October 31
Students for Fair Admissions, Inc. v. University of North Carolina
No. 21-707, M.D.N.C.
Preview by Rebekah Bass, Member
Can race-conscious admissions policies stand up to the strict scrutiny of the Fourteenth Amendment? That is the issue presented in Students for Fair Admissions, Inc. v. University of North Carolina. Petitioner Students for Fair Admissions (SFFA), a non-profit which brings litigation aiming to end affirmative action, sued respondent University of North Carolina (UNC) alleging that UNC’s consideration of race during the admissions process violates the Equal Protection Clause of the Fourteenth Amendment.
Following a bench trial, Judge Loretta C. Biggs held that UNC’s narrowly tailored admissions policy survived the Equal Protection Clause’s strict scrutiny because it had a compelling interest in pursuing diversity and its admissions policy was a holistic process which used race as one of many factors. SFFA appealed to the 4th Circuit, but the case is currently held in abeyance due to the Supreme Court’s granting of certiorari on the case.
The primary issue on appeal is whether the Court should overrule both long-standing and recent affirmative action precedent including Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), Grutter v. Bollinger, 539 U.S. 306 (2003), Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013), and Fisher v. Univ. of Tex. at Austin, 579 U.S. 365 (2016), as violating the Equal Protection Clause of the Fourteenth Amendment.
SFFA argues that Grutter, which identified and applied Bakke as binding precedent, should be overruled because it is grievously wrong, inflicts harm, and did not create legitimate reliance interests. It also emphasizes, in the wake of Dobbs, that stare decisis is the weakest in constitutional cases. SFFA argues that Brown v. Bd. of Educ. of Topeka recognized that the “constitution is color-blind,” Plessy v. Ferguson, 163 U.S. 537, 559 (Harlan, J., dissenting), and that race-based decisions in education are expressly forbidden by Brown, 349 U.S. 294, 300–01 (1955).
UNC argues that Congress expressly meant for the Fourteenth Amendment to ensure equal treatment for black individuals, not to prohibit all race-conscious practices as SFFA desires. UNC emphasizes the “positive duty” encompassed within the Equal Protection Clause, understood to fulfill its original purpose in rectifying the historic and systemic subjugation of black Americans. UNC also argues that narrowly tailored race-conscious admissions practices, such as its, advance the anti-subjugation mission of the Fourteenth Amendment and therefore survive strict scrutiny.
After over five hours of oral arguments were held on this and another affirmative action case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., it seems likely that the outcome of this case will fundamentally alter, if not abolish, affirmative action in admissions nationwide. Almost 100 amici briefs were filed in this case, illustrating just how important and impactful this case is. This decision will have enormous and continuing effects on institutions of higher education and those who wish to attend them.
Students for Fair Admissions Inc. v. President & Fellows of Harvard College
No. 20-1199, 1st Cir.
Preview by Kendall Archer, Member
In Students for Fair Admissions Inc. v. President & Fellows of Harvard College, the Court will decide (1) whether to overrule Grutter v. Bollinger and hold that the Equal Protect Clause prohibits higher education institutions from factoring race into admission decision; and (2) whether the race-conscious admission policy violates Title VI of the Civil Rights Act. In Grutter, the Court held that race may be a factor in determining admission policies if the policy holistically evaluates each applicant and is narrowly tailored to the compelling interest of promoting a diverse student body. 539 U.S. 306, 307 (2003). Title VI prohibits classifications “that would violate the Equal Protection Clause.” Brief for Respondent at 22, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199, (filed July 25, 2022).
As a highly selective institution, Harvard cannot admit every academically successful student. Harvard evaluates each applicant through a six-stage process: “(1) Harvard’s pre-application recruitment efforts; (2) students’ submission of applications; (3) Harvard’s ‘first read’ of student’s material; (4) admission officer and alumni interviews; (5) subcommittee meetings . . . to recommend applicants to the full admissions committee; and (6) full admission committee meetings.” Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College, 980 F.3d 157, 165 (1st Cir. 2020). During and after stage three, Harvard allows admission counselors to consider plus factors that tip the applicant into the admitted class. Id. A non-exhaustive list of tip factors includes legacy status, unusually appealing personal qualities, athletic ability, and race. Id. at 170.
Students for Fair Admissions (SFFA) challenges Harvard’s consideration of race as a factor in admissions. Brief for Petitioner at i, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College at 49, No. 20-1199 (filed May 2, 2022). SFFA argues Grutter should be overruled because it is “grievously wrong,” is “unworkable in practice,” and has generated no reliance interest. Id. at 50, 60, 65.
Even if the court upholds Grutter, SFFA argues Harvard’s admission program fails strict scrutiny and is thus unconstitutional, because it “penalizes Asian Americans, engages in racial balancing, overemphasizes race, and rejects workable race-neutral alternatives.” Id. at 72.
