[Encino Motorcars, LLC v. Navarro (2018) — Roberts Court (2017-2018) — Facts]
Encino Motorcars, LLC, which sells and services Mercedes-Benz cars, employed Hector Navarro and others as “service advisors.” Their role was to greet car owners upon arrival in the service area of the dealership, listen to customers’ concerns about their cars, evaluate the repair and maintenance needs of the cars, suggest services, write up estimates, and follow up with the customer while repair work was being done.
Navarro and the other plaintiffs alleged in federal district court that Encino Motorcars violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime wages. The district court dismissed the claim, finding that the FLSA exempts service advisors from its overtime compensation provisions. A panel of the Ninth Circuit reversed, using the principle of Chevron deference to rely on a regulation promulgated by the Department of Labor in 2011 interpreting the statutory exemption as not encompassing service providers. The US Supreme Court vacated the panel’s decision, holding that the regulation lacked sufficient explanation and thus was not entitled to deference. On remand, the Ninth Circuit formulated its own interpretation of the applicable FLSA provision and concluded that the exemption does not encompass service advisors.


[Encino Motorcars, LLC v. Navarro (2018) — Roberts Court (2017-2018) — Conclusion]
In a 5-4 decision, the Court reversed and remanded the case back to the Ninth Circuit, holding that because service advisors at car dealerships are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” 29 U.S.C. § 213(b)(10)(A), they are exempt from the FLSA's overtime-pay requirements.
Construing the relevant portions of the statute, the Court explained that a service advisor is clearly a “salesman” who sells services to customers for their vehicles. The Court also concluded that service advisors are “primarily engaged in . . . servicing automobiles” since they are integral in the process of providing maintenance and repair services to customers, even if they do not spend most of their time physically repairing vehicles. The Court rejected the Ninth Circuit’s use of the distributive canon, as well as its conclusion that FLSA exemptions should be construed narrowly in holding that service advisors were not exempt. It also rejected the appellate court’s reliance on a 1966-67 DOL Occupational Outlook Handbook and the FLSA legislative history, both of which the Court found unpersuasive.
Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.


[Hall v. Hall (2018) — Roberts Court (2017-2018) — Facts]
Ethlyn Hall, an elderly landowner in the Virgin Islands, filed suit against her son when she grew dissatisfied with his actions as her attorney. After Ethlyn passed away, one of her daughters, Elsa Hall, served as personal representative of the estate (the “Estate”) and continued to press Ethlyn’s claims against Samuel. Samuel brought claims of his own against Elsa in a separate proceeding. He argued that Elsa had poisoned his relationship with his mother, which caused him serious emotional distress. The Estate’s claims and Samuel’s claims were consolidated and tried together. A jury rejected the Estate’s claims and rendered a two million dollar verdict in Samuel’s favor. The District Court entered separate judgments on both aspects of the jury’s decision.
The Estate appealed the judgment with respect to its claims, but did not appeal the judgment in favor of Samuel because the district court vacated the jury verdict and his claims were still awaiting retrial. Samuel argue that the appellate court does not have jurisdiction over this appeal while his claims were still pending in the district court, and the Third Circuit agreed.
The Third Circuit relied on its binding precedent in Bergman v. City of Atlantic City, which held that when two cases have been consolidated for all purposes, a final decision on one set of claims is generally not appealable while the second set remains pending. The Estate argues that the Supreme Court’s decision in Gelboim v. Bank of America Corp. affirming the appealability of final judgment in a case that was part of a multi-district litigation should dictate the outcome of the case and permit the exercise of jurisdiction over the claims that have a final judgment.


[Hall v. Hall (2018) — Roberts Court (2017-2018) — Conclusion]
In an opinion written by Chief Justice Roberts, the Court unanimously held that when one of multiple cases consolidated under FRCP 42(a) is finally decided, that ruling confers upon the losing party the right to immediate appeal regardless of whether any of the other consolidated cases are still pending.
Because the meaning of the term “consolidate” as used in Rule 42(a) was ambiguous, the Court examined its legal lineage and concluded that it extended back at least to the first federal consolidation statute, enacted in 1813. Pursuant to that history, the Court found it to be clear that an individual case consolidated under the Rule maintains its independent character, at least to the extent that it is appealable when it is finally resolved, whether or not proceedings are ongoing in the other consolidated cases.
The Court also explained that under the consolidation statute that was in place for 125 years before Rule 42(a) was enacted, consolidation was a case management tool rather than a means of completely merging the consolidated cases into one, meaning that prior to Rule 42(a), a final judgment in a single case was immediately appealable. Because Rule 42(a) was explicitly modeled on the consolidation statute, and the term “consolidate” used therein is ambiguous, the term presumably carries forward the same meaning it had under the old statute.
The Court rejected the argument that the term “consolidate” took on a new meaning under Rule 42(a), namely that it permitted consolidation for either limited or all purposes. It also explained that the Federal Rules Advisory Committee would not have silently changed the meaning of a term that had been in use pursuant to a long-term, settled understanding.
Finally, the Court stated that it was not creating a rule that a district court could not consolidate a group of cases for all purposes, but it reiterated that in this context, cases retain their individual identities to the extent that final judgments in any specific case are immediately appealable.


[Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) — Roberts Court (2017-2018) — Facts]
In 1977, the Supreme Court, in Abood v. Detroit Board of Education, upheld against a First Amendment challenge a Michigan law that allowed a public employer whose employees were represented by a union to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer.
Illinois has a law similar to that upheld in Michigan. The governor of Illinois brought a lawsuit challenging the law on the ground that the statute violates the First Amendment by compelling employees who disapprove of the union to contribute money to it. The district court dismissed the complaint on the grounds that the governor lacked standing to sue because he did not stand to suffer injury from the law, but two public employees intervened in the action to seek that Abood be overturned. Given that Abood is binding on lower courts, the district court dismissed the claim, and the Seventh Circuit affirmed dismissal for the same reason.


[Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) — Roberts Court (2017-2018) — Conclusion]
In a 5-4 vote, the Court reversed and remanded, holding that the State of Illinois’ extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, meaning that Abood v. Detroit Bd. of Education, which held otherwise, was overruled.
In an opinion authored by Justice Alito, the Court began by stating that the district court had jurisdiction over Janus’ suit, as he was undisputedly injured in fact by the state’s agency fee system, and the harm he suffered could be redressed if he prevailed in court.
Moving on to the merits, the Court concluded that the state’s collection of agency fees from nonconsenting public employees was a violation of the First Amendment, and that Abood was incorrect in deciding otherwise. The Court stated that requiring individuals to endorse ideas they disagreed with runs counter to First Amendment principles, and that even under a more permissive standard than the “exacting” strict scrutiny that the Court had applied in evaluating the constitutionality of agency fees in the past, the Illinois scheme could not pass muster.
The Court explained that neither of Abood’s two justifications for agency fees, which were maintaining “labor peace” and eliminating the risk of “free riders,” could survive under this standard, finding that both problems could be mitigated through less restrictive means than agency fees. The Court also rejected newer state interests that had been asserted, which were to support bargaining with a sufficiently funded agent and increasing workforce efficiency, stating that unions could be effective without agency fees.
The Court further reasoned that stare decisis principles did not require deference to Abood, finding that Abood was poorly reasoned, lacked workability, and that over time it had become an “outlier” in the Court’s First Amendment jurisprudence. It also stated that Abood’s uncertain status, along with the short-term nature of collective bargaining agreements and unions’ ability to protect themselves when agency-fee provisions were critical to their bargains all militated against giving Abood decisive weight.
In light of these reasons, the Court concluded that the practice of states and public-sector unions collecting agency fees from nonconsenting employees was a violation of the First Amendment, and that no further agency fees or other forms of payment to a public-sector union could be collected, nor could attempts be made to collect such payments from employees without their consent.
Justice Kagan filed a dissenting opinion, which was joined by Justices Sotomayor, Ginsburg, and Breyer. The dissent faulted the Majority for upsetting the balance that Abood brought to public-sector labor relations, and for disregarding stare decisis principles for no special reason. It also criticized the Majority for issuing its decision without considering the consequences it could have in light of the fact that over 20 states had elaborate statutory schemes built on the Abood decision, thousands of contracts involving millions of employees relied upon those laws, and the government services that these public-sector employees performed impacted the lives of tens of millions of Americans.
Justice Sotomayor filed an additional dissenting opinion.


[McCoy v. Louisiana (2018) — Roberts Court (2017-2018) — Facts]
Robert McCoy was arrested on May 9, 2008, for the first-degree murders of the son, mother, and step-father of his estranged wife in a May 5, 2008, shooting. On May 15, 2008, McCoy was found to be indigent and appointed a public defender. Throughout his representation by the public defender and his subsequent representation by retained counsel McCoy maintained his innocence and repeatedly stated his desire to plead not guilty. In December 2009, McCoy moved for his public defender to be removed due to his belief that the public defenders were doing nothing to assist him in proving his innocence. The court granted McCoy’s motion to represent himself until he could find substitute counsel. McCoy subsequently found new counsel to represent him, and his counsel advised him to take a plea. When McCoy refused to take a plea, his counsel notified him that he intended to concede guilt, after which time McCoy moved to discharge him. The court denied McCoy’s motion to discharge his attorney as untimely. His counsel proceeded to concede McCoy’s guilt and argued for verdicts of second-degree murder on a theory of diminished capacity. The jury returned a verdict of first-degree murder on all three counts and recommended the death penalty.
The Louisiana Supreme Court denied the appeal and affirmed the convictions and the sentence, reasoning that defense counsel’s failure to follow McCoy’s direction not to concede guilt did not deny Mr. McCoy the assistance of counsel or create a conflict of interest because it did not completely abdicate the defense. Rather, the decision to concede guilt was a strategic choice by counsel.


