In May 2005, Juan Bravo-Fernandez, the president of a private security firm in Puerto Rico, and Hector Martinez-Maldonado, a member of the Puerto Rican Senate, traveled to Las Vegas to see a boxing match. Bravo-Fernandez and Martinez-Maldonado were later indicted on charges that Bravo-Fernandez’s payment for the trip was connected to Martinez-Maldonado’s support of legislation beneficial to the security firm. The charges included violations of the federal bribery statute, conspiracy, and the Travel Act, which prohibits travel in interstate commerce for a criminal purpose -- in this case, the violation of the federal bribery statute. The jury convicted the defendants of violating the federal bribery statute, but found the defendants not guilty of conspiracy to violate the statute or of violating the Travel Act. The U.S. Court of Appeals for the First Circuit vacated the convictions for violating the federal bribery statute because the jury was improperly instructed about what the government needed to prove. The appellate court remanded the case.

Based on this holding, the district court entered an order that acquitted the defendants, but that order was vacated after the government clarified that the appellate court’s decision vacating the federal bribery convictions did not require the district court to enter an order of acquittal. The district court subsequently entered an order that clarified that the bribery convictions were vacated. The defendants moved to reinstate the initial order and argued that it was a judgment of acquittal that, under the Double Jeopardy Clause, could not be rescinded. The district court denied the motion. The defendants then moved for acquittal and argued that the original acquittals for the Travel Act and conspiracy charges prevented the government from relitigating the bribery charges because a jury had already determined that the government failed to prove elements essential to conviction under the bribery statute. The defendants argued that the Double Jeopardy Clause prohibits relitigation of these issues. The district court denied the motion, and the appellate court affirmed.

The Double Jeopardy Clause does not prevent the government from retrying defendants after a jury returns an irreconcilably inconsistent verdict of convictions and acquittals and the convictions are later vacated based on a different legal error. Justice Ruth Bader Ginsburg delivered the opinion for the unanimous Court. The Court determined that retrial in this case would be precluded if the U.S. Court of Appeals for the First Circuit had vacated the convictions (a) due to insufficient evidence or (b) to resolve the inconsistency of the jury’s verdicts. However, because the vacated judgment was due to a legal error, the petitioners may be retried. The Court also drew a distinction between a hung jury and the jury’s verdict in this case. A hung jury means a jury did not reach a decision at all; in this case, the jury supplied both an acquittal and a conviction, notwithstanding that the decision was vacated on appeal due to a legal error. Because it is unclear what the jury would have concluded without the legal error, the Government is not precluded from a new trial on the jury’s returned convictions.

In his concurring opinion, Justice Clarence Thomas wrote that the Court should reconsider the precedents established in Ashe v. Swenson and Yeager v. United States. In Ashe, the Court found that the Double Jeopardy Clause sometimes precludes a successive prosecution when facts essential to conviction of the second crime have been “necessarily” resolved in an acquittal of the first crime. Justice Thomas argued that the Court erroneously extended Ashe in Yeager, which “bar[red] retrial on hung counts” after an earlier stage of the same proceeding, not a prior proceeding. However, because this decision did not extend the holding in those cases, Justice Thomas joined the majority opinion.


Jeffrey L. Fisher
Frederick R. Yarger
Rachel P. Kovner

Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. After the entry of a guilty verdict, two jurors informed Pena-Rodriguez’s counsel that one of the other jurors made racially biased statements about Pena-Rodriguez and the alibi witness during jury deliberations. The trial court authorized Pena-Rodriguez’s counsel to contact the two jurors for their affidavits explaining what the “biased” juror said about Pena-Rodriguez or his alibi witness. Based on these affidavits, which related racially biased statements about Pena-Rodriguez’s likely guilt and the alibi witness’ lack of credibility because both were Hispanic, Pena-Rodriguez moved for a new trial. The trial court denied the motion, and the Colorado Court of Appeals affirmed. The Supreme Court of Colorado held the jurors’ affidavits were inadmissible under Rule 606(b) of Colorado’s Rules of Evidence, which prohibits juror testimony on any matter occurring during the jury deliberations. The Supreme Court of Colorado also held Rule 606(b) did not violate Pena-Rodriguez’s Sixth Amendment right to an impartial jury because Pena-Rodriguez had waived that right by failing to adequately question jurors about their racial bias during voir dire.

Rule 606(b) of Colorado’s Rules of Evidence may not bar evidence of racial bias which is offered to prove a violation of the Sixth Amendment right to an impartial jury. Justice Anthony M. Kennedy delivered the opinion for the 5-3 majority. The Court held that, if a juror makes a clear statement that he or she convicted a criminal defendant relying on racial stereotypes or animus, the trial court is permitted to consider evidence of the juror’s statements. The Court reiterated the sanctity of the jury to our criminal justice system and its reluctance to interfere with it. Rule 606(b), the no-impeachment rule, stems from the desire to prevent jurors from testifying about their deliberation after the verdict was entered, and it is a common law principle that is more lenient in some states than others. However, the Court noted that there was a possibility of an exception in the “gravest and most important cases.” In certain rare cases, when racial animus is apparent in a juror, the no-impeachment rule shall be set aside in an effort to protect the Sixth Amendment. Not every “offhand” racial comment from a juror will warrant setting aside the no-impeachment rule. The exception demands that a juror exhibit overt racial animus that calls into question his or her ability to make a fair and impartial judgment about the defendant. Although the Court noted that there were processes currently in place to prevent racial bias in juries, such as the process of voir dire--the preliminary examination and elimination of jury members--these protections were often not sufficient, and therefore this exception was necessary. In this case, the Court held that the juror’s statements were “egregious and unmistakable in their reliance on racial bias.” The juror in question also encouraged other jurors to join in his racially-motivated conviction.

Justice Clarence Thomas wrote a dissent in which he argued that the majority opinion incorrectly interpreted the Sixth Amendment and its precedents. He explained that common law tradition does not permit impeachment of a verdict based on juror misconduct. If there is a reason to set aside the no-impeachment rule, it should be the legislature’s role to do so, not the role of the judiciary. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that barring the admission of juror testimony is deeply rooted in the criminal justice system’s history. He argued  that, although racial bias is important to prevent, it should be treated no differently than other forms of impartiality by a juror for the purposes of the Sixth Amendment. Chief Justice John G. Roberts, Jr. and Justice Thomas joined in the dissent.


Marcelo Manrique was convicted in federal district court of possession of child pornography. He was sentenced to a life term of supervised release and mandatory restitution, though the final judgment did not include an amount for the restitution and stated that would be included in the amended judgment. Manrique filed his notice of appeal before the amended judgment was entered. When the amended judgment was entered while the appeal was pending, it included the details of the restitution award, and both parties subsequently included arguments regarding the challenge of the award in their briefs. The U.S. Court of Appeals for the Eleventh Circuit ruled that it did not have jurisdiction to consider the challenge to the restitution award because Manrique did not file a second notice of appeal regarding the amended judgment that included the amount of the restitution award.

Appellate courts may not review a restitution award where the amended judgment of the lower court granting restitution is entered after notice of appeal was filed. Justice Clarence Thomas delivered the opinion for the 6-2 majority. The Court held that, in order to secure appellate review of a judgment, a party must file notice of appeal from that particular judgment after that judgment has been entered. In this case, Manrique filed his only notice of appeal several months before the amended judgment granting restitution was entered. The Court rejected Manrique’s argument that the initial judgment deferring restitution and amended judgment granting restitution combined to form a single judgment. Instead, in cases of deferred restitution, the initial judgment and amended judgment qualify as two distinct appealable judgments. Therefore, the Court affirmed the lower court’s judgment and held that the U.S. Court of Appeals for the Eleventh Circuit did not have jurisdiction to review the amended judgment.

In her dissenting opinion, Justice Ruth Bader Ginsburg argued that the district court failed to notify Manrique of his right to appeal from the amended judgment. Additionally, because the district court clerk sent the record for the amended judgment to the appellate court without waiting for Manrique to file notice of appeal, the district court conferred jurisdiction on the appellate court. Such conferral, Justice Ginsburg contended, adequately substituted the requirement that Manrique file a second notice of appeal from the amended judgment. Justice Sonia Sotomayor joined in the dissent.

Justice Neil Gorsuch did not participate in the discussion or decision of this case.


Stanley Hsu, a Taiwanese business man, opened a Bank of America bank account while working in the United States. When he returned to Taiwan, he arranged for the daughter of one of his employees to receive his mail and forward it to him in Taiwan. Lawrence Eugene Shaw lived with the daughter and regularly checked her mail. When the Bank of America statements arrived for Hsu’s account, Shaw concocted a scheme in which he opened a PayPal account under Stanley Hsu’s name and used it to convince banks that he was Hsu for the purpose of transferring money from Hsu’s accounts to the PayPal account and from there to an account that Shaw controlled. Using this scheme, Shaw was able to transfer approximately $307,000 of Hsu’s money to himself before the fraud was discovered. Bank of America returned approximately $131,000 to Hsu, and PayPal returned approximately $106,000. Hsu lost about $170,000 by not notifying the banks within 60 days of the fraudulent transactions, as standard banking procedures require.

