Volume 30, Issue 11
This Report summarizes opinions issued on May 18, 2023 (Part I); and cases granted review on May 15, 2023 (Part II).
Part I: Opinions
Twitter, Inc. v. Taamneh, 21-1496. The Court unanimously held that Facebook, Twitter, and Google are not liable under 18 U.S.C. §2333(d)(2) to victims of an ISIS terrorist attack for allegedly aiding and abetting ISIS by failing to stop ISIS from using their platforms. This case arises from a 2017 terrorist attack on a nightclub in Istanbul, Turkey, which killed 39 people and injured 69 others. ISIS claimed responsibility for the attack, and the perpetrator had received training, instructions, and assistance in carrying out the attack from ISIS. Family members of one of the victims sued three major social-media companies—Facebook, Google, and Twitter—under 18 U.S.C. §2333, which imposes civil liability on anyone who “aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” Plaintiffs allege that the social-media companies had known that ISIS and its adherents have used their platforms as tools for recruiting, fundraising, and spreading their propaganda, yet failed to detect and remove such content. Accordingly, plaintiffs assert that the social-media companies aided and abetted ISIS by knowingly allowing ISIS and its supporters to use their platforms and benefit from their “recommendation” algorithms, enabling ISIS to connect with the broader public, fundraise, and radicalize new recruits. And in the process, the social-media companies allegedly have profited from the advertisements placed on ISIS’s tweets, posts, and videos. The district court dismissed plaintiffs’ complaint for failure to state a claim. The Ninth Circuit reversed, finding that plaintiffs had plausibly alleged that the social-media companies aided and abetted ISIS within the meaning of §2333(d)(2) and thus could be held secondarily liable for the nightclub attack. In an opinion authored by Justice Thomas, the Court reversed.
The Court began its analysis by interpreting the meaning of “aid and abetted.” The Court first explained that “[a]iding and abetting is an ancient criminal law doctrine” that has substantially influenced its analog in tort. The concept is not boundless: To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law requires that the defendant has to take some “affirmative act” “with the intent of facilitating the offense’s commission.” Relying on common law principles interpreting the phrase and a framework established in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (which Congress itself pointed to), the Court defined the phrase “aids and abets” in §2333(d)(2), as elsewhere, as referring to a “conscious, voluntary, and culpable participation in another’s wrongdoing.”
The Court next resolved the issue of what precisely a defendant must aid and abet to be liable. Plaintiffs contended that it is merely the “person” who commits an act of terrorism, which would hold the social media platforms liable for aiding and abetting ISIS generally rather than the particular terrorist attack at issue. On the other hand, the social-media platforms contended that they are liable only if they directly aided and abetted the particular terrorist attack. On this question the Court agreed with the social-media companies. But, the Court explained, “that requirement does not always demand a strict nexus between the alleged assistance and the terrorist act.”
Turning to the case at hand, the Court held that plaintiffs’ allegations fell short of plausibly demonstrating that the social media companies aided and abetted ISIS in carrying out the Istanbul nightclub attack. Plaintiffs did allege that ISIS was able to upload content to the platforms and connect with third parties, that the platforms’ algorithms matched ISIS-related content to users most likely to be interested in that content, and that the companies knew that ISIS was uploading this content to such effect and did not take steps to remove it. But, held the Court, all this still falls short of establishing liability under §2333 primarily because there was no allegation that ISIS used the platforms to coordinate the nightclub attack or that the attacker himself ever used those platforms. Furthermore, the Court explained that the platforms never gave any special treatment or words of encouragement to ISIS. All that is left, therefore, was the mere creation and passive operation of those platforms, which the Court held to be insufficient to establish liability. The Court also rejected plaintiffs’ arguments that the platforms’ algorithms go beyond passive aid and constitute active, substantial assistance; not so, held the Court, because those algorithms were content neutral. “Once the platform and sorting-tool algorithms were up and running, defendants at most allegedly stood back and watched; they are not alleged to have taken any further action with respect to ISIS.”
Because plaintiffs were unable to establish affirmative misconduct, their claim rested solely on “an alleged failure to stop ISIS from using these platforms,” which the Court also held was insufficient to establish aiding-and-abetting liability for “mere passive nonfeasance.” The relationship between the social media platforms and the nightclub attack was too attenuated primarily due to the lack of allegations connecting ISIS’s use of the platforms with the actual attack at issue. In addition, plaintiffs pointed to no act of the social media companies encouraging, soliciting, or advising the attack, but rather portrayed them merely as passive bystanders. And plaintiffs could not identify any independent duty in tort that would have required the social media companies to remove the ISIS content from their platforms. On this point the Court explained: “The fact that some bad actors took advantage of these platforms is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted those wrongdoers’ acts. And that is particularly true because a contrary holding would effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them.”
