July 8, 2025 | Volume 32, Issue 17
This Report summarizes opinions issued on June 20, 2025 (Part I); and cases granted review on June 23, 2025 (Part II).
Opinions
Diamond Alternative Energy, LLC v. EPA, 24-7.
By a 7-2 vote, the Court held that fuel producers have Article III standing to challenge a waiver EPA granted California in 2022 under the Clean Air Act that would allow California to require automakers to manufacture more electric vehicles and fewer gasoline-powered vehicles. The Clean Air Act requires EPA to periodically “prescribe . . . standards” that limit emissions of certain air pollutants from new motor vehicles. The Act also preempts state standards “relating to the control of emissions from new motor vehicles.” But the Act’s preemption provision exempts California, allowing that state to adopt more stringent standards when needed to meet “compelling and extraordinary conditions.” And other states may adopt California’s stricter standards. This case concerns California’s 2012 request for EPA approval of new California standards targeting greenhouse-gas emissions from new motor vehicles. “As relevant here, those regulations generally require automakers (i) to limit average greenhouse-gas emissions across their fleets of new motor vehicles sold in the State and (ii) to manufacture a certain percentage of electric vehicles as part of their vehicle fleets. The greenhouse-gas emissions limits remain in force indefinitely into the future, and the specific requirements for electric vehicles in new vehicle fleets run through model year 2025.” (Citation omitted.) President Obama’s EPA allowed those regulations to take effect; President Trump’s EPA rescinded approval; and President Biden’s EPA reinstated approval. “In 2022, after EPA reinstated approval of California’s 2012 regulations, several fuel producers”―who “manufacture and sell automobile fuels such as gasoline, diesel, and ethanol”―“sued EPA in the D. C. Circuit. The fuel producers primarily argued that EPA lacked authority under the Clean Air Act to approve the California regulations.” Although EPA did not argue that the fuel producers lacked Article III standing, California and other intervenor states did so argue. “The D.C. Circuit agreed with California and held that the fuel producers lacked Article III standing. The court explained that redressability depended on how third-party automakers would act in the absence of California’s fleet-wide emissions standards and electric-vehicle mandate. According to the D.C. Circuit, the fuel producers failed to ‘cite any record evidence’ or ‘file additional affidavits or other evidence’ demonstrating that automakers would respond to invalidation of the regulations by producing fewer electric vehicles and more gasoline-powered vehicles.” (Citations omitted.) In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Court observed that “neither EPA nor California meaningfully disputes injury in fact or causation. But they argue that the fuel producers did not establish redressability.” The Court found redressability, concluding that “invalidating the California regulations would likely redress at least some of the fuel producers’ monetary injuries. Even ‘one dollar’ of additional revenue for the fuel producers would satisfy the redressability component of Article III standing. And . . . it is ‘likely’ that invalidating the California regulations would result in more revenue for the fuel producers from additional sales of gasoline and other liquid fuels.” (Citations omitted.) The Court explained that “commonsense economic principles support the fuel producers’ standing. The California regulations force automakers to manufacture more electric vehicles and fewer gasoline-powered vehicles. The standards force automakers to produce a fleet of vehicles that, as a whole, uses significantly less gasoline and other liquid fuels. California’s regulation of automakers’ vehicle fleets in turn will likely ‘cause downstream or upstream economic injuries to others in the chain,’ such as producers of gasoline and other liquid fuels.” (Citation omitted.)
The Court rejected EPA and California’s argument “that the new vehicle market has developed in a way that even if the California regulations are invalidated, automakers would not likely manufacture or sell more gasoline-powered cars than they do now.” The Court found that argument “odd”: “if invalidating the regulations would change nothing in the market, why are EPA and California enforcing and defending the regulations?” “In all events,” stated the Court, “record evidence confirms what common sense tells us[.]” The Court pointed to declarations submitted by the fuel producers; to statements California itself made in 2021 “when asking EPA to reinstate the regulations”; to statements by EPA; and to predictions made by automakers who intervened on the side of California and the other states. The Court closed by saying that it would be a “fairly rare and unusual scenario” for a market to “permanently and dramatically change[] such that invalidating a challenged regulation would have no effect on the market in question, thereby defeating redressability.” That’s because “governments do not usually continue to enforce and defend regulations that have no continuing effect in the relevant market.” And it’s because “[p]redicting developments in complex markets can be a difficult and uncertain endeavor, particularly when various governments’ regulatory, spending, and tax policies are at play.” Denying standing on EPA and California’s theory “requires a degree of economic and political clairvoyance that is difficult for a court to maintain.”
Justice Sotomayor filed a dissenting opinion. She noted that, “[d]ue in part to petitioners’ own briefing, the D.C. Circuit thought that neither of California’s regulations would apply beyond model year 2025. So, when the court considered redressability, it asked only whether vacatur of the rules ‘would be substantially likely to result in any change to automobile manufacturers’ vehicle fleets by Model Year 2025.’” (Citation omitted.) But all now agree that only one of the two California rules expires in 2025. Justice Sotomayor, therefore, “would simply have vacated the case and remanded it to the D.C. Circuit to reconsider its redressability analysis, keeping in mind the now corrected timeline for the challenged vehicle-emissions programs.”
