Michael Loos worked as an employee of BNSF Railway Company until his termination in November 2012 for a series of attendance policy violations. Related to at least some of the attendance violations was an injury Loos sustained in 2010 when he fell in the train yard. After being terminated, Loos brought two claims against his former employer: a claim of retaliation under the Federal Railroad Safety Act (FRSA) and a claim of negligence under the Federal Employers Liability Act (FELA). The district court found that Loos had not established a prima facie case of retaliation under FRSA and granted BNSF's motion for summary judgment on that claim, and the Eighth Circuit affirmed.
The FELA negligence claim proceeded to a jury trial, and the jury returned a verdict in favor of Loos—$30,000 for lost wages and $11,212.78 for medical expenses. BNSF moved under Federal Rule of Civil Procedure 59(e) to offset the lost wages award by the amount of Loos’s share of taxes owed under the RRTA. The district court denied the motion, finding no RRTA tax was owed on the award. The Eighth Circuit reviewed this determination de novo and found that the text of RRTA is unambiguous in not including damages for lost wages in its definition of compensation as money remuneration for services rendered. Thus, the Eighth Circuit affirmed the district court’s ruling using alternate reasoning.

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Damages for lost wages are “compensation” under the Railroad Retirement Tax Act (RRTA) and thus are subject to employment taxes. In a 7-2 opinion authored by Justice Ruth Bader Ginsburg, the Court held that the RRTA and the Court’s precedent require the finding that Loos must pay taxes on the portion of a jury award for compensating him for lost wages while he was unable to work due to his injury.
The Railroad Retirement Act entitles railroad workers to various benefits in a scheme similar to that described by the Social Security Act. The Court held in Social Security Board v. Nierotko, 327 U.S. 358 (1946), that the term “wages” included pay for active service as well as pay for periods of absence from active service and that backpay for time lost due to “the employer’s wrong” counted as “wages.” Similarly, in United States v. Quality Stores, Inc., 572 U.S. 141 (2014), the Court held that severance payments qualified as taxable “wages” under the Federal Insurance Contributions Act (FICA). Drawing upon these interpretations comparable terms in comparable schemes, the Court found that the term “compensation” under the RRTA includes pay for periods of absence from active service, so long as the pay stems from the “employer-employee relationship.”
Justice Neil Gorsuch authored a dissenting opinion in which Justice Clarence Thomas joined, opining that the compensation to Loos was for injury, rather than for services not rendered, and thus was not taxable under the language of the RRTA.


Roberta G. Devries and Shirley McAfee are the widows of two US Navy sailors whom they allege developed cancer after they were exposed to asbestos working on Navy ships and in a naval shipyard. They sued multiple defendants, including manufacturers of “bare metal” ship components, or parts that were made and shipped before any asbestos-containing insulation materials were added. The plaintiffs sued in state court under theories of both negligence and strict liability.
The defendant manufacturers removed the case to federal court, and moved for summary judgment based on the bare metal defense, arguing that they could not be held liable for the sailors’ injuries because they shipped their products out in bare metal form. The district court granted summary judgment as to both the negligence and strict liability claims. The plaintiffs appealed, and the Third Circuit remanded with instructions to the district court to more clearly address the plaintiffs’ negligence claims, and to explain whether it was applying the bright-line as opposed to the fact-specific rule that can be relevant to the bare metal defense, and regarding which circuits are split. The district court again granted summary judgment on both claims, stating that it was applying the bright line rule.
The plaintiffs appealed again, but the Third Circuit did not consider their strict liability claims on appeal because it considered them abandoned. It therefore affirmed the district court’s ruling in favor of summary judgment for the defendants as to strict liability. The Third Circuit reversed the summary judgment ruling on the negligence claim, holding that maritime law principles permit the manufacturer of a bare metal product to be held liable for asbestos-related injuries when they are reasonably foreseeable results of the manufacturer’s actions. In so holding, the appellate court applied the bare metal defense's fact-specific standard rather than the bright-line rule.

