November 2
U.S. Fish & Wildlife Service v. Sierra Club, Inc.
No. 19-547, 9th Cir.
Preview by Nick Contarino, Online Editor
The Environmental Protection Agency (“EPA”) submitted a regulation to the Fish and Wildlife Service and National Marine Fisheries Service (“Services”) for the Services’ review under the Endangered Species Act (“ESA”). Brief for Respondent at 1, U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. filed July. 27, 2020). The Services each issued a “jeopardy opinion” in which they found that the regulation violated the ESA’s prohibition on actions likely to jeopardize protected species. Id. at 1, 13. Consequently, this required the EPA to either terminate their regulations, implement an alternative approved by the Services, or seek an exemption. Id. at 1. EPA choose to add further protective measures to its regulation, and these measures were approved by the Services. Id. The Services have refused to disclose the two jeopardy opinions and connected materials. Id. at 2.
To ensure that agencies are accountable to the public, the Freedom of Information Act (“FOIA”) mandates disclosure of “the reasons” that “supply the basis for an agency policy actually adopted.” Id. at 1 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975)); 5 U.S.C. § 552. The Sierra Club argues that the jeopardy opinions (and connected materials) are required to be disclosed under FOIA because they “supply the basis for an agency policy actually adopted.” Id. at 27 (throughout their brief the Sierra Club refers to the jeopardy opinions as “jeopardy decisions”). The Services state that the documents are instead “discussion drafts recommending a decision that the Services never made, for reasons they never adopted, addressing a version of the EPA rule that never issued.” Reply Brief for the Petitioners at 3, U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. filed August 26, 2020) (throughout their brief the petitioners refer to the jeopardy opinions as “draft opinions”). The Services argue that the deliberative process privilege was properly invoked regarding said documents, and therefore they are exempt from compelled disclosure under Exemption 5 of FOIA. Id. at 1 (citing § 552(b)(5)).
The court of appeals, based on an in camera review, found that these the jeopardy opinions were “not deliberative.” Brief for Respondent at 18. The Sierra Club states that the Services have not met their burden under FOIA to sustain their claim of privilege. Id. at 23. The Sierra Club argues that the opinions had a decisional effect because after they were issued by the Services, the EPA sought to make changes to their proposed regulation so as to gain the approval of the Services. Id. at 19–20. The Sierra Club acknowledges that although the agencies deliberated over “how to change EPA’s Rule, following the Services’ jeopardy determination . . . they did not deliberate . . . whether the ESA required changes to the Rule” after the jeopardy opinions’ issuance. Id. at 19 (emphasis in original). The Sierra Club contends that the even though the Services’ jeopardy opinions may be “couched as . . . recommendation[s]” such decisions have “demonstrable legal consequences and operative effect” in light of the Services’ statutory role and expertise. Id.
The Services respond by noting that the jeopardy opinions were not “signed or adopted by the relevant agency decisionmakers, were not publicly issued, and were not treated as official commitments.” Reply Brief for the Petitioners at 3. They also state that the opinions had no “operative effect,” arguing any such claim is “inconsistent with the regulatory scheme, established practice, and the record.” Id. at 4. They conclude by stating that the Sierra Club cannot rely on the purported “operative effect” of the jeopardy opinions as that would essentially be “an effects-based approach” contrary to “the clear distinction that [the] Court has drawn between pre-decisional recommendations and post-decisional memoranda.” Id. at 4.
The Sierra Club states that precedent and statutory text requires the Court to take a fact-specific approach to the operative effect of “nominally ‘draft’ documents.” Brief for Respondent at 21. It further notes that courts are not required to defer to an agency’s formal designation of its documents. Id. It states that FOIA requires the disclosure of “intermediate decisions that shape later outcomes.” Id. at 20. It forewarns that a ruling contrary to the appellate court’s ruling would permit “the Services to conceal the reasons for exercises of ESA authority,” allowing them to review proposed regulations “without anyone knowing what impacts, to which species, the Services considered likely to involve jeopardy.” Id. at 21–22. The Sierra Club concludes that such a result “would be deeply antithetical to the accountability FOIA was enacted to provide.” Id. at 22.
