June 2, 2025 | Volume 32, Issue 12
This Report summarizes opinions issued on May 15, 16, and 22, 2025 (Part I); and cases granted review on May 27, 2025 (Part II).
Opinions
A.A.R.P. v. Trump, 24A1007.
By a 7-2 vote, the Court vacated a Fifth Circuit decision that had denied injunctive relief barring the summary removal under the Alien Enemies Act (AEA) of a putative class of Venezuelan nationals who allegedly are members of Tre de Aragua (TdA). The President has invoked the AEA, a wartime law passed in 1798, to remove Venezuelan nationals who are members of TdA, a foreign terrorist organization.
Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northen District of Texas. On April 17, 2025, the district court denied the detainees’ motion for a temporary restraining order (TRO) against summary removal under the AEA. They allege that hours later they were served notices of AEA removal and told they would be removed “tonight or tomorrow.” On April 18, 2025, at 12:34 a.m., the detainees moved for an emergency TRO; at 12:48 p.m., they moved for a ruling on that motion or a status conference by 1:30 p.m. When the district court had not ruled, at 3:02 p.m. the detainees appealed “the constructive denia[l]” of the emergency TRO to the Fifth Circuit and simultaneously applied to the Supreme Court for a temporary injunction. At 12:52 a.m., the Supreme Court ordered the federal government “not to remove any member of the putative class of detainees” to preserve jurisdiction to consider the application. The Fifth Circuit later dismissed the appeal to that court for lack of jurisdiction and denied the motion for injunction pending appeal as premature because the detainees “gave the [district] court only 42 minutes to act.” In a per curiam opinion, the Court construed the application seeking injunctive relief as a petition for a writ of certiorari, granted the petition and the application for injunctive relief, vacated the circuit court’s judgment, and remanded for further proceedings to determine what notice and due process is required under these circumstances.
The Court held that the Fifth Circuit erred in dismissing the appeal because appellate courts have jurisdiction to review interlocutory orders that have “the practical effect of refusing an injunction.” The Court found that the district court’s 14 hours and 28 minutes of inaction (not the 42 minutes of inaction claimed by the Fifth Circuit) had “the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.” The Court found that the record before the district court included four declarations demonstrating that removals of putative class members “were likely imminent.”
The Court noted that during the relevant time, the federal government had guaranteed that no putative class members would be removed on April 18, but “reserve[d] the right” to removal the very next day, April 19. The federal government believed this action “would be consistent with” its due process obligations. The Court found evidence in the record that the federal government had taken steps on the afternoon of April 18 toward removing detainees. The Court observed that had the detainees been removed from the U.S. to the custody of a foreign sovereign, the federal government might have argued, like it has previously, “that no U.S. court had jurisdiction to order relief.” The Court found that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” The Court continued that it was “not optimal” for it to determine the precise process necessary in the first instance, so the Court remanded to the Fifth Circuit to weigh that decision.
The Court was clear that it was not determining how much notice was required, just that it was more than that provided on April 18. The Court held that the named parties and the putative class members are entitled to constitutionally adequate notice before removal. And the Court held that temporary injunctive relief to the putative class was necessary to preserve its jurisdiction while the question of notice was litigated below. In that regard, the Court stated that “because courts may issue temporary relief to a putative class, we need not decide whether a class should be certified as to the detainees’ due process claims in order to temporarily enjoin the Government from removing putative class members while the question of what notice is due is adjudicated.” (Citation omitted.) The Court closed by instructing the Fifth Circuit that, “[i]n resolving the detainees’ appeal, [it] should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs’ underlying habeas claims that the AEA does not authorize their removal pursuant to the President’s March 14, 2025, Proclamation, and (2) the issue of what notice is due, as to the putative class’s due process claims against summary removal.
The Court ruled that the federal government is enjoined from removing the named plaintiffs and putative class members under the AEA until a decision by the Fifth Circuit and disposition of the petition for a writ of certiorari. The Court noted that the federal government could remove the named plaintiffs and putative class members under other lawful authorities.
Justice Kavanaugh wrote a concurrence to note that he would grant certiorari, order briefing, hold oral argument, and resolve the underlying legal issues―whether the AEA authorizes removal of these detainees and, if so, what notice is due before removal―which he believes call for a “prompt and final resolution, which likely can be provided only by this Court.”
