October 5
Carney v. Adams
No. 19-309, 3d Cir.
Preview by Austin Martin, Senior Online Editor
Delaware’s Constitution requires that the judiciary be politically balanced. The “bare majority provision” restricts Delaware’s three business courts—the Supreme Court, Superior Court, and Court of Chancery—from individually or collectively having more than a single-judge majority from any political party. Del. Const. art. IV § 3. Additionally, the “major party provision” requires that the remaining judges be members of the other major political party. Id. Delaware’s Family Court and the Court of Common Pleas are also restricted by a major party provision. Id. James Adams, a hopeful applicant for a judicial position in Delaware, sued the Governor of Delaware, John Carney, on the grounds that he was categorically denied eligibility to be a Delaware judge because he is a registered Independent, rather than a Democrat or Republican, thereby violating his First Amendment right to freedom of association.
There are three issues in this case. The first, which the Supreme Court instructed the parties to address, is whether Adams has standing to sue in an Article III court. The Governor asserts that Adams could never be injured by the bare majority provision because, as an Independent, he could never violate the provision by creating a supermajority of one party. Carney also argues that Adams manufactured standing by switching his registration from Democrat to Independent in 2017, and that his claim based on future intentions to serve on any Delaware court lacks concreteness. Adams contends that he is still injured because the bare majority and major party provisions categorically exclude him from employment as a judge. He further argues that his decision to become an Independent was based on “political conscience” protected by the First Amendment. Brief for Respondent at 19, Carney v. Adams, No. 19-309 (U.S. filed Feb. 20, 2020).
If Adams has standing, the Court must next decide whether Delaware’s political balance provisions are constitutional under the First Amendment. The Governor asserts it is appropriate and consistent with the First Amendment for the state to consider party affiliation in appointing judges because they exercise significant legal-political authority as “policymakers.” Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). Additionally, instead of being subject to strict scrutiny under the First Amendment, Carney argues that “States should receive substantial deference in determining whether partisan affiliation is an ‘appropriate’ qualification (Branti, 445 U.S. at 518) for ‘state elective and important nonelective executive, legislative, and judicial positions.’” Brief for Petitioner at 34, Carney v. Adams, No 19-309 (U.S. filed Jan. 21, 2020) (quoting Gregory v. Ashcroft, 501 U.S. 452, 462 (1991)). Adams counters that the Third Circuit’s definition of “policymakers” as officials who “reflect the political will and partisan goals of the party in power” correctly excludes judges and thus renders political affiliation an inappropriate criterion for consideration. Brief for Respondent at 25 (quoting Adams v. Governor of Delaware, 922 F.3d 166, 179 (3d Cir. 2019)). Additionally, Adams argues that restricting judicial appointments based on political affiliation serves no “compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.” Id. at 35 (quoting Janus v. Am. Fed’n of State, Cty. and Mun. Emps., Council 31, 138 S. Ct. 2448, 2468 (2018)).
Finally, if the Court finds only the major party provision unconstitutional, it must decide whether it is severable from the bare majority provision as applied to Delaware’s business courts. The Governor cautions that “[a]n implied exception to standing for severability would create numerous opportunities for litigation mischief.” Brief for Petitioner at 49. He further asserts that Delaware law allows severability and should control. Adams counters that the provisions are not severable, pointing to legislative history to argue that the major party provision is “integral to the proper functioning of the Political Balance Provision.” Brief for Respondent at 52.
If Adams makes it past the standing requirement, this case poses a confusing dilemma for states. On one hand, it seems reasonable for states to seek a balanced and ideologically diverse judiciary, especially given today’s polarized political climate. Delaware’s court system is one of the most respected in the U.S. given its influential and consistent jurisprudence in corporate law. Perhaps the existing political restraints on judicial appointments may be wise long-term policy. Still, Carney argues that this scheme is predicated on the notion that judges are “policymakers,” and it should be interesting to see the Justices’ reception to such an argument. Adams’ First Amendment concerns are salient, and the Court is likely to scrutinize whether a categorical disqualification based on his political affiliation is really the least restrictive means of ensuring a balanced judiciary. It would be quite bold to argue before the Court that because the President faces no political party restrictions in appointing federal judges that the federal judiciary is politically imbalanced. Adams and Carney each have powerful arguments, but they may have to tread lightly to make them at oral argument.
Texas v. New Mexico
No. 65, Original
Preview by Nick Contarino, Online Editor
In this case of original jurisdiction, the Supreme Court addresses New Mexico’s water delivery obligations to Texas in the aftermath of Tropical Storm Odile in 2014. The Court must determine (1) whether the River Master had the authority to entertain New Mexico’s request for delivery credit under the Pecos River Compact and (2) whether the River Master clearly erred in calculating New Mexico’s delivery credit for evaporation losses under the Pecos River Compact.