Salinas v. U.S. Railroad Retirement Board
No. 19-199, 5th Cir.
Preview by Laura Stanley, Member
In this case, the Court will determine whether, under the Railroad Unemployment Insurance Act, the Railroad Retirement Board’s (“the Board”) denial of a request to reopen an earlier benefits determination is a “final decision” subject to judicial review.
In the Railroad Unemployment Insurance Act, Congress gave parties the ability to seek judicial review of “any final decisions of the Board.” 45 U.S.C. § 355(f). Courts treat § 355(f) as the “sole path for challenging Board decisions, to the exclusion of review under the Administrative Procedure Act.” Brief for the Petitioner at 9, Salinas v. U.S. R.R. Ret. Bd., No. 19-199 (U.S. filed Mar. 31, 2020).
There is currently a circuit split over whether the Board’s denial of a request to reopen a prior claim qualifies as a final, reviewable decision. The U.S. Courts of Appeals for the Fourth, Fifth, Sixth, Seventh, and Tenth Circuits hold that courts do not have jurisdiction in such cases. The US. Courts of Appeals for the District of Columbia and the Second and Eighth Circuits hold that § 355(f) grants the courts the jurisdiction to review such decisions.
Petitioner Manfredo Salinas began working at Union Pacific Railroad in 1979. After “a twelve-pound sledgehammer fell from a bridge, landing on Mr. Salinas’s hardhat,” he suffered ongoing neck pain and eventually needed spinal-fusion surgery. Brief for Petitioner at 11. Two years after returning to work, Mr. Salinas was struck by timber that fell from a truck, requiring another surgery. He tried to return to work but had to stop, and in 2006 he requested disability benefits that the Board denied. In 2013, Mr. Salinas successfully re-applied for disability benefits, and at the same time he requested a reopening of his prior application.
After the Board rejected Mr. Salinas’s request to reopen the prior application, he challenged the decision in the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition due to a lack of “jurisdiction under § 355(f) to review the Board’s decision not to reopen a prior claim for benefits.” Salinas v. U.S. R.R. Ret. Bd., 765 F. App’x 79, 80 (5th Cir. 2019) (citing Roberts v. U.S. R.R. Ret. Bd., 346 F.3d 139, 140 (5th Cir. 2003). Although the court followed existing circuit precedent, it “acknowledged [the] circuit split on this issue.” Id.
Salinas argues the statutory text in § 355(f) is unambiguous and grants the courts jurisdiction to review any final Board decision. Additionally, he argues that a decision not to reopen a prior application is “final” as it is ordinarily understood because it stops the agency review process. The Court has also historically applied a presumption of judicial review of agency action which can only be rebutted with clear direction from Congress. Brief for Petitioner at 18–24.
The government contends that judicial review under § 355(f) is limited to a list of specific final Board decisions mentioned in the statutory text of that section. The section was designed as a single scheme that “contemplates exhaustion of an adverse decision under Section 355(c), followed by exclusive judicial review of that same decision under Section 355(f) and (g).” Brief for the Respondent at 23, Salinas v. U.S. Railroad Retirement Bd., No. 19-199 (U.S. filed Jul 8, 2020). Additionally, allowing for judicial review of a decision not to reopen a prior application would frustrate the statutory limitations period and exhaustion requirements that Congress intended to place on benefit applicants. Brief for the Respondent at 39.
This case has policy implications for parties seeking benefits in the highly complex benefits system administrated by the Board. The Board “administers benefits to hundreds of thousands of railroad workers” and “the price of . . . errors can be intolerably high.” Brief for Petitioner at 28. If courts do not have jurisdiction to review the Board’s denial of a reopening request, agency errors will be left to self-monitoring.
November 3
Jones v. Mississippi
No. 18-1259, Miss.
Preview by Amy Orlov, Online Editor
Jones v. Mississippi concerns the issue of juvenile sentencing under the Eighth Amendment, which prohibits the infliction of cruel and unusual punishment. The case follows a string of recent controversies over whether juveniles can be sentenced to life in prison without parole.
