Todd S. Kim
Nathaniel P. Garrett
Robert A. Parker

On March 16, 2008, Metropolitan Police Department officers responded to a noise complaint for a house party. Upon arrival, the officers heard loud music coming from the house. The officers then entered the house and observed party guests, including Theodore Wesby, drinking and watching “scantily clad women with money tucked into garter belts.” The partygoers claimed that a woman called “Peaches” was the host of the party, and that she had received permission from the owner, from whom Peaches was leasing the house. One partygoer called Peaches on the phone for an officer, since Peaches was not present. Peaches confirmed that she had permission from the owner, but when an officer called the owner, the owner claimed that the lease had not been executed and that he had not given permission for the party. The officers subsequently arrested the partygoers.

Sixteen of the arrested partygoers sued the officers and the District of Columbia for false arrest. The district court ruled in favor of the partygoers. The U.S. Court of Appeals for the D.C. Circuit affirmed and held both that the officers did not have probable cause for entry and were not entitled to immunity from liability. Probable cause to arrest for unlawful entry under D.C. law exists where a reasonable officer concludes from information known at the time that the arrestee knew or should have known that they entered the house against the will of the owner. The court reasoned that, because the partygoers believed in good faith that the owner had given Peaches permission for the party, they could not have intended to enter unlawfully. The court also ruled that the officers were not entitled to immunity because it was unreasonable for them to believe that they were not violating the partygoers’ clearly established Fourth Amendment rights against false arrest.

The Court reversed and remanded. Justice Thomas authored the majority opinion, which held that (1) the officers had probable cause to arrest the partygoers, and (2) the officers were entitled to qualified immunity under 42 U. S. C. §1983. With regard to probable cause, Justice Thomas explained that the D.C. Circuit erred in analyzing individual factors rather than the totality of the circumstances at the party scene, which could have reasonably led the officers to believe that there was a substantial chance of criminal activity. On the qualified immunity question, the majority held that the officers were protected from suit unless their actions were "clearly" unlawful at the time. Given that they could have reasonably but mistakenly thought that they had probable cause to make the arrests at the time, their actions were not clearly unlawful. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed an opinion concurring in the judgment in part.


In the mid-2000s, Anthony Perry began to develop osteoporosis, so in order to alleviate his pain and to ensure that he could continue working, he made an informal agreement with his supervisor at the U.S. Census Bureau. The deal allowed Perry to take breaks throughout the day to control the symptoms of his osteoporosis, and to make up any time lost during the workday after hours with no penalty. On June 7, 2011, Perry received a proposed removal notice that alleged that he had been paid for hours that he had not worked. He contested the charges and pointed to the informal agreement he and his supervisor had made and his unblemished performance record. In August 2011, Perry and the agency entered into an agreement that required him to serve a thirty-day suspension, to retire on or before September 4, 2012, and to forfeit any discrimination claims against the agency. After serving his suspension and retiring, Perry brought a pro se claim before the Merit Systems Protection Board, the federal board that is authorized the hear certain challenges by federal employees to adverse employment actions. An administrative law judge (ALJ) initially ruled that the Board lacked jurisdiction because retirements are presumed to be voluntary, and the Board cannot review claims that resulted in settlement with the agency. Perry appealed to the Board, which remanded the case. Upon further review, the ALJ again denied that it had jurisdiction and held that Perry had not sufficiently shown that he was improperly coerced into settling his claims. Perry appealed to the Board again, which affirmed the ALJ’s ruling. Perry appealed to the U.S. Court of Appeals for the D.C. Circuit, which transferred the case to the U.S. Court of Appeals for the Federal Circuit based on a lack of proper jurisdiction.The appellate court docketed the case but granted Perry’s motion to suspend proceedings until the U.S. Supreme Court resolves the jurisdictional issue of which court system should hear the case.

A Merit Systems Protection Board decision to dismiss a case with mixed claims on jurisdictional grounds is subject to judicial review in district court. Justice Ruth Bader Ginsburg delivered the opinion for the 7-2 majority. The Court held that a case that is appealed to the Merit Systems Protection Board and that asserts claims under both the Civil Service Reform Act of 1978 (CSRA) and the Civil Rights Act of 1964 is a “mixed case.” The CSRA established a series of procedural routes that a mixed case may take, including that, when the Board decides the case on the merits or procedural grounds, the proper forum for judicial review is district court. The Court determined that a case dismissed on jurisdictional grounds may still be considered a “mixed case” for the purpose of judicial review of that decision. Although the CSRA defined a mixed case it terms of its appealability to the Board, it did not require that the case be able to be successfully appealed to fall under the definition. If the Court were to hold otherwise, it would create an unworkable system of distinguishing among the Board’s dismissals based on substantive, procedural, and jurisdictional, grounds. Employees seeking to appeal would also have to bifurcate their claims to litigate the CSRA claims in the U.S. Court of Appeals for the Federal Circuit and the federal discrimination law in district court. Such a system would be costly and impractical.

Justice Neil Gorsuch wrote a dissent in which he argued that the plain text of the CSRA required that appeals regarding CSRA claims be heard in the Federal Circuit, while federal discrimination claims were appealed to the district court. Although the statute allowed employees to bring claims before the Board, if the Board determined that it did not have jurisdiction over those claims, the other statutory provisions still applied. Any problems or inefficiencies in this statutory scheme were for the legislative branch, not the judiciary, to fix. Justice Gorsuch also argued that there was no statutory text clearly defining a “mixed case” or its procedural path, and there was no indication that Congress intended to carve out a particular place for such a case. Justice Clarence Thomas joined in the dissent.


The petitioners are a group of individuals who all obtained car loans from CitiFinancial Auto. When they were unable to make payments on the vehicles, CitiFinancial repossessed them, sold them, and then informed the petitioners they owed a balance to cover the difference between the agreed purchase price and the amount of money for which CitiFinancial sold the debt. It later sold the defaulted loans to Santander Consumer, USA (Santander), which attempted to collect these alleged debts. In November 2012, the petitioners filed a putative class action lawsuit that alleged that Santander violated the Fair Debt Collection Practices Act (FDCPA) in its communications with them. Santander moved to dismiss the action and claimed that it was not a “debt collector” under the regulations of the FDCPA because Santander merely bought the debt from another institution and did not originate it. The district court agreed with Santander and dismissed the case.The U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s decision and declined to rehear the case en banc.

A party that purchases a debt and attempts to collect the debt for its own account is not a “debt collector” subject to the Fair Debt Collection Practices Act (FDCPA). Justice Neil Gorsuch delivered the opinion for the unanimous Court, which held that the plain text of the FDCPA defined debt collectors as those who collected debts owed to another and therefore focused on debt collection agents collecting on behalf of a debt owner. A debt owner who was collecting debts for his own profit was not subject to the FDCPA. Although the petitioners tried to argue that the statute’s use of the past tense “owed” covered those who were collecting debts that had been previously owned by someone else, as Santander Consumer USA, Inc. (Santander) did, that reading does not comport with the text of the statute. The Court held that it was clear that Congress intended to use “owed” in the present tense in the relevant part of the statute, because elsewhere Congress clearly distinguished between original and current creditors. Because the meaning of the text was plain and there was no evidence that Congress intended an alternate, broader reading, purchasers of debt who collect for their own accounts are not subject to the FDCPA.


California Public Employees’ Retirement System v. ANZ Securities, Inc.

Before it went bankrupt in 2008, Lehman Brothers operated as a global investment bank, with stock traded on the New York Stock Exchange. Between July 2007 and January 2008, the company raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CPERS), the largest pension fund in the country, purchased millions of dollars of these securities. In 2008, another retirement fund filed a putative class action suit against Lehman Brothers that claimed that Lehman Brothers was liable under Section 11 of the Securities Act of 1933 for false and misleading statements. In February 2011, over three years after the initial proceedings were filed but before the district court had decided whether or not to certify the lawsuit as a class action, CPERS sued Lehman Brothers separately. The case was then merged with the other retirement fund’s lawsuit and transferred to the New York district court, where the first case was pending. Later in 2011, the parties involved in the initial suit settled. When CPERS received notice of the settlement agreement, it opted to pursue its own claims individually against Lehman Brothers. The district court dismissed the case as having been untimely filed because the filing of the initial putative class action suit did not constitute a timely filing for a later individual claim. The U.S. Court of Appeals for the Second Circuit affirmed.

