Decision Days

With oral arguments concluded for the term, we can expect announcements of cases the Court will hear next term and decisions on the cases argued earlier this term. Orders granting or denying cert. are less predictable, but decisions will be announced beginning at 10am on Mondays (except cases that would be ready on Memorial Day will instead be announced on Tuesday) until the end of June.

Before the pandemic, the Justices would take the bench on decision days. The author of the majority opinion would announce the holding, and sometimes a dissenting Justice would make a statement as well. Sadly, that is not happening this summer; there is no conference call with an accessible live-stream of decision announcements like there was for arguments.

Instead, watch the Court’s website beginning at 10am Mondays (and Tuesday, June 1). Decisions get posted on the front page, but if you’re actively watching for decisions, then it’s better to monitor this page. The decisions get posted 10 minutes apart and we don’t know in advance how many there will be. But when the “R number” column gets filled in on that page, you know they’re done for the day. (See the scotusblog blurb on R numbers for the details on why this works as an unofficial sign.)

There is no way to predict which cases will be released on any given decision day. Predictably, almost all cases heard in March or later are still unresolved as of this post (May 21), while we have decisions on nearly all the cases argued early in the term.

So it’s worth noting the outliers — a few important cases that were argued back in 2020 but have not been resolved yet. We might expect to see some of these decisions announced fairly soon. But on the other hand, sometimes the most high-profile cases don’t get released until the very last day of the term, perhaps because Justices are taking extra time to craft opinions and dissents. Still:

Of course, many significant and highly watched cases were not argued until the past few months, and some of those could well be decided before the above cases. I’m especially interested in Mahanoy Area School District v. B.L., involving student First Amendment rights, but it wasn’t argued until April 28. And the decision on the Voting Rights Act cases, argued March 2, could be extraordinarily significant. Lots of reasons to watch!

When all decisions are in, the Court will be in summer recess until the first Monday in October. I may make one more post next month, but this blog will largely go on break until it’s time for a post about the October 2021 calendar.

April cases

Several important SCOTUS cases in the next block — beginning Monday with a case about Native Alaskan Corporations and the CARES Act and closing the following week with big questions about student free speech.

Monday, April 19

First up are cases questioning whether Alaskan Native Corporations are “tribal governments” eligible for CARES Act funding. There’s a complicated history concerning Alaskan Native Americans. Briefly, the 1971 Alaska Native Claims Settlement Act extinguished all land claims, eliminated all but one reservation, and established “corporations” that were eligible to receive federal and state funds and land. The DC Circuit observed that this was “an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America.” Jumping ahead, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) set aside $8 billion “for making payments to Tribal governments.” 42 U.S.C. § 801(a)(2)(B). When Treasury began a process that would allow Alaskan Native Corporations to receive those funds, tribes in Alaska and the lower 48 sued to block disbursements. The DC Circuit agreed with the tribes, and that opinion is a good starting point to understand the details. Also see the various amici briefs from the Corporations, various tribes and tribal associations, Alaska, Sen. Murkowski, and a group of historians – all collected here. There are two cases, Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, consolidated for one hour of argument total.

Next up is Sanchez v. Mayorkas, an immigration case involving the relationship between Temporary Protective Status (TPS) and Lawful Permanent Residency (LPR) (sometimes called a “green card”). A prerequisite to LPR status is that the applicant was “inspected and admitted” into the U.S. 8 U.S.C. § 1255(a). The applicants here entered undocumented but a few years later obtained TPS after a series of earthquakes in El Salvador, and now argue that being granted TPS constitutes being “inspected and admitted.” The Third Circuit disagreed, which created a split with other circuits that had considered this question.

Tuesday, April 20

Two criminal procedure cases today, both involving the federal “felon in possession of a firearm” law (but not consolidated; separate arguments). In both U.S. v. Gary and Greer v. U.S., the plaintiffs pled guilty. When accepting a plea, the judge is required to explain what the prosecution would have to prove (the “elements” of the crime). The judge listed knowing possession of the firearm and previous conviction for a felony. But two years later, the Supreme Court in Rehaif v. United States clarified that conviction under this law requires knowledge that they were a felon. The cases raise issues concerning whether Rehaif announced a rule that is so fundamental as to require reversal of prior convictions as “plain error” and whether the court can look to evidence beyond the trial record in making those determinations.

