Stephen I. Vladeck
Brian H. Fletcher
Aditya Bamzai

Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a "civil office,” including positions that require "an appointment by the President by and with the advice and consent of the Senate." 10 U.S.C. § 973(b)(2)(A)(ii). After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I US Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the US Air Force Court of Criminal Appeals (CCA).

A judge convicted Keanu Ortiz of possessing and distributing child pornography, and sentenced him to two years' imprisonment and a dishonorable discharge. A panel of the AFCCA, which included Judge Mitchell, affirmed the findings and sentence. Ortiz filed a petition for review with the Court of Appeals for the Armed Forces (CAAF), asking the court to consider whether Judge Mitchell was disqualified from serving on the CCA because he had been appointed to the CMCR. Ortiz claimed that Judge Mitchell's CMCR appointment precluded him from serving on the CCA under both the the federal statute and the Constitution. The CAAF rejected both of Ortiz's arguments.

Note: This case was original consolidated under Dalmazzi v. United States (16-961), and the oral argument audio and transcripts can be found there.

The Court has jurisdiction to review decisions by the US Court of Appeals for the Armed Forces, and Judge Mitchell's simultaneous service on the CMCR and AFCCA does not violate the Appointments Clause or 10 U.S.C. § 973(b)(2)(A). Justice Elena Kagan delivered the opinion of the 7-2 majority.

First, the Court found that the CAAF's not being an Article III court does not remove the jurisdiction of the Supreme Court to review its decisions. The Supreme Court uncontroversially reviews the decisions of many non-Article III courts, including state courts and those of the District of Columbia. Nor does the fact that CAAF is part of the Executive Branch remove the Supreme Court's jurisdiction over it. Because it is a permanent court of record established by Congress, the Supreme Court may properly exercise jurisdiction over it.

Second, as to Judge Mitchell's simultaneous service on CMCR and AFCCA, the Court found that the express authorization to assign military officers to the CMCR under §950f(b)(2) was both necessary and sufficient to exempt him from §973(b)(2)(A). Once the Secretary of Defense placed Judge Mitchell on the CMCR, the president's subsequent appointment of him to AFCCA did not negate the secretary's earlier action but ratified it. With respect to the constitutional claim, the Court held that it has never interpreted the Appointments Clause to impose rules about dual service.

Justice Clarence Thomas filed a concurring opinion. He joined the majority's opinion in full but wrote separately to say that the conclusion reached by the Court is consistent with the founders' understanding of judicial power.

Justice Samuel Alito filed a dissenting opinion, in which Justice Neil Gorsuch joined. The dissent would find the Court lacks jurisdiction over decisions by the CAAF because the Supreme Court's appellate jurisdiction permits it to review only the lawful exercise of judicial power. Because the CAAF is a military tribunal and part of the Executive Branch, the dissent argues the Court lacks jurisdiction to review its decisions.


Stephen C. Vladeck
Brian H. Fletcher
Aditya Bamzai

This case was consolidated for argument with Dalmazzi v. United States (16-961) and Ortiz v. United States (16-1423).

In a per curiam opinion, the Court dismissed the writ of certiorari as improvidently granted in this case and in the consolidated case Dalmazzi v. United States (16-961). The Court reached the merits and issued a decision in the third consolidated case only, Ortiz v. United States (16-1423).


Washington State Department of Licensing v. Cougar Den, Inc.

Noah Purcell
Ann O'Connell Adams
Adam G. Unikowsky

Under Article III of the Yakama Nation Treaty of 1855, members of the tribe have "the right, in common with citizens of the United States, to travel upon all public highways." Cougar Den is a Yakama-owned fuel distributor that imports millions of gallons of fuel into the state each year to sell to the public. In December 2013, Cougar Den received an assessment from the Washington State Licensing Department, demanding $3.6 million in unpaid taxes, penalties, and licensing fees for hauling fuel across state lines without a license. Cougar Den protested the assessment, and the Department’s ALJ ruled that the bill was impermissible under the treaty. The director of the Department reversed the ALJ, and Cougar Den then appealed the Department’s order to the Yakima County Superior Court, which reversed the order and ruled that it violated the tribe’s right to travel. The Department sought review by the Washington Supreme Court.

The U.S. Court of Appeals for the Ninth Circuit has repeatedly rejected claims that the treaty provision at issue exempts members from taxes or state fees on commercial activities taking place outside the Yakama Indian Reservation. In the instant case, the Washington Supreme Court adopted a much broader meaning, ruling that this portion of the treaty bars states from taxing "any trade, traveling, and importation" by members of the Yakama tribe “that requires the use of public roads,” even those outside the reservation. Based on this interpretation, the state’s high court held that the treaty preempts the state from requiring Cougar Den to pay wholesale fuel taxes.

The “right to travel” provision of the Yakama Treaty of 1855 (between the United States and the Yakama Nation of Indians) preempts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation.

Justice Stephen Breyer delivered an opinion in which Justices Sonia Sotomayor and Elena Kagan joined. For this plurality of the Court, Justice Breyer agreed with the Washington Supreme Court below that a provision of the Yakama Treaty of 1855 that guarantees the Yakama “the right . . . to travel upon all public highways” preempts a state tax triggered when motor fuel “enters into [Washington] state,” a tax exempted only for “bulk transfer,” such as pipeline or ship but not by ground transportation. A key component of the treaty was the right to travel with goods for sale or distribution, and the tax impermissibly burdened that treaty right.

Justice Neil Gorsuch filed an opinion concurring in the judgment, in which Justice Ruth Bader Ginsburg joined. Justice Gorsuch pointed out that the treaty was drafted by the United States in a language the Yakamas could not read, and the Yakamas relinquished large amounts of territory in exchange for their treaty rights. Under these circumstances, Justice Gorsuch argued, the treaty should be interpreted as the Yakama understood it.

Chief Justice Roberts filed a dissenting opinion, in which Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh joined. Chief Justice Roberts argued that the tax burdens possession, not travel, and that it would apply regardless of how the fuel entered the state. Under this interpretation, the tax does not impermissibly burden the treaty right.

Justice Kavanaugh filed a dissenting opinion, in which Justice Thomas joined. Justice Kavanaugh argued that the language of the treaty is best interpreted to mean that the Yakamas have the right to travel on public highways equal to the right that other U.S. citizens have. Thus, a state can apply any nondiscriminatory restrictions on travel without unduly burdening the treaty rights.


Christopher M. Curran
Erica L. Ross
Kannon K. Shanmugam

Sailors and spouses of sailors injured in the 2000 bombing of the U.S.S. Cole in the Port of Aden, Yemen filed suit in 2010 in the U.S. District Court for the District of Columbia under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1130, 1602, et seq., alleging that Sudan had provided material support to al Qaeda, whom they alleged was responsible for the attack. In accordance with the plaintiffs’ request, the clerk of the court served the summons and complaint on Sudan by mailing the case documents to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C., and received a return receipt. Sudan did not answer the complaint within the required time frame, and the clerk of the court therefore entered a default against Sudan. In 2012, the district court entered a default judgment against Sudan in the amount of approximately $314,000, and found that service had been proper. The clerk of the court mailed a copy of the default judgement to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C., and received confirmation that it had been delivered.

The judgment was registered in the U.S. District Court for the Southern District of New York, which in late 2013 and early 2014 issued three turnover orders directing particular banks to turn over assets of Sudan to the plaintiffs. After the third turnover order was issued, Sudan filed a notice of appearance, and on the same day, appealed the turnover orders to the Second Circuit. The appeals court affirmed the orders, holding that service of process had been proper under FSIA. In 2015, Sudan sought a rehearing en banc, and the United States filed an amicus brief in support of the petition. The Second Circuit denied Sudan’s request for a rehearing en banc.

When civil process is served on a foreign state under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1608(a)(3) requires a mailing to be sent directly to the foreign minister’s office in the foreign state. In an 8–1 majority opinion authored by Justice Samuel Alito, the Court held that the most natural reading of § 1608(a)(3) required that the Republic of Sudan be served by a mailing sent directly to its foreign minister’s office in Sudan, not to the Sudanese Embassy in the United States.

A federal court may exercise jurisdiction over a foreign state in limited circumstances as described in the Foreign Sovereign Immunities Act of 1976 (FSIA). Relevant in this case is that a court may exercise personal jurisdiction over a foreign state only “where service has been made under section 1608.” That section, specifically § 1608(a)(3), allows for four methods of serving civil process, one of which—at issue in this case—is service “by any form of mail requiring a signed receipt, to be addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” The Court found that “addressed” means having one’s name and address placed on the outside of a letter or package, and that an “address” means “a residence or place of business.” The foreign nation’s embassy in the United States is neither “a residence” nor its “place of business.” Moreover, to “dispatch” means to “send directly” to the address of the intended recipient.

The Court then found that its interpretation of the meaning of the statute bolstered by other related provisions. The “addressed and dispatched” language is intended to be “reasonably calculated to give actual notice” to the recipient.

Further, the Court found that its interpretation leads to other logical results. If mailing a service packet to a foreign state’s embassy in the United States were sufficient, then it would be easier to serve the foreign state itself than to serve a person in that foreign state under Rule 4 of the Federal Rules of Civil Procedure, which is an illogical result.

Justice Clarence Thomas authored a dissenting opinion arguing that FSIA “neither specifies nor precludes the use of any particular address” and that, given “the unique role that embassies play in facilitating communications between states,” service by mailing to Sudan’s embassy in Washington, D.C., should comply with the requirements of FSIA.