The filing of a putative class action lawsuit does not satisfy the three-year time limit in Section 13 of the Securities Act with respect to the individual claims of other class members.Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Court held that there were two types of statutory time bars on the filing of claims: statutes of limitations and statutes of repose. Statutes of limitations were designed to encourage plaintiffs to diligently pursue known claims, and often did not begin to run until the plaintiff knew about the claim. In contrast, statutes of repose reflected a legislative determination that defendants should be free from liability after a certain point and began to run after the defendant’s last culpable act. Because Section 13 was a complete bar to recovery for claims brought more than three years after the relevant securities filing, it was defined in reference to the defendant’s last culpable act and was a statute of repose. Both the text and legislative history of Section 13 supported this categorization. Statutes of repose were generally not subject to equitable tolling provisions, which prevented the time limitations from running for a certain period, because they represented a legislative policy determination that superseded a court’s ability to grant equitable relief. Therefore, the filing of a putative class action does not satisfy the three-year time limit for the purpose of filing subsequent individual claims because the three-year statute of repose fully protects the defendant from liability when its limit is reached.

Justice Ruth Bader Ginsburg wrote a dissent in which she argued that Section 13 was only designed to ensure that defendants had notice of their potential liability within three years; the potential claims were not limited to those that could be filed within three years. In this case, because a class action was filed within the statutory time period, the defendants were on notice of their potential liability to the class. Justice Ginsburg also argued that the majority opinion harmed the ability of the investing public to protect their rights, which ran counter to the purpose of Section 11 of the Securities Act and increased the incentive for defendants to drag out litigation. Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.


Bristol-Myers Squibb Co. v. Superior Court of California

Neal Kumar Katyal
Rachel P. Kovner
Thomas C. Goldstein

Bristol-Myers Squibb Co. (BMS) is a global pharmaceutical company incorporated in Delaware and headquartered in New York. BMS manufactures Plavix, a prescription drug intended to prevent blood clotting, and markets and sells the drug nationwide, including in California. In addition, BMS maintains five offices in California, four research facilities, and one government affairs office, as well as 250 sales representatives. In eight amended complaints filed with the San Francisco Superior Court, 86 California residents and 575 non-California residents joined in suing BMS and McKesson Corporation, a California-based Plavix distributor, on individual product defect claims. Each alleged serious side effects from their use of Plavix, that BMS had misrepresented the drug’s safety and efficacy, and asserted numerous California product liability causes of action against BMS. BMS moved to dismiss the claims for lack of personal jurisdiction in California. BMS argued that these claims had no link to its California activities, as the nonresident plaintiffs were not injured by Plavix in California, had not been prescribed Plavix in California, and had not received Plavix distributed by McKesson from California. Additionally, BMS did not research or manufacture Plavix at its facilities in California. The trial court denied BMS’s motion and held that the company was subject to the California court’s general jurisdiction because it had “wide-ranging, continuous, and systematic activities in California.” The California Court of Appeal rejected the trial court’s assessment that BMS was subject to general jurisdiction in California, but held that the nonresident plaintiffs’ claims were sufficiently related to BMS’s California activities to support specific jurisdiction. The California Supreme Court affirmed and held that BMS’s nationwide marketing and distribution created a “substantial nexus” between the nonresident plaintiffs’ claims and BMS’s activities in California because the claims were based on the same allegedly defective product and misleading marketing that allegedly caused injury both in and outside of California.

When the plaintiffs’ claims would have been exactly the same even if the defendant had no forum state contacts, there is no basis for specific jurisdiction because the case does not sufficiently arise out of or relate to the defendant’s forum activities. Justice Samuel A. Alito, Jr. delivered the opinion for the 8-1 majority. The Court held that the exercise of personal jurisdiction must comport with the requirements of the Due Process Clause of the Fourteenth Amendment, which examined whether the defendant had a sufficient relationship with the state to subject it to jurisdiction. For general personal jurisdiction to apply, a corporation must be incorporated or headquartered within the state seeking to assert jurisdiction. For specific, or case-linked, jurisdiction, the suit had to arise out of the defendant’s contacts with the forum state. Therefore, there must be a connection between the controversy at issue and the state seeking to exercise specific jurisdiction. In this case, the relevant plaintiffs were not California residents and did not claim to have suffered harm there; all the relevant acts occurred outside of California. Therefore, this case did not sufficiently arise out of or relate to the defendant’s contacts with California for California to exercise specific jurisdiction.

Justice Sonia Sotomayor wrote a dissent in which she argued that the majority opinion would make it unnecessarily difficult to hold a nationwide corporation liable for acts that harm plaintiffs in different states. The basis for personal jurisdiction was whether the defendant had sufficient minimum contacts with a state such that subjecting the defendant to a lawsuit within that state did not offend “traditional notions of fair play and substantial justice.” Within this framework, the exercise of specific jurisdiction is appropriate when a defendant purposefully availed itself of the privileges of doing business in the forum state, when the claim arose out of or related to the defendant’s contacts with the state, and when the exercise of jurisdiction was reasonable under the circumstances. Applying these factors to this case showed that California had specific jurisdiction over these claims. By holding otherwise, the majority made it more difficult for plaintiffs to aggregate their claims, which would likely lead to an increase in litigation and make it easier for corporate defendants to avoid liability.


In May 2013, Rodney Class was arrested in the District of Columbia for possession of three firearms on United States Capitol Grounds in violation of 40 U.S.C. §5104(e). Class, representing himself, pleaded guilty in the district court. He appealed to the US Court of Appeals for the District of Columbia Circuit on grounds of constitutional error and statutory error. The appellate court affirmed the judgment of the district court and found Class guilty due to his guilty plea. The appellate court explained that the its precedent in United States v. Delgado-Garcia—which held that, “[u]nconditional guilty pleas that are knowing and intelligent...waive the pleading defendant[‘s] claims of error on appeal, even constitutional claims”—is binding on this case. Delgado articulates two exceptions to this rule in which a defendant may appeal: (1) “the defendant’s claimed right to not be haled into court at all” and (2) “that the court below lacked subject-matter jurisdiction over the case...” However, the court held that neither exception applies here.

No, a guilty plea alone does not bar a federal criminal defendant from challenging the constitutionality of his conviction. Justice Stephen Breyer delivered the 6-3 majority opinion of the Court. The Court looked at several prior decisions developing its jurisprudence on how a guilty plea affects the constitutional claims available to a criminal defendant, finding a clear doctrine that "a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute." The Court found that Class had neither expressly nor implicitly waived his constitutional claims by pleading guilty and that Federal Rule of Criminal Procedure 11(a)(2), which governs "conditional" guilty pleas, is inapplicable because the Rule's drafters specifically stated that the rule "has no application" to the types of constitutional claims raised in this case.

Justice Samuel Alito filed a dissenting opinion, in which Justices Anthony Kennedy and Clarence Thomas joined, criticizing the majority for reaching a decision not clearly grounded in the Constitution or other basis, and for failing to clarify the "confusing" doctrine established in prior cases. The dissent looked first to the Constitution and found that it does not prohibit the waiver of rights Class asserted, then found that neither is there a federal statute or rule that bars such waiver. Ultimately, the dissent found that Rule 11 of the Federal Rules of Criminal Procedure should govern the case and thus that an unconditional guilty plea waives all nonjurisdictional claims, except for those specifically described in the prior Court cases on point.


In 2007, Stephanie Artis was employed by the District of Columbia Department of Health (DOH) as a code inspector. She alleges that she and her supervisor developed a contentious relationship and that he singled her out for unfair treatment in the workplace. On April 17, 2009, Artis took her first administrative step against DOH by filing a discrimination claim with the U.S. Equal Employment Opportunity Commission, and while that claim was pending, DOH terminated Artis’s employment in November 2010.

In December 2011, Artis filed a lawsuit against the District in federal court alleging violations of Title VII of the Civil Rights Act of 1964, and invoked the district court’s supplemental jurisdiction to assert claims based on the District’s Whistleblower Act, False Claims Act, and common law. The district court granted the District’s motion on the pleadings and dismissed Artis’s sole federal claim, violation of Title VII, as facially deficient. It thus found it had no basis to exercise jurisdiction over the remaining claims.

Fifty-nine days after her claims were dismissed in federal court, Artis filed the remaining claims in a D.C. trial court. The District alleged that Artis’s claims were time barred based on the respective statutes of limitations, and the trial judge agreed, finding that the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d) does not suspend state statutes of limitations at the time of the unsuccessful federal filing.

In a 5-4 decision, the Court reversed and remanded, ruling in favor of Artis and finding that the tolling provision of 28 U.S.C. § 1367 operates to suspend or “stop-the-clock” on supplemental state court claims while the concordant federal suit is pending and for 30 days thereafter. The majority rejected the District of Columbia’s argument that the statute simply provides for a 30-day grace period to refile those claims in state court. The Court also rejected the argument that it should disavow the stop-the-clock approach as a matter of constitutional avoidance, explaining that questions regarding the constitutionality of §1367(d) had been settled under prior case law. Justice Gorsuch dissented, with Justices Thomas, Alito, and Kennedy joining.


Hamer v. Neighborhood Housing Services of Chicago

Charmaine Hamer, a former intake specialist for the Housing Services of Chicago (NHS) and Fannie Mae’s Mortgage Help Center, filed suit against her former employers, alleging violations of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of Fannie Mae and NHS on September 14, 2015.

