Malcolm L. Stewart
Mark A. Perry
Jeffrey A. Lamken

The Patent Trial and Appeal Board consists of a Director, a Deputy Director, a Commissioner for Patents, a Commissioner for Trademarks, and administrative patent judges. Under 35 U.S.C. § 6(a), the Secretary of Commerce, in consultation with the Director of the U.S. Patent and Trademark Office (USPTO), appoints Administrative Patent Judges (APJs) to the Board. Among other responsibilities, APJs decide questions of patentability in inter partes review, a “hybrid proceeding” with “adjudicatory characteristics similar to court proceedings.”

Arthrex owns a patent that was subject to inter partes review, and a three-judge panel consisting of three APJs issued a final written decision finding the claims unpatentable. Arthrex appealed to the U.S. Circuit Court for the Federal Circuit, claiming that the appointment of APJs violates the Appointments Clause of the U.S. Constitution. The Federal Circuit agreed, finding that the statute as currently constructed makes APJs principal officers, who must be appointed by the President with the advice and consent of the Senate. The court severed the portion of the Patent Act restricting removal of the APJs in order to render them inferior officers and thus remedy the constitutional appointment problem.

The unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office. Chief Justice John Roberts authored the opinion of the Court, in which he was joined in that holding by Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Having found a constitutional violation, Chief Justice Roberts cured the defect by requiring that the Director of the USPTO hold the ultimate authority to review the final outcome of inter partes review proceedings--a departure from the statutory scheme passed by Congress. Though only Justices Alito, Kavanaugh, and Barrett joined this part of the opinion, a concurring opinion authored by Justice Stephen Breyer and joined by Justices Sonia Sotomayor and Elena Kagan approved of the remedy despite disagreeing with the holding that made it necessary.

Justice Gorsuch filed an opinion concurring in part and dissenting in part.  While he was part of the majority that held APJs wielded unconstitutional authority, his remedy would have been to invalidate the statutory scheme and send the problem to Congress for a fix that complied with the Constitution.

Justice Clarence Thomas dissented from the majority’s approach. He concluded both that the APJs were inferior officers under the Constitution under the statutory scheme approved by Congress, and that the appropriate remedy once the Court held otherwise was to have vacated the decision of the APJs at the heart of the dispute.


Jeffrey L. Fisher
Samuel T. Harbourt
Amanda K. Rice
Erica L. Ross

A California Highway Patrol officer observed a parked car “playing music very loudly,” and then the driver, Arthur Gregory Lange, honked the horn four or five times despite there being no other vehicles nearby. Finding this behavior unusual, the officer began following Lange, intending to conduct a traffic stop. After following Lange for several blocks, the officer activated his overhead lights, and Lange “failed to yield.” Lange turned into a driveway and drove into a garage. The officer followed and interrupted the closing garage door. When asked whether Lange had noticed the officer, Lange replied that he had not. Based on evidence obtained from this interaction, Lange was charged with two Vehicle Code misdemeanors and an infraction.

Lange moved to suppress the evidence obtained in the garage. At the suppression hearing, the prosecutor argued that Lange committed a misdemeanor when he failed to stop after the officer activated his overhead lights and that the officer had probable cause to arrest Lange for this misdemeanor offense. Based on this probable cause, the prosecutor argued that exigent circumstances justified the officer’s warrantless entry into Lange’s garage. Lange’s attorney argued that a reasonable person in Lange's position would not have thought he was being detained when the officer activated his overhead lights, and the officer should not have entered Lange's garage without a warrant. The court denied Lange’s motion to suppress, and the appellate division affirmed. Lange pled no contest and then appealed the denial of his suppression motion a second time. The appellate division affirmed Lange's judgment of conviction.

In the meantime, Lange filed a civil suit, asking the court to overturn the suspension of his license, and the civil court granted the petition after determining Lange's arrest was unlawful. The court reasoned that the “hot pursuit” doctrine did not justify the warrantless entry because when the officer entered Lange's garage, all the officer knew was that Lange had been playing his music too loudly and had honked his horn unnecessarily, which are infractions, not felonies.

Based on the inconsistent findings of the courts, Lange petitioned for transfer to the California Court of Appeal, which concluded that Lange's arrest was lawful and affirmed the judgment of conviction.

Pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home. Justice Elena Kagan authored the majority opinion of the Court.

The Fourth Amendment ordinarily requires a police officer to obtain a warrant to enter a home, but under settled law, an officer may enter a home without a warrant under certain specific circumstances, including exigency. The Court has recognized exigent circumstances when an officer must act to prevent imminent injury, the destruction of evidence, or a felony suspect’s escape.

That a suspect is fleeing does not categorically create exigency. In United States v. Santana, 427 U.S. 38 (1976), the Court recognized that the “hot pursuit” of a felony suspect created exigency that justified warrantless entry into a home. However, that case did not address hot pursuit of misdemeanor suspects. Rather, the Court’s Fourth Amendment precedents support a case-by-case assessment of the exigencies arising from a particular suspect’s flight.

Justice Brett Kavanaugh authored a concurring opinion noting that the reasoning of the majority and that of Chief Justice John Roberts in his opinion concurring in the judgment are not so dissimilar as they might seem at first. Rather, cases involving fleeing misdemeanor suspects “will almost always” involve a recognized exigent circumstance” such that warrantless entry into a home is justified.

Justice Clarence Thomas authored an opinion concurring in part and concurring in the judgment. Justice Thomas noted that the general case-by-case rule described by the majority is subject to historical, categorical exceptions. Joined by Justice Kavanaugh, Justice Thomas also noted that the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect.

Chief Justice Roberts authored an opinion concurring in the judgment, which Justice Samuel Alito joined. The Chief Justice argued that it is well established that the flight, not the underlying offense, justifies the “hot pursuit” exception.


Willie Earl Carr sought disability benefits from the Social Security Administration (“SSA”), but an administrative law judge (“ALJ”) denied his claim and the agency’s Appeals Council declined to review the decision. Carr appealed to a federal district court.

While his case in the district court was pending, the U.S. Supreme Court held, in Lucia v. Securities and Exchange Commission, that Securities and Exchange Commission ALJs are “inferior officers” under the Appointments Clause of Article II of the U.S. Constitution, and as inferior officers, they must be appointed by the President, a court, or the head of the agency.

In response to Lucia, the SSA Commissioner appointed the SSA’s ALJs. After these appointment actions, Carr raised a claim for the first time that the ALJs who had rejected their claims had not been properly appointed under the Appointments Clause.

The district court agreed, vacating the SSA’s decision and remanding the case for new hearings before constitutionally appointed ALJs. By agreeing on the merits, the district court held that Carr had not waived his right to raise an Appointments Clause claim by failing to raise that claim during the administrative proceedings. The SSA Commissioner appealed, arguing that Carr did waive the Appointments Clause challenge by failing to raise it earlier. The U.S. Court of Appeals for the Tenth Circuit agreed and reversed the lower court.