The government charged Shaw with violating the Bank Fraud Act of 1984, which criminalizes schemes “to defraud a financial institution.” Shaw requested a jury instruction that stated that the government had to prove that he intended not only to defraud the bank but also that he intended to target the bank as the principal financial victim. The district court refused to give the instruction and determined that the language of the Act required that the government prove only that the defendant intended to deceive the bank, not that he also intended the bank to bear the loss that resulted from the fraud. The jury convicted Shaw of 14 counts of bank fraud under the Act, and the U.S. Court of Appeals for the Ninth Circuit affirmed.

Justice Stephen G. Breyer delivered the opinion for the unanimous Court. The Court held that the statute at issue states deals specifically with property rights, and a bank has property rights in a bank account because the bank has the right to use the funds as a source of funds for loans that earn the bank interest. Therefore, any scheme that involves defrauding the funds from a bank account necessarily involves defrauding a bank. Although the statute requires that the government show there was a scheme to defraud, it does not require the government to show that the bank actually sustained a financial loss or that the intent of the scheme was to cause the bank to sustain a financial loss. Similarly, the defendant cannot argue that he didn’t have actual knowledge that the bank would be harmed.


Star Athletica, LLC v. Varsity Brands, Inc.

John J. Bursch
William M. Jay
Eric J. Feigin

Varsity Brands, Inc. (Varsity) designs and manufactures clothing and accessories for use in various athletic activities, including cheerleading. Design concepts for the clothing incorporate elements such as colors, shapes, lines, etc., and do not consider the functionality of the final clothing. Varsity received copyright registration for the two-dimensional artwork of the designs at issue in this case, which were very similar to ones that Star Athletica, LLC (Star) was advertising. Varsity sued Star and alleged, among other claims, that Star violated the Copyright Act. Star asserted counterclaims, including one that alleged that Varsity had made fraudulent representations to the Copyright Office because the designs at issue were not copyrightable. Both parties filed motions for summary judgment. Star argued that Varsity did not have valid copyrights because the designs were for “useful articles,” which cannot be copyrighted, and the designs cannot be separated from the uniforms themselves, which also makes the designs impossible to copyright. Varsity argued that the designs were separable and non-functional, and therefore that the copyrights were valid and had been infringed. The district court granted summary judgment for Star and held that the designs were integral to the functionality of the uniform. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the Copyright Act allows graphic features of a design to be copyrighted even when those designs are not separable from a “useful article.”

A feature of a useful article is copyrightable if it can be perceived as a two- or three-dimensional artwork that is separable from the useful article and if it would be a protectable pictorial, graphical, or sculptural work on its own (or if applied to another medium, such as a canvas). Justice Clarence Thomas delivered the opinion of the 6-2 majority. The Court held that the Copyright Act clearly requires that, to be copyrightable, a design element of a useful article must be able to be identified separately from the article and be capable of existing separately from the article. The separate identification prong of this test requires only that the decisionmaker be able to distinguish a two- or three-dimensional element that has pictorial, graphical, or sculptural qualities. To satisfy the independent-existence requirement, the decisionmaker must determine that the element can exist as its own pictorial, graphical, or sculptural work and not merely as a part of a replica of the useful article in a different medium. This interpretation is consistent not only with the text of the Copyright Act but also with its history. In this case, the decoration designs of cheerleading uniforms satisfy both prongs of the test because the decorations can be identified as having their own pictorial, graphical, or sculptural qualities, and they would be copyrightable on their own if separated from the uniforms. The Court determined that the fact that the designs on their own still retained the outline of the cheerleading uniforms did not prevent them from being copyrightable because artwork designed to fit a particular space or object does not replicate that object or space when applied to a different medium. The Court rejected alternative tests for separability as ungrounded in the text of the statute.

	In her opinion concurring in the judgment, Justice Ruth Bader Ginsburg wrote that separability analysis was unnecessary in this case because the designs are themselves copyrightable and are merely reproduced on useful articles. The designs are clearly pictorial, graphical, or sculptural works, which are copyrightable. The copyright for such a work includes the right to reproduce the work on a useful article and exclude a would-be infringer from doing the same.

	Justice Stephen G. Breyer wrote a dissent in which he argued that, although he agreed with the majority opinion’s analysis of the test that the statute required, the designs at issue in this case failed the test. A feature is not separable from the useful article if it cannot be extracted without necessarily replicating the useful article in another medium. Because the designs in this case could only be represented as pictures, and therefore replicas, of the uniforms, they were not capable of existing independently of the useful article. Based on the statutory text and relevant case law, the designs fail the second prong of separability test. Justice Anthony M. Kennedy joined in the dissent.


SCA Hygiene Products Aktiebolag v. First Quality Baby Products

SCA Hygiene Products Aktiebolag (SCA) produces adult incontinence products, as does First Quality Baby Products, LLC (First Quality). In 2003, SCA notified First Quality that it believed First Quality was infringing on one of its patents, and First Quality responded by arguing that, because the SCA patent in question was essentially the same as a prior-filed patent, it was invalid and therefore First Quality could not be infringing. The two companies ceased communication on the issue, but in 2004, SCA requested that the U.S. Patent and Trademark Office (PTO) reexamine its patent in light of the prior-filed one, and in 2007, the PTO determined that the patent in question was valid.

In 2010, SCA sued First Quality for patent infringement. First Quality moved for summary judgment because SCA had unreasonably delayed litigation, and the district court granted the motion. The U.S. Court of Appeals for the Federal Circuit affirmed the district court’s opinion regarding the unreasonable delay because SCA should have been able to proceed with litigation after the reexamination and had not provided evidence to justify the delay. SCA requested a rehearing before the entire appellate court to reconsider the issue in light of the Supreme Court’s decision in <i>Petrella v. Metro-Goldwyn-Mayer</i>, which held that the unreasonable delay defense cannot bar suits for copyright infringement that occurred during the three-year limitations period, and argued that the same analysis should apply to patent suits like this one. Upon rehearing, the appellate court rejected SCA’s argument and held that the Petrella decision did not affect its precedent, which stated that an unreasonable delay defense may be used in patent infringement claims brought within the six-year statute of limitations, and courts must examine the circumstances underlying those claims and the defense.

An unreasonable delay in litigation is not a defense against a claim for damages brought within the six-year statutory period of limitations in a patent infringement case. Justice Samuel A. Alito, Jr., delivered the opinion of the 7-1 majority. The Court held that the reasoning of Petrella v. Metro-Goldwyn-Mayer, which held that an unreasonable delay defense cannot bar relief within the three-year statute of limitations for copyright cases, also applies to a patent infringement case. Because the unreasonable delay defense was meant to be in place when there was no statute of limitations, applying the defense during the statute of limitations period would conflict with the purpose of the defense. The Court explained that, at the time of the Patent Act’s enactment, there was a well-established general rule that the unreasonable delay defense cannot be used to bar damages on a claim filed during the statute of limitations period and that First Quality did not properly consider this rule. Although the rule was established in the context of patent cases, there is no “unambiguous consensus of lower court decisions” to support that patent law cases should be treated differently than copyright cases for this purpose.

In his dissent, Justice Stephen G. Breyer argued that the language of the Patent Act does not explicitly contain a statute of limitations period. Instead, the language allows a patentee to sue any time after an infringement takes place and sue in hopes of recovering significant damages from the preceding six years. The unreasonable delay defense prevents a plaintiff from succeeding in this effort and therefore should apply to patent cases.


State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby

Kathleen M. Sullivan
Tejinder Singh
John F. Bash

Many homeowners in the Gulf Coast area had two separate insurance policies: One that covered flood but not wind damage, and another that covered wind but not flood damage. These policies were frequently administered by the same private insurance company, but the company would be responsible for paying wind damage claims, while government funds would pay for flood damage claims; therefore, there was an incentive for the companies to classify damage as caused by flood rather than wind. State Farm Fire and Casualty Co. (State Farm) was one of these companies that administered such policies in the Gulf Coast area. Cori Rigsby was a State Farm claims adjuster who believed that State Farm was wrongfully seeking to maximize its policyholders’ flood damage claims and minimize wind damage claims after Hurricane Katrina. Rigsby sued State Farm under the False Claims Act (FCA). The district court determined that State Farm had submitted false claims in violation of the FCA. On appeal, State Farm argued Rigsby had violated the FCA’s seal requirement, which stated that the complaint cannot be disclosed until the court orders the complaint served on the defendant, and that violation of the FCA seal requirement warrants immediate dismissal. The U.S. Court of Appeals for the Fifth Circuit held that, although Rigsby violated the seal requirement by disclosing the existence of the suit, the violation of the seal requirement does not warrant immediate dismissal.

The Court held that a violation of the False Claims Act’s seal requirement does not mandate dismissal of the complaint. The Court determines that the purpose of the requirement, in part, was the protect the government’s interests and therefore that a “rigid interpretation” of the requirement would undermine that interest. Furthermore, there is no legislative history to suggest Congress intended to condition a private right of action on compliance with a statutory mandate.


Bethune-Hill v. Virginia Board of Elections

Marc E. Elias
Irving L. Gornstein
Paul D. Clement

Based on the 2010 Census, the Virginia General Assembly sought to redraw the legislative districts for the Virginia Legislature. At the time the districting legislation was prepared, Virginia was subject to Section 5 of the Voting Rights Act, and therefore any new districting plan must have ensured that there would be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Accordingly, the new districting plan contained 12 majority-minority districts. On December 22, 2014, the plaintiffs, each of whom resided in one of the twelve challenged districts, sued and argued that those districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the plaintiffs did not establish that race was the predominant factor in the creation of 11 of the 12 challenged district. The district court also held that, although race was the predominant factor in the creation of one district, in doing so the General Assembly was pursuing a compelling state interest and its use of race was narrowly tailored to serve that interest.