[McCoy v. Louisiana (2018) — Roberts Court (2017-2018) — Conclusion]
Inherent in the Sixth Amendment right to assistance of counsel is the autonomy right of a criminal defendant to choose the objective of his defense and insist that counsel not admit guilt, even if the counsel's experience-based view is that admitting guilt offers the best chance of avoiding the death penalty. In a 6-3 opinion authored by Justice Ruth Bader Ginsburg, the Court distinguished decisions that may be made by counsel and those reserved to the client. Counsel may make decisions described as "trial management" such as whether to call a particular witness or raise certain objections to evidence. Reserved exclusively to the client are decisions including whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal. Whether to assert innocence as a defense is also within those decisions reserved to the client. Because the issue presented in this case involves client autonomy, not effectiveness of counsel, the error is considered "structural error" and is not subject to harmless-error review.
Justice Samuel Alito filed a dissenting opinion, in which Justices Clarence Thomas and Neil Gorsuch joined. In the dissent's view, the Court's holding arbitrarily distinguishes between counsel's conspicuously omitting discussion of one element of a crime and expressly conceding that element. The dissent further criticizes the majority for reaching an overly broad holding despite the unusual circumstances of the particular case before it.


[Rosales-Mireles v. United States (2018) — Roberts Court (2017-2018) — Facts]
Florencio Rosales-Mireles pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). His total criminal-history score was calculated according to the US Sentencing Guidelines Manual, but when calculating the criminal-history score, the probation officer erroneously counted a 2009 Texas conviction of misdemeanor assault twice. His total criminal-history score, combined with other factors, led a sentence of 78 months of imprisonment and a three-year term of supervised release. Rosales-Mireles did not object to the sentence after it was imposed.
The Fifth Circuit found that Rosales-Mireles met the three prongs necessary to meet the plain error standard. However, if all three prongs are met, the court has the discretion to remedy the plain error if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” The court declined to exercise its discretion in this case and therefore affirmed the judgment of sentence.


[Rosales-Mireles v. United States (2018) — Roberts Court (2017-2018) — Conclusion]
The Court reversed and remanded, holding that a miscalculation of a Federal Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights calls for a court of appeals to exercise its discretion under Federal Rule of Criminal Procedure 52(b) to vacate the defendant’s sentence in the ordinary case.
In a 7-2 opinion authored by Justice Sotomayor, the Court explained that the Fifth Circuit’s narrow shock-the conscience standard was too restrictive in defining the extent of the appellate court’s jurisdiction in this context. The risk of unnecessary deprivation of liberty that can result from this narrow approach undermines the fairness, integrity, or public reputation of judicial proceedings where a Guidelines error is plain, because it is ultimately the district court that is responsible for ensuring that it applies the correct Guidelines range. In addition, the Court stated that remands for resentencing are inexpensive compared to remands for retrial, and ensuring that Guidelines determinations are accurate furthers the Sentencing Commission’s goals of uniformity and proportionality in sentencing.
Justice Thomas authored a dissenting opinion, which was joined by Justice Alito.


[United States v. Microsoft Corporation (2018) — Roberts Court (2017-2018) — Facts]
Since 1997, Microsoft has operated a web-based email service available for public use without charge (most recently called Outlook.com). Much of the data associated with this service is saved on datacenters operated by Microsoft and its subsidiaries, which are located throughout the world.
In 2013, Microsoft was served with a search and seizure warrant for the data pertaining to a particular user. That user's data was stored solely in Microsoft's datacenter in Dublin, Ireland. Microsoft disclosed all other responsive information requested in the warrant but moved the magistrate judge to quash the warrant with respect to the user data stored in Dublin. The magistrate judge denied Microsoft's motion to quash, finding that the Stored Communications Act (SCA) authorized the district court to issue a warrant for "information that is stored on servers abroad." The magistrate judge held that the place where the government would review the content (the United States), not the place where the content was stored (Ireland) was the relevant place of seizure.
Microsoft appealed the magistrate judge's decision, and the district court affirmed after reviewing de novo. The district court also held Microsoft in civil contempt for refusing to comply fully with the warrant. The Second Circuit held that the SCA does not authorize courts to issue and enforce against US-based service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers and thus reversed the district court's denial of the motion to quash, vacated the finding of contempt, and remanded the case to the district court.


[United States v. Microsoft Corporation (2018) — Roberts Court (2017-2018) — Conclusion]
While this case was pending, Congress passed and the President signed into law the Clarifying Lawful Overseas Use of Data Act, which amended the Stored Communications Act, 18 U.S.C. § 2701, et seq., to require email providers to disclose emails in its "possession, custody, or control," even if the emails are stored outside the United States. The government then procured and served Microsoft with a new warrant pursuant to the amended law, and the parties agreed that the new warrant had replaced the original warrant at issue in this case. The Court explained that because there was no longer any live dispute between the parties, the case had become moot. The Court vacated the ruling on review and remanded the case to the Second Circuit with instructions to vacate the district court's contempt finding and its denial of Microsoft's motion to quash, and to direct the district court to dismiss the case as moot.


[Dahda v. United States (2018) — Roberts Court (2017-2018) — Facts]
Los and Roosevelt Dahda – twin brothers – were indicted on charges that they had conspired to acquire and distribute marijuana. Much of the evidence against the Dahdas was obtained through wiretaps of cell phones used by the co-conspirators, including the Dahdas. The wiretaps arose out of nine orders issued by a federal district court in Kansas. Prior to trial, the Dahdas brothers moved to suppress the information obtained from the wiretaps on the grounds that the wiretap orders exceeded the district court's territorial jurisdiction. The trial court rejected that argument, and both were found guilty and sentenced.
The Tenth Circuit upheld the decision allowing evidence from the cellphones to be used against the brothers. Although the court of appeals agreed that the wiretap orders exceeded the district court's territorial jurisdiction, it held that such defect did not "directly and substantially affect a congressional intention to limit wiretapping. The court identified two “core concerns” of Title III of the Omnibus Crime Control and Safe Streets Act of 1968—privacy and uniformity—that were not implicated by the Dahdas’ argument that the order exceeded the Kansas district court’s jurisdiction.


[Dahda v. United States (2018) — Roberts Court (2017-2018) — Conclusion]
A unanimous Court, with the exception of Justice Gorsuch who took no part in the opinion, affirmed the 10th Circuit’s ruling, but with different reasoning than the appellate court had used. In an opinion authored by Justice Breyer, the Court explained that the 10th Circuit had incorrectly applied United States v. Giordano, 416 U. S. 505, 527 (1974) in deciding the case. Giordano and its “core concerns” test only applied to the first subsection of the statutory provision at issue, which dealt with “unlawfully intercepted” communications, where in this case, the second subsection, regarding facially insufficient wiretap orders, was the portion in dispute.
The Court went on to hold that the wiretap orders authorized by the Kansas district court judge were not facially insufficient because they were not lacking any information that the wiretap statute required them to include, noting that “not every defect results in an insufficiency.” The Court also explained that the challenged language authorizing interception outside the court’s territorial jurisdiction was surplus, and thus did not render the orders facially insufficient.


[Ohio v. American Express Co. (2018) — Roberts Court (2017-2018) — Facts]
In the credit-card industry, there is what is called a “two-sided market.” Cardholders benefit from holding a card only if that card is accepted by a wide range of merchants, and merchants benefit from accepting a card only if a sufficient number of cardholders use it. Thus, the cardholder and the merchant both depend on widespread acceptance of a card.
In the United States, credit-card transaction volume is comprised primarily of four networks: Visa (45%), American Express (26.4%), MasterCard (23.3%), and Discover (5.3%). Because of the way Visa and MasterCard transactions are handled, they do not directly set certain fees, but merely influence these prices. In contrast, American Express is directly involved in the vast majority of transactions involving its cards. Thus, it maintains direct relationships with both its cardholders and merchants and directly sets the relevant fees.
In the 1980s, Visa and MasterCard adopted exclusionary rules preventing member institutions from issuing card products on the Amex or Discover networks, and ran ad campaigns highlighting Amex’s smaller network and higher merchant fees. In response, Amex strengthened contractual restraints designed to control how merchants treat Amex cardholders at the point of sale, known as non-discriminatory provisions (NDPs).
In 2010, the federal government and 17 states sued Amex, Visa, and MasterCard for unreasonably restraining trade in violation of the Sherman Act. They alleged that the credit card companies used anti-steering provisions to suppress competition and block competition from rival networks. In 2011, Visa and MasterCard entered into consent judgments and voluntarily rescinded their anti-steering provisions. Amex proceeded to trial, and the district court ruled that Amex’s NDPs violated US antitrust laws. Reviewing the district court’s findings of fact for clear error and its conclusions of law de novo, the Second Circuit reversed the district court, holding that the lower court should have weighed the NDPs’ net effect on both merchants and cardholders under the generally accepted “rule of reason.”


[Ohio v. American Express Co. (2018) — Roberts Court (2017-2018) — Conclusion]
Amex's anti-steering provisions do not violate federal antitrust law. In a 5-4 opinion authored by Justice Clarence Thomas, the Court first looked to the definition of the market in this context, finding that it consists of both cardholders and merchants. The "rule of reason" establishes a burden-shifting process for showing antitrust violations, the first burden being on the plaintiffs to show anticompetitive effects. Defining the market as it did, the Court found that the government needed to prove not only that the anti-steering provisions had an anticompetitive effect on the merchants (which it did show), but also that they had an anticompetitive effect on the cardholders (which it did not). Having found that the government failed to meet its burden in the first step of the "rule of reason" test, the Court affirmed the decision of the Second Circuit.
Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. In dissent, Justice Breyer criticized the majority for coming up with a market definition that has no basis in precedent and instead actually contradicts its holding in Times-Picayune Publishing Co. v. United States, 345 U.S. 594 (1953). Justice Breyer points to the finding by the district court of direct evidence of significant anticompetitive effects of the anti-steering provisions and would find that this evidence is sufficient to meet its burden under the "rule of reason" burden-shifting framework.