The Court concluded with a summary of the guideposts when determining aiding-and-abetting liability in this context: “When there is a direct nexus between the defendant’s acts and the tort, courts may more easily infer such culpable assistance. But, the more attenuated the nexus, the more courts should demand that plaintiffs show culpable participation through intentional aid that substantially furthered the tort. And, if a plaintiff ’s theory would hold a defendant liable for all the torts of an enterprise, then a showing of pervasive and systemic aid is required to ensure that defendants actually aided and abetted each tort of that enterprise.” The Court held that the nexus between the social media platforms and the nightclub attack is far removed, and holding them liable would render liability for every ISIS attack. Thus, plaintiffs failed to state a claim under §2333.
Justice Jackson wrote a short concurring opinion to emphasize that both this decision and the decision in Gonzalez v. Google (below) are narrow in that they are rulings at the motion-to-dismiss stage, with no factual record. “Other cases presenting different allegations and different records may lead to different conclusions.” She also wrote that the Court’s interpretation of §2333 does not necessarily translate to other contexts.
Gonzalez v. Google LLC, 21-1333. Through a three-page per curiam opinion, and based on its ruling in Twitter v. Taamneh, the Court reversed the Ninth Circuit judgment and remanded without reaching the question presented. This case arises from the 2015 ISIS terrorist attacks in Paris, France, that killed 130 victims. One of the victim’s family members sued Google under §2333 on similar grounds as the plaintiffs in Twitter, alleging that Google was directly and secondarily liable for the attack. The district court dismissed plaintiffs’ complaint. The Ninth Circuit affirmed (in a consolidated opinion that also addressed Twitter v. Taamneh) on the grounds that most of the claims were barred by §230 of the Communications Decency Act of 1996, and that plaintiffs’ remaining allegations “failed to state a viable claim in any event. “ Although the Supreme Court granted certiorari to review the Ninth Circuit’s application of §230, it declined to rule on that issue because it appears that the claims fail to state a claim for aiding and abetting under §2333 for the same reasons it explicated in the Twitter opinion. Thus the Court vacated the judgment and remanded to the Ninth Circuit to consider plaintiffs’ complaint in light of Twitter.
Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 21-1454. By a 7-2 vote, the Court held that the Federal Labor Relations Authority (FLRA) has jurisdiction over a labor dispute between the Ohio National Guard and its dual-status technicians because the Guard acts as a federal agency when it supervises such technicians in their civilian roles. The Federal Service Labor-Management Relations Statute (FSLMRS) governs labor-management relations for federal agencies. Among other provisions, it guarantees the right of federal employees to collectively bargain and prohibits various forms of unfair employment practices. The FLRA administers the statute and adjudicates labor disputes. The Ohio National Guard, like other state Guard programs, employs dual-status technicians. They are “dual-status” because they have both civilian and military roles. On the one hand, they generally work full-time in a civilian job and receive federal civil-service pay. On the other, they are members of the Guard, must wear uniforms, and participate in drills, military training, and active-duty deployment. They are federal employees of the Department of the Army or Department of the Air Force, and work for particular state Guard programs pursuant to express designations of authority from the relevant service branch secretary.
Beginning in 1971, the Ohio Guard recognized a branch of the AFL-CIO as the representative of its dual-status technicians. The Guard and the union entered into a series of collective bargaining agreements (CBAs), the last of which expired in 2014. When the last CBA expired, the parties continued to negotiate over terms. In 2016, the Guard agreed to comply with some portions of the expired CBA. Later that year, however, it announced that it was not bound by the CBA. It communicated directly with technicians about withholding their union dues, and eventually stopped withholding dues for 89 employees. The union filed unfair labor practice charges against the Guard with the FLRA. The Guard argued before the administrative law judge that the FLRA did not have jurisdiction over the dispute because the Guard was not an “agency” for the purposes of the FSLMRS and the technicians were not “employees.” A divided panel of the FLRA rejected this argument and adopted the administrative law judge’s finding that the Guard violated the statute. The Sixth Circuit denied the Guard’s petition for review. In an opinion by Justice Thomas, the Court affirmed.