Race can still be shown to be the predominant factor in redistricting even when traditional principles are respected, and district courts must engage in a holistic analysis of alleged racial gerrymanders. Justice Anthony M. Kennedy delivered the opinion for the six-justice majority. The Court held that the lower court erred in applying the controlling legal principles in this case. Challengers to an alleged racial gerrymander do not need to show an actual conflict between the enacted redistricting plan and traditional redistricting principles; while such evidence might be persuasive, it is not required. Racial predominance can be shown through other factors, such the circumstantial evidence of a district’s shape or demographics, or more direct evidence regarding legislative purpose. The Court also held that a court’s analysis of an alleged racial gerrymander must be a holistic view of the whole district rather than focusing on the extent to which individual lines may deviate from the traditional principles. Therefore, any explanation for a particular portion of the lines must take into account the context of the district as a whole. On the issue of House District 75, the Court determined that the predominant use of race was narrowly tailored to serve a compelling government interest because the legislature engaged in a careful functional analysis in apportioning the district.

Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and concurring in the judgment in which he argued that, when a legislature creates a majority-minority voting district, the legislature is using race as a predominant motivation and therefore that action must be narrowly tailored to serve a compelling government interest. Justice Alito therefore joined the majority’s opinion regarding the acceptability of House District 75 and agreed that the other districts should be reexamined, but under the same standard as House District 75. In his separate opinion concurring in part and concurring in the judgment, Justice Clarence Thomas wrote that, because the legislature clearly created majority-minority districts, race was the predominating factor in creating those districts. Therefore the creation of such districts must be shown to be narrowly tailored to serve a compelling government interest. Justice Thomas disagreed with the majority’s holding that House District 75 satisfied this standard because the state neither asserted a sufficiently compelling interest nor was its use of race in the districting process narrowly tailored to serve the interest it asserted.


In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was sentenced to death, and his conviction and sentence were both affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that the U.S. Supreme Court’s decision in Atkins v. Virginia should apply to his case; therefore, because he was intellectually disabled, he was exempt from execution. The habeas court granted relief based on the Atkins argument. The Court of Criminal Appeals of Texas, however, reversed and held that Moore had failed to establish by a preponderance of the evidence that he had the requisite intellectual disability for the Atkins precedent to apply based on Texas case law that used a 1992 definition of intellectual disability.

The use of an outdated medical definition of intellectual disability violated the Eighth Amendment’s prohibition against cruel and unusual punishment as well as Supreme Court precedent. Justice Ruth Bader Ginsburg delivered the opinion for the 5-3 majority. The Court held that, by rejecting the habeas court’s application of medical guidance, the Court of Criminal Appeals of Texas (CCA) applied the wrong standard when it denied Moore habeas relief and approved his execution. State standards for determining when a person is exempt from the death sentence because of mental disability cannot ignore current medical standards defining mental disability. The CCA standard differed from current medical standards in multiple respects. First, the CCA failed to consider the “standard error of measurement” for Moore’s IQ score, which indicated his IQ was likely to fall within a range that dipped into a level consistent with mental disability. Second, the CCA gave improper weight to Moore’s perceived strengths when evaluating his ability to navigate everyday life; medical standards instead focus on a person’s deficits. Third, the CCA also relied on ”evidentiary factors” from Texas case law based on stereotypes about mental disability that create an unacceptable risk that mentally disabled persons will be executed.

In his dissent, Chief Justice John G. Roberts, Jr., agreed that the evidentiary factors the CCA applied violated the Eighth Amendment, but he argued that Moore’s IQ score established he was not mentally disabled. More broadly, Chief Justice Roberts argued that the majority  opinion gave states too little guidance on how to properly enforce the Eighth Amendment ban on executing the mentally disabled. Justice Clarence Thomas and Justice Samuel A. Alito, Jr., joined in the dissent.


In July 1995, Duane Edward Buck was arrested for the murder of his ex-girlfriend, Debra Gardner, and her friend Kenneth Butler. Buck was convicted of capital murder for both of the deaths. During the penalty phase of trial, the prosecution presented evidence of Buck’s future dangerousness based on his criminal history, his conduct, and his demeanor before and after arrest. The defense presented the testimony of a clinical psychologist to evaluate the risk of future dangerousness. That expert stated that he considered demographic factors, including race, in his analysis and that, statistically, minorities are overrepresented in the criminal justice system. On cross-examination, the prosecution clarified that the expert’s opinion was that the race factor “black” increased the likelihood of future dangerousness. The jury found that there was sufficient evidence of Buck’s future dangerousness without any sufficient mitigating factors to justify a life sentence, so the jury sentenced Buck to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence.

Buck filed various claims for state and federal habeas relief that were denied, until the U.S. Supreme Court decided Trevino v. Thaler, which held that Texas’ procedural scheme made it almost impossible to raise ineffective assistance of counsel claims on direct appeal, and therefore that a procedural default on such a claim could be excused. While some of these claims were pending, the state attorney general admitted in a different case that the state should not have called an expert witness to testify about future dangerousness of a defendant based on race and named Buck’s case as one affected by similar testimony. Buck again sought federal habeas relief based on ineffective assistance of counsel because his counsel knowingly called an expert witness who testified that race was a factor in determining future dangerousness. The district court dismissed the claim because Buck failed to show that the outcome of his trial was prejudiced. The U.S. Court of Appeals for the Fifth Circuit similarly denied Buck’s request for a Certificate of Appealability by holding that Buck did not show sufficient extraordinary circumstances to justify relief from the lower court’s judgment.

The U.S. Court of Appeals for the Fifth Circuit applied the wrong standard of review when it denied Buck’s Certificate of Appealability (COA) for failing to demonstrate extraordinary circumstances. Chief Justice John G. Roberts, Jr., delivered the opinion for the 6-2 majority, which held that the proper standard of review in COA analysis was whether Buck’s claim was reasonably debatable. An appellate court should not consider the actual merits of an appeal unless it first determined that the claim was reasonably debatable. In this case, by essentially deciding the appeal on its actual merits and then denying Buck’s COA based on that adjudication, the Fifth Circuit inverted the COA analysis and imposed an undue burden on Buck. The Court also held that Buck successfully demonstrated ineffective assistance of counsel. It reasoned that Buck received inadequate assistance of counsel because his attorney introduced evidence that Buck was liable to be a future danger because of his race, and that it was reasonably probable that without this testimony he may not have been sentenced to death. Finally, the Court held that the district court’s denial of Buck’s motion for habeas relief was an abuse of discretion and noted that there was a reasonable probability that Buck was sentenced to death in part based on his race. To punish someone based on an immutable characteristic, the Court noted, “is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.”

Justice Clarence Thomas filed a dissenting opinion in which he argued that the majority opinion misapplied settled law in order to reach the outcome it desired. Under the majority’s construction of the COA analysis, no COA could ever be denied. The proper construction of the COA analysis requires that, in order to deny a COA because the prisoner’s claim is not reasonably debatable, a court must first determine that it is meritless. Justice Thomas also argued that Buck failed to demonstrate ineffective assistance of counsel because he did not demonstrate that his counsel materially prejudiced his defense. Additionally, Justice Thomas wrote that the district court’s denial of Buck’s motion for habeas relief was not an abuse of discretion, and he criticized the level of deference shown by the majority towards the findings of the district court.


National Labor Relations Board v. SW General, Inc.

In 1998, Congress enacted the Federal Vacancies Reform Act (FVRA), which provided that, if a position for which the President nominates and the Senate confirms (PAS position) becomes vacant, the first assistant automatically takes over as an “acting officer” for a period of 210 days. The President may also select a senior employee from the same agency or someone in a PAS position from another agency to serve as the acting officer. Pursuant to the FVRA, when the Ronald Meisberg resigned as the General Counsel of the National Labor Relations Board (NLRB), a PAS position, the President directed Lafe Solomon, who held a senior position in the NLRB, to serve as the Acting General Counsel. Six months into his tenure, the President nominated him for the General Counsel position, but the Senate did not confirm him. On October 29, 2013, the Senate confirmed a different nominee, so by the time he stepped down, Solomon had served as Acting General Counsel from June 21, 2010, until November 4, 2013.

SW General, Inc. provides ambulance services to hospitals in Arizona. Its emergency medical technicians (EMTs), nurses, and firefighters, are negotiated by a union that had negotiated with SW General for “longevity pay,” which meant that employees who had been with the company for at least ten years were guaranteed annual bonuses. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the NLRB, which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, and SW General filed a list of exceptions, among which was a claim that Acting General Counsel was serving in violation of the FVRA. A provision of the FVRA states that the acting officer may not become the nominee for the position, and the nominee to fill the position may not serve in an acting capacity unless that nominee was the first assistant to the vacant position for at least 90 days in the previous year. Solomon was briefly a nominee for the position, and he had not served as the first assistant to the vacant position. SW General petitioned the U.S. Court of Appeals for the District of Columbia Circuit for review, and the appellate court did not address the merits of the case because it determined that Solomon’s tenure as Acting General Counsel violated the FVRA.