[Currier v. Virginia (2018) — Roberts Court (2017-2018) — Facts]
Michael N. Currier was indicted by a single grand jury and charged with burglary, grand larceny, and possession of a firearm as a convicted felon. Before trial, the defense and prosecution agreed to sever the firearm charge from the grand larceny and burglary charges. The case proceeded to trial on the burglary and grand larceny charges, and a jury acquitted Currier of both charges.
When the Commonwealth of Virginia sought to try Currier on the remaining charge of felon in possession of a firearm, he objected that collateral estoppel (issue preclusion) protections embodied in the Double Jeopardy Clause precluded his retrial. Notwithstanding his objections, Currier was tried, convicted, and sentenced. Currier filed a motion to set aside the jury verdict, and the trial court denied his motion. The Virginia Court of Appeals affirmed the lower court’s conviction, as did the Supreme Court of Virginia.


[Currier v. Virginia (2018) — Roberts Court (2017-2018) — Conclusion]
The Court affirmed the Virginia Supreme Court’s ruling in a 5-4 vote, holding that because Currier consented to a severance of the multiple charges against him, his second trial and resulting conviction, following an acquittal at his first trial, did not violate the double jeopardy clause.
Justice Gorsuch delivered the Court’s opinion with respect to Parts I and II, explaining that the double jeopardy clause bars a person from being tried more than once “for the same offence.” Currier argued that the Court’s precedent in Ashe v. Swenson, 397 U.S. 436 (1970) required a ruling in his favor. However, the Court stated that for a second trial to be precluded under Ashe, the Court must have been able to conclude that “it would have been irrational for the jury” in the initial trial to acquit without finding for the defendant on a fact essential to a conviction in the second trial. The Court then distinguished Ashe from the instant case by pointing out that even if Currier’s second trial could be classified as a retrial of the same offense under Ashe, he consented to it.
The Court went on to explain that the relevant precedent was Jeffers v. United States, 432 U.S. 137 (1977), in which the issue was a trial on a greater offense after an acquittal of a lesser-included offense. In Jeffers the Court held that if a single trial on multiple charges would be sufficient to avoid a double jeopardy violation, there could not be a violation where the defendant seeks two separate trials and persuades the trial court to grant the request. The Court stated that if consent could nullify a double jeopardy complaint in a situation involving a second trial for a greater offense, it could certainly overcome a double jeopardy complaint under Ashe. To hold otherwise would have been inconsistent with Jeffers and other Supreme Court precedent.
In Part III, Justice Gorsuch was joined by Chief Justice Roberts, Justice Thomas, and Justice Alito in concluding that civil issue preclusion principles could not be applied to criminal law through the double jeopardy clause to stop parties from retrying any issue or bringing in evidence regarding a previously tried issue.
Justice Kennedy filed a separate opinion concurring in part, finding that because Parts I and II resolved the case fully and properly, the scope of double jeopardy protections defined in Ashe did not need to be part of the Court’s analysis here.
Justice Ginsburg authored a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.


[Florida v. Georgia (2018) — Roberts Court (2017-2018) — Facts]
The Chattahoochee River starts in north Georgia, flows southwest past Atlanta, and then flows south along Georgia's border, first with Alabama, then with Florida. In the southwest corner of Georgia, the Chattahoochee joins the Flint River, to form the Apalachicola River, which flows south through northwest Florida and into the Apalachicola Bay in the Gulf of Mexico. At issue is the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin), which the US Army Corps of Engineers reports drains a total of 19,800 square miles in Georgia, Alabama, and Florida, which is distributed roughly into 74%, 15%, and 11%, respectively.
Pursuant to congressional authorizations, the Corps operates a system of dams in the ACF Basin based on a Master Manual governing all the dams and a reservoir regulation manual for each individual dam. The Master Manual was completed in 1958 and has not been comprehensively revised since then. There have been several lawsuits among the states seeking update and clarify the apportionment of the waters of the ACF Basin. The present action was filed by Florida, which alleges that the ecosystem and economy of the Apalachicola region "are suffering serious harm" because of Georgia's consumption and storage of water from the Basin. Florida invokes the US Supreme Court's original jurisdiction to ask that the Court equitably apportion the waters of the ACF Basin. For equitable relief to be granted, Florida must first show standing—that is, that it has suffered a wrong through the action of another state that can be corrected by the courts. Second, the state must show by clear and convincing evidence a "threatened invasion of rights . . . of serious magnitude." Third, the state must demonstrate by clear and convincing evidence that the benefits of apportionment substantially outweigh the harm that could result. If a state meets this burden, the Court must craft an equitable-apportionment decree. After lengthy evidentiary hearings, the Special Master filed a report recommending that the Court deny Florida's request for relief on the ground that "Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin."


[Florida v. Georgia (2018) — Roberts Court (2017-2018) — Conclusion]
Florida made a legally sufficient showing as to the possibility of fashioning an effective remedial decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin). In a 5–4 opinion authored by Justice Stephen Breyer, the Court held that the Special Master applied too strict a standard ("clear and convincing evidence") when he determined that the Court could not fashion a appropriate relief. A complaining state should not have to prove with specificity the details of a workable decree; rather, it need only to show that it is possible to fashion such a decree, applying principles of "flexibility" and "approximation." The Court reserved judgment as to the ultimate disposition of the case, finding only that Florida had made a legally sufficient showing of redressability. Further findings are needed to resolve many of the other evidentiary issues.
Justice Clarence Thomas filed a dissenting opinion, in which Justices Samuel Alito, Elena Kagan, and Neil Gorsuch joined. The dissent points out that the issue raised in this case is entirely about the balance-of-harms analysis and criticizes the majority for "mush[ing] the requirements from our precedents together." In the dissent's view, the precedents are abundantly clear, and after a full trial, Florida failed to meet its burden of showing by clear and convincing evidence that "the benefits of apportionment substantially outweigh the harm that could result."


[Texas v. New Mexico and Colorado (2018) — Roberts Court (2017-2018) — Facts]
The Rio Grande originates in Colorado, flows south into New Mexico, and flows into Texas near El Paso. The Rio Grande Compact apportions the water of the Rio Grande Basin among the states of Colorado, New Mexico, and Texas. Among other things, the Compact provides that Colorado must deliver a specific quantity of water to the New Mexico state line, and that New Mexico must then deliver a specific quantity of water to Elephant Butte Reservoir, a federal Bureau of Reclamation project that distributes water to New Mexico and Texas.
Texas alleges that New Mexico has depleted Texas's equitable apportionment of water under the Compact by allowing diversion of surface water and pumping of groundwater that is hydrologically connected to the Rio Grande below Elephant Butte. New Mexico contends that the Compact does not require it to deliver any specific amount of water to the Texas state line and thus that its actions do not violate the Compact.


[Texas v. New Mexico and Colorado (2018) — Roberts Court (2017-2018) — Conclusion]
In a unanimous opinion authored by Justice Neil Gorsuch, the Court held that the United States is permitted to intervene in this particular dispute over a compact between states to defend "distinctively federal interests" that a normal litigant might not be permitted to pursue in traditional litigation. To reach this conclusion, the Court assessed four considerations. First, the compact at issue in this case is inextricably intertwined with certain other contracts that implicate federal interests (the Rio Grande Project and the Downstream Contracts). Second, the United States has a critical role in the operation of the compact at issue. Third, a breach of the compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico. Finally, the United States has asserted its compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection. The Court specifically limited its holding so as not to answer the question whether the United States may initiate litigation to force a State to perform its obligations under the compact or expand the scope of an existing controversy between states.


[National Institute of Family and Life Advocates v. Becerra (2018) — Roberts Court (2017-2018) — Facts]
The National Institute of Family and Life Advocates and two other religiously-affiliated pro-life entities engaged in providing pregnancy-related services in the state of California (collectively “NIFLA”) sought to enjoin the enforcement of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “Act”). The law’s stated purpose is to ensure access to reproductive health services for all California women, regardless of income. NIFLA argued that the Act’s requirements that (1) licensed clinics provide information to patients about free and low-cost publicly funded family planning services, including contraception and abortion, and that (2) unlicensed clinics inform patients of their unlicensed status violated their free speech and free exercise rights under the First Amendment.
The U.S. District Court for the Southern District of California denied NIFLA’s motion for preliminary injunction, concluding that they had not demonstrated a likelihood of success on the merits, as required under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), as to either their free speech or free exercise claims.
The Ninth Circuit affirmed, ruling that the district court had not abused its discretion by denying the injunction. The Court rejected NIFLA’s argument that strict scrutiny should apply to the Act, because while the law compelled content-based speech by requiring NIFLA to disseminate information about low-cost family planning services, it did not discriminate based on viewpoint. Relying on its own precedent in the face of a circuit split regarding the level of scrutiny to apply in the abortion-related disclosure context, the Court reasoned that the type of speech at issue in this case was professional speech. It was therefore subject to intermediate scrutiny, which the family planning information disclosure requirement survived.
The Court also affirmed that the requirement that unlicensed facilities disclose their unlicensed status survived any level of scrutiny.
Finally, the Court agreed with the decision below that NIFLA was not entitled to a preliminary injunction on free exercise grounds, finding that the Act to be a facially neutral law of general applicability that survived rational basis review. The Supreme Court’s grant of certiorari did not include this issue.