The Court explained that the FSLMRS speaks of unfair labor practices by an “agency,” making the definition of “agency” the key to the case. The FSLMRS defines “agency” as an “Executive Agency,” which is defined to mean “an Executive department, a Government corporation, and an independent establishment.” §105. There was no dispute that the Guard is neither of the latter two types of entities. But is it an “Executive department” when it acts in its capacity as supervisors of dual-status technicians? An “Executive departmen[t]” is defined to mean each of 15 Cabinet-level Departments, including “[t]he Department of Defense,” §101. The Court explained the parties’ positions as follows: “Petitioners [the Guard, et al.] work backwards through the links in the statutory chain. They argue that they are not an Executive department because they are not listed among the 15 Cabinet-level Departments specified in §101. Thus, they claim, they are not an ‘Executive agency’ under §105 and, accordingly, do not qualify as an ‘agency’ under the Statute. Respondents [the FLRA et al.] counter that the components, representatives, and agents of an agency may be required to comply with the Statute. And they emphasize that petitioners exercise federal authority in employing dual-status technicians and must therefore comply with applicable federal law. Respondents have the better of the argument.”
The Court explained that each dual-status technician is, by law, an employee of the Department of the Army or Air Force, which are components of the Department of Defense, which is an agency. “And,” held the Court, “components of covered agencies plainly fall within the Statute’s reach. . . . Accordingly, when petitioners employ and supervise dual-status technicians, they—like components of an agency—exercise the authority of the Department of Defense, a covered agency.” The Court added that the Guard is permitted to supervise technicians only because the relevant service secretary authorizes it to. It would be “passing strange” if an entity could supervise federal employees but was “not required to safeguard the rights guaranteed to employees under the Statute.”
The Court found that Administrative precedent and the FSLMRS’s saving clause supported this conclusion. Before Congress enacted the FSLMRS in 1978, Executive Order 11491 governed the relationship between federal agencies and unions. The FSLMRS incorporates the “[p]olicies, regulations[,] procedures . . . and decisions” of the prior executive order framework unless and until they are overridden by express statutory language or an executive order to the contrary. In 1971, the Assistant Secretary of Labor “rejected arguments virtually identical to those petitioners advance here” in an administrative decision under Executive Order 11491. That decision turned on the order’s definition of “employee” and “agency,” which “were materially identical” to those that Congress used in the FSLMRS. Because neither Congress nor the executive branch had repudiated that administrative decision, it remained “in full force and effect” under the FSLMRS’s savings clause.
Justices Alito and Gorsuch dissented. They pointed out that the majority did not hold that the Guard was an agency, only that it “acts as” or “functions as an agency.” To the dissenters, the FSLMRS is clear: the FLRA has jurisdiction only over agencies (or labor organizations, but that was not at issue). An “agency” includes “an Executive agency,” which in turn means “an Executive department, a Government corporation, [or] an independent establishment.” The Guard is not one of the 15 enumerated departments. By their definitions, it is not a “Government corporation” or an “independent establishment” either. Because the Guard is not an agency, the FLRA did not have jurisdiction.
The dissent agreed that technicians were federal employees with federally-protected rights. But that does not mean that the FLRA has jurisdiction to enforce those rights; the Court “regularly acknowledge[s] many potential impediments to granting a judicial remedy, even to a litigant that might be able to prove that another party has breached its rights.” Although a covered agency authorized the Guard to supervise its employees, that did not turn the Guard itself into a covered agency. Finally, the dissent rejected the majority’s reliance on the saving clause and the prior administrative decision. The saving clause was not intended to codify particular decisions, but only to “prevent the slate from being wiped clean” until the FLRA and courts could interpret the FSLMRS. The dissent distinguished the 1971 decision and pointed out that a single administrative holding could not override clear statutory text.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 21-869. By a 7-2 vote, the Court held that the “purpose and character” of the Andy Warhol Foundation (AWF’s) licensing of a portrait of the musician Prince to a magazine publisher did not weigh in favor of finding that it made fair use of the photograph upon which it was based. Lynn Goldsmith is a photographer who has photographed many musicians. In 1981, she took a series of photos of Prince. In 1984, Vanity Fair magazine licensed one of those photos to use as an “artist reference” for a single illustration that would appear in its November issue. Vanity Fair hired Andy Warhol to make the illustration. Applying his artistic techniques to Goldsmith’s photograph, Warhol produced a purple silkscreen portrait of Prince for Vanity Fair. He also made 15 other illustrations―the Prince Series―all based on the photograph. Goldsmith periodically licensed her photographs of Prince to other magazines, and was unaware that Warhol created the Prince Series. When Warhol died, the copyright to the Series passed to AWF. In 2016, publisher Condé Nast asked AWF if it could re-use the 1984 Vanity Fair illustration for a special edition magazine to commemorate Prince. When Condé Nast learned about the other images in the Prince Series, it selected Orange Prince―a piece similar to, but in a different color than, the 1984 Vanity Fair image. Condé Nast licensed Orange Prince from AWF for $10,000 and did not credit or pay Goldsmith. When Goldsmith saw Orange Prince on the cover of the magazine, she recognized her work. After she informed AWF that Orange Prince infringed on her copyright, it sued her for a declaratory judgment of noninfringement or, alternatively, for fair use. Goldsmith counterclaimed for infringement.