The limitation on nominees to vacant positions serving in an acting capacity under the Federal Vacancies Reform Act (FVRA) apply equally to all nominees. Chief Justice John G. Roberts, Jr., delivered the opinion for the 6-2 majority. The Court held that the FVRA prohibits any person nominated for a  position for which the President nominates and the Senate confirms (PAS position) from performing the duties of that office. The Court determined that that the statutory language of the FVRA applied equally to first assistants who automatically assume such duties under Act and individuals selected by the President. The language left no room for any other interpretation. Thus, Solomon violated the FVRA when he continued to perform the duties of NLRB General Counsel after the President nominated him for the position.

In his concurring opinion, Justice Clarence Thomas wrote that the appointment of NLRB General Counsel under the FVRA without Senate approval is likely prohibited by the Appointments Clause of the Constitution.

Justice Sonia Sotomayor wrote a dissent in which she argued that the FVRA’s prohibitions against nominees to a PAS position performing the duties of the office only applies to first assistants who serve as acting officials automatically under the Act. Justice Ruth Bader Ginsburg joined in the dissent.


Malcolm L. Stewart
Ahilan T. Arulanantham

Sections of the Immigration and Nationality Act require that noncitizens who are determined to be inadmissible to the United States must be detained during removal proceedings, though some may be released on bond if they can demonstrate that they are not a flight risk or a danger to the community. Alejandro Rodriguez and other detained noncitizens sued and argued that their prolonged detention without hearings and determinations to justify the detentions violated their due process rights. After litigation regarding class certification, the district court granted a preliminary injunction that required the government to provide each detainee with a bond hearing and to release that detainee unless the government could show, by clear and convincing evidence, that continued detention was justified. The U.S. Court of Appeals for the Ninth Circuit held that prolonged detention without a hearing raised serious constitutional concerns, and therefore that the relevant mandatory statutory language should be interpreted as having a time limitation; at the six-month mark, detainees are entitled to bond hearings. Because the plaintiff class proved that it was likely to succeed on the merits, the appellate court affirmed the grant of the preliminary injunction. The plaintiff class then moved for a permanent injunction, which the district court granted and the appellate court affirmed. The appellate court also determined that the duration of future detention and likelihood of eventual removal should not be considered in the bond hearings, and the noncitizens are entitled to bond hearings at six-month intervals throughout their detentions.

No, 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention, and the Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. Justice Samuel Alito delivered the opinion of the Court, except as to Part II (for which there was a plurality). Chief Justice John Roberts and Justice Anthony Kennedy joined Justice Alito’s opinion in full, and Justices Clarence Thomas and Neil Gorsuch joined as to all but Part II (regarding jurisdiction of the Court to hear the case).

In Part II-A, a plurality of the Court (Alito, Roberts, Kennedy) held that it had jurisdiction to consider the respondents' claims, despite potential obstacles from 8 U.S.C. §§ 1252(b)(9) and 1226(e). Section 1252(b)(9) limits the availablility of judicial review in removal proceedings to final orders only. The plurality noted that the "respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined." Thus, that section does not deprive the Court of jurisdiction in this case.

In Part II-B, the plurality similarly found that Section 1226(e), which states that the attorney general's discretionary judgment in removal matters "shall not be subject to review." It found that a challenge to the extent of the government's detention authority is outside the scope of this provision and thus that exercise of jurisdiction is proper.

Writing for the majority (Alito, Roberts, Kennedy, Gorsuch, Thomas) in Part III, Justice Alito considered the merits of the arguments. In III-A, he looked directly to the statutory text of Sections 1225(b) and found nothing in the text from which to infer a six-month time limit on the length of detention. Without textual support, the canon of constitutional avoidance is inapplicable, and the Ninth Circuit was incorrect to rely on Zadvydas v. Davis as authority for inferring a time limit.

In Part II-B, the majority interpreted Section 1226(c), which allows aliens to be released "only if" the attorney general decides that certain conditions are met, as unequivocally prohibiting their release under any other conditions. Because release on bail is prohibited, a bail hearing (periodic or otherwise) is unnecessary.

In Part II-C, the majority and Justice Sonia Sotomayor found that Section 1226(a) authorizes the attorney general to arrest and detain an alien "pending a decision" on removal and permits the attorney general to release the alien on bond. Nothing in the text of this provision supports the imposition of periodic bond hearings or the consideration of the length of detention to determine whether an alien should be released.

Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Thomas opined that the Court lacks jurisdiction to hear the case under 8 U.S.C. § 1252(b)(9) because claims challenging detention during removal proceedings fall squarely within the jurisdictional bar in that provision. Justice Thomas also wrote to say that the application of Section 1252(b)(9) does not violate the Suspension Clause of the Constitution.

Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. The dissent highlights the fact that the case concerns "persons whom immigration authorities believe are not citizens and may not have a right to enter into, or remain within, the United States" but who "[n]onetheless ... likely have a reasonable claim that they do have such a right." The dissent looks to constitutional language, purposes, and tradition, to find that bail is most likely required in these instances of civil confinement, and that at the very least a bail hearing is required. Finally, the dissent finds that interpreting the statute to require bail proceedings in instances of prolonged detention does not run contrary to the plain language or purpose of the statute.

Justice Kagan took no part in the decision of the case.


Paul D. Clement
Marc E. Elias
Nicole A. Saharsky

After the 2010 Census, pursuant to the state Constitution, the North Carolina state legislature appointed House and Senate Committees to prepare a redistricting plan for U.S. House of Representatives districts. The heads of the respective committees hired a redistricting coordinator to design the new districts. The coordinator was given instructions orally; there were no written records of the precise instructions he received. The heads of the committees published public statements that highlighted certain criteria used in creating their proposed redistricting plan, such as the fact that, according to Supreme Court interpretation of the requirements of Section 2 of the Voting Rights Act, districts must be constructed to have a “Black Voting Age Population” (BVAP) of 50% plus one. To comply with this criterion, two districts were altered to have a BVAP over 50%, which meant that there were two more majority-black districts than there were under the 2001 Congressional Districting Plan. The state legislature enacted the new plan and the Department of Justice granted it preclearance pursuant to Section 5 of the Voting Rights Act.

David Harris and Christine Bowser are U.S. citizens registered to vote in the two districts at issue. They sued and argued that North Carolina used the Voting Rights Act’s requirements as a pretext to place more black voters in those two districts to reduce black voters’ influence in other districts. The district court determined that race was the predominant factor motivating the redistricting plan and therefore that the redistricting plan was an unconstitutional racial gerrymander that violated the Equal Protection Clause.

The district court did not error in determining that North Carolina’s new districting plan constituted an unconstitutional racial gerrymander, and neither claim nor issue preclusion based on the state court case dictate the outcome of this case. Justice Elena Kagan delivered the opinion for the 5-3 majority. The Court held that the district court was presented with sufficient evidence to find that race was the predominant rationale for the redistricting. Additionally, North Carolina did not meet its burden of proving that it had a compelling interest to sort voters based on race that it met with narrowly tailored means. Although complying with the Voting Rights Act (VRA) might serve as a compelling reason, the state must demonstrate that it had good cause to think that it would transgress the requirements of the VRA if it did not draw race-based district boundaries. Because there was no evidence of “white bloc voting” prior to the new districting plan, there was no sufficient reason for the state to think there was a potential VRA violation that required race-based districting. The Court also held that, although issue or claim preclusion may arise when plaintiffs in two cases have a special relationship, the state never proved that such a relationship existed between the plaintiffs in this case and those in the similar state court case.

In his concurring opinion, Justice Clarence Thomas wrote that the relevant section of the VRA does not apply to redistricting and therefore could not be used to justify racial gerrymandering.

Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and dissenting in part in which he argued that, in evaluating a potential racial gerrymander, courts must assume the good intentions of the legislature. Therefore, the plaintiffs must meet the burden of showing that the legislature was improperly motivated by race and could have achieved any legitimate political objectives through another redistricting plan. The plaintiffs in this case failed to meet that burden by not submitting an alternative map of the districts in question. Although the majority opinion argued that the alternative map was only one method of showing that race was the predominant redistricting factor, Justice Alito wrote that the requirement was a sound one, based in precedent, that reflected the familiar allocation of burdens of proof. Additionally, Justice Alito argued that the lower court was not presented with sufficient evidence that considerations about race dominated the redistricting effort. Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy joined in the opinion concurring in part and dissenting in part.

Justice Neil Gorsuch did not participate in the discussion or decision of this case.


Life Technologies Corp. v. Promega Corp.

Carter G. Phillips
Zachary D. Tripp
Seth P. Waxman

Promega Corporation owned four patents and was the exclusive licensee of another one for technology used in kits that can conduct genetic testing. The kits are usually used for the purposes of identifying forensic or paternity matches. In 2010, Promega sued Life Technologies Corporation (LifeTech) for infringing on the patents in question, and LifeTech filed counterclaims that argued that the asserted claims of the patents were invalid. The district court determined that LifeTech had directly infringed on the patents and the case proceeded to damages. During the damages phase, there was a dispute about whether or not Promega had met its burden to prove that it was eligible for damages based on its worldwide sales. The jury determined that Promega was eligible for the worldwide damages, but the district court granted LifeTech’s motion to vacate the judgment because it determined that, as a matter of law, Promega had failed to present sufficient evidence to sustain that jury verdict. The U.S. Court of Appeals for the Federal Circuit reversed and determined that there was substantial evidence that LifeTech was liable for worldwide damages.