In this case, the petitioner, Brett Jones, stabbed his grandfather to death during a fight. At the time of the stabbing, Jones was fifteen years old. In 2004, the state of Mississippi sentenced Jones to life in prison without the possibility of parole—the mandatory sentence at that time for murder in the state. However, the case was reexamined over time due to changing Supreme Court precedent on the issue of juvenile sentencing.
Two specific Supreme Court cases precede this case and provide the relevant law governing this issue. In 2012, the Court held in Miller v. Alabama that mandatory life sentences for juveniles without the possibility of parole are unconstitutional under the Eighth Amendment. 567 U.S. 460, 465 (2012). In holding this conclusion, Justice Kagan explained that mandatory life without parole for juveniles fails to consider a minor’s immaturity, impulsiveness, and family and home circumstances. Id. at 477. A few years later, in 2016, the Court held in Montgomery v. Louisiana that its previous ruling in Miller should be applied retroactively to juveniles who received mandatory life sentences without parole. 136 S. Ct. 718, 736–737 (2016).
However, Montgomery further clarified the holding in Miller by explaining that life without parole was barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at 734. Thus, this language created an exception to the bar against life without parole for juveniles for those minors who are permanently incorrigible.
Following the Court’s decision in Miller, Jones was re-sentenced in Mississippi under the new law for juvenile offenders. Despite hearing testimony about Jones’ abusive father and his struggle with depression, the Mississippi judge sentenced Jones once again to a life sentence without parole. Both the Mississippi Court of Appeals and the Mississippi Supreme Court affirmed Jones’ sentence on appeal.
At issue for the Supreme Court to decide is whether a sentencing authority must specifically find that a juvenile is permanently incorrigible before it may impose a life sentence without the possibility of parole under the Eighth Amendment. On appeal to the Court, Jones argues that his sentence is unconstitutional since the sentencing judge did not specifically find him permanently incorrigible under the Miller and Montgomery standards. See Brief for Petitioner at 19–20, Jones v. Mississippi, No. 18-1259 (U.S. filed June 5, 2020). Jones further argues that requiring a specific finding of permanent incorrigibility is the only way to give effect to Miller’s substantive holding that life without parole for a juvenile is an excessive circumstance that should only be used in the rarest of cases. See id. at 24. Mississippi contends that it adopted and implemented Miller’s factors for consideration in imposing life-without-parole sentences, which do not require a finding of permanent incorrigibility to impose a life sentence without parole. See Brief for Respondent at 21–23, Jones v. Mississippi, No. 18-1259 (U.S. filed Aug. 14, 2020). Furthermore, Mississippi relies on narrower interpretations of Miller and Montgomery, arguing that neither case invalidated discretionary life-without-parole sentences. See id. at 32.
If the Court rules in Jones’ favor, this case will follow with the Court’s pattern of protecting juveniles and recognizing their lack of emotional development. However, even if the Court sides with Jones, it will ultimately be up to that same Mississippi trial level court to decide whether he is permanently incorrigible. The unfortunate reality is that a favorable ruling from the Supreme Court provides offenders like Jones with no guarantee that their sentence will be overturned and no promise as to what a meaningful opportunity for release will look like.
Borden v. United States
No. 19-5410, 6th Cir.
Preview by Kevin Coleman, Articles Editor
In 1984, Congress enacted the Armed Career Criminal Act (“ACCA”) in response to a decades-long increase in violent crime. The law targeted recidivists by imposing a fifteen-year mandatory minimum when a defendant with three prior convictions for serious drug offenses or violent felonies is convicted in federal court for unlawfully possessing a firearm. 18 U.S.C. § 924(e)(1) (2018). Under the ACCA, a “violent felony” includes “any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use . . . of physical force against the person of another . . .” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). In Borden v. United States, the Supreme Court will decide whether this provision—known as the “elements clause”—applies to prior convictions for reckless, rather than knowing or intentional, conduct.
