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Supreme Court Previews
The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.
DOJ v. House Committee on the Judiciary (19-1328)
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Oral argument: Dec. 2, 2020
Courts below: U.S. Court of Appeals for the District of Columbia Circuit
Question as Framed for the Court by the Parties
Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.
Facts
In May 2017, an investigation was conducted to determine whether members of President Trump’s election campaign had cooperated with the Russian government to interfere in the 2016 presidential election. The Deputy U.S. Attorney General appointed Robert S. Mueller, III to report on the investigation. Mueller submitted a twovolume report (Mueller Report) to the attorney general in March 2019. The attorney general released a version of the report to the public in April that redacted all information concerning grand jury materials, among other information deemed harmful or compromising. The attorney general stated that members of the House Judiciary Committee could review an unredacted version of the Mueller Report, except for information pertaining to the grand jury, pursuant to Federals Rule of Criminal Procedure 6(e). The committee was conducting its impeachment investigation of President Trump and applied for an order to release certain grand jury materials pursuant to Rule 6(e)(3)(E) (i), including transcripts and exhibits. The Department of Justice (DOJ), which held the grand jury documents, rejected the committee’s application to disclose the materials.
The U.S. District Court for the District of Columbia granted the committee’s application to release the grand jury materials and ordered the DOJ to provide these materials because the impeachment trial was classified as a “judicial proceeding” under Rule 6(e). The district court found that the committee established a specific need for the grand jury materials in order to prevent inequity, which outweighed the demand for grand-jury secrecy. The DOJ appealed the district court’s decision and requested that the Court of Appeals elucidate the meaning of “judicial proceeding” in Rule 6(e).
The Court of Appeals affirmed the district court’s decision. While the Court of Appeals recognized that Rule 6(e) denotes a general rule that matters before the grand jury should not be disclosed, the court also noted that the rule provides an exception that allows a court to order the disclosure of grand jury materials if a party has demonstrated a specific need and the materials are connected with a judicial proceeding.
The U.S. Supreme Court granted the DOJ’s petition for a writ of certiorari on July 2, 2020.
Legal Analysis
INTERPRETING THE TERM “JUDICIAL PROCEEDING”
The DOJ argues that the term “judicial proceeding” is limited to proceedings that occur in a court in front of a judge and excludes proceedings that take place in front of a legislative body, such as the Senate. According to the DOJ, the references to “other courts” and “parties” in Federal Rule of Criminal Procedure 6(e) would not apply to the Senate and the House Judiciary Committee, respectively. The DOJ also maintains that Rule 6(e) refers to a “judicial proceeding” only as a proceeding in an ordinary court, demonstrating Congress’s intent that this term be applied consistently in the same way. The DOJ contends that the Court of Appeals erred in stating that the term “judicial proceeding” should be interpreted broadly because a broader interpretation is counterintuitive to the narrow construal set forth by the exceptions to grand-jury secrecy. Furthermore, the narrow interpretation of “judicial proceeding,” the DOJ argues, requires a clear indication that grand jury materials can be disclosed for impeachment inquiries, an indication that the DOJ points out is absent.
The House Committee on the Judiciary, on the other hand, argues that the ordinary meaning of “judicial proceeding” encompasses any action that involves judicial action being taken in a court, which includes impeachment trials. The House Judiciary Committee maintains that dictionaries classify impeachment trials as instances in which the Senate takes on the role of a court. Furthermore, the House Judiciary Committee emphasizes, the Supreme Court, state courts, current writings, and past Senate impeachment proceedings classified the Senate as “sitting as a Court of Impeachment,” demonstrating that an impeachment proceeding is a particular circumstance that allows the Senate to function as a court. The House Judiciary Committee further argues that other parts of the Federal Rules of Criminal Procedure support the interpretation that “judicial proceeding” applies to a Senate impeachment trial. The House Judiciary Committee maintains that another subsection of Rule 6(e), which refers to transferring a case to “other courts,” is not relevant in determining whether a Senate impeachment trial is a “judicial proceeding” because the rule regarding case transfer does not need to apply to every case, only those that require a transfer.
CONSTITUTIONALITY OF CLASSIFYING AN IMPEACHMENT TRIAL AS A “JUDICIAL PROCEEDING”
The DOJ argues that the House Judiciary Committee has not demonstrated the “par-
ticularized need” required to overcome the presumption in favor of grand-jury secrecy. The three factors that the DOJ asserts weigh in favor of maintaining secrecy in this case, outlined in Douglas Oil Co. v. Petrol Stops Northwest, establish that in order to demonstrate particularized need, the party seeking to disclose grand-jury materials must show (1) that the disclosure of the materials would prevent injustice; (2) that the need for disclosure outweighs the desire for secrecy; (3) and that the request for the materials is specific and not over-broad. The DOJ maintains that the analysis of the factors would force the federal courts to determine the likelihood that the majority would choose to impeach the President, placing the federal court in a difficult position to essentially predict the outcome of the impeachment proceedings. The federal court, the DOJ asserts, would be forced to take on a similar role to that of the House Judiciary Committee, which would create constitutional strain because this is not a role the Constitution grants to the federal courts.
The DOJ contends that allowing the term “judicial proceeding,” as used in the exception to grand-jury secrecy under Rule 6(e), to apply to a Senate impeachment trial would create further constitutional difficulties. One of the key components of grand-jury secrecy under Rule 6(e)(3), the DOJ argues, is the district court’s ability to impose protective limitations on the disclosure of materials. The DOJ maintains that it would be extremely difficult to enforce the imposed limitations on disclosure when the court in question would involve members of Congress. The DOJ claims that enforcing these protective limitations in connection with an impeachment proceeding may be unconstitutional, making it even more apparent that an impeachment trial does not fall under the ordinary meaning of “judicial proceeding.” Once the grand jury materials are disclosed to Congress for the impeachment trial, the DOJ emphasizes that it would be incredibly difficult to prevent the materials from being distributed further. The House Judiciary Committee contends that applying the Douglas Oil “particularized need” factors does not weigh in favor of maintaining secrecy, but rather indicates that there is a range of flexibility conferred upon the district courts that allows them to accommodate specific circumstances in determining whether or not the situation warrants disclosure. There would be no constitutional strain, the House Judiciary Committee argues, in applying the “particularized need” requirement because it does not render any part of Rule 6(e) unconstitutional. Furthermore, contrary to the DOJ’s argument, the Committee asserts that there would also be no constitutional strain on the federal courts. The federal courts, the House Judiciary Committee contends, would not be forced to undertake a role similar to that of the committee because there is no requirement that the federal court conduct an invasive analysis into the predicted outcome of the impeachment trial.