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Under maritime tort law, a product manufacturer has a duty to warn if its product requires incorporation of a part produced by a third party, the resulting fully incorporated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users would be aware of that danger. In a 6-3 opinion authored by Justice Brett Kavanaugh, the Court held that Air and Liquid Systems owed a duty to warn the plaintiffs about the danger of the ship components even though the Navy, not the manufacturer, added the parts with asbestos. Three approaches have emerged from the duty to exercise reasonable care in warning prospective users of a product that requires later incorporation of a dangerous part for the integrated product to function as intended. Of those three, the Court chose the approach that imposes neither the narrowest nor broadest liability on manufacturers, finding it most appropriate for the maritime context, which recognizes “a special solicitude for the welfare of sailors.”
Justice Neil Gorsuch wrote a dissenting opinion, in which Justices Clarence Thomas and Samuel Alito joined. The dissenters would adopt the bare-metal defense approach, consistent with traditional common law of torts.


Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

Animal Science Products, Inc., et al. (“Petitioners”) are US vitamin C purchasers who commenced a multidistrict class action lawsuit against Hebei Welcome Pharmaceutical Co. Ltd., et al. (“Respondents”), which are business entities incorporated under the laws of China, alleging violations of U.S. antitrust laws. Specifically, they claimed that Respondents engaged in price-fixing and supply manipulation in violation of the Sherman and Clayton Acts. Respondents did not deny that they had coordinated prices and sought to create a supply shortage, but moved to dismiss on the grounds that they acted in accordance with Chinese government regulations requiring them to do so. The district court denied Respondents’ motion to dismiss and a subsequent motion for summary judgment. Following a jury trial, the court entered a judgment of approximately $147 million against Respondents, and enjoined them from engaging in any further anti-competitive activity.
Respondents appealed to the 2nd Circuit, which vacated the judgment, reversed the district court’s denial of the motion to dismiss, and remanded the case with instructions for the lower court to dismiss Petitioners’ complaint with prejudice. The appellate court based its reversal on international comity grounds, explaining that the district court had erred in not deferring appropriately to the Chinese government’s explanation of its domestic laws, which mandated the conduct by Respondents that was considered anti-competitive under US law. Particularly given that the Chinese government had appeared in the proceedings, the fact that Respondents could not simultaneously comply with US and Chinese laws necessitated the conclusion that the district court should have abstained from exercising jurisdiction in this case. The appeals court further held that other factors significant under an international comity balancing test derived from 3rd and 9th Circuit case law affirmed that abstention was appropriate in the instant matter.

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In a unanimous decision, Court reversed and remanded, holding that a federal court determining foreign law pursuant to Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.
Writing for the Court, Justice Ginsburg explained that under Rule 44.1, a court’s determination of foreign law “must be treated as ruling on a question of law.” Further, in evaluating the foreign law question at issue, a court may consider any relevant material, and is not limited to materials submitted by the parties.
The Court further stated that neither Rule 44.1 nor other sources speak to the weight that a court must give to a foreign government’s submissions, and while in the spirit of international comity a court should “carefully consider” a foreign state’s views regarding the meaning of its own laws, the ultimate import of those views will vary based on a number of factors. While no specific formula will apply in all cases, key considerations include: the statement’s “clarity, thoroughness, and support”; “its context and purpose”; “the transparency of the foreign legal system”; “the role and authority of the entity or official offering the statement”; and “the statement’s consistency with the foreign government’s past positions.”
The Court concluded that when viewed in the context of these considerations, the 2nd Circuit’s ruling was inconsistent with both Rule 44.1 and the Court’s treatment of analogous state government submissions. Further, in focusing on the Chinese government’s statements, the appellate court overlooked evidence in the record submitted by the U.S. purchasers. The Court additionally stated that the ruling below was inconsistent with international practice. The case was sent back to the lower courts for further consideration consistent with the Court’s opinion.


Attorney Richard Culbertson represented four plaintiffs appealing denials of Social Security benefits. After successfully challenging all four denials, Culbertson asked the district court to award him attorney’s fees in those cases under 42 U.S.C. § 406 and the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Fees awarded under 42 U.S.C. § 406(b) pertain to proceedings in court, and are statutorily limited to 25% of the past-due benefits the claimant receives. Fees awarded under § 406(a) pertain to administrative proceedings; that section does not explicitly limit the fee amount that the Social Security Commissioner can award in that context.
In ruling on Culbertson’s fee requests, the district court relied on 11th Circuit precedent limiting the total fee amount awarded under both § 406(a) and 406(b) to 25% of the past-due benefits awarded to the claimants. This meant that in one case his fee award was limited to 25% of the past-due benefits, in two cases the district court declined to rule on the § 406(b) fee award until the Commissioner ruled on the §406(a) award (so as to not award him an amount that exceeded 25% of the past-due benefits), and that in the final case, the court granted his § 406(b) request but barred him from requesting any further fees under § 406(a), again seeking to prevent him from exceeding the 25% cap.
In his appeal, Culbertson contended that other circuits have not applied this 25% cap to the aggregate fee amount awardable under both § 406(a) and (b), but instead applied that limit only to § 406(b) fees. The 11th Circuit rejected this argument, applying its prior precedent to affirm the district court’s ruling.