Persons seeking disability benefits under the Social Security Act need not argue at the agency level that the administrative law judges hearing their disability claims were unconstitutionally appointed for that argument to be preserved on appeal. Justice Sonia Sotomayor authored the majority opinion.

Generally, administrative review schemes require parties to give the agency an opportunity to address an issue before seeking judicial review of that question, known as “issue exhaustion.” However, if there is not a statute or regulation that imposes an issue-exhaustion requirement, courts decide whether to require issue exhaustion in a manner consistent with “the rule that appellate courts will not consider arguments not raised before trial courts.” In this case, issue exhaustion was not necessary.

First, agency adjudications are not well suited to address structural constitutional challenges because such issues usually fall outside the adjudicators’ areas of technical expertise. Second, issue exhaustion is generally not required when the agency is unable to provide meaningful relief to resolve the issue. As such, the Courts of Appeals erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims.

Justice Clarence Thomas authored an opinion concurring in part and concurring in the judgment, which Justices Neil Gorsuch and Amy Coney Barrett joined. Justice Thomas agreed with the Court that there was no need for an exhaustion rule based solely on the conclusion that the proceedings bear little resemblance to adversarial litigation.

Justice Stephen Breyer authored an opinion concurring in part and concurring in the judgment, noting that in his view, the “nonadversarial nature” of the agency’s procedures is generally irrelevant to whether the ordinary rule requiring issue exhaustion ought to apply.” However,  the Appointments Clause challenges at issue fall into the well-established exceptions for constitutional and futile claims.


In 1975, California enacted the Agricultural Labor Relations Act (“ALRA”), which, among other things, created the Agricultural Labor Relations Board (“the Board”). Shortly after Act went into effect and established the Board, the Board promulgated a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances.

Cedar Point Nursery, an Oregon corporation, operates a nursery in Dorris, California, that raises strawberry plants for producers. It employs approximately 100 full-time workers and more than 400 seasonal workers at that location. On October 29, 2015, organizers from the United Farm Workers union ("the UFW") entered the nursery, without providing prior written notice of intent to take access as required by the regulation. The UFW allegedly disrupted the workers, and some workers left their work stations to join the protest, while a majority of workers did not.

Sometime later, the UFW served Cedar Point with written notice of intent to take access. Cedar Point filed a charge against the UFW with the Board, alleging that the UFW had violated the access regulation by failing to provide the required written notice before taking access. The UFW likewise filed a countercharge, alleging that Cedar Point had committed an unfair labor practice.

Cedar Point then sued the Board in federal district court alleging that the access regulation, as applied to them, amounted to a taking without compensation, in violation of the Fifth Amendment, and an illegal seizure, in violation of the Fourth Amendment. The district court granted the Board’s motion to dismiss for failure to state a claim, and Cedar Point appealed. Reviewing the district court’s order granting the motion to dismiss de novo, the U.S. Court of Appeals for the Ninth Circuit concluded that the access regulation does not violate either provision, and it affirmed the lower court.

The California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking. Chief Justice John Roberts authored the 6-3 majority opinion of the Court.

The Takings Clause of the Fifth Amendment of the U.S. Constitution, which applies to the states via the Fourteenth Amendment, prohibits the government from taking private property for public use “without just compensation.” There are two types of takings: physical appropriations of land and imposition of regulations that restrict the landowner’s ability to use the land. Physical takings must be compensated. Use restrictions are evaluated using a flexible test developed in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), which balances factors such as the “economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.”

In this case, the California regulation granting labor organizations a “right to take access” to an agricultural employer’s property is a physical taking. The regulation does not restrict the growers’ use of their own property, but instead appropriates the owners’ right to exclude third parties from their land, “one of the most treasured rights” of property ownership. By granting access to third-party union organizers, even for a limited time, the regulation confers a right to physically invade the growers’ property and thus constitutes a physical taking.

Justice Brett Kavanaugh authored a concurring opinion describing another way the Court could have arrived at the same conclusion, using a different precedent.

Justice Stephen Breyer authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Breyer argued that the regulation does not physically appropriate growers’ property; rather, it temporarily regulates their right to exclude others and as such should be subject to the “flexible” Penn Central rule.


Jeffrey B. Wall
Barbara D. Underwood
Dale E. Ho

On July 21, 2020, President Donald Trump announced that the population figures used to determine the apportionment of Congress would, in a reversal of long-standing practice, exclude non-citizens who are not lawfully present in the United States. To implement this new policy, the President ordered the Secretary of Commerce to provide him two sets of numbers for each state. The first number was the total population as determined in the 2020 census and the second, the total population as determined in the 2020 census minus the number of "aliens who are not in a lawful immigration status." The President left it to the Secretary to determine how to calculate the latter figure, but since the 2020 census did not not collect information regarding citizenship status, let alone legal immigration status in this country, it remained unclear how the Secretary would obtain that number.

Immediately after the President filed the memorandum, two sets of plaintiffs—a coalition of 22 States and D.C., 15 cities and counties, and the U.S. Conference of Mayors (the "Governmental Plaintiffs"); and a coalition of non-governmental organizations—challenged the decision to exclude illegal aliens from the apportionment base for Congress on the ground that it violates the Constitution, statutes governing the census and apportionment, and other laws.

The federal district court found for the plaintiffs, concluding that by directing the Secretary to provide two sets of numbers, one derived from the census and one not, and announcing that it is the policy of the United States to use the latter to apportion the House, the memorandum violated the statutory scheme. In addition, the court concluded that the memorandum violated the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.

In a per curiam (unsigned) opinion, the Court held that the plaintiffs in this case had not shown standing and that their claims were not ripe for adjudication. As such, the Court vacated the District Court’s judgment and remanded the case with instructions to dismiss for lack of jurisdiction.

For a federal court to have jurisdiction to hear a case, the plaintiffs must demonstrate they have standing, which requires “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical. Further, the case must be “ripe”—that is, it must not depend on “contingent future events that may not occur as anticipated, or indeed may not occur at all.”

Although the President clearly expressed his desire to exclude unlawfully present noncitizens from the apportionment base “to the extent practicable,” it remains mere conjecture whether and how the Executive Branch might eventually implement this general statement of policy. Moreover, the plaintiffs had suffered no concrete harm from the policy itself, because the policy “does not require them ‘to do anything or to refrain from doing anything.’” As such, the courts lack jurisdiction to hear the case because the plaintiffs have not demonstrated Article III standing or that the case is ripe for review.

Justice Stephen Breyer authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. The dissent argued that the plaintiffs did have standing based on its own precedents in census cases, which have recognized standing based on a substantial risk of anticipated apportionment harm. Justice Breyer also argued that the question is ripe for resolution, and as such, that the plaintiffs should prevail on the merits because “the plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status.”


