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Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
April 18, 2025 | Volume 32, Issue 9
This Report summarizes opinions issued on March 21 and 26, and April 2, 2025 (Part I).
Opinions
Bondi v. Vanderstok, 23-852.
By a 7-2 vote, the Court upheld a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulation that subjects kits that produce “ghost guns” to the Gun Control Act of 1968 (GCA), 18 U.S.C. §921 et seq., which imposes licensing, background-check, record-keeping, and serialization requirements. The ATF rules provided that the GCA’s meaning of “firearm” includes (1) “weapon parts kits,” i.e., kits containing components or parts that can be assembled to fire a shot; and (2) unfinished frames and receivers that could be made functional. Before the rules took effect, several gun manufacturers and at-home gunsmiths challenged them under the Administrative Procedures Act, arguing that the GCA could not be read fairly to include such products. The district court agreed and granted summary judgment to the plaintiffs. The Fifth Circuit affirmed, reasoning that, while the ATF has authority over “weapons” that “may readily be converted to expel a projectile by the action of an explosive,” weapon parts kits and unfinished frames and receivers did not fall within the meaning of “weapon.” In an opinion by Justice Gorsuch, the Court reversed and remanded.
Because the plaintiffs brought a facial challenge to the ATF’s authority to regulate any weapon parts kit or unfinished frame or receiver, the Court framed the dispositive question as whether the rules would properly apply to at least some kits and unfinished frames or receivers. The GCA defines a “firearm” as (1) “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive”; and (2) the “frame or receiver of any such weapon.” The Court found that under the any-weapon (first) definition, there are two requirements for a firearm. First, a “‘weapon’ must be present.” A “weapon” is understood to mean “‘an instrument of offensive or defensive combat,’” not a toy or tool. Second, the weapon must either be capable of firing a projectile or be designed to or susceptible of being readily converted to fire a projectile. The latter requirement means a “weapon” is not limited to assembled, ready-to-fire instruments of combat. The Court found that the any-weapon definition’s language itself supports this understanding. It contains language—“designed to or may readily be converted to expel a projectile”—that indicates Congress had contemplated some weapons to be “things short of fully operable firearms.” The definition also includes a “starter gun,” which is not capable of firing a projectile until some effort is made to convert it to a live-firing gun. Furthermore, noted the Court, the term “weapon” is an artifact noun, which may sometimes be used to refer to an unfinished object when the object’s intended function is clear.
The Court held that Polymer80’s “Buy Build Shoot” kit is one example of a weapon parts kit that satisfies both requirements of the any-weapon definition for a “firearm.” First, just by looking at its name—“Buy Build Shoot”—it is “obvious” that the kit’s intended function is use as an instrument of combat. Second, because the kit “comes with all necessary components,” it may be readily converted to fire a projectile. While other weapon parts kits might not be readily converted into a functional weapon as quickly or easily as the “Buy Build Shoot” kit, the Court noted that it need not “untangle exactly how far” to completion a kit must be to fall within the GCA’s scope. It suffices for purposes of the facial challenge that “at least some kits” will qualify as weapons. Because some kits will, as the Polymer80 kit exemplifies, the ATF’s rule regarding weapon parts kits is not facially inconsistent with the GCA.
Applying similar reasoning, the Court reached the same conclusion for unfinished frames and receivers rule. The Court concluded that the frame-or-receiver definition for “firearm” includes partially complete, unfinished frames and receivers based on the GCA’s use of the terms, “frame” and “receiver.” In addition, both terms are artifact nouns that may sometimes be used to describe “not-yet-complete objects” that require effort for completion. With that understanding, the Court ruled that Polymer80’s incomplete frame constitutes a firearm because an “ordinary person, using ordinary tools, can finish th[at] frame in minutes,” rendering that product capable of ready conversion into a working firearm. Because “at least some ‘partially complete’ frames or receivers” will constitute a firearm and fall within the ATF’s regulatory authority, the ATF’s second rule is not facially inconsistent with the GCA. The Court noted that it need not consider here whether “[s]ome products may be so far from a finished frame or receiver” that it does not constitute a firearm within the GCA’s meaning.