The House Judiciary Committee argues that it would be a violation of the Constitution if Rule 6(e), which uses the term “judicial proceeding,” would not apply to an impeachment trial because it would prevent the committee from assuming its constitutional role in identifying and addressing any injustice committed by the President. The House Judiciary Committee maintains that the Constitution grants impeachment power to it, and the committee can only fulfill that role to its utmost extent if it has access to all the relevant information. Refusing to grant access to the grand jury materials in connection with the impeachment investigation, the House Judiciary Committee emphasizes, runs contrary to the power vested in the committee by the Constitution. The House Judiciary Committee asserts that preventing disclosure of grand jury materials to the committee would infringe on the separation of powers because it would impede the committee’s ability to exercise “an essential check” on the executive branch of government.
Discussion
SEPARATION OF POWERS
The DOJ contends that allowing a broad reading of “judicial proceeding” under the Federal Rules of Criminal Procedure Rule 6(e) to include a Senate impeachment trial would threaten the separation of powers envisioned by the Framers of the Constitution, who specifically sought to separate federal courts from political processes. The DOJ explains that in order to grant disclosure of grand jury materials, the district court must determine whether there is a particularized need for grand jury materials in impeachment proceedings. To do this, the DOJ warns that federal courts would necessarily have to weigh the probability that the majority will vote in favor of impeachment, creating constitutional tensions. This weighing is impermissible, the DOJ reasons, because the Founders intended for the judiciary to have no part in the impeachment process, which they specifically delegated to Congress. Additionally, the DOJ argues that the strong authority of federal courts would be threatened if disclosure was broadly interpreted because courts would be required to allow disclosure of confidential grand jury materials for any speculative impeachment proceedings.
The Constitutional Accountability Center (CAC), in support of the House Judiciary Committee, conversely argues that, in the interest of justice and to fulfill its constitutional duty, Congress must have access to relevant information for its impeachment deliberations, including the evidence that was presented to the grand jury. Further, the House Judiciary Committee argues that its request is warranted and legitimate, citing a long-standing history of Congress taking on a judicial role and examining grand jury material in impeachment and other proceedings relating to members’ misconduct. The House Judiciary Committee contends that, contrary to the DOJ’s argument, permitting the disclosure of grand jury materials for an impeachment investigation would not result in an abuse of the system because the district court would still have the authority to impose limitations on the “time” and “manner” in which the materials were released.
BALANCING DISCLOSURE AND SECRECY
The DOJ argues that there is a strong interest in maintaining grand-jury secrecy as the norm, and the Court must be extremely reluctant to find that breaking grand-jury secrecy is warranted. The DOJ asserts that, while grand-jury secrecy can be lifted, it can only be done in a discreet and limited way, entirely inconsistent with providing the committee with an unredacted report of the Mueller Report grand jury considerations. The DOJ further warns that even if a federal court allowed for discourse and stipulated protections to limit the use of the disclosed information, the federal court would be unable to impose and enforce those conditions on members of Congress, rendering the protections useless.
The CAC argues that the need for disclosing the unredacted Mueller report outweighs any interest in continued secrecy. Traditional secrecy surrounding grand jury deliberations, the CAC asserts, has never been without limitations. The CAC explains
that the role of grand-jury secrecy is to serve the interests of justice, and that public policy requires that the “veil of secrecy” be raised if the interests of justice so require. The CAC asserts that the impeachment of a president is one of the greatest and most consequential duties of the committee; therefore, access to all pertinent information is necessary and requires disclosure.
Written by Ariella Banin and Micaela Lucero. Edited by Allison Franz.
Full text available at https://www.law. cornell.edu/supct/cert/19-1328.
Facebook, Inc. v. Duguid (No. 19-511)
Oral Argument: Dec. 8, 2020
Court Below: U.S. Court of Appeals for the Ninth Circuit
Question as Framed for the Court by the Parties
Whether the definition of an “automatic telephone dialing system” in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”
Facts
Responding to the rise of unsolicited and intrusive robocalls, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA forbids calls from an automated telephone dialing system (ATDS). The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Congress enumerated three exceptions to this prohibition: calls for emergency purposes; calls made with express consent by the called party; and calls to collect a debt owed to the United States.
Beginning in January 2014, Petitioner Facebook began sending Respondent Noah Duguid sporadic text messages stating that an unknown browser was attempting to access his (nonexistent) Facebook account. However, Duguid neither used Facebook nor consented to Facebook contacting his cell phone. Despite Duguid’s requests via text and email that Facebook stop sending him messages, Facebook continued sending him unwanted messages until at least October 2014.
Duguid filed suit against Facebook on behalf of classes of people who received similar unsolicited messages from Facebook, alleging that Facebook sent the messages using an ATDS in violation of the TCPA. Duguid alleged that Facebook’s messaging process was an ATDS because Facebook maintained a database of phone numbers and created a program in which an automated message would be sent to a phone number in the database each time a new device accessed the account associated with the phone number.
The U.S. District Court for the Northern District of California dismissed Duguid’s claim under Federal Rule of Civil Procedure 12(b)(6), finding that Duguid failed to adequately allege that Facebook’s system was an ATDS as defined by the TCPA. Specifically, the District Court found that Duguid failed to provide facts suggesting that Facebook’s system either produced or dialed random numbers, emphasizing Facebook’s system of targeting its security notification messages to specific phone numbers as inconsistent with the existence of an ATDS.
On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that Duguid alleged facts sufficient to establish that Facebook’s system was an ATDS. The Ninth Circuit reasoned that the TCPA prohibits a system that can store numbers to be called and can dial such numbers automatically. In reaching this decision, the Ninth Circuit employed a grammatical analysis, stating that the phrase “using a random or sequential number generator” only modifies the verb “produce,” and not the verb “store.” Moreover, the Ninth Circuit asserted that the legislature intended the statute to be read broadly and emphasized the “TCPA’s animating purpose [of] protecting privacy by restricting unsolicited, automated telephone calls.”
The U.S. Supreme Court granted Facebook’s writ of certiorari on July 9, 2020.
Legal Analysis
DEFINING AN ATDS: CONDUCTING A GRAMMATICAL ANALYSIS OF THE TCPA
Facebook claims that conducting a rigid syntax analysis of the TCPA’s statutory language is proper to determine the meaning of an ATDS because when, as here, “the statute’s language is plain,” courts’ sole role “is to enforce it according to its terms.” Facebook claims that two grammar rules—the series-modifier rule and the punctuation canon—dictate that the phrase “using a random number generator” modifies both the verbs “store” and “produce.” Facebook states that the series-modifier rule dictates that a modifier applies to the entire preceding clause, especially when the modifier directly follows the clause. Facebook illustrates this rule through the phrase “appellate courts reverse or affirm district court decisions using the precedents at hand.” Facebook argues that according to the series-modifier rule, the example sentence would mean that appellate courts use precedent both when reversing and when affirming district court decisions because “reverse or affirm district court decisions” is one clause and “using precedents at hand” modifies and directly follows that clause. Indeed, Facebook emphasizes that “no one” would read the sentence to mean that appellate courts use precedent only when affirming district court decisions. Facebook states that the series-modifier rule similarly applies here because the verbs “store” and “produce” are part of one clause as they share a common direct object—“telephone numbers to be called”—and the modifying phrase “using a random or sequential number generator” immediately follows. Thus, relying on the series-modifier rule, Facebook concludes that the phrase “using a random number generator” modifies both “store” and “produce.”