Charles Borden Jr. was arrested during a traffic stop that uncovered a firearm and drug paraphernalia. Brief for Petitioner at 10, Borden v. United States, No. 19-5410 (U.S. filed Apr. 27, 2020). Borden was charged in federal court for illegally possessing a firearm as a convicted felon, and he pled guilty. Id. Borden had two prior convictions for “intentional or knowing aggravated assault,” and one prior conviction for “reckless aggravated assault.” Id. at 11. At sentencing, Borden maintained that “reckless aggravated assault” was not a violent felony under § 924(e)(2)(B)(i), but the district judge disagreed and ruled that the ACCA applied. Id. at 11–12. Borden was sentenced to nearly a decade in federal prison. Id. at 12.
Underlying this interpretive question are two prior Supreme Court cases, the import and importance of which the parties dispute. First, in Leocal v. Ashcroft, the Court held that driving under the influence and thereby causing “[s]erious bodily injury to another” was not a “crime of violence” under 18 U.S.C. § 16(a). 543 U.S. 1, 9–10 (quoting Fla. Stat. § 316.193(3)(c)(2). Section 16(a) defines a “crime of violence” as “an offense that has as an element the use . . . of physical force against the person . . . of another.” 18 U.S.C. § 16(a). The Court emphasized that regardless of whether the word “use” “supplies a mens rea element,” it cannot be read to encompass accidental conduct. Id. at 9. More recently, in Voisine v. United States, the Court held that because reckless misdemeanor assault constitutes “use of force,” individuals convicted of recklessly assaulting “a domestic relation” fall within 18 U.S.C. § 922(g)(9)’s restriction on firearm possession by persons convicted of a “misdemeanor crime of domestic violence.” 136 S. Ct. 2272, 2278 (quoting § 922(g)(9)). The Court explained that to “use” means to employ something, and although the act of employing something must be “volitional,” the “word [‘use’] is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.” Id. at 2278–79 (emphasis added).
Borden argues that unlike the statute in Voisine, which dealt with “use of force” in the specialized context of gun possession by domestic abusers, the ACCA implicates “use of . . . force . . . against the person of another,” which requires that the force be targeted at another, excluding recklessness from the statute’s reach. See Brief for Petitioner at 18–20, 30, 32. Relying on Leocal, Borden emphasizes the similarity between reckless and negligent conduct. See id. at 22–23. In contrast, the Government asserts that the words “against another person” add no mens rea requirement to the ACCA, and contends that Voisine cannot be meaningfully distinguished. See Brief for the United States, at 10–14, 23–26, Borden v. United States, No. 19-5410 (U.S. filed June 8, 2020). The parties also dispute the rule of lenity’s application to the ACCA. See id. at 45–46; Brief for Petitioner at 42–44.
Borden is a case about consequences. The ACCA itself is a consequence of decades-old “tough on crime” legislation that, despite years of discussion about criminal justice reform, has not been substantially revised by Congress. It remains to be seen what consequences, if any, the Supreme Court’s decision will have on the legislative branch. Doctrinally, Borden carries serious consequences. The Court must evaluate the consequences of an expansive interpretation of the ACCA—according to Borden, bringing “drunk drivers, rowdy door openers, reckless parents, and fleeing shoplifters” within the law’s scope—and of a restrictive one—according to the Government, excluding second-degree, depraved heart murder from definition as a “violent felony.” See Brief for Petitioner at 18; Brief for the United States at 21–22, 37. Finally, Borden is a reminder of the continuing and substantial consequences of prior convictions—in Charles Borden’s case, thirteen years prior—and of the related inadequacy of our justice system’s ability to facilitate successful reentry and reduce recidivism.
November 4
Fulton v. City of Philadelphia
No. 19-123, 3d Cir.
Preview by Sahar Atassi, Member
The Supreme Court will hear a case that will help define the rights afforded to faith-based institutions. In this case, the city of Philadelphia barred Catholic Social Services (“CSS”) from placing children in foster homes because of CSS’s policy of not licensing same-sex couples to be foster parents.
CSS is a religious nonprofit agency that contracts with the city of Philadelphia to provide foster care. After the City became aware of CSS’s refusal to work with same-sex couples, the City informed CSS that if did not comply with the non-discrimination requirement within their contract, the contract would not be renewed. CSS refused, and the City stopped referring children to the agency. CSS sued, seeking an order to require the city to renew their contractual relationship while permitting CSS to turn away same-sex couples who wish to be foster parents. CSS cited violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act. The Court denied the request. On appeal, the Third Circuit affirmed the district court’s ruling.