In September 2014 heavy rainfall caused increased flow to the Brantley Reservoir in New Mexico, a reservoir owned and operated by the United States’ Bureau of Reclamation (“Reclamation”) as part of the Carlsbad Project (“Project”). Brief for the United States as Amicus Curiae at 7, Texas v. New Mexico, No. 65, Original (U.S. filed Dec. 9, 2019). In October 2014 Reclamation exercised its flood control authority to hold back the excess water to prevent downstream flooding in both New Mexico and Texas, causing the reservoir to go above its Project limit. Id. at 7–8. As a result, 21,071 acre-feet of water above the Project limit evaporated from the reservoir. Id. at 11. After failing to reach an agreement with Texas regarding the appropriation of the evaporated water, New Mexico filed a motion asking the River Master—a Supreme Court-appointed authority charged with making calculations related the two states’ water disputes under the state compact giving rise to this case—to provide a 21,071 acre-foot credit to New Mexico for the evaporation losses in 2014. Id. at 1–3, 12. The River Master issued a final determination in September 2018, splitting the evaporation charges 50-50 before November 2014, and shifted all evaporation charges after that date to Texas. Id. at 14. The River Master then amended the River Master’s Manual containing its calculation methodology to authorize retroactive adjustments, and then awarded a 16,627-acre-foot delivery credit to New Mexico by adding it to the accounting table for water year 2015. Id.
A final determination made by the River Master is subject to review by the Supreme court “only on a showing that the Final Determination is clearly erroneous.” Texas v. New Mexico, 485 U.S. 388, 393 (1988). The parties first dispute procedural matters. Texas asserts that the River Master’s decision to retroactively award delivery credits to New Mexico was clearly erroneous because (1) New Mexico did not object to the initial water year 2015 report within 30 days, (2) no authority permits the River Master’s retroactive modification of past reports over a party’s objection, and (3) no authority authorized the “equitable tolling the River Master applied to consider New Mexico’s time-barred objections.” Mot. for R. of River Master’s Final Det. at 14, Texas v. New Mexico, No. 65, Original (U.S. filed Dec. 17, 2018). New Mexico asserts that they would be unfairly charged for the evaporation under Texas’ arguments, and contend that (1) the River Master properly exercised his discretion to adopt a procedure to resolve the accounting of the evaporation, (2) New Mexico was justified in relying upon on the River Master’s procedure, (3) the Compact plainly contemplates adjustments within a three-year accounting period, and (4) equitable principles justify granting New Mexico the one-time credit. State of New Mexico’s Response to Texas’s Mot. for Rev. of River Master’s Final Det. at 18–27, No. 65, Original (U.S. filed Feb. 15, 2019). If the Court finds the procedure the River Master followed was appropriate, it must then determine whether the River Master clearly erred in his apportionment of the evaporation loses.
Texas asserts that the water held above the Project limit should be treated as “treated as ‘unappropriated flood water’ with 50% allocated to Texas.” Brief for the United States at 12. Texas bases its argument on the Pecos River Compact, which defines “unappropriated flood waters” as “water originating in [New Mexico] . . . [that] if not impounded will flow past Girvin, Texas.” Act of June 9, 1949, ch. 184, art. II(i), 63 Stat. 161. Texas asserts that the River Master’s decision to apportion evaporation losses to Texas violates the Compact and is clearly erroneous because the Bureau of Reclamation, not Texas or New Mexico, chose to impound the flood water and did so only for flood control. See Mot. for R. of River Master’s Final Det. at 28.
New Mexico argues that all the water above the project limit belonged to Texas and thus all evaporation losses should be borne by Texas. See Brief for the United States at 8. It bases this claim on a November 2014 email from a Texas official that requested New Mexico to “store Texas’ portion of the [flood] until they can be utilized . . .” Id. In January 2015 New Mexico agreed to the request but noted, if not for Texas’ request, that New Mexico would have released all water above the Project’s storage limit to the Texas state line. Id. Under New Mexico’s conception of the water’s ownership, the evaporated losses on that water would be solely borne by Texas.
October 6
Rutledge v. Pharmaceutical Care Management Association
No. 18-540, 8th Cir.
Preview by Jacob Reiskin, Online Editor
The issue before the Court is whether an Arkansas law regulating the reimbursement rates that pharmacy benefit managers (“PBMs”) pay pharmacies is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. 1144 (2018). The Respondent, a PBM industry group, filed suit against Arkansas in response to the Arkansas law.