Duguid counters that Facebook errs in its overreliance on rigid syntax rules and argues that proper statutory interpretation “is governed not by the rules of syntax but by the sense of the passage.” Duguid claims that two grammar rules—the distributive-phrasing canon and the last-antecedent canon—dictate that “using a random or sequential number generator” only modifies “produce” and not “store.” Duguid argues that the distributive-phrasing canon states that when a sentence contains several antecedents and several consequents, courts should “read them distributivity and apply the words to the subjects which, by context, they seem most properly to relate.” Duguid provides the example “men and women are eligible to become members of fraternities and sororities.” The distributive-phrasing canon, explains Duguid, would match “men” with “fraternities” and “women” with “sororities” because of the definitions of the words. Here, Duguid defines “a random or sequential number generator” as a procedure of scrambling current numbers to produce a new number, emphasizing that this is a method of “producing numbers, not means of storing them.” Thus, argues Du-
guid, according to the distributive-phrasing canon, the phrase “using a random number generator” only modifies “produce” because the phrase is meant to describe only how the numbers are to be produced.
DEFINING AN ATDS: ANALYZING THE LEGISLATIVE HISTORY OF THE TCPA
Facebook argues that its interpretation of the TCPA comports with the legislative history of the TCPA. Facebook emphasizes that during the TCPA’s drafting, Congress had different concerns with ATDS technology compared to robocalls. Facebook claims that Congress created more prohibitions on robocalls because they were considered a “nuisance” and an “invasion of privacy.” In contrast, Facebook states that Congress was more concerned with how ATDS technology could potentially tie up emergency and business lines or impose significant costs on pay-per-minute lines, like cellular phone lines. Facebook claims that Congress narrowly addressed ATDS problems by prohibiting ATDS calls only to emergency lines, certain hospital lines, cellular phone numbers, and business lines. Facebook emphasizes Congress’s intention to narrowly address ATDS problems by highlighting Congress’s prohibition of robocalls, but not ATDS calls, to residential lines. Thus, Facebook argues that its definition of an ATDS is faithful to Congress’s concerns by preventing devices that actually use random- or sequential-number generators, which could clog important phone lines or impose charges on pay-per-minute lines.
Duguid counters that Congress intended the TCPA to be broadly construed to protect the public from “intrusive nuisance calls.” Duguid claims that the enumerated exception for calls made with express consent by the called party resulted from Congress’s balance of individual privacy rights and legitimate telemarketing practices. According to Duguid, this exception protects consumers by enabling them to avoid intrusive automated calls and only allowing callers to use an ATDS for recipients with whom the callers have a valid business relationship. Duguid claims the express consent exception is proof that Congress presumed that “absent consent, automatically dialed calls are a nuisance and an invasion of privacy, regardless of the type of call.” In addition, Duguid cites a House Committee Report that raised concerns about telemarketing use of automatically dialed numbers from a stored database of current and prospective clients. Further, Duguid emphasizes that the report was increasingly concerned with the frequency of automated calling because of the creation of telephone number databanks to be sold to telemarketers. Countering Facebook’s assertion, Duguid claims that Congress was not merely worried about a system that could generate random numbers to be called but was worried about “all systems capable of storing numbers and dialing them automatically.”
Discussion
EFFECTS ON PRIVATE INDIVIDUALS AND FIRST AMENDMENT CLAIMS
In support of Facebook, Midland Credit Management, Inc. (Midland) argues that adopting the Ninth Circuit’s definition of an ATDS would impose severe speech restrictions. Midland contends that under the Ninth Circuit’s reading of the TCPA, most cell phones would be considered an ATDS, and thus, most cell phone users could be subject to liability. Also in support of Facebook, Salesforce.com (Salesforce) argues that the Ninth Circuit’s definition of an ATDS would lead to impractical results. Salesforce contends many modern cars can be connected to smartphones to permit automatic phone calls, which reduces the dangers associated with making and receiving calls while driving. According to Salesforce, using such technology to make calls while driving would be prohibited by the TCPA under the Ninth Circuit’s holding. Salesforce also asserts that other safety mechanisms, such as privacy notifications sent by text, could be prohibited by the Ninth Circuit’s holding. Furthermore, Portfolio Recovery Associates, LCC (Portfolio) argues that the Ninth Circuit’s interpretation of the TCPA would lead to an overbroad application of the legislation and impose excess speech restrictions, which would violate individuals’ First Amendment right to free speech. Portfolio contends that such a reading could even potentially expose the entire TCPA to First Amendment challenges.
In support of Duguid, Dr. Henning Schulzrinne counters that the Ninth Circuit’s interpretation of the TCPA would not impose excess liability on private individuals. According to Schulzrinne, ordinary cell phone usage, including smartphone usage, does not consist of automatic dialing because “[f]actory default smartphone applications require a human to cognitively select numbers to call,” so “[t]hey do not automatically dial stored contacts.” Schulzrinne also counters Salesforce’s argument regarding safety and automatic calling features in cars by arguing that such technology is “neither automatic nor unsolicited” for the same reasons that smartphones are generally not considered automatic dialing technology. Also arguing in support of Duguid, the National Consumer Law Center, Consumer Federation of America, and Consumer Reports (the Consumers) argue that there is no history of cell phones being the subject of TCPA litigation. Regardless, the Consumers note that even if litigation involving cell phones arose under the TCPA, the Federal Communications Commission has the authority to clarify the law’s scope to avoid any First Amendment violations.
Written by Brett J. Duffek and Katsuhiro Onishi. Edited by Emma Horne.
Full text available at https://www.law. cornell.edu/supct/cert/19-511.
Pham v. Chavez (19-897)
Oral argument: Jan. 11, 2021
Court below: U.S. Court of Appeals for the Fourth Circuit
Question as Framed for the Court by the Parties
Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.
