Volume 30, Issue 9
This Report summarizes cases granted review on April 24 and May 1, 2023 (Part I).
The Supreme Court Report is published biweekly during the U.S. Supreme Court Term by the NAAG Center for Supreme Court Advocacy.
Part I: CASES GRANTED REVIEW
Loper Bright Enterprises v. Raimondo, 22-451. The Court limited the grant of certiorari to the second question presented, which asks whether it should overrule Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), “or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Magnuson-Stevens Fishery Conservation and Management Act set up a legal framework to manage and conserve the nation’s fisheries. It created eight regional fishery management councils with the power to, among other things, propose that the Secretary of Commerce adopt fishery management plans. The Act provides that a plan “may require that one or more observers be carried on board a vessel.” In three narrow circumstances not applicable here, the Act requires vessels to pay the salaries of those federal observers. It is silent as to whether the vessels must pay the federal observers in other circumstances. The Act also contains two provisions authorizing the Secretary to impose “necessary and appropriate” measures.
In 2017, the New England Fishery Management Council proposed that the Department create an industry-funded monitoring program to gather information needed to manage and conserve stocks in the Atlantic herring fishery. Under the proposal, some vessels would have to pay for the third-party federal monitors on their fishing trips. After receiving public comment, the Secretary adopted the rule. Petitioners, four family-owned and family-operated companies that “regularly participate in the Atlantic herring fishery,” challenged the rule. They argued that the Act did not give the Secretary the authority to require vessel owners to pay for monitoring. Both parties agreed that the district court should apply the two-step Chevron analysis to review the Secretary’s interpretation of the Act. The district court granted summary judgment for the government, holding that the Act unambiguously authorized the Secretary to require industry-funded monitoring. In so holding, the court emphasized that fishery management plans “may require” fishing vessels to “carr[y]” observers and that it contains two sections authorizing such plans to include other “necessary and appropriate” measures. The court also concluded that, to the extent that the statute was ambiguous, the government’s construction of the Act was reasonable.
A divided panel of the D.C. Circuit affirmed, holding that the statute was ambiguous regarding whether vessels can be required to pay for the federal monitors and that the government prevailed at the second Chevron step. 45 F.4th 359. The majority found the Act at least ambiguous largely for the reasons discussed by the district court. The majority also noted that regulated parties “generally bear the costs of complying” with “regulatory requirements.” The D.C. Circuit majority then turned to Chevron step two, applied “deferential” review, and found the Secretary’s interpretation of the Act to be a “reasonable” way of resolving the “silence on the issue of cost of at-sea monitoring.”
The Supreme Court did not grant review of petitioners’ first question presented, which asked it to determine whether the Secretary had the authority under the Act “to force domestic vessels to pay the salaries of the monitors they must carry.” But it granted certiorari on whether it should overrule or at least clarify Chevron. On that issue, petitioners argue that congressional silence should not count as an ambiguity for Chevron’s first step when a statute expressly delegates the same power to the government in different circumstances. More broadly, they claim that Chevron improperly surrenders the power to “say what the law is” to the executive. They also link the doctrine to the expansion of the unaccountable administrative state. Petitioners claim that Chevron is unworkable because courts struggle with deciding whether to move to the second step of the analysis.
The government responds that petitioners fail to carry their heavy burden to overrule longstanding precedent. And, the government says, because Chevron is a tool of statutory construction, applying it does not surrender the judiciary’s power to the executive. The government disputes petitioners’ claims about the sweeping, unaccountable administrative state and says that merely because some courts disagree about whether particular statutes are ambiguous “does not call into question the workability of the framework itself.”
Murray v. UBS Securities, LLC, 22-660. The Court granted certiorari to determine whether a Sarbanes-Oxley Act (SOX) whistleblower must “prove his employer acted with a retaliatory intent as part of his case in chief” or whether “the lack of retaliatory intent [is] part of the affirmative defense on which the employer bears the burden of proof[.]” Under SOX, publicly-traded companies cannot “discriminate against an employee . . . because of protected whistleblowing activity.” 18 U.S.C. §1514A(a). A wronged whistleblower may sue an employer for retaliation. When a whistleblower invokes SOX and claims he was fired because of his whistleblowing, his claim is “governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.” 18 U.S.C. §1514A(b)(2)(C). Under §42121(b), the plaintiff bears the burden of showing that his or her protected activity was a “contributing factor in the alleged unfavorable personnel action.” The burden then shifts to the employer to demonstrate by clear and convincing evidence that it would have taken the same personnel action “in the absence of the protected activity.”
Petitioner Trevor Murray worked as a research strategist for respondent UBS. Under SEC regulations, he had to certify that his research was independent and reflected his own views. He alleged that his supervisor tried to pressure him to adopt positions that would be helpful to UBS’s business. After he complained, UBS terminated him. At trial, UBS claimed that it eliminated his position for neutral reasons as part of a reduction of force. Murray won at trial; the jury found that he proved that his protected activity was a contributing factor in his termination and that UBS failed to show it would have dismissed him even if he had not complained. The Second Circuit reversed, holding that Murray should have had the burden to show that UBS had “retaliatory intent” when it fired him. 43 F.4th 254. In its view, the statutory language prohibiting “discriminat[ion] . . . because of protected whistleblowing activity” requires proof of intentional or conscious animus. It acknowledged that its holding was at odds with the Fifth and Ninth Circuits, which rejected a retaliatory motive requirement.