For background, PBMs manage prescription drug benefits that employers provide to workers. PBMs act as middlemen, structuring drug plan costs and benefits without actually manufacturing, selling, or dispensing drugs. 95% of large employers rely on PBMs to administer prescription drug benefits. See Brief for Respondent at 6, Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (U.S. filed Mar. 25, 2020). PBMs typically set a maximum allowable cost rate (“MAC”) designed to reflect the rate that pharmacies usually pay for a generic drug at wholesale. However, a pharmacy submitting a claim may find that the actual cost exceeds the MAC. In that situation, the pharmacy has the option to pursue the PBM’s internal appeal process in hopes of closing the shortfall on a money-losing claim.
Arkansas Act 900 has three main features: 1) it requires MACs to be adjusted when wholesale costs increase, 2) it requires PBMs to grant appeals and reimburse pharmacies if pharmacies can demonstrate that the drug acquisition cost was the lowest rate available at its primary wholesaler, and 3) it allows pharmacies to decline to dispense a drug if the PBM’s MAC is less than what the pharmacy paid to acquire it. See 2015 Ark. Acts 900; Brief for Petitioner at 10–11, Rutledge v. Pharm. Care Mgmt. Ass’n, No. 18-540 (U.S. filed Feb. 24, 2020). The Eighth Circuit affirmed the district court, holding that Act 900 is preempted by ERISA because the case is not distinguishable from another Eighth Circuit case. Pharm. Care Mgmt. Ass’n v. Rutledge, 831 F.3d 1109, 1112 (8th Cir. 2018) (citing Pharm. Care Mgmt. Ass’n v. Gerhart, 852 F.3d 722 (8th Cir. 2017)). The appeals court found that although Act 900 did not explicitly reference ERISA, by regulating entities administering ERISA plans, Act 900 acted on ERISA, and thus was preempted. Id.
Arkansas asks that the lower court be overruled, arguing ERISA does not preempt state rate regulation. Brief for Petitioners at 19. Both the United States and California—representing itself, 44 other states, and the District of Columbia—filed amici briefs supporting Arkansas’ position. See Brief for the United States as Amicus Curiae in Support of Petitioner, Rutledge v. Pharm. Care Mgmt. Ass’n, No. 18-540 (U.S. filed Mar. 2, 2020); Brief for California, 44 Other States, and the District of Columbia as Amici Curiae in Support of Petitioner, Rutledge v. Pharm. Care Mgmt. Ass’n, No. 18-540 (U.S. filed Mar. 2, 2020). Arkansas argues that Act 900 does not regulate what benefits are provided; instead, Act 900 regulates cost and dispute resolution. And, the state adds, other court decisions can be distinguished on this difference—regulating benefit cost (allowed) vs. regulating the payment of benefits and what benefits are offered (not allowed). See Reply Brief for Petitioner at 8–9, Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (U.S. filed Apr. 24, 2020). Arkansas insists that PBMs are still in control of benefits administration and the law does not act upon ERISA in any immediate way.
The Respondent argues that Act 900 “directly regulates . . . benefits . . . central to plan administration.” Brief for Respondent at 2. The group insists that PBMs offer a valuable service to employers and that Act 900 disrupts cost savings created by MACs. It relies on the circuit decision to maintain that the law is already settled—when state law relates to and has a connection with employee benefits, including regulation of PBMs, state law is preempted by ERISA. Brief for Respondent at 18. The Respondent also argues that Arkansas’s and other states’ regulation of PBMs interferes with nationwide administration of benefits, and contends that a distinction between cost and benefits is “illusory” because benefits are designed based on costs. Brief for Respondent at 41–42. The trade group also argues that by letting pharmacies decline to dispense drugs that are not reimbursed at cost, Arkansas directly regulates what benefits are administered. Arkansas responds that enforcement is incidental and necessary to the law’s success, and that similar laws, like one providing pharmacists discretion to withhold narcotics, are at risk. Brief for Petitioners at 47.
Tanzin v. Tanvir
No. 19-71, 2d Cir.
Preview by Ian Bryant-Smith, Former Managing Editor
In 1990, the Supreme Court held that the Free Exercise Clause of the U.S. Constitution “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribed (or proscribes).’” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)). Three years later, Congress passed the Religious Freedom Restoration Act (“RFRA”), which overruled that decision with regard to federal law by returning to the previous strict scrutiny test for situations in which government actions substantially burden free exercise of religion. See 42 U.S.C. § 2000bb (2018). When the RFRA is violated, plaintiffs may seek “appropriate relief against a government.” § 2000bb-1(c).