Three justices filed separate concurrences. Justice Kavanaugh concurred to note that the line between what falls within the ATF’s regulatory authority “is not entirely clear” under the majority’s opinion, with some kits and parts qualifying as firearms while others will not. He expressed a due-process concern on that basis, stating there could be a fair-notice issue if a person is prosecuted for failing to conduct the necessary background checks for a kit since that violation requires proving only knowledge of the act constituting the violation. In her concurrence, Justice Sotomayor addressed Justice Kavanaugh’s concern, writing that the ATF’s new rules do not leave regulated entities in doubt about whether and how to comply with the GCA. The new rules “should come as no surprise” to any entity seeking to comply in good faith, and any manufacturer in doubt “can eliminate uncertainty by seeking clarification” from the ATF. Justice Jackson concurred to clarify that she joined in the majority’s opinion after finding it consistent with her understanding of the Court’s limited exercise at hand: evaluating the scope of the GCA’s delegation of authority to the ATF and determining whether the ATF’s actions “transgressed those bounds.”
Justice Thomas and Alito each filed dissenting opinions. Justice Thomas disagreed with the majority in three respects. First, he faulted the majority for characterizing the “applicable legal standard” in terms of a “facial” challenge without deciding whether that approach was correct, and then “assum[ing], arguendo, that the regulatory definitions are valid so long as they cover ‘at least some weapon parts kits.’” In his view, the appropriate question was whether the Fifth Circuit was correct in ruling that the ATF’s rules conflict with the GCA’s plain language or exceed Congress’s intent. He believed the majority’s approach failed to show the limits on the ATF’s authority. Second, Justice Thomas disagreed with the majority’s conclusion as to unfinished frames and receivers. He maintained that the terms “frame” and “receiver” should be interpreted according to their ordinary meanings, which, when the GCA was enacted in 1968, “were understood to refer to ‘the basic structure and principal component of a firearm,’ and ‘the part of a gun that houses the breech action and firing mechanism.’” In his view, those meanings do not include objects that could be “readily converted” into a frame or receiver. He believed the GCA’s text, context, and structure support his view. The GCA enumerates four definitions for “firearm.” Unlike the three other definitions, the “frame or receiver” definition lacks any broad language that could be read to “cover more than finished, operable products.” The absence of such broad language in the frame-or-receiver definition indicates, in his view, that the frame-or-receiver definition includes only completed frames and receivers.
Relatedly, Justice Thomas faulted the majority for not addressing “the issue of extrinsic objects.” He was concerned by the fact that, per the ATF’s guidance relating to the new rules, the “mere presence” of seller-provider tools, instructions, guides, or marketing materials that accompany a product could transform the product into a regulated frame or receiver. Next, Justice Thomas disagreed with the majority’s conclusion as to weapon parts kits. While agreeing that a “weapon” is an instrument of combat, he believed a weapon parts kit does not become a “weapon” until it is assembled and converted into an operable gun. He based that conclusion on the separated structure of the any-weapon and frame-or-receiver definitions for “firearm,” which he interpreted to mean that the any-weapon definition assumes a weapon has an operable frame or receiver. Finally, Justice Thomas stated that even if there is some ambiguity in the GCA as to whether a “firearm” includes weapon parts kits, the rule of lenity required the Court to resolve the ambiguity in the plaintiffs’ favor.
Justice Alito separately dissented, taking issue with the majority’s characterization of the question presented as a “facial” challenge and its imposing the test stated in United States v. Salerno, 481 U.S. 739 (1987). In his view, the facial-challenge characterization is inconsistent with how the parties argued the case, and neither party adequately briefed the Salerno issue. He would have “direct[ed] the parties to brief the Salerno issue or vacate[d] the judgment below and remand so that the issue can be addressed first by the Court of Appeals.”
FDA v. Wages and White Lion Investments, LLC, 23-1038.
The Court unanimously reversed a Fifth Circuit decision which held that the FDA acted arbitrarily and capriciously when it denied respondents’ applications for authorization to market new flavored e-cigarette products. Respondents manufacture dessert- and candy-flavored e-liquids for certain types of e-cigarettes. (Their e-liquid flavors include “Killer Kustard Blueberry,” “Rainbow Road,” “Iced Blackberry Lemonade,” “Pineapple Express,” “Suicide Bunny Mother’s Milk and Cookies,” and “Blueberry Parfait.”) They petitioned the Fifth Circuit to review the FDA’s decisions. Their petitions were initially denied, but the en banc Fifth Circuit granted review and remanded to the FDA. The Fifth Circuit held that the FDA had acted arbitrarily and capriciously because its reasons for denying the applications represented a change from what the agency had previously represented to manufacturers in its guidance. In an opinion by Justice Alito, the Court vacated and remanded.
