March 2
Nasrallah v. Barr
No. 18-1432, 11th Cir.
Preview by Megan Walden
In Nasrallah v. Barr, the Court will resolve a long-standing circuit split in immigration law and determine whether the Court of Appeals has jurisdiction to review findings of fact in denials of withholding and deferral of removal cases.
Nidal Khalid Nasrallah, a Lebanese citizen, became a lawful permanent resident of the United States in 2007. In 2011, he pled guilty to two counts of receiving stolen property in interstate commerce. Based on these convictions, the government sought to remove Nasrallah from the United States as an alien convicted of a crime involving moral turpitude. An immigration judge determined that although Nasrallah’s crime was a crime involving moral turpitude, Nasrallah was eligible for deferral of removal under the Convention Against Torture because he had established a clear probability that he would be tortured on account of his religion and ties to the west if he returned to Lebanon.
On appeal, the Board of Immigration Appeals (“BIA”) determined that the immigration judge had erred in granting Nasrallah relief from removal, and the BIA reinstated the removal order. Nasrallah appealed this decision to the Eleventh Circuit, asking the court to reconsider the factual findings of the removal order. The Eleventh Circuit dismissed the appeal in part based on jurisdiction, reasoning that under 8 U.S.C. § 1252(a)(2), the court did not have jurisdiction to review the factual findings underlying his denial of removal relief.
Circuit courts are currently split 8-2 on this issue of reviewability. While the Seventh and Ninth Circuits currently consider both findings of fact and law in reviewing denials of deferral of removal, eight other circuits have determined that federal courts may only consider issues of law and constitutional claims in such reviews.
Law professors, legal services providers, and former immigration judges have submitted amici curiae in support of judicial review of findings of fact in these cases. These amici emphasize that relief under the Convention Against Torture affords a unique and absolute guarantee of protection from torture and argue that Congress did not intend to restrict judicial review for this important human rights protection.
Department of Homeland Security v. Thuraissigiam
No. 19-161, 9th Cir.
Preview by Amy Orlov
The “Suspension Clause” of the U.S. Constitution states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. 1, § 9, cl. 2. In 1996, the United States, under the direction of the Department of Homeland Security, passed a federal immigration law refusing any route of judicial appeal if the original frontline officer determines that there is no credible fear of persecution. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546 (1996). This effectively withholds the right of habeas corpus from these detainees.
Vijayakumar Thuraissigiam is a native and citizen of Sri Lanka as well as a Tamil, an ethnic minority group in Sri Lanka. The area he is from was known for prejudice, torture, and assassination. In the 1990s, Thuraissigiam fled Sri Lanka, stating fear of persecution, and sought asylum in the United States. After Customs and Border Protection arrested him, an asylum officer determined that there was no credible fear of persecution and recommended that Thuraissigiam be removed. Both a supervisor and an immigration judge affirmed this determination.
Following these decisions, Thuraissigiam filed a habeas petition in federal district court arguing that his expedited removal order violated his statutory, regulatory, and constitutional rights. The district court denied his petition, holding that the 1996 federal immigration law denied subject matter jurisdiction over his claims. The U.S. Court of Appeals for the Ninth Circuit reversed, finding that the disallowance of judicial review over Thuraissigiam’s claims does not meet minimal constitutional requirements under the Suspension Clause. The issue now before the Supreme Court is whether the United States can withhold access to federal court remedies from detained undocumented immigrants who have been designated for expedited removal.
Respondent will likely argue that deportation involves a restriction on liberty and that habeas corpus provides a necessary check against government detention and deportation powers. Furthermore, the Supreme Court has always recognized the right to judicial review before the deportation and expulsion of a noncitizen. The government will likely argue that the framers of the Constitution did not envision that the Suspension Clause would apply to undocumented immigrants seeking relief from deportation.
Depending on how strongly the Court rules on this issue, this case could have implications for a previous Supreme Court case, Boumediene v. Bush, which allowed enemy combatants at Guantanamo Bay to challenge their detention through habeas corpus. 553 U.S. 723 (2008).
March 3
Seila Law LLC v. Consumer Financial Protection Bureau
No. 19-7, 9th Cir.
Preview by Sean Lowry, Online Editor*
The main issue in Seila is whether the President’s ability to remove the single Director of the Consumer Financial Protection Bureau (“CFPB”), an agency with substantial executive authority, only for cause violates the Constitution’s separation of powers.
The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, created an “independent” CFPB housed within the Federal Reserve System and headed by a single Director. The Director of the CFPB is appointed by the President and confirmed by the Senate. 12 U.S.C. § 5491(a), (b)(1)–(2) (2018). The Director may generally remain in office for a term for five years and can only be removed by the President for cause, specifically for: “inefficiency, neglect of duty, or malfeasance in office.” See 12 U.S.C. § 5491(c)(1)–(3). The CFPB has powers to prohibit unfair, deceptive, or abusive practices in certain consumer finance industries, and it has enforcement powers to conduct investigations, issue subpoenas, and file lawsuits in federal court to impose civil penalties or obtain other equitable relief. Unlike many federal agencies, the CFPB is not subject to Congress’s annual appropriations process; instead, the Director requests funding from the Federal Reserve System to cover its reasonable expenses. See 12 U.S.C. § 5497.