Lawrence D. Rosenberg
Michael R. Huston
Lindsay S. See

West Virginia Code 11-21-12(c)(6) (“Section 12(c)(6)”) exempts from state taxation the retirement income of many state and local firefighters and law enforcement officers, but not federal marshals. Plaintiffs James and Elaine Dawson allege that this differential treatment is proscribed by 4 U.S.C. § 111, which allows for state taxes on federal retirement benefits only if “the taxation does not discriminate...because of the source of the pay or compensation.” James Dawson spent most of his career with the US Marshal Service and retired in 2008. Dawson and his wife sought to exempt Dawson’s federal retirement income from his state income tax, but the tax commissioner refused to allow the exemption.

The Office of Tax Appeals affirmed the tax commissioner’s denial of the Dawsons’ 12(c)(6) exemption, and the Dawsons timely appealed. The Circuit Court of Mercer County found that the tax scheme does violated 4 U.S.C. § 111 and reversed the Office of Tax Appeals. The tax commissioner appealed the circuit court’s decision, and on appeal, the state supreme court reversed.

The West Virginia law that taxes the retirement income of federal marshal but exempts from taxation state and local law enforcement officers unlawfully discriminates against federal employees, in violation of 4 U.S.C. § 111. In a unanimous opinion authored by Justice Neil Gorsuch, the Court found that the state law confers a benefit to state and local retirees that federal retirees cannot receive and that there are no “significant differences between the two classes” of employees that justify differential treatment. The Court found unpersuasive the state’s arguments that the law affects too few people to meaningfully interfere with federal government operations and that the statute is not intended to harm federal retirees. The prohibition on discrimination, 4 U.S.C. § 111, applies to any state tax, not only those that are cumbersome, and the state’s purpose in adopting the discriminatory tax is irrelevant. With no meaningful distinction between retired federal marshals and state law enforcement retirees, the state cannot treat the two classes of retirees differently for purposes of taxation.


Michael Biestek worked for most of his life as a carpenter and a construction laborer. He stopped working in June 2005 due to a degenerative disc disease, Hepatitis C, and depression. He applied for SSI and SSDI benefits in March 2010, alleging a disability onset date of October 28, 2009. The Social Security Administration (SSA) denied his application in August 2010, an Administrative Law Judge (ALJ) denied his application, and the Social Security Administration Appeals Council denied review. Biestek timely appealed, and the district court adopted the magistrate judge’s finding that the ALJ had not obtained necessary medical-expert testimony and did not pose a sufficiently specific hypothetical to the vocational expert. On remand, the ALJ found that Biestek was disabled from May 4, 2013, but not before. Biestek appealed the ALJ’s determination, and the district court affirmed.

The Sixth Circuit affirmed the district court, holding that substantial evidence supported the ALJ’s finding that Biestek did not meet the back-pain-related impairment requirement and that the ALJ properly evaluated the testimony of medical experts and a vocational expert.

A vocational expert’s refusal to provide the underlying private data during a Social Security disability benefits hearing does not categorically preclude the testimony from counting as “substantial evidence” in federal court. In a 6–3 opinion by Justice Elena Kagan, the Court held that whether testimony amounts to “substantial evidence” requires a case-by-case determination and cannot be subject to a categorical rule as Biestek proposed in this case.

“Substantial evidence” is anything more than “a mere scintilla.” Under the categorical approach proposed by Biestek, the testimony of a vocational expert who refuses a request for supporting data would never constitute substantial evidence, which is an illogical result. If there is no demand for underlying data, the vocational expert’s testimony may count as substantial evidence even without supporting data. The mere addition of a request for that data should not render the expert’s testimony categorically inadequate.

Justice Sonia Sotomayor filed a dissenting opinion, arguing that the question presented in the case required considering not only the propriety of a categorical rule but also the narrower circumstances of Biestek’s case. In this case, Justice Sotomayor argued that the expert provided only conclusory testimony that cannot alone constitute substantial evidence to support the ALJ’s conclusions.

Justice Neil Gorsuch filed a dissenting opinion, in which Justice Ruth Bader Ginsburg joined, arguing that the expert’s bottom-line testimony fails to satisfy the government’s statutory burden of substantial evidence. Justice Gorsuch argued that if “clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence aren’t substantial evidence [and federal appellate jurisprudence says they are not], the evidence here shouldn’t be either.”


Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc.

Kannon K. Shanmugam
Malcolm L. Stewart
William M. Jay

Helsinn owns four patents describing intravenous formulations of palonosetron for reducing the likelihood of chemotherapy-induced nausea and vomiting (“CINV”). All four claim priority to a provisional patent application filed on January 30, 2003. The critical date for the on-sale bar is one year earlier, January 30, 2002, which means the sale of the invention before that date can invalidate the patent. In its defense, Teva argued that the asserted claims were invalid under the on-sale bar provision of 35 U.S.C. § 102.

The sale referenced by Teva in its defense was an exclusive supply and purchase agreement between Helsinn and MGI Pharma. Everything about the agreement except the terms and price was publicly disclosed.

The district court upheld as valid Helsinn’s patents and rejected Teva’s “on sale” defense. The Federal Circuit reversed, finding that the patents were subject to an invalidating contract for sale prior to the critical date of January 30, 2002, The court also noted that the evidence that the formulation was ready for patenting before the critical date was “overwhelming.”

An inventor’s sale to a third party who is obligated to keep the invention confidential constitutes invalidating prior art. Justice Clarence Thomas authored the opinion for a unanimous (9–0) Court.

The patent statute in force immediately before the America Invents Act (AIA) contained an “on-sale bar” which invalidated patents that had been on sale. Applying the presumption that when Congress reenacts the same language, it adopts the earlier judicial construction of the phrase, the Court found that the AIA consequently prohibits patents that had previously been on sale. Therefore, the commercial sale to a third party who is required to keep the invention confidential falls within the on-sale bar of the AIA and invalidates the patent.


Henry Schein Inc. v. Archer and White Sales Inc.

In 2012, Archer & White Sales, Inc.—a distributor, seller, and servicer for multiple dental equipment manufacturers—filed a lawsuit against Henry Schein, Inc. and its parent company—allegedly the largest distributor and manufacturer of dental equipment in the United States. In its lawsuit, Archer alleged violations of the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. The district court referred the case to a magistrate judge, and Schein moved to compel arbitration pursuant to a clause in a contract (“Dealer Agreement”) between Archer and another distributor who was allegedly Schein’s predecessor in interest.

After a hearing, the magistrate judge held (1) the arbitration clause manifested an intent to have an arbitrator decide questions of arbitrability; (2) there is a reasonable construction of the arbitration clause that would call for arbitration in this dispute; and (3) the standard for determining whether equitable estoppel is appropriate requires arbitration against both signatories and non-signatories to the Dealer Agreement.

The district court vacated the magistrate judge’s order and held that the court could decide the question of arbitrability, and that the dispute was not arbitrable because the plain language of the arbitration clause expressly excluded suits that involved requests for injunctive relief. The court declined to reach the question of equitable estoppel. Schein appealed to the Fifth Circuit.

In the Fifth Circuit, courts must look first to whether the parties “clearly and unmistakably” intended to delegate the question of arbitrability to an arbitrator. If they did, “the motion to compel arbitration should be granted in almost all cases,” except where “the argument that the claim at hand is within the scope of the arbitration agreement is ‘wholly groundless.’” This standard requires consideration of whether there is a plausible argument for the arbitrability of the dispute. If there is no such plausible argument, “the district court may decide the ‘gateway’ issue of arbitrability despite a valid delegation clause.’”

Reviewing the district court’s determinations de novo, the Fifth Circuit affirmed the district court.

The “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act, so the question of arbitrability should be resolved by an arbitrator, not a court. In a unanimous opinion by Justice Brett Kavanaugh, the Court reiterated its prior decisions that parties to a contract have the ultimate say in whether to have an arbitrator or a court resolve disputes—not only the merits of disputes, but also questions of arbitrability. The Court found that in this contract, the parties had delegated to an arbitrator the question of arbitrability, so a court cannot override the contract and resolve such questions.

The Court found unpersuasive Archer & White’s arguments to the contrary, holding that neither the text of the Act nor Congress’s intent in designing it supported a reading of the Act that empowers a court to resolve the question of arbitrability against the express wishes of the contracting parties.

The Court remanded the case to the Fifth Circuit to consider the question whether the contract in fact delegated the arbitrability question to an arbitrator.


Shay Dvoretzky
Malcolm L. Stewart
David C. Frederick

Beginning in 2010, hundreds of plaintiffs around the country filed personal injury lawsuits against drug manufacturer Merck Sharp & Dohme (“Merck”), claiming that the osteoporosis drug Fosamax had caused them to suffer severe thigh bone fractures. Under state tort law, each plaintiff alleged, among other things, that Merck’s Food and Drug Administration (FDA)-approved drug label failed to include an adequate warning regarding the risk of femur fractures.

In 2011 the cases were consolidated as a multi-district litigation action in the U.S. District Court for the District of New Jersey. The cases subsequently grew to include over 1,000 plaintiffs. After discovery and a bellwether trial, the district court ruled in favor of Merck on a summary judgment motion, dismissing all of the plaintiffs’ claims on the basis that they were preempted by federal law under Wyeth v. Levine, 555 U.S. 555 (2009), which held that state-law failure-to-warn claims are preempted in the event that there is “clear evidence” that the FDA would not have approved the warning that a plaintiff claims was necessary.

The U.S. Court of Appeals for the Third Circuit vacated and remanded the district court’s ruling, holding that preemption was an affirmative defense, and that Merck had not sufficiently proven that it was entitled to that defense as a matter of law. Under Wyeth’s demanding “clear evidence” standard, the appellate court found that the plaintiffs had produced adequate evidence for a reasonable jury to find that the FDA would have approved an appropriately worded warning about the risk of femur fractures, or at least that the chances of FDA rejection were not highly probable. Pursuant to Wyeth and Federal Rule of Civil Procedure 56, this showing was sufficient to defeat summary judgment and move forward to trial.