Among the questions presented to the Supreme Court is whether the landmark case Employment Division, Department of Human Resources of Oregon v. Smith ought to be revisited. 494 U.S. 872 (1990). In Smith, the court held that while religious belief is always protected under the Free Exercise Clause, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. Id. at 878-79. Under Smith, if state law is general and neutral, then it does not trigger heightened scrutiny under the Free Exercise Clause.
Here, the Third Circuit, in upholding the City’s practice, relied heavily on Smith, and concluded that Philadelphia’s non-discrimination requirement was “a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy.” Fulton v. City of Philadelphia, 922 F.3d 140, 147 (3d Cir. 2019).
CSS argues that Smith should be overruled because it has not only dictated outcomes that are highly restrictive of Americans’ rights to freely exercise their faith, but because it has also resulted in inconsistent protection for religious freedom from circuit to circuit because of how federal circuit courts have split over how its application. CSS urges the court to instead “apply strict scrutiny to government actions infringing on religious exercise.” Brief for Petitioners at 19, Fulton v. City of Philadelphia, No. 19-123 (U.S. filed May 27, 2020)
The City, on the other hand, argues that the “case is an exceptionally poor vehicle to consider the validity of Smith” because it arises in the government contracting context and there is no historical evidence furthered to suggest that the free exercise of religion includes a “right to wield government power as one’s religion dictates.” Brief for City Respondents at 47, Fulton v. City of Philadelphia, No. 19-123 (U.S. Filed Aug. 13, 2020). The City also argues that even if Smith were overturned, the non-discrimination requirement within the contract would still satisfy strict scrutiny because it is narrowly tailored to serve the state’s compelling interests. Id. Furthermore, the City argues that stare decisis favors retaining Smith because it has support in original meaning and has served as the foundation of precedents and legislative enactments for decades. Id. at 48–52.
The Court could avoid revisiting Smith and instead rule narrowly on whether or not the city manifested anti-religious bias in its treatment of Catholic Social Services, using a similar approach as Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In Masterpiece Cakeshop, the Court did not decide the central issue of whether businesses may claim exemptions from anti-discrimination laws on religious grounds, but instead ruled narrowly that the baker involved in the case had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion. Id. at 1730–32.
While, as the City suggests, a government contracts case does not make for the most obvious choice to overturn Smith, it is worth noting that in early 2019 four of the justices signaled that they were open to reconsidering Smith. See Kennedy v. Bremerton Sch. Dist., cert. denied, 139 S. Ct. 634 (2019). Whether Smith is overruled or not, this case has the potential to have broad implications on non-discrimination protections. Given the current composition of the Court, this latest clash between freedom of religion and anti-discrimination is one to keep an eye on.
November 9
Niz-Chavez v. Barr
No. 19-863, 6th Cir.
Preview by Emma Liggett, Online Editor
Cancellation of removal is a form of immigration relief that allows nonpermanent residents to remain in the US if they have been here continuously for 10 years. 8 U.S.C.§ 1229b(b)(1) (2018). The “stop-time rule” enables the government to halt the tolling of that period of time by serving a “notice to appear” pursuant to 8 U.S.C. § 1229(a) (2018). See § 1229b(d)(1). In Pereira v. Sessions, the Court held that the stop-time rule will only be triggered if the notice contains “the specific time or place of the noncitizen’s removal proceedings,” as required by § 1229(a). 138 S. Ct. 2105, 2113–14 (2018). The issue in this case is whether “notice to appear,” as defined in § 1229(a), must include all of the required information in one document, or whether the government can provide the information in multiple documents over the course of time.