[National Institute of Family and Life Advocates v. Becerra (2018) — Roberts Court (2017-2018) — Conclusion]
In a 5-4 vote, the Court reversed and remanded, holding that the pro-life pregnancy center petitioners were likely to succeed on their claim that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “FACT Act” or the “Act”) violated the First Amendment.
In an opinion authored by Justice Thomas, the Court began its discussion by explaining that the licensed notice was a content-based regulation that likely violated the First Amendment. The court rejected the Ninth Circuit’s characterization of the licensed notice as regulating professional speech, stating that the Court had never recognized “professional speech” as a separate category of speech that was subject to different free speech rules. The Court explained that it had only granted lesser protection to professional speech in two situations--where professionals were required to disclose “factual, noncontroversial information in their ‘commercial speech,’’’ and where states regulated professional conduct that incidentally implicated speech--and that neither of those lines of authority were applicable in the instant case. The Court further stated that it had a long history of protecting the First Amendment rights of professionals outside of those two contexts, emphasizing that imposing content-based regulations on professional speech created a risk of the government seeking to suppress unpopular ideas rather than advance legitimate regulatory objectives. The Court also concluded that the licensed notice did not survive even intermediate scrutiny, as it was “wildly underinclusive” in light of the Act’s stated purpose of providing low income women with information about the state-sponsored health services at issue.
The Court also held that the unlicensed notice unduly burdened protected speech. Assuming without deciding that rules requiring professionals to disclose “factual, noncontroversial information in their ‘commercial speech’” applied here, the Court stated that California was required to show that such disclosures were only justified if they addressed a potentially real and not simply hypothetical harm, and that here, the state had only presented hypothetical risks. And even if the state had overcome this requirement, the Court ruled that the unlicensed notice was still unduly burdensome because it “impose[d] a government-scripted, speaker-based disclosure requirement that [wa]s wholly disconnected from the State’s informational interest,” possibly leaving unburdened speakers whose messages aligned with the state’s views.
Justice Kennedy filed a concurring opinion, in which Chief Justice Roberts, and Justices Alito and Gorsuch joined.
Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. The dissent argued that both notice requirements were likely to pass constitutional scrutiny. Regarding the licensed notice, Breyer highlighted the Court’s precedent permitting state notice requirements as to abortion alternatives, such as adoption, and asked why a state law couldn’t require healthcare provider to provide information about abortion and childbirth services in this case. Breyer also rejected the majority’s assertion that the unlicensed notice was supported by only a “hypothetical” interest, as well as the conclusion that this particular requirement should be deemed facially unconstitutional due to the fact that it could create an undue burden in some situations.


[Lozman v. City of Riviera Beach, Florida (2018) — Roberts Court (2017-2018) — Facts]
Fane Lozman was a resident of the City of Riviera Beach (the “City”), where he was a vocal critic of the City’s plan to utilize eminent domain to redevelop the Riviera Beach Marina. After the redevelopment plan was approved, Lozman filed suit against the City under the Florida Sunshine Law, seeking to invalidate the City’s approval of the plan due to insufficient public notice for the emergency meeting during which the plan had been approved. The city council met in a closed session to discuss the lawsuit, and the meeting transcript seemed to reflect councilmembers suggesting that the City should employ intimidation tactics in fighting Lozman’s claim.
On November 15, 2006, Lozman attended a regularly scheduled city council meeting and was granted permission to speak during the non-agenda public comment portion of the meeting. When it was his turn to speak, he attempted to begin discussing corruption in local government, and a councilmember instructed him to discontinue his comments on that topic. Lozman repeatedly ignored the councilmember’s instructions, and she ultimately instructed a City police officer to arrest Lozman.
Lozman was charged with, inter alia, disturbing a lawful assembly. The prosecuting attorney concluded that there was probable cause for the arrest, but dismissed the charges on the grounds that successful prosecution was unlikely.
In February 2008, Lozman filed suit against the City under 42 U.S.C. § 1983 on the grounds that the City had arrested him at the city council meeting in retaliation for his opposition to the redevelopment plan. He alleged (1) retaliation by false arrest under the First Amendment, (2) unreasonable seizure under the Fourth Amendment, and (3) common law false arrest. The case went to trial in November 2014 with Lozman appearing pro se. The jury found in favor of the City on all claims. Lozman filed a motion for a new trial, which the district court denied.
On appeal, Lozman argued that the district court erred in denying his motion for a new trial because the jury’s finding of probable cause on the charge of disturbing a lawful assembly was against the great weight of the evidence. The Eleventh Circuit rejected this contention in light of the evidence presented at trial. It further explained that under its own precedent, a finding of probable cause bars a claim for false arrest under the First Amendment, the Fourth Amendment, and state law.
The Eleventh Circuit also rejected Lozman’s challenge to the district court’s instruction on retaliatory animus, stating that any error the instruction may have contained was harmless because the jury’s probable cause finding defeated Lozman’s retaliatory arrest claim as a matter of law. The appeals court also rejected Lozman’s challenge to the lower court’s jury instructions regarding the City’s authority to limit public comment during city council meetings. The Supreme Court’s grant of certiorari did not include these two issues.


[Lozman v. City of Riviera Beach, Florida (2018) — Roberts Court (2017-2018) — Conclusion]
Ruling 8-1, the Court vacated and remanded, holding that the existence of probable cause for Lozman’s arrest for disrupting a city council meeting did not bar his First Amendment retaliatory arrest claim under the circumstances of this case.
In an opinion authored by Justice Kennedy, the Court explained that its holding in this case was narrow. Lozman had conceded that probable cause for his arrest existed, but claimed that his arrest was in retaliation for his earlier protected speech, which took the form of an open-meetings lawsuit and public criticisms of city officials. However, the parties disagreed as to what standard should govern the allegations of retaliatory arrest. Lozman argued that the applicable precedent was Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), a civil case in which a teacher alleged retaliatory employment action in violation of his First Amendment rights, and the Court held that the employer could not be liable unless the alleged constitutional violation was a but-for cause of the employment termination. The City argued that Mt. Healthy should not provide the sole standard in this case, and that instead Hartman v. Moore, 547 U.S. 250 (2006), a criminal case which held that a plaintiff alleging retaliatory prosecution must show the absence of probable cause for the underlying criminal charge, should govern the case. But the Court responded that the question of what precedent applied to this issue need not be decided in a broad sense given that the facts of this case were so unusual in the retaliatory arrest context.
Indeed, Lozman did not sue the officer who made the arrest, and likely could not have succeeded on a retaliatory arrest claim against him as the officer seemed to have acted in good faith, and there was no indication that he had any knowledge of Lozman’s prior lawsuit or criticisms of the local government. Instead, Lozman alleged that city officials had implemented an official policy of intimidation against him due to his lawsuit and public statements criticizing them, and that their premeditated plan culminated in his arrest at the city council meeting. Further, in order for the city to be subject to liability under § 1983, Lozman would need to prove that he suffered harm as a result of an “official municipal policy,” distinguishing his claim from most cases alleging retaliatory arrest, which often involve on-the-spot judgements by individual police officers.
Given the uniqueness of this case in the retaliatory arrest context, along with the core First Amendment values at stake, the Court held that Lozman did not need to prove the absence of probable cause to maintain his retaliatory arrest claim. The Court also concluded that Mt. Healthy was the proper standard for assessing the retaliatory arrest claim on remand under these particular facts, but declined to address the requirements for proving such a claim in other contexts. The Court vacated the Eleventh Circuit’s ruling and remanded the case for further proceedings.
Justice Thomas filed a dissenting opinion.


[Minnesota Voters Alliance v. Mansky (2018) — Roberts Court (2017-2018) — Facts]
Minnesota Statute § 211B.II prohibits individuals from wearing political apparel at or around polling places on primary or election days. The text of the statute did not define “political”, so Minnesota election officials distributed policy materials to help identify which items fell within the scope of the law. Election officials received instructions to request that anyone wearing apparel which violated the guidelines laid out in the policy materials remove or cover it up. While officials were instructed to allow the person to vote regardless of their compliance, misdemeanor prosecution was a possible outcome, should an individual refuse the removal or cover-up request.
This case arose when Andrew Cilek, executive director for Minnesota Voters Alliance, was temporarily prevented from voting at his local polling place in November 2010 because he was wearing a t-shirt with a Tea Party logo and a button that advocated for the requirement of a photo ID to vote.
Minnesota Majority, Minnesota Voters Alliance, and Minnesota Northstar Tea Party Patriots, along with their association Election Integrity Watch (EIW), filed a lawsuit against the Minnesota Secretary of State and various county election officials to enjoin enforcement of the statute as unconstitutional. The parties claimed that the statute violated the First Amendment, facially and as-applied, and was selectively enforced, which also violated their Equal Protection rights.
Initially, the district court dismissed all claims. The Eighth Circuit affirmed as to the claims regarding Equal Protection and facial First Amendment violations. It reversed and remanded the as-applied First Amendment claim. The district court ultimately granted summary judgment against EIW, et al., on the as-applied First Amendment claim. Reviewing de novo the grant of summary judgment against EIW, the Eighth Circuit considered EIW's claim that the Minnesota statute was not reasonable, as applied to Tea Party apparel, because the Tea Party is not a political party in Minnesota. The Eighth Circuit was unpersuaded and held that the district court was correct in its ruling, since EIW had failed to present specific facts that showed banning Tea Party apparel was not reasonable, given the Minnesota statute's purpose. The Eighth Circuit held that EIW's argument that voters in Tea Party apparel were affected by selective enforcement had also failed, as it offered nothing more than speculation that voters wearing other forms of political apparel avoided enforcement of the statute. EIW, et al., then petitioned the Supreme Court to decide whether the lower courts’ ruling was correct.
EIW indicates in their petition for a writ of certiorari that there is a circuit split on the issues presented, where the Eighth Circuit’s ruling aligns with the D.C. and Fifth Circuit, which both have held that the government has authority to ban forms of political speech near polling places. The Fourth and Seventh Circuits have held, by contrast, that a complete ban on all political speech, absent any limiting principle, is unconstitutional, regardless of the location in which such speech has been banned.