Harvard argues the Court should reaffirm Grutter and “permit limited consideration of race as one factor among many to achieve broad diversity that benefits everyone.” Brief for Respondent at 19-20. Harvard argues the Court should affirm the lower court’s finding that Harvard’s admission policy is not discriminatory against Asian-Americans and permissively uses race according to the Court’s precedents. Id. at 20.
Justice Jackson, a recent member of Harvard’s board of overseers and graduate of Harvard college and Harvard Law, recused herself from the case. Jackson says she’ll recuse herself from case challenging affirmative action at Harvard, SCOTUSblog (Mar. 23, 2022, 11:42 PM). This case was initially consolidated with Students for Fair Admissions v. University of North Carolina, which considers a similar challenge to race-conscious admission policies. Id. The cases were severed upon Justice Jackson’s recusal. Id.
At minimum, this case jeopardizes the admission policies of the 60% of selective universities that consider race in admissions. Brief for Respondent at 40. More generally, however, this case could transform Fourteenth Amendment jurisprudence should the Court hold the Equal Protection Clause requires race-neutral color-blindness. Brief for Petitioner at 47-48.
November 1
Jones v. Hendrix
No. 21-857, 8th Cir.
Preview by Addie Lynch, Member
The issue in Jones v. Hendrix is whether a federal inmate may apply for habeas relief under 28 U.S.C. § 2255(e) when a retroactively applicable Supreme Court decision changed the interpretation of the underlying charging statute, raising the potential that the inmate’s conduct was not actually unlawful under the statute.
To challenge a federal conviction, an inmate must first proceed under 28 U.S.C. § 2255(a) by filing a motion to vacate or set aside the sentence. Jones v. Hendrix, No. 2:19-CV-0006, 2020 WL 10669427, at *3 (E.D. Ark. Jan. 24, 2020). An inmate may not file a subsequent § 2255 motion unless there is newly discovered evidence or if there is a new rule of constitutional law that is retroactively applicable. 28 U.S.C. § 2255(h). However, the “saving clause” permits an inmate to later file a habeas action under 28 U.S.C. § 2241 if the remedy available under the § 2255 motion is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
The petitioner in this case is Marcus DeAngelo Jones, who was found guilty of two counts of felony possession of a firearm in July 2000, pursuant to 18 U.S.C. § 922(g). Jones, 2020 WL 10669427, at *1. To be found guilty of the felon-in-possession crime, the government must demonstrate that the defendant (1) possessed a firearm; and (2) had been previously convicted of a crime punishable by at least one year imprisonment. 18 U.S.C. § 922(g)(1). In 2019, the Supreme Court added a third requirement, holding that the government must also demonstrate that the defendant knew that he had the “relevant status” while possessing the firearm. Rahaif v. United States, 139 S.Ct. 2191, 2194 (2019).
After Rahaif, Jones sought to challenge his conviction on the grounds that a reasonable jury would not have found that Jones actually knew of his felon status when he possessed the gun, and that the government would not have been able to meet its burden under Rehaif. Jones, 2020 WL 10669427, at *2. He had already filed a motion to vacate his sentence under § 2255(a) in 2002. Id. at *1. Thus, the government argued that Jones could not file a subsequent motion under § 2255(h) because Rahaif did not decide a new rule of constitutional law. Brief for Petitioner at 7, Jones v. Hendrix, No. 21-857 (filed Apr. 12, 2022). Therefore, Jones relied on the saving clause provision to file for habeas relief. Jones v. Hendrix, 8 F.4th 683, 686 (8th Cir. 2021).
The Eighth Circuit denied Jones’s § 2255(e) motion, noting that “the saving clause is unavailable where a petitioner had any opportunity to present his claim beforehand.” Jones, 8 F.4th at 686 (quoting Lee v. Sanders, 943 F.3d 1145, 1147 (8th Cir. 2019)) (internal quotations omitted). The court reasoned that Jones could have raised the Rehaif-type argument either on direct appeal or in his initial § 2255 motion notwithstanding the fact that Eighth Circuit precedent stood firmly against it. Id. Essentially, the court said that Jones should have raised a losing argument if he wished to preserve his habeas rights under § 2255(e).
Now, Jones argues that the Eighth Circuit improperly dismissed his saving clause motion by relying on an impermissibly narrow interpretation of § 2255(e). Brief for Petitioner at 16. Jones argues that the saving clause applies because the lower court applied incorrect substantive law in the original § 2255 motion, precluding the court from being able to genuinely test the legality of Jones’s detention. Id. at 12.