In Tanzin v. Tanvir, the Court will determine whether the RFRA authorizes suits against federal employees for money damages in their individual capacities for violating its protections of religious belief. The plaintiffs were three Muslim men who alleged that the defendant FBI agents violated the RFRA by retaliating against them and improperly adding them to the No-Fly List for refusing to become informants.
The Southern District of New York dismissed the suit, holding that money damages against individual federal employees were not “appropriate relief.” The Second Circuit reversed.
The petitioner FBI agents argue that RFRA does not authorize money damages against them. They contend that there is a strong presumption against reading statutes to authorize money damages against government employees in their personal capacities, and that there is not clear evidence that Congress intended such remedies to be authorized under RFRA. Further, they point to the Religious Land Use and Institutionalized Persons Act, which was enacted after RFRA was deemed unconstitutional as applied to state governments and which the Court has already held does not authorize money damages.
The respondents counter by highlighting that RFRA was intended to apply broadly. It created an explicit private right of action where none had existed before, and granted even broader protection of religious liberty than pre-1990 Supreme Court precedent did. Further, they challenge the notion that there is a presumption against the availability of money damages from federal employees. And even if there were such a presumption, they argue, the statute’s text and legislative history all suggest that Congress intended money damages to be available.
Amicus briefs overwhelmingly support the position that RFRA ought to allow money damages. Just one, filed by American Atheists and the Center for Inquiry, argue that it should not. Another brief, co-authored by Freedom From Religion Foundation and American Humanist Association, argues that RFRA should be struck down altogether as violative of the Establishment Clause.
October 7
Ford Motor Co. v. Montana Eighth Judicial District Court
No. 19-368, Mont.
Preview by Amy Orlov, Online Editor
Ford Motor Co. v. Montana concerns fundamental questions of personal jurisdiction related to the specific jurisdiction for a lawsuit in which a corporation is the defendant. Not surprisingly, Ford Motor Co. stems from an incident involving malfunctioning car parts, similar to other prominent personal jurisdiction cases such as World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 277 (1980), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). Since an automobile can be driven throughout the country and contains many pieces that are manufactured by different companies in different parts of the world, motor vehicle malfunctions can often result in complex personal jurisdiction issues. Ford Motor Co. is no exception.
In this case, Markkaya Jean Gullett, a Montana resident, was driving a Ford Explorer on a Montana highway when she lost control of the vehicle and fatally crashed into a ditch. The cause of the crash was a defect in the tire, resulting from a thread separating. The personal representative of Gullett’s estate sued Ford Motor Company in Montana for claims including design defect, failure to warn, and negligence. This case is consolidated with Ford Motor Co. v. Bandemer, which arises in Minnesota but involves similar facts and presents the same legal question about the strength of the casual connection required to establish specific jurisdiction.”
Ford Motor Company is incorporated in Delaware and headquartered in Michigan. The specific Ford Explorer that Gullett drove was assembled in Kentucky and initially sold to a dealer in Washington. Following the initial sale, the dealership sold the Explorer to an Oregon resident who later sold it to an individual who brought it to Montana. At no point was Ford Motor Company involved in directly selling or producing the individual vehicle in Montana. However, Ford does sell thousands of vehicles, including the make and model of the car involved in the accident, in the state of Montana. The respondents emphasize this point as justification for holding Ford subject to personal jurisdiction in this case. See Brief for Petitioners at 4–7, 15–16, Ford Motor Co. v. Montana Eighth Judicial District Ct., 19-368 (U.S. filed Mar. 30, 2020).
Ford Motor Company moved to dismiss the claim for lack of both general and specific jurisdiction. Ford argued that the plaintiff’s claims do not “arise out of or relate to” the corporation’s activities within the state under Burger King v. Rudzewicz, 471 U.S. 462, 472–73. Brief for Petitioners at 13–15, Ford Motor Co. v. Montana Eighth Judicial District Ct., No. 19-368 (U.S. filed Feb 28, 2020) (quoting Burger King, 471 U.S. at 472–473). The trial court denied Ford’s motion to dismiss, finding that there was a substantial connection between Ford and the forum state. The Montana Supreme Court affirmed this finding, explaining that Ford had availed itself to the privileges of doing business in the state of Montana by advertising and selling its vehicles and automobile parts within the state.