Whether the FDA’s rejection of a proposed drug label preempts state-law failure-to-warn claims requires “clear evidence” that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA informed the drug manufacturer that it would not approve that change and is primarily a legal question that must be resolved by a judge, not a factual question to be resolved by a jury.

Justice Stephen Breyer authored the Opinion of the Court (6-3 in its reasoning, but 9-0 in the judgment). Under the Supremacy Clause of the U.S. Constitution, federal law preempts state law when it is “impossible for a private party to comply with both state and federal requirements.” Here, the state law at issue is state common law or statutes that require drug manufacturers to warn drug consumers of the risks associated with a particular drug. The federal law at issue is the statutory and regulatory scheme by which the FDA regulates the labels of brand-name prescription drugs.

In Wyeth v. Levine, 555 U.S. 555 (2009), the Court held that “absent clear evidence that the FDA would not have approved a change” to the label, the Court could not conclude that it was impossible to comply with both federal and state labeling requirements.” Applied to the facts of that case, that the state-law claims were preempted by federal law only if the drug manufacturer showed it “fully informed” the FDA of the justifications for the warning required by state law, and also that the FDA then informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. Justice Breyer clarified that “clear evidence” is not a heightened evidentiary standard but a requirement that the court consider “whether the relevant federal and state laws ‘irreconcilably conflic[t].’”

It is not enough that the FDA simply act. It must act pursuant to its congressionally delegated authority, as preemption only occurs when federal law—not all agency action—conflicts with state law. The question whether the FDA’s disapproval of the proposed label is primarily one of law and thus better suited for judges, not juries, to resolve. Judge are “better equipped” than juries “to evaluate the nature and scope of an agency’s determination...and to interpret agency decisions in light of the governing statutory and regulatory context.” Thus, the Third Circuit erred in treating the preemption question as one of fact, not law.

Justice Clarence Thomas joined the majority and wrote separate concurring opinion to explain his understanding of preemption doctrine. Justice Thomas argued that the FDA’s response letter in this case “was not a final agency action with the force of law,” and thus could not preempt under the original meaning of the Supremacy Clause.

Justice Samuel Alito authored an opinion concurring only in the judgment of the Court, in which Chief Justice John Roberts and Justice Brett Kavanaugh joined. Justice Alito agreed with the majority that the question of preemption in this case is a question of law, but he declined to join the majority because of concern that its discussion of the law and facts may be misleading on remand. Justice Alito argued that a standard of proof like “clear evidence” has “no place in the resolution of this question of law” and that notwithstanding the majority’s suggestion to the contrary, there are other ways in which a drug manufacturer may change a label without prior FDA approval.


Dario Borghesan
Jeffrey B. Wall
Zane D. Wilson

Russell Bartlett was arrested by Alaska state troopers Luis Nieves and Bryce Weight for disorderly conduct and harassment. Bartlett subsequently sued the officers for damages under 42 U.S.C. § 1983, making claims including false arrest and imprisonment, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment to the officers on all claims. The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s ruling on the retaliatory arrest claim, explaining that under its own precedent, a showing of probable cause did not preclude a claim of retaliatory arrest. The appellate court noted that in 2012, the U.S. Supreme Court had clarified that its decision in Hartman v. Moore, 547 U.S. 250 (2006), which held that a plaintiff could not make a retaliatory prosecution claim if the charges were supported by probable cause, did not necessarily extend to retaliatory arrests. And since that time, the Ninth Circuit had held that a plaintiff could make a retaliatory arrest claim even if the arresting officers had probable cause.

The presence of probable cause for an arrest defeats a First Amendment retaliatory arrest claim as a matter of law. Chief Justice John Roberts delivered the majority opinion.

To prevail on a First Amendment retaliatory arrest claim, the plaintiff must show that the official acted with a retaliatory motive and that the motive was the “but-for” cause of the plaintiff’s injury. The Court looked to analogous situations to determine how to identify whether improper motive caused the injury: the torts of false imprisonment and malicious prosecution. Analysis of motive of these torts supports the conclusion that the presence of probable cause should defeat a retaliatory arrest claim, regardless of the subjective motive of the arresting officer. Thus, if the officer has probable cause, then even the presence of a retaliatory motive motive is irrelevant unless the plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been” (an equal protection, rather than First Amendment, argument).

Justice Clarence Thomas joined the majority opinion as to all but Part II-D (in which the Court described a narrow qualification for the situation in which officers have probable cause for an arrest but exercise discretion not to do so). He wrote separately to concur in part and concur in the judgment.

Justice Neil Gorsuch wrote an opinion concurring in part and dissenting in part.

Justice Ruth Bader Ginsburg wrote an opinion concurring in the judgment in part and dissenting in part.

Justice Sonia Sotomayor filed a dissenting opinion.


Fourth Estate Public Benefit Corp. v. Wall-Street.com

Aaron M. Panner
Peter K. Stris
Jonathan Y. Ellis

Fourth Estate Public Benefit Corporation is a news organization that produces online journalism and licenses articles to websites while retaining the copyright to the articles. Wall-Street.com obtained licenses to several articles produced by Fourth Estate, and under the license agreement, Wall-Street was required to remove all of the content produced by Fourth Estate from its website before cancelling its account. However, when Wall-Street cancelled its account, it continued to display the articles produced by Fourth Estate.

Fourth Estate filed a lawsuit for copyright infringement, although it filed an application to register its allegedly infringed copyrights and the copyright office had not yet registered its claims. The district court dismissed the action, finding “registration” under Section 411 of the Copyright Act required that the register of copyrights “register the claim,” and that step had not occurred. The Eleventh Circuit affirmed.

Registration of a copyright claim “has been made” not when an application for registration is filed, but only after the copyright office has processed the application and registered the copyright. In a unanimous opinion by Justice Ruth Bader Ginsburg, the Court held that Fourth Estate’s application to register its allegedly infringed copyrights was not yet complete for the purposes of 17 U.S.C. § 411(a) because the copyright office had not yet registered its claims. The Court looked to the language of the first two sentences of § 411(a) and found that under Fourth Estate’s proposed interpretation of the statute—that application alone would constitute registration—the second sentence would be made superfluous. Canons of statutory construction caution against such interpretations. The Court found that the more plausible interpretation—that registration occurs only when the copyright office finishes processing the application—is consistent with other provisions of the Copyright Act, as well.


Daniel L. Geyser
Kannon K. Shanmugam
Jonathan C. Bond

Dennis Obduskey obtained a mortgage loan for $329,940 in 2007. The loan was serviced by Wells Fargo. Obduskey defaulted on the loan in 2009. Over the next six years foreclosure proceedings were initiated several times, but never completed. Obduskey’s loan remained in default, and in 2014 the bank hired the law firm of McCarthy & Holthus LLP to pursue non-judicial foreclosure proceedings against him. McCarthy sent Obduskey a letter informing him that it had been instructed to begin foreclosure proceedings, and Obduskey responded to the letter disputing the debt. The firm initiated a foreclosure action in May 2015. Obduskey sued McCarthy and Wells Fargo, alleging, among other things, a violation of the Fair Debt Collection Practices Act (FDCPA). The district court granted the defendants’ motions to dismiss on all claims, and noted disagreement among courts as to whether the FDCPA applied to non-judicial foreclosure proceedings.

Upon Obduskey’s appeal to the U.S. Court of Appeals for the Tenth Circuit, the appellate court held that based on the statute’s plain language as well as policy considerations, the FDCPA did not apply to non-judicial foreclosure proceedings in Colorado. It agreed with the district court’s finding that Wells Fargo was not a debt collector because Obduskey was not in default when it began servicing the loan. It also held that McCarthy was not a debt collector under the FDCPA because attempting to enforce a security interest was not the same as attempting to collect a money debt.

In reaching this conclusion, the Tenth Circuit joined the Ninth Circuit, and ruled in conflict with the outcomes reached on this topic in the Fourth, Fifth, and Sixth Circuits.

Obduskey petitioned the U.S. Supreme Court for review. The Court granted certiorari, and will consider whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings. This is the same question presented in Greer v. Green Tree Servicing LLC.

A business engaged in no more than non-judicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act (FDCPA), except for the limited purpose of § 1692f(6). In a unanimous opinion authored by Justice Stephen Breyer, the Court held that law firm McCarthy & Holthus LLP was not a “debt collector” within the meaning of the FDCPA when it merely initiated a nonjudicial foreclosure action. The Court first looked to the primary definition of “debt collector” under the FDCPA, which is “any person . . . in any business the principal purpose of which is to collect, directly or indirectly, debts.” The Act then provides a limited-purpose definition that a debt collector “also includes any person . . . in any business the principal purpose of which is the enforcement of security interests.” The Court found the language “also includes” strongly suggests that the limited-purpose security enforcers do not fall within the scope of the primary definition. This reading gives effect to every word of the definition. The Court then found that the purpose (to treat security-interest enforcement differently from ordinary debt collection so as to avoid conflicts with state non-judicial foreclosure schemes) and legislative history of the FDCPA (the language ultimately used in the Act was a compromise between competing versions of the bill that treated security-interest enforcement vastly differently) support this interpretation.

Justice Sonia Sotomayor filed a concurring opinion in which she emphasizes how complex the statute is and calls upon Congress to clarify the statute if it feels the Court (understandably, given the statute’s complexity) interpreted it incorrectly. She also notes that the Court “rightly cabins its holding to the kinds of good-faith actions presented here” and does not suggest that “pursuing nonjudicial foreclosure is a license to engage in abusive debt collection practices.”