The respondent Solicitor General does not defend the Eighth Circuit’s reading of § 2255(e), and, too, finds it improper. Brief for Respondent at 9, No. 21-857 (filed Mar. 30, 2022). Rather, the Solicitor General argues that this particular defendant is barred from saving clause relief because he cannot demonstrate actual innocence. Id. at 8-9. In other words, the respondent argues that Jones could not meet the new test for felon-in-possession under Rehaif because he could not convince a reasonable juror that he did not know of his prior felony convictions. Id. He was previously convicted of eleven felonies, for which he spent more than a year in prison, and he admitted during his trial that he knew he was not supposed to have a gun. Id.
Currently, the Tenth and Eleventh Circuits align with the Eighth Circuit’s interpretation of § 2255(e) and do not permit inmates to challenge their conviction under the saving clause when the statute under which they were charged undergoes new statutory interpretation. See Alyssa Howard, Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s “Saving Clause”, JDSUPRA (Oct. 21, 2022), https://www.jdsupra.com/legalnews/jones-v-hendrix-an-attempt-to-save-28-u-4772261/. Jones v. Hendrix will settle this current circuit split; however, it is not clear whether Jones himself will obtain the habeas relief he seeks.
Cruz v. Arizona
No. 21-846, Ariz.
Preview by Natalie Lewis, Associate
“Kafka would’ve loved this,” Justice Elena Kagan proclaimed during oral argument in the case of a capital defendant whose case consists of a series of seemingly contradictory court pronouncements. Oral Argument at 42:28, Cruz v. Arizona, No 21-846, https://www.oyez.org/cases/2022/21-846#:~:text=In%202005%2C%20a%20jury%20convicted,for%20a%20writ%20of%20certiorari. In this procedurally intricate case, the Court will decide whether the Arizona Supreme Court’s interpretation of Arizona Rule of Criminal Procedure 32.1(g) constitutes an independent and adequate state law basis for refusing to recognize Petitioner John Cruz’s federal rights under Simmons v. South Carolina, 512 U.S. 154 (1994) and Lynch v. Arizona, 578 U.S. 613 (2016).
Petitioner John Cruz’s long path to the Supreme Court began with his 2005 first-degree capital murder conviction for the killing of a police officer in Pima County, Arizona. During sentencing, Cruz attempted to rebut the prosecution’s arguments that the death penalty was necessary to assure that he no longer posed a risk to the public. However, the trial judge denied defense counsel’s request to inform the jury that, under Arizona law, Cruz was ineligible for parole and, if the jury did not impose the death penalty, would be imprisoned for the rest of his life.
This ruling ran afoul of the Supreme Court’s holding eleven years earlier in Simmons that capital defendants have a constitutional right to inform the jury that they would be ineligible for parole once the prosecution raises the specter of future dangerousness when arguing for imposition of the death penalty. Simmons, 512 U.S. 154. Because most juries may not understand the meaning of life imprisonment in the capital context, the Court reasoned, defendants have a due process right to rebut the prosecution’s argument by clarifying their parole ineligibility. Id. Unfortunately for Cruz and thirty other capital defendants in Arizona, the state refused to apply Simmons to its own cases for over twenty years, until the Supreme Court held in Lynch that the fact that Arizona defendants convicted of capital murder could receive executive clemency was not a sufficient basis for the state to deny them the benefit of the Simmons rule. Lynch, 578 U.S. 613 (2016).
Cruz initially asked the Court to review whether Lynch “applied a settled rule of federal law that must be applied to cases pending on collateral review.” Petition for Writ of Certiorari, Cruz v. Arizona, No. 21-846 at i. However, the Court granted certiorari on the limited question of “[w]hether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.” Order List: 596 U.S. (Mar. 28, 2022), https://www.supremecourt.gov/orders/courtorders/032822zor_f2bh.pdf.
Cruz argues that Rule 32.1(g) is not adequate or independent because it conflicts with federal law, including federal retroactivity principles. Brief for Petitioner, Cruz v. Arizona, No. 21-846 (filed Jun. 13, 2022). Rule 32.1(g) is not a neutral procedural rule, Cruz argues, because it discriminates against federal rights. Id. The holding is inadequate because it is a novel interpretation of 32.1(g) which has not been firmly established or regularly followed and because it is interwoven with federal law. Id. Cruz accuses the Arizona Supreme Court of evading federal precedent by denying Cruz an opportunity to raise his claim. Id.
In response, Arizona argues that the Arizona Supreme Court’s holding is an adequate and independent state law ground for the judgment. Brief for Respondent, Cruz v. Arizona, No. 21-846 (filed Aud. 12, 2022). Arizona Rule of Criminal Procedure 32.1(g), which allows petitioners to challenge their convictions after a “significant change in the law,” does not apply, Arizona argues, because Lynch constituted a change in the application of the law, rather than a significant change in the law itself. Id. The ground is independent, therefore, because it rests on a state procedural rule that does not depend on the merits of a federal claim. Id. Moreover, Cruz’s reliance on federal retroactivity principles is misplaced because Cruz failed to properly preserve his objection (a point hotly disputed by Cruz); therefore, because he has not met the requirements of 32.1(g), Arizona courts cannot assess the validity of his federal claims in a successive collateral proceeding. Id.