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In a unanimous opinion authored by Justice Clarence Thomas, the Court held that 42 U.S.C. § 406(b)’s 25-percent cap applies only to fees for court representation and not to the aggregate fees awarded under subsections (a) and (b). Section 406(b) authorizes a court rendering a favorable judgment to a claimant “represented before the court by an attorney” to award “a reasonable fee for such representation, not in excess of 25 percent” of past-due benefits. By using the language “such representation,” the Court found, the statute refers only to the representation already described in that section—that is, representation before the court. The cap, therefore, applies only to fees for representation before the court, not the agency. Moreover, the Court opined that had Congress intended to cap fees for agency-stage representation, it would have included the same language that appears in § 406(b) in § 406(a).
The Court found unpersuasive the argument that the agency’s pool of 25 percent of past-due benefits supported a reading of a cap on the aggregate fees. The language of the statute provides for two pools, and the agency chose to maintain only one.


Budha Ismael Jam and others are Indian fishermen, farmers, and others who live in Gujarat, India. The International Finance Corporation (IFC) is an international organization headquartered in Washington, DC, that provides loans in the developing world to projects that are unable to receive private capital. The IFC loaned $450 million to an Indian company for the construction and operation of the Tata Mundra Plant in Gujarat, India. The loan agreement with the Indian power company included provisions that the company may not cause damage to surrounding communities, and IFC retained supervisory authority and could revoke financial support for the project.
The plant’s construction and operation did cause harm to the surrounding communities, as reported in IFC’s own internal audit, in violation of the agreement. However, the IFC did not take any steps to force the loan recipients into compliance.
The plaintiff fishermen and farmers brought this lawsuit in federal court in DC seeking damages based largely on tort causes of action. They also raised a claim as an alleged third-party beneficiary of the contract between IFC and the power company.
The district court dismissed the plaintiffs’ claim, finding that IFC was immune from suit under the International Organizations Immunities Act (IOIA) and further that the IFC had not waived its immunity to this suit. The relevant part of IOIA provides that international organizations “shall enjoy the same immunity from suit . . . as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” 22 U.S.C. § 288a(b). The president of the United States determines whether an organization is entitled to such immunity, and an executive order in 1956 designated the IFC as entitled to the “privileges, exemptions, and immunities” conferred by the statute.
The Court of Appeals for the DC Circuit affirmed the district court, finding that the IFC is immune under IOIA and that it did not waive immunity for this suit.

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The International Organizations Immunities Act of 1945 (IOIA) affords international organizations the same immunity from suit that foreign governments enjoy today under the Foreign Sovereign Immunities Act of 1976 (FSIA), not what they enjoyed when the law was passed.
In a 7–1 decision authored by Chief Justice John Roberts, the Court held that the International Finance Corporation, an IOIA international organization, is immune from suit only to the extent that foreign sovereign governments are immune from suit. The Court interpreted the IOIA “same as” language as making international organization immunity and foreign sovereign immunity continuously equivalent. The Court found that this interpretation is bolstered by the “reference canon” of statutory interpretation, which provides that when a statute refers to a general subject, it adopts the law on that subject at the time a question arises, as opposed to when a statute refers to a statute by title, in which case it adopts the law as it existed at the time the statute was enacted.
Justice Stephen Breyer filed a dissenting opinion, in which he gave greater weight to the IOIA’s “history, its context, its purposes, and its consequences” than to canons of statutory interpretation.
Justice Brett Kavanaugh took no part in the consideration or decision of the case.