Shay Dvoretzky
Marc Desisto
Morgan L. Ratner

Edward Caniglia and his wife Kim got into a heated argument, during which Caniglia displayed a gun and told Kim something to the effect of “shoot me now.” Fearing for her husband’s state of mind, Kim decided to vacate the premises for the night. The next morning, she asked an officer from the Cranston Police Department to accompany her back to the house because she was worried that her husband might have committed suicide or otherwise harmed himself.

Kim and several police officers went to the house, and while the encounter was non-confrontational, the ranking officer on the scene determined that Caniglia was imminently dangerous to himself and others and asked him to go to the hospital for a psychiatric evaluation, which Caniglia agreed to. While Caniglia was at the hospital, the ranking officer (with telephone approval from a superior officer) seized two of Caniglia’s guns, despite knowing that Caniglia did not consent to their seizure.

Caniglia was evaluated but not admitted as an inpatient. In October of 2015, after several unsuccessful attempts to retrieve his firearms from the police, Caniglia’s attorney formally requested their return, and they were returned in December. Subsequently he filed a lawsuit under Section 1983 alleging the seizure of his firearms constituted a violation of his rights under the Second and Fourth Amendments. The district court granted summary judgment to the defendants, and the Caniglia appealed. Although the U.S. Supreme Court has recognized “community caretaking” as an exception to the Fourth Amendment’s warrant requirement in the context of a vehicle search, whether that concept applies in the context of a private home was a matter of first impression within the First Circuit. The appellate court held that the doctrine does apply in the context of a private home and affirmed the lower court’s decision.

The “community caretaking” exception to the Fourth Amendment’s warrant requirement, described in Cady v. Dombrowski, 413 U.S. 433 (1973), does not extend to the home. Justice Clarence Thomas authored the unanimous opinion, holding that police officers’ seizure of the petitioner’s guns from his home violated his Fourth Amendment right against warrantless searches and seizures.

The lower court’s conclusion that the “community caretaking” exception permitted the officers to seize the petitioner’s guns relied on an extension of Cady, which held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. The Court’s jurisprudence makes clear that vehicle searches are different in kind from home searches, the latter of which are subject to the highest level of protection the Constitution affords. The Court has repeatedly declined to expand the scope or number of exceptions to the warrant requirement to permit warrantless entry into the home, and it declined to do so here.

Chief Justice John Roberts authored a concurring opinion, which Justice Stephen Breyer joined, to clarify that the Court’s decision does not disturb the Court’s holding in Brigham City v. Stuart, 547 U.S. 398 (2006), that a peace officer does not need a warrant to enter a home in situations where there is a “need to assist persons who are seriously injured or threatened with such injury.”

Justice Samuel Alito authored a concurring opinion to note that while he agrees with the Court’s opinion, there are certain related questions the Court did not decide.


Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System

Kannon K. Shanmugam
Sopan Joshi
Thomas C. Goldstein

Shareholders of Goldman Sachs Group filed a class-action lawsuit alleging that the company and several of its executives committed securities fraud by misrepresenting the company’s freedom from, or ability to combat, conflicts of interest in its business practices. The district court certified a shareholder class, but in 2018, the U.S. Court of Appeals for the Second Circuit vacated the order because the district court did not apply the “preponderance of the evidence” standard in determining whether Goldman had rebutted the legal presumption that the shareholders relied on Goldman’s alleged misstatements in purchasing its stock at the market price (known as the Basic presumption). On remand, the district court certified the class once more, and this time, the Second Circuit affirmed the district court's order certifying the class. The court concluded that, on remand, the district court had applied the correct legal standard and did not abuse its discretion in rejecting Goldman’s rebuttal evidence to conclude that it had failed to rebut the Basic presumption.

While a defendant in a securities class action may point to the generic nature of the alleged misrepresentations to show that those statements had no impact on the price of the security in overcoming the Basic presumption, that defendant bears not only the burden of production, but also the burden of persuasion. Justice Amy Coney Barrett authored the opinion of the Court, in which she was joined in full by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Brett Kavanaugh.  Justice Neil Gorsuch—joined by Justices Clarence Thomas and Samuel Alito—concurred in part and in the judgment, while Justice Sonia Sotomayor concurred in part but dissented from the judgment.

Justice Barrett wrote, “The parties now agree, as do we, that the generic nature of a misrepresentation often in important evidence of price impact courts should consider at class certification” and not just at the merits phase of securities litigation. Because the Court concluded that the U.S. Court of Appeals for the Second Circuit may not have properly considered the generic nature of the alleged statements, it vacated that court’s judgment and remanded the case for further proceedings. As for which party bears the burden of persuasion, the Court held that the Second Circuit properly allocated the burden to the defendant but noted that “the burden of persuasion should rarely be outcome determinative” at the class certification stage.

While concurring in the decision to remand the case because the Court of Appeal did not sufficiently consider the generic nature of the alleged misstatements, Justice Gorsuch disagreed that the defendant should bear the burden of persuasion in overcoming the Basic presumption.

Justice Sotomayor, on the other hand, dissented from the Court’s judgment because she believed the Court of Appeal had, in fact, adequately considered the generic nature of the alleged misstatements before granting class certification. In other words, while she agreed with the entirety of the Court’s analysis of how to proceed, she believed that the Second Circuit had met that standard and would not have vacated its ruling.


Paul D. Clement
Nicole F. Reaves
Samuel Issacharoff

In February 2011, Sergio Ramirez went with his wife and father-in-law to purchase a car. When the dealership ran a joint credit check on Ramirez and his wife, it discovered that Ramirez was on a list maintained by the Treasury Department’s Office of Foreign Assets Control (OFAC), of people with whom U.S. companies cannot do business (i.e. “a terrorist list”). Ramirez and his wife still bought a car that day, but they purchased it in her name only. TransUnion, the company that had prepared the report, eventually removed the OFAC alert from any future credit reports that might be requested by or for Ramirez.

On behalf of himself and others similarly situated, Ramirez TransUnion in federal court, alleging that the company’s actions violated the Fair Credit Reporting Act (FCRA). The district court certified a class of everyone who, during a six-month period, had received a letter from TransUnion stating that their name was a “potential match” for one on the OFAC list, although only a fraction of those class members had their credit reports sent to a third party.

The jury awarded each class member nearly $1,000 for violations of the FCRA and over $6,000 in punitive damages, for a total verdict of over $60 million. On appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the statutory damages but reduced the punitive damages to approximately $32 million.

TransUnion asked the Supreme Court to resolve two questions, of which the Court agreed to decide only the first.

Only a plaintiff concretely harmed by a defendant’s violation of the Fair Credit Reporting Act has Article III standing to seek damages against that private defendant in federal court. Justice Brett Kavanaugh authored the 5-4 majority opinion.

To have Article III standing to sue in federal court, a plaintiff must show that she suffered concrete injury in fact, that the injury was fairly traceable to the defendant’s conduct, and that the injury is likely to be redressed by a favorable ruling by the court. To show a concrete injury, a plaintiff must demonstrate that the asserted harm is similar to a harm traditionally recognized as providing a basis for a lawsuit in American courts—i.e., a close historical or common-law analogue for their asserted injury.