Guatemalan citizen Agusto Niz-Chavez has resided in the US since 2005. He fled his native country after neighboring villagers killed his brother-in-law and threatened to kill Mr. Niz-Chavez and his family if they did not leave. Brief for Petitioner at 17, Niz-Chavez v. Barr, No 19-863 (U.S. filed Aug. 6, 2020). In 2013, the government served him a notice to appear that failed to specify the date and time of his hearing, as required by § 1229(a). Id. at 18. Two months later, the government sent Mr. Niz-Chavez a hearing notice, with the date and time of his hearing at the immigration court. Id. A hearing was held in 2017, and the immigration judge denied Mr. Niz Chavez’s application for cancellation of removal. Id. The Board of Immigration Appeals affirmed this decision, despite Mr. Niz-Chavez’s presence in the US for twelve years, reasoning that the combination of the original notice to appear and the hearing notice, served in 2013, triggered the stop-time rule and thus the tolling of Mr. Niz-Chavez’s continuous years of residence in the US. Id. at 19.
Mr. Niz-Chavez argues that the text, structure, history, and purpose of § 1229(a) render the statute unambiguous in its requirement that a notice to appear be “a specific document that includes all of the closely related information listed in section 1229(a)(1).” Id. at 20. By calling it “a ‘notice to appear,’” the statute uses a “singular statutory term” that deems the notice one document that includes the required information in § 1229(a)(1). Id. The structure confirms this, Mr. Niz-Chavez argues, because the required information listed in § 1229(a)(1)(A)–(G) is interconnected, and only satisfies the notice requirement if it is all delivered together. Id. at 28. For example, subparagraph (A)’s “nature of the proceedings” requirement is closely related to subparagraph (G)’s “time and place” requirement. Id. History also supports this interpretation, as Congress removed the option of delivering time-and-place information in a separate document, which the predecessor to the notice to appear, the “order to show cause,” permitted. Id. at 21–22. Finally, requiring a notice to appear to include all relevant information in one document appropriately serves the statute’s purpose of “simplify[ing] the notice process and avoid[ing] the risk of ‘lapses . . . in the procedures for notifying aliens.’” Id. at 22 (quoting H.R. Rep. No. 104-469, pt. I, at 122 (1996)).
The Government contends that notice as required in § 1229(a)(1) is satisfied, and the stop-time rule triggered, if two documents together convey the required information. Brief for the Respondent at 13, Niz-Chavez v. Barr, No 19-863 (U.S. filed Sep. 25, 2020). This is supported by the text of the statute, which only specifies two requirements: the notice to appear must be in writing and it must be served in person or via mail. Id. at 10; see also 8 U.S.C. § 1229(a)(1) (listing the general requirements of notice to appear). Mr. Niz-Chavez, the Government argues, is calling for an atextual requirement that there be one specific, all-encompassing document. Id. at 11. Not only is this not required by the text of § 1229(a)(1), it does not advance the function of notice to appear, which is to provide “a mechanism for conveying substantive information” and to ensure that notice is efficiently served on noncitizens. Id. at 11–12. This, the Government argues, does not turn on whether the information is provided in one document or two, as long as the information is provided. Id. at 12.
While a two-step notice process may seem harmless in theory, it has the potential to injure noncitizens by fostering confusion and increasing the likelihood they miss critical hearings that determine the fate of their citizenship status. See Brief of American Immigration Lawyers Association, The American Immigration Council and Legal Services Providers as Amici Curiae in Support of Petitioner at 5–6, Niz-Chavez v. Barr, No 19-683 (U.S. filed Aug. 13, 2020). This is particularly concerning when individuals fled their native countries for the safety of their lives, as is the case here. The Court’s decision in this case may signal its approach in future cases, as its conservative bloc has now expanded.
Brownback v. King
No. 19-546, 6th Cir.
Preview by Austin Martin, Senior Online Editor
In this case, the Court must decide whether the “judgment bar” provision under the Federal Tort Claims Act (“FTCA”) prevents a plaintiff from filing a Bivens claim where the plaintiff’s FTCA claim against the government, which involves the same defendants and arises out of the same transaction of events, failed for lack of subject matter jurisdiction. 28 U.S.C. 1346(b), 2671 et seq. (2018); see § 2676. The case presents difficult issues of statutory interpretation and civil procedure, all stemming from a police misidentification with serious consequences.