Franchise Tax Board of California v. Hyatt

In 1993, a tax auditor for the Franchise Tax Board of California (FTB) read a newspaper about Gilbert P. Hyatt, an inventor, and the large amounts of money he was making from the patent. The auditor decided to investigate Hyatt, and, after finding some discrepancies, opened an audit on Hyatt’s 1991 state tax return. In conducting the audit, the auditor found additional discrepancies  surrounding Hyatt’s move from California to Nevada and opened an audit as to his 1992 tax returns. FTB determined that Hyatt owed $1.8 million in state income taxes, plus $1.4 million in penalties and $1.2 million in interest, resulted in a tax assessment of $4.5 million for Hyatt’s 1991 tax year. FTB further found that Hyatt owed over $6 million in taxes and interest for 1992, plus penalties.

Hyatt challenged the conclusions by filing protests with FTB and then in California courts. In 1998, Hyatt sued FTB in Nevada state court seeking damages for intentional torts and bad-faith conduct allegedly committed by FTB auditors during tax audits of Hyatt’s 1991 and 1992 state tax returns.

FTB filed a motion for partial summary judgment challenging the Nevada district court’s jurisdiction over Hyatt’s declaratory relief cause of action. The district court granted partial summary judgment, finding that the timing of Hyatt’s move from California to Nevada should be resolved via the administrative investigation. FTB also asked the Nevada Supreme Court to decide whether it was entitled to complete immunity under several theories: it enjoyed complete immunity under California law, it was entitled to sovereign immunity, the Full Faith and Credit Clause, and comity. The Nevada Supreme Court concluded FTB was not entitled to complete immunity under any of these principles, but was entitled to partial immunity equal to the immunity a Nevada government agency would receive. Thus, the court concluded that FTB was immune from the negligence cause of action, but not from the intentional tort causes of action.

FTB appealed to the US Supreme Court, and the Court upheld the court’s determination that FTB was entitled only to partial immunity under comity principles. Two other questions from this litigation made their way to the US Supreme Court, and the Court (1) split 4–4 as to whether it should overrule Nevada v. Hall, which provides “that one State ... can open the doors of its courts to a private citizen’s lawsuit against another State ... without the other State’s consent,” and (2) held that the Constitution does not permit Nevada to award damages against California agencies under its state law that are greater than it could award against Nevada agencies in similar circumstances. With these preliminary legal questions resolved, a Nevada jury finally found in favor of Hyatt and awarded him $85 million for emotional distress, $52 million for invasion of privacy, over $1 for special damages for fraud, and $250 million in punitive damages. The Nevada Supreme Court issued upholding the damages, subject to the statutory caps to which FTB is entitled, consistent with the US Supreme Court’s holding on that issue.

FTB asked the US Supreme Court to reconsider the first question again, whether to overrule Nevada v. Hall.

Nevada v. Hall, 440 US 410 (1979), is overruled; states are immune from suit in the courts of other states. Justice Clarence Thomas delivered the opinion for a 5-4 majority.

The Court criticized the Hall decision as “misread[ing] the historical record and misapprehend[ing] the constitutional design created by the Framers.” The Court found that it was “well settled” at the time of the founding that states were immune from suit and the Constitution preserved this broad immunity, except in a very narrow set of circumstances. The Court further found state sovereign immunity from suit “integral to the structure of the Constitution.” Finally, given that the principle of stare decisis is “at its weakest when interpreting the Constitution” the Court determined that Nevada v. Hall should be overruled.

Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. The dissent argued that the Court in Hall clearly answered the very same question—whether the Constitution requires or merely permits a state to grant another state immunity from suit in its courts—and there is no good reason to overrule the decision in that case.


Louis A. Chaiten
Eric J. Feigin
Kyle D. Hawkins

Terance Martez Gamble was convicted for possession of a firearm as a convicted felon. He argues that the district court erred in concluding that Double Jeopardy Clause of the Fifth Amendment did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the State of Alabama. The US Supreme Court held in Abbate v. United States, 359 U.S. 187 (1959), that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns (the so-called “separate sovereigns” exception). Under this binding precedent, the Eleventh Circuit affirmed the district court.

In a 7-2 opinion authored by Justice Samuel Alito, the Court declined to overturn the dual-sovereignty doctrine.

The Court first clarified that the dual-sovereignty doctrine is not an exception to the right against double jeopardy, but a corollary to the text of the Fifth Amendment. The Double Jeopardy Clause prohibits individuals from being “twice put in jeopardy . . . for the same offence.” Because an “offence” is determined by law, and laws are determined by a sovereign (the federal or state government), the laws of two sovereigns create two “offences.” The Court found unpersuasive Gamble’s arguments that precedents should be abandoned, including his claim that the incorporation of the Double Jeopardy Clause against the states eroded the theoretical foundation for the dual-sovereignty rule.

Justice Clarence Thomas filed a concurring opinion in which he argued for his originalist view that the proper role of stare decisis is subordinate to the text of the Constitution and other duly enacted federal law.

Justice Ruth Bader Ginsburg filed a dissenting opinion, arguing that the Double Jeopardy Clause should bar “successive prosecutions for the same offense by parts of the whole USA” and that the separate-sovereigns doctrine is based upon a mere “metaphysical subtlety.”

Justice Neil Gorsuch filed a dissenting opinion arguing that “[a] free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” yet “the Court today endorses a colossal exception to this ancient rule against double jeopardy.” Justice Gorsuch pointed out the “separate sovereigns” doctrine appears nowhere in the text of the Fifth Amendment and violates the very essence of the right against double jeopardy.


Troy Lambert purchased an alleged aphrodisiac dietary supplement that was manufactured by Nutraceutical, but that had not been approved by the Food and Drug Administration (FDA). Based on the product’s labels, Lambert believed that the supplement would enhance his sexual performance, and had he known these claims were false, he would not have purchased the product.

Lambert believed that the product violated FDA regulations because it purported to increase sexual desire but had not been through clinical testing, and because it was not FDA-approved. He further alleged that the product illegally failed to prominently display this lack of FDA approval on its labeling, and that the labeling also failed to mention a potentially dangerous ingredient. Lambert filed a consumer class action under Federal Rule of Civil Procedure (FRCP) 23(b)(3), alleging state law claims related to unfair competition, false advertising, and other violations.

The district court granted class certification based on the full refund damages model, which applies when a product is useless and involves calculating the average retail price and the number of units sold. The judge hearing the case retired, and Lambert’s action was reassigned to a new judge. Discovery was completed, and Nutraceutical filed a motion for decertification. The new judge granted the motion, finding that Lambert had failed to provide essential evidence to apply his classwide damages model, meaning that common issues did not predominate as required under Rule 23(b)(3).

Ten days after the order was issued decertifying the class, Lambert informed the court that he intended to file a motion for reconsideration, and the court instructed him to file the motion within ten days, which was twenty days after the decertification order. In accordance with the court’s instructions, Lambert filed his motion for reconsideration ten days later, highlighting evidence from his class certification motion that could be used to support the full refund damages model. He also offered an alternative damages model for the first time, based on non-restitutionary engorgement.

Three months later, the court denied his motion for reconsideration, rejecting his proposed damages models. Lambert timely filed a petition under Rule 23(f) for permission to appeal the district court’s orders denying the motion for reconsideration and granting the motion for class decertification to the 9th Circuit, which conditionally granted his petition.

A three-judge panel of the 9th Circuit held that Lambert’s Rule 23(f) petition for class certification had been timely filed with the appellate court. The court explained that because Rule 23(f)’s 14-day deadline was procedural rather than jurisdictional, equitable exceptions such as tolling could apply. It also held that filing a motion for reconsideration before the Rule 23(f) deadline would toll the deadline. The panel further held that other circumstances could toll the deadline. In this case, Lambert had informed the district court of his intention to file a motion for reconsideration within Rule 23(f)’s 14-day window, and had submitted the filing within the ten-day time frame set by that court. The panel concluded that under these circumstances the deadline should be tolled and Lambert’s motion for reconsideration should be considered timely filed with the Ninth Circuit, while recognizing that a number of other circuits would likely reach the opposite conclusion.

Rule 23(f) is a non-jurisdictional claim processing rule that is not subject to equitable tolling. In a unanimous opinion authored by Justice Sonia Sotomayor, the Court first noted that the rule at issue is located within the rules of procedure, not in a congressionally enacted statute, which makes it a claim-processing rule. Then, the Court looked to the context of the governing rules, as well as to the Federal Rules of Appellate Procedure, and found that the relevant rules express clear intent that Rule 23(f) not be subject to equitable tolling.


George W. Hicks, Jr.
Frederick Liu
John G. Knepper

Clayvin Herrera is an enrolled member of the Crow Tribe of Indians. Herrera and several other tribal members went elk hunting on the Crow Reservation, and at some point, followed several elk across a fence, thereby leaving the Crow Reservation and entering the Big Horn National Forest in Wyoming. They shot three bull elk and took the meat with them to Montana. None of the hunters had a license, and it was closed season.

Herrera was cited with two hunting-related misdemeanors under Wyoming law. He moved to dismiss the charges under the Supremacy Clause of the US Constitution and the Laramie Treaty of 1868. He argued that the treaty gave the Crow Tribe the right to hunt off the reservation and that the treaty was still valid and thus preempted state law. Bound by the Tenth Circuit’s 1995 decision in Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995), the state court held that Crow Tribe members do not have off-reservation treaty hunting rights anywhere within the state of Wyoming. Herrera was tried and convicted by a jury on both counts. He appealed the lower court’s pretrial determination on the off-reservation treaty hunting right. Reviewing the lower court’s conclusions de novo, the state appeals court affirmed the lower court.