The federal Atomic Energy Act regulates nuclear power generation in the United States, and the Nuclear Regulatory Commission (NRC) enforces the provisions of the Act. In the early 1980s, a uranium deposit was discovered in Pittsylvania County, Virginia, on land owned by Coles Hill and Bowen Minerals (both plaintiffs in this case). The Virginia General Assembly called upon the state Coal and Energy Commission to evaluate the effects of mining uranium but in the meantime banned the mining of uranium “until a program for permitting uranium mining is established by statute.” Despite a recommendation by the state commission, the ban on uranium mining remains in effect.
Virginia Uranium, Coles Hills, and Bowen Minerals filed a federal lawsuit in the Western District of Virginia asking the court to declare the ban preempted by federal law and enjoining the state to grant uranium mining permits. The district court granted the state’s motion to dismiss the lawsuit, finding that the AEA does not regulate non-federal uranium deposits and thus does not preempt the state law ban. Reviewing the district court’s conclusion de novo, the Fourth Circuit affirmed.

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The federal Atomic Energy Act (AEA) does not preempt a Virginia state-law ban on non-federal uranium mining. Justice Neil Gorsuch authored the three-justice plurality opinion.
Looking first at the text of the AEA, the plurality found it notably lacking in any provision expressly preempting state law and in fact that it grants the Nuclear Regulatory Commission (NRC) extensive authority to regulate nearly every aspect of nuclear fuel except mining. Thus, states are free to regulate the mining of uranium. The plurality declined to speculate as to the legislative purpose behind the AEA and found Virginia Uranium’s arguments for preemption to go far beyond the statute’s text and structure.
Justice Ruth Bader Ginsburg filed an opinion concurring in the judgment in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Ginsburg agrees that Virginia’s mining ban is not preempted but declines to join the plurality’s discussion of “the perils of inquiring into legislative motive.”
Chief Justice John Roberts filed a dissenting opinion in which Justices Stephen Breyer and Samuel Alito joined. The dissent criticizes the plurality opinion for “set[ting] out to defeat an argument that no one made, reaching a conclusion with which no one disagrees.” The dissent would characterize the question as whether a state can purport to regulate a field that is not preempted as an indirect means of regulating other fields that are preempted, and to that question the dissent would answer in the negative.


This lawsuit arose out of Apple’s handling of the sale of apps for its iPhone devices. Apple released the iPhone in 2007, and from the outset, it has been a “closed system,” meaning that Apple controls which apps can be loaded onto an iPhone, which it does via the “App Store.” Although Apple develops some of the apps sold in the App Store, most are developed by third parties. For every App Store sale made by a third-party developer, Apple receives 30% of the sale price.
In 2011, four named plaintiffs filed a putative antitrust class action complaint against Apple, alleging monopolization and attempted monopolization of the iPhone app market. The complaint was dismissed on technical grounds, as were several subsequent attempts at similar lawsuits by both the same and other plaintiffs. In September 2013, a set of plaintiffs included in their allegations sufficient facts for the lawsuit to move forward. Among these facts was the key allegation that each plaintiff had purchased iPhone apps from the App Store, and that these transactions involved Apple collecting the entire purchase price and paying the developers after the sale.
Apple filed yet another motion to dismiss the lawsuit, contending that the plaintiffs lacked statutory standing to sue under the US Supreme Court’s precedent in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Under Illinois Brick, “only the overcharged direct purchaser, and not others in the chain of manufacture or distribution” may bring a lawsuit for antitrust violations. If the plaintiffs are considered to have purchased their iPhone apps directly from the app developers, then they cannot sue Apple. However, if they are considered to have bought the apps from Apple, then they may sue Apple.
The district court found that the plaintiffs lacked standing to sue under Illinois Brick and dismissed the case with prejudice. On appeal, the Ninth Circuit reviewed the district court’s decision de novo and found that, contrary to a ruling on the same issue by the US Court of Appeals for the Eighth Circuit, the plaintiffs are direct purchasers from Apple within the meaning of Illinois Brick and thus have standing.