In 2014, two plainclothes officers—Detective Todd Allen and FBI Special Agent Douglas Brownback—stopped and arrested James King, a 21-year-old college student, because they identified King as a wanted criminal suspect. The parties dispute whether the officers could be identified as police officers, but King began resisting arrest under the belief that he was being mugged. After a violent fight, the officers subdued King and took him to the hospital. Although it was clear King had been misidentified, he was then taken to jail and charged with various felonies for resisting arrest. After being acquitted of all charges at trial, King filed suit under the FTCA to hold the U.S. government vicariously liable for torts committed against him by the officers. Additionally, King alleged that the officers violated his Fourth Amendment rights and asserts claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The district court concluded that King failed to satisfy one of the Act’s six jurisdictional elements necessary to state a FTCA claim, leading the court to dismiss the claims for lack of subject matter jurisdiction. See 28 U.S.C. § 1346(b)(1). The district court also rejected King’s Bivens claims and held that the officers were entitled to qualified immunity. Brief for the Respondent at 1, Brownback v. King, No. 19-546 (U.S. filed Aug. 24, 2020). King pursued only the constitutional claims on appeal, but the government, representing the officers, asserted that those claims were precluded by the FTCA’s “judgment bar” provision, which bars a claimant receiving a judgment on a FTCA claim from “any action” related to the “same subject matter” against the same government employee. § 2676.
The Sixth Circuit agreed that King failed to state a FTCA claim, but disagreed that the dismissal precluded King’s constitutional claims. Instead, the court held that dismissal did not constitute a decision on the merits that would trigger the FTCA’s judgment bar. After further holding that the officers were not entitled to qualified immunity from King’s constitutional claims, the court remanded for further proceedings on those constitutional issues. The government filed a petition for certiorari.
In the government’s view, the dismissal for lack of subject-matter jurisdiction was a final judgment on King’s FTCA claims that “resolved the substantive liability of the United States.” Brief for the Petitioners at 14, Brownback v. King, No. 19-546 (U.S. filed June 19, 2020). Because King’s Bivens claims involve the same officers and the same facts, the government argues they are precluded by the FTCA’s judgment bar. The government urges the Court to consider Congress’s purpose for the judgment bar, which is to “prevent unnecessarily duplicative litigation” that would threaten and distract federal employees by ensuring that FTCA claims are resolved through a single, determinative judgment. Id. at 5, 14 (quoting Simmons v. Himmelreich, 136 S. Ct. 1843, 1849 (2016)).
King argues that the judgment bar “only applies to: (1) a separate lawsuit; after (2) a court with FTCA jurisdiction under Section 1346(b) enters a final judgment; that is (3) on the merits.” Brief for Respondent at 10. King brought his claims in a single lawsuit where the court dismissed his FTCA claims for lack of subject-matter jurisdiction, rather than on the merits. For both of these reasons, he argues, the judgment bar does not apply to his Bivens claims. The government responds that the courts of appeals have overwhelmingly rejected the argument that simultaneous FTCA and Bivens claims negate applying the judgment bar. Brief for Petitioners at 19. Furthermore, the government argues that the district court entered a “judgment” on the merits when it dismissed his FTCA claims because it was an appealable, final decision of the kind that Congress intended to resolve the merits of the present FTCA claims and preclude those in the future. Id. at 22–23 (citing Fed. R. Civ. P. 54(a) (2009)).
This complex case has drawn the interest of a number of amici, including civil rights organizations and members of Congress. Interestingly, no amici have submitted briefs in the government’s favor. The outcome will have significant implications for plaintiffs bringing FTCA and Bivens claims together, as is often the case. If the government prevails, it seems that future plaintiffs bringing Bivens claims alongside FTCA actions could risk losing their entire case if they cannot satisfy the jurisdictional elements of FTCA claim alone. Such great consequences warrant careful attention in this case.
November 10
California v. Texas
Nos. 19-840, 19-1019, 5th Cir.