As the case is set for oral argument at the Supreme Court, numerous academics, business associations, and chambers of commerce have voiced their opinions through amicus briefs. Several civil procedure professors have written in support of the respondents, arguing that a decision in favor of the petitioners would result in an unfair forum-shopping advantage for defendant corporations. See Brief of Amicus Curiae Civil Procedure Professors in Support of Respondents at 1, Ford Motor Co. v. Montana Eighth Judicial District Ct., No. 19-368 (U.S. filed Apr. 2, 2020). However, the U.S. Chamber of Commerce and Alliance for Automotive Innovation have filed amici briefs in favor of Ford. They argue that a ruling in favor of the respondents would expose automotive manufacturers that develop easily movable products to nationwide specific jurisdiction on the basis of generalized connections they share with each and every state. See Brief for the Alliance for Automotive Innovation, et al. in Support of Petitioner at 4, Ford Motor Co. v. Montana Eighth Judicial District Ct., No. 19-368 (U.S. filed Mar. 6, 2020).
Ford Motor Co. could have large consequences for personal jurisdiction law and corporate forum decision making. It would not be surprising for this case to show up in civil procedure textbooks as the most recent decision iterating specific jurisdiction principles.
Google LLC v. Oracle America, Inc.
No. 18-956, Fed. Cir.
Preview by Austin Martin, Senior Online Editor
Ten years of litigation between two Silicon Valley giants reaches the Supreme Court in what is to be the Court’s first real opportunity to decide whether software interfaces are eligible for copyright protection. If software interfaces are copyrightable, the Court must also decide whether Google’s copying of Oracle’s software interface was a “fair use,” which would defeat Oracle’s claim of infringement.
The first question involves a debate over copyright law’s “idea-expression dichotomy.” See, e.g., Baker v. Selden, 101 U.S. 99 (1880); Lotus Dev. Corp v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided Court, 516 U.S. 233 (1996)). To build a developer-friendly, open-source platform for its Android operating system, Google copied over 11,000 lines of code and 37 application programming interfaces (“APIs”) from Java SE, a coding package that Oracle owns and licenses to companies building digital platforms. Copyright protection extends to expression, but Google argues that the code and APIs embody an uncopyrightable “idea, . . . system, [or] method of operation.” 17 U.S.C. § 102(a)-(b) (2018). Under the “merger doctrine,” Google contends that since the code creates a “computer software interface designed to invoke the functions of a program,” the code’s expression is inseparable from its underlying idea or function. Brief for Petitioner at 18, 21, Google LLC v. Oracle Am., Inc., 18-956 (U.S. filed Jan. 6, 2020). The expression thus “merges” with the idea and is uncopyrightable. Google further argues that the copied code can only be written in one way to perform the desired functions and that granting Oracle copyright over the software interface would give it an unwarranted monopoly over the computer functions themselves.
Oracle contends that it “does not seek to protect the ideas embodied in Java SE . . . [but] claims rights only in its particular expression of those ideas.” Brief for Respondent at 24, Google LLC v. Oracle Am., Inc., 18-956 (U.S. filed Feb. 12, 2020). Oracle argues that Congress understood computer programs to be inherently functional but still afforded copyright protection to code “whether ‘used directly or indirectly’ to operate a computer.” Brief for Respondent at 27 (quoting 17 U.S.C. § 101). Oracle asserts anyone could have written different Java code to perform the same functions as the copied lines, meaning the copied expressions do not “merge” their functions to become uncopyrightable.
If the Court finds that computer programs are copyrightable, Google will urge the Court to uphold the jury’s finding that Google’s use constitutes “fair use.” The Federal Circuit reversed the jury’s finding after weighing the evidence itself, which Google argues was an erroneous approach. See Oracle Am., Inc. v. Google LLC, 866 F.3d 1179 (2018). In Google’s view, the jury had substantial evidence on which to find that fair use was satisfied. Google touts the “longstanding practice of software companies and developers of reimplementing declarations and other software interfaces that operate pre-written computer code” as justification for its actions. Brief for Petitioner at 37.
Oracle posits that the question of fair use is a legal question properly decided on de novo review by a court. Additionally, Oracle argues that Google cannot establish fair use simply by using copied code in new devices and that Google’s substantial copying and subsequent harm to Java SE’s market performance should invalidate its fair use argument. Brief for Respondent at 39–46. Finally, Oracle warns that if companies cannot protect their software interfaces through copyright, “[n]o company will make the enormous investment required to launch a groundbreaking work like Java SE.” Brief for Respondent at 57.
This case has serious implications for software developers and copyright law. Oracle has invested millions to acquire and maintain control over Java, and Google’s activity stands to threaten Oracle’s business. On the other hand, Oracle’s potential ability to assert copyright protection over APIs could severely hamper software interoperability and create litigation risk for companies using common APIs in their own programs. This case has drawn a number of amici in support of both sides, and the outcome is sure to be thoroughly debated.