Under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. Section 2107(a), Hamer had until October 14, 2015 to appeal the judgment. On October 8, 2015, her attorney filed a motion to extend the appeal deadline to December 14, 2015, which the district court granted. Hamer filed her appeal on December 11, 2015.

In a brief requested by the appellate court, Fannie Mae and NHS argued that Hamer’s appeal was untimely under Rule 4(a)(5)(C) and thus that the appellate court lacked jurisdiction over the appeal. That rule states that “[n]o extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” Hamer argued that the rule is at odds with 28 U.S.C. Section 2107(a), which provides that “the district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.” The appellate court found Hamer’s argument unpersuasive and dismissed her appeal for lack of jurisdiction.

A court-made rule imposing a time limit is not jurisdictional. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous court. In Bowles v. Russell, 551 U.S. 205 (2007), the Court held an appeal filing deadline prescribed by statute is "jurisdictional" in that missing the deadline requires dismissal of the appeal. Here, applying the principle that only Congress may determine a lower federal court's subject matter jurisdiction, the Court noted that in contrast to congressional legislation, court-made rules (including the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure) cannot be jurisdictional. The Court vacated the decision of the of the Seventh Circuit and remanded for further proceedings.


A Georgia jury convicted Marion Wilson of malice murder and several other felonies. At sentencing, Wilson’s attorney argued that Wilson was not the triggerman and presented evidence of his difficult childhood. The trial court sentenced Wilson to death, and the Supreme Court of Georgia affirmed his convictions and sentence on direct appeal. Wilson filed a state petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, in which he argued ineffective assistance of his trial counsel in the sentencing phase of his trial. His argument rested on lay testimony that could have been used as evidence of his difficult childhood and expert testimony that could have explained his poor judgment skills. The superior court denied the petition in a written order. Wilson then filed an application for a certificate of probable cause to appeal, which the Georgia Supreme Court summarily denied in a one-sentence order.

Wilson then filed a federal petition for a writ of habeas corpus, and the district court denied him relief on the grounds that the state trial court reasonably applied clearly established federal law. However, the district court granted Wilson a certificate of appealability on the issue of effective assistance of counsel at sentencing. A panel of the Eleventh Circuit affirmed the district court’s decision, reasoning that “the one-line decision of the Supreme Court of Georgia . . . is the relevant state-court decision for our review because it is the final decision on the merits.” In his petition for rehearing en banc, Wilson argued that the panel should have examined the last reasoned decision by a state court. Georgia originally argued a federal court should “look through” a summary order to see whether it was based on procedural grounds or merits, but then it changed its position and argued that the court should look to the reasoned opinion. The Eleventh Circuit, sitting en banc, appointed an amicus curiae to argue Georgia’s original position on the matter. The Eleventh Circuit en banc ultimately concluded that federal courts do not need to “look through” a summary decision on the merits to review the reasoning of a lower court.

The Court reversed the Eleventh Circuit’s ruling, holding that a federal habeas court reviewing an unexplained state court decision on the merits should “look through” that decision to the most recent related state court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning, and that the state may rebut that presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below.

The Court explained that since its holding in Ylst v. Nunnemaker, every circuit to have considered the matter except for the Eleventh Circuit has applied a “look through” presumption where there has been a reasoned state judgment rejecting a federal claim and subsequent unexplained orders upholding the judgment or rejecting the same claim, presuming that those later unexplained orders rested on the same ground.

The Court rejected the state’s argument that its opinion in Harrington v. Richter controls in this context, as that case did not directly consider the “look through” issue, and it also did not bar the application of Ylst’s reasoning in a case involving an unexplained decision on the merits.

The Court further explained that the “look through” presumption is not an absolute rule, and that while it is not a presumption that the Court applies in a general sense relative to silent opinions, when federal courts employ it pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, it is for a specific and narrow purpose. Thus, there should be no reason why a federal court’s opinion of a state court’s silence should create binding precedent outside of this context. Finally, the Court explained that the “look through” approach does not show disrespect for the states, and is unlikely to lead a large number of courts to write full opinions where they otherwise would have ruled summarily.

The Court remanded the case to the Eleventh Circuit for further review consistent with the majority opinion. Justice Gorsuch filed a dissenting opinion, in which Justices Alito and Thomas joined.


U.S. Bank National Association v. Village at Lakeridge, LLC

Gregory A. Cross
Morgan Goodspeed
Daniel L. Geyser

The Village at Lakeridge, LLC, (Lakeridge) filed for bankruptcy on June 16, 2011. At that time, MBP Equity Partners 1, LLC (MBP), a member of Lakeridge, decided to sell its claim on Lakeridge’s assets to Robert Rabkin. In a deposition, Rabkin testified that he had a close relationship with a member of MBP’s board. U.S. Bank National Association, which also held a claim to Lakeridge’s assets, offered to purchase Rabkin’s claim, but Rabkin decided not to accept it. U.S. Bank subsequently filed a motion to designate Rabkin as both a statutory and non-statutory insider, either of which would prevent Rabkin from voting on bankruptcy plan proceedings. The bankruptcy court held that Rabkin had become a statutory insider by purchasing a claim from MBP, which the court considered an insider because it was an affiliate of Lakeridge. The U.S. Court of Appeals for the Ninth Circuit held that insider status is a question of fact that appellate courts review under the deferential standard of clear error. Under the clear error standard, an appellate court will only reverse a lower court’s finding if it is clear from the evidence that a mistake has been made. After reviewing the case under this standard, the appellate court reversed and held that a third party that is assigned a claim does not assume the insider status of the assigning party. The court also held that Rabkin was not a non-statutory insider because the evidence did not show that Rabkin had a close enough relationship with the member of MBP’s board to be considered an insider.

The Ninth Circuit was correct to review the Bankruptcy Court's determination under a "clear error" standard because the "mixed question" whether a designation of non-statutory insider status is more factual than legal. Justice Elena Kagan delivered the opinion for a unanimous Court. In the Ninth Circuit, the determination of insider status turns on whether the facts support an "arm's length transaction" between the parties. Applied to the facts of this case, the issue was whether Rabkin’s purchase of MBP’s claim was conducted as if the two were strangers to each other? While this question involves issues of law and fact, the answer turns primarily on factual determinations, therefore the more deferential "clear error" standard was the appropriate standard of review.

Justice Anthony Kennedy filed concurring opinion to clarify that the Court does not necessarily find that the Ninth Circuit's standard is complete or proper, only that the application of that standard leads to the result the Court did in fact reach. Justice Sonia Sotomayor also filed a concurring opinion, in which Justices Kennedy, Thomas, and Gorsuch joined,  disapproving the Court's decision not to address the question whether the Ninth Circuit's "arm's length transaction" standard is the correct one.


Jeffrey L. Fisher
Paul D. Clement
Brian H. Fletcher

Several alien individuals were injured, kidnapped, or killed by terrorists in attacks against Israeli citizens overseas. The surviving aliens and the families of those who perished in the attacks accused Arab Bank, PLC (Arab Bank), a bank corporation headquartered in Jordan, of financing and facilitating various terrorist organizations involved in the attacks. The survivors sued Arab Bank in New York federal court under the Alien Tort Statute (ATS), which provides for federal district court jurisdiction over civil actions brought by aliens. Arab Bank moved to dismiss the ATS claims under the U.S. Court of Appeals for the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum Co. In that case, the appellate court held that the ATS does not authorize claims against foreign corporations. The district court acknowledged that, because the U.S. Supreme Court affirmed Kiobel on other grounds and had not addressed the question of corporate liability, the court of appeals’ holding was still controlling precedent and therefore dismissed the ATS claims. On appeal, the appellate court noted that the Supreme Court’s decision did cast some doubt on the corporate liability holding in Kiobel. However, because the Supreme Court had not addressed the question of corporate liability, the appellate court  affirmed the lower court’s dismissal.

The Alien Tort Statute (ATS) does not permit lawsuits against corporations. Justice Anthony Kennedy authored the opinion for the 5-4 majority. The Court found that the original purpose of the ATS was to ensure that federal courts of the United States were available venues for foreign nationals alleging violations of international law and thereby to assuage potential foreign-relations issues. The Court reasoned that in this case, to allow the lawsuit to proceed would have the opposite policy effect, straining diplomatic relations with Jordan. If Congress wants to allow for lawsuits against foreign corporations in these types of circumstances, Congress should explicitly do so.

Justice Neil Gorsuch wrote a concurrence in which he concluded that there are two additional reasons the lawsuit should be dismissed—that the ATS is a jurisdictional statute that does not create a new cause of action and that federal courts should require a domestic defendant before hearing a lawsuit under the ATS.

Justice Sonia Sotomayor wrote a dissenting opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined. Justice Sotomayor wrote that the text, history, and purpose of the ATS support the conclusion that corporations may be sued under the law and that the Court's decision absolves corporations of responsibility for egregious human rights abuses.