[Wednesday’s cases involve technical patent law and appellate costs and are not recommended for the casual observer]

Monday, April 26

Important cases today bringing First Amendment challenges to laws that require charities to disclose their major donors on tax filings: Thomas More Law Center v. Rodriquez and Americans for Prosperity v. Rodriquez. See the Public Citizen summary and then the 9th Circuit decision.

Guam v. U.S. involves a fascinating factual context but will largely revolve around technical legal issues. In the 1940s, the U.S. Navy operated the Ordot Dump in Guam, and allegedly disposed of Agent Orange, DDT, and munitions there. In 1950, the Guam Organic Act formally transferred power from the United States to Guam’s newly formed civilian government. In the 1980s, the EPA focused on the Ordot Dump, initially involving the Navy but ultimately ordering Guam to clean it up. There was eventually a court settlement and, several years later, a lawsuit by Guam against the Navy under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, which creates the ability to sue for “cost-recovery” and “contribution.” The statute of limitations for “cost-recovery” and “contribution” are different, and which one Guam must rely on determines whether its case can proceed or is time-barred. The DC Circuit decision is probably the best place to start.

Tuesday, April 27

The second case today involves immigration law and procedural issues, which are nicely summed up by the opening of the 9th Circuit decision:

Refugio Palomar-Santiago is a Mexican national who was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California. In 1998, he received an Notice to Appear from the Immigration and Naturalization Service informing him that he was subject to removal because the DUI offense was classified as a crime of violence under 18 U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that basis. Three years later, the Ninth Circuit determined that the crime Palomar-Santiago was convicted of was not a crime of violence. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).

By 2017, Palomar-Santiago was again living in the United States, this time without authorization. That year, a grand jury indicted him for illegal reentry after deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d). However, a defendant need not prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and need not show the third element if he can show the removal should not have occurred.

Wednesday, April 28

An interesting and critically important case about student First Amendment rights is first, Mahanoy Area School District v. B.L. After making the JV instead of the varsity cheerleading team, a student posted a snapchat picture of herself captioned “Fuck school fuck softball fuck cheer fuck everything.” She was suspended from the team, and sued. The Third Circuit noted that schools traditionally have had significant disciplinary discretion for on-campus activities only, with greater constitutional limits on control over off-campus activity; “[t]he digital revolution, however, has complicated that distinction.” That decision offers a useful survey of student speech cases, from Tinker through Morse (the “bong hits for Jesus” case). I’d also recommend the Student Press Law Center’s amicus brief. Really important questions about just what, if anything, is beyond the reach of school disciplinary policies.

[The last case this month is about FERC’s authority and not recommended to the casual observer.]

January 2021 cases

The Court returns from the holidays on January 11 with arguments on 4 days (closing for MLK Day and Inauguration Day). It will hear cases involving release on bond while an asylum petition is pending, nominal damages in First Amendment cases, FTC and FCC powers, and an important opening salvo in a major climate change lawsuit.

Monday, January 11

The only case today is Chavez v. Hott, an immigration law issue: who is entitled to a bond hearing? It is largely being treated as a statutory interpretation issue. One statute provides that people facing deportation are entitled to a hearing to determine if they should be released on bond “pending a decision on whether the alien is to be removed,” 8 U.S.C. § 1226, but another statute provides that detention is mandatory once “an alien is ordered removed,” 8 US.C. § 1231. You might envision these provisions working together in the ordinary timeline of a case, but in the cases being heard today, the people were ordered removed, left the US, then faced persecution in their home countries and returned to the US to seek asylum, which an asylum officer found to well founded. They were thus subject to a “reinstated removal order” — once someone is ordered removed, that order remains in place and cannot be challenged — but the actual removal is subject to “withholding” under asylum law, if a judge agrees with the asylum officer’s initial finding and grants asylum status. The government’s position is that the decision on whether they are “ordered removed” has already been made (even if whether to actually execute that order is still being considered) so the mandatory detention statute applies. The immigrants argue, and the 4th Circuit held, that even a “withholding-only proceeding” brings the case within the statute that allows for release on bond. I started this discussion by saying it is “largely” a statutory interpretation issue because Human Rights First has submitted an interesting amicus brief arguing that the statutes should be interpreted to best effect our international law obligations in support of refugee rights.