The Court explained that beginning in September 2020, pursuant to the Family Smoking Prevention and Tobacco Control Act of 2009 (TCA), an entity must obtain FDA authorization to market e-cigarette products. If an applicant has not shown that its e-cigarette product “would be appropriate for the protection of the public health,” the TCA requires the FDA to deny the application. To assist in its review of applications, the FDA created various internal documents in which four “themes” emerged. And to assist affected entities applying for premarket authorization, the FDA gave oral presentations and issued several proposed rules in advance of the September 2020 date. This “predecisional guidance” “crystallized the four themes” reflected in the agency’s internal documents. The Court then applied the change-in-position doctrine, applicable under the Administrative Procedures Act, to those four themes. That doctrine poses two questions for determining if an agency has acted arbitrarily and capriciously, the first of which was dispositive in this case: whether the FDA, when it denied respondents’ premarket applications, changed its “existing policy” as communicated in its predecisional guidance (assuming without deciding that that guidance was binding on the agency).
The Court stated that the FDA’s first predecisional theme was “scientific evidence,” which refers to the sufficiency of scientific evidence to show if an e-cigarette product is “appropriate for the protection of the public health.” “In respondents’ view, the FDA initially stated that manufacturers would not need to provide specific kinds of studies like randomized controlled trials or longitudinal cohort studies but then treated such evidence as essential.” The Court disagreed. It found that the FDA’s predecisional guidance informed applicants that: “(a) it was not essential for manufacturers to submit evidence based on ‘well-controlled investigations,’ such as randomized controlled trials or longitudinal cohort studies, but (b) if they did not do so, they would have to provide [other] rigorous scientific evidence that the sale of their particular products would be appropriate for the protection of the public health.” The guidance additionally informed applicants that the FDA considered literature reviews “’a less robust form of support.’” Any such reviews should include “comparative assessments of the health risks associated” with using the applicant’s e-cigarette product “to the risks associated with quitting tobacco product use, using other tobacco products, and never using tobacco products.’”
The Court found that the FDA had not changed that policy when it determined that the scientific evidence respondents had submitted in support of their applications was insufficient. Respondents did not submit any scientific studies with their applications. Rather, they relied on other kinds of scientific evidence, specifically a “‘comprehensive review of scientific literature’” which concluded there was insufficient evidence “’to determine whether e-cigarette flavors aid in smoking cessation.’” Vapetasia was the only respondent that additionally submitted “results from a cross-sectional survey” indicating e-cigarettes helped a majority of people surveyed to “quit smoking combustible tobacco.” The FDA found respondents’ evidence insufficient because it did not satisfy the “scientific rigor” and relevance standards for scientific evidence in the “other” category. And although Vapetasia provided a survey in addition to the literature review, the FDA concluded that the survey did not adequately relate to Vapetasia’s flavored products. Respondents argued that the FDA had effectively required them to submit specific kinds of scientific evidence, contrary to the predecisional guidance. The Court disagreed, noting that the guidance had explained that literature reviews were deemed “less robust” support and should at least include comparative health-risk assessments that directly relate to the applicant’s product. Having found the FDA’s reasons consistent with the predecisional guidance, the Court found no change in the FDA’s position regarding scientific evidence.
The FDA’s second predecisional theme was “comparative efficacy,” “which called on manufacturers to compare the health effects of their dessert-, candy-, and fruit-flavored products to those of tobacco-flavored products.” The Court noted that the health risk of e-cigarettes is measured by the increased or decreased likelihood that existing tobacco users will stop using tobacco products and non-users will start using the tobacco product. The predecisional guidance “elaborated on the types of comparisons” that the FDA believed would be helpful in this determination; recommended comparisons of products within the same category and subcategory of tobacco products; and explained the significance of comparing “’similar, marketed tobacco products in the same category.’” Importantly, found the Court, the guidance conveyed that the FDA had a “heightened concern with dessert-, candy-, and fruit-flavored products compared to tobacco- and menthol-flavored products,” and emphasized “the need for robust cross-product comparisons (including on the dimension of flavor).” The FDA found that respondents had not shown the benefit of their dessert-, candy-, and fruit-flavored products over an “’appropriate comparator tobacco-flavored’” e-cigarette product. Respondents contended that this reasoning reflected a categorical rejection of applications that did not make comparisons between flavored e-cigarette products and unflavored or tobacco-flavored e-cigarette products, contrary to the predecisional guidance granting applicants “broad discretion” to select appropriate comparators for their products. Disagreeing, the Court found that the FDA’s denial of respondents’ comparisons was a “natural consequence of its predecisional guidance” given that the FDA had communicated both its heightened concern for dessert-, candy-, and fruit-flavored e-cigarette products and its need for “robust” cross-product comparisons, including those accounting for flavor.