Facts
Maria Angelica Guzman Chavez and her fellow respondents are a group of noncitizen individuals that were removed from the United States based on an order of removal. Once the individuals returned to their respective countries, the individuals allegedly faced torture, persecution, death threats, and other “threats of persecution” and violence. Chavez and the other individuals returned to the United States without permission, in violation of the removal orders. When the government discovered Chavez was in the United States, it reinstated the removal order under 8 U.S.C. § 1231(a) (5). Under this provision, the removal order was not able to be reviewed. Chavez argued that under 8 U.S.C. § 1231(b)(3)(A), her removal from the country should be delayed as she would face torture and persecution in her country of origin. An asylum officer
found that Chavez did have a reasonable fear of persecution or torture, which allowed Chavez to receive a withholding-only hearing in front of an immigration judge. Chavez and her fellow respondents were detained by the government. Chavez sought release on bond. However, bond hearings were denied under the mandatory detention requirement of § 1231.
In 2017, two sets of petitioners filed habeas petitions in the U.S. District Court for the Eastern District Court of Virginia. Matthew T. Albence, the petitioner and the acting director of U.S. Immigrations and Customs Enforcement (ICE), argued that the court should apply 8 U.S.C. § 1226 which would grant an individualized bond hearing to Chavez. The district court stated that § 1226 controls the detention of noncitizens, “pending a decision on whether the alien is to be removed from the United States.” Tony H. Pham, Senior Official Performing the Duties of the Director, ICE, contended that § 1231 should apply to Chavez, which would not allow Chavez to receive a bond hearing. Pham became the named petitioner after he became the Director of ICE. The Court of Appeals stated that § 1231 applies, “when an alien is ordered removed” and requires the government to detain the alien for 90 days. During those 90 days, the individual is “removed” from the United States. In November of 2017, the district court granted summary judgment in favor of Chavez and ruled that § 1226 governed Chavez’s detention and that Chavez was entitled to a bond hearing. Relief to Chavez and her fellow respondents was granted in two separate district court decisions.
Pham appealed the case to the U.S. Court of Appeals for the Fourth Circuit, which consolidated the two sets of petitioners from the district court and affirmed the district court’s ruling. The Court of Appeals concluded that § 1226 applied to Chavez. The Court noted that under the statute, § 1226 applies before the United States has the “actual authority” to deport a noncitizen whereas § 1231 applies once the government has “actual authority” to deport a noncitizen. The Court stated that the United States did not have the “actual authority” to remove Chavez until the United States received the result of the withholding-only hearing. The Court of Appeals rejected Pham’s argument that the court should treat the original removal order as final for detention but not final for judicial review.
Legal Analysis
WHETHER 8 U.S.C. § 1231(a) OR 8 U.S.C. § 1226 GOVERNS DETENTION DURING REINSTATED REMOVAL ORDERS
Pham argues that 8 U.S.C. § 1231(a) governs the detention of an alien who has been ordered to be removed from the United States, rather than 8 U.S.C. § 1226, which governs the detention of an alien who is still awaiting a decision on removal. Pham contends that because Chavez is subject to reinstated orders of removal, and requests for withholding and CAT protection do not affect the validity or finality of the removal orders, § 1231(a) is the governing provision. In support of this argument, Pham refers to numerous instances within § 1231(a) that reference the detention of aliens that have been “ordered removed,” as opposed to § 1226’s reference to the pending decision of “whether the alien is to be removed.” Pham contends that Chavez’s removal is no longer pending, but has been ordered, and that this is true regardless of Chavez seeking statutory withholding and CAT protection, which leave the underlying removal order intact. Pham also argues that the context and structure of the two provisions confirm that § 1231(a) is the governing provision.
Pham contends that Congress intended for the detention of aliens with reinstated removal orders to be governed by § 1231, because the statutory provisions addressing reinstatement of removal orders and statutory withholding of orders are placed within § 1231, rather than § 1226. Likewise, Pham also refers to the sequential organization of the statute as a whole, where the sections preceding § 1226 govern the initial removal order, but the sections surrounding § 1231 govern when that removal order has been reinstated. Pham further notes that when Congress adopted the current reinstatement statute in 1996, it sought to clarify the removal procedures for illegal reentrants specifically to ensure aliens subject to orders of removal were actually removed. Pham argues that applying § 1231(a) better serves this purpose by ensuring that aliens remain subject to conditions of removal, while applying § 1226 would allow aliens to demand a bond determination hearing and an appeal, in an opportunity to be released from their order.
On the other hand, Chavez argues that § 1226 applies before the government’s decision to remove a person from the United States, during which an immigration judge has discretion to order detention, while § 1231(a) only applies after the decision for removal has been made and the removal period has begun. Chavez contends that during withholding proceedings, the question of whether the government will remove the person from the United States is still pending, as no final decision as to removal has been made yet, because the individual still is entitled to certain legal challenges. In addition, Chavez contends that there is a distinction between whether the government has legal authority to remove a person, and whether there are still legal obstacles that may prevent that exercise of authority, which occur before the government obtains such removal authority. Chavez notes, specifically, that during withholding proceedings, the government does not yet have the authority to execute removal orders. Therefore, Chavez argues that § 1226 applies to this proceeding, because there remains a question as to whether the government has authority for removal. Chavez also cites § 1231’s language in support of this argument, which is said to apply “during the removal period,” which only begins when there is an obligation to execute the removal of an individual, rather than when the removal is still being challenged in some manner.
Further, Chavez argues that Congress intended § 1226 to apply to these proceedings because § 1226 provides for detention authority during immigration proceedings and challenges to the order of removal, which align with Congress’s intention to balance the liberty of noncitizens with the interests of detention. This is contrasted with § 1231, which requires mandatory detention as one step in the execution of the removal order. Chavez also argues that the duration of withholding proceedings suggests that § 1226 should apply. Chavez notes that § 1231(a)’s removal period is prescribed to be only 90 days long, while withholding proceedings typically last longer than 90 days. Finally, Chavez argues that interpreting the statutory structure of § 1231(a) to read as a final removal order would conflict with the specific protections establishing withholding proceedings in § 1231(b).
Discussion
THE EFFECTS OF DETENTION ON INDIVIDUALS AND THE IMMIGRATION SYSTEM
Pham notes that § 1231(a) provides adequate protections for detained aliens against unwarranted detention. Pham notes that any exercise of discretion for detention is reviewed by an ICE field office and is subject to periodical review by a review panel at ICE headquarters. Pham explains that these reviews allow for the detained alien to submit information believed to be helpful for their release, specifically to rebut the factors that they may pose a flight risk or engage in future criminal activity. Pham argues that these reviews provide a sufficient opportunity to present evidence and an argument against detention. Finally, Pham also notes that any detention period that lasts longer than six months must be supported by evidence from the government, which again, allows for the detained individual to submit a written request for release. In sum, Pham argues that there are already sufficient procedural protections under § 1231(a) that justify it to be the governing provision, without needing to look to other provisions, such as § 1226.