Justice Alito wrote a dissent, which Justice Thomas joined. Justice Alito believed the Court was wrong for three main reasons. First, that the Court lacked jurisdiction. Justice Alito disagreed with the Court’s factual recitation and would have given greater deference to the district court, which was proceeding in an “entirely reasonable matter.” Thus, the dissent would not have found that the district court’s failure to act amounted to a constructive denial of the requested relief. Second, Justice Alito asserted that the applicants had not satisfied the requirements for injunctive relief pending appeal because they had to show a likelihood of success on the merits. In particular, insisted Justice Alito, “it is doubtful that class relief may be obtained in a habeas proceeding.” Third, “[e]ven if something resembling a class action could be used in a habeas proceeding, it is very questionable whether the requirements for class certification could be met in this case.”
Barnes v. Felix, 23-1239.
The Court unanimously rejected the Fifth Circuit’s “moment of threat” rule for resolving Fourth Amendment excessive-use-of-force claims because the rule “improperly narrow[ed] the requisite Fourth Amendment analysis.” This case involved a police officer’s use of deadly force during a traffic stop. The police officer, Roberto Felix, stopped Ashtian Barnes for outstanding toll violations. Within the stop’s first two minutes, Barnes turned off the car, said he might have some identification in the trunk, and opened the trunk from the driver’s seat. The following events occurred in quick succession thereafter: Felix, with his hand resting on his holster, directed Barnes to exit the car; although Barnes opened the car door, he did not exit; Barnes instead turned the car back on; “Felix unholstered his gun and, as the car began to move forward, jumped onto its doorsill”; Felix shouted at Barnes to not move and then “fired two quick shots inside” the car, despite having “no visibility into the car (because his head was above the roof)”; Barnes, who had been shot, stopped the car and died shortly after. “[A]bout five seconds elapsed between when the car started moving and when it stopped. And within that period, two seconds passed between the moment Felix stepped on the doorsill and the moment he fired his first shot.”
On Barnes’ behalf, Barnes’ mother sued Felix under 42 U.S.C. §1983, claiming that Felix violated Barnes’ Fourth Amendment rights by using excessive force during the stop. The district court granted summary judgment to Felix, holding that Barnes’ mother had failed to show that Felix’s use of force was objectively unreasonable under Fifth Circuit’s “moment of the threat” rule. Under that rule, reasonableness narrowly depends on only “the situation existing ‘at the moment of the threat’ that sparked the fatal shooting.” Applying that rule, the district court focused its reasonableness analysis on the two seconds prior to Felix firing the first shot (when Felix was standing on the moving car’s doorsill). It concluded that, at that moment, “an officer could reasonably think himself ‘at risk of serious harm’,” and thus found no constitutional violation. The Fifth Circuit affirmed, concluding it was bound by its precedent establishing the “moment of the threat” rule. In an opinion by Justice Kagan, the Court vacated and remanded.
The Court explained that when determining if an officer’s use of force was excessive, the Fourth Amendment requires courts to ask whether the amount of force used was objectively reasonable. Objective reasonableness depends on the “totality of the circumstances.” Analyzing the totality of the circumstances requires courts to give “careful attention to the facts and circumstances” related to the incident. Relevant facts and circumstances could include the crime’s severity, the officer’s non-fatal actions during the stop, and the stopped person’s conduct—the latter being “always relevant.” Notably, held the Court, there is “no time limit” for this inquiry: “earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.” The Court concluded that the Fifth Circuit’s “moment of threat” rule conflicts with these well-established principles. It explained that the “moment of threat” rule improperly narrows the totality-of-the-circumstances inquiry to “only a single moment” in time and precludes courts from considering prior events that help establish the context in which force was used. The Court explicitly noted that it was not addressing “the different question Felix raise[d] . . . [of] whether or how an officer’s own ‘creation of a dangerous situation’ factors into the reasonableness analysis.”
Justice Kavanaugh wrote a separate concurring opinion, which Justices Thomas, Alito, and Barrett joined. Justice Kavanaugh did so to “add a few points about the dangers of traffic stops for police officers.” After noting a few reasons why traffic stops are inherently dangerous, Justice Kavanaugh opined that an officer has “no easy or risk-free answers” when he confronts a driver who decides to flee during a traffic stop. He further noted that an officer acting under such “highly stressful and unpredictable circumstances” must make split-second, “life-or-death decisions.”