Justice Jackson also filed a dissenting opinion. Justice Jackson asserted that “[t]he Court shelves its usual case-selection standards to revive a fuel-industry lawsuit that all agree will soon be moot (and is largely moot already). And it rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs. This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.” On the specifics here, she maintained that “petitioners did not challenge the program at its inception. Instead, they challenged it nearly a decade after California obtained its preemption waiver. By that point, consumer demand for electric and low-emissions vehicles had grown many times over, and automakers had invested billions to transform their production and marketing strategies. As California’s expert attested, by the time petitioners filed suit, automakers were ‘already selling more qualifying vehicles in California than the State’s standards require.’” And several major automakers agreed in the court below. In the end, Justice Jackson said, we are left with uncertainty―meaning petitioners failed to meet their burden of showing redressability.
Stanley v. City of Sanford, Fla., 23-997.
By a 7-2 vote, the Court held that to prevail under Title I of the Americans with Disabilities Act, 42 U.S.C. §12112(a), “a plaintiff must plead and prove that she held or desired a job, and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination.” This limits when a retired employee who does not hold or seek a job may obtain relief under the ADA. Petitioner Karyn Stanley started working as a firefighter for the City of Sanford, Florida in 1999. “At the time the City hired her, it offered health insurance until age 65 for two categories of retirees: those who retired with 25 years of service, and those who retired earlier because of a disability. In 2003, though, the City changed its policy. Going forward, it said, it would continue to pay for health insurance up to age 65 for retirees with 25 years of service. But for those who retired earlier due to disability, the City announced, it would now provide health insurance for just 24 months, unless the retiree started receiving Medicare benefits sooner. At some point after the City revised its policy, . . . [Stanley] began to suffer from an unspecified disability. And, in 2018, that ‘disability forced her to retire’ earlier than she had planned. Under the City’s revised policy, that meant she was entitled to at most 24 months of health insurance.” (Citations omitted.) Stanley then sued the City under (among other laws) the ADA, §12112(a), asserting that “[p]roviding different health-insurance benefits to those who retire with 25 years of service and those who retire earlier due to disability . . . amounted to impermissible discrimination based on disability.” The district court dismissed her ADA claim, and the Eleventh Circuit affirmed. It ruled that “§12112(a) does not reach allegations of discrimination against a retiree ‘who does not hold or desire to hold an employment position’ that she is capable of performing with reasonable accommodation.” In an opinion by Justice Gorsuch, the Court affirmed.
Section 12112(a) makes it unlawful for a covered employer to “discriminate against a qualified individual on the basis of disability in regard to . . . compensation,” among other things. And a “qualified individual,” in turn, is someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that [she] holds or desires.” §12111(8). The Court first noted that these key provisions speak in the present tense, which “suggest[s] that the statute does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.” The Court found this assessment reinforced by the statute’s “reasonable accommodation” provision, which “refers to things like ‘job restructuring,’ modifying ‘existing facilities used by employees,’ and altering ‘training materials or policies.’ §12111(9). Those kinds of accommodations make perfect sense when it comes to current employees or applicants. But it is hard to see how they might apply to retirees who do not hold or seek a job.” The Court found this reading supported by other ADA provisions and by contrasting the key language here with relevant language in Title VII.
The Court rejected various arguments made by Stanley and the dissent. Among them was the argument the Court described as follows: “Title I allows ‘any person alleging discrimination on the basis of disability’ to sue. §12117(a). And a plaintiff may file that suit whenever she ‘is affected by’ discrimination. §2000e–5(e)(3)(A). Finally, such suits can challenge discriminatory ‘compensation.’ §12112(a). Putting this all together, Ms. Stanley and the dissent reason, this case checks all the boxes: Ms. Stanley is a ‘person’ suing about discriminatory ‘compensation’ that ‘affected’ her during retirement. And that is all Title I requires—making the ‘qualified individual’ language . . . largely beside the point.” (Citations omitted.) The Court responded that “§12112(a) does not protect ‘compensation’ as such. Instead, it bars employers from ‘discriminat[ing] against a qualified individual on the basis of disability in regard to . . . compensation.’ (Emphasis added.) In other words, the statute protects people, not benefits, from discrimination. And the statute also tells us who those people are: qualified individuals, those who hold or seek a job at the time of the defendant’s alleged discrimination. §12111(8). So rather than resolve anything, this argument takes us right back to where we started.”