Wyoming’s admission to the Union did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” nor did the lands of the Bighorn National Forest become categorically “occupied” when the forest was created.

Justice Sonia Sotomayor delivered the 5-4 majority opinion.

As to the question whether the Crow Tribe’s hunting rights under the 1868 Treaty expired when Wyoming became a state, the Court first found that the lower court erroneously relied on the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995), which relied on Ward v. Race Horse, 163 U.S. 504 (1896). In Race Horse, the U.S. Supreme Court held that Wyoming’s admission to the Union extinguished treaty rights of Indians under the 1868 Treaty. The Court subsequently established in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) a different rule for determining whether a treaty right was extinguished. The Court in Mille Lacs held that the “crucial inquiry” for interpreting a treaty was whether Congress “clearly expressed” an intent to abrogate an Indian treaty right. Absent such clearly expressed intent, treaty rights cannot be impliedly extinguished at statehood. Thus, while the Mille Lacs Court did not expressly overrule Race Horse, the logic of that case and its progeny, including Repsis, are invalid.

The Court found unpersuasive Wyoming’s argument that Repsis precludes Herrera from arguing that the 1868 Treaty right survived Wyoming’s becoming a state. Even when the requirements for issue preclusion are met, there is an exception if there has been an intervening “change in the applicable legal context.” While Repsis involved a the same legal question (whether the 1868 Treaty right survived Wyoming’s statehood) and essentially the same parties (Wyoming and the Crow Tribe), the Court’s decision in Mille Lacs constitutes an “intervening change” that triggers an exception to the doctrine of issue preclusion.

Applying Mille Lacs, rather than Repsis, the Court found that Congress had not “clearly expressed” an intent to abrogate the treaty’s right to hunt “unoccupied” lands when admitting Wyoming to the Union. The mere acquisition of statehood did not categorically make the lands “occupied,” nor did the creation of the Bighorn National Forest on those lands under any natural understanding of the meaning of the word “occupied.”

Justice Samuel Alito filed a dissenting opinion in which Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh joined. Justice Alito argued that issue preclusion should bar Herrera’s claim and that the Court should not reach the merits of interpreting the 1868 Treaty.


The U.S. Department of Health and Human Services (HHS) administers the Medicare program, which provides health insurance to Americans 65 and older. Patients may obtain coverage under different “parts” of Medicare, two of which are at issue in this case. When patients enrolled in Medicare Part A receive healthcare, the government makes direct payments to hospitals for the services provided. Patients enrolled in Medicare Part C receive a government subsidy to enroll in a private insurance plan. Importantly, patients enrolled in Part A tend to have lower incomes than those enrolled in Part C.

HHS contracts with “fiscal intermediaries” to reimburse healthcare service providers for services rendered to Medicare Part A patients. These intermediaries make an initial payment based on an estimate of the cost of services provided and are later adjusted based on actual cost reports.

The Medicare Act authorizes reimbursement adjustments to increase payments to hospitals that treat a disproportionately high number of low-income patients. The rate of adjustment is calculated in part based on the number of “patient days” for patients “entitled to benefits under part A” of Medicare. In 2012, HHS sought to interpret this phrase as including patient days for patients entitled to benefits under Part C of Medicare as well. Including Part C days in the adjustment calculus would result in lower reimbursement rates, which translates into hundreds of millions of dollars.

The plaintiff hospitals challenged the rate adjustment in the Provider Reimbursement Review Board, as required by statute. The Board concluded that it lacked authority to resolve the issue, which triggered expedited review before the federal district court. The district court granted summary judgment to HHS, finding that the rate adjustment was an “interpretive rule” under the Administrative Procedure Act (APA) and thus was exempt from the APA’s notice-and-comment requirement for new rules. The hospitals appealed, and the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the adjustment was not merely an “interpretive rule” and that HHS violated the Medicare Act by promulgating the rule without providing notice and the opportunity for comment.

The Department of Health and Human Services neglected its statutory duty to provide notice and an opportunity to comment before implementing a rule changing its Medicare reimbursement formula. Justice Neil Gorsuch delivered the opinion for the 7-1 majority.

The Court focused on whether the government’s announcement in 2014 established or changed a substantive legal standard (as opposed to an interpretive legal standard). Under the Administrative Procedure Act (APA), in order to establish or change a substantive legal standard, an agency must provide notice and an opportunity to comment. A substantive legal standard is one that has the “force and effect of law,” while an interpretive legal standard merely advises the public of the agency’s construction of the statutes and rules it administers. Specifically, under the APA, statements of policy are definitionally not substantive. The Medicare Act uses the word “substantive” in a different way. Under the Medicare Act, “statements of policy” can establish or change a “substantive legal standard.” Had Congress wanted to incorporate the same meaning for “substantive” in the Medicare Act as it did in the APA, it could have done so (and did not).

The Court looked then to the text and structure of the Medicare Act, finding that both support reading the new rule as establishing or changing a substantive legal standard. Given the clear language of the statute, HHS did not meet its statutory duty under 42 U.S.C. § 1395hh(a)(2) to provide notice and comment.

Because it reached its conclusion solely under § 1395hh(a)(2), the Court did not address the question whether § 1395hh(a)(4) independently required HHS to provide notice and comment.

Justice Stephen Breyer filed a dissenting opinion in which he argued that the language at issue in the Medicare Act, like the APA, applies only to “substantive” or “legislative” rules. Thus, Justice Breyer would remand the case to the court of appeals to consider whether the agency determination is a substantive rule (which requires notice and comment) or an interpretive rule (which does not).

Justice Brett Kavanaugh took no part in the consideration or decision of this case.


In 2016, Citibank initiated a debt-collection action in a North Carolina state court against George W. Jackson, alleging that Jackson had failed to pay for a water treatment system he purchased using a Citibank-issued credit card. In responding to Citibank’s complaint, Jackson asserted a counterclaim against Citibank and third-party class-action claims against Home Depot and Carolina Water Systems (CWS). In these third-party claims, Jackson alleged that Home Depot and CWS had engaged in unfair and deceptive trade practices with respect to the water treatment systems; Jackson’s counterclaim against Citibank alleged that Citibank was jointly and severally liable to him because Home Depot had sold or assigned the transaction to Citibank. Citibank subsequently dismissed its claims against Jackson.

Home Depot filed a notice of removal in federal court, citing federal jurisdiction under the Class Action Fairness Act (CAFA). Home Depot then filed a motion to realign parties with Jackson as plaintiff and Home Depot, CWS, and Citibank as defendants. Jackson moved to remand the case to state court and amended his third-party complaint to remove any reference to Citibank.

The district court denied Home Depot’s motion to realign parties, finding that there were not “antagonistic parties on the same side,” and granted Jackson’s motion to remand because Home Depot was not a “defendant” eligible to remove under CAFA. The US Court of Appeals for the Fourth Circuit affirmed, finding that the district court properly declined to realign the parties because the purpose of realignment—to prevent parties from fraudulently manufacturing diversity jurisdiction—was not implicated in the dispute. Moreover, the Fourth Circuit found that allowing Home Depot to remove would be inconsistent with its prior interpretations of CAFA’s removal statute.

Neither the general removal statute, 28 U.S.C. § 1441, nor the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(b), permits removal to federal court by a third-party counterclaim defendant. Writing for a 5-4 majority, Justice Clarence Thomas found that while Home Depot is a “defendant” to a “claim,” section 1441(a) refers to the defendant of a “civil action,” not a claim. If Congress intended for defendants to remove such actions to federal court, it would have done so as it has done in other contexts. Interpreting section 1441(a) to allow for removal by a party who was not a defendant to the original action defies the text of the statute, as well as the history and purpose of the removal procedure.

Nor does 28 U.S.C. § 1453(b) permit removal by Home Depot in this circumstance. The Court found unpersuasive Home Depot’s argument that section 1453(b) permits removal by “any defendant” to a “class action.” This interpretation would require interpreting the term “defendant” to have different meanings in different sections of the statute, rendering the the removal provisions incoherent. The same holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)—that a counterclaim defendant who was the original plaintiff is not one of “the defendants”—applies equally to third-party counterclaim defendants.

Justice Samuel Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Neil Gorsuch and Brett Kavanaugh joined. The dissent argued that third-party counterclaim defendants are defendants within the language of the statute and that the distinction the Court draws between various parties leaves third-party defendants unprotected under both CAFA and section 1441. The dissent described this distinction as “irrational” and contrary to the plain meaning and context of removal laws generally.


Mark A. Perry
Allon Kedem
Paul D. Clement

Oracle licenses its enterprise software for a substantial one-time payment and also sells maintenance contracts to licensees so they can update their software through Oracle’s support website. Rimini Street provided third-party support for Oracle’s software in lawful competition with Oracle’s direct maintenance service. To compete effectively, however, Rimini also needed to provide software updates to its customers, which would constitute copyright infringement if obtained without a proper license (which Rimini did not have). With Oracle’s knowledge, Rimini obtained Oracle software updates from Oracle’s website by a means that violated the Oracle website’s terms of use.

Oracle filed a lawsuit against Rimini and obtained a partial summary judgment and a jury verdict. The jury awarded Oracle $50,027,000 plus attorney’s fees and costs, resulting in a total monetary judgment of $124,291,396.82. Rimini appealed the judgment. The US Court of Appeals for the Ninth Circuit affirmed, finding that 17 U.S.C. § 505 allows for recovery of “full costs” and the district court properly relied on Ninth Circuit precedent in Twentieth Century Fox v. Entertainment Distribution in awarding $12,774,550.26 in non-taxable costs, despite ostensibly conflicting language in 28 U.S.C § 1920 identifying six categories of costs taxable against the losing party.