Of the 8,185 class members, TransUnion provided third parties with credit reports containing OFAC alerts for only 1,853 individuals; these individuals have standing. The remaining 6,332 class members stipulated that TransUnion did not provide their credit information to any potential creditors during the designated class period and thus have failed to demonstrate concrete harm required for Article III standing. Mere risk of future harm is insufficient to establish standing.

Justice Clarence Thomas authored a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Thomas argued that injury in law to a private right has historically been sufficient to establish “injury in fact” for standing purposes, and each class member in this case has demonstrated violation of their private rights.

Justice Kagan authored a dissenting opinion joined by Justices Breyer and Sotomayor arguing that Congress expressly allowed these plaintiffs to bring their claim of violation of the Fair Credit Reporting Act, yet the majority disallows them from doing so. Justice Kagan noted her slightly different understanding of the “concrete injury” requirement for Article III standing that Justice Thomas described in his dissent but suggested such a difference would not lead to a different outcome.


National Collegiate Athletic Association v. Alston

Seth P. Waxman
Jeffrey L. Kessler
Elizabeth B. Prelogar

In NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), the Supreme Court struck down the NCAA’s television plan as violating antitrust law, but in so doing it held that the rules regarding eligibility standards for college athletes are subject to a different and less stringent analysis than other types of antitrust cases. Because of this lower standard, the NCAA has long argued that antitrust law permits them to restrict athlete compensation to promote competitive equity and to distinguish college athletics from professional sports.

Several Division 1 football and basketball players filed a lawsuit against the NCAA, arguing that its restrictions on “non-cash education-related benefits,” violated antitrust law under the Sherman Act. The district court found for the athletes, holding that the NCAA must allow for certain types of academic benefits, such as “computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies.” However, the district court held that the NCAA may still limit cash or cash-equivalent awards for academic purposes. The U.S. Court of Appeals for the Ninth Circuit affirmed, recognizing the NCAA’s interest in “preserving amateurism,” but concluding nevertheless that its practices violated antitrust law.

The NCAA’s rules restricting certain education-related benefits for student-athletes violate federal antitrust laws.  Writing for a unanimous Court, Justice Neil Gorsuch upheld the trial court’s ruling. The Court affirmed that the traditional “rule of reason” standard was appropriate in this case and rejected the NCAA’s call for a more deferential standard. Because the student-athletes who brought the lawsuit did not appeal the Ninth Circuit’s ruling upholding the NCAA’s rules “untethered to education,” the Court did not pass judgment on that aspect of the case.

In affirming the Ninth Circuit’s ruling, the Court clarified that a prior statement made in the 1984 case NCAA v. Board of Regents of the University of Oklahoma noting that the NCAA’s role in maintaining the “revered tradition of amateurism” was “entirely consistent with the goals of the Sherman Act” was not a shield against all challenges to compensation restrictions, as such rules were not even at issue in that case. Instead, there was nothing so unique about the NCAA or amateur sports to alter the traditional method of analysis applied to claims of antitrust violations.

In a concurring opinion, Justice Brett Kavanaugh noted that while other rules limiting student-athlete compensation unrelated to academics remain in place because they were not properly before the Court, this decision makes clear that the same traditional “rule of reason” analysis would apply. He concluded, “there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny.”


Derek L. Shaffer
Elizabeth B. Prelogar
Aimee A. Feinberg

The California Attorney General’s office has a policy requiring charities to provide the state, on a confidential basis, information about their major donors, purportedly to help the state protect consumers from fraud and the misuse of their charitable contributions. Petitioner Americans for Prosperity (and the petitioner in the consolidated case, Thomas More Law Center) either failed to file or filed redacted lists of their major donors with the California Attorney General’s office, despite filing complete lists with the federal Internal Revenue Service, as required by federal law.

In response to demands by the California Attorney General that they file the lists, the organizations filed a lawsuit alleging that the filing requirement unconstitutionally burdened their First Amendment right to free association by deterring individuals from financially supporting them. The organizations provided evidence that although the state is required to keep donor names private, the state’s database was vulnerable to hacking, and many donor names were repeatedly released to the public. Based in part on this finding, the district court granted both organizations’ motions for a preliminary injunction and then ultimately found for them after a trial, holding that the organizations and their donors were entitled to First Amendment protection under the principles established in the Supreme Court’s decision in NAACP v. Alabama. In so holding, the court reasoned that the government’s filing demands were not the “least restrictive means” of obtaining the information and thus did not satisfy “strict scrutiny.”

A panel of the U.S. Court of Appeals for the Ninth Circuit reversed, based on its conclusion that “exacting scrutiny” rather than “strict scrutiny” was the appropriate standard, and “exacting scrutiny” requires that the government show that the disclosure and reporting requirements are justified by a compelling government interest and that the legislation is narrowly tailored to serve that interest.

The Ninth Circuit denied the petition for a rehearing en banc.

California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. Chief Justice John Roberts authored the opinion of the Court.

Compelled disclosure of affiliation with groups engaged in advocacy is a type of restraint on freedom of association. Such a restraint is subject to “exacting scrutiny,” which requires “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Though the government-mandated disclosure regime need not be the “least restrictive means” of achieving the government’s interest, it must be “narrowly tailored” to achieve it.

California’s disclosure requirement is “dramatically mismatch[ed]” to the state’s interest in preventing charitable fraud and self-dealing, imposing an unjustifiable “widespread burden on donors’ associational rights.”

Justice Clarence Thomas authored an opinion concurring in part and concurring in the judgment. Justice Thomas would apply strict scrutiny to the disclosure requirement, leading to the same conclusion that it is facially invalid. However, Justice Thomas took issue with the Court’s opinion that the statute is unconstitutional in all applications.

Justice Samuel Alito authored an opinion concurring in part and concurring in the judgment, in which Justice Neil Gorsuch joined. Justice Alito disagreed with the majority that precedents establish that exacting scrutiny applies in these types of cases. He noted that the outcome is the same under either level of scrutiny, so he would not decide what level of scrutiny applies.

Justice Sonia Sotomayor authored a dissenting opinion, in which Justices Stephen Breyer and Elena Kagan joined. Justice Sotomayor argued that the majority accepts, without requiring the plaintiffs to show, an actual First Amendment burden. In effect, Justice Sotomayor argued, the majority allows regulated entities to avoid obligations “by vaguely waving toward First Amendment ‘privacy concerns.’”


M. Allison Guagliardo
Benjamin W. Snyder

In 2007, Tracy A. Greer pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), along with numerous other charges not directly relevant to this case. In the plea agreement, the parties agreed that Greer was “punishable as an Armed Career Criminal” based on his five prior convictions for aggravated burglary under Ohio law. The district court agreed and sentenced Greer to 272 months’ imprisonment.