This case arose after the CFPB issued a 2017 civil investigative demand to Seila Law, which offers legal services to individuals with consumer debt. The CFPB alleged Seila Law violated federal consumer financial law, and eventually filed a petition in federal district court to obtain Seila Law’s full compliance with the investigation. Seila Law challenged the constitutional validity of the CFPB. The district court rejected this argument.
While the case was pending for appeals before the Ninth Circuit, a divided D.C. Circuit issued its en banc decision in PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018). There, the D.C. Circuit upheld the constitutional validity of the CFPB, citing a number of Supreme Court precedents set in cases such as Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (upholding for-cause removal of members from the Federal Trade Commission based on “inefficiency, neglect of duty, or malfeasance in office”) and Morrison v. Olson, 487 U.S. 654 (1988) (upholding a for-cause-only removal restriction for independent counsel). Then–Judge Kavanaugh dissented from the majority in PHH, arguing that: the single head of CFPB can be distinguished from the multi-member independent agency in Humphrey’s Executor, and the officer in Morrison was an “inferior officer” in contrast to the head of the CFPB. See PHH Corp., 881 F.3d at 164 (Kavanaugh, J., dissenting). The Ninth Circuit later affirmed the district court’s opinion in Seila on similar reasoning. See CFPB v. Seila Law LCC, 923 F.3d 680 (9th Cir. 2019).
Counsel for Petitioner, Seila Law, makes two general arguments why the structure of the CFPB upsets the Constitution’s balance of separations of powers: (1) the CFPB concentrates broad, executive power in a single person that cannot be removed by the President other than for cause, and (2) the CFPB is largely exempt from the congressional appropriations process. Such a structure, petitioner argues, “could provide a blueprint for Congress to reshape the Executive Branch in dramatic fashion.” Petition for a Writ of Certiorari at 15, Seila Law LLC v. CFPB, No. 19-7 (U.S. filed June 28, 2019).
The Office of the Solicitor General, which typically defends federal agencies before the Court, filed a brief agreeing with Petitioner and has chosen not to defend the CFPB. (This has caused some commentators and amici to question whether the Court should dismiss the case as there is no longer a live “case or controversy” under Article III.) As a result, the Court appointed Paul Clement, former Solicitor General under President George W. Bush, as amicus curiae to defend the CFPB in oral arguments. The amicus brief makes three arguments in favor of upholding the CFPB: (1) the Petitioner lacks standing because the alleged “injury” (compliance with the investigation) is not traceable to the President’s authority to remove the Director, (2) the powers of the CFPB and the removal clause of its Director are similar to those found in other agencies, and (3) there is no constitutional basis for distinguishing the Director’s removal clause from the line of Court case precedent. Brief for Court-Appointed Amicus in Support of Judgment Below at 21, 33, Selia Law LLC v. CFPB, No. 19-7 (U.S. filed Jan. 15, 2020).
Liu v. Securities and Exchange Commission
No. 18-1501, 9th Cir.
Preview by Andrew Topal
The Securities and Exchange Commission (“SEC”) sued Liu in district court for using investors’ funds in a manner inconsistent with his prior written representations. The district court granted the SEC’s motion for summary judgment and ordered Liu to disgorge nearly $27 million, the full amount Liu raised from investors. The Ninth Circuit affirmed. Liu argues the SEC lacks statutory authority to seek disgorgement in cases brought in district court.
Generally, the SEC can bring enforcement actions for violations of federal securities law through its own administrative proceedings or in a district court. While the SEC is explicitly authorized to pursue “disgorgement” in its administrative proceedings, 15 U.S.C. § 77h-1(e) (2018), district courts are authorized to grant “permanent or temporary injunction[s],” 15 U.S.C. § 78u(d)(1) (2018), and “any equitable relief that may be appropriate or necessary,” 15 U.S.C. § 78u(d)(5) (2018). Disgorgement, an equitable remedy designed to ensure that wrongdoers do not profit from their wrongs, generally requires a wrongdoer to pay his victims the wrongfully received profit. Whether disgorgement is included in the realm of “any equitable relief that may be appropriate or necessary,” 15 U.S.C. § 78u(d)(5), which a district court may grant, is unclear.
In this case, the Court will decide whether the SEC has the statutory authority to seek disgorgement in federal court.
Liu attacks the SEC’s statutory authority to seek disgorgement in district court on five grounds. First, that Congress explicitly authorized the SEC to seek disgorgement through administrative hearings and did not explicitly authorize disgorgement in district court is evidence that Congress did not intend to grant the SEC the authority to seek disgorgement in district court. Second, the Court recently held that SEC disgorgement is punitive. See Kokesh v. SEC, 137 S.Ct. 1635, 1645 (2017). Punishment is generally associated with legal—not equitable—remedies, and this statute only authorizes district courts to grant equitable remedies. Third, the SEC’s actions are not equitable disgorgement because the government—not injured consumers—keeps the disgorged funds. Additionally, while disgorgement is typically calculated according to the wrongdoer’s profit, here—as in most SEC proceedings—it was determined by the victim’s loss, with the court refusing to deduct Liu’s legitimate business expenses. Fourth, disgorgement, “an order to pay money,” is not an injunction and therefore cannot fall within the SEC’s power to seek injunctions. Brief for Petitioners at 34, Liu v. SEC, 18-1501 (U.S. filed Dec. 16, 2019). Finally, Liu argues that the U.S. Code’s other “[s]cattered references” to disgorgement refer only to the SEC’s ability to seek disgorgement through its administrative procedures and are insufficient to implicitly authorize the SEC to seek disgorgement in district court. Id. at 14.