Tuesday, January 12

Another one-argument day, in an interesting free speech context but focused on more technical pleading and mootness questions. In Uzuegbunam v. Preczewski, the plaintiffs were students at Georgia Gwinnett College who first were stopped from distributing literature because the campus required them to reserve and remain in one of two “speech zones,” and later were stopped by campus police while in one of those zones because their reservation was only to distribute literature but they were also engaging in conversation. After being sued, the college changed its policies. The court then held that the case was moot and dismissed it. The Complaint only sought “nominal damages” and a declaratory judgment and injunction; the lower court held, and the 11th Circuit agreed, that they were not entitled to an injunction because the college had “unambiguously terminated the Prior Policies and there is no reasonable basis to expect that it will return to them,” and that the demand for nominal damages (instead of greater compensatory damages, as one would often seek) was not enough to overcome dismissal as moot. The Court has accepted cert. on the narrow question of “whether a constitutional challenge to a school policy that seeks nominal damages rendered moot if the unconstitutional policy is revised during litigation.” Take a look at the factual overview on Oyez and the 11th Circuit opinion.

Wednesday, January 13

The case today involves the powers of the Federal Trade Commission and, more specifically, what a court may order when the FTC brings an action against a company. AMG Capital Management, LLC v. Federal Trade Commission involves an online “payday loan” company, which had “originated more than 5 million payday loans, each generally disbursing between $150 and $800 at a triple-digit interest rate.” The terms were disclosed in seven different online documents, but the site was designed to allow the consumer to “simply ignore the document, electronically sign their names, and click a big green button that said: ‘I AGREE Send Me My Cash!'” (These factual descriptions are from the 9th Circuit opinion.) The FTC brought suit for unfair and deceptive trade practices, alleging that in addition to the above, “the terms disclosed in the Loan Note did not reflect the terms that Tucker actually enforced.” The FTC won on the merits, but the issue the Court will address today is the order to pay approximately $1.27 billion in equitable monetary relief to the Commission. The complication is that 15 U.S.C. § 53(b) only authorizes the court to issue an “injunction” in cases brought by the FTC, but prior precedent is that courts may use their broader equitable powers to order restitution as well. See this interesting brief by former FTC officials.

Tuesday, January 19

First up are two consolidated cases, Federal Communications Commission v. Prometheus Radio Project and National Association of Broadcasters v. Prometheus Radio Project, involving the FCC’s relaxation of media ownership rules. The rules concern how much broadcast media in any local area may be owned by a single company, approval of corporate conglomerates, and other “competition, diversity, and localism,” issues. There has been a complicated back-and-forth among the FCC, courts, corporations, and advocacy groups over many years, helpfully summarized here and most recently involving questions of whether the FCC’s determinations were sufficiently supported by factual evidence. The Court has accepted cert. on “whether the FCC may repeal or modify media ownership rules that it determines are no longer ‘necessary in the public interest as the result of competition’ without statistical evidence about the prospective effect of its rule changes on minority and female ownership.”

The last argument this month, in BP P.L.C. v. Mayor and City Council of Baltimore, is a technical civil procedure issue in the context of an extremely important climate change lawsuit. Baltimore is suing 26 major oil and gas companies, alleging involvement in activities that caused climate change that harmed the city when it resulted in rising sea levels at the port, flood, heatwaves, etc. With echoes of the tobacco litigation from twenty years ago, the suit alleges (as described on Ballotpedia) that “that the companies engaged in an organized, multi-faceted effort to hide the direct link between fossil fuel use and global warming, to discredit publicly available scientific evidence, and actively attempted to undermine public support for regulation of the companies’ business practices, while promoting unrestricted and expanded use of the companies’ fossil fuel products.”

For now, the issue is whether this case will be heard in federal or state court. Baltimore was careful to bring suit under state law, but the companies nevertheless sought to “remove” the case to federal court. Baltimore challenged that removal, and both the federal district court and the 4th Circuit remanded the case back to state court. And right now, the issue is whether that decision (to reject the defendants’ removal and remand it to state court) is appealable. A statute provides that only removal based on federal officers or federal civil rights may be reviewed on appeal; other bases for removal, if rejected by the district court, are not appealable. 28 U.S.C. § 1447(d). The defendants here asserted 8 possible grounds for removal, all rejected, and they now want appellate review of all the grounds instead of just the two appealable grounds because it was all encompassed in one court order. The 4th Circuit order covers the issue well.

[No arguments on Dr. King Day or Inauguration Day; the next set of arguments begin Feb 22.]