In 2015, the U.S. Supreme Court invalidated the “residual clause” of the Armed Career Criminal Act (ACCA), and in 2016 it made that invalidation retroactive on collateral review. Greer moved to vacate his sentence, but the district court denied his motion, holding that his convictions qualified under the ACCA’s enumerated-offenses clause, not the residual clause. The U.S. Court of Appeals for the Eleventh Circuit affirmed.

In 2019, the U.S. Supreme Court decided Rehaif v. United States, which held that when a person is charged with possessing a gun while prohibited from doing so under 18 U.S.C. § 922, the prosecution must prove both that the accused knew that they possessed a gun and that they knew they held the relevant status. The Court granted Greer’s petition for writ of certiorari, vacated the judgment affirming his conviction, and remanded for reconsideration in light of Rehaif.

On remand, Greer requested that the Eleventh Circuit vacate his conviction or, in the alternative, grant him a new trial, because the prosecution did not prove, nor was the jury instructed to find, that he knew he was a felon when he possessed the firearm.

The Eleventh Circuit concluded that although Greer had shown plain error, he could not prove that he was prejudiced by the errors or that they affected the fairness, integrity, or public reputation of his trial. To reach this conclusion, the court looked at the entire trial record and Greer’s previous convictions, not merely the evidence submitted to the jury. Greer again petitioned the Supreme Court for review.

A federal appellate court reviewing the decision of a lower court for plain error may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights, and an error under Rehaif v. United States, is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon. Justice Brett Kavanaugh authored the majority opinion.

Rule 51(b) of the Federal Rules of Criminal Procedure provides that a defendant can preserve a claim of error “by informing the court” of the claimed error when the relevant “court ruling or order is made or sought.” Rule 52(b) allows an appellate court to review for “plain error” “even though it was not brought to the court’s attention” if it “affects substantial rights.” Thus, the defendant must show that, if

the district court had correctly instructed the jury on the mental culpability element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. If the defendant does not dispute the fact of his prior convictions, he has not met this burden. Such is the case here. Further, the Supreme Court has repeatedly held that an appellate court conducting plain-error review may consider the entire record—not just the record from the particular proceeding where the error occurred.

Justice Sonia Sotomayor authored an opinion concurring in part and dissenting in part. Justice Sotomayor noted that the Court’s analysis does not extend to harmless-error review and that the knowledge-of-status element is an element just like any other, which the government must prove it beyond a reasonable doubt, while defendants seeking relief based on Rehaif errors bear must prove only plain error. She joined the majority as to Greer’s case but as to Gary in the consolidated case would vacate the judgment below and remand so the Fourth Circuit below could address the question whether Gary can prove that the error affected his substantial rights.


Lisa S. Blatt
Malcolm L. Stewart
David D. Cole

B.L., a student at Mahanoy Area High School (MAHS), tried out for and failed to make her high school's varsity cheerleading team, making instead only the junior varsity team. Over a weekend and away from school, she posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.” The photo was visible to about 250 people, many of whom were MAHS students and some of whom were cheerleaders. Several students who saw the captioned photo approached the coach and expressed concern that the snap was inappropriate. The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, and she was suspended from the junior varsity team for a year.

B.L. sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.

The First Amendment limits but does not entirely prohibit regulation of off-campus student speech by public school officials, and, in this case, the school district’s decision to suspend B.L. from the cheerleading team for posting to social media vulgar language and gestures critical of the school violates the First Amendment. Justice Stephen Breyer authored the 8-1 majority opinion of the Court.

Although public schools may regulate student speech and conduct on campus, the Court’s precedents make clear that students do not “shed their constitutional rights to freedom of speech or expression” when they enter campus. The Court has also recognized that schools may regulate student speech in three circumstances: (1) indecent, lewd, or vulgar speech on school grounds, (2) speech promoting illicit drug use during a class trip, and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper. Moreover, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court held that schools may also regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The school’s interests in regulating these types of student speech do not disappear when the speaker is off campus. Three features of off-campus speech diminish the need for First Amendment leeway: (1) off-campus speech normally falls within the zone of parental responsibility, rather than school responsibility, (2) off-campus speech regulations coupled with on-campus speech regulations would mean a student cannot engage in the regulated type of speech at all, and (3) the school itself has an interest in protecting a student’s unpopular off-campus expression because the free marketplace of ideas is a cornerstone of our representative democracy.

In this case, B.L. spoke in circumstances where her parents, not the school, had responsibility, and her speech did not cause “substantial disruption” or threaten harm to the rights of others. Thus, her off-campus speech was protected by the First Amendment, and the school’s decision to suspend her violated her First Amendment rights.

Justice Samuel Alito authored a concurring opinion, joined by Justice Neil Gorsuch, explaining his understanding of the Court’s decision. Justice Alito argued that a key takeaway of the Court’s decision is that “the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

Justice Clarence Thomas authored a dissenting opinion, arguing that schools have historically had the authority to regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs. Justice Thomas viewed the facts of this case as falling squarely within that rule and thus would have held that the school could properly suspend B.L. for her speech.


Petitioners Jose Sanchez and his wife were citizens of El Salvador who entered the United States without inspection or admission in 1997 and again in 1998. Following a series of earthquakes in El Salvador in 2001, they applied for and received temporary protected status (TPS) and were subsequently permitted to remain in the United States due to periodic extensions of TPS eligibility for El Salvadoran nationals by the Attorney General.

In 2014, Sanchez and his wife applied to become lawful permanent residents under 8 U.S.C. § 1255. The United States Citizenship and Immigration Services (USCIS) denied their applications, finding that Sanchez was “statutorily ineligible” for adjustment of status because he had not been admitted into the United States. They challenged the denial in federal district court, and the district court granted their motion for summary judgment, holding a grant of TPS meets § 1255(a)’s requirement that an alien must be “inspected and admitted or paroled” to be eligible for adjustment of status. The U.S. Court of Appeals for the Third Circuit reversed, finding  no support in the text, context, structure, or purpose of the statutes for the claim that a grant of TPS may serve as an admission for those who entered the United States illegally.

The conferral of Temporary Protected Status under 8 U.S.C. § 1254a does not constitute an “admission” into the United States under 8 U.S.C. § 1255, so recipients of such status are not eligible to become lawful permanent residents. Justice Elena Kagan authored the unanimous opinion of the Court.

Section 1255 provides a way for a “nonimmigrant”—that is, a foreign national who is lawfully present in the United States for a designated, temporary basis—to become a lawful permanent resident (LPR). One requirement for eligibility is an “admission” into the country, and “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

Entering the country via a provision of humanitarian law that bypasses the inspection and authorization procedure does not meet the requirement for “admission,” so those who are present in the country by that means are not eligible to become lawful permanent residents.


In 2006, the City of San Antonio, Texas, filed a class-action lawsuit against various online travel companies (OTCs), such as Hotels.com, Hotwire, Orbitz, and Travelocity, alleging that the service fees those companies charged constitute the “cost of occupancy” and therefore are subject to municipal hotel tax ordinances. After extensive litigation, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the OTCs, reasoning that the hotel occupancy tax applied only to the discounted room rate paid by the OTC to the hotel.