Kousisis v. United States, 23-909.
The Court held that a person may be convicted of federal wire fraud even if he did not seek to cause the victim net economic loss. The Pennsylvania Department of Transportation (PennDOT) solicited bids for two restoration projects. As a condition of having received federal grant money for both projects, PennDOT required bidders for either project to “commit to subcontracting a percentage of the total contract amount” to a “disadvantaged business enterprise,” defined as a small business majority-owned and controlled by a socially- and economically-disadvantaged person. The subcontracted disadvantaged business had to perform a “commercially useful function.” Stamatios Kousisis was a project manager for the industrial-painting company Alpha Painting and Construction (Alpha). In that capacity, he submitted painting bids to PennDOT for both state restoration projects. The bids represented that Alpha would buy a portion of its supplies for the painting contracts from Markias, Inc., a prequalified disadvantaged business, in satisfaction of PennDOT’s disadvantaged-business requirements. PennDOT awarded two painting contracts to Alpha, and Alpha performed the painting satisfactorily. PennDOT later discovered that Kousisis and Alpha had “concocted” Markias and used it to generate inflated invoices, and that Markias did not provide any supplies. Rather, its only role was as “a paper pusher, funneling checks and invoices to and from Alpha’s actual suppliers.”
Kousisis and Alpha were later convicted by a jury of wire fraud and conspiracy to commit wire fraud under 18 U.S.C. §§1343 and 1349, respectively. Kousisis and Alpha moved for a judgment of acquittal. They argued that the Government could not prove they had obtained money or property because PennDOT had “received the full economic benefit of its bargain,” i.e., the satisfactory completion of the painting contracts, despite the lack of participation of a disadvantaged business. The district court and Third Circuit rejected the argument for the same reason. Wire fraud generally occurs when a person uses the wires to engage in deception and had money or property as an object of his fraud. 18 U.S.C. §1343. And the precise object of Kousisis and Alpha’s deceptive scheme was to obtain PennDOT’s money. In an opinion by Justice Barrett, the Court affirmed.
The Court concluded that economic loss is not a requirement for purposes of §1343. Wire fraud occurs when a defendant (1) devises a scheme (2) to obtain money or property (3) by means of false or fraudulent pretenses, representations, or promises. 18 U.S.C. §1343. The Court reiterated that “money or property,” as used in the second element, refers only to traditional property interests and requires the traditional property interest to be the “aim” of the defendant’s fraud, not just an “incidental byproduct” of it. With that understanding in mind, the Court observed that none of §1343’s elements mentions economic loss, “let alone require[s] it.” Nor does common law impose an economic-loss requirement. “When Congress uses a term with origins in the common law,” it is presumed that the term will be “interpreted by reference to its common-law pedigree.” But that principle does not apply when—as here—the term does not have a settled or widely-accepted meaning under common law. The Court explained that at common law the term “fraud” had an “expansive reach,” with there being “at least three” recognized forms of liability, the elements of which depended on the nature of the injury alleged. Plus, common-law courts “did not uniformly condition [a fraud] action . . . on the plaintiff’s ability to prove economic loss.”
In sum, held the Court, neither common law nor §1343’s language supports any economic-loss requirement for purposes of proving fraud. A person may therefore be convicted of federal wire fraud even if he did not seek to cause the victim net economic loss. This means the fact that PennDOT received something of value in its transactions with Kousisis and Alpha (i.e., the satisfactory painting) does not render Kousisis and Alpha’s conduct any less criminal. A “thing is no less ‘obtained’ simply because something else is simultaneously given in return.” Relatedly, the Court explicitly rejected the notion that Kousisis and Alpha’s scheme merely interfered with PennDOT’s regulatory power (which would not be a traditional property interest), as well as the notion that its receipt of money was merely an incidental byproduct of that scheme.