Due to Arizona’s unique interpretation of Simmons, which has not been joined by any other state, and the unusual fact pattern of this case, the consequences of the Court’s holding will mostly be limited to Arizona capital defendants who were sentenced to death before Lynch. One amicus brief highlighted the importance of the Simmons rule in curbing racial bias during sentencing, pointing to social science research suggesting that defendants of color, such as Cruz, are more likely to be seen as dangerous by juries. Brief for Amicus, LatinoJustice PRLDEF et al, Cruz v. Arizona, No. 21-846 (filed Jun. 21, 2022). Justice Ketanji Brown Jackson also warned that, if successful, Arizona’s approach could provide a blueprint for state defiance of federal criminal jurisprudence. Oral Argument at 50:34, Cruz v. Arizona, No. 21-846, https://www.oyez.org/cases/2022/21-846#:~:text=In%202005%2C%20a%20jury%20convicted,for%20a%20writ%20of%20certiorari.
November 2
Bittner v. United States
No. 21-1195, 5th Cir.
Preview by W. Avery Conrad, Member
In Bittner v. United States, the Supreme Court will consider whether a “violation” for failure to report foreign bank accounts occurs for each unreported account or each unfiled report under the Bank Secrecy Act. For Alexandru Bittner, a Romanian American who held accounts across Romania, Liechtenstein, and Switzerland, the difference in defining such violations is worth $2.67 million dollars. Many expat Americans are closely watching this case unfold because there is a growing movement to reduce reporting and tax burdens on Americans living abroad, many of whom believe the United States over burdens its citizens with such requirements. See Andreas Kluth, Next, the Supreme Court Decides How to Punish US Expats, The Washington Post (Aug. 26, 2022, 9:27 AM), https://www.washingtonpost.com/business/next-the-supreme-court-decides-how-to-punish-us-expats/2022/08/26/c33b3430-24fc-11ed-a72f-1e7149072fbc_story.html.
Mr. Bittner returned to Romania in 1990 following immigration to the United States in 1982, where he became a naturalized citizen in 1987. See Brief of Respondent at 6, Bittner v. United States, No. 21-1195 (U.S. Sep. 30, 2022) (Resp. Brief). Upon return to Romania, Mr. Bittner proceeded to build diverse business interests spanning logging to restauranteering. See id. at 7. His business endeavors were quite successful and in the years in question—2007 to 2011—Mr. Bittner kept between $10 and $15 million dollars in various European bank accounts. See id. at 9.
Under the Bank Secrecy Act (Act), each tax year American citizens are required to “file reports” to the IRS on foreign accounts containing $10,000 or more. 31 U.S.C. 5314(a). The annual report, known as the Report of Foreign Bank and Financial Accounts (FBAR), drafted by the IRS under the authority of the Treasury Secretary allows taxpayers to list all reportable accounts on a single form spanning as many pages as necessary to report all accounts.
The Fifth Circuit determined that each of Mr. Bitter’s unreported accounts constituted a violation, summing to 272 violations of the Act. See United States v. Bittner, 19 F.4th 734, 749 (5th Cir. 2021). As each violation incurs up to a $10,000 penalty, that court held Mr. Bittner liable for $2.72 million dollars in penalties. See id. The district court, on the other hand, agreed with Petitioner’s approach, ruling that he owed only $50,000 in sum—one violation for each year he failed to file an FBAR from 2007-2011. Resp. Brief at 11.
Bittner’s argues three grounds for overturning the Fifth Circuit. First, the plain text of the Act’s relevant sections clearly contemplate violation only for failure to file an FBAR. Reply Brief of the Petitioner at 2, Bittner v. United States, No. 21-1195, (U.S. Oct. 21, 2022) (Pet. Brief). Second, Congress meant for a violation only to be for failure to report because Congress made the act of failing to report accounts a violation, not having unreported accounts. See id. Lastly, Bittner argues the Act should be read in his favor under a rule of lenity because its ambiguous nature and imposition of a civil penalty demand that it be read leniently.
In reply, the United States conversely argues the textual meaning clearly points to their side because the statutory section and implementing regulations both use “‘violation’ in an account-specific way. Resp. Brief at 14. The government’s retorts to Petitioner’s invocation of the rule of lenity because the penalty is neither criminal nor considered a tax penalty under the Act. See id. at 45.