The term “full costs” in § 505 of the Copyright Act means only the costs specified in the general costs statute in §§ 1821 and 1920. In a unanimous opinion by Justice Brett Kavanaugh, the Court held that the Ninth Circuit erred in awarding non-taxable costs to the prevailing party in the copyright infringement suit. Sections 1821 and 1920 define what the term “costs” encompasses, and only Congress—not the courts—may award litigation expenses beyond those specified in those sections. The word “full” in the statutory phrase “full costs” refers only to all costs otherwise available under the law, not additional costs.


Franklin Taylor Rouse
Ann O'Connell Adams

Gary and Venida Thacker filed a lawsuit against the Tennessee Valley Authority (TVA) for its alleged negligence involving an accident on the Tennessee River. The Thackers and a friend were participating in a fishing tournament on the river at the same time the TVA was attempting to raise a downed power line in the same part of the river. An electrical component struck Gary Thacker and the friend, severely injuring Thacker and killing the friend instantly.

The district court dismissed the Thackers’ lawsuit for lack of subject-matter jurisdiction, and the US Court of Appeals for the Eleventh Circuit affirmed.

The United States enjoys sovereign immunity from suit unless it unequivocally waives its immunity by statute. This immunity extends to government agencies, as well. TVA is a corporate agency expressly authorized to engage in commercial, power-generating activities, and the TVA Act expressly provides that TVA “may sue and be sued in its corporate name,” subject to certain exceptions. Extrapolating from a principle of the Federal Tort Claims Act, the Eleventh Circuit has held that TVA cannot be subject to liability when engaged in governmental functions that are discretionary in nature. Applying its own precedent, the Eleventh Circuit found that TVA was engaged in exactly this type of function at the time of the accident with the Thackers and thus was immune from suit.

The statute that waives the Tennessee Valley Authority’s sovereign immunity from suit by making it a “sue-and-be-sued” type entity is not subject to a discretionary function exception of the kind in the Federal Tort Claims Act but may be subject to an implied restriction as recognized in Federal Housing Authority v. Burr, 309 U.S. 242 (1940). Justice Elena Kagan delivered the unanimous opinion of the Court.

The terms of the Tennessee Valley Authority Act of 1933 contain no exception for suits based on the discretionary functions of the entity. To read the statute as implicitly allowing for an exception for discretionary functions would run contrary to the language of the statute and the express intent of Congress in passing the TVA Act, and would violate separation-of-powers principles. The courts below incorrectly inferred the discretionary function exception found in the Federal Tort Claims Act and should instead have considered whether TVA has immunity based on whether the allegedly negligent conduct was governmental or commercial in nature. If it is governmental, the lower court might find that the suit is barred under Burr to “avoid grave interference” with TVA’s important governmental functions, but if it is commercial, TVA cannot invoke sovereign immunity.


Tennessee Wine and Spirits Retailers Association v. Thomas

Shay Dvoretzky
David L. Franklin
Carter G. Phillips

To sell liquor in the state of Tennessee, one must have a license from the Tennessee Alcoholic Beverage Commission (TABC). Under Tennessee Code Annotated § 57-3-204(b)(2)(A), an individual must have “been a bona fide resident of [Tennessee] during the two-year period immediately preceding the date upon which application is made to the commission,” and there is a ten-year residency requirement to renew a liquor license. The state imposes similar requirements on entities seeking a license.

Two entities did not satisfy the residency requirement when they applied for a license with the TABC, so TABC deferred voting on their applications. The Tennessee Wine and Spirits Retailers Association, which represents Tennessee business owners and represented the two entities here, informed TABC that litigation was likely. In response, the state attorney general filed an action in state court seeking declaratory judgment as to the constitutionality of the durational-residency requirements. The Association removed the action to federal district court.

The district court determined that the durational-residency requirements are facially discriminatory, in violation of the dormant Commerce Clause of the US Constitution. The Sixth Circuit affirmed.

The dormant Commerce Clause forbids, notwithstanding the Twenty-First Amendment, a state from regulating liquor sales by granting licenses only to individuals or entities that have met state residency requirements. Justice Samuel Alito delivered the 7-2 opinion of the Court.

The Court’s Commerce Clause jurisprudence holds that “a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to ‘advance a legitimate local purpose.’” Tennessee’s residency requirement favors residents over nonresidents. The Association does not defend the law under this standard, however, instead pointing to the state’s authority to regulate the “transportation or importation” of alcohol under the Twenty-First Amendment.

Section 2 of the Twenty-First Amendment states: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Viewing this provision “as one part of a unified constitutional scheme,” the Court examined the “basic structure of federal-state alcohol regulatory authority.” The Court noted that at the time the Eighteenth Amendment (nationwide prohibition) was ratified, it had already been established that the Commerce Clause prevented states from discriminating against the citizens and products of other states. Against this backdrop, when the Twenty-First Amendment was ratified, “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.” Thus, while § 2 of the Amendment gives states latitude with respect to the regulation of alcohol, it does not allow them to violate the nondiscrimination principle.

In light of this analysis, the Court concluded that protectionism is not a legitimate local purpose and that the residency requirement “has at best a highly attenuated relationship to public health or safety.”

Justice Neil Gorsuch filed a dissenting opinion in which Justice Clarence Thomas joined. Justice Gorsuch argued that the original meaning of the Twenty-First Amendment was to allow states broad authority to regulate alcohol within their borders, which encompassed the authority to impose residency requirements on those seeking to sell alcohol.


Manhattan Community Access Corp. v. Halleck

A New York regulation requires cable-TV networks with 36 or more channels to provide “at least one full-time activated channel for public-access use.” This channel must be open to the “public on a first-come, first-served, non-discriminatory basis.” New York City awarded cable franchises for Manhattan to Time Warner, provided that Time Warner provide four public-access channels, which are designated to be overseen by the Manhattan Community Access Corporation (MCAC), known as the Manhattan Neighborhood Network (MNN).

Petitioners DeeDee Halleck and Jesus Papoleto Melendez have had a contentious relationship with MNN since 2011, and their feud culminated in August 2013 with MNN suspending both Melendez and Halleck from all MNN services and facilities. They filed a lawsuit against MCAC, several employees, and the City of New York, alleging violations of their First Amendment rights.

Generally, private actors cannot violate the constitutional rights of individuals; a finding of a constitutional violation requires “state action.” However, when the government creates a private entity by special law and retains authority to appoint a majority of directors, the actions of that private entity can sometimes be regarded as governmental action. Finding that the government retained authority to appoint only two of the thirteen members of MCAC’s board, the district court held that MCAC, its employees, and the City of New York did not create a public forum within the First Amendment and dismissed the First Amendment claim for lack of state action. A majority of a three-judge panel of the US Court of Appeals for the Second Circuit affirmed as to the City of New York but reversed as to MCAC and its employees, relying on the Supreme Court’s decision in Denver Area Educational Telecommunications Consortium v. FCC to find that New York City had “delegated to MNN the traditionally public function of administering and regulating speech in the public forum” of public-access cable television. Thus, MNN creates a public forum and functions as a state actor.

Private operators of public access channels are not state actors and therefore are not subject to constitutional liability. Justice Brett Kavanaugh authored the opinion for the 5-4 majority.

The Free Speech Clause prohibits the government from abridging a person’s speech, and the Court’s state-action doctrine determines whether an actor is the government, subject to the First Amendment, or a private entity, who is not. Under established doctrine, a private entity may qualify as a state actor if it exercises “powers traditionally exclusively reserved to the State,” but admittedly “very few” functions fall into that category. Operating public access channels on a cable system is not a power “traditionally exclusively reserved to the State.”

The Court rejected the argument that “operating public access channels” is too narrow a characterization and that the activity is actually providing a traditional exclusive public forum. The provision of a forum for speech does not automatically make the provider a state actor. The Court also rejected the argument that because the state regulates MNN with respect to the public access channels, MNN is a state actor. The Court instead described the city’s regulation as analogous to a government license, which would also not convert a private entity into a state actor. Nor does the city own the channels; nothing in the agreements suggests that the city possesses any property interest in the cable system or its public access channels.

Thus, MNN does not qualify as a state actor and thus is not subject to the First Amendment’s restrictions on government.

Justice Sonia Sotomayor filed a dissenting opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined. The dissent criticized the majority for creating and addressing a case that was not before the Court. The dissent argued that New York City secured a property interest in public-access television channels when it granted a cable franchise to a cable company. The state regulations that require the public-access channels to be made open to the public make those channels a constitutional public forum. By entering into a contract with the City to administer that forum, MNN—which would have otherwise been a private actor—becomes a state actor subject to the First Amendment.


Return Mail, Inc. v. United States Postal Service

Return Mail, Inc. owns a US patent directed to the processing of mail items that are undeliverable due to an inaccurate or obsolete address of the intended recipient. Return Mail sought to license the patent to the US Postal Service (“USPS”) and when it was unsuccessful, it filed a lawsuit against USPS alleging unlicensed and unlawful use and infringement of the patent. USPS filed a petition with the Patent and Trademark Office’s Patent Trial and Appeal Board (“Board”) asking that the patent be declared unpatentable on several grounds. In response, Return Mail addressed the unpatentability arguments and further argued that USPS lacked statutory standing to institute review proceedings under the Leahy-Smith America Invents Act (“AIA”).