October 13
United States v. Briggs; United States v. Collins
No. 19-108 & No, 19-184, C.A.A.F.
Preview by Jessica Mugler, Associate
In United States v. Briggs, consolidated with United States v. Collins, the Supreme Court will decide whether the Court of Appeals for the Armed Forces erred when it acquitted a rapist by applying a five-year statute of limitations to rapes committed by members of the armed forces between 1986 and 2006.
In 2005, then-Airman First Class (“A1C”) DK worked on then-Captain Michael Briggs’ squadron. One night after drinking heavily, Captain Briggs went to A1C DK’s room and “forced her to have sex with him even though she said ‘no’ and ‘stop’ and tried to roll away.” United States v. Briggs, 78 M.J. 289, 290 (C.A.A.F. 2019), cert. granted, 205 L. Ed. 2d 333 (Nov. 15, 2019). In 2013, now-Staff Sergeant (“SSgt”) DK called now-Lieutenant Colonel (“Lt. Col.”) Briggs and recorded a discussion of the incident. Lt. Col. Briggs told her, “I will always be sorry for raping you.” Id. With this recording and other evidence, the Government charged Lt. Col. Briggs with rape, and a general court martial convicted him in 2014.
Lt. Col. Briggs did not raise the statute of limitations as a defense before or during his trial, but he did raise it on appeal. From 1986 to 2006, Court of Appeals for the Armed Forces precedent held that there was no statute of limitations for a rape offense under the Uniform Code of Military Justice (“UCMJ”), which provided no statute of limitations for offenses that could be punished with death and a five-year period of limitations for other offenses. See 10 U.S.C. 843(a) (2000). In 2006, Congress amended this section of the UCMJ to specifically provide no statute of limitations for rape offenses. See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, §§ 552(e), 553, 119 Stat. 3136, 3263–64; 10 U.S.C. 843(a) (2006). Then, in 2018, the court overturned existing precedent, holding that because no one could constitutionally receive the death penalty for rape, the UCMJ applied a five-year statute of limitations to rapes that occurred between 1986 and 2006. See United States v. Mangahas, 77 M.J. 220, 224-25 (C.A.A.F. 2018). As a result, the parties agree that if the 2006 amendment does not apply retroactively, then the five-year statute of limitations applies to the 2005 conduct in this case.
The Court of Appeals held that the amendment does not apply retroactively and that the Government was thus time-barred from bringing a rape charge against Lt. Col. Briggs. See Briggs, 78 M.J. at 294. The Supreme Court will now decide whether the lower court was correct to set aside the rape conviction. If the Court decides that the amendment applies retroactively, the conviction will be upheld.
The Government argues that Congress intended the amendment to apply retroactively because it meant to merely maintain the status quo by codifying the court’s existing precedent establishing no statute of limitations for rape offenses. Lt. Col. Briggs, on the other hand, argues that Congress was creating new law, rather than maintaining the status quo, and did not intend retroactive application. He asserts that Congress did not intend retroactivity because (1) the amendment does not apply exclusively to rape and (2) even if Congress had believed it was merely codifying existing law, this belief would not prove Congress’ intention to have the amendment apply retroactively. Brief for Respondents at 44–45, United States v. Briggs, 19-108 & 19-104 (U.S. filed Feb. 12, 2020). He also argues that the presumption against retroactivity and presumption in favor of repose should apply here because Congress was silent as to the amendment’s retroactivity.
City of Chicago, Illinois v. Fulton
No. 19-357, 7th Cir.
Preview by Emma Liggett, Online Editor
Chicago’s Municipal Code allows the city to impound vehicles for minor violations such as failure to pay a parking ticket or properly display a city tax sticker. Three bankruptcy cases, consolidated into Chicago v. Fulton, involve vehicle seizures by the City of Chicago for unpaid tickets. After the seizures, each respondent filed a petition for Chapter 13 bankruptcy and a repayment plan. Under the Bankruptcy Code’s automatic stay, 11 U.S.C. § 362(a)(3) (2018), a creditor is obligated to deliver any seized property belonging to the bankruptcy estate to a debtor. However, Chicago refused to return the vehicles. The issue is whether 11 U.S.C. § 362(a)(3) places an affirmative obligation on Chicago to immediately return this property.