The district court granted summary judgment for AWF. It found that Orange Prince made fair use of Goldsmith’s photograph in part because it “transformed” the work. The Second Circuit reversed, finding that all four fair-use factors enumerated in 17 U.S.C. §107 favored Goldsmith. The only question before the Supreme Court was whether the first statutory factor―“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”―weighed in favor of Goldsmith or AWF. In an opinion by Justice Sotomayor, the Court held that it favored Goldsmith and therefore affirmed.
The Copyright Act gives creators of original works certain time-limited rights in their creations, subject to some restrictions. In 1976, Congress codified the common law “fair use” exception at §107 with a four-factor test. In the Court’s view, the first factor is concerned with the “reasons for, and nature of, the copier’s use of an original work” and is aimed principally at preventing later work from substituting for the original. In weighing it, courts should “consider whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use.” The Court explained that commercial use weighs against a finding of fair use, but is not dispositive. If the original work and secondary use share “the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification.”
The Court further stated that courts should carefully consider what “use” is alleged to be infringing: “[t]he same copying may be fair when used for one purpose but not another.” Goldsmith’s photograph was used in many ways, by Vanity Fair, Warhol, AWF, and Condé Nast. The Court focused only on “AWF’s commercial licensing of Orange Prince to Condé Nast”―it expressly did not consider whether creating, displaying, or selling the Prince Series infringed on her copyright. Goldsmith licensed her photos of Prince to magazines for stories about Prince. When AWF licensed Orange Prince to Condé Nast, it also did so to illustrate magazine stories about Prince. “In that context, the purpose of the image[s] is substantially the same[.]” Further, noted the Court, AWF’s license was also commercial in nature. These two considerations pointed away from fair use. The Court contrasted this use of Orange Prince from, for example, Warhol’s use of the Campbell’s Soup logo to create his famous Soup Cans series. Warhol did not create those paintings to sell soup, but to comment on consumerism.
The Court rejected AWF’s argument that Orange Prince so transformed Goldsmith’s photograph that it had a new meaning or message. Transformation may weigh in favor of a finding of fair use, but courts should be careful not to let this exception swallow the right of creators to make derivative works. Below, the district court found that Orange Prince was transformative because Warhol meant to depict Prince differently than Goldsmith had in her photograph. But, held the Court, determining the purpose and character of a use is an entirely objective inquiry that “cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or, for that matter, a judge—draws from the work.” (Quotation marks omitted.) Again, observed the Court, the use in question was AWF’s commercial licensing agreement with Condé Nast. Although Orange Prince was different from Goldsmith’s photograph, “that degree of difference is not enough” given that it played the same role―illustrating magazine articles about Prince―in context.
Justice Gorsuch wrote a concurring opinion, which Justice Jackson joined. They rejected AWF’s focus on the purpose and character of Orange Prince. Section 107(1) looks to the “use” of a work, not the subjective intent of creators or the artistic merit of the works. Justice Gorsuch reasoned that, because other portions of the Copyright Act protect the rightsholder’s ability to create “derivative works,” it cannot be enough for an alleged infringer to claim that he or she added to or adapted the original. Justice Gorsuch further found that the fourth fair-use factor, which requires courts to consider the market effect on the original work, also supports the conclusion that the fair-use inquiry is focused on the particular use of the work. The concurring justices agreed with the majority that “the undisputed facts reveal that [AWF] sought to use its image as a commercial substitute for Ms. Goldsmith’s photograph.” To address the dissent’s concerns, the concurrence emphasized that the Court held only that the first fair-use factor weighed against AWF for this particular use of Orange Prince.
Justice Kagan issued a dissenting opinion, which Chief Justice Roberts joined. The dissenters believed that the majority did not realize or appreciate how much Warhol added to Goldsmith’s photograph when he created Orange Prince. They disagreed with the majority’s reading of precedent; in their view, the critical inquiry for the first factor was whether the alleged infringing work “add[s] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message.” The majority’s focus on the commercial nature of the use rather than the artistic difference was reductive and constituted a “doctrinal shift” in copyright law.