The FDA’s third predecisional theme was “device type,” which informs the agency’s enforcement priorities. Respondents argued that the FDA had denied their applications as part of a categorical ban of all flavored e-cigarette products and that such an approach was inconsistent with the agency’s predecisional guidance that had materially distinguished between cartridge-based flavored products and other, non-cartridge-based flavored products. The Court again disagreed. Although the predecisional guidance conveyed that the “FDA’s central concern” was flavored, cartridge-based products, nothing in the guidance “suggested the FDA would decline to take enforcement action against” flavored, non-cartridge-based products “that might be appealing to the young.” For that reason, denying respondents’ applications for not showing that their products (flavored, non-cartridge-based products) would provide an adequate benefit to outweigh risks to the youth was a “consistent application” of the predecisional guidance. Moreover, the FDA had good reason to “look[] beyond cartridge-based e-cigarette products” because national surveillance data showed a shift among the youth from flavored cartridge-based products to other flavored tobacco products. The Court thus concluded that the “FDA’s treatment of device type, even if it evolved over time, did not violate the change-in-position doctrine.”
The FDA’s fourth predecisional theme was “marketing plans,” which helps inform the agency’s enforcement prioritization of tobacco products. On this point, the Court did not determine whether a change in position occurred. The predecisional guidance referred to marketing plans as a critical component of the application. But when the FDA reviewed respondents’ applications, it did not consider their marketing plans. The Fifth Circuit therefore found that the FDA had changed its position and rejected the agency’s harmless-error argument. The FDA urged the Court to vacate that decision and remand. That is what the Court did, while providing some guidance regarding the “remand rule” within the context of the APA. According to the “remand rule,” which predated the APA, when reviewing an agency’s failure to act pursuant to its authority, a court should “‘remand to the agency for additional investigation or explanation’” rather than uphold the agency’s action on an alternative ground not yet considered by the agency. The APA later instructed reviewing courts to adapt the harmless-error rule in those situations. The Court acknowledged that the remand rule needs to be reconciled with the APA harmless-error rule, but refused to do so in this case (at the FDA’s behest).
Instead, the Court corrected the Fifth Circuit’s interpretation of Calcutt v. FDIC, 598 U.S. 623 (2023)—a decision that most recently invoked the remand rule and on which the Fifth Circuit based its rejection of the FDA’s harmless-error argument. The Fifth Circuit interpreted Calcutt to mean “there is only one exception to the remand rule.” The Court here held that this interpretation is overly broad because it “would imply a need to remand for all but the narrowest category of agency errors,” which would minimize “the role of harmless-error review.” That interpretation also overlooks that there is at least one other exception to the remand rule that “has long been accepted.” Relatedly, the Court found the FDA’s suggested resolution, based on its reading of Shinseki v. Sanders, 556 U.S. 396 (2009), was likewise too broad because, under the FDA’s suggestion, the “harmless error might swallow the remand rule.” The Court remanded to allow the Fifth Circuit to “decide the [harmless-error] question afresh without relying on its [faulty] reading of Calcutt.”
Justice Sotomayor filed a brief concurring opinion to clarify that “the record shows the agency reasonably gave manufacturers some flexibility as to the forms of evidence that would suffice for premarket approval of their products, while hewing to (and never suggesting it would stray from) its statutory duty to approve only those products that would be ‘appropriate for the protection of the public health.’”
United States v. Miller, 23-824.
The Bankruptcy Code permits a bankruptcy trustee to avoid any prepetition transfer of the debtor’s property that would be voidable “under applicable law” outside bankruptcy by an actual unsecured creditor of the estate. 11 U.S.C. §544(b)(1). By an 8-1 vote, the Court held that a bankruptcy trustee cannot avoid a debtor’s tax payment to the United States under §544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy because the United States’ sovereign immunity would bar such a claim. The Court ruled that the Bankruptcy Code’s abrogation of the United States’ sovereign immunity in §106(a) “applies only to the §544(b) claim itself and not to any state-law claims nested within that federal claim.”
Section 544(b)(1) allows a trustee to “avoid any transfer of an interest of the debtor . . . that is voidable under applicable law by a creditor holding an unsecured claim.” The state statutes that trustees typically invoke are known as “fraudulent transfer” laws that aim to prevent debtors from hiding or shielding their assets from creditors. To show that a transfer is “voidable under applicable law,” a trustee must identify the actual creditor or creditors who could have set aside the transaction in question under applicable law. The Court noted that this “actual creditor” requirement serves as an important check on the trustee’s §544(b) powers. Absent the actual-creditor requirement, a trustee could use §544(b) to “unwind transactions” that would never be at risk outside of bankruptcy proceedings.