A 4-Justice plurality then took up and rejected an additional argument Stanley asserted in her merits briefing: that she satisfies the standard the Court adopted. The plurality found that the most “promising” argument she made on that score was that she was a qualified individual at the time she “bec[ame] subject to a discriminatory compensation decision or other practice.” §2000e–5(e)(3)(A). The United States argued as amicus that “during the 2-year period between her diagnosis [of Parkinson’s] in 2016 and her retirement in 2018, Ms. Stanley was both ‘an individual with a disability’ and a ‘qualified individual’ who ‘could still perform the essential functions of her job.’” But, found the plurality, Stanley’s complaint “says nothing about the timing or nature of her diagnosis, nor does it allege that she worked for any period of time with a disability.” And before the Eleventh Circuit, Stanley “affirmatively disavowed the government’s theory.” The plurality thus concluded that, while “[a] variety of suits involving retirement benefits might well proceed under” the rule the Court adopted here, “given how this particular case comes to us, we cannot say that the court of appeals erred in upholding the dismissal of Ms. Stanley’s complaint.”
Justice Thomas filed an opinion, which Justice Barrett joined, which concurred in part and concurred in the judgment. Justice Thomas wrote to “express [his] concern with the increasingly common practice of litigants urging this Court to grant certiorari to resolve one question, and then, after we do so, pivoting to an entirely different question. This case exemplifies the problem.” He therefore would not opine on the issue the plurality addressed.
Justice Sotomayor filed an opinion concurring in part and dissenting in part. She generally agreed with Justice Jackson’s dissent on the rule the Court adopted. But on the alternative ground for affirmance put forth by Stanley, she agreed with the plurality that Stanley forfeited the argument. But because that part of Justice Gorsuch’s “makes clear that Title I may well provide relief for retirees like Stanley,” she joined that portion of Justice Gorsuch’s opinion.
Justice Jackson filed a dissenting opinion, which Justice Sotomayor joined in part. In her view, “[o]n the facts as alleged in her complaint, the City subjected Lt. Stanley to the discriminatory policy during her employment, not only after she retired.” Justice Jackson disagreed with the plurality’s bases for not applying that theory here. And she asserted that “plowing forward to make new pronouncements of law when the alleged facts do not implicate the rule we are announcing is a mistake.” Turning to the rule the Court adopted, Justice Jackson stated: “The text of the statute itself says nothing—zero—about the preemployment or postemployment timing of an act of disability discrimination. Nevertheless, the Court homes in on one isolated provision (the qualified-individual definition), detaches it from its place in the overall scheme, and converts it into a strict limitation on the temporal reach of Title I’s protection.” In her view, “[w]hat the text of Title I does plainly convey is broad protection for workers against disability discrimination with respect to job-related benefits.”
In the part of her opinion joined by Justice Sotomayor, Justice Jackson found it “perfectly permissible” to read the qualified-individual provision “as setting a conditional mandate: If a plaintiff relies on Title I regarding a job she seeks to obtain or hold, then she must be able to perform the essential functions of that job. . . . Read that way, the qualified-individual mandate operates to protect employers from having to extend employment to those who cannot do a job. It says nothing about the time at which the alleged discrimination must occur relative to one’s period of employment.” (Citation omitted.) Further, “[r]eading Title I to prohibit postemployment discrimination in the provision of retirement benefits . . . aligns with the broader purposes of the ADA. Retirement benefits are an essential aspect of the ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ that the ADA promotes. §12101(a)(7). . . . [A]nd Congress wanted to ensure that disabled Americans could enjoy them, too. §12101(a)(8).” Justice Jackson insisted that “[l]ooking to a statute’s purposes helps us to understand—not override— that statute’s text.”
McLaughlin Chiropractic Associates v. McKesson Corp., 23-1226.
By a 6-3 vote, the Court held that “[t]he Hobbs Act does not preclude district courts in enforcement proceedings from independently assessing whether an agency’s interpretation of the relevant statute is correct. Here, therefore, the District Court should interpret the [Telephone Consumer Protection Act (TCPA)] under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” Among other things, the TCPA prohibits a business from sending an “unsolicited advertisement” by fax to a “telephone facsimile machine” absent an opt-out notice informing recipients that they can choose not to receive future faxes. McLaughlin Chiropractic Associates sued McKesson Corp. under the TCPA’s private right of action, alleging that McKesson violated the unsolicited fax ban. The district court certified a class of fax recipients, but it drew “no distinction between faxes received on traditional fax machines and faxes received through online fax services.” This became important when, in a separate case, the FCC issued an order—known as the Amerifactors order—ruling that “an online fax service is not a ‘telephone facsimile machine,’” meaning the TCPA does not prohibit faxes received through online fax services. The district court in McLaughlin’s case deemed the Amerifactors order to be “a final, binding order” that dictated its interpretation of the TCPA. It thus granted summary judgment to McKesson and against McLaughlin on the claims involving faxes received through online fax services. The Ninth Circuit affirmed. In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Hobbs Act provides in relevant part: “The court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communication[s] Commission made reviewable by section 402(a) of title 47.” 28 U.S.C. §2342(1). Through other related provisions, the Hobbs Act provides for pre-enforcement review of an FCC order in a court of appeals. The issue here was “whether the Hobbs Act bars different parties in subsequent enforcement proceedings from arguing—and district courts from concluding—that the agency incorrectly interpreted the statute.” The Court answered no. The Court observed that the Hobbs Act “neither expressly preclude[s] nor expressly authorize[s] judicial review in subsequent enforcement proceedings.” It then ruled that “[f]undamental principles of administrative law establish the proper default rule: In an enforcement proceeding, a district court must independently determine for itself whether the agency’s interpretation of a statute is correct.” The Court based that ruling on the presumption of judicial review of agency action; on §703 of the Administrative Procedure Act, which codifies that presumption; and on Court precedents holding “that a party usually may seek judicial review of an agency’s rule or order in an enforcement proceeding.” The Court added that “[i]t would be impractical—and an enormous waste of resources—to demand that every potentially affected party bring or join pre-enforcement Hobbs Act challenges against every agency rule or order that might possibly affect them at some point in the future.”