[Minnesota Voters Alliance v. Mansky (2018) — Roberts Court (2017-2018) — Conclusion]
The Minnesota statute prohibiting individuals from wearing political apparel at a polling place violates the Free Speech Clause of the First Amendment. In a 7-2 opinion authored by Chief Justice John Roberts, the Court reasoned that a polling place is a nonpublic forum under its precedents, which means that the state may place reasonable limits on speech therein. Content-based restrictions on speech must be "reasonable and not an effort to suppress expression" based on the speaker's viewpoint. The text of the Minnesota statute made no distinction based on the speaker's political persuasion, so it would be permissible so long as it is "reasonable." One component of reasonableness is the presence of "objective, workable standards" guiding enforcement of the law. Because the statute in question does not define the term "political" nor any other key terms describing the types of apparel subject to the prohibition, the law affords too much discretion in enforcing the ban and is thus unreasonable.
Justice Sonia Sotomayor filed a dissenting opinion, in which Justice Stephen Breyer joined. The dissent would not have reversed and remanded the court of appeals below, as the Court did, but instead would have certified the question to the Minnesota Supreme Court to give the state courts "a reasonable opportunity to pass upon and construe the statute."


[Sveen v. Melin (2018) — Roberts Court (2017-2018) — Facts]
Mark A. Sveen and Kaye L. Melin were married in 1997. Sveen purchased a life insurance policy that year, and the following year he named Melin the primary beneficiary, and his children the contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen died in 2011.
Minnesota had changed its probate code in 2002 to apply a revocation-upon-divorce statute to life insurance beneficiary designations. Sveen had never changed the designation on his life insurance policy, and Melin was therefore still listed as the primary beneficiary at the time of his death.
The insurance company filed an interpleader to establish whether the revocation-upon-divorce statute nullified this designation. Sveen’s children and Melin cross-claimed for the proceeds, and the district court granted summary judgment in favor of the children, rejecting Melin’s contention that retroactively applying the revocation-upon-divorce statute violated the Contract Clause of the Constitution.
The Eighth Circuit reversed and remanded, finding that under its own precedent, the dispositive issue in this context was the right of the policyholder to have his wishes carried out in accordance with his intentions at the time he signed the contract. Applying the revocation-upon-divorce statute retroactively would deprive him of that right in violation of the Contract Clause.


[Sveen v. Melin (2018) — Roberts Court (2017-2018) — Conclusion]
In an 8-1 opinion authored by Justice Kagan, the Court reversed and remanded, holding that the retroactive application of Minnesota’s revocation-upon-divorce statute, which automatically nullifies an ex-spouse’s beneficiary designation on a life insurance policy or other will substitute, does not violate the contracts clause of the Constitution.
The Court explained that not all laws affecting pre-existing contracts violate the contracts clause. There is a two-step inquiry to determine whether such a law is in fact unconstitutional in this context. The first question is whether the state law “operated as a substantial impairment of a contractual relationship.” This inquiry involves three sub-issues, which are the extent to which the law 1) undermines the contractual bargain, 2) interferes with a party’s reasonable expectations, and 3) prevents the party from safeguarding or reinstating his rights. If those factors reflect a substantial impairment, the Court must then ask whether the law has been crafted in an “appropriate” and “reasonable” way to advance “a significant and legitimate public purpose.”
In this case the Court stopped its inquiry after considering only the first factor, finding that the Minnesota statute did not substantially impair pre-existing contractual arrangements. It found that first, the law in this case was intended to reflect the policyholder’s intent that he or she likely would not want their life insurance proceeds to pass to a former spouse, thus supporting rather than undermining the contractual scheme. Second, the law was not likely to thwart the policyholder’s expectations, as the policyholder could not reasonably expect a beneficiary designation to stay in place after a divorce. Third, the law in this case served as a mere default rule, which the policyholder could undo at any time by sending in a new beneficiary designation form. The Court stated that such a minimal paperwork burden does not violate the contracts clause under its well-established precedent.
Justice Gorsuch authored a dissenting opinion.


[Hughes v. United States (2018) — Roberts Court (2017-2018) — Facts]
Erik Hughes pleaded guilty to drug and firearm offenses and entered into a plea agreement with the government under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The district court accepted the agreement and sentenced Hughes accordingly. Hughes then sought a sentence reduction under 18 U.S.C. § 3582(c)(2), which permits defendants who have been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The district court relied on Justice Sotomayor’s concurring opinion in Freeman v. United States, 564 U.S. 522 (2011) in determining that Hughes was ineligible for a sentence reduction because he was not sentenced “based on a sentencing range,” but on a plea agreement. The Eleventh Circuit affirmed the district court’s holding.


[Hughes v. United States (2018) — Roberts Court (2017-2018) — Conclusion]
In a 6-3 opinion authored by Justice Kennedy, the Court held that a sentence imposed pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) (“Type C”) plea bargain is “based on” the defendant’s Federal Sentencing Guidelines range as long as that range was a component of the framework the court used in imposing the sentence or accepting the plea bargain, meaning that in this case, Erik Hughes could seek a sentencing reduction under 18 U.S.C. § 3582(c)(2).
The Court explained that a central purpose of the Guidelines is uniformity in sentencing. However, in the wake of the Court’s 4-1-4 decision in Freeman v. United States, 564 U.S. 522 (2011), which considered the question of a defendant’s eligibility for a reduced sentence under § 3582(c)(2) after entering into a Type C agreement, some circuits followed the plurality opinion while others followed Justice Sotomayor’s concurrence, depending on how they applied Marks v. United States, 430 U.S. 188 (1977).
In seeking to resolve this split in authority, the Court stated that a district court imposes a sentence that is “based on” the Guidelines range if the range was part of the basis the court used in exercising its discretion to impose a sentence. District courts are required to use the Guidelines range as a starting point for calculating sentences in every case, including cases involving Type C agreements. As such, in most cases, sentences imposed pursuant to Type C agreements are “based on” the defendant’s guidelines range. Therefore, when the Sentencing Commission lowers the range for a particular offense, unless there is a clear showing that the court would have imposed the same sentence regardless of the Guidelines range, a defendant who has entered into a Type C agreement related to that offense will generally be eligible for a reduction in sentence under § 3582(c)(2). The Court stated that this interpretation, as a systemic, structural matter, best supported the sentencing system Congress put into place.
Pursuant to this reasoning and in light of the fact that the Guidelines range was a basis for Hughes’ sentence, the Court held that he was eligible for relief under § 3582(c)(2) given that the range had been lowered
The Court declined to decide the question of how Marks should properly apply.
Justice Sotomayor filed a concurring opinion in which she explained that she was joining the majority in full in the instant case in order to help resolve the confusion that had arisen in the aftermath of Freeman, but stated that she still believed that her concurrence in Freeman set forth the most convincing application of § 3582(c)(2)’s text.
Justice Roberts authored a dissenting opinion, in which Justices Alito and Thomas joined.


[United States v. Sanchez-Gomez (2018) — Roberts Court (2017-2018) — Facts]
Rene Sanchez-Gomez and defendants in three other criminal cases (collectively “Defendants”) objected to a policy (the “Policy”) of the U.S. District Court for the Southern District of California (the “District”) which required them to appear for pretrial non-jury proceedings in full physical restraints. The Policy, which applied to most in-custody defendants appearing in such proceedings, was proposed by the U.S. Marshals Service and accepted by the District’s judges.
The magistrate judges in all four cases overruled the Defendants’ objections to the Policy. The Defendants appealed these denials to the district court, and also filed emergency motions challenging the Policy’s constitutionality. The district court denied all relief, and the four cases were consolidated before the 9th Circuit.
The 9th Circuit, sitting en banc, construed the Defendants’ appeals as petitions for writs of mandamus under its supervisory authority, and found that it had jurisdiction to review the Policy’s constitutionality. It explained that while the individual Defendants’ claims may be moot by the time of review due to their criminal cases ending and the Policy having been changed, under the Supreme Court’s precedent in Gerstein v. Pugh, the Defendants represented a broader group of similarly situated people who could be injured should the Policy be reinstated. Thus, applying the capable-of-repetition-yet-evading-review mootness exception, the supervisory mandamus case was not moot. However, because the Policy was no longer in effect, the court withheld a formal writ of mandamus.


[United States v. Sanchez-Gomez (2018) — Roberts Court (2017-2018) — Conclusion]
A unanimous Court held that the case is moot. In an opinion authored by Chief Justice John Roberts, the Court found that the appellate court's reliance on Gerstein was misplaced, as that case does not support a freestanding exception to mootness outside the class action context. Further, the mere presence of allegations that might, if resolved in respondents' favor, benefit other similarly situated individuals does not save their case from mootness. Additionally, the Court found unpersuasive the respondents' arguments that their claims fall within the exception to mootness by virtue of being "capable of repetition yet evading review" because the possibility that a person will be criminally prosecuted is insufficient to establish judicial standing.