In July 1997, Carlos Manuel Ayestas, a Honduran national, was convicted and sentenced to death for the murder of Santiaga Paneque at her home in Houston, Texas. Ayestas appealed his conviction and filed for state habeas relief based on a claim of ineffective assistance of counsel; he argued that his trial counsel failed to secure the testimony of family members who could have presented mitigating evidence. The state habeas court found that Ayestas’ trial attorney was not ineffective and denied his application for habeas relief. The Texas Court of Criminal Appeals adopted the findings of the state habeas court and denied relief as well.

In 2009, Ayestas, with a new attorney, filed a federal habeas petition and claimed that his trial counsel had been ineffective because he had failed to conduct a reasonable investigation that would have uncovered “available and abundant” mitigating factors. However, the district court found that his claim was procedurally defaulted because it had not been raised in the state habeas proceeding and denied relief. The US Court of Appeals for the Fifth Circuit affirmed. The US Supreme Court subsequently decided Martinez v. Ryan, which held that ineffectiveness of state habeas counsel in failing to bring an ineffective assistance of trial counsel claim may excuse a procedural default. The Supreme Court later extended the holding of Martinez to Texas’ habeas scheme in Trevino v. Thaler. In light of these decisions, Ayestas asked for a rehearing. On rehearing in the district court, Ayestas filed a motion for investigative assistance that was “reasonably necessary” to develop his broader ineffective assistance of counsel claim under 18 U.S.C. § 3599(f). The district court denied the motion based on Fifth Circuit precedent that holds that investigative assistance is not “reasonably necessary” unless the habeas petitioner can carry the ultimate burden of proof on the underlying claim at the time of the request for investigative assistance. The district court determined that Ayestas could not meet his burden of proof on the ineffective assistance of counsel claim and therefore denied the motion. The appellate court affirmed.

In a unanimous opinion authored by Justice Alito, after explaining that it had jurisdiction to hear the appeal because it related to a judicial rather than an administrative decision, the Court held that the Fifth Circuit applied the wrong legal standard in affirming the denial of Ayestas' claim for the investigative funding needed to prove his entitlement to federal habeas relief under 18 USC § 3599(f). Analyzing the statutory language, the Court concluded that it called for district courts to exercise their discretion in determining whether a reasonable attorney would deem the services sought by the funding to be sufficiently important to the case in order to meet the "reasonably necessary" requirement. The Fifth Circuit's "substantial need" standard was more stringent, and therefore improper.

The Court explained that the Fifth Circuit also erred in requiring Ayestas to present "a viable constitutional claim that [was] not procedurally barred," as this rule had become too restrictive in light of Trevino, and lower courts could potentially err in denying funding requests in cases where such funding could allow a petitioner to overcome a procedural default. On the other hand, the Court also explained that district courts had broad discretion in ruling on § 3599(f) funding requests, and while a funding applicant need not prove that they will win their case due to the funding services, the courts must evaluate the likelihood of success as part of the "reasonably necessary" test.

The Court remanded to the Fifth Circuit the state's alternative argument that § 3599(f) funding is never "reasonably necessary" when a petitioner for habeas relief seeks to bring a procedurally defaulted ineffective assistance of trial counsel claim based on facts outside the state court record.

Justice Sotomayor wrote a concurring opinion, in which Justice Ginsburg joined.


Scott E. Gant
Ann O'Connell Adams
Pratik A. Shah

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Gun Lake Tribe) is an Indian tribe in western Michigan that was first formally recognized by the U.S. Department of the Interior in 1999. In 2001, the Tribe petitioned for a tract of land called the Bradley Property to be put into trust for the Tribe’s use under the Indian Reorganization Act (IRA), 25 U.S.C. § 465, and the Bureau of Indian Affairs granted the petition in 2005. The Tribe subsequently constructed and opened the Gun Lake Casino on the Bradley Property.

David Patchak lives in a rural area near the Bradley Property and asserts that he moved there because of its unique rural setting and that the construction and operation of the casino caused him injury. Patchak filed a lawsuit against the Secretary of the Interior and other defendants, claiming that the Secretary lacked the authority to put the Bradley Property into trust for the Gun Lake Tribe. That lawsuit was argued up to the U.S. Supreme Court on a threshold issue of standing, and after the Supreme Court held that Patchak had standing to sue, President Obama signed into law the Gun Lake Act, which provided, among other things, that any legal action relating to the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

In a plurality opinion authored by Justice Thomas, the Court affirmed the ruling by the D.C. Circuit, concluding that Section 2(b) of the Gun Lake Act did not violate Article III of the Constitution. The Court stated that it was not an impermissible exercise of legislative power for Congress to change the law applicable to pending lawsuits, even if it made one side much more likely to prevail. The Court distinguished this scenario from legislative attempts to compel a particular result under old law, which would have violated Article III. The Court explained that by stripping federal courts of jurisdiction in actions relating to the property at issue, §2(b) “changed” the law, and that making this type of change was a valid exercise of legislative power. Justice Breyer filed a concurring opinion. Justice Ginsburg filed a concurring opinion, and Justice Sotomayor joined. Justice Sotomayor filed an opinion concurring in the judgment. Justice Roberts filed a dissenting opinion, and Justices Kennedy and Gorsuch joined.


Merit Management Group v. FTI Consulting, Inc.

Valley View Downs, LP, the owner of a Pennsylvania racetrack, acquired all shares of a competing racetrack, Bedford Downs, in exchange for $55 million. The exchange took place through Citizens Bank of Pennsylvania, the escrow agent, and Valley View borrowed money from Credit Suisse and other lenders to pay for the shares. Shortly thereafter, Valley View filed for Chapter 11 bankruptcy.

FTI Consulting, Inc., as Trustee of the litigation trust that includes Valley View as one of the debtors, brought this lawsuit against Merit Management Group, a 30% shareholder in Bedford Downs. FTI seeks to avoid Bedford's $16.5 million transfer to Valley View under Bankruptcy Code sections 544, 548(a)(1)(b), and 550, which are safe harbor provisions for transfers "made by or to" certain enumerated entities. It is undisputed that Credit Suisse and Citizens Bank are financial institutions within the language of the statute, but at issue is whether the language “made by or to” includes institutions that act merely as a conduit for the transfer and do not benefit from it.

The Seventh Circuit held that section 546(e) does not provide a safe harbor against avoidance of transfers between non-named entities where a named entity merely acts as a conduit for the transfer. The Eleventh Circuit has interpreted the provision in the same way as the Seventh, while the Second, Third, Sixth, Eighth, and Tenth Circuits have held to the contrary.

No, the safe harbor provision of Section 546(e) of the Bankruptcy Code does not provide a safe harbor against avoidance of transfers between non-named entities where a named entity merely acts as a conduit for the transfer. Justice Sonia Sotomayor delivered the opinion for a unanimous Court. The language of §546(e) and the specific context in which it is used support the conclusion that the relevant transfer for purposes of the safe-harbor inquiry is the transfer the trustee seeks to avoid. The statutory structure also supports this interpretation. Applying that interpretation to the facts of the case, the Court found that because the parties do not contend that either Valley View or Merit is a covered entity, the transfer falls outside of the §546(e) safe harbor.


SAS Institute Inc. appealed a decision by the U.S. Court of Appeals for the Federal Circuit in which that court held that the Patent Trial and Appeal Board (PTAB) did not err in issuing a final written decision in an inter partes review that was petitioned by SAS Institute. While the PTAB contended that it need only have addressed certain challenged claims, rather than every challenged claim, SAS alleged that the PTAB in fact misconstrued a claim term, as well as erred by not addressing all the claims SAS challenged in its original petition.

In a 5-4 opinion the Court reversed and remanded, holding that when the United States Patent and Trademark Office institutes an inter partes review to reconsider an already-issued patent claim, under 35 U.S.C. §§311–319, it must decide the patentability of all of the claims the petitioner has challenged.

Justice Gorsuch authored the majority opinion, stating that the plain text of the statute decided the question in this case. The Court explained that § 318(a)'s use of the words "shall" and "any" imposed a mandatory and comprehensive directive. Thus, if the statutory language provided that the Patent Trial and Appeal Board's "final written decision 'shall' resolve the patentability of 'any patent claim challenged by the petitioner,' it mean[t] the Board must address every claim the petitioner . . . challenged."

The Court went on to state that § 312(a)(3) envisioned a review process guided by the petitioner rather than the agency. And while the agency director had the authority to reexamine any patentability questions on an ex parte basis at any time under § 303(a), Congress structured the inter partes review statute to provide the director with simply a "yes or no" choice as to whether to review pursuant to a given petition.