In 2013, a Utah transportation business fell into insolvency as the result of poor management and financial malfeasance. Two of its shareholders began misappropriating company funds for their personal use, and in 2014 they transferred roughly $145,000 in company funds to the IRS to satisfy their personal income-tax obligations. Three years later, when the company filed for bankruptcy, the trustee filed this suit against the United States under §544(b), seeking to avoid the 2014 tax payments. The Tenth Circuit affirmed the bankruptcy court and district court in concluding that §106(a) of the Bankruptcy Code―which waives the Government’s sovereign immunity “with respect to” 59 Bankruptcy Code provisions including §544―also waives the Government’s immunity from the Utah cause of action nested within the §544(b) claim. In an opinion by Justice Jackson, the Court reversed.
The Court noted that waivers of sovereign immunity are jurisdictional provisions that empower courts to hear claims against the Government, but do not themselves typically create any new substantive rights against the Government. The Court found that §106(a)’s text makes clear that it operates like any other waiver of sovereign immunity, that it is “merely jurisdictional” and does not establish any substantive rights against the Government. The Court explained that “[i]t is undisputed that, outside of bankruptcy proceedings, the United States could invoke the defense of sovereign immunity to bar any lawsuit seeking to invalidate a federal tax payment under a State’s fraudulent-transfer law. That barrier to state-law liability would ordinarily doom a trustee’s §544(b) claim by making it impossible for the trustee to show that the tax payment at issue is “voidable under applicable law” by an actual creditor. But, respondent contends, §106(a) vitiates that barrier by abrogating the Government’s sovereign immunity with respect to both the §544(b) claim and the state-law claim nested within it.” The Court disagreed, explaining that “[r]espondent’s reading of §106(a) would thus transform that statute from a jurisdiction-creating provision into a liability-creating provision. But we have declined to read sovereign-immunity waivers in that way.” In short, the Court concluded, §106(b) does not alter the substantive meaning of §544(b)’s “applicable law” clause by providing a waiver of immunity that would not otherwise exist under that external source of law.
The Court found support for its conclusion in §106(a)(5), which expressly states that the provision does not “create any substantive claim for relief or cause of action not otherwise existing” under some other source of law. And the Court noted that in the 58 other provisions that appear on §106(a)’s list alongside §544 none of them “meaningfully alter the substantive obligations of trustees.” The Court also found that “eliminating the actual-creditor requirement would upend decades of practice and precedent.” Finally, the Court noted that “‘[u]nder long-settled law, Congress must use unmistakable language to abrogate sovereign immunity.’” That strict standard is not met with respect to “the state-law claims nested within §544(b)’s ‘applicable law’ clause”
The Court then rejected numerous arguments by respondent. The Court reasoned that respondent’s reading of §106(a) would transform the statute from a jurisdiction-creating provisions into a liability-creating provision and that respondent was seeking to leverage §106(a)’s waiver of immunity into an affirmative expansion of the trustee’s avoidance powers under §544(b). The Court noted that respondent’s textual argument regarding “with respect to” “flouts” the “fundamental canon of statutory construction” that words must be read in context and with a view to their place in the overall statutory scheme. The Court also noted that respondent’s account of the legislative history was “incomplete at best,” and that the House and Senate Reports accompanying the 1978 legislation both expressly stated: “Though Congress has the power to waive sovereign immunity for the Federal government completely in bankruptcy cases, the policy followed here is designed to achieve approximately the same result that would prevail outside of bankruptcy.” The Court concluded that in the absence of explicit language to the contrary, it could not presume that Congress waived the Government’s sovereign immunity for a state cause of action.
Justice Gorsuch wrote a dissenting opinion. He contended that “under ‘applicable law’”―Utah’s fraudulent transfer statute―“the relevant transfers are ‘voidable,’ and the bankruptcy trustee can use §544(b)(1) to set them aside. That remains true even though the trustee must sue the United States to void the relevant transfers, because §106(a)(1) bars the government from raising a sovereign-immunity defense in the trustee’s action.”
Medical Marijuana, Inc. v. Horn, 23-365.
By a 5-4 vote, the Court held that under the civil portion of the Racketeer Influenced and Corrupt Organizations Acts (RICO) a plaintiff may seek treble damages for his business or property loss even if that loss resulted from a personal injury. RICO creates a civil cause of action for “[a]ny person injured in his business or property” by reason of a criminal RICO violation. 18 U.S.C. §1964(c). The statute implicitly denies a remedy for personal injuries. The issue here was whether §1964(c) denies a remedy for business and property loss that derives from a personal injury.