The Court rejected arguments advanced by McKesson and the federal Government. They first relied on the language in the Hobbs Act declaring that courts of appeals shall have “exclusive jurisdiction” to determine the validity of agency orders. “They argue that if the district court in an enforcement proceeding could disagree with an agency’s statutory interpretation, the district court would in essence ‘determine the validity’ of the order—thereby contravening the Hobbs Act’s grant of exclusive jurisdiction to the court of appeals to do so in a pre-enforcement suit.” Disagreeing, the Court explained that “when exercising judicial review in an enforcement proceeding, a district court may consider the validity of the agency order, but the court does not ‘determine the validity’ of that order in the sense of entering a declaratory judgment, which is how that phrase is used in §2342. Therefore, district court review does not conflict with the Hobbs Act.” Put another way, “[u]nder the Hobbs Act, the courts of appeals have exclusive jurisdiction to hear pre-enforcement challenges, meaning that district courts may not entertain those pre-enforcement suits. That language does not bar district courts in enforcement proceedings from independently interpreting the meaning of the statute at issue.” The Court next distinguished Yakus v. United States, 321 U. S. 414 (1944), and two Hobbs Act cases upon which McKesson and the Government relied. Finally, the Court rejected policy arguments put forth by McKesson and the Government.
Justice Kagan issued a dissenting opinion, which Justices Sotomayor and Jackson joined. Justice Kagan maintained that, “[b]y its terms, the Hobbs Act gives courts of appeals exclusive authority to ‘determine the validity’ of specified agency actions. ‘Exclusive,’ of course, means courts of appeals alone, not district courts.” And when a district court in an enforcement proceeding rejects an FCC order, it is “determining the validity” of that order as a matter of plain English. Justice Kagan added that Congress enacted the Hobbs Act against the backdrop of Court opinions―such as Yakus―holding that statutes similar to the Hobbs Act “applied whenever a litigant’s claim or defense called agency action into question.” Justice Kagan criticized the Court’s use of the default rule of judicial reviewability, insisting that the rule applies only when Congress is taking away all judicial review of an agency’s decision. “The presumption does not operate when Congress, rather than eliminating judicial review, has channeled it in one direction or another.” As a practical matter, said Justice Kagan, the Court’s ruling “undermines the certainty and finality Congress sought in designing a mechanism for judicial review; it subjects all administrative schemes, and the many businesses and individuals relying on them, to the ever-present risk of disruption.”
FDA v. R.J. Reynolds Vapor Co., 23-1187.
By a 7-2 vote, the Court held that “retailers who would sell a new tobacco product if not for the FDA’s denial order have the right to seek judicial review” under the Family Smoking Prevention and Tobacco Control Act (TCA). The TCA “requires manufacturers to apply for and receive approval from the [FDA] before marketing any ‘new tobacco product.’“ “When the FDA denies premarket authorization, ‘any person adversely affected’ by the denial may petition for judicial review in either the D.C. Circuit or ‘the circuit in which such person resides or has their principal place of business.’ [21 U.S.C.] §387l(a)(1).” The FDA denied R.J. Reynolds Vapor Company’s (RJR Vapor’s) application for authorization to market its e-cigarettes, which included menthol- and mixed-berry-flavored Vuse Alto products. “RJR Vapor is incorporated and has its principal place of business in North Carolina; thus, had it filed alone, its options were the D.C. Circuit and the Fourth Circuit. Rather than filing alone, however, RJR Vapor combined forces with retailers of Vuse Alto products,” including retailers based in Texas and Mississippi. RJR Vapors and the retailers filed a joint petition in the Fifth Circuit challenging FDA’s denial of its application. “The FDA asked the court to either dismiss the joint petition for lack of venue or transfer it to the D.C. Circuit or Fourth Circuit. . . . A divided Fifth Circuit panel denied the FDA’s motion and concluded that venue was proper over the joint petition to review the FDA’s denial order.” In an opinion by Justice Barrett, the Court affirmed.
The Court explained that the TCA authorizes “any person adversely affected” by the FDA’s “denial” to challenge that denial. Applying the zone-of-interest test in the Administrative Procedure Act context, the Court has interpreted “adversely affected” “broadly, as covering anyone even ‘arguably within the zone of interests to be protected or regulated by the statute . . . in question.’” And it has borrowed that test when interpreting the term outside the APA context. The Court concluded that retailers meet that test here: “If the FDA denies an application, the retailers, like the manufacturer, lose the opportunity to profit from the sale of the new tobacco product—or, if they sell the product anyway, risk imprisonment and other sanctions.”