The Court rejected the notion that efficiency considerations justified a claim-by-claim approach, characterizing this as a policy argument better suited for legislative than judicial consideration. It also found unpersuasive the idea that any "partial institution" power asserted by the director was not entitled to Chevron deference. Finally, the opinion noted that judicial review pursuant to the Administrative Procedure Act remained available in the event that the agency acted outside the confines of its statutory authority.

Justice Ginsburg authored a dissenting opinion, which was joined by Justices Breyer and Sotomayor. Justice Kagan joined the dissent except as to Part III-A.


Eric E. Murphy
Paul M. Smith
Noel J. Francisco

Ohio currently employs a process that clears the state’s voter rolls of individuals who have died or relocated. Under this process, voters who have not voted for two years are sent notices to confirm their registration. If the state receives no response and these individuals do not vote over the next four years, they are ultimately removed from the rolls.

Plaintiffs are various civil rights groups that are challenging the process, claiming that it is not only inappropriate to remove individuals from the voter rolls as a consequence of failing to vote but also violates part of the National Voter Registration Act of 1993. The Act prohibits a program for voter-list maintenance for federal elections that involves “the removal of the name of any personal from the official list of voters . . . by reason of the person’s failure to vote.” Plaintiffs believe that the Supreme Court should involve itself and determine whether this process violates the Act. The U.S. Court of Appeals for the 6th Circuit previously struck down these rules, deeming them a violation of federal voting law because Ohio's process involves using an individual's failure to vote as a "trigger" for sending out a confirmation notice to that person. Plaintiffs consequently argue that there is no reason to disturb the appellate court decision. Defendants argue that Ohio is adhering to federal voter law, as set forth in the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).

Ohio's list-maintenance process does not violate any provision of the National Voter Registration Act of 1993 (NVRA) or the Help America Vote Act of 2002 (HAVA). In a 5-4 decision authored by Justice Samuel Alito, the Court found that Ohio's procedure of requiring (1) a failure to vote for two years, (2) a failure to return a notice card, and (3) a failure to vote for four additional years was sufficiently rigorous under NVRA and its amended versions. The Court reasoned that by the plain language of the statute, NVRA forbids removal of a voter if failure to vote is the sole reason for removal. While Ohio list-maintenance process does use failure to vote as a trigger for removal, because it is not the sole basis for removal, it does not violate the statute. Justice Clarence Thomas concurred in full but wrote separately to offer constitutional reasons for rejecting the proposed interpretation of the National Voter Registration Act (NVRA).

Justice Stephen Breyer wrote a dissenting opinion in which Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg joined. The dissent argued that the Ohio process does in fact rely on failure to vote to purge voter lists and that the additional requirement of responding to a mailed notice does not mitigate this violation of the statute.

Justice Sotomayor wrote a separate dissenting opinion arguing that the majority's decision ignores the driving purpose behind the NVRA—to address voter suppression laws—and pointing to statistics from amicus briefs showing that the law has a disproportionate effect of unregistering substantially more African American voters as compared to suburban white voters.


In April 2011, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain "transactional records" for each of the phone numbers, which the judges granted under the Stored Communications Act, 18 U.S.C. 2703(d). That Act provides that the government may require the disclosure of certain telecommunications records when "specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." The transactional records obtained by the government include the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers—"cell site" location information (CSLI).

Based on the cell-site evidence, the government charged Timothy Carpenter with, among other offenses, aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. 1951. Carpenter moved to suppress the government's cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to suppress, and the Sixth Circuit affirmed.

The government's warrantless acquisition of Carpenter's cell-site records violated his Fourth Amendment right against unreasonable searches and seizures. Chief Justice John Roberts authored the opinion for the 5-4 majority. The majority first acknowledged that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly into existing precedents, but tracking person's movements and location through extensive cell-site records is far more intrusive than the precedents might have anticipated. The Court declined to extend the "third-party doctrine"—a doctrine where information disclosed to a third party carries no reasonable expectation of privacy—to cell-site location information, which implicates even greater privacy concerns than GPS tracking does. One consideration in the development of the third-party doctrine was the "nature of the particular documents sought," and the level of intrusiveness of extensive cell-site data weighs against application of the doctrine to this type of information. Additionally, the third-party doctrine applies to voluntary exposure, and while a user might be abstractly aware that his cell phone provider keeps logs, it happens without any affirmative act on the user's part. Thus, the Court held narrowly that the government generally will need a warrant to access cell-site location information.

Justice Anthony Kennedy filed a dissenting opinion, in which Justices Clarence Thomas and Samuel Alito joined. Justice Kennedy would find that cell-site records are no different from the many other kinds of business records the government has a lawful right to obtain by compulsory process. Justice Kennedy would continue to limit the Fourth Amendment to its property-based origins.

Justice Thomas filed a dissenting opinion, emphasizing the property-based approach to Fourth Amendment questions. In Justice Thomas's view, the case should not turn on whether a search occurred, but whose property was searched. By focusing on this latter question, Justice Thomas reasoned, the only logical conclusion would be that the information did not belong to Carpenter.

Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Justice Alito distinguishes between an actual search and an order "merely requiring a party to look through its own records and produce specified documents"—with the former being far more intrusive than the latter. Justice Alito criticizes the majority for what he characterizes as "allow[ing] a defendant to object to the search of a third party's property," a departure from long-standing Fourth Amendment doctrine.

Justice Gorsuch filed a dissenting opinion in which he emphasizes the "original understanding" of the Fourth Amendment and laments the Court's departure from it.


Oil States Energy Services LLC v. Greene’s Energy Group, LLC

Allyson N. Ho
Christopher M. Kise
Malcolm L. Stewart

During hydraulic fracturing (known as “fracking”) procedures, fluid is pumped into oil and gas wells to stimulate production. However, the wellheads that sit on top of oil and gas wells are not designed to withstand continuous exposure to fracking fluids and can sustain significant damage as a result. In an attempt to address this issue, Stinger Wellhead Protection Inc., a subsidiary of Oil States Energy Services, first tried using a design described in Canadian Patent Application No. 2,195,118 (the ’118 Application) that relies on using hydraulic pressure first to push a “mandrel” into the wellhead through which the fracking fluid could be pumped without contacting the wellhead equipment. That method failed to sufficiently address the issue, so the Oil States subsidiary attempted a different method using a mechanical lockdown mechanism (described in Patent No. 6,179,053, or the ’053 Patent), rather than hydraulic pressure. In 2012, Oil States filed a patent infringement suit against Greene’s Energy Group, during the course of which litigation the district court found the ’053 Patent to be distinct from the ’118 Application using the “ordinary meaning” standard. Greene’s filed for inter partes review, which is a process used by the Patent and Trademark Office where one party asks the U.S. Patent Trial and Appeal Board to reconsider the PTO’s issuance of an existing patent and invalidate it on the ground that it was anticipated by prior art or obvious. Oil States challenges the practice of inter partes review as violating the constitutional right of patent owners to a jury and an Article III forum before having their patent invalidated.

The Court affirmed the Federal Circuit’s ruling, holding that the the Patent and Trademark Office’s inter partes review process did not violate Article III or the Seventh Amendment of the Constitution.

Writing for the majority in a 7-2 decision, Justice Thomas explained that inter partes review falls precisely within the public rights doctrine, with the grant of a patent being a matter involving public rights, and inter partes review involving the same basic matter as the grant of a patent.

The opinion went on to clarify that three of the Court’s holdings under the Patent Act of 1870 recognizing patent rights as the “private property of the patentee” did not contradict this conclusion. The Court also explained that despite a history of patent disputes being decided by the judicial system in 19th-century England, inter partes review did not violate the principle that Congress may not remove matters of common law from judicial purview. The opinion further noted that just because American courts have typically decided patent disputes, they need not always do so, as matters governed by the public rights doctrine may be assigned to any of the three branches of government.

The Court stated that it has never adopted a “looks like” test to establish whether a matter was properly decided outside of an Article III court, meaning that drawing similarities between the inter partes review process and that of a court was inconsequential here. It also emphasized that its holding was narrow, and should not be misconstrued to suggest that patents are not property pursuant to the Due Process Clause or the Takings Clause.

Finally, the Court held that inter partes review does not run afoul of the Seventh Amendment, explaining that when Congress properly assigns a matter to a non-Article III entity, the Seventh Amendment does not create an independent barrier to that body’s adjudication of the dispute.

Justice Breyer authored a concurring opinion, which was joined by Justices Ginsburg and Sotomayor. Justice Gorsuch authored a dissenting opinion, which was joined by Chief Justice Roberts.


Misha Tseytlin
Paul M. Smith
Erin E. Murphy

In 2010, for the first time in over forty years, Wisconsin voters elected a Republican majority in the state assembly and the senate, and a Republican governor. As a result, the Republican leadership developed a voting district map that its drafters calculated would allow Republicans to maintain a majority under any likely voting scenario. The redistricting plan was introduced in July 2011, and both the senate and the assembly passed the bill shortly thereafter. The governor signed the bill into law in August 2011. Even before it was enacted, the plan faced two legal challenges, on constitutional and statutory grounds. A federal court upheld the plan as not violating the “one person one vote” principle nor violating the Equal Protection Clause.