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Consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer may sue the retailer under antitrust law. In a 5-4 opinion authored by Justice Brett Kavanaugh, the Court held that the plaintiff iPhone owners in this case, who purchased apps through Apple’s App Store, are direct purchasers under the Court’s precedential case Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), and thus may sue Apple.
Section 4 of the Clayton Act, 15 U.S.C. § 15(a), provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue.” The Court has previously interpreted this provision to mean that “immediate buyers” from the alleged antitrust violators may sue the antitrust violators, but “indirect purchasers” (those who are two or more steps removed from the violator in a distribution chain) may not. The plaintiff iPhone owners in this case are not so distantly removed from Apple to foreclose a lawsuit; the Court found the absence of an intermediary between the consumers and Apple to be dispositive.
This interpretation is consistent not only with the statutory text and the Court’s precedent, but also the policy behind antitrust law. To hold otherwise would “provide a roadmap for monopolistic retailers” to evade antitrust law.
Justice Neil Gorsuch filed a dissenting opinion, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. The dissent argues that Illinois Brick broadly prohibits “pass on” theories of damages for antitrust violations, rather than the narrower reading based in contract embraced by the majority. As such, the dissent would find that the suit by the plaintiff consumers here is precisely the type of lawsuit proscribed in Illinois Brick.


On January 23, 2015, Gilberto Garza, Jr. entered an Alford plea—that is, a plea maintaining innocence but conceding that the evidence is likely to convince a jury of guilt beyond a reasonable doubt—to aggravated assault. On February 24, 2015, he pleaded guilty to possession of a controlled substance with intent to deliver. Both plea agreements required Garza to waive his right to appeal. The district court accepted the plea agreements and imposed the sentence in accordance with both of them. Shortly after sentencing, Garza informed his trial counsel that he wished to appeal, but counsel declined to file the appeal, citing Garza's waivers.
Four months after he was convicted and sentenced, Garza filed a petition for post-conviction relief in each case, alleging that his trial attorney was ineffective for not filing notices of appeal. Garza’s attorney stated in an affidavit that he did not file an appeal because Garza had waived his right to appeal by accepting the plea agreements. The district court dismissed Garza’s petition to open the appeals period on the basis of ineffective assistance of counsel, and the appellate court affirmed the dismissal.
Under Roe v. Flores-Ortega, 528 U.S. 470 (2000), criminal defendants have a Sixth Amendment right to “reasonably effective” legal assistance. A defendant claiming ineffective assistance of counsel must show: (1) that counsel’s representation was deficient; and (2) that counsel’s deficient performance prejudiced the defendant. Generally, counsel’s failure to file an appeal at a criminal defendant’s request is professionally unreasonable and therefore deficient, and most federal circuit courts interpret Flores-Ortega to mean that attorneys are ineffective when they do not file an appeal if the clients requested it, regardless of whether the defendants had waived their rights.
The Idaho Supreme Court held contrary to the majority of federal circuit courts, finding that Flores-Ortega does not require an automatic “presumption of prejudice” when counsel declines to file an appeal in light of an appeal waiver. Rather, the defendant must still show deficient performance and resulting prejudice.

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The presumption of prejudice for Sixth Amendment purposes recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether a defendant has signed an appeal waiver.
In a 6–3 opinion authored by Justice Sonia Sotomayor, the Court held that Garza’s trial counsel had rendered ineffective assistance by failing to file a notice of appeal despite Garza’s repeated requests. Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant alleging ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) that the deficiency was “prejudicial to the defense.” In Flores-Ortega, the Court held that “prejudice is presumed” in certain contexts, including when counsel “deprives a defendant of an appeal that he otherwise would have taken.” Garza’s appeal waivers—and appeal waivers generally—are not an absolute bar to all appellate claims. Indeed, some appeals fall outside the scope of the waiver, and there is always a possibility that the government might forfeit or breach the agreement of which the waiver is part. Given these scenarios, Garza could have pursued an appeal had his trial counsel acceded to his requests and filed a notice of appeal. By failing to do so, Garza’s counsel rendered ineffective assistance in violation of the Sixth Amendment.
Justice Clarence Thomas filed a dissenting opinion, in which Justice Neil Gorsuch joined, and in which Justice Samuel Alito joined in part. The dissent opined that Garza’s counsel acted reasonably by declining to file an appeal on the grounds that doing so could jeopardize his plea bargain. The dissent characterized the majority’s holding as resulting in a “defendant-always-wins” rule that has no basis in the Court’s precedents or the Constitution.


