July 23, 2024 | Volume 31, Issue 21
This Report summarizes cases granted review on July 2, 2024 (Part I).
CASES GRANTED REVIEW
Free Speech Coalition, Inc. v. Paxton, 23-1122.
The question presented is “[w]hether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.” Texas H.B. 1181 requires any website that publishes content one-third or more of which is “sexual material harmful to minors” to (among other things) verify the age of every user before permitting access. H.B. 1181 permits verification by “digital identification,” “government-issued identification,” or “a commercially reasonable method that relies on public or private transactional data.” The entity performing age verification “may not retain any identifying information of the individual.” The law authorizes enforcement by the Texas Attorney General, with sanctions for violations including injunctive relief and civil penalties up to $10,000 per day, plus additional enhancements of up to $250,000. Petitioners―which include an association of pornographic actors, producers, distributors, and retailers; and foreign and domestic producers, sellers, and licensers of pornography―filed suit alleging that H.B. 1181’s age-verification requirement (among other things) violates the First Amendment (among other things). They moved for and received a preliminary injunction. The district court concluded that the “age-verification requirement is subject to strict scrutiny because it imposes a content-based burden on adults’ access to protected expression.” And it ruled that the “requirement would likely not satisfy strict scrutiny because it was both underinclusive and overly restrictive in pursuing that interest and because more effective, less restrictive alternatives are available.” The Fifth Circuit stayed the injunction and then, by a 2-1 vote, vacated the injunction on the ground that petitioners were not likely to succeed on the merits. 95 F.4th 263.
The Fifth Circuit held that the proper standard of review was the rational-basis review applied in Ginsberg v. New York, 390 U.S. 629 (1968), because the Act is a “regulation[] of the distribution to minors of material obscene for minors.” (Ginsberg applied rational-basis review to a New York law that made it a crime to sell to minors magazines that are obscene as to minors, though not to adults.) The court majority stated that “the dissent’s reading implies that the invention of the Internet somehow reduced the scope of the state’s ability to protect children. That is a dubious principle without support in existing Supreme Court caselaw.” The court distinguished Ashcroft v. ACLU, 542 U.S. 656 (2004)―which applied strict scrutiny to review a similar law―on the ground that none of the parties challenged what level of scrutiny was appropriate. The court then concluded that “[u]nder rational-basis review, H.B. 1181 easily surmounts plaintiffs’ constitutional challenge. As the Court in Ginsberg puts it, we need ‘only . . . be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.’”
Petitioners argue that the Court’s precedents, particularly Ashcroft and Reno v. ACLU, 521 U.S. 844 (1997), establish that “if a state’s regulation of minors’ access to sexual content burdens adults’ access to constitutionally protected expression, then the regulation must satisfy strict scrutiny.” Petitioners also maintain that H.B. 1181 “embodies [] speaker-based discrimination on its face. It leaves unregulated the extensive volume of sexual content on social-media websites and search engines, while aiming its burdensome restrictions on the online pornography industry alone.” (Citation omitted.) Petitioners point to the “’substantial chilling effect’ that the age-verification requirement would inflict on petitioners’ customers, who would be far less likely to access sensitive (but constitutionally protected) sexual content when required to submit personally identifying information that could be leaked, stolen, or otherwise used for purposes of embarrassment or extortion.”
FDA v. Wages and White Lion Investments, LLC, 23-1038.
The Court will review a Fifth Circuit decision holding that the FDA acted arbitrarily and capriciously when it denied respondents’ applications for authorization to market new flavored e-cigarette products. Under the 2009 Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act or Act), a manufacturer may introduce a new tobacco product into interstate commerce only if it obtains authorization from the Secretary of Health and Human Services, who acts through the FDA. As described by the FDA, under the Act it must “weigh (1) the likelihood that the new product will help existing smokers (generally adults) completely switch to less dangerous alternatives, or significantly reduce the amount they smoke, against (2) the risk that the new product will entice new users (generally youth) to begin using tobacco products.” The case concerns applications submitted by respondent Triton Distribution, which makes e-liquids for its own brands and for brands owned by respondent Vapetasia LLC. They sought authorization for e-liquids in flavors such as “Jimmy The Juice Man Peachy Strawberry,” “Signature Series Mom’s Pistachio,” “Suicide Bunny Mother’s Milk and Cookies,” “Blackberry Lemonade,” “Iced Pineapple Express,” and “Killer Kustard Blueberry.” Respondents asserted that those flavors “appeal to adults as well,” and that a “growing body of scientific evidence” showed that “flavors are crucial to getting adult smokers to make the switch and stay away from combustible cigarettes.” The FDA denied their applications.