Respondent Douglas Horn was working as a commercial truck driver when he used a product sold by petitioners to treat his chronic pain. The product was described as a “CBD-rich,” non-psychoactive medicine that is “0% THC.” CBD and THC are both cannabinoids found in cannabis; THC is psychoactive, meaning it causes the “high” associated with marijuana, while CBD is non-psychoactive and does not produce a high. Petitioners’ website promised that the product was “legal to consume both here in the U.S. and in many countries abroad.” A few weeks after Horn began using the product, he was selected for a random drug screening at work; the test detected THC. He was fired. Horn ordered another bottle of the product, sent it to a third-party lab for testing, and the product was positive for THC. Horn sued petitioners, raising a civil RICO claim to recover damages from his loss of employment caused by the unwilling THC consumption. The district court granted summary judgment to petitioners because Horn’s lost employment flowed from the personal injury he suffered. It reasoned that because a plaintiff could not recover for a personal injury under the statute, neither could he recover for a business or property harm that resulted from a personal injury. The Second Circuit reversed, holding that he had been “injured in his business” when he lost his job. The court said that “business and property are no less injured simply because” the plaintiff also suffered “an antecedent personal injury.” In an opinion by Justice Barrett, the Court affirmed and remanded.
The Court concluded that the ordinary meaning of “injure” is to “cause harm or damage to” or to “hurt.” Thus, a plaintiff has been “injured in his business or property” if his business or property has been harmed or damaged. The Court held that the business or property requirement operates with respect to the kinds of harm for which the plaintiff can recover, not the cause of the harm for which he seeks relief. For example, if the owner of a gas station is beaten in a robbery, he cannot recover for his pain and suffering under §1964(c). But if his injuries force him to close his store, he can recover for the loss of his business.
Petitioners argued that a personal right could never give rise to a RICO claim because “injury” should be defined as a legal right rather than a harm. Essentially, they argued that injury should have its specialized legal meaning in tort law, rather than its ordinary meaning. The Court rejected this argument because it believed context favors the ordinary meaning of injured in the statute. The Court also rejected petitioners’ argument that antitrust law settled the issue. The Court first found that “antitrust law has not ‘long required plaintiffs to allege business or property injuries’ that track common-law torts.” It next concluded that “to the extent our modern antitrust precedent forecloses recovery for certain economic harms, it does so because of a requirement that we have expressly declined to extend to civil RICO.”
The Court acknowledged that civil RICO has evolved “into something quite different from the original conception of its enactors,” but noted, as it had previously, that if the statute allows the undue proliferation of RICO suits, “correction must lie with Congress.” The Court also maintained that petitioners and the dissent understated other constraints on civil RICO claims, including RICO’s direct-relationship requirement, that a plaintiff must first establish a pattern of racketeering activity, and that §1964(c) turns on more than the meaning of “injured,” so not every monetary harm necessarily implicates RICO. The Court listed numerous issues it was not deciding in its opinion, which included: (1) whether Horn suffered an antecedent personal injury; (2) whether the Second Circuit correctly interpreted “business” to encompass “employment” for purposes of §1964(c); and (3) what it means for a plaintiff to be “injured in his . . . property” under §1964(c). The only question the Court squarely addressed was whether civil RICO bars recovery for all business or property harms from a personal injury; and it concluded it did not. Justice Jackson wrote a brief concurring opinion. She noted that Congress had instructed RICO be construed liberally, which provided one more reason the Court’s decision was right.
Justice Thomas wrote a dissenting opinion that stated he would have dismissed the writ of certiorari as improvidently granted because the case was ill suited for deciding the question presented and the Court’s ruling was an advisory opinion. He agreed the question presented had divided the circuit courts and merited the Court’s attention. But he noted that the parties dispute the threshold issue of whether the plaintiff suffered a personal injury in the first place and the parties had inadequately briefed their views on the meaning of the key statutory phrase “injured in his business or property.” He believed the Court’s opinion, by defining only one word in the statute, left the most critical and outcome-determinative issues for another day.
Justice Kavanaugh also wrote a dissenting opinion, which Chief Justice Roberts and Justice Alito joined. He agreed with petitioners and the Sixth, Seventh, and Eleventh Circuits that RICO does not authorize suits for personal injuries regardless of what losses or damages a victim sustains from that injury. He believed that “injured” is a tort-law term of art and therefore should be given its established common-law meaning. The dissent looked at three things in forming the basis of its opinion. First, the text of RICO excludes personal-injury suits and incorporates traditional tort-law principles about what injury means. Second, antitrust precedents interpret the same “injured in his business or property” language to exclude losses resulting solely from personal injuries. And third, that the decision “would federalize many traditional personal-injury tort suits.”