Lorenzo v. Securities and Exchange Commission

Francis Lorenzo was the director of investment banking at Charles Vista, LLC, a registered broker-dealer. Lorenzo’s only investment-banking client at the relevant time was a start-up company named Waste2Energy Holdings (W2E). W2E claimed to have developed an innovative technology, and its valuation was entirely dependent on realization of that technology.
The technology never materialized, and W2E sought to avoid complete financial ruin by offering up to $15 million in “debentures”—which is debt secured only by the debtor’s earning power, rather than by a lien on a tangible asset. At the time, W2E’s most recent SEC filing did not indicate the possible devaluation of the company’s intangible assets and stated only that they were worth over $10 million.
After an audit, W2E filed a Form 8-K reporting total impairment of its intangible assets and valuing its total assets at $370,552. Lorenzo’s secretary alerted him via email about the amended filings, and Lorenzo contacted the Charles Vista brokers about them. Nearly two weeks later, Lorenzo emailed two potential investors “several key points” about W2E’s pending debenture offering, but rather than even mentioning the devaluation of W2E’s intangible assets, he assured both that the offering came with “3 layers of protection,” which were: $10 million in “confirmed assets”; purchase orders and LOIs for “over $43 [million] in orders”; and Charles Vista has agreed to raise additional monies to repay the debenture holders if necessary. One of these emails stated it had been sent “at the request of [Lorenzo’s boss]” and the other stated it was sent “at the request of [another broker with the firm].” Lorenzo’s name and title were at the bottom of both emails.
The SEC charged Lorenzo, his boss, and Charles Vista with violating three securities-fraud provisions: Section 17(a)(1) of the Securities Act of 1933; Section 10(b) of the Securities Exchange Act of 1934, and Securities Exchange Act Rule 10b-5. Lorenzo’s boss and Charles Vista settled the charges against them, but Lorenzo proceeded to resolution before the agency. An ALJ found that Lorenzo had willfully violated all three provisions of the Securities and Exchange Acts by his misrepresentations to investors. On review, the full Commission sustained the ALQ’s decision, and Lorenzo appealed to the US Court of Appeals for the DC Circuit, which upheld the Commission’s findings as to two of the provisions, but reversed as to its finding that he violated Rule 10b-5(b). That provision prohibits the making of materially false statements in connection with the purchase or sale of securities. A majority of the DC Circuit panel found that because Lorenzo’s boss, not Lorenzo himself, retained “ultimate authority” over the statements, Lorenzo did not violate that provision, under the US Supreme Court’s definition of “maker” of false statements in Janus Capital Group., Inc. v. First Derivative Traders, 564 U.S. 135 (2011).

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Dissemination of false or misleading statements with intent to defraud falls within the scope of Rules 10b-5(a) and (c) even if the disseminator did not “make” the statements as defined by the Court’s precedent. Justice Stephen Breyer delivered the 6–2 majority opinion of the Court.
Securities and Exchange Commission Rule 10b-5 makes it unlawful “(a) to employ any device, scheme, or artifice to defraud, (b) to make any untrue statement of a material fact..., or (c) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit...in connection with the purchase or sale of any security.” In Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), the Court held that the “maker” of a statement under subsection (b) is the person with “ultimate authority over the statement, including its content and whether and how to communicate it.” However, one does not need to be the “maker” of a statement to be subject to subsections (a) and (b) of this rule. The Court looked to the ordinary meaning of the terms in both subsections and found that Lorenzo’s actions fall well within those subsections notwithstanding the fact that he did not “make” the statements under subsection (b). Moreover, Lorenzo’s actions are a “paradigmatic example” of securities fraud that the rule contemplates and forbids.
Justice Clarence Thomas filed a dissenting opinion in which Justice Neil Gorsuch joined. Justice Thomas argued that the majority “eviscerate[d]” the distinction between primary and secondary liability in fraudulent-misstatement cases and “misconstrue[d]” the securities laws and the Court’s precedent.
Justice Brett Kavanaugh took no part in the consideration or decision of the case.