Plaintiffs in this case challenge the plan as an unconstitutional partisan gerrymander. At issue is whether the plan systematically dilutes the voting strength of Democratic voters statewide.

The plaintiffs failed to demonstrate Article III standing, so there is no need to resolve any of the questions presented. In a unanimous decision authored by Chief Justice John Roberts, the Court sidestepped (for now) all of the key issues regarding partisan gerrymandering, resolving the case instead on the technical issue of judicial standing. For a plaintiff to bring a case in federal court, she must have Article III standing, which requires showing three elements, one of which is "injury in fact." To show injury in fact, a plaintiff must show that she has suffered "invasion of a legally protected interest" that is "concrete and particularized." In this case, the Court found that the plaintiffs alleged but did not prove individual harms, providing evidence instead only of statewide harms of alleged partisan gerrymandering. The Court thus vacated the judgment of the district court and remanded for further proceedings.

Justice Clarence Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Neil Gorsuch joined. Justices Thomas and Gorsuch did not join the majority with respect to the decision to remand the case and allow the plaintiffs a second chance to prove standing and thus wrote separately to express this disagreement with the disposition.

Justice Elena Kagan filed a concurring opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined. Justice Kagan agreed with the findings and conclusions of the Court but wrote separately, in essence, to describe how the plaintiffs might proceed upon remand. Justice Kagan suggests that the plaintiffs might present more than simply a vote dilution theory, but also an infringement of their First Amendment right of association. Such a claim, according to Justice Kagan, would not require the plaintiffs to show injury-in-fact in the form of injury to her particular voting district because that claim would be statewide in nature. She predicts that partisan gerrymandering "injures enough individuals and organizations in enough concrete ways . . . that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one."


Cyan, Inc. v. Beaver County Employees' Retirement Fund

Neal Kumar Katyal
Thomas C. Goldstein
Allon Kedem

Since the enactment of the Securities Act of 1933, state courts have had concurrent jurisdiction to decide federal law claims brought under that statute. Congress then passed the Securities Litigation Uniform Standards Act of 1998, which precluded certain state law securities class actions, and amended the 1933 Act to reflect that limitation on state court claims.

Beaver County Employees' Retirement Fund filed a lawsuit in a California superior court asserting claims under the 1933 Act. Cyan Inc. moved to dismiss the claims, arguing that the amended 1933 Act precluded state courts from exercising subject matter jurisdiction over 1933 Act claims entirely. The superior court rejected Cyan's objection to the exercise of jurisdiction. Federal district courts are split as to whether state courts have subject matter jurisdiction over covered class actions that allege only 1933 Act claims.

The Securities Litigation Uniform Standards Act of 1998 (SLUSA) does not strip state courts of jurisdiction to hear claims under the Securities Act of 1933, nor does it permit defendants to remove class actions alleging only 1933 Act claims from state to federal court. In a unanimous opinion authored by Justice Elena Kagan, the Court found that the language of SLUSA, which modifies the Securities Act of 1933, leaves the state courts' jurisdiction intact. The background rule of § 77v(a) gives state courts concurrent jurisdiction over all suits “brought to enforce any liability or duty created by” that statute. Section 77p, which bars certain securities class actions based on state law, controls if there is a conflict between § 77v(a) and § 77p, but §77p does nothing to limit state-court jurisdiction over class actions brought under the 1933 Act. The Court also found that the structure and context also support its reading of the provision.

The 1933 Act barred the removal of certain claims from state to federal court. Section 77p(c) of SLUSA modifies the removal ban, permitting the removal of certain class actions to federal court, where they are subject to dismissal. The Court found that the most natural reading of that provision does not alter the ban on removal of class actions alleging only 1933 Act claims.


Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Kristen Kellie Waggoner
Noel J. Francisco
Frederick R. Yarger
David D. Cole

In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA.

The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission's ruling.

The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips' perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs.

The Court also explained that in 2012, the year that Phillips refused his services to Craig and Mullins, the law in Colorado and across the country with regard to same sex marriage was much more unsettled than it became after United States v. Windsor, 570 US 744 (2013) and Obergefell v. Hodges, 576 US ___ (2015). At the time, the State Civil Rights Division had also concluded in at least three other cases that bakers had acted lawfully in declining to make cakes that included messages they disagreed with, specifically messages demeaning gay persons. Thus it was not unreasonable for Phillips to believe that he was acting lawfully at the time, and his claims before the Commission were entitled to neutral treatment.

However, the Court stated that Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. The Court explained that commissioners' comments disparaging Phillips' beliefs and characterizing them as rhetorical were inappropriate, though these comments were not mentioned or disavowed in subsequent legal proceedings. The Court concluded that these comments cast doubt on the fairness of the Commission's consideration of Phillips' claims. The Court also pointed out that disparities between Phillips' case and those of other bakers with objections to making cakes with anti-gay messages, and who were victorious before the Commission, further reflected hostility toward the religious basis for Phillips' position.

The Court concluded that the Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips' religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

Justice Ginsburg authored a dissenting opinion, in which she was joined by Justice Sotomayor, stating that neither the Commission's comments regarding Phillips' religious views nor its alleged disparate treatment of bakers objecting to making cakes with anti-gay messages justified ruling in favor of Phillips.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips' religious views, but declined to assign any significance to the Commission's treatment of bakers who refused to create cakes with anti-gay messages because she believed that this did not violate the Colorado law at issue in Phillips' case.

Justice Gorsuch also filed a concurring opinion, joined by Justice Alito, in which he argued that the cases of Phillips and the bakers who objected to using anti-gay messages in their baking were quite similar, and the Commission acted inappropriately in treating them differently.

Justice Thomas filed an opinion concurring in part and concurring in the judgment, and was joined by Justice Gorsuch. Thomas argued that an order requiring Phillips to bake a wedding cake for a same-sex couple would violate his First Amendment rights.


Murphy v. National Collegiate Athletic Association

Theodore B. Olson
Paul D. Clement
Jeffrey B. Wall

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), 28 U.S.C. §§ 3701-3704, to prohibit state-sanctioned sports gambling. Included in PASPA are exceptions for state-sponsored sports wagering in Nevada and sports lotteries in Oregon and Delaware, as well as for New Jersey, provided that New Jersey also enact a sports gambling scheme within one year of PASPA's enactment, which it did not do. PASPA also permits any sports league whose games are or will be the subject of sports gambling to bring an action to enjoin the gambling.

In 2011, the New Jersey Legislature held a referendum asking voters whether sports gambling should be permitted, and 64 percent voted in favor of a state constitutional amendment that would permit sports gambling. The legislature then drafted and received voter approval of a sports-wagering constitutional amendment, after which time, in 2012, it enacted the Sports Wagering Act ("2012 Act"), which authorized certain regulated sports wagering at New Jersey casinos and racetracks and implemented a comprehensive regulatory scheme for licensing casinos and sporting events.

Five sports leagues sued under PASPA to enjoin the New Jersey law, which the state defended by arguing that PASPA was unconstitutional under the anti-commandeering doctrine. The district court held that PASPA was constitutional and enjoined the 2012 Act. The legislature passed a second law ("2014 Law") that purported to repeal the regulatory scheme for licensing casinos and sporting events, effectively providing tacit authorization of them. The leagues again sued to enjoin the 2014 Law, and the district court granted summary judgment in favor of the leagues and issued a permanent injunction against the governor and other state agencies. A divided panel of the Third Circuit affirmed, and upon rehearing, the Third Circuit en banc affirmed the majority opinion of the panel.

In a 6-3 opinion authored by Justice Alito, the court reversed in favor of the State of New Jersey, finding that PASPA's provision prohibiting state authorization of sports gambling schemes violates the anticommandeering doctrine under the 10th Amendment to the Constitution as interpreted under New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997). Pursuant to this authority, “Congress may not simply ‘commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.’"

In so holding, the Court explained that when a state fully or partially repeals old laws prohibiting sports gambling schemes, as New Jersey did in enacting the 2014 Law, it "authorizes" those schemes under PASPA. The Court also explained that there was no meaningful difference between directing a state legislature to enact a new law or prohibiting a state legislature from doing so, and PASPA's anti-authorization provision violated the anticommandeering principle because it specifically mandated what a state could and could not do. The Court stated that complying with the anticommandeering rule is important because it serves as one of the Constitution's structural safeguards of liberty, advances political accountability, and prevents Congress from shifting regulatory costs to the states.

The Court further held that no provision of PASPA is directly severable from those at issue in this case.

Justice Breyer joined the majority opinion as to all except Part VI-B, and filed an opinion concurring in part and dissenting in part. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined, and Justice Breyer joined in part.