A single component cannot justify liability for the producer of the component.Justice Sonia Sotomayor delivered the  opinion for the 7-0 majority. The Court held that, because the phrase “substantial portion” was attached to the phrase “of components of a patented invention” in the text of the statute, the word “substantial” was meant to be read as a quantitative measure. Further, the plural use of the word “components” indicated that a “substantial portion” must always be more than one component. Thus, a single component could never constitute a “substantial portion” of a multi-component invention. The Court also determined that Congress intended this reading because the statute was meant to fill a gap in patent law that prevented enforcement of patent rights on collections of components produced in the United States and sent overseas. Therefore, Lifetech was not liable because it only produced one of the five components required for the kits.

In his opinion concurring in part and concurring in the judgment, Justice Samuel A. Alito, Jr., noted that the majority opinion failed to identify what number of components constituted a “substantial portion.” Rather, the opinion only identified that one component is not sufficient.

Chief Justice John G. Roberts, Jr., did not participate in the decision of this case.


Janice L. Bergmann
Michael R. Dreeben
Adam K. Mortara

On April 11, 2007, Travis Beckles was arrested because a sawed-off shotgun was located in his residence, and he had previous felony convictions, mostly for drug possession and sales. Beckles was convicted, and during the sentencing phase of his trial, the district court determined that Beckles was an armed career criminal under the Armed Career Criminal Act (ACCA) who had been in possession of a firearm and was therefore subject to sentencing enhancement under the Sentencing Guidelines. Pursuant to the Sentencing Guidelines, Beckles was eligible for a sentence range from 360 months to life imprisonment, and the court sentenced him to 360 months in prison, five months of supervised release, and a $5,000 fine. Beckles appealed and argued that the Sentencing Guidelines imposed an unreasonable sentence, that his prior convictions did not qualify as “violent felonies” subject to sentencing enhancement under ACCA, and that possession of a sawed-off shotgun was not a “crime of violence” subject to sentencing enhancement under the Sentencing Guidelines. The U.S. Court of Appeals for the Eleventh Circuit affirmed Beckles’ conviction and sentence.

The U.S. Supreme Court vacated the appellate court’s decision and remanded the case for reconsideration in light of Johnson v. United States, which determined that the residual clause of ACCA was unconstitutional. On remand, the appellate court again upheld Beckles’ conviction and sentence because possession of a sawed-off shotgun was a “crime of violence.” The appellate court also held that the Johnson decision did not affect this case because Beckles was not sentenced under the residual clause of ACCA but rather under express language from the Sentencing Guidelines about sentencing enhancements for crimes of violence.

The Court’s holding in Johnson v. US does not apply to the Sentencing Guidelines. Justice Clarence Thomas delivered the opinion for the 7-0 majority. The Court held that the Sentencing Guidelines were not unconstitutionally vague like the residual clause in the Armed Career Criminal Act (ACCA) because the Sentencing Guidelines are a simply a guide to assist judges exercise discretion in sentencing. The Sentencing Guidelines are primarily advisory, and do not necessarily constrain judge’s discretion. While the ACCA provides notice of potential punishment by providing the range of potential imprisonment length, the Sentencing Guidelines need not do so, as they are meant to guide judges and therefore need not provide notice to people who might be prosecuted.

In his concurring opinion, Justice Anthony M. Kennedy noted that while Sentencing Guidelines are not necessarily immune from constitutional challenges, they may not be challenged for vagueness.

Justice Ruth Bader Ginsburg wrote an opinion concurring in judgment in which she stated that, since Beckles was already convicted of a crime of violence under the ACCA, he could not challenge the Sentencing Guidelines. She asserted that the Court should wait until a case better-suited for ruling on the constitutionality of the Sentencing Guidelines was before it. In her separate opinion concurring in the judgment, Justice Sonia Sotomayor agreed with Justice Ginsburg that the Court did not need to rule on the Sentencing Guidelines because Beckles had already been convicted under the ACCA. Additionally, Justice Sotomayor stated that, because the Sentencing Guidelines provided such strong guidance, they should be subject to vagueness challenges under the Due Process Clause.

Justice Elena Kagan did not participate in the decision of this case.


Lightfoot v. Cendant Mortgage Corporation

E. Joshua Rosenkranz
Ann O'Connell Adams
Brian P. Brooks

Crystal Monique Lightfoot and Beverly Ann Hollis-Arlington sued the Federal National Mortgage Association (Fannie Mae) in federal district court and alleged numerous state and federal law claims arising out of the foreclosure proceedings Fannie Mae initiated against Hollis-Arlington’s home. The district court dismissed and held that the plaintiffs had failed to show the existence of a genuine issue of material fact regarding their claims. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal.

The plaintiffs then sued in California state court and alleged the state law equivalents of the claims in the earlier federal suit. Fannie Mae removed the case to federal court and argued that its federal corporate charter contained language that granted federal courts subject matter jurisdiction over cases in which it was involved as a plaintiff or defendant. The plaintiffs in this case moved for a remand back to state court, but the district court denied the remand and then dismissed all the claims as having already been litigated in the earlier case in federal court. The appellate court determined that the language in Fannie Mae’s federal charter conferred subject matter jurisdiction to federal courts and affirmed the dismissal.

The “to sue or and be sued” language in the federal charter of the Federal National Mortgage Association (Fannie Mae) does not grant federal district courts subject matter jurisdiction over case involving Fannie Mae, and American National Red Cross v. S.G. need not be overturned. Justice Sonia Sotomayor delivered the opinion for the unanimous Court, which examined previous cases in which the Court had decided whether a “sue and be sued” clause conferred federal jurisdiction. Although the language in Fannie Mae’s charter looks like language in charters that the Court held conferred federal jurisdiction, it also included the qualification “of competent jurisdiction,” which the other clauses lacked. Because this language was not identical to those in the charters that the Court had held established federal subject matter jurisdiction, the previous cases do not control the outcome of this case. Instead, the additional “competent jurisdiction” language means that only a court with existing subject matter jurisdiction can hear a case in which Fannie Mae is suing or being sued. The Court’s prior opinion in American National Red Cross v. S.G. does not require a different result because it confirmed the rule that a “sue and be sued” clause only confers federal jurisdiction if it specifically references federal courts. There was no reason to think that Congress intended a different result.


Venezuela v. Helmerich & Payne International Drilling Company

Catherine E. Stetson
Elaine J. Goldenberg
Catherine M.A. Carroll

The Foreign Sovereign Immunities Act protects foreign sovereigns from suits in American courts unless one of a set of specifically enumerated exceptions applies. One of these exceptions is when the foreign sovereign takes U.S. property (the expropriation exception), and another is when the action of the foreign sovereign has direct effect on U.S. commercial activity (the commercial activity exception).

Oklahoma-based company Helmerich & Payne International Drilling Company owns a subsidiary that contracts with the Venezuelan state-owned corporation that controls the exploration, production, and exportation of oil in Venezuela. In 2007, the two companies executed contracts for the Venezuelan corporation to use Helmerich & Payne’s drilling rigs. By 2008, the unpaid debt from those contracts totaled more than $63 million, and when the debt was over $100 million in 2009, Helmerich & Payne announced it would not be renewing the contract and packed up its drills. Employees of the Venezuelan corporation, assisted by members of the Venezuelan National Guard blockaded the yards in which Helmerich & Payne was keeping its equipment, and then-President Hugo Chavez issued a Decree of Expropriation. Helmerich & Payne sued Venezuela and its state-owned corporation in federal district court under the expropriation and commercial activity exceptions to the FSIA. Venezuela moved to dismiss, and the district court granted the motion with respect to the expropriation claim but denied it with respect to the commercial activity claim. The U.S. Court of Appeals for the District of Columbia Circuit reversed and held that, because the expropriation claim was neither insubstantial nor frivolous, the district court should not have granted the motion to dismiss that claim.

The “frivolous or insubstantial” standard is not consistent with the text and purpose of the Foreign Sovereign Immunities Act (FSIA). Justice Stephen G. Breyer delivered the opinion of the unanimous Court, which held that the expropriation exception to the FSIA was a threshold question of jurisdiction that did not require the court to delve into the merits of the case to determine whether the claim was frivolous or insubstantial. Although a court may take evidence to resolve factual questions, that should be limited to determining whether the allegations state a valid claim that the property at issue was taken in violation of international law. The Court held that this interpretation of the statute is consistent with its language and serves its purpose of preventing foreign sovereigns from being improperly entangled in court proceedings, which follows Supreme Court precedent and the relevant international law principles.

Justice Gorsuch did not participate in the discussion or decision of this case.


Samuel R. Bagenstos
Neal Kumar Katyal
Roman Martinez

The Frys’ daughter, E.F., was born with cerebral palsy and was prescribed a service dog to assist with everyday tasks. Her school, which provided her with a human aide in accordance with her Individualized Education Plan (IEP) under the Individuals with Disabilities Education Act (IDEA), did not allow her to bring her service dog to school. The Frys sued the school, the principal, and the school district and argued that they violated the Americans with Disabilities Act (ADA), the Rehabilitation Act, and state disabilities laws. The district court granted the defendants’ motion to dismiss because the claims necessarily implicated the IDEA, which required plaintiffs to exhaust all administrative remedies before suing under the ADA and Rehabilitation Act. The Frys appealed and argued that the exhaustion requirement did not apply because they were seeking damages, which is not the sort of relief the IDEA provided. The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal and held that the Frys’ claims were essentially educational, which are precisely the sort of claims the IDEA was meant to address, and therefore the exhaustion requirement applied.