John Sturgeon wanted to use his hovercraft on the Nation River, which runs through Alaska’s Yukon-Charley National Preserve conservation unit, designated as such by the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3101 et seq., to reach moose hunting grounds. The State of Alaska would permit him to do so, whereas the federal government would not pursuant to National Park Service regulations. Sturgeon argued that the Nation River belonged to Alaska, and that the National Park Service could not regulate or prohibit the use of hovercraft on that portion of the river. Sturgeon sought declaratory and injunctive relief barring the Park Service from enforcing its hovercraft ban. The district court and appellate court denied him relief, interpreting the statute as limiting the Park Service’s authority to impose Alaska-specific regulations on inholdings but not its authority to enforce nationwide regulations like the hovercraft rule. The US Supreme Court rejected this interpretation and remanded the case for further consideration.
On remand from the US Supreme Court, the Ninth Circuit concluded that the Nation River was public land for purposes of ANILCA and thus that it was subject to the regulatory authority of the National Park Service.

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The Nation River is not public land, so it is exempt under the Alaska National Interest Lands Conservation Act (ANILCA) from the National Park Service’s regulatory authority, as are all non-public lands and navigable waters within Alaska’s national parks. In a unanimous opinion authored by Justice Elena Kagan, the Court held that Alaska’s Nation River is not a public land because the United States does not and cannot have “title” to the Nation River. Under 16 U.S.C. § 3103(c) (“Section 103(c)”) the Park Service may exercise its authority only on public lands, so non-public lands are outside its domain. Moreover, navigable waters within Alaska’s national parks are also exempt from the Park Service’s normal regulatory authority because ANILCA expressly defines “land” to mean “lands, waters, and interests therein.”
Justice Sonia Sotomayor filed a concurring opinion in which Justice Ruth Bader Ginsburg joined, emphasizing certain “important regulatory pathways that the Court’s decision leaves open for future exploration.” Specifically, Justice Sotomayor points out that the Court’s holding does not preclude the Park Service from exercising any regulatory authority over the Nation River, only that it may not regulate the Nation River as if it were within Alaska’s federal park system.


Tyson Timbs purchased a Land Rover for approximately $42,000 in January 2013 using the proceeds from his father’s life insurance policy. During the following four months, Timbs used the vehicle for multiple trips within Indiana to transport heroin. After a series of controlled purchases involving a confidential informant, Timbs was arrested at a traffic stop. At the time of his arrest in May, the Land Rover had approximately 15,000 more miles on it than when he purchased it in January.
The state charged Timbs with two charges of felony dealing and one charge of conspiracy to commit theft. He later pleaded guilty to one charge of felony dealing and one charge of conspiracy to commit theft in exchange for the state dismissing the remaining charge. After accepting the plea, the trial court sentenced Timbs to six years, five of which were to be suspended. Timbs also agreed to pay fees and costs totaling approximately $1200.
In addition, the state sought to forfeit Timbs’ Land Rover. The trial court denied the state’s action, ruling that the forfeiture would be an excessive fine under the Eighth Amendment, characterizing it as grossly disproportional to the seriousness of the offense. The court also noted that the maximum statutory fine for Timbs’ felony dealing charge was $10,000, and the vehicle was worth roughly four times that amount when Timbs purchased it. The trial court ordered the state to release the vehicle immediately. The court of appeals affirmed.
The Indiana Supreme Court reversed, concluding that the U.S. Supreme Court had never clearly incorporated the Eighth Amendment against the states under the Fourteenth Amendment. The court also ruled that the state had proven its entitlement to forfeit the Land Rover under state law.

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The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states. In an opinion authored by Justice Ruth Bader Ginsburg, the Court found that the Excessive Fines Clause finds its origins in the Magna Carta, the historic English Bill of Rights, and state constitutions from the colonial era to the present day. As such, it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” As such, the Fourteenth Amendment’s Due Process Clause incorporates the Clause against—that is, applies to—the states with equal force as against the federal government.
Justice Neil Gorsuch filed a concurring opinion to acknowledge that, in his opinion, the appropriate vehicle for incorporation is the Fourteenth Amendment’s Privileges or Immunities Clause, rather than its Due Process Clause.
Justice Clarence Thomas filed an opinion concurring in the judgment but expressly disagreeing with the majority’s use of the Fourteenth Amendment’s Due Process Clause to incorporate, instead finding that the Clause must be incorporated by the Privileges or Immunities Clause.


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.

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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.


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

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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.

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.

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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.


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.

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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.


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.

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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.

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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.

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.”

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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.

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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.


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.

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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.


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.

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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

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.

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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.


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.

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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.

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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.


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.

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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.

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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.


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.

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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.

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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.

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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.