The Board held that USPS was not statutorily barred from filing the petition for review, and on the merits determined that all of the challenged patent claims were unpatentable under 35 U.S.C. § 101. The US Court of Appeals for the Federal Circuit affirmed.

Under the Leahy-Smith America Invents Act (“AIA”), the federal government is not a “person” capable of petitioning the Patent Trial and Appeal Board to institute patent review proceedings. Justice Sonia Sotomayor authored the 6-3 majority opinion.

The Court determined that the AIA does not define “person” and looked instead to the Dictionary Act, which defines “person” as including natural individuals and businesses, but not governments “unless the context indicates otherwise.” The Court then looked to whether anything in the context “indicates otherwise,” thereby rebutting the presumption that governments are not “persons.”

First, the Court cited several examples where it had applied the presumption against treating the government as a statutory person. It then looked to the use of the word “person” elsewhere in the AIA, finding that in some instances, the term plainly included the government and in other instances it plainly excluded the government. The Court found the provision at issue was not so plain and could be read either way. Finding no historic reason to permit the government to participate in post-grant review, “which was enacted just eight years ago,” the Court opined that patent infringement lawsuits against the government are not as onerous as those against non-government actors. Thus, it is reasonable to infer that Congress intentionally treated government actors differently from private actors.

Justice Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Elena Kagan joined. The dissent argued that the “purpose, the subject matter, the context, the legislative history, and the executive interpretation” indicate congressional intent to include, not exclude, the government in the term “person.”


Mission Product Holdings, Inc. v. Tempnology, LLC

Danielle Spinelli
Zachary D. Tripp
Douglas Hallward-Driemeier

Tempnology, LLC, made and owned the intellectual property to specialized products such as towels, socks, headbands, and other accessories designed to stay at a low temperature even when used during exercise. Tempnology and Mission Product Holdings executed an agreement in 2012 that (1) granted Mission distribution rights to some of Tempnology’s products, (2) granted Mission a nonexclusive license to Tempnology’s intellectual property, and (3) granted Mission a license to use Tempnology’s trademark and logo to sell and promote the products.

After accruing multi-million-dollar operating losses in 2013 and 2014, Tempnology filed for bankruptcy under Chapter 11 of the Bankruptcy Code in September 2015. The following day, it moved to reject its agreement with Mission under Section 365(a) of the Bankruptcy Code, which allows a debtor-in-possession to “reject any executory contract” that is not beneficial to the company.

Although the parties do not dispute that Mission can insist that the rejection not apply to the patent licenses in the agreement, it is unsettled in the First Circuit (where the proceedings were brought) whether Mission can also insist that the rejection not apply to the trademark licenses. The bankruptcy court found that Tempnology’s rejection of the agreement left Mission with only a claim for damages for breach of contract, and no claim that Tempnology was under an obligation to further perform the license agreement. The First Circuit affirmed.

A bankruptcy debtor’s rejection of a contract under Section 365 has the same effect as breach outside the bankruptcy context and as such cannot rescind rights that the contract previously granted.

Justice Elena Kagan delivered the 8-1 opinion of the Court. Before turning to the merits of the case, the Court considered whether the case was moot, as Tempnology argued. It is not. Mission Product Holdings presented a plausible claim for money damages, and even if a victory in the lawsuit would not make it rich or even better off, “it remains a live controversy”—which surpasses the threshold for a case to be heard in federal court.

Turning to the merits, the Court considered the effect of a debtor’s rejection of a contract under Section 365. The text of that section provides that a debtor may, subject to court approval, “assume or reject any executory contract,” and the Code defines rejection as “a breach of [an executory] contract,” deemed to occur “immediately before the date of the filing of the petition.” As the term “breach” is neither defined in the Code nor a specialized bankruptcy term, it must be given the ordinary meaning it has outside the bankruptcy context. When breach of a contract occurs outside of bankruptcy, the parties to the contract do not go back to their precontract positions; rather, the counterparty retains the rights it has received under the agreement. That the rejection—and therefore breach—occurred in a bankruptcy context does not affect this outcome. Therefore, the rejection cannot rescind rights the contract previously granted. Even the distinctive features of trademarks and trademark law do not support a different interpretation of Section 365.

Justice Sonia Sotomayor authored a concurring opinion in which she joined the Court’s opinion in full. Her concurrence highlights two features of the Court’s holding. First, the Court’s holding is limited; it does not hold that every trademark licensee has the unfettered right to continue using licensed marks postrejection. Second, in holding as it does, the Court confirms “that trademark licensees’ postrejection rights and remedies are more expansive in some respects than those possessed by licensees of other types of intellectual property.” Justice Sotomayor points out that the differences between trademark and other intellectual properties might affect the outcome in other disputes between licensors and licensees.

Justice Neil Gorsuch authored a dissenting opinion, arguing that the writ should have been dismissed as improvidently granted. Justice Gorsuch can identify no viable legal theory for damages in this case.


Andre Ralph Haymond was convicted by a jury of one count of possession and attempted possession of child pornography and was sentenced to 38-months’ imprisonment followed by ten years of supervised release. Two years into his supervised release, probation officers conducted a surprise search of Haymond’s apartment and seized several devices. After conducting a forensic examination of the devices, officers found evidence that the devices had recently contained child pornography. Based on these findings, Haymond’s probation officer alleged that Haymond had committed five violations of his supervised release, the relevant one of which was the possession of child pornography, in violation of the mandatory condition that Haymond not commit another federal, state, or local crime.

The district court found by a preponderance of the evidence that Haymond had possessed child pornography, which triggered a mandatory minimum sentence of five years’ incarceration under 18 U.S.C. § 3583(k). Haymond challenged the district court’s findings, arguing, among other things, that the statute violates his constitutional rights by subjecting him to imprisonment based on facts not found by a jury. The Tenth Circuit agreed with Haymond’s constitutional arguments. It affirmed the district court’s revocation of his supervised release but vacated his sentence and remanded for sentencing.

In a 5-4 decision, the Court vacated the judgment of the Tenth Circuit and remanded the case for further proceedings. Justice Neil Gorsuch delivered an opinion for a four-justice plurality of the Court, in which he concluded that the application of 18 U.S.C. § 3583(k) in this case violated Haymond’s Fifth and Sixth Amendment right to trial by jury. Justice Stephen Breyer wrote a separate opinion concurring in the judgment but based on different reasoning.

Justice Gorsuch reasoned that at the time the Fifth and Sixth Amendments were adopted, judges’ power to sentence criminal defendants was limited by the jury’s finding of facts. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held unconstitutional a sentencing scheme that allowed a judge to increase a defendant’s sentence beyond the statutory maximum based on the judge’s finding of new facts by a preponderance of the evidence. And in Alleyne v. United States, 570 U.S. 99 (2013), the Court held that the same principle applies when a judge finds additional facts to increase the mandatory minimum. Those two cases mandate the outcome in this case: that the statutory scheme violated Haymond’s Fifth and Sixth Amendment right to trial by jury. Justice Gorsuch suggested that on remand, the Tenth Circuit consider whether its remedy—declaring the last two sentences of §3583(k) “unconstitutional and unenforceable”—sweeps too broadly.

Justice Breyer concurred in the judgment, characterizing the provision at issue as “less like ordinary supervised-release revocation and more like punishment for a new offense,” which requires that jury—not judge—find facts of criminal conduct beyond a reasonable doubt. Thus, Justice Breyer would reach the same conclusion without relying on Apprendi.

Justice Samuel Alito filed a dissenting opinion, in which Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh joined. Justice Alito argued that the terms of the Sixth Amendment and the original understanding of the scope of the jury trial, coupled with the Court’s precedents with respect to supervised-release revocation proceedings, militate toward the opposite conclusion of the plurality.


Michael B. Kimberly
Michael R. Huston
Deepak Gupta

In 1987, Ricky Lee Smith filed an application for supplemental security income (SSI) resulting from disability. The following year, an administrative law judge (ALJ) approved his application, and Smith received benefits until 2004, when he was found to be over the resource limit.

Smith filed another application for SSI in August 2012, alleging additional medical conditions as a result of his original disability. The claim was initial denied, and denied again upon reconsideration.

Smith filed a timely request for a hearing before an ALJ, and after the hearing, an ALJ denied Smith’s claim on March 26, 2014. Smith claims to have mailed a written request for review before the Appeals Council on April 24, 2014, and followed up by fax on September 21, 2014. A claims representative spoke with Smith on October 1, 2014, to inform him that his request may not have been received and that his request was filed as of that day, October 1, 2014.

The Appeals Council dismissed the request for review as untimely, as Smith proffered no evidence showing the request for was sent within the appropriate time. Smith filed a civil action seeking review of the Appeals Council’s dismissal. The district court determined that it lacked jurisdiction to hear the claim because the Appeals Council’s dismissal did not constitute a final decision subject to judicial review under 42 U.S.C. § 405(g).

A decision of the Appeals Counsel dismissing a disability claim on timeliness grounds is a “final decision” for purposes of determining whether judicial review is available. Justice Sonia Sotomayor delivered the opinion for a unanimous Court.

The plain language of the statute supports the interpretation that dismissal for untimeliness is a “final decision” because such a dismissal is a terminal event. Moreover, that interpretation finds support in the greater statutory context because the dismissal is an agency action that determines the rights and obligations of the parties, which, in most administrative law contexts, is the event that triggers judicial review.


The American Legion v. American Humanist Association

Neal Kumar Katyal
Michael A. Carvin
Jeffrey B. Wall
Monica L. Miller

In Bladensburg, Maryland, as part of a memorial park honoring veterans is a 40-foot tall cross, which is the subject of this litigation. Construction on the cross began in 1918, and it was widely described using Christian terms and celebrated in Christian services. In 1961, Maryland-National Capital Park and Planning Commission acquired the cross and the land, as well as the responsibility to maintain, repair, and otherwise care for the cross. The Commission has spent approximately $117,000 to maintain and repair the cross, and in 2008, it set aside an additional $100,000 for renovations.