Notable amici include the United States Chamber of Commerce, which wrote in favor of Mr. Bittner. Particularly, their amicus brief highlights their focus on the rule of lenity here, noting that Congress—especially in the context of taxation—must speak clearly to levy harsh penalties. Brief for the Chamber of Commerce of the United States as Amici Supporting Petitioner, Bittner v. United States, No. 21-1195, (U.S. Aug. 25, 2022).
The implications of the Court’s decision in Bittner v. United States will immediately impact Americans living abroad. For Americans like Alexandru Bittner, the decision represents a difference to a factor of fifty time the assessed penalty under the Bank Secrecy Act. Expat Americans who must make these annual reports will be keeping a close eye on the outcome.
November 7
Axon Enterprise, Inc. v. Federal Trade Commission
No. 21-86, 9th Cir.
Preview by Joseph Davis, Member
Congress has created a scheme for the commencement and review of civil enforcement proceedings by the Federal Trade Commission, and prohibits acquisitions that may “substantially … lessen competition” or “tend to create a monopoly”. 15. U.S.C. § 18. If the FTC believes that a violation of these provisions exists, it may initiate an administrative proceeding against the respondent to determine if a violation occurred. 15 U.S.C. §§ 21(b), 45(b). Moreover, if the FTC concludes the respondent committed a violation, it “shall issue” an order requiring the respondent to cease and desist from the unlawful practice. Once the Commission files that order, “th[e] jurisdiction of the court of appeals of the United States to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive.” 15 U.S.C. § 45(d).
In Axon Enterprise, Inc. v. Federal Trade Commission, the Supreme Court will determine whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the circuit courts jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and-desist orders. Brief for Petitioner at 1, Axon Enterprise, Inc. v. Federal Trade Commission, No. 21-86 (filed May 9, 2022).
In 2018, Axon Enterprises, a manufacturer of body-worn cameras and digital evidence management systems for law enforcement, acquired competitor, Vievu LLC. The Federal Trade Commission (FTC) subsequently informed Axon that its acquisition raised antitrust concerns, and the FTC would be investigating the transaction. Due to those concerns, the FTC initiated an administrative proceeding against the petitioner. In response, Axon sued FTC, seeking a preliminary injunction forbidding those proceedings. Axon argued, and continues to argue, that Congress had conferred on federal district courts the jurisdiction to hear all civil actions arising under the constitution and federal law, and that reading a statute to implicitly strip district courts of jurisdiction would leave petitioners with no way to meaningfully pursue constitutional claims. Id. at 22; see also 28 U.S.C. § 1331. The FTC, in turn, argues that Congress may preclude district court jurisdiction in certain areas of the law, as long as its organic statute allows it and the agency has created an alternative review scheme that bypasses the district courts. Brief for Respondents at 6, Axon Enterprise, Inc. v. Federal Trade Commission, No. 21-86 (filed Sep. 22, 2021).
The district court dismissed the complaint for lack of subject matter jurisdiction, determining that although district courts generally have jurisdiction over cases that arise under federal law, 28 U.S.C. § 1331, Congress may implicitly preclude district court jurisdiction over a particular category of lawsuits by creating an alternative review scheme that bypasses the district courts. The court concluded that the FTC’s scheme bypassed the district courts, identifying three key factors in its conclusion: (1) whether the plaintiff can obtain meaningful judicial review; (2) whether the claim is wholly collateral to the statutory scheme; and (3) whether the claim lies outside the agency’s expertise. Id. at 6. The Court of Appeals affirmed the district court’s decision, and using the same three factors for consideration, concluded that the FTC’s structure reflected a fairly discernible intent to preclude district court jurisdiction. Id. at 7.
The decision of the Court in this case will impact the administrative proceedings within the FTC. If the Supreme Court rules in favor of Axon, companies facing FTC investigations could sue the FTC before filing a cease-and-desist order in federal court. If the Court sides with the FTC, companies would have to go through the FTC’s administrative proceedings assigned to an administrative law judge before reaching federal court, even in the event of constitutional claims. This decision additionally could have further ramifications for administrative law as a whole, as companies could potentially challenge the structure of administrative processes of other government agencies.
Securities Exchange Commission v. Cochran
No. 21-1239, 5th Cir.
Preview by Charlotte Cuccia, Online Editor
In Securities and Exchange Commission v. Cochran, along with its sister-case Axon Enterprise v. Federal Trade Commission, the federal agencies in question are hoping to defend their traditional, administrative proceedings by which federal courts entertain complaints about federal agencies. Cochran and Axon Enterprise question the validity of these administrative proceedings, and the SEC and FTC jointly filed a Brief for the Federal Parties in an attempt to safeguard their framework.