The Court rejected the FDA’s contention “that the TCA’s text and structure reflect Congress’s choice to offer judicial review only to manufacturers denied permission to market a tobacco product.” “The FDA emphasizes that TCA applications result in an ‘order,’ §387j(c)(1)(A), and that ‘orders’ may normally be challenged only by the participants in the proceeding that led to the order. It also asserts that other provisions of the statute reflect an overriding concern with the applicant manufacturer[.]” The Court held, however, that “[t]hese arguments, which focus almost entirely on §387j, cannot be squared with §387l(a)(1)—the provision that creates the cause of action.” The Court pointed to the TCA’s use of the word “any” and (again) “person adversely affected.” “The FDA tries to explain away the breadth of §387l(a)(1) by stressing that it applies not only to denial orders under §387j(c), but also to regulations promulgated under §387g.” But, found the Court, Congress brought those two contexts “under the same umbrella, using the same language—’any person adversely affected’—to cover both[.]” The Court added that “[w]hen the FDA issues an order withdrawing an existing approval of an application to market a new tobacco product, only the ‘holder of [the] application’ may challenge the order. §387j(d)(2). The difference between ‘holder of [the] application’ and ‘any person adversely affected’ is conspicuous.” The Court declined to reach an alternative argument the FDA advanced (but failed to make in the Fifth Circuit): that “each petitioner in a joint petition for review must independently establish venue.”
Justice Jackson issued a dissenting opinion, which Justice Sotomayor joined. Justice Jackson asserted that, “because the zone-of-interest test is premised on the idea that interpreting a seemingly unbounded cause of action requires exploration into what Congress wanted in the context of that particular statute, we look to ‘the particular provision of law upon which the plaintiff relies’ for his legal claim—that is, ‘the statutory provision whose violation forms the legal basis for his complaint.’” Here, RJR Vapor’s claim is that the FDA violated §387j(c) when it denied the marketing application. “So, it is that statutory provision, not the cause of action itself, that is the proper focus of the zone-of-interest inquiry.” And, Justice Jackson found, “§387j(c) is part of a statutory scheme that establishes an adjudicatory process between a manufacturer and the FDA—and no one else.” Retailers, by contrast, “are differently situated. As a general matter when a manufacturer applies for authorization to market a new product, retailers are mere bystanders—they do not yet have any skin in the game.” Justice Jackson found that “intuition” confirmed by §387j(d), which “states that the agency’s decision to withdraw its approval of a tobacco product may be challenged in court by only the ‘holder of [the] application subject to’ the withdrawal order—in other words, the manufacturer alone. §387j(d)(2). . . . Why would Congress have wanted retailers to be able to seek judicial review of the agency’s initial denial (at which point they generally lack reliance interests), but not when the agency withdraws its approval (at which point they generally will have such interests)?” Justice Jackson closed by criticizing the Court’s decision as allowing RJR Vapor to forum shop, in defiance of Congress’ intent.
Fuld v. Palestine Liberation Org., 24-20.
Without dissent, the Court held that the Promoting Security and Justice for Victims of Terrorism Act of 2019’s (PSJVTA’s) means of establishing personal jurisdiction over the Palestine Liberation Organization and the Palestinian Authority does not violate the Fifth Amendment’s Due Process Clause. The Antiterrorism Act of 1990 (ATA) “creates a civil treble damages cause of action for any U.S. national injured or killed ‘by reason of an act of international terrorism.’” “The ATA supplied the underlying cause of action in both lawsuits now before [the Court]. The first was brought by a group of American citizens (and their estates and survivors) injured in terror attacks in Israel. It was filed in 2004 in the United States District Court for the Southern District of New York. See Sokolow v. Palestine Liberation Org., No. 1:04–cv–397. The case went to trial, and in 2015 a jury found respondents liable under the ATA. The jury awarded the plaintiffs $218.5 million in damages, which was trebled to $655.5 million.” (Citations omitted.) The Second Circuit vacated the district court’s judgment and directed dismissal for lack of personal jurisdiction. Congress responded by enacting the Anti-Terrorism Clarification Act of 2018 (ATCA), which “deemed defendants ‘to have consented to personal jurisdiction’ if they engaged in certain activities in the United States or accepted particular forms of U.S. foreign assistance.” The Second Circuit declined to recall its mandate based on the ATCA. While the Sokolow plaintiffs’ petition for certiorari was pending, Congress enacted the PSJVTA. This law (which superseded the ATCA) provided that the Palestine Liberation Organization and the Palestinian Authority “shall be deemed to have consented to personal jurisdiction” in certain terrorism-related civil suits if they (1) make payments to imprisoned people who committed terrorist acts against U.S. nationals or to the families of persons killed while committing such terrorist acts; or (2) conduct activity physically in the United States (excluding their United Nations mission and its ancillary activities).