The Individuals with Disabilities Education Act (IDEA) does not require that a plaintiff exhaust administrative remedies before suing under the Americans with Disabilities Act if the plaintiff’s claims are not based in, and seeking relief for, the denial of a free and appropriate public education (FAPE). Justice Elena Kagan delivered the opinion for the 8-0 majority. The Court held that the plain language of the exhaustion requirement in the IDEA only applies to remedies that are “available” under that statutory scheme, which is entirely structured around ensuring the provision of FAPE. If a lawsuit is not seeking relief for the denial of FAPE, then it is not seeking an available remedy under the IDEA, and the exhaustion requirement does not apply. Therefore, in determining whether the plaintiff must exhaust administrative remedies, courts must examine the substance of the plaintiff’s complaint to determine whether the plaintiff is seeking relief for a denial of FAPE. Although this examination must do more than look at how the plaintiff labels the relief she seeks, it does not require that the court determine the plaintiff could have sought such relief. In this case, the Frys’ complaint alleges only disability-based discrimination and makes no allegations about the denial of FAPE, but the Court did not foreclose the possibility that a more in-depth examination would reveal something different.

Justice Samuel A. Alito, Jr., wrote an opinion concurring in part and concurring in the judgment in which he argued that some of the indicators the majority opinion identified as helpful in determining whether a complaint sought relief for denial of FAPE would only confuse lower courts. Justice Clarence Thomas joined in the concurrence in part and concurrence in the judgment.


Danielle Spinelli
Sarah E. Harrington
Christopher Landau

Jevic Transportation, Inc. was a trucking company headquartered in New Jersey that in 2006 was purchased by a subsidiary of Sun Capital Partners. In 2008, Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code; at that point, it owed about $53 million to its first-priority senior secured creditors and about $20 million to its tax and general unsecured creditors. Two lawsuits ensued in bankruptcy court: one was the truck drivers suing Jevic for violating federal and state Worker Adjustment and Retraining Notification Acts, which required 60 days’ notice to workers before they were laid off, and the other was a fraudulent conveyance action on behalf of the unsecured creditors. In March 2012, the parties to the fraudulent conveyance action negotiated a structured dismissal settlement that disposed of many of the claims, but left out the drivers. The drivers objected to the settlement because it distributed property to creditors of lower priority than the drivers, according to the priorities established in the Bankruptcy Code. The bankruptcy court rejected the objections and approved the proposed settlement. The federal district court and the U.S. Court of Appeals for the Third Circuit affirmed and held that the bankruptcy court had the discretion to approve a settlement scheme outside of the Chapter 11 proceedings that did not comply with the Bankruptcy Code’s distribution scheme.

Bankruptcy courts cannot authorize distributions of settlement proceeds that do not follow the priority distribution scheme established in the Bankruptcy Code without the consent of the affected creditors. Justice Stephen G. Breyer delivered the opinion of the 6-2 majority. The Court held that, although the Bankruptcy Code does not explicitly state that the priority distribution rules apply to structured dismissal settlements, the priority system is so integral to the Bankruptcy Code that it should be presumed to apply absent an affirmative expression of Congress’ intent to do otherwise. Although the dismissal sections of the Bankruptcy Code grant judges some flexibility, that flexibility should be interpreted in the larger context of the statute as limited to orders that protect the reliance interests in the bankruptcy case, including those based on the priority rules. Although there have been lower court holdings that have allowed for settlement distributions that violated the priority scheme, those were interim dispositions, rather than final dispositions as in this case. Allowing a settlement distribution to deviate from the priority distribution scheme at the final distribution stage would circumvent the Bankruptcy Code’s procedural safeguards and therefore is impermissible.

Justice Clarence Thomas wrote a dissent in which he argued that the parties briefed and argued a narrower issue than they had first presented to the Court. While the original question had been the subject of multiple cases in the lower courts that had come out different ways, the narrower formulation of the question has not been extensively addressed by the lower courts and the Court should have declined to answer it. Justice Alito joined in the dissent.


Neal Kumar Katyal
Robert S. Peck
Curtis E. Gannon

The city of Miami sued Bank of America Corporation and similar defendants under the Federal Housing Act (FHA) and argued that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, that their actions denied the city of expected property and tax revenues, and cost the city money that it would not have had to pay had the banks not engaged in these predatory lending practices. The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect, and therefore did not have standing to sue under the FHA. The district court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harm the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed and held that, as long as the plaintiffs in an FHA case would have standing to sue under Article III of the Constitution, they can sue under the FHA; the statutory standing requirement is not more narrow than Article III. The appellate court also determined that Miami had sufficiently shown that the banks’ actions were the proximate cause of the harm because the harm was reasonably foreseeable as a consequence of the actions.

The “aggrieved persons” language of the Fair Housing Act (FHA) does not impose a more narrow standing standard than Article III does and allows a city to sue, but the proximate cause standard requires the plaintiffs to show more than the possibility that a defendant could have foreseen the harm. Justice Stephen G. Breyer delivered the opinion of the 5-3 majority. The Court held that a plaintiff must meet the traditional standing requirements--an injury in fact that is fairly traceable to the defendant’s conduct and can be redressed by judicial action--as well as showing that the plaintiff’s injury falls within the zone of interests the statute at issue protects. In this case, the City of Miami’s alleged injuries clearly fall within the zone of interests the FHA protects because the City alleged economic injuries that were similar to those that had been sufficient to create standing in prior cases. However, the simple foreseeability of the harm based on the conduct at issue does not satisfy the proximate cause requirement. Because the housing market is so complex and interacts with so many other economic systems, such a loose standard would drastically increase FHA litigation, and nothing in the statute suggests that Congress intended to allow that. The Court held that the proximate cause requirement is met when a plaintiff can show that there is a “direct relation” between the alleged conduct and alleged injury.

In his opinion concurring in part and dissenting in part, Justice Clarence Thomas wrote that the City’s alleged injuries fall outside of the zone of interests that the FHA was supposed to protect and therefore that the City cannot be an “aggrieved person.” Justice Thomas argued that similar statutory language had been interpreted to confer more limited standing than what Article III allows and that, by enacting such language, Congress did not intend to allow all persons who could claim an injury in fact to recover under the statute. The typical “aggrieved person” under the statute is a potential homebuyer or lessee, and while other people may have similar interests at stake, the interests of the City are too different from those the statute was meant to protect. Justice Thomas agreed with the majority that foreseeability was not sufficient to establish proximate cause. Justice Anthony M. Kennedy and Justice Samuel A. Alito, Jr. joined in the opinion concurring in part and dissenting in part.

Justice Gorsuch did not participate in the discussion or decision of this case.


Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic to a father who had become an American citizen in 1917 and a mother who was a citizen of the Dominican Republic. At the time, Morales-Santana’s parents were unmarried, and when they married in 1970, Morales-Santana was “legitimated” by his father’s citizenship, and he became a lawful permanent resident in 1975. Under the Immigration and Nationality Act in effect at the time of Morales-Santana’s birth, a child born abroad to an unwed citizen father and a non-citizen mother only had citizenship at birth if the citizen father was physically present in the United States or one of its possessions for a period totalling ten years at some point prior to the child’s birth, and at least five of those years had to be after the age of 14. Because Morales-Santana’s father was only physically present in Puerto Rico until 20 days before his 19th birthday, when he left to work in the Dominican Republic, he did not meet the requirements to transfer derivative citizenship to Morales-Santana upon his birth.

In 2000, Morales-Santana was placed in removal proceedings because he had been convicted of various felonies. He applied to have the removal withheld and argued that he had derivative citizenship from his father, but the immigration judge denied the application. Morales-Santana filed a motion to reopen and argued that the denial of derivative citizenship violated the Equal Protection Clause of the Fifth Amendment. Although his father did not satisfy the requirements for unwed citizen fathers to transfer derivative citizenship, he did meet the less stringent requirements for unwed citizen mothers (which required physical presence in the United States or one of its possessions for at least a year at some point prior to the child’s birth), and the gender-based difference was a violation of Equal Protection. The Bureau of Immigration Appeals denied the motion to reopen, but the U.S. Court of Appeals for the Second Circuit reversed and held that the gender-based difference in the physical presence requirement violated the Equal Protection Clause of the Fifth Amendment.

The statutory distinction between the physical presence requirements for transferral of derivative citizenship for unwed citizen mothers and unwed citizen fathers of foreign-born children violates the Equal Protection Clause of the Fifth Amendment, and it is up to Congress, rather than the courts, to create a uniform solution that does not disadvantage any person on the basis of gender. Justice Ruth Bader Ginsburg delivered the opinion for the 6-2 majority. The Court held that laws granting or denying benefits on the basis of the gender of the qualifying parent were subject to heightened review under the Court’s equal protection jurisprudence. To be valid, such legislation must serve an important government objective and the means of accomplishing it must be substantially related to that objective. In this case, the Immigration and Nationality Act did not meet that burden. Instead, the gender differential was based solely on the now-untenable assumption that an unwed mother is the “natural and sole guardian of non-marital children.” Although the petitioner argued that the physical presence requirements served the important interest of ensuring a connection between the foreign-born non-marital child and the United States, a gender-based description does not accomplish that goal. Because the gender-based difference was due to overbroad, disfavored generalizations about gender, it did not serve an important government objective and therefore failed to pass the heightened scrutiny test. Despite the fact that the distinction between the physical presence requirements violates the Equal Protection Clause of the Fifth Amendment, the judicial branch cannot resolve the problem by determining which requirement controls. Congress must instead address that issue in legislation.