The SEC defends its statutory authority to seek disgorgement in district court. First, the SEC argues that the statute’s repeated use of the word “any” shows Congress’s intent to authorize expansive remedies. Second, the statue explicitly authorizes a court to issue “any equitable relief,” 15 U.S.C. § 78u(d)(5), and disgorgement has “traditionally [been] considered an equitable remedy,” Tull v. United States, 481 U.S. 412, 424 (1987). Additionally, the statute explicitly authorizes injunctions, and disgorgement can be an ancillary remedy to make the injunction effective. Furthermore, the SEC rebuts Liu’s arguments by pointing to (1) a savings clause clarifying that the authorized remedies supplement other actions, (2) Congress’s knowledge of the widespread use of disgorgement as an equitable remedy when it passed the statute, and (3) the fact that punitive features of disgorgement do not strip it of its underlying equitable nature.
This case has the potential to significantly impact both administrative law and the law of remedies. A number of federal agencies, including the FTC and FDA, also use implied equitable power, and almost 100 statutes define remedies by referring to courts’ equitable powers. Not surprisingly, this case has drawn a number of amici, including former agency commissioners and staffers of the SEC and FTC, interest groups, law professors, and at least 24 members of Congress.
March 4
June Medical Services LLC v. Russo
No. 18-1323, 5th Cir.
Preview by Michael Fischer, Online Editor
In early 2014, the Louisiana legislature passed Act 620, a law requiring that all physicians who perform or induce abortions have admitting privileges at a hospital located within thirty miles from the location where the abortion is performed or induced. La. Stat. Ann. § 40:1061.10 (2016). In August of that same year, a group of Louisiana abortion clinics and doctors brought suit alleging that Act 620 imposed an undue burden on their patients’ substantive due process right to have an abortion. The district court subsequently entered a temporary restraining order enjoining the state from enforcing any penalties under Act 620. In June 2015, the district court held a six–day hearing to consider the plaintiff’s preliminary injunction motion, which was granted in early 2016. During the pendency of this case, the Supreme Court struck down a nearly identical Texas law in Whole Woman’s Health v. Hellerstedt, finding that it imposed an undue burden on a woman’s right to have an abortion. 136 S. Ct. 2292 (2016). In light of this ruling, the district court held that Act 620 was unconstitutional and granted the plaintiff’s motion for preliminary injunction.
On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, finding that the district court overlooked significant differences between the facts of the instant case and those in Hellerstedt. The Supreme Court granted certiorari on October 4, 2019 to decide whether the Fifth Circuit’s decision to uphold Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the binding precedent in Hellerstedt.
Petitioner contends that the precedent established in Hellerstedt controls and, as such, materially indistinguishable laws are likewise invalid. Brief for Petitioners at 21–25, June Medical Services LLC v. Russo, No. 18-1323 (U.S. filed Nov. 25, 2019). In light of the detailed fact finding by the district court, which evinced no meaningful distinction between Act 620 and those in Hellerstedt, Petitioner argues that the Fifth Circuit’s decision to set those findings aside was baseless and erroneous. Id. at 26–45. Additionally, Petitioner asserts that since Act 620 provides no offsetting benefit given the burden it imposes on abortion rights, it is still unconstitutional even if the burdens were less than in Hellerstedt. Id. at 45.
Respondent counters that Petitioner has not met their burden under the ordinary rules of third party standing since they have failed to offer adequate proof of a close relationship with their patients and because their patients are not hindered in pursuing their own rights. Brief for the Respondent/Cross-Petitioner at 39–41, June Medical Services LLC v. Russo, No. 18-1323 (U.S. filed Dec. 26, 2019). With regard to the merits of the underlying case, Respondent argues that Petitioner’s interpretation of Hellerstedt would threaten generally applicable health standards by requiring a “fact-intensive analysis” and absolute medical necessity before rendering any abortion regulation valid. Id. at 53–60. Furthermore, Respondent argues that Hellerstedt should be overruled to the extent that is inconsistent with “bedrock principles” including rational basis review for abortion procedures that do not impose a substantial obstacle. Id. at 67–69. Finally, Respondent contends that the Fifth Circuit did not err in finding the district court erred when evaluating the burdens of Act 620, since Louisiana abortion providers can obtain admitting privileges under the Act and because at least three failed to seek such privileges in good faith. Id. at 73–78. Likewise, Respondent argues that the Fifth Circuit did not err when reviewing the district court’s assessment of the benefits under Act 620 since the Act improves credentialing and patient safety. Id. at 80–87.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