Thompson v. United States, 23-1095.
The Court unanimously held that 18 U.S.C. §1014, which criminalizes making certain “false” statements to the Federal Deposit Insurance Corporation (FDIC), does not criminalize statements that are misleading but not false. Petitioner Patrick Thompson took out three loans from the same bank totaling $219,000. The bank failed and the FDIC took over collection of its outstanding loans, including Thompson’s. The FDIC’s servicer sent Thompson an invoice showing a balance due of $269,120.58, which included the loan balance and accrued interest. Thompson called the loan servicer to question the invoice. He asserted to the agent that he was disputing a discrepancy, stating that he had borrowed $110,000. In a later phone call with FDIC contractors, Thompson claimed that he borrowed $110,000 for “home improvement” when discussing his outstanding balance. Thompson was eventually charged with two counts of violating 18 U.S.C. §1014, which prohibits “knowingly mak[ing] any false statement or report . . . for the purpose of influencing” the actions of the FDIC with respect to any loan. A jury found Thompson guilty on both counts. Thompson moved for acquittal and a new trial, arguing that although his statements may have been misleading, they were literally true because he had borrowed $110,000 even if he had also borrowed more. The district court denied Thompson’s motion, noting that the Seventh Circuit does not require literal falsity in §1014 cases. The Seventh Circuit affirmed, concluding that it need not address the literal truth of Thompson’s statements because its precedent already found that §1014 criminalizes misleading representations. In an opinion by Justice Roberts, the Court vacated and remanded.
The Court began by noting that §1014 only uses the word “false” and does not include “misleading.” It then explained that “false” and “misleading” are two different concepts, observing that some misleading statements can be true. And if a statement is true, by definition it is not false and not criminalized by §1014. Thus, the Court concluded, the only relevant inquiry under §1014 is whether the statement in question is “false,” as in not true. Rejecting the Government’s arguments in support of the Seventh Circuit, the Court observed that §1014 was not like other criminal statutes that refer to “false and misleading.” It stated that reading “misleading” into §1014 would render Congress’s inclusion of “misleading” elsewhere superfluous.
The Court declined to affirm the Seventh Circuit on the alternative basis that Thompson’s statements were in fact false, for neither the district court nor the Seventh Circuit addressed that question. The Court agreed with the parties that the context in which the statement was made is relevant in determining its falsity. The Court vacated the Seventh Circuit’s judgment and remanded for application of §1014 consistent with its clarification.
Justice Alito and Justice Jackson filed separate concurring opinions. Justice Alito wrote to clarify his understanding of the Court’s opinion. He referred with approval to the pattern jury instructions used by most circuits. He observed that the jury instructions do not confuse false and misleading. He also commented that the question on remand is a narrow one because Thompson did not object to the jury instructions below―and the jury was not instructed to consider the illegality of misleading statements. Justice Alito said that the question on remand is simply whether, viewing the evidence in the light most favorable to the government, any rational fact finder could conclude beyond a reasonable doubt that Thompson’s statements were false in context. Justice Jackson wrote to observe that the jury was properly instructed to find Thompson guilty only if the prosecution proved beyond a reasonable doubt that Thompson made the charged “false statements.” She suggested that the Seventh Circuit has little to do on remand but affirm the judgment upholding the jury’s guilty verdict.
Delligatti v. United States, 23-825.
Title 18 U.S.C. §924(c) prohibits the possession of a firearm during and in relation to any “crime of violence” that is subject to prosecution in federal court. A “crime of violence” includes a felony that “has an element the use, attempted use, or threatened use of physical force against the person or property of another.” By a 7-2 vote, the Court held that an offender commits a “crime of violence” under §924(c) even when he “causes bodily injury by omission rather than action.”