The Court further concluded that the “fraudulent-inducement theory” used to prosecute Kousisis and Alpha is not inconsistent with §1343, as Kousisis and Alpha argued. According to the fraudulent-inducement theory, a defendant commits wire fraud if he (1) devises a scheme (2) to induce the victim into a contract to obtain the victim’s money or property (3) by means of false or fraudulent pretenses. The Court explained: “No matter how long we stare at it, the broad, generic language of §1343 leaves us struggling to see any basis for excluding a fraudulent-inducement scheme.” The Court also concluded that the fraudulent-inducement theory is not inconsistent with the Court’s precedent, as Kousisis and Alpha asserted. For example, in Carpenter v. United States, 484 U.S. 19 (1987), and Shaw v. United States, 580 U.S. 63 (2016), the Court “rejected the argument that a fraud conviction depends on economic loss.” Because Kousisis and Alpha did not contest the materiality of their misrepresentations—materiality being a requirement for actionable fraud under a fraudulent-inducement theory—the Court declined to address the parties’ arguments about the applicable standard for determining materiality.
Justice Thomas joined the Court’s opinion in full but wrote separately to address the issue of materiality. He explained that materiality is not only important to avoid prosecuting “benign, everyday misstatements” as wire fraud, but also necessary when prosecuting wire fraud under a fraudulent-inducement theory. Justice Thomas provided four reasons why he thought the misrepresentations about Markias were not material. First, in his view, the contracts’ terms regarding the disadvantaged-business requirements “were irrelevant to the contracts’ fundamental purpose [of] bridge repair,” and they “had no bearing on [Kousisis and Alpha’s] ability to complete their projects.” Second, he believed that the disadvantaged-business requirements “appear to have been less important than contract terms going to the quality and timeliness of bridge repair.” Third, he opined that disadvantaged-business fraud schemes regularly occur and are a “substantial problem.” Thus, a reasonable contractor could conclude either that, “contract language notwithstanding, the Government does not actually consider [disadvantaged-business] compliance essential to its contracts” or that the Government “may be continuing performance on its contracts despite knowing that its counterparts frequently violate [disadvantaged-business] requirements.” Fourth, in Justice Thomas’ view, it is both questionable whether the Government could demonstrate the constitutionality of a “race-based classification system” like the disadvantaged-business program and “implausible to think that a ‘reasonable person’ would ‘attach importance’ to contract provisions that mandate constitutional violations.”
Justice Gorsuch issued an opinion concurring in part and concurring in the judgment to express concern about the need to prove injury when prosecuting fraud. In particular, he was troubled by footnote 5 of the majority opinion, which said that the injury requirement is satisfied whenever a defendant obtains property “that a victim ‘would not otherwise have parted with’ by means of a material misrepresentation.” Justice Gorsuch explained that an injury at common law meant the victim was deprived of the benefit of his bargain and that mostly all states had adopted a similar rule by 1952. He thus took issue with the Court’s statement that obtaining money or property by means of a material misrepresentation is, by itself, sufficient proof of an injury for purposes of the federal fraud statute. In other words, he took the Court to be improperly suggesting that wire fraud does not separately require proof of an injury. He opined that such a proposition is faulty because “obtaining money or property by means of a material misrepresentation” will usually—but not always—injure the victim, meaning that “harmless lies” could be prosecuted as fraud. He noted that it was for this reason that common-law courts had “usually demanded” proof of a benefit-of-the-bargain injury. And while there is a materiality requirement, he did not believe that materiality can “shoulder all the work traditionally performed by [the] injury requirement.” He concluded that the Court’s “footnoted commentary” was not supported by the law, was an unnecessary addition to the opinion, and should be treated as dicta.
Justice Sotomayor wrote a separate concurrence to clarify the extent of her agreement with the Court’s opinion. She agreed with it insofar as it addressed the narrow question presented regarding Kousisis and Alpha’s theory of an economic-loss requirement for fraud. She noted that rejecting their theory is “all that is necessary to resolve this case.” Beyond answering that question, she did not “endorse” the Court’s approach, in particular its decision “to opine on a class of fraudulent-inducement cases distinct from this one,” wherein “a defendant provides exactly the goods or services” promised “but lies in other ways to induce the transaction” (such as in the types of cases described by Justice Gorsuch in his concurrence). Justice Sotomayor also opined that Kousisis and Alpha’s misrepresentations were material, regardless of which party’s standard of materiality is used for the determination. She disagreed with Justice Thomas’ suggestion that, merely because fraud is rampant, it somehow undermines the misrepresentations’ materiality. She believed that Justice Thomas’ view “turn[s] contract law upside down” because it “relies on the premise that, whenever fraud is prevalent, no reasonable contractor can expect compliance, even where the contract expressly deems compliance material.” She also disagreed with his suggestion that materiality could turn on the constitutionality of the disadvantaged-business program, noting that Kousisis and Alpha “at no pertinent time raised a [constitutional] challenge . . . and the [program’s] statutory scheme remains good law.”