The dissent described Warhol’s detailed creative process and pointed out that every testifying art expert agreed that he had transformed Goldsmith’s photograph. As a result, Orange Prince and the photograph were not commercially fungible products. In the dissent’s view, the majority’s approach also read the word “character” out of the statute. Giving inordinate weight to the commercial nature of the use would swallow canonical examples of fair use, like “criticism, comment . . . scholarship, or research,” because those activities are usually done in exchange for money. Focusing on the commercial impact on the original work also imports the fourth factor into the first. The dissent pointed out that the concurrence would not give any weight to whether a work was transformative while the majority might give it some, creating uncertainty for lower courts. The dissent produced examples throughout history of writers and artists who borrowed or stole from each other to create new works. Said the dissent, without a fair-use factor to account for artistic additions, licensors could stifle this time-honored creative tradition.
Amgen Inc. v. Sanofi, 21-757. The Court unanimously held that Amgen’s patent on a genus of antibodies was invalid for failing the Patent Act’s enablement requirement. In the mid-2000s, several pharmaceutical companies began researching new ways to treat patients with high levels of “bad” LDL cholesterol. The human body naturally produces LDL receptors, which reduce the level of LDL in the bloodstream. But another naturally-occurring protein, PCSK9, interferes with this process by binding to and degrading these receptors. The more that PCSK9 binds to LDL receptors, the more LDL remains in the bloodstream. The pharmaceutical companies focused on making antibodies that could stop PCSK9 from degrading LDL receptors. The function of an antibody depends both upon its chemical composition and its three-dimensional shape. Scientists do not fully understand this relationship, and discovering the right combination to achieve the desired effect requires experimentation. Moreover, antibodies with different chemical and spatial configurations may be able to perform the same function. In 2011, both Amgen and Sanofi obtained patents for their own unique antibodies that would bind to PCSK9 and prevent it from degrading LDL receptors. They both sold medications based off of their patents.
In 2014, Amgen obtained two additional patents. Instead of patenting a particular antibody, these patents claimed “the entire genus” of antibodies that could bind to PCSK9 and block it from binding to LDL receptors. In its submissions, Amgen identified 26 antibodies that would fall under the patents. Beyond that, it described two processes―the “roadmap” and “conservative substitution”―by which scientists could generate candidate antibodies and test to see if they bind to PCSK9 in the proper way. Amgen then sued Sanofi for infringing on these patents with its medication. Sanofi argued that Amgen’s genus patents were invalid because they had not “enabled a person skilled in the art” to make and use all of the antibodies that Amgen claimed. See 35 U.S.C. §112(a) (the enablement requirement). Sanofi alleged that, beside the 26 fully-described antibodies, there could be “millions more undisclosed antibodies that perform these same functions.” The district court agreed, finding that Amgen had not enabled the full scope of its patent. The Federal Circuit affirmed. In an opinion by Justice Gorsuch, the Court affirmed.
The Court began with the purpose of the patent system. Congress may grant inventors a time-limited monopoly on their inventions. In exchange, inventors must make their inventions public so that others might use them after the monopoly expires. To this end, Congress requires patent applicants to provide “a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same.” §112(a). Precedent established that “[t]he more one claims” to be covered by a patent, “the more one must enable.” A patent may set a specification that calls for a degree of experimentation to make and use it, but how precise its instructions must be will vary depending on the subject matter.
The Court agreed that Amgen’s genus patents fully-enabled the 26 example antibodies. But the patents did not enable the entire claimed universe of perhaps “millions” of antibodies that would bind to PCSK9 in the desired way. The roadmap and conservative substitution processes amounted to “little more than research assignments” for future scientists, a “trial-and-error method for finding functional antibodies.” Accordingly, the patents did not reasonably enable a person skilled in the art to make and use all antibodies that would bind to PCSK9 in the desired way. The Court found that result supported by its precedents, particularly O’Reilly v. Morse, 15 How. 62 (1854) (rejecting Samuel Morse’s broad patent claim for “all means of achieving telegraphic communication, yet Morse had not described how to make and use them all”); The Incandescent Lamp Patent, 159 U.S. 465 (1895) (rejecting a patent claim for an “‘electric lamp’” with an “‘incandescing conductor’” made of “‘carbonized fibrous or textile material,’” where only through “painstaking experimentation” can one determine what fibrous or textile material works); and Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245 (1928) (rejecting patent claim that sought to “claim all starch glues made from whatever starch happened to perform as well as animal glue”).
The Court rejected Amgen’s arguments to the contrary. Although it agreed that the test for enablement does not depend on the cumulative time and effort required to fully embody a claim, it did not believe that the Federal Circuit applied that standard. Similarly, it agreed that genus claims do not face a special burden for enablement, but did not “understand the Federal Circuit to have thought differently.” And it rejected Amgen’s argument that affirming would cripple innovation; striking the proper balance is a policy question best directed to Congress.