Several non-Christian residents of Prince George’s County, Maryland, expressed offense at the cross, which allegedly amounts to governmental affiliation with Christianity. American Humanist Association is a nonprofit organization advocating for separation of church and state. Together, AHA and the individual residents sued the Commission under 42 U.S.C. § 1983, alleging that the Commission’s display and maintenance of the cross violates the Establishment Clause. Applying the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court found that the Commission did not violate the Establishment Clause because (1) the cross has a secular purpose, (2) it neither advances nor inhibits religion, and (3) it does not have a primary effect of endorsing religion. The Fourth Circuit reversed and remanded.

The Bladensburg Cross does not violate the Establishment Clause.

Justice Samuel Alito authored the opinion of the Court, joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh. Justice Elena Kagan joined the majority opinion in part.

The Court explained that although the cross originated as a Christian symbol, it has also taken on a secular meaning. In particular, the cross became a symbol of World War I as evidenced by its use in the present controversy. The Lemon test, which the Court first articulated in 1971 as a way to discern Establishment Clause violations, does not serve its intended purpose, particularly as applied to religious symbols or monuments. Thus, when the question arises whether to keep a religious monument in place (as opposed to a question whether to put up a new one), there should be a presumption that the monument is constitutional.

Applying this presumption rather than the Lemon test, the Court found the Bladensburg Cross does not violate the Establishment Clause because it has historical importance beyond its admittedly Christian symbolism.

Justice Breyer joined Justice Alito’s opinion in full but wrote a separate concurrence joined by Justice Kagan to highlight his belief that there is no single test for Establishment Clause violations. Rather, a court asked to resolve such questions must consider “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”

Justice Kavanaugh also joined Justice Alito’s opinion in full and also wrote his own concurring opinion. He even more harshly criticized the Lemon test, arguing that “the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of” five categories, which he enumerated.

Justice Kagan joined most of Justice Alito’s opinion but wrote a separate concurrence to note that, although “rigid application of the Lemon test does not solve every Establishment Clause problem,” courts should still focus on the purpose and effect of government action in deciding whether it violates the Constitution.

Justice Clarence Thomas wrote a separate opinion concurring in the judgment, but based on entirely different reasoning. Justice Thomas does not believe the Establishment Clause applies to state and local governments, and even if it did, it applies only to prevent coercive action by the government. Justice Thomas would overrule the Lemon test in all contexts.

Justice Neil Gorsuch wrote a separate opinion concurring in the judgment, in which Justice Thomas joined. Justice Gorsuch would dismiss the lawsuit for lack of standing, arguing that simply being offended by the cross’s presence is insufficient to meet the injury requirement of Article III standing.

Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justice Sonia Sotomayor joined. Justice Ginsburg argued that the cross “is the foremost symbol of the Christian faith,” and using it as a war memorial doesn’t change that. Maryland’s decision to maintain that Christian symbol on public land “elevates Christianity over other faiths, and religion over nonreligion.” Justice Ginsburg additionally pointed out that an appropriate remedy for an Establishment Clause violation is not necessarily to destroy the memorial, as the majority suggests, but to transfer title to the land on which it sits to a private entity—in fact, a private entity owned the land when the cross was first erected.


Petitioner Jason Mont was convicted for federal drug-related offenses in 2005 and sentenced to 120 months’ imprisonment followed by five years of supervised release. He was released on March 6, 2012, so by his sentence he was subject to supervised release until March 6, 2017.

While on supervised release, Mont allegedly engaged in and was indicted for state-law offenses. In October 2016, Mont pleaded guilty to some of the state-court charges in exchange for a predetermined six-year sentence. Due to administrative delays and a series of continuances, Mont was sentenced on March 21, 2017. The sentencing judge credited as time served the roughly ten months Mont had spent incarcerated pending a disposition. On March 30, 2017, Mont’s probation officer informed the federal district court of Mont’s state-court convictions and sentences, and the court exercised jurisdiction to adjudicate whether he violated the terms of his supervised release. The district court then sentenced Mont to 42 months’ imprisonment, to be served consecutively with his imprisonment for state-court convictions.

Mont challenged the district court’s exercise of jurisdiction, but the US Court of Appeals held that under binding precedent, a term of supervised release is paused by imprisonment in connection with a new state conviction. As such, the federal district court properly exercised jurisdiction.

Pretrial detention later credited as time served for a new conviction tolls (pauses) a supervised-release term under 18 U.S.C. § 3624(e), even if the court must make the tolling calculation retrospectively, after learning whether the time will be credited. Justice Clarence Thomas authored the 5-4 majority opinion affirming the lower court.

Section 3624(e) provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” In interpreting this provision, the Court looked first to the dictionary definition of “imprisoned,” finding that definition to include pretrial detention. Then the Court noted the expansive phrase “in connection with,” giving rise to a sufficient nexus between the pretrial detention and the conviction because the pretrial detention is credited toward the sentence for that same conviction. Although under this interpretation, Section 3624(e) would require courts to retrospectively assess whether a period of pretrial detention tolls a term of supervised release, the Court determined that this retroactive crediting would not cause undue uncertainty for defendants like Mont. Finally, the Court found that “statutory context” supported this interpretation as well, given that supervised release is intended to facilitate a prisoner’s transition back into the community and a period in prison does not serve this purpose.

Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch joined. The dissent argued that the plain text of the statute cannot authorize tolling when the defendant is in pretrial detention and a conviction is merely a possible future event. The present tense used in the statute precludes the majority’s interpretation. Moreover, the purpose of pretrial confinement is to ensure the defendant shows up for trial, not to punish the defendant for a crime.


In 1996, four employees of Tardy Furniture Store in Winona, Mississippi, were killed during an armed robbery. Curtis Giovanni Flowers was tried for the murder of one of the employees and was convicted and sentenced to death. The Mississippi Supreme Court reversed and remanded for a new trial on the ground that Flowers’s right to a fair trial had been violated by admission of evidence of the other three murder victims. Flowers was tried and convicted for the murder of a second victim of the same incident, and the Mississippi Supreme Court reversed and remanded on the same grounds. In a third trial, Flowers was tried for all four murders, and a jury found him guilty and sentenced him to death. Finding that prosecutor Doug Evans had engaged in racial discrimination during jury selection, the Mississippi Supreme Court again reversed and remanded. The fourth and fifth trials were on all four counts of capital murder, and both resulted in mistrials when the jury was unable to reach a unanimous verdict during the guilt phase.

In the sixth trial, Flowers was tried again and convicted for all four murders.

Flowers appealed his conviction on several grounds, one of which was that the State violated his Sixth and Fourteenth Amendment rights during the jury selection process by exercising its peremptory strikes in a racially discriminatory way. The prosecution had struck five African American prospective jurors. The Mississippi Supreme Court rejected Flowers’s arguments as to the jury selection, but the US Supreme Court ordered the court to reconsider in light of its ruling in Foster v. Chatman, 578 U.S. ___ (2016), where it held that the defendant in a capital case had shown intentional discrimination in the selection of jurors. On remand to the state supreme court, the court again upheld the ruling for the state. Flowers again sought review by the US Supreme Court, and the Court granted certiorari as to the question whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 US 79 (1986).

The trial court at Flowers’s sixth murder trial committed clear error in concluding that the State’s peremptory strike of a particular black prospective juror was not motivated in substantial part by discriminatory intent. Justice Brett Kavanaugh authored the 7-2 majority opinion.

Under Batson v. Kentucky, once the defendant has made a prima facie case of discrimination, the State must provide race-neutral reasons for its peremptory strikes. The trial court judge must then determine whether the provided reasons actually motivated the peremptory strikes or instead were simply pretext for unlawful race discrimination. The Court found four categories of evidence present in Flowers’s sixth trial that the State’s peremptory strike of one juror in particular—Carolyn Wright—was based on racial discrimination.

First, the Court found that the State’s history of peremptory strikes in Flowers’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in his sixth trial was motivated in substantial part by discriminatory intent. The State appeared “relentless” in trying to strike all black jurors to have an all-white jury try Flowers. Second, the Court noted that the State’s use of peremptory strikes in the sixth trial followed the same pattern as in the first four trials. Third, the Court observed that the State spent far more time questioning the black prospective jurors than the accepted white jurors—an indicator (though not dispositive) of discriminatory intent. Fourth and finally, the Court found significant differences between the jurors who were struck and not struck. The State asked extensive questions of Carolyn Wright, a black juror who was struck, about her knowledge of the facts, witnesses, and Flowers’s family, but did not ask three white prospective jurors about their comparable connections to witnesses. The Court found these four factors, plus the overall context to support the determination that the trial court had committed clear error in concluding the State’s peremptory strike was not motivated in substantial part by discriminatory intent.

Justice Samuel Alito joined the majority opinion in full but filed a concurring opinion to note how extraordinary the circumstances in this case are and that although he agrees with the Court’s judgment here, he would be disinclined to do so in the majority of cases that are “less unusual” in their facts.

Justice Clarence Thomas authored a dissent in which Justice Neil Gorsuch joined in part, criticizing the majority for ignoring the race-neutral reasons the State gave for striking Carolyn Wright. Both Justice Thomas and Justice Gorsuch argued that the Court should not have even granted the case, but having done so, it decided wrongly on the merits. Justice Thomas (alone) criticized Batson, arguing that it “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury.”