II. Case Granted Review
Fernandez v. United States, 24-556.
The question presented, as reframed by the Court, is “[w]hether a combination of ‘extraordinary and compelling reasons’ that may warrant a discretionary sentence reduction under 18 U.S.C. §3582(c)(1)(A) can include reasons that may also be alleged as grounds for vacatur of a sentence under 28 U.S.C. §2255.” Under 18 U.S.C. §3582(c)(1)(A), called the “compassionate release” statute and part of the First Step Act of 2018, a district court has discretion to reduce a term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction.”
Petitioner Joe Fernandez is currently serving a mandatory life sentence for two murders that occurred in 2000. Fernandez has maintained his innocence in those crimes. The convictions were based largely on the testimony of a cooperating witness, notwithstanding that witness’s admittance that he had a history of lying to the government, evidence that the witness had a motive to lie to protect his brother, and inconsistencies between the witness’s testimony and physical evidence at trial. That witness and three other co-defendants received significantly shorter sentences than Fernandez, ranging from 2 years to 30 years. In November 2021, Fernandez moved the district court to reduce his sentence under the compassionate release statute, §3582(c)(1)(A). The court granted the motion based on two factors. First, the court found “reason to question the verdict” and “strong concerns” regarding the sufficiency and reliability of the evidence at trial. Second, the court found that there was a large disparity between Fernandez’s mandatory life sentence and the sentences of his co-defendants. The district court stated that neither of these reasons questioned the legality of Fernandez’s conviction but supported his application for compassionate release as they were “extraordinary and compelling.” The Second Circuit reversed. 104 F.4th 420.
The Second Circuit held that the district court was not allowed to consider Fernandez’s potential innocence under the compassionate release statute and that Fernandez’s potential innocence arguments were “in substance” attacking the legality of the conviction. The court reasoned that such claims were only cognizable in §2255 habeas proceedings or direct appeals. The court further held that absent “unusual circumstances,” the disparity of sentences between co-defendants would not be considered “extraordinary and compelling.”
Fernandez’s argument to the Court centers on the fact that Congress has not placed textual limitations preventing district courts from considering factors such as potential innocence or sentencing disparity for compassionate release. Without textual limitations, Fernandez posits that it is within the district court’s broad discretion to consider those factors, and any other factors, in its modification of sentencing decisions. Fernandez notes that the Sentencing Commission retained the “Other Reasons” catchall ground previously found in its policy when it recently amended its statement. He further argues that Congress placed only one textual limitation on district courts’ discretion, in 28 U.S.C. §994(t), which provides that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” Impliedly, therefore, Congress permitted all other considerations. Fernandez also asserts that the Second Circuit’s decision deepens a circuit split on the issue.
The United States argues that Fernandez overstates the disagreement in the circuits, and to the extent that disagreement does exist it has been rendered insignificant by the Sentencing Commission’s amended policy statement. The Sentencing Commission guidelines, according to the federal government, expanded the list of “specified extraordinary and compelling reasons that can warrant sentence reductions,” but did not include the claims Fernandez raises. The United States insists that the “overarching principle” of federal sentencing law is that a “federal court generally ‘may not modify a term of imprisonment once it has been imposed.’” It asserts that “potential innocence,” either alone or in combination with sentencing disparity, is neither “extraordinary” nor “compelling” for a sentence reduction under §3582(c)(1)(A). The United States maintains that because Fernandez could raise these allegations on direct appeal or in a §2255 proceeding, the claims cannot be extraordinary or compelling by the plain meaning of those terms.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Campbell, Supreme Court Fellow
- Gracynthia Claw, Supreme Court Fellow
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