Murray argues that adding a retaliatory intent element violates the text, structure, and history of SOX. He says that the text of the burden-shifting provision does not require proof of an intent to retaliate, in contrast to a different portion of SOX, which expressly does. Murray maintains that reading in an intent element would undercut the burden-shifting framework by requiring the whistleblower to preempt the employer’s defense. Finally, he says, Congress specifically intended to make it easier for SOX whistleblowers to prove their prima facie case.
UBS argues that the plain meaning of “discriminate” requires proof of an intent to retaliate. It claims that Murray erroneously conflates causation with intent and that his arguments about the burden-shifting framework accordingly miss the mark. In UBS’s view, not requiring proof of an intent to discriminate would unreasonably impose liability on employers who act in good faith.
O’Connor-Ratcliff v. Garnier. 22-324. The question presented is “[w]hether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.” Petitioners are two elected members of the Poway Unified School District Board of Trustees in Southern California. They used their personal Facebook and Twitter accounts to feature their Board positions and to provide information to the public about their jobs and the school district. Respondents are parents of children who are students in the district; they posted “repetitious and non-responsive comments and replies” to petitioners’ posts and tweets. Eventually petitioners blocked respondents from their Facebook and Twitter pages. Respondents filed a §1983 suit claiming that petitioners had deprived them of their First Amendment speech rights by blocking them from commenting on petitioners’ Facebook and Twitter pages, which they characterized as public fora.
As a matter of law, the district court held that state action existed here because petitioners would not have used their social media pages in the way they did but for their Board positions. The court emphasized that petitioners “swathed” their pages in “the trappings” of their offices and that they frequently communicated with the public about “events which arose out of their official status,” including matters they had the ability to discuss only “due to their positions.” After a bench trial, the district court ruled that petitioners had violated respondents’ First Amendment rights. The court first held that because petitioners had blocked respondents due to the unduly repetitive manner of their comments and replies without regard to critical content, the blocking was content neutral. But the court ruled that petitioners’ continued blocking was not adequately tailored to an appropriate interest.
The Ninth Circuit affirmed, holding that petitioners acted under color of state law by using their pages as public fora because they “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties.” 41 F.4th 1158. The Ninth Circuit then concluded that petitioners’ social-media accounts are public rather than non-public government fora, that petitioners’ content-neutral blocking of respondents is not adequately tailored to an appropriate interest, and that respondents continue to have a live claim despite petitioners’ post-blocking use of word filters to effectively prevent most comments on their Facebook pages.
Petitioners argue that the Ninth Circuit erred because a public official does not engage in state action when blocking users from a social-media account that is not operated pursuant to any governmental authority or duty. They insist that just because an account conveys an official appearance and communicates with the public about official business does not automatically transform personal accounts into governmental public fora. Rather, petitioners argue, the account must be opened and operated pursuant to direct state authority or duty. This “authority or duty” requirement—as has been adopted by the Sixth Circuit in Lindke v. Freed, see below—for state-action exists to protect individual liberty, and that includes the liberty of individuals holding public office to control the manner in which they use their personal social media accounts to communicate with the public about their jobs and the work of government.
Lindke v. Freed, 22-611. Like O’Connor-Ratcliff, this case concerns the standard for determining whether a public official’s social media use constitutes state action that could be subject to First Amendment scrutiny. Here the question presented is, “[w]hether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.” Respondent James Freed became the City Manager of Port Huron, Michigan, the city’s chief administrative officer appointed by the mayor and city council. Upon becoming City Manager, Freed converted his Facebook “profile” to a “page,” which classified him as a “public figure” and allowed him to be “followed” by more than 5,000 friends. Freed frequently used the page to post information about city programs, policies, and initiatives, and in March 2020, he began posting information about the COVID-19 pandemic. Around that time, petitioner Kevin Lindke, a resident of Port Huron, posted comments critical of the city’s pandemic response on Freed’s Facebook page several times from three different profiles. Freed responded by blocking each of Lindke’s accounts and deleting his comments. Lindke sued under §1983, alleging that Freed violated his First Amendment rights by deleting his comments and blocking his accounts.
The district court granted summary judgment for Freed, concluding that his Facebook activity was not state action and therefore was not subject to the First Amendment. The Sixth Circuit affirmed, adopting a “duty-or-authority test” under which a state official’s social-media conduct constitutes state action only where the activity was conducted in furtherance of a governmental “duty” or invoked “state authority.” 37 F.4th 1199. This created a split with other circuits—notably the Ninth Circuit in O’Connor-Ratcliff. Those other circuits considered a broader range of factors when determining state action in this context, including “a social-media page’s purpose and appearance,” such as where the public official’s conduct conveys the “impression that the page operated under the state’s imprimatur.” Applying the duty-or-authority test to Freed’s conduct, the Sixth Circuit determined that Freed had not engaged in state action. On the duty prong, no state law, ordinance, or regulation compelled him to operate a Facebook page. And on the authority prong, the page did not belong to the office of the city manager, nor did Freed rely on government employees to maintain it.
Lindke argues in his petition that the Court should reject the “duty-or-authority” test and instead should resolve whether state action occurs by examining the totality of the circumstances. This, Lindke argues, would comport with prior decisions of the Court, which tend to reject rigid tests in this context in favor of ones that consider a variety of factors. Lindke also points to the purpose of §1983: to hold government officials to account for constitutional violations. In recognition of that purpose, courts must take into account whether government officials “cloaked” their social media activity in the trappings of their public office when determining whether state action occurred here. The fact that Freed used his social media pages to communicate official government business to his constituents cannot be discounted when determining whether a constitutional violation occurred.
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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