Justice Clarence Thomas wrote an opinion concurring in the judgment in part in which he argued that only Congress could remedy the alleged equal protection violation in this case. Because the Court could not grant the relief that Morales-Santana requested, the Court should not reach a decision on whether the requirements were constitutional. Justice Samuel A. Alito, Jr. joined in the opinion concurring in the judgment in part.

Justice Neil Gorsuch did not participate in the discussion or decision of this case.


In 2003, Leroy, Donna, Barry, and Suzanne Haeger were injured when one of the tires on their motorhome failed while they were driving on the highway, which caused the motorhome to swerve off the road and overturn. The tire was manufactured by The Goodyear Tire & Rubber Company (Goodyear). In 2005, the Haegers sued Goodyear, which was represented by Basil J. Musnuff on all cases involving that particular model of tire and by Graeme Hancock as local counsel. The parties reached a settlement without going to trial in 2010.

Over a year later, the Haegers’ attorney saw an article that indicated that Goodyear had done testing on the tire in question that had not been provided to the Haegers during discovery. The attorney filed a motion for sanctions with the district court and argued that Goodyear had committed discovery fraud by knowingly concealing crucial tests. Goodyear opposed the motion and argued that it had never represented that it provided all the test records that had been conducted on the tire at issue. The district court determined that Goodyear and Musnuff had deliberately tried to frustrate attempts to resolve the case on its merits. The district court also determined that, while it could not impose sanctions because the matter was settled, it could award the plaintiffs attorney’s fees for all costs incurred after Goodyear’s responses to the first discovery request, which came to approximately $2.7 million. Musnuff and Goodyear were held jointly responsible for 80% of this figure, and Hancock for the other 20%. Musnuff and Goodyear appealed and argued that the district court could not impose such sanctions without the additional procedural protections required for the imposition of punitive sanctions. The U.S. Court of Appeals for the Ninth Circuit held in both appeals that the district court had not abused its discretion and affirmed the award of sanction fees.

Sanctions imposed by a federal court for a litigant’s misconduct in civil proceedings must be compensatory, rather than punitive in nature. Justice Elena Kagan delivered the opinion for the unanimous Court, which held that, when a federal court sanctions bad-faith conduct by ordering a litigant to pay the other side’s legal fees, the award is limited to the fees the innocent party incurred solely due to the misconduct. To issue sanctions that exceed compensation, a court would need to provide procedural protections applicable in criminal cases, such as the “beyond a reasonable doubt” standard of proof. However, courts have considerable discretion to make findings regarding the financial impact of a litigant’s misconduct. In some cases, these findings may include determining what expenses were incurred after a particular moment in time. The only constraint on a court’s award is that its sum must not exceed compensation for fees attributable to the offending litigant’s misconduct.


James Garcia Dimaya, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992. In 2007 and 2009, Dimaya was convicted under the California Penal Code for first-degree residential burglary; both convictions resulted in two years’ imprisonment. Under the Immigration and Nationality Act (INA), a non-citizen convicted of an aggravated felony is subject to deportation. The INA definition of aggravated felony includes a “crime of violence,” which is any offense that involves the use or substantial risk of physical force against another person or property.The Department of Homeland Security (DHS) subsequently initiated deportation proceedings against Dimaya and claimed that his burglary convictions constituted crimes of violence under the Act. The Immigration Judge held that Dimaya was deportable and that burglary constitutes a crime of violence because it always involves a risk of physical violence. The Board of Immigration Appeals (BIA) affirmed.

While Dimaya’s appeal to the U.S. Court of Appeals for the Ninth Circuit was pending, the U.S. Supreme Court decided Johnson v. United States, which held  that the definition of a “violent felony” in the Armed Career Criminal Act (ACCA) was unconstitutionally vague. As a result, the U.S. Court of Appeals for the Ninth Circuit held that the INA’s crime of violence provision was unconstitutionally vague because it was largely similar to the violent felony provision in the ACCA that the Supreme Court struck down in Johnson. The appellate court found that both provisions denied fair notice to defendants and failed to make clear when a risk of violence could be considered substantial.

The Immigration and Nationality Act’s “crime of violence” provision is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. Justice Elena Kagan delivered the 5-4 opinion as to parts . To determine whether a person’s conduct falls within a "crime of violence" under Section 16(b), courts consider the overall nature of the offense, particularly “whether ‘the ordinary case’ of an offense poses the requisite risk.” The Court found that the term “ordinary case” under the “crime of violence” was too vague in that it risked unpredictable and arbitrary interpretation. In 2015, the Court struck down as unconstitutionally vague a similar provision of a different statute, see Johnson v. United States, 576 U.S. ___ (2015), and this provision suffers from the same problems as the one in that case.

A plurality of the court (the majority minus Justice Neil Gorsuch) rejected the government’s argument removal cases deserved a less rigid form of the void-for-vagueness doctrine, largely because the penalty of deportation is so severe. Justice Gorsuch wrote a separate opinion concurring in part and concurring in the judgment, in which he opined that even civil statutes that do not involve removal should be subject to a stringent void-for-vagueness review.

Chief Justice John Roberts, joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, dissented. Chief Justice Roberts argued that unlike the provision of a criminal statute that the Court struck down as overly vague in Johnson, the provision of the INA does not present the same kind of uncertainty that was present in that case.

Justice Thomas filed a dissenting opinion, joined in part by Justices Kennedy and Alito, to express "doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause."


Endrew F. v. Douglas County School District

Jeffrey L. Fisher
Irving L. Gornstein
Neal Kumar Katyal

Endrew F. is an autistic fifth grade student who was placed in private school because his parents believed his public school education was inadequate. Endrew was placed in Firefly Autism House and his parents sued for reimbursement of Endrew’s private school tuition and related expenses pursuant to the Individuals with Disabilities Act (IDEA). IDEA provides that if a free public school cannot meet the educational needs of a disabled student, the student’s parents may enroll their child in a private school and seek reimbursement for tuition and related expenses.

This case first went to an Administrative Law Judge (ALJ) for review. The ALJ rejected Endrew’s parent’s request for reimbursement concluding that Endrew’s public school had provided him with “free appropriate public education” (FAPE) as required by the IDEA. The district court affirmed the ALJ’s ruling and held that Endrew’s parents failed to meet their burden to prove that Endrew was not provided with FAPE. The U.S. Court of Appeals for the Tenth Circuit affirmed.

In order to provide children with disabilities the free appropriate public education guaranteed by under the Individuals with Disabilities Education Act (IDEA), school districts must offer children an Individualized Education Program (IEP) that is reasonably calculated to enable each child to make progress appropriate for that child’s circumstances. Chief Justice John G. Roberts, Jr., delivered the opinion for the unanimous Court, which held that the inquiry into whether an IEP is reasonably calculated to allow a child to make progress is necessarily an intensive, fact-specific one and therefore neither the Court nor the statute could create a substantive standard. The Court’s decision in Board of Education of Hendrick Hudson Central School District v. Rowley suggests that “appropriate progress” for most children would allow them to be fully integrated into the classroom and to advance from grade to grade. This requirement is substantially more than the “de minimus” benefit that the school district argued was all it was required to provide. However, the Court also held that the standard Endrew F.’s parents argued for was too rigorous and was similar to one that the Court had rejected in its decision in Rowley. In conducting its fact-intensive inquiry, a reviewing court should give deference to the expertise of school authorities but must still ensure that an IEP is reasonably calculated to enable each child to make progress appropriate for that child’s circumstances.


Deepak Gupta
Eric J. Feigin
Steven C. Wu

The New York General Business Law prohibits surcharges on credit card transactions. Expressions Hair Design, along with four other New York businesses and their owners, sued Eric T. Schneiderman, the Attorney General of New York, as well as the District Attorneys of New York County and argued both that the statute violated the Free Speech Clause of the First Amendment and that the statute was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. The district court held that the statute was unconstitutional under both theories. The district court found that the statute impermissibly distinguished between surcharges and discounts, which narrowed the form of commercial speech available to the plaintiffs and violated the First Amendment. Additionally, the statute was vague because its application depended entirely on the labels plaintiffs used. The U.S. Court of Appeals for the Second Circuit reversed and held that the statute qualified as permissible regulation of economic activity. The appellate court determined  that prices were not inherently protected speech and that, because the surcharge provision had an easily understood meaning, the provision was not unconstitutionally vague.

The New York General Business Law’s prohibition of credit card surcharges regulates speech and therefore implicates the First Amendment, but it is not unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. Chief Justice John G. Roberts, Jr., delivered the opinion of the 8-0 majority. The Court held that the challenged law regulated speech, and not just conduct, because the law specifically regulates the manner in which businesses may communicate their prices to consumers. Because the U.S. Court of Appeals concluded that the law did not regulate speech, it did not determine whether the law violated the First Amendment, so the case was remanded for reconsideration in light of this decision. The Court also determined that the law was not unconstitutionally vague because the law clearly prohibits certain types of speech and specifically the speech these businesses wish to use.