The Court then granted the Sokolow plaintiffs’ certiorari petition, vacated the Second Circuit judgment, and remanded for “further consideration in light of the [PSJVTA].” “A few days after [the] remand, a different set of plaintiffs—the family of an American citizen stabbed in a 2018 attack in the West Bank—sued respondents under the ATA in the Southern District of New York, and invoked the PSJVTA as the basis for personal jurisdiction. See Fuld v. Palestine Liberation Org., No. 1:20–cv–3374[.] Both sets of plaintiffs—the Sokolow plaintiffs back in District Court and the Fuld plaintiffs there for the first time—alleged that respondents had engaged in conduct sufficient to trigger both PSJVTA predicates.” Both courts agreed, but they also “agreed with respondents that ‘an exercise of jurisdiction under either of the PSJVTA’s factual predicates is unconstitutional.’” “The Second Circuit consolidated the cases and affirmed. Following Circuit precedent ‘holding that the due process analyses under the Fifth and Fourteenth Amendments parallel one another in civil cases,’ the panel explained that the statute’s factual predicates involve conduct insufficient to establish personal jurisdiction.” In an opinion by Chief Justice Roberts, the Court reversed and remanded.
The Court first held that, “[g]iven the distinct territorial reach of the Federal Government’s sovereign power, it makes little sense to mechanically import the limitations that the Fourteenth Amendment imposes on the authority of state courts, which is restricted consonant with the States’ more constrained sovereign spheres.” The Court explained that its Fourteenth Amendment due process jurisprudence emphasized the importance of interstate federalism and the need to ensure that states do not act outside their lawful powers. “These interstate federalism concerns, however, do not apply to limitations under the Fifth Amendment upon the power of the Federal Government and the corollary authority of the federal courts.” Instead, “the Due Process Clause of the Fifth Amendment necessarily permits a more flexible jurisdictional inquiry commensurate with the Federal Government’s broader sovereign authority.”
The Court declined, though, to “delineate the outer bounds of the Federal Government’s power, consistent with due process, to hale foreign defendants into U.S. courts.” Rather, the Court merely held that “[t]he PSJVTA ties federal jurisdiction to conduct closely related to the United States that implicates important foreign policy concerns”―which suffices for Fifth Amendment due process purposes. The Court elaborated: “In respectively passing and signing the PSJVTA into law, Congress and the President made a considered judgment to subject the PLO and PA to liability in U.S. courts as part of a comprehensive legal response to ‘halt, deter, and disrupt’ acts of international terrorism that threaten the life and limb of American citizens. . . . The PSJVTA thus reflects the political branches’ balanced judgment of competing concerns over ‘sensitive and weighty interests of national security and foreign affairs’ and fairness to these particular defendants—entities with which the Federal Government has complex, longstanding relationships in which concerns over terrorism have long been at the fore.” The “PSJVTA is also suitably limited to those ends,” applying in only a narrow category of cases and triggered by a narrow set of predicates. The Court closed by declining to resolve whether the Fifth Amendment due process analysis includes (as the Fourteenth Amendment analysis does) an “inquiry into the reasonableness of the assertion of jurisdiction in the particular case.” The Court reasoned that, even if that analysis applies, the PSVJTA “easily” satisfies it.
Justice Thomas filed an opinion concurring in the judgment, which Justice Gorsuch joined in part. In Justice Thomas’ view, the original understanding of the Fifth Amendment’s Due Process Clause shows that no limits were placed “on the Federal Government’s power to extend personal jurisdiction over respondents.” In the part of his opinion not joined by Justice Gorsuch, Justice Thomas expressed “skeptic[ism] that entities such as the” PLO and PA―which are “foreign bodies that are not recognized as sovereign by the United States, but that nevertheless carry out governmental functions”―“enjoy any constitutional rights at all, let alone qualify as ‘person[s]’ for purposes of the Fifth Amendment.” Various “courts’ and the Executive’s determinations that foreign sovereigns do not fall within the ‘person[s]’ protected by the Fifth Amendment’s Due Process Clause seem very likely correct, and it is difficult to see why the Constitution would afford better treatment to foreign nonsovereign governmental entities.” Justice Thomas then asserted that, in his view, the Due Process Clause does not impose “any limits on the legislative power.” Rather, “the Due Process Clause may have originally been understood to require only that our Government ‘proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions,’ before depriving someone of life, liberty, or property.”
In the section of his opinion joined by Justice Gorsuch, Justice Thomas asserted that “[t]he Fifth Amendment was never understood to constrain Congress’s ability to extend federal jurisdiction. The Federal Government has always possessed the power to extend its jurisdiction beyond the Nation’s borders, and, as understood in 1791, the Fifth Amendment did not limit this sovereign prerogative. Rather, insofar as any limits on extraterritorial jurisdiction existed, they stemmed from general principles of international law. But, those principles were defeasible, subconstitutional rules that the sovereign could override through clear command. This understanding respects the Constitution’s design by reserving matters of foreign affairs to the political branches.”