Petitioner Salvatore Delligatti―a member of a prominent New York mafia family―was hired to kill Joseph Bonelli. He recruited street gang members to carry out the hit and supplied them with a car and a loaded revolver. While on their way to Bonelli’s house to complete the job, the individuals were stopped and arrested by police. Delligatti was charged with several federal offenses stemming from his involvement in this incident, including one count of using or carrying a firearm during or in relation to a “crime of violence” under §924(c). The §924(c) indictment charged as the predicate crime of violence attempted murder under the violent-crimes-in-aid-of-racketeering (VICAR) statute. 18 U.S.C. §1959(a)(5). VICAR attempted murder requires proof that the defendant committed an underlying state or federal offense that constitutes attempted “murder.” The Government alleged that Delligatti met this requirement by attempting second-degree murder under New York law. Following a jury trial, he was convicted of all charged offenses. On appeal to the Second Circuit, Delligatti challenged his §924(c) conviction, arguing that a VICAR offense predicated on New York second-degree murder falls outside §924(c)’s elements clause. He pointed out that homicide under New York law can be committed by act or omission, with the latter defined as a failure to perform a legally imposed duty. And he contended that omission-based crimes do not involve the “use of force.” (Under the so-called “categorical approach,” a court does not examine the defendant’s actual conduct. Instead, a court asks whether the offense in question “always” involves the use, attempted use, or threatened use of force.) The Second Circuit rejected Delligatti’s argument. In an opinion by Justice Thomas, the Court affirmed.
The Court centered its analysis on one of its prior decisions―United States v. Castleman, 572 U.S. 157 (2014). In Castleman, the Court analyzed whether an offense for “intentionally or knowingly caus[ing] bodily injury” is considered a “misdemeanor crime of domestic violence” under §922(g)(9). Like §924(c)’s elements clause, an offense qualifies under §922(g)(9) if, among other things, it “has, as an element, the use . . . of physical force.” The Court held there that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” And it concluded that whenever someone knowingly causes physical harm, even if he causes such harm indirectly, he uses force within the meaning of §922(g)(9). (“[F]or example, when a person ‘sprinkles poison in a victim’s drink,’ he uses force by ‘employing poison knowingly as a device to cause physical harm,’ even though ‘the act of sprinkling’ does not itself involve force.”) Although §922(g)(9) and §924(c) require different levels of force―battery-level force for §922(g)(9) and violent force for §924(c)―the Court here deemed that difference immaterial because both levels of force may be applied indirectly. The Court therefore found it appropriate to extend its holding in Castleman to §924(c). It concluded that “’the knowing or intentional causation of bodily injury necessarily involves the use of physical force’ under §924(c) just as it does under §922(g)(9).”
The Court rejected Delligatti’s contention that New York second-degree murder falls outside of Castleman’s rule because a person can commit the offense by omission of a legal duty. The Court ruled that even where a victim dies because a defendant does not perform a legal duty, the defendant’s conduct is still the cause of the victim’s death. It also found that a defendant who causes harm by omission can make “use” of physical force “against the person . . . of another.” The Court pointed out that a person may make “use” of something by deliberate inaction. (“A car owner, for example, can ‘use’ the rain to wash his vehicle simply by leaving it parked on the street.”) And it concluded that “against another” requires only that “another person be ‘the conscious object’ of the force the offender uses.” Finally, the Court noted that context confirmed its conclusion that crimes of omission fall within the elements clause of §924(c). Preferring interpretations that encompass prototypical “crimes of violence” over those that do not, the Court pointed out that intentional murder “is the prototypical ‘crime of violence’ and it has long been understood to incorporate liability for both act and omission.”
Justice Gorsuch filed a dissenting opinion, which Justice Jackson joined. Based on an examination of the statute’s text, the dissent determined that “to commit a ‘crime of violence,’ [under §924(c)] an individual must (1) actively (not just through inertia) employ (2) a violent or extreme physical act (not mere touching or pre-existing natural forces) (3) knowing or intentionally to harm another person or his property.” The dissent believed that an individual who “causes bodily injury by omission” does not meet that standard. The dissent pointed to several pieces of contextual evidence that weighed against the conclusion that a §924(c) “crime of violence” can include a crime of omission. First, when Congress considered defining “crime of violence” it recognized that the “use of physical force against the person or property of another” would not reach omissions. Second, an ordinary understanding of “use of physical force” encompasses only assertive physical contact, not “deriv[ing] service from a preexisting physical force.” Third, a contrary interpretation “introduces redundancy into the statutory scheme” by rendering the residual clause of §924(c) pointless. Applying the elements clause’s test it formulated, the dissent concluded that New York second-degree murder would not qualify as a “crime of violence” under §924(c) because there are instances where the crime can be committed by failing to fulfill a legal duty requiring a person to act. Thus, the crime can be committed “without proof that [a defendant] used, attempted to use, or threatened to use physical force against anyone or anything at all.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Campbell, Supreme Court Fellow
- Gracynthia Claw, Supreme Court Fellow
- Sianha Gualano, Supreme Court Fellow
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