Michelle Cochran is a certified public accountant who, in 2016, faced administrative proceedings instituted by the SEC. She was barred from practice before the SEC by the Administrative Law Judge (ALJ), but in 2018, the Supreme Court ruled in Lucia v. SEC that the appointment of this position was unlawful. See 585 U.S. ___ (2018). The SEC initiated a new proceeding against Cochran, but she sued in federal court, arguing that the process of appointing ALJs to the SEC is unconstitutional, and that the SEC is acting as a “judge, jury, and prosecutor” simultaneously, depriving her of due process. Brief of respondent Michelle Cochran at 9, Securities and Exchange Commission v. Cochran, No. 21-1239 (U.S. filed June 30, 2022).
Instead, Cochran argues that the “federal district courts have jurisdiction to hear structural constitutional challenged to SEC proceedings”, citing to 28 U.S.C. 1331, in which Congress grants “federal district courts jurisdiction over all cases arising under the Constitution.” Id. at 17. Furthermore, she argues that the federal district courts are better situated to protect individual liberties against the modern administrative state, especially in situations where the complaining administrative agency is serving as its own adjudicator.
The SEC and FTC, however, argue that the issue is more so about whether or not they can be sued in district court before the administrative agency has even acted. The agencies argue that parties may seek a review of FTC and SEC adjudications with the proper court of appeals after proceedings conclude, and that Cochran is seeking to “evade those limits by suing the Commissions in district court before agency proceedings conclude.” Consolidated response brief of federal parties at 9, Securities and Exchange Commission v. Cochran, No. 21-1239 (U.S. filed Aug 8, 2022).
Various groups, including the U.S. Chamber of Commerce, filed briefs for Cochran and Axon supporting the idea that if a party is seeking to challenge the constitutionality of administrative agencies, they should be able to do so before being dragged through the purportedly unconstitutional administrative proceedings. With accusations of these proceedings being somewhat of a “kangaroo court”, it will be very interesting to see what questions the Supreme Court has for all four parties involved and how that matches up against the justices’ individual, and at times more partisan feelings about the so-called “administrative state.”
November 8
Mallory v. Norfolk Southern Railway Co.
No. 21-1168, Pa.
Preview by W. Avery Conrad, Member
Can a corporation make a voluntary decision when given a choice between consenting to general personal jurisdiction in a state or doing business in that state? The Supreme Court’s answer to this seemingly benign question may cause tremors across the landscape of personal jurisdiction of a magnitude unfelt since International Shoe. If the court sides with Petitioner, plaintiffs could yank corporations into court for any cause of action in any forum they do business, absent specific jurisdiction hurdles.
The Respondent in Mallory v. Norfolk Southern Railway Co. argues such a choice being forced upon a corporation is a violation of the Fourteenth Amendment’s Due Process Clause. Respondent’s Brief at 39, Mallory v. Norfolk Southern Railway Co., No. 21-1168 (U.S. filed Aug. 2, 2022). Petitioner, on the other hand, analogizes such a choice to the constitutionally permissible decision consumers face when deciding whether to sign contracts of adhesion which consent to personal jurisdiction or not to do business with a company. Petition for a Writ of Certiorari at i, Mallory v. Norfolk Southern Railway Co., No. 21-1168 (U.S. filed Feb. 18, 2022).
Petitioner Robert Mallory, a citizen of Virginia, worked for Norfolk Southern Railway Company (Norfolk Southern) for nearly 20 years in both Ohio and Virginia. Id. at 3-4. In the Pennsylvania Court of Common Pleas under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, Mr. Mallory alleged that his colon cancer was caused by Norfolk Southern’s negligent and reckless conduct which exposed him to asbestos and other toxic chemicals. Id.
Mr. Mallory did not allege his injury was caused by any Norfolk Southern action in Pennsylvania, but that the court had jurisdiction over the railway because it consented to general perso jurisdiction by registering to do business there. Under Pennsylvania law, “general personal jurisdiction” is proper over “corporations qualified as a foreign corporation” by the state. 42 Pa. Cons. Stat. §5301(a)(2)(i). Respondent Norfolk Southern, a Virginia corporation, was headquartered in Norfolk, Virginia at the time Mr. Mallory filed suit (Atlanta, GA is now its principal place of business). Respondent’s Brief at 4, (No. 21-1168).
The parties agree that Norfolk Southern is registered as a foreign corporation and the Pennsylvania statute, read plainly, would engender to its courts general personal jurisdiction over foreign corporations. Id. The Pennsylvania Supreme Court, however, agreed with Norfolk Southern that the statute “does not constitute voluntary consent to general jurisdiction but, rather, compelled submission to general jurisdiction by legislative command.” 266 A.3d 542.