Preview by Jacob Reiskin, Online Editor
California v. Texas is the next saga in the years-long Republican-led effort to overturn the Affordable Care Act (“ACA”). Shortly after the Republican-controlled Congress failed to repeal the ACA at the start of the Trump administration, the Congress successfully repealed the individual health insurance mandate through the Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054. This litigation concerns the way the mandate was repealed. The ACA initially required citizens to either pay a tax or get health insurance. The 2017 Amendment reduced the tax to zero. However, the law still technically requires that individuals possess health insurance, although there is no enforcement or penalty for not acquiring insurance. Since Chief Justice Roberts, writing for the majority in NFIB v. Sebelius, held the individual mandate (§ 5000A of the ACA) was constitutional because it was a tax, Texas argues the ACA now amounts to an unconstitutional command rather than a tax. 567 U.S. 519, 575 (2012); Brief for Respondent/Cross-Petitioner States at 2, Nos. 19-840, 19-1019 (U.S. filed June 25, 2020).
California, joined by the Democratic-controlled House of Representatives, petitioned the Court to overturn the district court and a divided Fifth Circuit after both found the individual mandate unconstitutional. From a policy perspective, the House argues that the respondents seek to use the judiciary to undo the democratic process and repeal the ACA against Congress’s will—which repeatedly failed to whip enough votes to repeal the Act. Opening Brief for the United States House of Representatives as Respondent Supporting Petitioners at 2, Nos. 19-840, 19-1019 (U.S. May 6, 2020).
Turning to the core arguments, California and the House of Representatives (supported by a flood of amici) make three main arguments: (1) neither Texas nor the individual cross-respondents have standing to file the challenge, (2) § 5000A, the amended individual mandate, is constitutional, and (3) even if § 5000A is unconstitutional, it is easily severable from the rest of the ACA.
Starting with standing, California argues that Texas does not have standing because its argument that some CHIP- and Medicaid-eligible people buy insurance because the law so requires is highly speculative. As the House argues, Texas does not identify a single person who actually did this. Additionally, those people are eligible for insurance regardless of § 5000A. See id. at 28. Likewise, petitioners argue that the individual plaintiffs were not forced to do anything and thus have no standing. Texas counters the standing arguments by writing that it is burdened by the administrative costs of the ACA generally. California and the House mainly emphasize that Texas and the individuals do not have a real injury and that finding that they do would mark a vast expansion of existing standing doctrine. Response and Reply Brief for the Petitioners–Cross-Respondents at 8, Nos. 19-840, 19-1019 (U.S. filed July 29, 2020).
As for the constitutionality of the mandate, Texas argues that § 5000A is unconstitutional under both the Necessary and Proper Clause and the Commerce Clause, and the ACA cannot be saved by the notion that § 5000A is a tax, as it was in NFIB, because there is no longer a tax. Brief for Respondent/Cross-Petitioner States at 30–36. California and the House argue that Texas misreads NFIB and relies too heavily on the dissent. California also explains that despite the fact that § 5000A provides that applicable individuals “shall . . . ensure that the individual . . . is covered under the minimal essential coverage,” it does not constitute a command because Congress routinely “extorts[s]” without creating a “mandatory duty.” Opening Brief for the Petitioners at 30–32, Nos. 19-840, 19-1019 (U.S. filed May 6, 2020). The House—in addition to driving home arguments about protecting democratic will and judicial restraint—adds that Congress merely repealed a tax in 2017, which does not exceed Congresses’ authority. Brief for The United States House of Representatives at 35–37.
Finally, California and the House argue that even if the penalty-free individual mandate was found unconstitutional, it could be easily severed from the rest of the ACA. They point out that Texas and the district court wrongly focus on the intent of the 2010 Congress, which believed that the mandate was necessary for providing affordable health care coverage. See Brief for the Petitioners at 40. Instead, severability analysis should focus on the 2017 Congress, which must have believed § 5000A was severable. Otherwise, it would not have simply amended one provision of a several-hundred-provision-long act that it repeatedly failed to repeal. The House adds that even if there is a mandate, the 2017 amendment demonstrates that “Congress intended it to be toothless.” Brief for The United States House of Representatives at 43.
Although the Court will hear legal arguments, the decision before it is the scraps of a political debacle that has played out since the passage of the ACA in 2010.