Polselli v. Internal Revenue Service, 21-1599. To pursue unpaid taxes, the IRS is afforded the ability by statute to issue a summons to determine liability for unpaid taxes and also to collect on that liability. 26 U.S.C. §7602(a). These summonses may be extended to third parties so that the IRS may collect information that may be relevant in the investigation of the delinquent taxpayer. As a general rule, the IRS must provide notice of the summons to those third parties, such as when the IRS conducts an investigation for the purpose of “determining the liability” of a taxpayer. §7609(a)(1). And anyone for whom notice is required may move to quash the summons in federal district court. But there are exceptions to the notice requirement. Relevant here, once the IRS has reached the stage of “collecting any such liability”—which is a distinct activity from determining liability—notice may not be required. §7609(c)(2)(D). The Court unanimously held that this exception does not “appl[y] only where a delinquent taxpayer has a legal interest in accounts or records summoned by the IRS under §7602(a).”
This case arises out of the investigation of Remo Polselli, through which the IRS determined that Polselli was liable for more than $2 million in unpaid federal taxes and penalties. Seeking to collect the money, the investigating officer issued summonses for the banking records of two law firms with ties to Polselli as well as accounts held by his wife. The officer issued the summons to the banks themselves, and did not provide notice to the law firms or to Mrs. Polselli. Once those third parties found out about the summonses, they filed motions to quash in district court, but the court dismissed for lack of subject matter jurisdiction, reasoning that the IRS was under no statutory obligation to provide notice. The Sixth Circuit affirmed, holding that the summonses fell within the exception to the notice requirement because the summonses were issued to collect on the unpaid taxes the IRS already determined Polselli was liable for, not to determine his liability. In an opinion by Chief Justice Roberts, the Court affirmed.
The Court rejected petitioners’ argument that the exception to the notice requirement applies only where a delinquent taxpayer has a legal interest in accounts or records summoned by the IRS. Relying primarily on the text of the relevant statute, §7609(c)(2)(D), the Court found only three conditions to exempt the IRS from providing notice to third parties in circumstances like these: (1) a summons must be “issued in aid of . . . collection”; (2) the summons must aid the collection of “an assessment made or judgment rendered”; and (3) a summons must aid the collection of assessments or judgments “against the person with respect to whose liability the summons is issued.” The Court held that none of these components includes a taxpayer’s legal interest in the records sought by the IRS, let alone requires that a taxpayer maintain such an interest for the exception to apply. The phrase “in aid of the collection” from the third component does not create a legal interest requirement because, in this case for example, although Mr. Polselli might not have a legal interest over the accounts subject to the summonses, those accounts may nonetheless help the IRS find assets he does control so as to pay on his tax liability.
The Court added that, “[h]ad Congress wanted to include a legal interest requirement, it certainly knew how to do so. The very next provision—also enacted as part of the Tax Reform Act of 1976— requires the IRS to ‘establish the rates and conditions’ for reimbursing costs ‘incurred in searching for, reproducing, or transporting’ information sought by a summons. §7610(a)(2); see 90 Stat. 1702. But the IRS may not provide reimbursement if ‘the person with respect to whose liability the summons is issued has a proprietary interest in’ the records ‘to be produced’ §7610(b)(1).” The Court found the absence of a similar limitation in §7609(c)(2)(D) to be telling. The Court also rejected petitioners’ argument that its position made §7609(c)(2)(D)(ii) superfluous, finding relevant differences between clauses (i) and (ii) that mean that “the second notice exception found in clause (ii) applies in situations where clause (i) may not.”
Justice Jackson, joined by Justice Gorsuch, wrote separately to emphasize that the notice exception at issue in this case is not limitless. First, Justice Jackson wrote that “the default rule when the IRS seeks information from third-party recordkeepers under this statute is notice.” The notice rule and its limited exceptions balance the need for the IRS to summon recordkeepers without delay or deception with the right to judicial review for persons whose information is at stake to prevent the agency from overreaching. Second, Justice Jackson warned of the dangers of reading the notice exemptions too broadly, which could permit the IRS to summon anyone’s records without notice. In order to achieve that balance, Justice Jackson advised courts and the IRS itself to be “ever vigilant when determining when notice is not required” by engaging in a “careful fact-based inquiry that might well vary from case to case, depending on the scope and nature of the information the IRS seeks.”