Asher Perlin
David A. Strauss
Zachary D. Tripp

In September 1997, three Hamas suicide bombers blew themselves up in an a crowded area in Jerusalem. Among the injured were eight U.S. citizens, who consequently filed a lawsuit against the Islamic Republic of Iran for its role in providing material support to the attackers. In general, sovereign governments are immune from lawsuit, but the Foreign Sovereign Immunities Act ("FSIA") provides an exception to that immunity in cases of state-sponsored of terrorism. A district judge in D.C. entered a $71.5 million default judgment against Iran, which Iran did not pay. The plaintiffs then litigated numerous cases across the country in an attempt to attach and execute on Iranian assets to satisfy the judgment.

The case at hand involves four collections of ancient Persian artifacts within the possession of the University of Chicago and Chicago's Field Museum of Natural History. With few exceptions, a foreign state's property in the United States is immune from attachment and execution. The plaintiffs argued before the district court that they should be able to attach and execute Iran's property under subsections (a) and (g) of 28 U.S.C. § 1610, as well as section 201 of the Terrorism Risk Insurance Act of 2002 ("TRIA"). The district court held, and the Seventh Circuit agreed, that while § 1610(a) permits execution on a foreign state's property "used for a commercial activity in the United States," that provision requires use by the foreign state itself, not a third party (such as a museum). The district court also held, and the Seventh Circuit agreed, that § 1610(g) permits attachment to property of a foreign state in aid of execution only in cases described elsewhere in § 1610, rendering that provision unavailable to the plaintiffs in this case. Finally, the district court held, and the Seventh Circuit agreed, that § 201 of TRIA applies only to assets blocked by executive order, and in the absence of an executive order blocking the particular assets sought, plaintiffs cannot avail themselves of that provision either.

The Seventh Circuit's holding thus conflicts with the Ninth Circuit's prior holding that § 1610(g) provides a freestanding attachment immunity exception that allows terrorism victims to attach and execute upon any assets of foreign state sponsors of terrorism, regardless of whether the assets are otherwise subject to execution under section 1610.

No, Section 1610(g) does not provide a freestanding basis for parties to attach and execute against the property of a foreign state. Justice Sonia Sotomayor delivered the opinion for the 8-0 unanimous Court. Looking first at the statutory text, the Court found that the most natural reading of Section 1610(g)(1)—that certain property will be "subject to attachment in aid of execution, and execution, upon [a §1605A] judgment as provided in this section"—is that there must be an indepedent basis for the withdrawal of property immunity. To conclude otherwise would have rendered the other provisions of §1610(g) superfluous because any plaintiff with a §1605A judgment could seek property attachment under §1610(g) regardless of whether the conditions of any those provisions were met. The Court's interpretation is also consistent with the historical practice of rescinding attachment and execution immunity primarily in the context of a foreign state's commercial acts. Justice Elena Kagan took no part in the consideration or decision of this case.


Carlo J. Marinello II owned and operated a freight service that couriered items to and from the United States and Canada. Between 1992 and 2010, Marinello did not keep an accounting of his business, nor did he file personal or corporate income tax returns. Indeed, he shredded bank statements and business records. After an investigation by the IRS, Marinello was indicted by a grand jury on nine counts of tax-related offenses, and a jury found him guilty on all counts. He was sentenced to 36 months in prison, one year of parole, and was ordered to pay over $350,000 to the IRS in restitution.

One of the counts of which Marinello was charged and convicted was violation of 26 U.S.C. § 7212(a), which imposes criminal liability on one who "in any . . . way corruptly . . . obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title." Marinello appealed his conviction on the grounds that the phrase "the due administration of this title" requires the defendant be aware of IRS action, and the government provided no evidence at trial that Marinello knew of a pending IRS investigation against him. Finding that knowledge of a pending investigation is not an element of the offense of which Marinello was convicted, the Second Circuit affirmed his conviction and sentence.

The federal crime of corruptly endeavoring to obstruct or impede the due administration of the tax laws, 26 U.S.C. § 7212(a), requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action. Justice Stephen Breyer delivered the opinion for the 7-2 majority. Justice Breyer found that in the past, the Court had interpreted similar criminal statutes to require a "nexus" between the defendant's obstructive conduct and a particular judicial proceeding. Given that the key words in the statute "obstruct" and "impede" require an object the taxpayer must act with respect to a particular person or thing of which he is aware. Moreover, just because a taxpayer knows that the IRS will review his tax return does not mean that every Tax Code violation constitutes obstruction. Rather, in addition to satisfying the nexus requirement, the government must also demonstrate that the proceeding was pending at the time the defendant engaged in the obstructive conduct or at least was reasonably foreseeable by the defendant.

Justice Clarence Thomas authored a separate dissent in which Justice Samuel Alito joined. Justice Thomas found that the plain language of the statute forbids "corrupt efforts to impede the IRS from performing any of these activities" and does not require that the defendant acted with knowledge of a pending IRS action.


Kannon K. Shanmugam
Daniel L. Geyser
Christopher G. Michel

Paul Somers worked as Vice President of Digital Realty Trust from 2010 to 2014. According to his complaint, Somers filed several reports to senior management regarding possible securities law violations by the company, after which reports the company fired him. He did not report his concerns to the Securities and Exchange Commission (SEC) before he was terminated. Somers then sued Digital Realty, alleging violations of state and federal laws, including Section 21F of the Exchange Act, which includes the anti-retaliation protections created by the Dodd-Frank Act. Digital Realty sought to dismiss the Section 21F claim on the ground that, because Somers did not actually report the possible violations to the SEC, he was not a "whistleblower" as defined in the Act and thus not entitled to protection under its provisions.

The Fifth Circuit in 2013 had strictly applied the Act's definition of "whistleblower" to the anti-retaliation provision, while the Second Circuit, finding the statute itself ambiguous and applying Chevron deference to the SEC's reasonable interpretation of it, had held in 2015 that the provision extends to all those who make disclosures of suspected violations, regardless of whether the disclosures are made internally or to the SEC. The district court in this case followed the Second Circuit's approach and denied Digital Realty's motion to dismiss. The Ninth Circuit affirmed the district court's decision.

No, the anti-retaliation provision for "whistleblowers" in the Dodd-Frank Act protects only individuals who report alleged misconduct to the SEC. Justice Ruth Bader Ginsburg delivered the unanimous opinion of the Court. The Act explicitly defines whistleblowers as any individual who provides pertinent information "to the Commission," and this definition is corroborated by Dodd-Frank's purpose to aid the SEC's enforcement efforts by incentivizing people to tell the SEC about violations. Individuals who report violations to any other federal agency, Congress, or an internal supervisor, are not within the scope of this express definition of whistleblower in the Dodd-Frank Act. Because the language of the statute is not ambiguous, the SEC's contrary view is not entitled to Chevron deference.

Justice Clarence Thomas wrote a concurring opinion, in which Justices Samuel Alito and Neil Gorsuch joined, in which he joined the majority in its reading of the statutory text of the Dodd-Frank Act, but not as to the majority's use of a Senate Report to determine the purpose of the statute.

Justice Sonia Sotomayor wrote a concurring opinion, in which Justice Stephen Breyer joined. Justice Sotomayor joined the Court's opinion in full but noted her disagreement with Justice Thomas's suggestion in his concurrence that a Senate Report is not an appropriate source for the Court to consider when interpreting a statute.


Charles Murphy was an inmate in the Vandalia Correctional Center in Illinois. In July 2011, correctional officers hit Murphy, fracturing his eye socket, and did not provide him proper medical attention. Murphy sued under 42 U.S.C. § 1983 and state law theories. A jury returned a verdict in his favor and awarded him damages for some of his claims under state law, and the district court awarded him attorney fees under 42 U.S.C. § 1988. Two of the defendants appealed the judgment, arguing that the Illinois doctrine of sovereign immunity bars the state-law claims and that the Prison Litigation Reform Act requires that 25 percent of the damages awarded be used to pay the attorney fee award.

The Seventh Circuit affirmed the district court's holding that the state officials or employees are not entitled to sovereign immunity against state-law claims where the officials or employees violated statutory or constitutional law, which violations Murphy alleged and proved. The Seventh Circuit reversed on the attorney fee award, however, finding that the 42 U.S.C. § 1997e(d) requires that the attorney fee award must first be satisfied from up to 25 percent of the damage award and that the district court does not have discretion to reduce that maximum percentage.

The phrase "not to exceed 25 percent" as used in 42 U.S.C. § 1997e(d)(2) with respect to the award of attorneys fees in a civil rights suit means that the district court must use as much of the judgment as necessary to satisfy the fee award without exceeding the 25% limit, as the Seventh Circuit held. Justice Neil Gorsuch delivered the opinion of the 5-4 majority. The language of the provision, including the words "shall" and use of the infinitive phrase "to satisfy the amount of attorney's fees awarded" indicated the mandatory, rather than discretionary, nature of the provision's command to the district court. The majority also found that the statutory scheme, including Congress's intent in enacting a new and different law for prisoner rights suits, as well as the surrounding provisions, supported this reading of the statute.

Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined. In the dissent's view, the plain language of the provision at issue should give district courts the discretion to allocate a portion of a prisoner-plaintiff’s monetary judgment to an attorney’s fee award, provided that the portion is not greater than 25 percent. In support of its position, the dissent points to language considered but not accepted by Congress that more clearly supports the respondent-prisoners' interpretation.


Terrence Byrd was driving on a divided four-lane highway near Harrisburg, Pennsylvania, when he was pulled over allegedly for violating a state law requiring drivers to use the left lane for passing only. Recognizing the car as a rental car, the officers asked Byrd for his license and rental agreement, which he had difficulty locating. Once he did locate them, the officers noted that the rental agreement did not list Byrd as an authorized driver, and when they ran his identification, they noted that he was using an alias and had an outstanding warrant in New Jersey. Despite the warrant’s indication that it did not request extradition from other jurisdictions, the officers attempted to contact authorities in New Jersey to confirm they did not seek Byrd’s arrest and extradition, allegedly following protocol for such situations. The officers experienced difficulty with their communications, however, and returned to Byrd’s car, where they asked him to exit the vehicle and about his warrant and alias.

The officers asked whether Byrd had anything illegal in the car and then requested Byrd’s consent to search the car, noting that they did not actually need his consent because he was not listed on the rental agreement. The officers allege that Byrd gave his consent, but Byrd disputes this contention. The subsequent search turned up heroin and body armor in the trunk of the car.

At trial, Byrd moved to suppress the evidence, challenging the initial stop, the extension of the stop, and the search. The district court determined that the violation of the traffic law justified the initial stop and that the extension of the stop was justified by the officers’ developing reasonable suspicion of criminal activity. Byrd maintains that he did not consent to the search, so the issue remains whether he needed to consent at all—that is, whether he had a reasonable expectation of privacy in the rental vehicle, despite not being listed on the rental agreement. If he did not have a reasonable expectation of privacy, then the officers’ search of the vehicle did not require his consent.

There is a circuit split as to whether an unlisted driver of a rental car has a reasonable expectation of privacy in the rental vehicle, and the Third Circuit (where the district court in this case sits) has held that such a driver does not. Thus, the district court denied Byrd’s motion to suppress, and the Third Circuit, reviewing the factual questions for clear error and the legal question de novo, affirmed the judgment of the district court.

In a unanimous opinion authored by Justice Anthony Kennedy, the Court held that a driver of a rental car who has the renter's permission to drive it but is not listed as an authorized driver on the rental agreement does have a reasonable expectation of privacy against government searches of the vehicle. Although such a driver does not have a property interest in the car, property principles inform the reasoning behind this conclusion. A driver who has the permission of the lawful possessor or owner of the car has complete "dominion and control" over the property and can rightfully exclude others from it. The Court analogized to the situation in Jones v. United States, 362 U.S. 257 (1960), where the Court found that the defendant had a reasonable expectation of privacy in the apartment in which he was staying temporarily with the owner's permission, not withstanding the fact that the apartment was not lawfully his. Essential to the Court's holding was the finding that the driver in this case was in lawful possession; indeed, the driver of a stolen vehicle lacks a reasonable expectation of privacy in a car he may be driving.

Justice Clarence Thomas filed a concurring opinion in which Neil Gorsuch joined, questioning the validity of the "reasonable expectation of privacy" test. Justice Samuel Alito filed a separate concurring opinion encouraging the Court of Appeals to consider the question whether Byrd may assert a Fourth Amendment claim or to decide the appeal on another appropriate ground.


Toby J. Heytens
Kelsi B. Corkran
Elizabeth B. Prelogar

Matthew Vogt was employed as a police officer with the City of Hays, Kansas, when he applied for a position with the City of Haysville police department. During Vogt’s interview process with the City of Haysville, he disclosed that he had kept a knife obtained while working for the City of Hays.

The City of Haysville made Vogt an offer of employment contingent on his reporting his acquisition of the knife to the City of Hays and returning it, which Vogt did. Upon this report, the City of Hays chief of police ordered Vogt to issue a statement regarding the knife, which Vogt submitted nominally, in addition to a letter of resignation due to his intent to accept the position with the Haysville Police Department.

The Hays police chief began an internal investigation into Vogt and required him to issue a more detailed statement regarding the knife. This subsequent statement led to additional evidence, and Hays Police Department submitted both to the Kansas Bureau of Investigation, asking the Bureau to initiate a criminal investigation. As a result of the criminal investigation, the Haysville Police Department withdraw its offer of employment to Vogt.

Vogt was charged in state court with two felony counts related to his possession of the knife. Following a probable cause hearing, the state district court determined that probable cause was lacking and dismissed the charges. Vogt brought a federal lawsuit alleging that the use of his compelled statements (1) to start an investigation leading to the discovery of additional evidence concerning the knife, (2) to initiate a criminal investigation, (3) to bring criminal charges, and (4) to support the prosecution during the probable cause hearing violated his Fifth Amendment right against self-incrimination.

The district court dismissed his case for failure to state a claim, and, reviewing the claims de novo, the Tenth Circuit affirmed the district court’s holding as to the first three claims but reversed as to the fourth one, finding that the Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.

In a per curiam opinion, the writ of certiorari was dismissed as improvidently granted. Justice Neil Gorsuch took no part in the consideration or decision of the case.


On two occasions, a particular unique-looking motorcycle evaded Albemarle police officers after they observed the rider violating traffic laws. After some investigation, one of the officers located the house where the suspected driver of the motorcycle lived and observed what appeared to be the same motorcycle covered by a tarp in the driveway. The officer lifted the tarp and confirmed that it was the motorcycle (which was also stolen) that had eluded detainment on multiple occasions. The officer waited for the suspect to return home, at which point he went to the front door to inquire about the motorcycle. Initially the suspect denied knowing anything about it but eventually confessed that he had bought the motorcycle knowing that it had been stolen. The officer arrested the suspect for receipt of stolen property.

At trial, the defendant sought to suppress the motorcycle as evidence on the grounds that the police officer conducted an illegal warrantless search (by lifting the tarp covering the motorcycle parked in the driveway) that led to its discovery. The trial court held that the search was based on probable cause and justified under the exigent circumstances automobile exceptions to the Fourth Amendment’s warrant requirement and convicted the defendant. The appeals court affirmed on the grounds of exigent circumstances, and the Virginia Supreme Court affirmed as well, but under the automobile exception only. The Virginia Supreme Court reasoned that the automobile exception applies even when the vehicle is not “immediately mobile” and applies to vehicles parked on private property.

The Fourth Amendment's automobile exception does not permit a police officer without a warrant to enter private property to search a vehicle parked a few feet from the house. In an 8–1 opinion authored by Justice Sonia Sotomayor, the Court held that its own Fourth Amendment jurisprudence regarding the home and the "curtilage" of one's home (the area immediately surrounding it) clearly prevents officers from entering and searching without a warrant, even if the object searched is an automobile. The Court found that the area searched (the back of the driveway) was indeed the curtilage of the defendant's home, and thus the Fourth Amendment's highest degree of protection applies there. Although warrantless searches of automobiles are permissible in limited circumstances, the warrantless search of an automobile parked within the curtilage of one's home is not permissible.

Justice Clarence Thomas wrote a concurring opinion to express doubt about the Court's authority to impose the exclusionary rule on the states.

Justice Samuel Alito wrote a dissenting opinion in which he opined that the automobile exception should apply in this case and that the search was in no way "unreasonable."


Stephen I. Vladeck
Brian H. Fletcher
Aditya Bamzai

Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a "civil office,” including positions that require "an appointment by the President by and with the advice and consent of the Senate." 10 U.S.C. § 973(b)(2)(A)(ii). After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I US Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the US Air Force Court of Criminal Appeals (CCA). A judge convicted Nicole Dalmazzi of wrongfully using ecstasy, a Schedule I controlled substance and sentenced her to dismissal and confinement for one month. The AFCCA affirmed the findings and sentence. Dalmazzi moved the CCA to vacate its judgment because of the participation of Judge Mitchell on the panel. Before the CCA ruled on her motion, Dalmazzi filed a petition for review with the Court of Appeals for the Armed Forces (CAAF), so the CCA dismissed the motion for lack of jurisdiction. The CAAF rejected as moot Dalmazzi’s challenge to Judge Mitchell's continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits. Both of the other consolidated cases involve similar facts, where Judge Mitchell was on the CCA panel that affirmed the convictions of the petitioners.

In a per curiam opinion, the Court dismissed the writ of certiorari as improvidently granted in this case and in the consolidated case Cox v. United States (16-1017). The Court reached the merits and issued a decision in the third consolidated case only, Ortiz v. United States (16-1423).


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.

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.