The American Immigration Council and other non-profit organizations (AIC et al.), in support of Chavez, note that dangerous conditions of detention mean that mandatory detention creates substantial risk of harm to the individuals. AIC et al. argue that these conditions dissuade some individuals from pursuing their otherwise meritorious withholding proceedings to fruition. They specifically refer to both inhumane treatment of detainees, as well as inadequate levels of medical care, that have been, at times, fatal. Former U.S. Immigration Judges and Members of the Board of Immigration Appeals (Immigration Judges), in support of Respondents, contend that the government maintains responsibility for the health and safety conditions of immigration detention system as a matter of due process. The Immigration Judges note that COVID-19 has presented an unreasonable risk to detained individuals, who are unable to socially distance and are not provided with protective equipment. This is further supported, the Immigration Judges argue, by the large amount of federal lawsuits that have been filed seeking bond hearings on the basis of the lack of safety of detention. Further, various groups, in support of Chavez, argue that the practices of mandatory detention may run afoul of various international human rights treaties, including the United States’ international human and civil rights commitments under the UN Convention Relating to the Status of Refugees, International Covenant on Civil and Political Rights, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Written by Noah Welch and Chris Mao. Edited by Julia Canzoneri.
Full text available at https://www.law. cornell.edu/supct/cert/19-897.
Uzuegbunam v. Preczewski (No. 19-968)
Oral argument: Jan. 12, 2021
Court below: U.S. Court of Appeals for the Eleventh Circuit
Question as Framed for the Court by the Parties
Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.
Facts
Chike Uzuegbunam and Joseph Bradford were both students attending Georgia Gwinnett College (“GGC”) who shared similar religious beliefs and a desire to express those beliefs publicly. In July 2016, Uzuegbunam was distributing literature that promoted his religious beliefs in an outdoor plaza on campus when a campus police officer approached him. The officer informed Uzuegbunam that, under GGC’s “Freedom of Expression Policy,” the distribution of literature in the plaza was forbidden because students could only engage in expressive activities on campus in the two designated “speech zones,” which were available on a reservation basis.
After this incident, Uzuegbunam reserved one of the speech zones in order to continue distributing his religious literature. Shortly thereafter, Uzuegbunam was again stopped by campus police. According to the officer, the police had received “some calls” complaining about Uzuegbunam’s religious speech. The officer informed Uzuegbunam that he was again in violation of GGC’s Freedom of Expression Policy because his speech zone reservation did not include “open-air speaking,” which he was engaging in by speaking to passing students about his beliefs. The officer also told Uzuegbunam that his activities constituted disorderly conduct under GGC’s Student Code of Conduct. Given the threat of disciplinary action, Uzuegbunam ceased his expressive activities entirely and left his reserved speech zone. The incident also deterred both Uzuegbunam and Bradford from making future attempts to distribute religious literature elsewhere on campus or to engage in any expressive activities in the designated speech zones.
Uzuegbunam and Bradford then filed a complaint against multiple GGC officials, including GGC’s president, Stanley Preczewski, for violating their constitutional rights. Uzuegbunam and Bradford sought a declaratory judgment that the speech policies in GGC’s Freedom of Expression Policy and Student Code of Conduct violated their rights under the First and Fourteenth Amendments. They also sought an injunction preventing the enforcement of the policies and requested nominal damages for the violation of their rights. While the suit was pending, Uzuegbunam graduated from GGC, and GGC revised its speech policies to generally allow students to speak anywhere on campus without a permit and to remove disorderly conduct as a violation. Thereafter, GGC filed a motion to dismiss the suit as moot, arguing its speech policies were no longer unconstitutional, and thus declaratory and injunctive relief were no longer necessary. The U.S. District Court for the Northern District of Georgia granted the motion to dismiss, holding that a claim for nominal damages could not save a complaint that was otherwise moot. Uzuegbunam and Bradford appealed to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the district court’s ruling.
Uzuegbunam and Bradford petitioned the U.S. Supreme Court for a writ of certiorari on Jan. 31, 2020, which the Supreme Court granted on July 9, 2020.
Legal Analysis
MOOTNESS AND NOMINAL DAMAGES
Petitioner Uzuegbunam argues that according to Article III of the Constitution, a case becomes moot when a court is no longer able to grant effectual relief. Therefore, Uzuegbunam argues that so long as there is some monetary relief sought, however small, the suit is not moot. This relief, Uzuegbunam argues, includes both compensatory and nominal damages because they both affect the behavior of the defendant in response
to an earlier violation of the rights of the plaintiff. Uzuegbunam claims that because nominal damages offer actual relief to the plaintiff on the merits of the claim, there is no need for corresponding compensatory damages to make the claim justiciable. Uzuegbunam further argues that a subsequent change in an unconstitutional policy cannot eliminate a plaintiff’s right to relief for a violation of a constitutional right. In support of this argument, Uzuegbunam notes that nearly all of the circuit courts of appeals have held that a claim for nominal damages remains justiciable even after a defendant’s change in policy.
Uzuegbunam also argues that permitting stand-alone nominal-damages claims will not destroy the mootness doctrine. Specifically, Uzuegbunam contends that invalid nominal claims would still be considered moot. For example, Uzuegbunam argues that some statutes restrict nominal-damages claims, like § 1983’s bar on nominal-damages against state defendants in their official capacity. Uzuegbunam also asserts that nominal-damages claims would still be unavailable in cases in which the plaintiff did not suffer an injury.
Respondent Preczewski counters that Article III requires a plaintiff to have a personal stake in a case to avoid mootness. Specifically, Preczewski argues that the court must be able to “grant the plaintiff personal and tangible relief that is likely to redress his asserted injury.” Preczewski asserts that a remedy must provide a plaintiff a “real world” benefit that rectifies an injury. For example, Preczewski contends that compensatory damages redress an injury by “making the plaintiff whole.” By contrast, Preczewski argues that nominal damages are merely symbolic. Preczewski contends that, therefore, nominal damages only prevent mootness if used to prevent a current or threatened violation of a plaintiff’s legal rights. Thus if the conduct has ceased, Preczewski asserts, the plaintiff no longer faces a potential injury and has no tangible benefits to gain from the damages. While Preczewski acknowledges that nominal damages serve the public interest as “vindication of the rule of law,” he notes that Article III requires a plaintiff to claim a personal benefit, rather than a generalized public benefit, for a case to be justiciable.
Preczewski further argues that allowing claims for nominal damages that allege no injury would upend the mootness doctrine. Specifically, Preczewski asserts that permitting the claim for nominal damage in this case would allow plaintiffs to insulate their claims from mootness by merely claiming that a constitutional right was “chilled.” Preczewski argues that the elimination of the mootness doctrine would encourage and draw out litigation and reduce incentives for defendants to correct unconstitutional policies.