Toward the end of litigation, the OTCs moved for "an order entering Final Judgment in favor of the OTCs, releasing all supersedeas bonds, and awarding costs to the OTCs as the prevailing parties." The OTCs’ proposed order stated that "costs shall be taxed against the Cities in favor of the OTCs pursuant to 28 U.S.C. § 1920, Fed. R. Civ. P. 54, and Fed. R. App. P. 39." San Antonio did not object, so the district court entered the OTC’s proposed order.

Then the OTCs filed a bill of costs in the district court seeking over $2.3 million, which included over $2 million for “post-judgment interest” and “premiums paid for the supersedeas bonds.” San Antonio objected and asked the district court to refuse to tax, or to substantially reduce, the appeal bond premiums sought by the OTCs. The district court concluded that it lacked the discretion to reduce taxation of the bond premiums. The Fifth Circuit affirmed, despite that every other circuit confronting the question has held the opposite.

Federal Rule of Appellate Procedure 39 does not permit a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e) of that Rule. Justice Samuel Alito authored the unanimous opinion of the Court.

Rule 39 gives the courts of appeals discretion over the allocation of appellate costs, setting default rules that apply unless the court “orders otherwise.” These default rules and the language and structure of Rule 39 suggest that the appeals court makes all determinations as to the costs. This comprehensive scheme leaves no room for the district court to modify the appeals court’s allocation of costs, and indeed to read the Rule as giving the district court such power would undermine the authority of the appeals court to make the determination in the first place.


The United States captured the island of Guam from Spain in 1898, during the Spanish-American War. From 1903, the United States maintained military rule until the passage of the Guam Organic Act in 1950, which formally transferred power from the United States to Guam’s newly formed civilian government. Guam remains an “unincorporated territory of the United States.”

In the 1940s, the Navy constructed and operated the Ordot Dump for the disposal of municipal and military waste, allegedly including munitions and chemicals such as DDT and Agent Orange, and continued to use the landfill throughout the Korean and Vietnam Wars. The Ordot Dump lacked basic environmental safeguards, and as a result, contaminants were released into the Lonfit River, which ultimately flows into the Pacific Ocean.

In 1983, the Environmental Protection Agency (EPA) added the Ordot Dump to its National Priorities List, and in 1988, it designated the Navy as a potentially responsible party. However, because the Navy had relinquished sovereignty over the island, Guam remained the owner and operator of the Ordot Dump. As such, the EPA repeatedly ordered Guam to propose plans for containing and disposing of waste at the landfill.

In 2002, the EPA sued Guam under the Clean Water Act, asking the court to require Guam to comply with the Act, in part by submitting plans and a compliance schedule for a cover system of the Ordot Dump, and by completing construction of the cover system. The EPA and Guam agreed that Guam would pay a civil penalty, close the Ordot Dump, and design a cover system. Guam closed the Ordot Dump in 2011.

In 2017, Guam sued the United States, alleging that the Navy was responsible for the Ordot Dump’s contamination and was thus responsible for the costs of closing and remediating the landfill. Guam’s claims rested on two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Section 107 allows for a “cost-recovery” action and Section 113(f) allows for a “contribution” action. The statute of limitations for the former action is six years, compared to only three for the latter. The district court concluded that Guam’s agreement with the EPA did not trigger section 113, so Guam could maintain its section 107 claim against the United States. The U.S. Court of Appeals for the District of Columbia reversed.

Guam can pursue its lawsuit against the federal government over the cleaning costs associated with the Ordot Dump. Justice Clarence Thomas authored the unanimous opinion of the Court.

Subsection 113(f) allows a party to seek contribution “from any other person who is liable or potentially liable under section 107(a) of CERCLA” and provides that “a person who has resolved its liability to the United States . . . may seek contribution from any person who is not party to a settlement referred to in § 113(F)(2).” The language and structure of this statute support the interpretation that the right of contribution is predicated on CERCLA liability. Because the statutory language is best understood only in reference to CERCLA, the most natural reading of the provision is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability, not resolving environmental liability under some other law. Thus, the agreement between the EPA and Guam did not trigger the statute of limitations for seeking contribution.


Robert N. Hochman
Morgan L. Ratner
Matthew M. Wolf

Hologic, Inc. and another company sued Minerva Surgical, Inc. for patent infringement (U.S. Patent Nos. 6,872,183 and 9,095,348). The patents relate to procedures and devices for endometrial ablation, which is a treatment involving the destruction of the lining of the uterus in order to treat menorrhagia, or abnormally heavy menstrual bleeding.

Both of the patents at issue list as an inventor Csaba Truckai, who assigned his interests in both patents to NovaCept, Inc., a company he co-founded. NovaCept was subsequently acquired by another company, and Hologic acquired that company. Hologic is the current assignee of both patents and sells the resulting NovaSure system throughout the United States.

Truckai left NovaCept and, in 2008, founded the accused infringer in this case, Minerva Surgical. Truckai and others at Minerva developed the Endometrial Ablation System (EAS), which received FDA approval in 2015 for the same indication as Hologic’s NovaSure system.

In 2015, Hologic sued Minerva alleging that Minerva’s EAS infringed certain claims of its patents. Minerva asserted that the patents were invalid based on lack of enablement and failure to provide an adequate written description, and moreover were not patentable due to prior art. Hologic moved for summary judgment based on the doctrine of assignor estoppel, which bars a patent’s seller from attacking the patent’s validity in subsequent patent infringement litigation. The court granted the motion as to both patents, based on the relationship between the inventor Truckai and his company Minerva. The court of appeals affirmed as to the infringement.

A defendant in a patent infringement action who assigned the patent can be barred under the doctrine of assignor estoppel from asserting a defense of invalidity if, and only if, the assignor’s claim of invalidity contradicts explicit or implicit representations the assignor made in assigning the patent. Justice Elena Kagan authored the 5-4 majority opinion of the Court.

The doctrine of assignor estoppel dates back to late 18th-century England, and the U.S. Supreme Court first recognized and approved it in American jurisprudence in Westinghouse Electric & Manufacturing Co. v. Formica Insulation Co., 266 U.S. 342 (1924). The doctrine is grounded in a principle of fairness, that an inventor should not be able to assert invalidity of a patent he assigned but can merely argue about how to construe the patent’s claims.

The Court refused to abandon the doctrine of assignor estoppel entirely, finding that doing so would have broad effects that contradict many of the Court’s precedents. Moreover, the principle of fairness that originally grounded the doctrine applies equally still. Specifically, when an inventor warrants that a patent claim is valid and then assigns it to another, his denial of the validity violates norms of equitable dealing. However, to fully serve that purpose of fairness, the doctrine has its limits. If the assignor did not make explicit or implicit representations that conflict with the invalidity defense, there is no ground for applying assignor estoppel. In this case, the Federal Circuit erred by not considering whether Hologic’s new claim was materially broader than the ones Truckai had assigned, which would mean that Truckai could not have warranted its validity when making the assignment.