Esteras v. United States, 23-7483.
By a 7-2 vote, the Court held that a district court, in deciding whether to revoke a term of supervised release and require reimprisonment, may not consider factors set forth in 18 U.S.C. §3553(a)(2)(A), which speak to the “the need for the sentence imposed,” “the seriousness of the offense,” and “to promote respect for the law, and to provide just punishment for the offense.” A court may revoke a term of supervised release and require reimprisonment only “after considering” an enumerated list of sentencing factors: those “set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” Conspicuously missing from this list is §3553(a)(2)(A). Edgardo Esteras therefore objected when a district court revoked his supervised release and ordered reimprisonment after remarking that Esteras was “no stranger to law violations and no stranger to federal court” and that his previous drug sentences had been “rather lenient.” The district court acknowledged that it took into account the §3553(a)(2)(A) factors. But it concluded that it may do so. The Sixth Circuit affirmed. In an opinion by Justice Barrett, the Court vacated and remanded.
The Court observed that the four §3553(a)(2) factors reflect the “four considerations—retribution, deterrence, incapacitation, and rehabilitation—[that] are the four purposes of sentencing generally.” The excluded (a)(2)(A) factor goes to retribution. And “[i]n the context of a revocation hearing, the ‘offense’” for which (a)(2) seeks retribution “is the underlying crime of conviction, not the violation of the supervised-release conditions.” The Court concluded that Congress’ exclusion of such retribution from the enumerated list of sentencing factors controls under the doctrine of “expressio unius est exclusio alterius”—”in plain English, ‘expressing one item of [an] associated group or series excludes another left unmentioned.’” The Court found that “canon has particular force here because the §3553(a) sentencing factors constitute an ‘established series,’ such that any ‘omission’ from that series necessarily ‘bespeaks a negative implication.’” The Court further found that “Congress’s decision to exclude retribution from the calculus also comports with the role of supervised release in our current criminal justice scheme.” Supervised release fulfills a rehabilitative purpose. “So when a defendant violates the conditions of his supervised release, it makes sense that a court must consider the forward-looking ends of sentencing (deterrence, incapacitation, and rehabilitation), but may not consider the backward-looking purpose of retribution.” The Court also found its conclusion supported by its precedents.
The Court rejected the federal Government and the dissent’s counterarguments. “First, the Government and the dissent read the exclusion of §3553(a)(2)(A) as supporting a different inference—namely, that a district court must consider the enumerated factors but need not consider the unenumerated ones, such as §3553(a)(2)(A).” The Court disagreed, noting that “on the Government’s view, a court may ‘consider’ an enumerated factor but give it no weight. The difference between saying that a court must consider a given factor (but may give it no weight) and saying that a court may consider a given factor (if the court chooses) is negligible. Why would Congress have bothered to exclude §3553(a)(2)(A) from the list?” “Next, the Government and the dissent argue that Esteras’s reading of §3553(a)(2)(A) is unworkable, because consideration of the other enumerated factors will necessarily imply consideration of the retributive principles captured by §3553(a)(2)(A). The Government relies primarily on §3553(a)(1), which references ‘the nature and circumstances of the offense.’” The Court dismissed this objection, saying that “[a] court may consider the nature and circumstances of the offense as relevant for the considerations set forth in §§3553(a)(2)(B), (C), and (D)—namely, deterrence, incapacitation, and rehabilitation.”
The Court closed by addressing the Government’s “concern that it would be difficult for appellate courts to determine whether a district court has impermissibly relied on §3553(a)(2)(A).” First, noted the Court, if the defendant doesn’t object any later objection will be reviewed for plain error. Second, “[i]f the defendant does object to the district court’s reliance on §3553(a)(2)(A), we anticipate that the district court will recognize its potential error and clarify its revocation decision to make clear that it is not taking account of §3553(a)(2)(A).” This is not, the Court said, a “magic words” requirement. “District courts may not consider the retributive purpose of §3553(a)(2)(A) before revoking supervised release. We trust that district courts will heed that instruction regardless of the practical likelihood of reversal.”
Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, which Justice Jackson joined. In Justice Sotomayor’s view, “district courts revoking a term of supervised release should not consider retribution for any purpose.” More precisely, “[a]s to either a supervised-release violation or the underlying offense, the backward-looking end of retribution is out of bounds. Although [she] would have made this point explicit, nothing in the Court’s opinion is inconsistent with it.“ Justice Jackson filed a separate opinion concurring in part and concurring in the judgment. She agreed with the result reached by the Court, but criticized it for “appearing to opine as to the precise contours of the retributive concerns that Congress has taken off the table.”