NOMINAL DAMAGES VERSUS DECLARATORY JUDGMENTS
Uzuegbunam argues that his claim for nominal damages cannot be substituted with a declaratory judgment because nominal damages serve a different purpose. Uzuegbunam contends that declaratory judgments were created to determine a legal right before a controversy has occurred to prevent future violations of the law, while nominal damages serve to vindicate a legal violation after it has occurred. While Uzuegbunam concedes that declaratory judgments can sometimes be retrospective, he highlights that their general purpose is to guide future behavior. On the other hand, Uzuegbunam asserts that the general purpose of nominal damages is to address past violations. Uzuegbunam further argues that while nominal damages have some declaratory effect, so do compensatory damages. Therefore, Uzuegbunam concludes that the declaratory feature of a nominal-damages claim cannot by itself render the claim moot, or else it “would moot all damages claims.” Uzuegbunam also notes that a claim for nominal damages is not equivalent to a declaratory judgment because declaratory judgments are optional, while nominal damages are required if the court finds that a violation has occurred. Finally, Uzuegbunam argues that the courts have recognized a distinction between nominal damages and declaratory judgments because they have continued to award nominal damages in the 80 years since Congress enacted the Declaratory Judgment Act.
Preczewski counters that in the absence of a continuing or threatened injury, a claim for nominal damages serves only to provide declaratory relief. Preczewski notes that, historically, nominal damages were created to provide an avenue for declaratory relief in common-law courts, since declaratory judgments did not exist at that time. Therefore, in common-law courts, the issuance of nominal damages served the purpose of indirectly declaring the existence or nonexistence of plaintiffs’ rights. Preczewski notes that the cases which permitted nominal damages in common-law courts all involved rights that could be violated or threatened in the future, and thus, the declaration of those rights served to protect against future injuries. Preczewski argues that while nominal damages were sometimes permitted even when they would not serve a prospective purpose, they were never treated as the primary or sole redress for a past injury. Preczewski asserts that issuance of nominal damages in this case would be analogous to a declaratory judgment. Since a court can only issue a declaratory judgment involving a “present right,” Preczewski argues that a declaration that GGC’s previous speech policies violated Uzuegbunam’s constitutional rights would merely constitute an advisory opinion.
Discussion
PROTECTION OF CONSTITUTIONAL RIGHTS
The American Humanist Association (AHA), in support of Uzuegbunam, argues that finding nominal damages insufficient to create a controversy would endanger religious liberty, as nominal-damages claims are often the only legal remedy citizens have to vindicate violations of their First Amendment rights. AHA also asserts that First Amendment infringements always cause irreparable harm, so courts should not give governments a “free pass” by dismissing claims alleging such violations. The Justice and Freedom Fund, in support of Uzuegbunam, also contends that litigation over constitutional rights raises awareness of important issues, which can lead to larger-scale legislative changes that better protect those rights for all.
The District of Columbia and 11 states (the States), in support of Preczewski, argue that dismissing cases as moot following subsequent policy revisions will protect the constitutional rights of citizens by incentivizing governments to remedy unconstitutional laws once they are challenged instead of defending them through the end of litigation. The National Conference of State Legislatures and other local government associations (local government associations), in support of Preczewski, contend that such a rule would also serve the public interest by encouraging officials to act quickly and decisively during emergencies and fix harmless mistakes as they arise, without the fear of never-ending litigation.
The United States, in support of Uzuegbunam, argues that allowing litigation to continue over nominal damages will not impose significant administrative burdens because very few civil rights claims are likely to claim solely nominal damages, as constitutional violations often involve significant harm. The United States asserts that defendants can choose to avoid litigating the merits of those claims and conserve their resources by simply settling or accepting a judgment of nominal damages against them without contesting it. The Public Citizen, in support of Uzuegbunam, further contends that adjudicating the merits of constitutional claims falls under the duty of federal courts to “say what the law is,” and thus, courts are obligated to adjudicate even nominal-damages claims in order to fulfill their duty of clarifying and facilitating the development of constitutional law.
The States counter that refusing to dismiss nominal-damages claims will substantially burden governments by forcing officials to divert extensive time and money from their regular obligations to prepare to defend themselves at trial. The States argue that this litigation can drag on for years, which both strains judicial resources and drives up attorney’s fees that the government may be ordered to pay in addition to nominal damages. Local government associations further contend that states cannot simply concede claims to conserve resources, as the United States suggests, because they will still be subject to the negative collateral consequences that accompany losing a lawsuit, such as increased insurance costs and ineligibility for federal funding.
Written by Daniel M. Bialer and Julia Mikolajczak. Edited by Zora Franicevic.
Full text available at https://www.law. cornell.edu/supct/cert/19-968.
Trump v. New York (No. 20-366)
Oral Argument: Nov. 30, 2020
Court below: U.S. District Court for the Southern District of New York
This case asks the Supreme Court to decide whether the president may exclude undocumented immigrants when apportioning congressional seats by population. On July 21, 2020, President Donald Trump issued a memorandum declaring that the United States would exclude undocumented immigrants from the congressional apportionment base. Petitioner Trump argues that New York lacks standing to bring this case since 2020 census questionnaires are no longer being collected and it cannot point to how much federal funding or congressional representation certain states stand to lose. Trump further contends that even if New York has standing, Trump has discretion not to count undocumented immigrants for apportionment purposes. Respondent New York asserts that it has standing because it has demonstrated that the memorandum will deter undocumented immigrants from participating in the 2020 decennial census. Moreover, New York asserts that federal statutes require the government to make funding decisions based on the total population count and that certain states could lose congressional representation if the memorandum is implemented. Finally, New York argues that the Census Act, Reapportionment Act, and the Constitution prevent the president from exercising discretion to exclude undocumented immigrants from the census. The outcome of this case has implications for the apportionment of representatives from states with large undocumented populations and the participation of undocumented immigrants in the decennial census. Full text available at https://www.law.cornell.edu/supct/cert/20-366.
Van Buren v. United States (No. 19-783)
Oral argument: Nov. 30, 2020
Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to determine the scope of the “exceeds authorized access” clause of the Consumer Fraud and Abuse Act (CFAA). A person violates the CFAA when the person “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from the computer. Petitioner Van Buren was a policeman who was authorized to access a law enforcement database. For reasons unrelated to his job, he used that access to search a license plate for financial gain. Respondent United States contends that when Van Buren accessed the database for a reason unrelated to his job, he exceeded his authorized access and violated the CFAA. Van Buren argues that he did not exceed his authorized access because the “exceeds authorized access” provision does not punish individuals who misuse information they are otherwise authorized to access. The outcome of this case will have broad implications on how employers protect sensitive data and how prosecutors can pursue hacking and computer fraud.
Full text available at https://www.law. cornell.edu/supct/cert/19-783.