In his opinion concurring in the judgment, Justice Stephen G. Breyer wrote that virtually all government regulation affects speech. To determine what level of scrutiny to apply, courts generally consider the extent to which the challenged regulation affects a protected First Amendment interest. In this case, because the extent to which the New York law affects a protected First Amendment interest is unclear, Justice Breyer agreed with the majority that the case should be remanded. Justice Sonia Sotomayor wrote a separate opinion concurring in the judgment in which she argued that it was not clear exactly what the New York law prohibited, and that the case could not be properly resolved until the state courts authoritatively interpreted the law. Therefore, the appellate court should have either abstained from interpreting the law or certified the question to the highest state court. Justice Samuel A. Alito, Jr., joined in the opinion concurring in the judgment.


Allyson N. Ho
Rachel P. Kovner
Stephen B. Kinnaird

Damiana Ochoa filed a charge with the Equal Employment Opportunity Commission (EEOC) against her former employer, McLane Company (McLane), for violating Title VII of the Civil Rights Act of 1964. McLane required all new employees and employees returning work after a medical leave to take a physical capability strength test for positions that are classified as physically demanding. Ochoa failed the test three times, and therefore her employment was terminated. The EEOC opened up an investigation into McLane Co. During the investigation, the EEOC issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. McLane continued to refuse to provide that information, so the EEOC filed a subpoena enforcement action. The district court required McLane to disclose some of the information the EEOC subpoenaed, but it refused to require McLane to divulge the “pedigree information” or reasons for termination. The U.S. Court of Appeals for the Ninth Circuit reversed in part and vacated in part after reviewing the lower court’s decision “de novo,” or without giving deference to the lower court’s determination.

A district court’s determination on whether to enforce an Equal Employment Opportunity Commission (EEOC) subpoena should be reviewed for abuse of discretion, which gives deference to the lower court’s determination. Justice Sonia Sotomayor delivered the opinion for the 7-1 majority. The Court held that, when there is no explicit statutory command regarding the level of deference a lower court’s determination deserves, there are two relevant factors to consider: the history of appellate practice and whether one actor is better positioned to decide the issue in question. In reviewing a district court’s decision of whether to enforce or quash an administrative subpoena, the history of appellate practice as well as current practice is for such decisions to be reviewed under the deferential abuse of discretion standard. This standard also reflects the fact that these decisions are case-specific ones that a district court judge is in a better position to make than an appellate court. Therefore, both factors indicate that the abuse of discretion standard is the correct one for appellate courts to use when reviewing a district court’s decision to enforce or quash an EEOC subpoena. Because the lower appellate court in this case did not review the district court’s decision under the correct standard, the Court remanded the case.

In her opinion concurring in part and dissenting in part, Justice Ruth Bader Ginsburg wrote that, although the abuse of discretion standard is the correct one, the lower appellate court’s decision should be affirmed. Justice Ginsburg argued that the district court’s refusal to enforce the subpoena rested on legal error, and questions of legal error are reviewed under the “de novo” standard, without deference.


Ian H. Gershengorn
Jeffrey A. Lamken
Rachel Meeropol

The respondents in this case are a group of male, non-U.S. citizens, most of whom are Muslim of Middle Eastern origin who were detained after the September 11, 2001 attacks and treated as “of interest” in the government’s investigation of these events. In their original claims, the plaintiffs alleged that they were detained without notice of the charges against them or information about how they were determined to be “of interest,” that their access to counsel and the courts was interfered with, and that they were subjected to excessively harsh treatment during their detention. They also asserted that their race, ethnicity, and national origin played a determinative role in the decision to detain them. The plaintiffs sued a number of government officials and argued that the government used their status as non-citizens to detain them when the government’s real purpose was to investigate whether they were terrorists and that the conditions of their confinement violated their Constitutional rights to due process and equal protection. After a series of motions to dismiss, the district court dismissed the claims regarding the length of confinement but allowed the Constitutional claims to proceed. Both the plaintiffs and defendants appealed various aspects of that ruling.

While that appeal was pending, some of the plaintiffs settled their claims against the government and the U.S. Supreme Court decided Ashcroft v. Iqbal, which held that a complaint must allege sufficient facts to be plausible on its face and to allow a court to draw the reasonable inference that the defendant is liable for the claimed conduct. Based on these events, the U.S. Court of Appeals for the Second Circuit dismissed the length of confinement claims but remanded the conditions of confinement claims and allowed the plaintiffs to amend their complaint. The appellate court again dismissed some of the claims and allowed others to proceed.

 In suits against government officials for personally violating the Constitution, “context” should be defined narrowly for the purpose of determining whether a claim arose in a “new context,” and the government officials in this case are entitled to qualified immunity. Justice Anthony M. Kennedy delivered the opinion for the 4-2 majority. The Court held that Bivens v. Six Unknown Named Agents established an implied right of action to sue a federal official for money damages when the official violated constitutional rights. However, the Court had declined to extend the Bivens precedent because Congress had not enacted a statute that allowed for this type of remedy. Therefore, in order to respect the separation of powers, the situations in which a court determined that there was an implied right of action for monetary damages against a federal official should be rare. If there were “special factors counselling hesitation,” a court should not determine that a Bivens remedy was available. Although the Court had not defined “special factors,” they must be present in cases in which is is doubtful that Congress intended to allow for money damages against federal officials. Based on this background, for the purposes of determining whether a Bivens claim arises in a “new context” and must be subject to a special factors analysis, the term “context” should be defined narrowly. Because this case differed in a meaningful way from those that the Court has decided under Bivens previously, it arose in a new context and the special factors analysis should apply. The national security, policy, and separations of powers concerns here were all special factors that counseled against a determination that a Bivens implied right of action was appropriate in this case. The Court also determined that the government officials in this case were entitled to qualified immunity because reasonable officials in their positions would not have known that their conduct was unlawful under clearly established law regarding how a conspiracy applies to a governmental entity.

In his opinion concurring in part and concurring in the judgment, Justice Clarence Thomas wrote that he agreed with the majority that the Bivens precedent did not extend to this case. However, Justice Thomas argued that the qualified immunity analysis diverged from what Congress had intended. Instead of determining whether a reasonable official would have known that his actions violated clearly established law, qualified immunity for constitutional violations should be determined by what the common law historically would have covered.

Justice Stephen G. Breyer wrote a dissent in which he argued that the plaintiffs in this case pleaded facts that were well within the scope of established Bivens law, and therefore the claims should be allowed to proceed. A case did not fall under Bivens if it arose out of a new context, which meant that the case was fundamentally different from those that the Court had considered before. In this case, the harms the plaintiffs claim to have suffered were very similar to those that the Court addressed in Bivens, and Congress had not indicated that it intended to withdraw the Bivens remedy in such a situation. Even if this case arose in a new context, the Bivens remedy should still be available because there was no alternative, existing process for protecting their interests and vindicating the harms they already suffered. Justice Breyer also argued that the Bivens precedent included sufficient safeguards to prevent judicial overreach and therefore there were no “special factors” that counseled hesitation from the courts. Justice Ruth Bader Ginsburg joined in the dissent.

Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Neil Gorsuch did not participate in the discussion or decision of this case.


The state of Colorado, like most states, imposes certain monetary penalties upon persons convicted of a crime. Shannon Nelson and Louis Madden were both separately arrested and charged with sexual assault crimes. Nelson was acquitted of all charges, and Madden was acquitted of one of two charges against him. Both requested refunds from the state for the penalties they had been charged, since their convictions were overturned. The trial court determined it lacked jurisdiction in Nelson’s case and only returned the funds taken from Madden in connection with the one charge on which he was acquitted. The Colorado Court of Appeals found that the state must refund the money Nelson and Madden had paid respective to their sexual assault charges that had been thrown out. The Colorado Supreme Court reversed the decisions in both cases and held that,  under the state’s Exoneration Act, an individual may only recover monetary losses from an arrest if they can “prove, by clear and convincing evidence, that [they were] ‘actually innocent.’”

Colorado’s Exoneration Act, which requires exonerated persons to “prove, by clear and convincing evidence, that they were ‘actually innocent’” in order to refund their money, is invalid under the Due Process Clause of the Fourteenth Amendment. Justice Ruth Bader Ginsburg delivered the opinion for the 7-1 majority. The Court returned to its reasoning in Mathews v. Eldridge, in which the Court looked at three factors:  the private interest affected,  the risk of erroneous deprivation of the defendants’ interests if the Exoneration Act is their only remedy, and what is at stake for the government. Nelson and Madden clearly had an interest in getting back the money they paid to the state upon their convictions. With regard to the second factor, the Court noted that the Exoneration Act did not allow the defendants to be presumed innocent, a presumption to which they are entitled. Finally, the Court held that Colorado has no claim of right to Nelson and Madden’s funds.

In his concurrence, Justice Samuel A. Alito, Jr., looked to the historical, common-law tradition rather than using the Mathews framework. Generally, when an individual’s judgment is later reversed, the money is repaid;  this general rule also applied to criminal cases. Because Colorado’s Exoneration Act provided defendants whose convictions are reversed with “no realistic opportunity to prove they are deserving of refunds,” it did not comport with the Due Process Clause.

Justice Clarence Thomas wrote a dissent in which he argued that the defendants had failed to show that they had a substantive entitlement to the money paid to the state upon their convictions. Justice Thomas argued  that there had been no demonstration as to why exonerated individuals should automatically receive a refund of money that was paid pursuant to their then-valid convictions, nor had the defendants showed how they have been “deprived of a protected property interest” under the Fourteenth Amendment.