Mallory maintains the Pennsylvania Supreme Court conflated jurisdiction by consent with jurisdiction by contacts with a state. Petition for a Writ of Certiorari at 2, (No. 21-1168). Under this argument, Pennsylvania’s statute does not conflict with International Shoe and its progeny because those cases concerned defendants who never expressly consented to jurisdiction. 326 U.S. 310, 317 (1945) (holding the decision is limited to cases where “no consent to be sued or authorization to an agent to accept service of process has been given”).
Mallory also asserts that Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., survives International Shoe because it focused on consent, not contacts like International Shoe. 243 U.S. 93 (1917) (holding that registration can be deemed consent to general jurisdiction). Norfolk Southern, however, contends that Pennsylvania Fire is a relic of the Pennoyer-era jurisprudence because its analysis was still primarily centered around a territorialist approach to jurisdiction. Respondent’s Brief at 38, (No. 21-1168).
Norfolk Southern’s primary argument rests on Daimler AG v. Bauman, 571 U.S. 117 (2014), interpreting it to mean a state cannot exercise general personal jurisdiction over a corporation just because it does business in the state. Id. at 6.
Notable amici include the U.S. Solicitor General which expressed disfavor that the consent statutes could interfere with foreign relations because states could exert jurisdiction over foreign defendants for conduct in foreign lands. Brief for the United States as Amicus Curiae Supporting Respondent at 1, Mallory v. Norfolk Southern Railway Co., No. 21-1168 (U.S. filed Sept. 6, 2022)
Should the Court agree with Mr. Mallory, corporations will be faced with difficult choices as the plaintiff’s bar is likely to press for widespread adoption of similar consent statutes. Allison Frankel, This sleeper Supreme Court case could be a nightmare for corporations, Reuters (July 15, 2022, 4:39 PM), https://www.reuters.com/legal/government/this-sleeper-supreme-court-case-could-be-nightmare-corporations-2022-07-15/. Choice of law, however, may prove to be the limiting vehicle for the Due Process Clause should corporations be haled into courts in fora with limited interest in adjudicating the claims at hand. Id.
Health and Hospital Corporation of Marion County, Indiana v. Talevski
No. 21-806, 7th Cir.
Preview by Declan Glueck, Member
In Health and Hospital Corporation of Marion County, Indiana v. Talevski, the Supreme Court will re-examine whether federal legislation enacted under Congress’s Spending Clause power gives rise to privately enforceable rights under 42 U.S.C. § 1983. The Court will then apply this decision to determine whether the rights secured by the Federal Nursing Home Reform Act (FNHRA) are protected by § 1983.
Respondent Ivanka Talevski brought this action on behalf of her deceased husband, Gorgi Talevski. Gorgi Talevski was a resident of a government nursing home: Valparaiso Care and Rehabilitation (VCR). Under FNHRA, government nursing homes that receive spending clause funding cannot impose medication as chemical restraints nor transfer residents for reasons not specified in the statute. Respondent alleges that VCR “administered psychotropic drugs to restrain him, then involuntarily transferred him to another facility,” in violation of the FNHRA. Brief for Respondent at i, Health and Hospital Corporation of Marion County, Indiana v. Talevski, No. 21-806, (U.S. filed Sep. 16, 2022). The Respondent asserts that the violation of FNHRA creates a private cause of action under § 1983.
Petitioners, the Health and Hospital Corporation of Marion County et al., argue that no spending clause legislation creates a cause of action under § 1983 without “clear notice” to the States, due to the contractual nature of this legislation. Reply Brief for Petitioners at 3, Health and Hospital Corporation of Marion County, Indiana v. Talevski, No. 21-806, (U.S. filed Oct. 17, 2022). They emphasize both federalism and separation of powers concerns in support of their position. Brief for Petitioners at 23, Health and Hospital Corporation of Marion County, Indiana v. Talevski, No. 21-806, (U.S. filed Jul. 18, 2022). Finally, Petitioners assert that even if some spending clause legislation could give rise to a § 1983 claim, FNHRA does not do so, because the enforcement and remedial scheme created by Congress within the statute is sufficient. Brief for Petitioners at 39.
Respondent, on the other hand, argues that the statutory text of § 1983 does not differentiate between spending clause legislation and other types of laws, considering the ordinary meaning of the text both in the present day and when it was enacted. Brief for Respondent at 19-21. Furthermore, stare decisis concerns are extremely high—a ruling for Petitioners would require overturning a long line of precedent, create significant amounts of legal instability, and disregard the fact that Congress has not overruled this precedent in the decades since it was established. Brief for Respondent at 26; see Brief for Amicus Curiae United States in support of Neither Party at 8, Health and Hospital Corporation of Marion County, Indiana v. Talevski, No. 21-806, (U.S. filed Jul. 25, 2022). Finally, Respondent argues that Congress clearly intended to confer individual enforceable rights on nursing-home residents, due to (1) Congress’s unambiguous language (2) the legislative history of the statute, and (3) the fundamental, highly personalized nature of the rights being protected by the statute. Brief for Respondent at 33-36.