Justice Alito filed a dissenting opinion, which Justice Gorsuch joined. In Justice Alito’s view, “[t]he most likely—and . . . appropriate—inference” from the expressio unius canon “is simply that §3583(e), the provision listing the supervised-release factors, sets out an exclusive list of mandatory factors.” Justice Alito found structural reasons for his interpretation. He noted that some provisions of the Sentencing Reform Act expressly limit consideration of certain factors; “there are some situations in which factors omitted from the list of supervised-release factors must be considered”; and “the Court’s interpretation cannot account for the inextricable relationship between the omitted sentencing factor at issue in these cases, i.e., §3553(a)(2)(A), and the sentencing factors that a judge must consider in deciding whether to alter a term of supervised release.” Justice Alito closed by asserting that “[u]nless a district judge obdurately fails to backtrack as recommended when there is an objection based on today’s decision, there should be few problems. The Court’s outline shows that it has a low opinion of the value of its handiwork, and that should seal the case that the whole effort is a mistake.”
Case Granted Review
Landor v. Louisiana Dep’t of Corrections and Public Safety, 23-1197.
The Court will resolve “whether an individual may sue a government official in his individual capacity for damages for violations of [the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)].” Petitioner Damon Landor “is a devout Rastafarian who vowed to ‘let the locks of the hair of his head grow,’ a promise known as the Nazarite Vow.” By the time Landor began a five-month term of incarceration in Louisiana prison, the Fifth Circuit had already held that Louisiana’s policy of prohibiting Rastafarian inmates from wearing dreadlocks violated RLUIPA. With three weeks left in his sentence, Landor was transferred to a new correctional center. When he arrived, Landor explained to an intake guard “that he was a practicing Rastafarian and provided proof of past religious accommodations.” “Landor also handed the guard a copy of” the Fifth Circuit’s RLUIPA decision. The guard threw the Fifth Circuit decision “in the trash,” and summoned the warden. “The warden instructed prison guards to escort Landor to another room, where Landor was forcibly handcuffed to a chair.” “As two guards held Landor down,” another “shaved his head to the scalp.” Once released, Landor brought individual-capacity damages claims under RLUIPA against various prison officials (respondents). RLUIPA authorizes private plaintiffs to obtain “appropriate relief” against state officials. The district court granted a motion to dismiss. Relying on circuit precedent, the district court held that RLUIPA does not provide for damages against individual state officials. The Fifth Circuit affirmed. 82 F.4th 337.
The Fifth Circuit held that it was bound by circuit precedent to hold that, “under RLUIPA, [Landor] cannot seek money damages from officials in their individual capacities.” The Court rejected Landor’s contention that Tanzin v. Tanvir, 592 U.S. 43 (2020), abrogated that prior precedent. In Tanzin, the Supreme Court held that an individual may sue a government official in his individual capacity for damages for violations of the Religious Freedom Restoration Act of 1993 (RFRA)―whose relevant language is identical to RLUIPA’s. The Fifth Circuit distinguished Tanzin, emphasizing that RFRA and RLUIPA “rely on different Congressional powers.” The panel reasoned that Spending Clause legislation “operates like a contract,” so “only the grant recipient—the state—may be liable for its violation.” The panel concluded that, “although RLUIPA’s text suggests a damages remedy, recognizing as much would run afoul of the Spending Clause.” The Fifth Circuit denied en banc review by an 11-6 vote.
Landor argues in his petition that “[a] holding that RLUIPA does not provide for individual-capacity damages ‘cannot be squared with Tanzin’ or th[e] Court’s ‘routine[]’ practice to interpret RFRA and RLUIPA in ‘in parallel.’” The Court, he says, “has emphasized their shared history and purpose: Congress enacted both in the wake of [Employment Division v. Smith, 494 U.S. 872 (1990)] ‘to provide very broad protection for religious liberty.’ Congress sought to ‘counter’ Smith by restoring ‘pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim.’ Indeed, Congress modeled RLUIPA on RFRA.” (Citations omitted.) Thus, Landor insists, no textual basis exists to distinguish the two statutes when it comes to individual-capacity damages actions. Landor further asserts that the Fifth Circuit erred in holding that “the Spending Clause do[es] not empower Congress” to impose liability on anybody other than “the grant recipient—the state.” That reasoning, he says, conflicts with South Dakota v. Dole, 483 U.S. 203 (1987), and Sabri v. United States, 541 U.S. 600 (2004).
Respondents counter that “[b]y using the term ‘appropriate relief’ in RLUIPA, Congress did not ‘unambiguously’ provide for money damages on individual-capacity claims.” Respondents rely on Sossamon v. Texas, 563 U.S. 277 (2011), which held that “contracts with a sovereign are unique” in that “[t]hey do not traditionally confer a right of action for damages to enforce compliance.” Sossamon criticized the term “appropriate relief” as “open-ended,” “ambiguous,” and “inherently context dependent.” According to respondents, then, “[a]ny fair interpretation of RLUIPA [] must start from the premise that it would not ‘traditionally confer a right of action for damages.’” Further, say respondents, “[a] fair interpretation of RLUIPA [] must accept that the ‘ambiguous’ term ‘appropriate relief’ also is fatally ambiguous in the Spending Clause context—i.e., where Congress’s words are subject to a ‘clear-statement rule,’ just as they were in Sossamon.” Respondents thus distinguish Tanzin as involving a statute, RFRA, not subject to a clear-statement rule.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
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