[Upper Skagit Indian Tribe v. Lundgren (2018) — Roberts Court (2017-2018) — Facts]
Sharline and Ray Lundgren and the Upper Skagit Indian Tribe (the “Tribe”) own adjacent pieces of property in Skagit County, Washington. The space between a fence running across the width of the Tribe’s property and its southern border became a subject of dispute between the parties after the Tribe attempted to assert ownership of it in 2013.
The Lundgrens’ property had been in their extended family since approximately 1947, during which time they had always treated the fence as the property line. In 2013 the Tribe purchased land to the north of the Lundgrens’ property, and were apparently not aware of the fence at that time. When they discovered it, they informed the Lundgrens of their intention to assert ownership rights over the disputed portion of land.
In 2015, the Lundgrens filed suit to quiet title to the property, seeking summary judgment on the basis that they had acquired the disputed property by adverse possession or mutual acquiescence and recognition long before the Tribe bought its parcel. The Tribe moved to dismiss the case for lack of subject matter jurisdiction based on sovereign immunity, and because the Lundgrens could not join them as a necessary and indispensable party. The trial court denied the Tribe’s motion, and the Tribe sought direct discretionary review. In the resulting ruling, the court granted the Lundgrens’ motion for summary judgment, finding that they had established legal ownership of the disputed property through adverse possession and mutual recognition and acquiescence.
The Washington Supreme Court accepted the Tribe’s amended motion for discretionary review of both prior orders, and affirmed. The court rejected the argument that the case should be dismissed for lack of jurisdiction due to the Tribe’s sovereign immunity, which neither the Tribe nor Congress had waived with regard to quiet title actions. The court found that because it had in rem jurisdiction, the Tribe’s sovereign immunity did not create a barrier to jurisdiction.


[Upper Skagit Indian Tribe v. Lundgren (2018) — Roberts Court (2017-2018) — Conclusion]
In a 7-2 opinion by Justice Neil Gorsuch, the Court vacated the judgment below and remanded the case to the Washington Supreme Court to address the common-law question of sovereign immunity. The majority clarified that its decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation addressed only a question of statutory interpretation, not the question presented here of whether Indian tribes have sovereign immunity in in rem lawsuits. The respondents ask the Court to affirm on an alternative, common-law ground—that the tribe cannot assert sovereign immunity because the suit relates to immovable property located in Washington state and purchased by the tribe.
Chief Justice John Roberts filed a concurring opinion in which Justice Anthony Kennedy joined. Justice Clarence Thomas filed a dissenting opinion in which Justice Samuel Alito joined.


[China Agritech v. Resh (2018) — Roberts Court (2017-2018) — Facts]
China Agritech is a holding company incorporated in Delaware, with a principal place of business in Beijing. The company represented that it manufactured and sold organic compound fertilizers and other agricultural products to farmers in over two dozen provinces throughout China. It listed its shares on NASDAQ in 2005, and in 2009 reported to the SEC a net revenue of triple the amount it had reported four years earlier. In 2011, company shareholders alleged fraudulent business practices by China Agritech. The company denied the allegations and announced that it would conduct an internal investigation, and subsequently dismissed its independent auditor. Later that year, NASDAQ halted trading in and initiated delisting proceedings against China Agritech’s stock, and in 2012 the SEC revoked the stock’s registration.
Shareholders sued China Agritech in two successive putative class actions in 2011 and 2012, alleging various securities law violations against the company and several individual defendants. Class certification was denied in both cases.
Shareholder Michael Resh brought a third putative class action against the company and individual defendants in 2014, alleging securities law violations arising from the same facts and circumstances as the first two cases. China Agritech moved to dismiss the complaint on the basis that it had been filed after the two year limitations period applicable under the Securities Exchange Act of 1934. Resh and the additional plaintiffs argued that under the American Pipe & Construction v. Utah line of cases, the limitations period had been tolled on their claims during the pendency of the two prior class actions. The district court rejected this contention, finding that under American Pipe and its progeny, the limitations period was tolled as to individual class members, but that the Supreme Court had not decided whether an entirely new class action based on a substantially identical class was subject to the same rule. It ruled that the limitations period was therefore tolled as to the individual claims of the named plaintiffs in the instant case, but not as to the putative class.
The Ninth Circuit reversed, with a three-judge panel finding that the plaintiffs’ class action would not be time-barred where: (1) the named plaintiffs had been unnamed in the two prior suits, which were against many of the same defendants and involved the same underlying events; (2) the two prior cases were timely; (3) class certification was denied in the earlier actions; and (4) pursuant to the American Pipe line of cases, the named plaintiffs’ individual claims were tolled during the pendency of the two prior class actions. The panel explained that permitting such claims to go forward was consistent with the policy goals of tolling in general. The panel further stated that in light of FRCP 23’s requirements, as well as principles of comity and preclusion, the existing legal system contains sufficient safeguards to prevent litigants from filing repetitious actions in light of this ruling.


[China Agritech v. Resh (2018) — Roberts Court (2017-2018) — Conclusion]
In a unanimous opinion authored by Justice Ginsburg, the Court reversed and remanded, holding that upon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing a individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations.
The Court explained that American Pipe and Crown, Cork & Seal Co. v. Parker addressed only putative class members wishing to file individual suits after a class certification denial. The Court reasoned that the “efficiency and economy of litigation” that support tolling of individual claims under American Pipe do not support the commencement of untimely successive class claims, stating that any additional class claims should be filed early in relation to the first lawsuit seeking class certification. The economy of litigation does however favor delaying individual claims until class certification has been denied.
The Court explained that this interpretation is supported by FRCP 23, as well as the securities litigation statute governing the case, which evince a preference for resolving class certification questions and grouping class filings at the outset of the litigation. The Court stated that there is little reason to allow plaintiffs who passed up opportunities to take part in pending class claims to become involved several years later. The Court further explained that plaintiffs who commence class actions after the expiration of the limitation period are not likely to qualify as diligent in asserting claims and seeking relief, which is typically a requirement for equitable tolling. Further, the Respondents’ proposed interpretation would allow the statute of limitations to be extended over and over again for a new lead plaintiff after each class certification denial, a result not envisioned by American Pipe.
Justice Sotomayor filed an opinion concurring in the judgment.


[Koons v. United States (2018) — Roberts Court (2017-2018) — Facts]
Timothy D. Koons and four other defendants were convicted of methamphetamine conspiracy offenses. During the sentencing phase of each defendant’s trial, the government moved to reduce the defendant’s sentence under 18 U.S.C. § 3553(e) for providing substantial assistance to the prosecution in the prosecution or investigation of another person. The district court in each case granted the government’s motion and reduced the defendant’s sentence to a term below the statutory mandatory minimum. All five defendants subsequently moved for further sentence reductions under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce the sentence of “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
The Eighth Circuit declined to follow the Fourth Circuit panel majority in holding that defendants are eligible for discretionary § 3582(c)(2) reductions. Rather, the Eighth Circuit interpreted the plain language of the statute to require the sentence be based on a range subsequently lowered by the Commission, and that in these five cases the sentence was based instead on the mandatory minimum and their substantial assistance. Accordingly, the Eighth Circuit affirmed the district court’s denial of sentencing reductions, but for reasons different from those used by the district court.


[Koons v. United States (2018) — Roberts Court (2017-2018) — Conclusion]
In a unanimous opinion authored by Justice Alito, the Court held that the petitioners were not eligible for sentence reductions under 18 U.S.C. § 3582(c)(2) because their sentences were not “based on” their lowered Federal Sentencing Guidelines ranges, but rather were “based on” the mandatory minimum sentences for their offenses and their substantial assistance to the government. The Court explained that for a sentence to be “based on” a lowered Guidelines range, the range needed to have played at least a relevant part in a defendant’s sentencing. In this case the district court did not consider the Guidelines ranges in its ultimate sentencing decisions, but instead relied on the applicable mandatory minimums.


[Benisek v. Lamone (2018) — Roberts Court (2017-2018) — Facts]
In 2011, the State of Maryland engaged in a process of redistricting, which in that state entails two parallel procedures: a public-facing procedure led by the Governor’s Redistricting Advisory Committee and an internal procedure involving Maryland’s congressional delegation and a consulting firm called NCEC Services, Inc. NCEC developed sample maps using voter demographic data, a computer program, and a proprietary metric that predicts the likelihood of Democratic candidate success. In comparison to sample maps submitted by third parties, the NCEC-developed maps were assessed to be more likely to see Democratic candidate success. There is no evidence that the final map that was enacted to law was one of the ones developed by NCEC; rather, former Governor Martin O’Malley testified that the legislative director and staff from the Maryland Department of Planning likely created the final document. After the 2011 plan was implemented, the “Cook Partisan Voting Index” rated the Sixth District as a “likely” Democratic seat, whereas before the 2011 plan, the Sixth District was a “safe” Republican seat. In the 2012 congressional election, Democrat John Delaney defeated incumbent Republican congressman Roscoe Bartlett by a 20.9% margin. Subsequent elections saw other Democratic candidates succeeding over Republican candidates.
The plaintiffs sought a preliminary injunction barring the State from enforcing the 2011 redistricting plan and requiring the State to implement a new map in advance of the 2018 midterm elections. A majority of the district court panel denied the motion and stayed the case pending the outcome of Gill v. Whitford, another gerrymandering case before the US Supreme Court.