CIC Services, LLC v. Internal Revenue Service (No. 19-930)
Oral argument: Dec. 1, 2020
Court below: U.S. Court of Appeals for the Sixth Circuit This case asks the Supreme Court to interpret the Anti-Injunction Act and to determine whether it bars pre-enforcement legal challenges to agency guidelines and regulations that incorporate a tax-penalty enforcement mechanism into the framework. CIC Services argues that the Supreme Court should construe the Administrative Procedure Act’s review provisions broadly enough and the Anti-Injunction Act’s prohibitory provisions narrowly enough to provide material tax advisors relief from the Internal Revenue Service’s new interpretative guidelines concerning reportable transactions. Respondent Internal Revenue Service counters that the Anti-Injunction Act applies to CIC’s challenge so the lawsuit is barred and that none of the available exceptions to the Anti-Injunction Act’s provisions apply to CIC’s sought injunction. This case has important implications for corporations whose business involves reporting earnings to the Internal Revenue Service, as well as for federal agencies’ abilities to avoid lawsuits by tying in certain tax-penalty provisions.
Full text available at https://www.law. cornell.edu/supct/cert/19-930.
Edwards v. Vannoy (No. 19-5807)
Oral argument: Dec. 2, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit
This case asks the Supreme Court to decide whether Ramos v. Louisiana, which held that a criminal defendant charged in state court can only be convicted by a unanimous jury, applies retroactively to cases that were finalized before Ramos was decided. Petitioner Thedrick Edwards was convicted under Louisiana’s nonunanimous jury rule and contends that Ramos recognized an ancient
guarantee of criminal procedure that should be given retroactive effect under Teague v. Lane. Alternatively, Edwards asserts that Ramos enunciated a new watershed rule that must be applied retroactively because of the importance of juror unanimity to ensure accurate convictions. In response, Respondent Darrel Vannoy, the Warden of the Louisiana State Penitentiary, argues that Ramos overruled Apodaca v. Oregon and announced a new rule that significantly changes criminal proceedings in states that allowed conviction by nonunanimous juries. Additionally, Vannoy claims that the Antiterrorism and Effective Death Penalty Act of 1966 independently bars the retroactive application of Ramos. The outcome of this case has heavy implications for individuals seeking retrial for guilty verdicts decided by nonunanimous juries.
Full text available at https://www.law. cornell.edu/supct/cert/19-5807.
Oral argument: Dec. 7, 2020
Court below: U.S. Court of Appeals for the District of Columbia Circuit
This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent U.S. courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (FSIA) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether U.S. courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in U.S. courts.
Republic of Hungary v. Simon (No. 18-1447)
Oral Argument: Dec. 7, 2020
Court below: U.S. Court of Appeals for the District of Columbia Circuit
This case asks the Supreme Court to decide whether the common-law doctrine of international comity provides federal courts with the discretion to dismiss claims under the Foreign Sovereign Immunities Act (FSIA). Respondent the Republic of Hungary argues that the FSIA must be construed in light of international comity doctrine, and that the federal court should defer to Hungary as Hungary’s interests in hearing this case outweigh those of the United States. Petitioners Rosalie Simon and other Hungarian Holocaust survivors argue that the FSIA has displaced common law and that federal courts should exercise jurisdiction in cases such as this one, where a sovereign state has failed to provide an adequate alternate forum. The outcome of this case will have implications on foreign policy, the extraterritorial reach of U.S. law, and the remedies available to the victims of Holocaust.
Full text available at https://www.law. cornell.edu/supct/cert/18-1447.
Henry Schein Inc. v. Archer and White Sales Inc. (19-963)
Oral argument: Dec. 8, 2020
Court below: U.S. Court of Appeals for the Fifth Circuit This case asks the Supreme Court to consider whether an arbitration agreement that incorporates the American Arbitration Association’s (AAA) rules delegates the question of arbitrability to the arbitrators, in light of an express exclusion clause for injunctive relief, where the plaintiff sought both damages and injunctive relief. The arbitration agreement at issue in this case includes a “carve-out” provision excluding from arbitration any claims seeking injunctive relief. Rule 7(A) of the AAA’s rules states that the arbitrator has the power to rule on the arbitrability of any claim or counterclaim. Petitioner Henry Schein, Inc. argues that the incorporation of the AAA rules “clearly and unmistakably” delegates all questions of arbitrability to the arbitrator, and that, because some issues are delegated to the arbitrator, the presumption of arbitrability should be read to delegate to the arbitrator the question of the application of the exclusion clause. On the other hand, Respondent Archer and White Sales, Inc. contends that the question of arbitrability should remain for the court to decide because of the explicit carve-out exemption. The outcome of this case has heavy implications for the efficiency and fairness of dispute resolution.
Full text available at https://www.law. cornell.edu/supct/cert/19-963.
Collins v. Mnuchin (19-422)
Oral argument: Dec. 9, 2020
Court below: U.S. Court of Appeals for the Fifth Circuit
This case asks the Supreme Court to determine whether the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional. If so, this structure may render the placement of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) into FHFA’s conservatorship void. Petitioner Secretary of the Treasury Steven T. Mnuchin argues that the succession and anti-injunction clause of the Housing and Economic Recovery Act of 2008 (Recovery Act) bars Collin’s claim because that claim is derivative. Mnuchin asserts the Recovery Act’s removal clause does not invalidate the challenged amendment to the FHFA’s agreement with the Treasury Department and that the court should sever the removal clause from the rest of the statute. Respondent Patrick J. Collins counters that neither the succession clause nor the anti-injunction clauses bar a direct suit under the Administrative Procedure Act (APA). Collins contends that the Court’s response to the removal clause should set aside both the challenged amendment to FHFA’s agreement with the Treasury and the Recovery Act’s conservatorship clause. This case’s outcome has implications for the separation of powers and protections for “for-cause” removal. The case could impact private individuals’ incentives to bring constitutional challenges to the court and the government’s ability to intervene in moments of economic crises.
Full text available at https://www.law. cornell.edu/supct/cert/19-422.
AMG Capital Management, LLC v. Federal Trade Commission (No. 19-508)
Oral Argument: Jan. 13, 2021
Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to clarify whether the Federal Trade Commission’s authority to seek injunctive relief includes requests for monetary recovery as restitution. The FTC sued Petitioner Scott Tucker, his wife, Kim Tucker, and his various businesses (AMG Capital Management, LLC, et al.) for deceptive business practices. Tucker argues that the plain language of § 13(b) does not support the Ninth Circuit’s interpretation to allow monetary restitution as relief. Tucker also contends that such an interpretation may disrupt procedural safeguards in the FTC Act and that the old case law emanating from Porter and its progeny does not control the current case. Citing equity law cases that treat monetary restitution as a part of injunctive relief, the FTC maintains that Tucker’s argument is misleading because it fails to consider that the FTC Act takes into consideration the dual enforcement system of the FTC. Lastly, the FTC argues that Porter and its progeny are still good law and hence control the current case. The outcome of this case has heavy implications for consumer protection, business norms, and adhering to court precedent
Full text available at https://www.law. cornell.edu/supct/cert/19-508.