Part II: Case Granted Review
Alexander v. South Carolina State Conference of the NAACP, 22-807. The Court noted probable jurisdiction to review a three-judge district court’s ruling that a South Carolina congressional district is the product of an unconstitutional racial gerrymander. South Carolina’s Congressional District 1 was redrawn after the 2020 Census. The panel found that the new map moved a significant number of Charleston’s Black population from District 1 to District 6. The panel further found that the South Carolina legislature subordinated traditional redistricting principles—such as respect for political boundaries and communities of interest—in District 1’s redrawing, and that race predominated instead. And the panel found that the “racial composition of a [precinct] was a stronger predictor of whether it was removed from [District 1] than its partisan composition.”
The state appellants argue that the panel’s ruling should be reversed because the panel purportedly failed to apply the presumption of good faith, analyze District 1 “as a whole,” or examine the intent of the General Assembly “as a whole.” They argue that the panel erroneously equated the purported racial effect of the redistricting with a racially predominant purpose. They also argue that the challengers failed to present an alternative race-neutral map that could have achieved the legislature’s redistricting goals, which they contend is required in this context. And, they maintain, the redistricted map complied with constitutional redistricting principles. In short, they assert that the panel’s decision is “a thinly reasoned order that presumes bad faith, erroneously equates the purported racial effect of a single line in Charleston County with racial predominance across District 1, and is riddled with ‘legal mistake[s]’ that improperly relieved Plaintiffs of their ‘demanding’ burden to prove that race was the ‘predominant consideration’ in District 1.”
In moving to affirm the three-judge panel’s ruling, the map’s challengers (the appellees) point to deliberate “cracking” of Charleston’s Black population and diluting those votes among several districts including District 1. They argue in that regard that the map drawers took efforts to offset every Black voter added to District 1 by removing Black voters into neighboring districts. The challengers also argue that the state disregarded traditional redistricting principles. For example, they point to the fact that the new District 1’s landmass is non-contiguous and that numerous counties were split up. The challengers also point to computer simulated maps that demonstrated (they say) that the proposed map could not be explained for reasons other than a racial gerrymander. Similarly, they argue, the evidence demonstrated that partisanship alone could not explain the use of race in drawing the proposed map. Finally, the challengers seek affirmance on the district court panel’s alternative ruling that ruling that the redistricting was motivated by intentional discrimination against Black voters.
Carnahan v. Maloney. 22-425. The question presented is “[w]hether individual Members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the Members have requested under 5 U.S.C. 2954.” After the 2016 election, Members of the Democratic minority of the House Oversight Committee began to scrutinize a 2013 agreement between the General Services Administration (GSA) and a company owned in part by President Trump, which leased the Old Post Office and converted it into a hotel. The Members believed that the lease raised “numerous issues” that required “congressional oversight,” including “potential conflicts of interest” and the “GSA’s ongoing management of the lease.” Invoking the federal statute, 5 U.S.C. §2954, which gives any seven Members of the House Oversight Committee the right to request and receive from executive agencies any information relating to matters within the Committee’s jurisdiction, the Members submitted three requests to the GSA in 2017. The requesters asked GSA to produce various records relating to the Old Post Office lease with President Trump’s company. GSA initially declined to turn over the requested documents, though after this litigation commenced it announced that it would construe §2954 requests as requests under the Freedom of Information Act (FOIA). Doing so, GSA turned over much of the information sought by the Members, but withheld documents that it determined were privileged or otherwise protected from disclosure under FOIA. GSA later made several productions of nonpublic documents that were responsive to the Members’ section 2954 requests. The Members were “not satisfied” and proceeded in this litigation.
The Members sued, claiming that GSA violated §2954 and an order directing it to produce records. The district court dismissed the complaint for lack of Article III standing, reasoning that, although individual Members of Congress “may go to court to demand something to which they are privately entitled,” this Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997), established that Members generally “cannot claim harm suffered solely in their official capacities as legislators.” The court determined that, because the failure to answer §2954 requests harmed the Members only in their official capacities, not in their private capacities, the Members lacked standing under Raines. A divided panel of the D.C. Circuit reversed. 984 F.3d 50.
The D.C. Circuit held that the Members had standing because they had been denied information that they seek and to which they claim a statutory entitlement, and thus they suffered an Article III injury. The court of appeals rejected the government’s argument that under Raines harms to Members of Congress in their official capacity generally do not qualify as Article III injuries. The court instead relied on Powell v. McCormack, 395 U.S. 486 (1969), a case in which the Court entertained a representative’s claim that the House of Representatives had unlawfully excluded him from his seat and withheld his salary.