[Benisek v. Lamone (2018) — Roberts Court (2017-2018) — Conclusion]
Without resolving the substantive questions, the Court held, in an unsigned per curiam opinion, that the district court did not abuse its discretion in denying the Republican voters' motion for a preliminary injunction. To succeed on a motion for preliminary injunction, the party seeking the injunction must show likelihood of success on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public's interest. Even assuming, contrary to the district court's findings, that the plaintiffs were likely to succeed on the merits, the Court found that they had unreasonably delayed seeking a preliminary injunction and that the public interest was not served in granting the injunction. Thus, it was not an abuse of discretion for the district court to deny the motion for preliminary injunction.


[Abbott v. Perez (2018) — Roberts Court (2017-2018) — Facts]
Individual voters in Texas, along with organizations representing Latinos and African Americans, filed a number of lawsuits in 2011, challenging the Texas legislature’s congressional and state house redistricting plans. The actions were consolidated and proceed in the U.S. District Court for the Western District of Texas (“Texas District Court”). The plaintiffs alleged racial gerrymandering in violation of § 2 of the Voting Rights Act (VRA) as well as the 14th and 15th Amendments to the United States Constitution. At that time Texas was bound by the preclearance requirements under § 5 of the VRA, and therefore the State simultaneously filed an action in the U.S. District Court for the District of Columbia (“D.C. District Court”) seeking preclearance of the redistricting plans.
While trial proceedings were pending in both district courts, the 2012 primary elections were approaching. As a result, the Texas District Court assumed the task of implementing interim redistricting plans, which it did on an expedited basis, without access to all relevant facts, and with the understanding that most parties to the litigation alleged that those plans contained many of the same statutory and constitutional infirmities as the challenged plans. The U.S. Supreme Court vacated the first iteration of the interim maps on the grounds that the court had not been sufficiently deferential to the legislature; the Texas District Court issued more deferential plans in February 2012.
The D.C. District Court subsequently denied preclearance to the proposed redistricting plans on the basis that they were enacted with discriminatory intent and had the effect of abridging minority voting rights. Texas appealed this decision to the U.S. Supreme Court.
After the Texas District Court’s interim maps were used for the 2012 elections, the Texas legislature failed to take any action on redistricting in the 2013 regular session. However, it convened a special session during which it adopted, among others, the Texas District Court’s congressional interim map (“Plan C235”) without any changes. The governor subsequently signed the legislation adopting this plan.
In June 2013, the U.S. Supreme Court decided Shelby County v. Holder, which removed the § 5 preclearance requirements from the VRA. Texas was therefore no longer automatically subject to preclearance requirements, and the U.S. Supreme Court later vacated and remanded for further proceedings the D.C. District Court’s preclearance decision, which the lower court then dismissed as moot.
The defendants subsequently sought to dismiss the plaintiffs’ claims in the Texas District Court for lack of subject matter jurisdiction on the basis that the case had become moot. In response, the plaintiffs expressed their desire to amend their complaints regarding the 2011 plans and to challenge the 2013 plans. The court granted them leave to amend, and denied the State’s motions to dismiss. The court explained that the plaintiffs’ claims regarding the 2011 plans were not moot because, inter alia, the plaintiffs continued to be harmed by them. The court also ordered that the 2013 plans, which included Plan C235, be used for the 2014 elections. The plaintiffs then filed their amended complaints, including claims related to both the 2011 and 2013 plans. Most plaintiffs included claims that Plan C235 violated § 2 of the VRA and the 14th and 15th Amendments.


[Abbott v. Perez (2018) — Roberts Court (2017-2018) — Facts]
plaintiffs’claimsregardingthe2011planswerenotmootbecause,interalia,theplaintiffscontinuedtobeharmedbythem.Thecourtalsoorderedthatthe2013plans,whichincludedPlanC235,beusedforthe2014elections.Theplaintiffsthenfiledtheiramendedcomplaints,includingclaimsrelatedtoboththe2011and2013plans.MostplaintiffsincludedclaimsthatPlanC235violated§2oftheVRAandthe14thand15thAmendments.
The Texas District Court held trials on the 2011 plans in 2014, and found that they violated certain aspects of § 2 of the VRA and the 14th Amendment. In the ongoing litigation, the plaintiffs contended that the 2013 plans, including Plan C235, included some of the same elements that the court determined were the result of discriminatory intent or statutory or constitutional violations as in the 2011 plans.
In August 2017, the Texas District Court issued an interlocutory order regarding the plaintiffs’ C235 claims. It found that the racially discriminatory intent and effects identified in the 2011 plans carried through to the 2013 plans where the redistricting lines remained the same. It explained that the legislature had adopted the court’s interim plans (which included C235) as part of a litigation strategy that was designed to insulate the plans from any further challenge. The legislature had not engaged in any deliberative process to remove the discriminatory elements from the plans before adopting them, but instead intentionally furthered and continued the discrimination in the existing plans.
The court also concluded that the configurations of CD 27 and CD 35 under Plan C235 violated § 2 of the VRA and the 14th Amendment. As to CD 27, though the court had found in 2012 that this district did not reflect a racially discriminatory purpose because it was not possible to create an additional Latino opportunity district in the region, the Texas legislature had still engaged in vote dilution. Regarding CD 35, the court stated that while C235 was enacted in 2013, the challenged district boundaries that it reflected were drawn in 2011 and found to violate § 2 of the VRA and the 14th Amendment. The court explained that the Texas legislature did not engage in any meaningful effort to cleanse the discriminatory elements from the 2013 plan before it was adopted, and in fact intended to maintain that discrimination in enacting the plan in substantially the same form.
The court additionally found that the plaintiffs had proven a § 2 “results” violation as to CD 27, HD 32, and HD 34, and a racial gerrymandering claim as to HD 90.
The court’s order directed the Texas Attorney General to issue a written advisory within three days as to whether the legislature would convene a special session to address the issue of redistricting. If the legislature did not plan to hold a special session, the parties were ordered to appear before the court to prepare remedial redistricting plans.
In January 2018, the U.S. Supreme Court agreed to hear the defendants’ appeal on the merits, at which time the Court would also consider the question of jurisdiction.


[Abbott v. Perez (2018) — Roberts Court (2017-2018) — Conclusion]
The Court reversed and remanded in a 5-4 vote, holding that the Texas District Court erred in disregarding the presumption of good faith on the part of the Texas Legislature and improperly reversed the burden of proof in requiring the state to show a lack of discriminatory intent in adopting new districting plans; the Court also held that one of the state house districts at issue was an impermissible racial gerrymander.
In an opinion authored by Justice Alito, the Court began by explaining that it had jurisdiction to review the orders in this case under 28 U.S.C. § 1253, because they qualified as interlocutory injunction orders.
With regard to the redistricting plans, the Court began its discussion by stating that in redistricting cases, legislatures are entitled to a presumption of good faith, and that the challengers had the burden of proof when alleging that a state law was enacted with discriminatory intent. It also stated that a finding of past discrimination was not sufficient to undermine the good faith presumption.
The Court found that in this case, the 2011 plans were repealed and not enacted by the 2013 legislature, which instead enacted the Texas District Court’s interim plans with minimal changes, and without carrying forward the effects of the 2011 legislature’s discriminatory intent. The Texas District Court had violated the applicable burden of proof principles in referencing the need to “cure” the “taint” of the earlier legislature’s process, and faulting that legislature for its lack of deliberation on this issue. The Court further concluded that evidence of the 2011 legislature’s intent and the Texas District Court’s interim plans, when viewed with other evidence in the record, was insufficient to prove bad faith and intentional discrimination on the part of the 2013 legislature.
After discussing its reversal of the Texas District Court’s intent finding, the Court addressed the four remaining districts that were invalidated on alternative grounds. It reversed the Texas District Court’s holding with regard to the three districts regarding which it relied on § 2’s “effects” test, but affirmed the holding that one district was an impermissible racial gerrymander.
With regard to the district findings it reversed, the Court explained that to support a § 2 “effects” claim, under Thornburg v. Gingles, 478 U.S. 30 (1986), a plaintiff must establish three factors: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. After making that showing, the plaintiff must then prove that the minority group’s votes are diluted by the district lines under the totality of the circumstances.
Regarding the Texas District Court’s finding that CD 27 violated § 2 by diluting the votes of Latino voters in Nueces County, who the district court ruled should have been included in a Latino opportunity district, the Court found that the plaintiffs were unable to show that an additional Latino opportunity district could be formed in that region of Texas. The Court also held that the Texas District Court erred in ruling that HD 32 and HD 34 did not comply with § 2, stating the the court’s findings showed that those two districts did not in fact violate § 2.


[Abbott v. Perez (2018) — Roberts Court (2017-2018) — Conclusion]
thedistrictcourtruledshouldhavebeenincludedinaLatinoopportunitydistrict,theCourtfoundthattheplaintiffswereunabletoshowthatanadditionalLatinoopportunitydistrictcouldbeformedinthatregionofTexas.TheCourtalsoheldthattheTexasDistrictCourterredinrulingthatHD32andHD34didnotcomplywith§2,statingthethecourt’sfindingsshowedthatthosetwodistrictsdidnotinfactviolate§2.
Finally, the Court affirmed the ruling that HD 90 was an impermissible racial gerrymander. That district was not derived from the Texas District Court’s interim plan, but was instead modified substantially by the 2013 legislature. The state argued that its use of race as a primary factor in shaping HD 90 was proper and even necessary to comply with § 2’s requirements, but the Court found that it failed to make the requisite showing of narrow tailoring.
Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined.
Justice Sotomayor filed a dissenting opinion, and was joined by Justices Breyer, Ginsburg, and Kagan. Sotomayor rejected the Majority’s assertion that the Court had jurisdiction to hear the case, disagreeing with its conclusion that the lower court’s orders constituted an injunction. She also disagreed with the Majority’s conclusion that the Texas District Court had erred with regard to the legal test for discriminatory intent. Sotomayor contended that the lower court had engaged in a careful consideration of the legislature’s intent rather than presuming invidious intent, and correctly found that the legislature intended to discriminate.