Respondents argue that in refusing to return their vehicles, Chicago “acted” “to exercise control” over their property in violation of § 362(a)(3). Brief for Respondents at 14, Chicago v. Fulton, No. 19-357 (U.S. filed Mar. 4, 2020). Chicago argues that the automatic stay “freezes the state of affairs that exist” when an individual files for Chapter 13 bankruptcy, and does not impose an affirmative obligation on creditors passively holding property. Reply Brief for Petitioners at 4, Chicago v. Fulton, No. 19-357 (U.S. filed Apr. 8, 2020). Because Chicago seized the vehicles before respondents filed their Chapter 13 petitions, its retention of the property is a non-action permitted by § 362(a)(3). See id. Additionally, Chicago argues that interpreting § 362(a)(3) in this way renders the Bankruptcy Code’s obligatory turnover provision, 11 U.S.C. § 542(a), superfluous, counseling against finding an obligation under § 362(a)(3). Respondents counter that “continuing to exercise” control over their property is an action subject to the automatic stay. Brief for Respondents at 15. Furthermore, Respondents argue that § 542(a) acts in conjunction with § 362(a)(3), not in place of it, and that the city’s failure to return the property effectively flouts both provisions. See id. at 15–16.
Unforgiving collection practices like Chicago’s are widespread, used by states and cities across the country. If the Bankruptcy Code’s purpose is to “facilitate the debtor’s fresh start,” then the retention of seized cars severely frustrates that goal. Id. at 3. Without a car, individuals are strained to accomplish basic tasks like driving to work, which also impedes their abilities to make payments to creditors. Furthermore, 9% of Chicago’s operating budget is made up of the collection of vehicle fines, which calls into question the true purpose of vehicle seizures. See id. at 13.
The Court’s interpretation of what constitutes an act to exercise control in the context of § 362(a)(3) has significant implications for the functioning of the bankruptcy system and its ability to ease the financial pressures facing millions of Americans.
October 14
Torres v. Madrid
No. 19-292, 10th Cir.
Preview by Emma Liggett, Online Editor
In this case, the Court will resolve a circuit split regarding what constitutes a seizure for Fourth Amendment purposes. The U.S. Courts of Appeals for the Eighth, Ninth, and Eleventh circuits hold that an attempt to detain a suspect by use of physical force is a seizure, regardless of whether that attempt is successful. The U.S. Court of Appeals for the Tenth Circuit and the District of Columbia Court of Appeals hold that an attempt to detain a suspect by the use of physical force must be successful to be considered a seizure.
In July of 2014, petitioner Roxanne Torres was operating a vehicle in the parking lot of an apartment complex where respondents, officers Janice Madrid and Richard Williamson, were attempting to locate the subject of their arrest warrant—an individual unrelated to Torres. As the officers approached her car, Torres tried to drive away, subsequently claiming that she thought the officers were carjackers. The officers, later claiming that they feared for their lives, collectively fired thirteen shots at Torres, two of which hit her in the back. Despite the injuries, Torres continued driving and evaded arrest.
In October of 2015, Torres filed a civil-rights complaint in federal court against the officers, alleging they violated her Fourth Amendment right to be free from unreasonable seizures when they used excessive force and shot her twice in the back. The district court held that the Fourth Amendment had no application to Torres’s case because she was never seized, which is required for an excessive force claim. The Tenth Circuit affirmed, holding that Torres was not seized because she “did not stop or otherwise submit to the officers’ authority.” Torres v. Madrid, 769 F. App’x. 654, 657 (10th Cir. 2019), cert. granted, 140 S. Ct. 680.
Torres advocates for interpreting seizures as occurring when an officer applies physical force with intent to restrain an individual. She contends that this interpretation is consistent with the original meaning of seizure in the Fourth Amendment, which encompassed the common law interpretation of arrest. At common law, an arrest was made when there was an “application of physical force with the intent to restrain,” whether or not the force resulted in successful restraint. Brief for Petitioner at 9, Torres v. Madrid, No. 19-292 (U.S. filed Jan. 31, 2020). Furthermore, Torres points out that the Court’s precedent compels this interpretation. In California v. Hodari D., the Court acknowledged that a police officer’s intentional use of physical force is a seizure “even though the subject does not yield.” 499 U.S. 621, 626 (1991). Torres argues that this conclusion is further supported by the Court’s other Fourth Amendment precedents, which emphasize violation into an individual’s personal space as the harm the Amendment aims to protect. See Maryland v. King, 569 U.S. 435, 446 (2013); Terry v. Ohio, 392 U.S. 1, 19 (1968).
The officers advocate for the Tenth Circuit’s interpretation requiring officers to actually take possession, custody, or control of a subject before being considered a seizure for purposes of the Fourth Amendment. Like Torres, the officers reference the Court’s precedent to support this interpretation. They first argue that the Court’s Mendenhall test compels a finding of no seizure. Under Mendenhall, a police officer has seized an individual if, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). The officers focus on the necessity of there being a restraint of movement or liberty, which they argue was not present here because Torres “fled, without pause, from the scene.” Brief of Respondents at 11, Torres v. Madrid, No. 19-292 (U.S. filed Mar. 2, 2020).