The government petitioners argue that Raines controls this case. As in Raines, they argue, the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress; the claimed injury lies solely with the Members’ seat. Similarly, the government argues, the official-capacity harms cannot qualify as harms because they are not particularized or affect each Member in a personal and individualized way. The government also notes that §2954 does not create a particularized harm because it exists to advance the work of the entire Oversight Committee, not any individual congressperson, and this sort of institutional harm is insufficiently particularized to bring standing to an individual Member. Finally, the government argues that the court of appeals misread Powell because in that case, the individual Congress member plaintiff suffered a concrete and particularized injury, namely “a loss of salary.” That injury affected the member personally and did not merely attach to the Member’s seat.
Brown v. United States, 22-6389; Jackson v. United States, 22-6640. At issue in these consolidated cases is “[w]hether the ‘serious drug offense’ definition in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(A)(ii), incorporates the federal drug schedules that were in effect at the time of the federal firearm offense,” at the time of sentencing for the federal firearm offense, or “at the time of the prior state drug offense.” This matters where, as in these cases, Congress decriminalizes a particular drug between those times.
Title 18 U.S.C. §922(g) bans firearm possession by various classes of persons, including any felon “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” The Armed Career Criminal Act imposes a mandatory-minimum sentence of 15 years for §922(g) violators with three previous “serious drug offense” or “violent felony” convictions. To determine whether a prior state conviction counts as a “serious drug offense” under the ACCA, courts “ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense” or other federal law comparator. If the federal offense is narrower than the state offense, the previous state conviction does not count for these purposes.
In Brown, petitioner Justin Brown was indicted under §922(g) and pleaded guilty to that offense. The sentencing court applied an ACCA enhancement based on Brown’s prior Pennsylvania drug convictions, including possession of marijuana with intent to deliver. Brown objected to the enhancement on the grounds that, after his indictment but before his plea, Congress amended the Controlled Substances Act to decriminalize hemp. Thus, Brown argued, the state marijuana conviction was broader than federal marijuana crimes and could not serve as a predicate offense for the ACCA enhancement. The district court disagreed and sentenced Brown to the 15-year minimum. The Third Circuit affirmed (47 F.4th 147) based on the federal saving statute, which provides that the “repeal of any statute” does not “release or extinguish any penalty . . . incurred under such statute, unless the repealing Act shall so expressly provide.” 1 U.S.C. §109. The Third Circuit thus held that it was required to apply the version of federal law in effect at the time of the §922(g) offense—before Congress decriminalized hemp.
In his petition, Brown argues that the saving statute does not apply because the Controlled Substances Act was amended before his guilty plea and conviction: “Until then, the saving statute has nothing to, well, save. So when (as here) a defendant pleads guilty after Congress changes the law, the saving statute does not come into play.”
In Jackson, petitioner Eugene Jackson had been convicted in 1998 and 2004 of Florida drug crimes for possession of the cocaine-related derivative ioflupane I123. In 2015, the federal government removed ioflupane I123 from federal drug schedules; Florida followed suit and legalized the substance in 2017. In 2021, Jackson pleaded guilty to being a felon in possession of a firearm based on conduct that occurred in 2017. At his sentencing, Jackson argued that, while at the time of his convictions in 1998 and 2004, ioflupane I123 was a federally controlled substance, “at the time of [his] federal firearm offense, ioflupane I123 was not a federally controlled substance. That was so because, as explained above, the federal government had de-scheduled that substance in 2015. The upshot, Petitioner argued, was that his two prior drug offenses were categorically overbroad.” The district court rejected that argument based on circuit precedent and applied the ACCA enhancement based on two prior assault/battery convictions as well as the drug convictions and sentenced Jackson to the minimum of 15 years. Although the Eleventh Circuit at first reversed, upon rehearing the court of appeals affirmed the 15-year sentence, holding that “ACCA’s ‘serious drug offense’ definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.” 55 F.4th 846.
Jackson argues that the “serious drug offense” definition in the ACCA incorporates federal drug schedules at the time of the federal firearm offense. He bases this argument on the statutory text of the ACCA, which keys “serious drug offense” to the federal drug schedules list, which by design change over time. And, he argues, nothing in the ACCA’s text indicates that Congress intended for “controlled substance” to incorporate historical versions of federal drug schedules. Jackson contends that this reading comports with constitutional fair-notice principles so that the defendant can have proper notice of what drug offenses would constitute a predicate offense for the ACCA enhancement at the time he or she committed the firearm offense, which is the crime for which he or she is being sentenced.
NAAG Supreme Court Advocacy Center Staff
- Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
- Todd Grabarsky, Supreme Court Fellow
- Van Snow, Supreme Court Fellow
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