[WesternGeco LLC v. ION Geophysical Corp. (2018) — Roberts Court (2017-2018) — Facts]
The US Supreme Court issued a 2016 order granting certiorari in this patent infringement case, vacating a 2015 ruling by the US Court of Appeals for the Federal Circuit and remanding the matter for further consideration in light of , 579 U.S. __ (2016). On remand, the appellate court vacated the district court’s judgment for enhanced damages for willful infringement under 35 U.S.C. § 284, but reinstated its 2015 opinion in all other respects.
The underlying dispute in the case related to patent-practicing devices sold by ION Geophysical Corporation (“ION”) which were combined and used in non-infringing streamer systems at sea, but that would infringe on patents belonging to WesternGeco LLC (“WesternGeco”) if used in that manner in the US. The jury found infringement by ION, found no invalidity as to any asserted claims, and awarded WesternGeco, among other amounts, $93.4 million in lost profits.
In a subsequent appeal to the Federal Circuit, ION asked, among other things, that the lost profits award be reversed. In its 2015 opinion, the Federal Circuit agreed and reversed that award on the grounds that under 35 U.S.C. § 271(f), WesternGeco was not entitled to lost profits arising from foreign uses of its patented invention. As stated above, the court then reinstated this portion of that opinion in 2016.


[WesternGeco LLC v. ION Geophysical Corp. (2018) — Roberts Court (2017-2018) — Conclusion]
Ruling 7-2, the Court reversed and remanded, holding that WesternGeco’s award for lost profits was a permissible domestic application of § 284 of the Patent Act.
In an opinion authored by Justice Thomas, the Court explained that there was a presumption against the extraterritorial application of federal statutes, but that a two-step framework applied when deciding extraterritoriality questions. The first step asks whether that presumption may be rebutted. If not, the second step inquires as to whether the the case implicates the domestic application of the statute. Factors relevant to the second determination include identifying the statute’s focus, and asking whether the conduct pertinent to that focus occurred domestically. If the answer is yes, then it is a permissible domestic application of the statute.
The Court went on to state that though it is generally preferable to begin this inquiry with step one, courts have discretion to begin with step two, and the Court chose to do that in this case. In ascertaining the statute’s focus, the Court explained that the § 284 general damages provision was geared toward “infringement.” As such, in determining the focus of § 284 in a particular case, the type of infringement that occurred needed to be identified. In the instant case, WesternGeco’s infringement and lost profits claim was based on § 271(f)(2), the provision that regulates the domestic act of “suppl[ying] in or from the United States.” The Court explained that it had previously acknowledged that this section applied to domestic interests. The conduct in this case that was relevant to the statutory focus, and which consisted of exporting components from the U.S., took place in the U.S. As such, WesternGeco’s award was a permissible domestic application of § 284.
Justice Gorsuch filed a dissenting opinion, which was joined by Justice Breyer.


[Lamar, Archer & Cofrin, LLP v. Appling (2018) — Roberts Court (2017-2018) — Facts]
R. Scott Appling hired the law firm of Lamar, Archer & Cofrin, LLP (“Lamar”) to represent him in legal proceedings against the former owners of his business. Appling incurred significant legal fees, and verbally told Lamar that he would be able to pay them after he received a sizeable tax refund that he was expecting. In reliance upon this statement, the firm continued to represent him through the conclusion of the litigation. Appling received a tax refund, though it was smaller than what he had told Lamar he was anticipating, and he put it into his business rather than paying the debt he owed to Lamar. Lamar obtained a judgment against Appling, and Appling subsequently filed for bankruptcy. Lamar initiated an adversary proceeding to collect the debt, and the bankruptcy court ruled that the amount was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) because Lamar had justifiably relied upon Appling’s fraudulent statements. The district court affirmed.
The 11th Circuit reversed and remanded. Noting a circuit split on how to construe the statute at issue, the court explained that because Appling’s fraudulent statements about his tax refund were not in writing and qualified as statements “respecting [his] . . . financial condition” under § 523(a)(2)(B), the debt could be discharged.


[Lamar, Archer & Cofrin, LLP v. Appling (2018) — Roberts Court (2017-2018) — Conclusion]
The Court held that a statement regarding a specific asset can be a “statement respecting the debtor’s . . . financial condition” under section 523(a)(2)(B) of the Bankruptcy Code. Interpreting the statutory provision at issue, the Court explained that the use of the word “respecting” in the legal context generally has a broadening effect. The Court also stated that the statute’s legislative history supported its reading.
Justices Thomas, Alito, and Gorsuch joined the opinion of the Court as to all but Part III-B.


[Lagos v. United States (2018) — Roberts Court (2017-2018) — Facts]
Sergio Fernando Lagos pled guilty in federal district court to conspiracy to commit wire fraud, and multiple counts of wire fraud. He admitted that for a period of two years, he and his co-conspirators misled General Electric Capital Corporation (GECC) regarding the value of their assets in order to increase their revolving loan amount and secure under-collateralized funds.
Following his guilty plea, Lagos appealed the district court’s order of restitution to the 5th Circuit. He argued that the Mandatory Victims Restitution Act (MVRA) did not allow restitution for the legal, expert, or consulting fees incurred by GECC in the course of investigating Lagos’ suspected fraud and the bankruptcy proceedings that followed.
The 5th Circuit affirmed the district court’s order in light of its own precedent interpreting 18 U.S.C. § 3663A(b)(4) under the MVRA to permit restitution for investigative and legal costs, even under circumstances where these costs were incurred outside of the government’s investigation. The appeals court noted that the D.C. Circuit has adopted a narrower reading of the statute in question, though multiple other circuits have not.


[Lagos v. United States (2018) — Roberts Court (2017-2018) — Conclusion]
In a unanimous opinion, the Court reversed and remanded, holding that the words “investigation” and “proceedings” in 18 U.S.C. § 3663A(b)(4) are limited to government investigations and criminal proceedings, and do not include private investigations and civil or bankruptcy proceedings. The Court also held that the fact that the victim shared the findings of its investigation with the government did not make the costs of the private investigation “necessary . . . other expenses incurred during participation in the investigation . . . of the offense” within the meaning of subsection (b)(4).


[Lucia v. Securities and Exchange Commission (2018) — Roberts Court (2017-2018) — Facts]
The Securities and Exchange Commission (“Commission”) commenced an administrative enforcement action against Raymond J. Lucia and Raymond J. Lucia Companies, Inc. (collectively “Petitioners”) for alleged anti-fraud violations of the Investment Advisers Act arising from the way they presented their retirement wealth management strategy to prospective clients. An administrative law judge (“ALJ”) found liability and imposed sanctions including a lifetime industry bar against Petitioners. The Commission granted the parties’ petitions for review, and found that Petitioners had committed anti-fraud violations and imposed the same sanctions as the ALJ. The Commission also rejected the argument that the administrative proceedings had been unconstitutional because the ALJ who handed down the initial decision was a constitutional Officer who had not been appointed pursuant to the Appointments Clause under Article II, Section 2, Clause 2 of the Constitution.
Petitioners asked the D.C. Circuit to vacate the Commission’s decision and order under review on the grounds that the ALJ who made the administrative ruling was a constitutional Officer who had not been appointed in accordance with the Appointments Clause. The appeals court rejected this argument, explaining that Commission ALJs were not constitutional Officers within the meaning of the Appointments Clause, primarily because of their lack of authority to issue final decisions on behalf of the Commission pursuant to the agency’s regulatory scheme.


[Lucia v. Securities and Exchange Commission (2018) — Roberts Court (2017-2018) — Conclusion]
In a 7-2 opinion, the Court reversed and remanded, holding that administrative law judges of the Securities and Exchange Commission are “officers of the United States” subject to the Constitution’s Appointments Clause.
In an opinion authored by Justice Kagan, the Court began by stating that under its precedent, as established in United States v. Germaine, 99 U.S. 508 (1879), and Buckley v. Valeo, 424 U.S. 1 (1976), to be classified as an officer rather than an employee, a person needs to have a “continuing” position established by law, and must “exercis[e] significant authority pursuant to the laws of the United States.” It went on to explain that the factors in Freytag v. Commissioner, 501 U.S. 868 (1991), the case directly governing the instant matter, matched up almost exactly to the elements in Lucia’s case.
In Freytag, the Court ruled that U.S. Tax Court “special trial judges” (STJs) were officers because they met the elements required under Germaine and Buckley, and because they had significant discretion in addition to considerable responsibilities in presiding over administrative proceedings. These responsibilities included “tak[ing] testimony, conduct[ing] trials, rul[ing] on the admissibility of evidence, and hav[ing] the power to enforce compliance with discovery orders.” The Court reasoned that the SEC’s ALJs, like the STJs in Freytag, held a continuing office established by law, and exercised the same degree of discretion when carrying out the same functions as the STJs. But in contrast with the Tax Court STJs, whose decisions were always required to be reviewed by a regular Tax Court judge, the SEC ALJs’ decisions were not always subject to review; if the SEC decided against review then the ALJ’s decision would become final and be “deemed the action of the Commission.” As such, the SEC ALJs were officers of the United States subject to the Appointments Clause.
In light of this conclusion, because Lucia had made a timely challenge in his case to the constitutional validity of the ALJ’s appointment, he was entitled to a new hearing before a properly appointed official.
Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined.
Justice Breyer filed an opinion concurring in the judgment in part and dissenting in part, and was joined by Justices Ginsburg and Sotomayor as to Part III.
Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.