cummings argues that she is entitled to emotional distress damages based on the common law as well as other federal and state statutes that incorporate emotional distress remedies. See Brief for Petitioner at 13–15, Cummings v. Premier Rehab Keller P.L.L.C, No. 20-219, (U.S. filed Aug. 23, 2021). Petitioner argues that emotional distress damages are appropriate here to uphold the common law principle that for every legal wrong there is a legal remedy. Brief for Petitioner at 13. Petitioner argues that although the Rehabilitation Act and the ACA do not contain provisions for emotional distress damages, emotional distress damages are properties under other federal and state anti-discrimination statutes to make victims whole and so should be applied here. See Brief for Petitioner at 13–14. Petitioner also argues that under Congress’ Spending Clause authority, emotional distress damages should be appropriate here as well. See Brief for Petitioner at 14.
Respondent, Premier Rehab Keller, P.L.L.C, argues that emotional distress damages are inappropriate because they are not traditional forms of remedy under contract law, and they would place an unfair burden on the judicial system. See Brief for Respondent at 10–15, Cummings v. Premier Rehab Keller P.L.L.C, No. 20-219, (U.S. filed Sept. 29, 2021). Respondent also rejects several of petitioner’s arguments. See id. at 10–15. Respondent also argues that allowing emotional distress damages “would subject funding recipients to significant and unpredictable liability for unverifiable harms” because they would be so significant and difficult to verify absent medical or expert evidence, opening the door to unpredictable liability for large damages. Brief for Respondent at 14. Respondents treat the issue as a breach of contract and argue that even if the contract (either formal or personal) was breached, because emotional distress damages were not traditionally offered as remedies, they should not be extended here. See id. at 10–12. Respondent also reject Petitioner’s argument that damages for emotional distress should be available under the presumption that “a federal court has the power to award appropriate relief for the violation of a federal right when federal law provides a cause of action.” Bell v. Hood, 327 U.S. 678 (1946); Brief for Respondent at 13. Respondent argues that Petitioner should not interpret Congress’ silence as endorsing a remedy and to interpret in this way would violate the separation of powers. See Brief for Respondent at 13.
Respondent also rejects Petitioner’s argument that prior precedent provides for emotional distress damages based on the Rehabilitation act and the ACA. See id. at 14. Respondent argues that the cases that petitioner cites do not provide clear notice and that prior cases did not decide emotional distress damages based on the same issue. See id. at 14. Finally, Respondent rejects Petitioner’s argument that other meaningful remedies do not exist, arguing that remedies such as withholding funds and other forms of damages are an option for petitioner. See id. at 14.
This case will not only determine whether emotional distress damages are available in discrimination cases based on disability under the Rehabilitation Act and the antidiscrimination provision of the Affordable Care Act. It will also effectively determine whether emotional distress damages will be available in cases of discrimination on the basis of sex and race as those are two claims that are available under Title VI as well. See Cummings v. Premier Rehab Keller P.L.L.C, ACLU (Oct. 15 2021), https://www.aclu.org/cases/cummings-v-premier-rehab-keller-pllc-no-20-219. If the Court allows for the payment of emotional distress damages, it will allow for a new remedy for discrimination cases, and a new way to make victims whole after suffering embarrassment on the grounds of discrimination. See id.