Justice Samuel Alito authored a dissenting opinion, arguing that the majority avoids answering the essential threshold question whether Westinghouse should be overruled and thus cannot answer the question presented in the petition in this case. Justice Alito would therefore dismiss the writ as improvidently granted.

Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Clarence Thomas and Neil Gorsuch joined, arguing that the majority recrafted a rule of assignor estoppel entirely different from that in Westinghouse. Because the Patent Act of 1952 does not incorporate the doctrine of assignor estoppel, Justice Barrett would hold the doctrine no longer applies.


HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association

Peter D. Keisler
Christopher G. Michel
Matthew W. Morrison

Congress amended the Clean Air Act through the Energy Policy Act of 2005 in an effort to reduce the nation’s dependence on fossil fuels. The legislation set certain targets for replacing fossil fuels with renewable fuels but created several exemptions, including one for small refineries if compliance in a given year would impose disproportionate economic hardship.

The U.S. Environmental Protection Agency (EPA) promulgated three different orders granting extensions of the small refinery exemption, but these orders were not made publicly available. A group of renewable fuels producers challenged the orders, alleging that the orders exceeded the EPA’s statutory authority. The Tenth Circuit agreed, finding that a small refinery may obtain an exemption only when it had received uninterrupted, continuous extensions of the exemption for every year since 2011.

A small refinery that previously received a hardship exemption may obtain an “extension” under §7545(o)(9)(B)(i) even if it saw a lapse in exemption coverage in a previous year. Justice Neil Gorsuch authored the 6-3 majority opinion.

Although the key term “extension” is not defined in the statute, three textual clues indicate that it means an extension in time. The plain meaning of the word “extension” in a temporal sense does not require unbroken continuity. Without modifiers like “successive” or “consecutive,” nothing in the statute suggests that a lapse in coverage precludes the extension.

Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Barrett argued that the question before the Court is simply whether the provision limits the EPA to prolonging exemptions currently in place, or instead allows the EPA to provide exemptions to refineries that lack them. Justice Barrett concluded that the text and structure of the statute make clear that the EPA cannot “extend” an exemption that a refinery no longer has.


Yellen v. Confederated Tribes of the Chehalis Reservation

Matthew Guarnieri
Paul D. Clement
Jeffrey S. Rasmussen

For over a century after the Alaska Purchase in 1867, the federal government had no settled policy on recognition of Alaska Native groups as Indian tribes. In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), which authorized the creation of two types of corporations to receive money and land: Alaska Native Regional Corporations and Alaska Native Village Corporations (collectively ANCs).

In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act (ISDA) to “help Indian tribes assume responsibility for aid programs that benefit their members.” ISDA defines an “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

In 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Title V of which makes certain funds available to the recognized governing bodies of any "Indian Tribe" as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA). The Department of the Treasury concluded that ANCs were eligible to receive Title V funds.

Six federally recognized tribes in Alaska and twelve federally recognized tribes in the lower 48 states challenged that determination, arguing that ANCs are not “Indian Tribes” within the meaning of the CARES Act or ISDA. Although the government conceded that ANCs have not been historically recognized as eligible for special programs and services because of their status as Indians, it nevertheless argued that Congress expressly included ANCs within the ISDA definition.

The district court granted summary judgment to the defendants, finding that ANCs must qualify as Indian tribes to give effect to their express inclusion in the ISDA definition, even though no ANC has been recognized as an Indian tribe. The U.S. Court of Appeals for the District of Columbia reversed, holding that ANCs are not eligible for funding under Title V of the CARES Act because they are not “recognized” as Indian tribes.

Alaska Native Corporations (ANCs) are “Indian tribe[s]” under the Indian Self-Determination and Education Assistance Act (ISDA) and thus eligible for funding available to “Tribal governments” under Title V of the Coronavirus Aid, Relief, and Economic Security Act. Justice Sonia Sotomayor authored the 5-4 majority opinion of the Court.

The majority determined that under the plain meaning of the ISDA, ANCs are Indian tribes. The Alaska Native Claims Settlement Act (ANCSA) is the only statute the ISDA’s “Indian tribe” definition mentions by name, so eligibility for ANCSA’s benefits satisfies the definition’s final “recognized-as-eligible” clause. The respondents failed to demonstrate that the phrase “Indian tribe” is a term of art that should exclude ANCs, and none of their other arguments for reading “Indian tribes” as exclusive of ANCs were persuasive.

Justice Neil Gorsuch authored a dissenting opinion, joined by Justices Clarence Thomas and Elena Kagan. Justice Gorsuch argued that the plain language and construction of the ISDA suggest that ANCs are not “Indian tribes,” supported by analogy to another statute with “nearly identical language in remarkably similar contexts,” and that the majority overlooked the critical statutory word “recognized.”


Andrew L. Adler
Eric J. Feigin
Adam K. Mortara

Tarahrick Terry pleaded guilty to one count of possession with intent to distribute a substance containing a “detectable” amount of cocaine base (3.9 grams), thus triggering the penalties in 21 U.S.C. § 841(b)(1)(C). Based on his prior convictions, the statutory term of imprisonment was 0 to 30 years, and the district court sentenced him to 188 months’ imprisonment with 6 years’ supervised release.

Terry moved for a sentence reduction on the basis that the Fair Sentencing Act of 2010 raised the weight ceiling of § 841(b) from 5 grams of cocaine base to 28 grams. The district court denied his motion, concluding that Terry did not commit a “covered offense” and thus was not eligible for relief under the First Step Act, which made retroactive the statutory penalties for certain offenses committed before August 3, 2010. Because the Fair Sentencing Act did not expressly amend § 841(b)(1)(C), Terry’s offense was not a “covered offense.”

The U.S. Court of Appeals for the Eleventh Circuit affirmed.

Crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) do not have a “covered offense” under Section 404 of the First Step Act because a sentence reduction under the Act is available only if an offender’s prior conviction of a crack cocaine offense triggered a mandatory minimum sentence. Justice Clarence Thomas authored the majority opinion of the Court.

An offender is eligible for a sentence reduction only if he previously received “a sentence for a covered offense,” which the Act defines as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” certain provisions in the Fair Sentencing Act. The Fair Sentencing Act modified the statutory penalties only for offenses that triggered mandatory-minimum penalties. Because Terry was convicted for an offense that does not have a mandatory minimum, his offense was not a “covered offense” and thus was not eligible for a sentence reduction under the Act.

Justice Sonia Sotomayor authored an opinion concurring in part and concurring in the judgment. She expressly declined to join the majority’s “sanitized” description of the history of penalties for crack offenses and pointed out that because Terry was both convicted under subparagraph (C) and sentenced as a career offender, he never had a chance to ask for a sentence that reflects today’s understanding of the lesser severity of his crime, and he never will get that chance without action by the political branches.