BP P.L.C. v. Mayor and City Council of Baltimore (No. 19-1189)
Oral Argument:Jan. 19, 2021
Court below: U.S. Court of Appeals for the Fourth Circuit
This case asks the Supreme Court to decide whether 28 U.S.C. § 1447(d) allows courts of appeals to review an entire order remanding a removed case back to state court. Normally, § 1447(d) forbids courts of appeals from reviewing remand orders, except when a federal officer seeks removal, or the case involves civil rights. Based on a plain reading of the text and the purpose of the exceptions, BP argues that if a defendant asserts either jurisdictional ground, § 1447(d) permits a court to review the entire order. Baltimore contends that this reading contravenes the purpose and historical understanding of the proper scope of review. This case has implications for state and federal jurisdiction, climate change, and congressional delegation of power.
Full text available at https://www.law. cornell.edu/supct/cert/19-1189.
Federal Communications Commission v. Prometheus Radio Project (No. 19–1231)
Oral argument:Jan. 19, 2021
Court below: U.S. Court of Appeals for the Third Circuit
This case asks the Supreme Court to decide whether the U.S. Court of Appeals for the Third Circuit erred when it vacated several Federal Communication Commission orders that, among other things, relaxed agency cross-ownership restrictions. Prometheus Radio Project, which challenges the FCC’s orders, claims that the FCC acted arbitrarily and capriciously because it did not consider how repealing cross-ownership restrictions would affect minority and female ownership of broadcast services. The FCC counters that courts owe the agency substantial deference when it considers multiple policy factors in its rulemaking capacity. The Supreme Court’s decision could affect the scope of judicial review of administrative actions, the integrity of local news coverage, and the diversity of broadcast media.
Full text available at https://www.law. cornell.edu/supct/cert/19-1231.
FBA Nominations and Elections for FY2022
Pursuant to the FBA Constitution and Bylaws, and in accordance with the notice disseminated earlier this year, the Nominations & Elections Committee has met and considered applications for nomination to FBA national office. The committee has nominated the following members for the offices indicated.
Candidate
Position Matthew C. Moschella President-Elect
Jonathan O. Hafen Treasurer
Richard Dellinger Director (Group 1-Vice Presidents for the Circuits)
Kelly T. Scalise Director (Group 2-Chairs for the Sections and Divisions)
Michelle M. Pettit Director (Group 3-Chapter Presidents)
Anna W. Howard Director (Group 4-Younger Lawyers)
Ashley L. Belleau ABA Delegate
Christian T. Haugsby Vice President for the Third Circuit
Kacy L. Hunt Vice President for the Fourth Circuit
Kate Marples Simpson Vice President for the Tenth Circuit
The names of these candidates will be listed on the Notice of Election that will be distributed to each member in good standing as of June 15, 2021.
Petitions
Members who have not been nominated for office by the Committee, but who wish to be placed on the ballot for national office, may do so by delivering to Christian K. Adams, Chair of the Nominations and Elections Committee, at elections@fedbar.org, a petition, including an Application, specifying the office being sought and bearing the required number of signatures, i.e., fifty (50) signatures for national offices; twenty (20) signatures for vice presidents for the circuits by members within the respective circuit. No member shall be eligible as an endorser of a petition whose dues are not paid for the current fiscal year or who is not otherwise in good standing. Each petition may propose nominees for one or more offices; however, in no event shall any member be eligible as an endorser of more than one candidate for the same office. Petitions must be received by 11:59 p.m. EDT on Monday, April 26, 2021.
Notice of Election, Ballots and Voting
In accordance with Bylaw 6(D), by June 15, 2021, the Committee shall cause a Notice of Election to be sent to each member of the Association in good standing. The notice shall list the names of all nominated candidates and candidates by petition in alphabetical order under each elective office. The notice also shall contain such instructions as necessary for members to cast their votes as prescribed by policy adopted by the Board of Directors. A suspended member who is restored to good standing after the transmittal of the notice and who, prior to the election’s close, delivers to the Committee evidence of good standing, shall thereupon be entitled to vote. In an uncontested election, the Association shall only send the Notice of Election electronically to members. The ballot shall contain the names of all nominated candidates and candidates by petition for each elective office as well as space for a write-in candidate for each elective office. Completed ballots shall be received by the Chair of the Committee or by such person as designed by the Chair no later than July 1. The Committee shall review and certify the tabulated votes and report as elected the candidate for each office who has received a plurality of the votes cast for that office by July 2.
W. West Allen
National President and Chair, Nominations and Elections Committee
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Erwin Chemerinsky and Maria Andrade from the Immigrant Justice Idaho conference discussing Supreme Court limits on executive power in immigration law.
SECTION ON IMMIGRATION LAW
The Immigration Law Section (ILS) proudly supported the Idaho Justice Center’s November 2020 symposium on immigration law and policy. The annual conference is the brainchild of Maria Andrade, founder and executive director
On Nov. 30, 2020, the Supreme Court heard arguments in Trump vs. New York, involving the Trump administration’s July 20, 2020, memorandum instructing the director of the census to provide an accounting of those unauthorized to be in the United States for the purpose of excluding them from the decennial census.
This memorandum came on the heels of the Court blocking the administration from inserting a question regarding U.S. citizenship on the census.
ILS section chair Mark Shmueli moderated this panel, which included Terry Ao Minnis, senior director of Census and Voting Programs for Asian Americans Advancing Justice, and Cori Alonso Yoder, director of the Federal Litigation Clinic, Georgetown University College of Law.
The panel discussed the arguments in this case along with the radical public policy implications if the Court were to uphold the constitutionality of excluding those living in the United States based on their lack of immigration status from the decennial population count states use to apportion congressional representation.
Also, the panel covered the difficulty that the Court had, not only with the exclusion based on immigration status but also on the administration’s inability to articulate a concrete plan for how to discern the status of those counted by the census and also to provide a clear analysis of which people it planned to exclude under the memorandum.
Along with this critical webinar, the ILS also sponsored a webinar that discussed COVID-19 challenges to practicing immigration law and provided strategies and tips to get our practices through the pandemic. Thanks to presenters Ray Lahoud and Murat Berdyev.
In early January, the ILS also launched a new series of informal roundtables with a “Breakfast from the Border” presentation by San Antonio attorney and ILS board member Carlos Castaneda and Tucson-based journalist and author of three books on the border, Todd Miller.
The ILS was also a proud co-sponsor of the annual New York Asylum & Immigration Law Conference on February 5.