The outcome of this case is exceedingly important to the future enforcement of Medicaid, and implicates many state-administered public welfare programs. Without § 1983, beneficiaries and providers whose rights have been violated will have to rely on the long, arduous, and non-particularized process of HHS enforcement or negotiations for relief.
November 9
Haaland v. Brackeen
No. 21-376, 5th Cir.
Preview by Maeve McBride, Member
In Haaland v. Brackeen, the Court may affirm or overturn years of precedent that states the Federal Government has a unique relationship with Indian Tribes. Substantively, the Brackeen and Texas challenge the Constitutionality of ICWA on four grounds: 1) did Congress have the authority to enact ICWA under the Indian Commerce Clause or generalized trust duties; 2) do the classifications of Indian under ICWA violate the Fifth Amendment Equal Protection Clause as stated in Morton v. Mancari; 3) whether ICWA violates anti-commandeering doctrine or non-delegation doctrine. Procedurally, the Court must also decide if plaintiffs have standing to challenge ICWA.
ICWA was enacted to lower the “alarmingly high percentage of Indian families . . . broken” by the unwarranted removal of children and “protect the best interests of Indian children.” 25 U.S.C. §§ 1901-1902. ICWA defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903.
If an Indian child is removed in a state custody proceeding, the statute has procedural notice requirements and specifies a placement preference for Indian children who are fostered or adopted. The preference order for adopted children and foster children vary slightly, but both prioritize members of the child’s extended family and Indian families over non-Indian families.
The case arises out of a child custody case in which Chad and Jennifer Brackeen attempted to adopt an Indian child. The Navajo nation intervened, and the Texas state court did not grant adoption. The Brackeens filed a suit challenging the constitutionality of ICWA in U.S. District Court. The District Court declared ICWA unconstitutional and the Fifth Circuit, sitting en banc, affirmed in part and reversed in part.
Petitioners allege that Congress did not have authority to enact ICWA because the Constitution does not enumerate the power to legislate over state-court child-custody proceedings. Brief for Petitioner the State of Texas at 20, No. 21-376 (U.S. filed May 26, 2022). Respondents, however, allege that this falls under the broad plenary powers granted under the Indian Commerce Clause and trust relationship between tribes and the Federal Government. Brief for Tribal Defendants at 18, No. 21-376 (U.S. filed Aug. 12, 2022).
Petitioners argue that the definition of Indian child and the placement preference with tribes violates the Equal Protection Clause of the fifth amendment because it is a racial qualification based on heritage. Brief for Petitioner the State of Texas at 37, No. 21-376 (U.S. filed May 26, 2022). In doing so, plaintiffs directly challenge precedent set in Morton v. Mancari, 417 U.S. 535 (1974), which held that tribal membership is a political classification not a racial one. The Tribal Defendants argue that Mancari controls and that reference to an enrolled parent does not impermissibly create a classification that relies on race and ancestry. Brief for Tribal Defendants at 44, No. 21-376 (U.S. filed Aug. 12, 2022).
Petitioners further allege that the anti-commandeering doctrine prevents the federal government from compelling states to follow placement preferences in state child custody cases. Brief for Petitioner the State of Texas at 60, No. 21-376 (U.S. filed May 26, 2022). Respondents argue that this doesn’t qualify as commandeering because private adoption and foster care agencies are also required to follow the placement preferences. Brief for Tribal Defendants at 77, No. 21-376 (U.S. filed Aug. 12, 2022). Petitioners finally argue that the non-delegation doctrine prevents Congress from delegating legislative decisions to the Tribes by allowing tribes input on where Indian children will be placed. Brief for Petitioner the State of Texas at 69, No. 21-376 (U.S. filed May 26, 2022). Respondents argue that incorporating tribal law as a different sovereign is not a delegation of Congressional legislative authority. Brief for Tribal Defendants at 90, No. 21-376 (U.S. filed Aug. 12, 2022).
Procedurally, the respondents challenge if the plaintiffs have standing to bring suit. They argue that the individual defendants lack redressability because the alleged injuries flow from the state court interpretation of ICWA. Brief for Tribal Defendants at 16, No. 21-376 (U.S. filed Aug. 12, 2022). The respondents further argue that the individual plaintiffs do not have an injury in fact because the state court child custody proceedings have concluded. Id. Finally, the defendants argue that State plaintiffs do not have standing to pursue Equal Protection claims because States do not have standing for Fifth Amendment claims on behalf of their citizens. Id.
Haaland v. Brackeen is both a challenge to ICWA and a challenge to the principles that underly Federal Indian Law. Overturning ICWA would put many federal laws that rely on the broad grant of plenary power and the political classification of tribal membership at risk.