The officers further argue that Brower v. County of Inyo dictates the outcome of the case. 489 U.S. 593 (1989). In Brower, the Court held that a seizure only occurs “when there is a governmental termination of freedom of movement.” Id. at 596–97. The Court should follow this precedent rather than Hodari D., the officers argue, because the language in Hodari D. that Torres relies on is dicta “referencing mere common law principles, not constitutional ones.” Brief of Respondents at 25, Torres v. Madrid, No. 19-292 (U.S. filed Mar. 2, 2020). Brower, in contrast, is on point and has an actual constitutional holding.
This case presents an opportunity for the Court to clarify past holdings and either enlarge or limit the scope of protections civilians have against government actors. The case drew amicus briefs from the ACLU, the Cato Institute, and the NAACP Legal Defense and Educational Fund, among others. Civil rights advocates will be closely watching its outcome.
Pereida v. Barr
No. 19-438, 8th Cir.
Preview by Amy Orlov, Online Editor
This case concerns the burden of proof required for the cancellation of removal for certain permanent residents by the Attorney General under section 240A(b) of the Immigration and Nationality Act (otherwise known as a 42B cancellation). 8 U.S.C. §§ 1229b(a), (b)(1) (2018). This issue arose from the deportation and removal status of Clemente Avelino Pereida, a native and citizen of Mexico. Pereida entered the United States illegally in approximately 1995. Pereida was charged with attempting to use a fraudulent social security card to obtain employment in the state of Nebraska—a charge for which he pleaded no contest. In 2009, the U.S. Immigration and Customs Enforcement placed Pereida into removal proceedings and charged him with removability.
To establish eligibility for a 42B cancellation, an individual must show (1) that he or she has been physically present within the United States for at least ten years, (2) that he or she has been a person of good moral character during their time in the United States, (3) that removal would result in exceptional or extremely unusual hardship to a qualifying relative, and (4) that he or she has not been convicted of any offense on various enumerated grounds of inadmissibility. § 1229b(b) (2018). Pereida admitted that he was eligible for removability due to his illegal entry. However, he applied for cancellation of removal because of the “exceptional and extremely unusual hardship” his removal would cause his child, a U.S. citizen. Petition for a Writ of Certiorari at 2, 6, Pereida v. Barr (U.S. filed Sept. 30, 2019) (quoting § 1229b(b)(1)(D)).
The fourth prong of 42B cancellation eligibility provides that an undocumented immigrant is ineligible for cancellation of removal if he or she has been convicted of a crime “involving moral turpitude,” including an attempt to commit such a crime. 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018); see § 1229b(b)(1)(C). It is ambiguous whether Pereida’s crime in Nebraska qualifies as a crime involving moral turpitude, and the parties dispute whether that ambiguity in the underlying crime should mean he is ineligible for cancellation of removal.
The U.S. Court of Appeals for the Eighth Circuit found that it was not possible to determine which statutory subsection formed the basis for Pereida’s conviction. There is currently a circuit split concerning whether an ambiguous record and statutory basis for conviction can lead to a disqualifying offense barring cancellation of removal under the Immigration and Nationality Act. The Eighth Circuit, along with the Fourth, Sixth, and Tenth Circuits have held that the undocumented immigrant has the burden of proof to establish eligibility for cancellation of removal. These circuits have further held that an undocumented immigrant fails to meet this burden of proof when the criminal record is inconclusive. The First and Ninth Circuits have held that any ambiguity should be resolved in favor of the undocumented immigrant. Following its precedent, the Eighth Circuit found that Pereida did not meet the burden of proof and, thus, did not establish that he was eligible for cancellation of removal. The Government echoes the Eighth Circuit’s conclusion and argues that Pereida’s failure to prove his eligibility for cancellation of removal before the three tribunals below decides the case against his eligibility for cancellation of removal. Brief for Respondent at 18–29, Pereida v. Barr (U.S. filed Feb. 27, 2020).
In Pereida v. Barr, the Supreme Court will be asked to resolve this circuit split and determine whether a criminal conviction can bar a noncitizen from seeking cancellation of removal when the record of conviction is ambiguous. In deciding this case, the Court has the opportunity to implement greater uniformity in the country’s immigration laws. Furthermore, this case will have consequences for many undocumented immigrants facing an increasing threat of deportation under similar circumstances as Pereida.