Refugio Palomar-Santiago, a Mexican national, was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California, and he was subsequently deported because a DUI is a “crime of violence” under 18 U.S.C. § 16, and felony DUI is an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). Three years later, the U.S. Court of Appeals for the Ninth Circuit decided in United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001), that a DUI is not a crime of violence and later held that classification to apply retroactively. United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2013).

Palomar-Santiago returned to live in the United States, this time without authorization. He was indicted for illegal reentry after deportation under 8 U.S.C. § 1326. He moved to dismiss the indictment under 8 U.S.C. § 1326(d), which requires a district court to dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. However, under Ninth Circuit precedent, a defendant does not need to prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and does not need to show the third element if he can show the removal should not have occurred at all.

The district court held that Palomar-Santiago met his burden in showing his crime was improperly characterized as an aggravated felony and that he was wrongfully removed from the United States. On appeal, the federal government disputed that circuit precedent required the result the district court reached but argued that the precedent is wrong. Lacking authority to overturn circuit precedent, the Ninth Circuit panel affirmed without addressing the merits of the government’s claims.

A defendant seeking dismissal of a prior deportation order must prove each statutory requirement for bringing such a collateral attack. Justice Sonia Sotomayor authored the unanimous opinion of the Court.

Section 1326(d) requires that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. The Ninth Circuit’s interpretation to the contrary—that the first two elements are not required if the noncitizen was removed for an offense that should not have rendered him removable—is incompatible with the text of that provision. The first element, exhaustion of administrative remedies, exists “precisely so noncitizens can challenge the substance of immigration judges’ decisions.” Additionally, all of the requirements apply regardless of whether the defendant alleges the removal order was procedurally flawed or substantively invalid.


Joshua James Cooley was parked in his pickup truck on the side of a road within the Crow Reservation in Montana when Officer James Saylor of the Crow Tribe approached his truck in the early hours of the morning. During their exchange, the officer assumed, based on Cooley’s appearance, that Cooley did not belong to a Native American tribe, but he did not ask Cooley or otherwise verify this conclusion. During their conversation, the officer grew suspicious that Cooley was engaged in unlawful activity and detained him to conduct a search of his truck, where he found evidence of methamphetamine. Meanwhile, the officer called for assistance from county officers because Cooley “seemed to be non-Native.”

Cooley was charged with weapons and drug offenses in violation of federal law. He moved to suppress the evidence on the grounds that Saylor was acting outside the scope of his jurisdiction as a Crow Tribe law enforcement officer when he seized Cooley, in violation of the Indian Civil Rights Act of 1968 (“ICRA”). The district court granted Cooley’s motion, and the U.S. Court of Appeals for the Ninth Circuit affirmed, finding that Saylor, a tribal officer, lacked jurisdiction to detain Cooley, a non-Native person, without first making any attempt to determine whether he was Native.

A tribal police officer has the authority to detain temporarily and to search a non-tribe member traveling on a public right-of-way running through a reservation for potential violations of state or federal law. Justice Stephen Breyer authored the unanimous opinion of the Court.

Native American tribes are “distinct, independent political communities” exercising a “unique and limited” sovereign authority within the United States. Among the limitations is the general lack of inherent sovereign power to exercise criminal jurisdiction over non-tribal members. However, the Court recognized two exceptions to this rule in Montana v. United States, 450 U.S. 544 (1981). First, a tribe may regulate the activities of non-tribal members “who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Second, a tribe may “exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” The authority at issue in this case aligns with the second exception “almost like a glove.” None of the policing provisions Congress has enacted fit the circumstances of this case as well as the Court’s understanding in Montana, and particularly the second exception. Rather, legislation and executive action appear to assume that tribes retain the detention authority presented in this case.

Justice Samuel Alito authored a concurring opinion noting that his agreement is limited to a narrow reading of the Court’s holding.


This is an ongoing case of original jurisdiction, the facts of which are explained here. In sum, the case involves a water-rights dispute between Georgia and Florida over the waters of the Apalachicola-Chattahoochee-Flint River Basin.

Florida failed to establish that Georgia’s overconsumption of interstate waters was either a substantial factor contributing to, or the sole cause of, Florida’s injuries. Justice Amy Coney Barrett authored the opinion on behalf of the unanimous Court.

To succeed on its claim, Florida must show by the heightened “clear and convincing evidence” that the harm it suffered—collapse of its oyster fisheries—was caused by Georgia’s overconsumption. The record evidence establishes at most that increased salinity and predation contributed to the collapse of Florida’s fisheries, not that Georgia’s overconsumption caused the increased salinity and predation. Thus, Florida failed to meet its burden of persuasion, so its exceptions to the findings of the Special Master’s report are overruled, and the case is dismissed.


Paul D. Clement
Edwin S. Kneedler
Jeremy M. Feigenbaum

The Natural Gas Act (NGA), 15 U.S.C. §§ 717–717Z, permits private companies to exercise the federal government’s power to take property by eminent domain, subject to certain jurisdictional requirements. PennEast Pipeline Co. obtained federal approval to build a pipeline through Pennsylvania and New Jersey and sued under the NGA to gain access to the properties along the pipeline route, of which the State of New Jersey owns 42. New Jersey sought dismissal of PennEast’s lawsuits for lack of jurisdiction based on the state’s sovereign immunity and, separately, because PennEast failed to satisfy the jurisdictional requirements of the NGA.

The district court ruled in favor of PennEast and granted a preliminary injunctive relief for immediate access to the properties. The U.S. Court of Appeals for the Third Circuit vacated, finding that while the NGA delegates the federal government’s eminent-domain power, it does not abrogate state sovereign immunity. PennEast’s lawsuits are thus barred by Eleventh Amendment to the U.S. Constitution.

Section 717(h) of the Natural Gas Act authorizes the Federal Energy Regulatory Commission to delegate to a private company the power to condemn all necessary rights-of-way, whether owned by private parties or states. Chief Justice John Roberts authored the 5-4 majority opinion of the Court.

States are generally immune from lawsuits unless they have consented or Congress has abrogated their immunity. With respect to the federal eminent domain power, the states waived their sovereign immunity when they ratified the Constitution. That power carries with it the ability to condemn property in court. Because the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property. This understanding is consistent with the nation’s history and the Court’s precedents. Thus, PennEast’s condemnation of New Jersey land to build the pipeline does not offend state sovereignty.

Justice Neil Gorsuch authored a dissenting opinion, in which Justice Clarence Thomas joined. Joining Justice Barrett’s dissenting opinion in full, Justice Gorsuch added only a clarification that states have two federal-law immunities from suit: structural immunity and Eleventh Amendment immunity. The lower court should consider whether either type of immunity bars the suit.

Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Thomas, Kagan, and Gorsuch joined. Justice Barrett argued that Congress’s power to strip states of their sovereign immunity is extremely limited, and there is no reason to treat private condemnation actions as within one of those limited exceptions.