The FDA “found insufficient evidence that the benefits provided by the flavored e-cigarette products outweighed the risks they posed.” On the benefits side, the FDA “explained that tobacco-flavored e-cigarettes offer the same type of benefit that respondents claimed for their products, but without ‘the same degree of risk of youth uptake.’” The agency found that “the literature does not establish that flavors differentially promote switching amongst [e-cigarette] users in general.” And it concluded that respondents had failed to fill that gap with “reliable and robust evidence” showing that their flavored e-liquids provided benefits beyond those provided by tobacco-flavored products. On the risks side, the FDA claimed that a flavored e-cigarettes are a “’known and substantial risk to youth.’” The agency “declined to evaluate respondents’ marketing plans, in which respondents proposed mitigating the risk to youth by restricting the manner in which their products would be marketed,” on the ground that the agency had previously found such marketing “’insufficient to prevent youth from using e-cigarettes at increasing rate.’” Respondents sought review in the Fifth Circuit. A merits panel denied their petitions, but the en banc Fifth Circuit by a 10-6 vote vacated that ruling, granted the petitions for review, set aside the FDA’s orders denying marketing authorization, and remanded the matters to the agency.
The en banc Fifth Circuit “determined that FDA had unfairly surprised respondents regarding the types of evidence that applicants would need to submit in order to obtain marketing authorization from the agency. In the court’s view, the agency had initially told applicants that they were not required to submit long-term studies to support their applications, but then ‘turned around and denied [respondents’] applications’ because of the failure to submit such studies. The en banc court also determined that the agency had erred by declining to evaluate respondents’ marketing plans. The court rejected the agency’s argument that the error was harmless, reasoning that the ‘harmless-error rule simply does not apply’ to the ‘discretionary administrative decisions’ at issue here.”
The FDA argues in its petition that “[m]anufacturers of flavored e-cigarette products have repeatedly challenged FDA’s denial orders as arbitrary and capricious, often relying on the same legal theories that respondents have invoked here. Seven courts of appeals have rejected those arbitrary-and-capricious challenges as meritless.” The FDA faults the Fifth Circuit for its “misreading of FDA’s guidance documents and a misapplication of fundamental principles of administrative law.” In particular, the agency says that the court “erred in concluding that the agency had told applicants in 2019 that they could obtain authorization without conducting long-term studies about the effects of their products, only to deny respondents’ applications because of the failure to conduct such studies.” To the contrary, the FDA says, the Tobacco Control Act and the FDA’s 2019 guidance require “that a manufacturer provide either ‘well-controlled investigations’ or other ‘valid scientific evidence.’” As to the Fifth Circuit’s second main ground for its ruling, the FDA says that “[a]s six other courts of appeals have recognized, FDA’s failure to consider an applicant’s marketing plan is harmless where (as here) the applicant has failed to show any material difference between the measures proposed in its plan and others that FDA has previously reviewed and deemed insufficient.”
Hewitt v. United States, 23-1002; Duffey v. United States, 23-1150.
These petitions present the same issue: “Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.” Sections 401 and 403 of the First Step Act (FSA) significantly reduced the mandatory minimum sentences for several federal drug and firearm offenses, including 18 U.S.C. §924(c), which criminalizes the use, carrying, or possession of a firearm in connection with a “crime of violence or drug trafficking crime.” Sections 401 and 403 of the FSA apply to offenses committed after the FSA’s enactment on December 21, 2018, and to “any offense that was committed before the date of enactment . . . if a sentence for the offense has not been imposed as of such date of enactment.” FSA §§401(c), 403(b). These cases concern how that provision applies “when a pre-enactment sentence is vacated and the court must impose a new post-enactment sentence.”
Because the cases are now consolidated, we will summarize only Hewitt. In 2009, petitioner Tony Hewitt was convicted on various charges relating to bank robberies he committed in 2008. The district court sentenced him to 355 years of imprisonment, most of which were based on §924(c) counts. On direct appeal, his sentence was vacated; on remand he was sentenced to 305 years of imprisonment; that sentence was affirmed in 2014. Then, in 2019, the Supreme Court held in United States v. Davis, 139 S. Ct. 2319, that §924’s “residual clause” was unconstitutionally vague. That “eliminated conspiracy-based charges as predicates necessary to support convictions under section 924(c).” Because Hewitt had been convicted of such conspiracy-based charges, he requested authorization to file a successive §2255 motion. The Fifth Circuit granted leave. “Back before the district court for resentencing, Hewitt objected to his presentence report, arguing that section 403, which had been enacted in the interim between his sentencings, should apply. Hewitt had been convicted of five 924(c) violations. Under the law in place at the time of his original sentencing, his minimum sentence for these counts would have been 105 years; under the FSA it is only 25.” The district court disagreed and sentenced Hewitt to a 105-year term of imprisonment. The Fifth Circuit affirmed. 92 F.4th 304.
As a reminder, §§401 and 403 of the FSA apply to “any offense that was committed before the date of enactment . . . if a sentence for the offense has not been imposed as of such date of enactment.” FSA §§401(c), 403(b). The Fifth Circuit reasoned that “§403(b)’s use of ‘a sentence’ mean any sentence—including subsequently vacated ones.” “If Congress meant for the First Step Act’s retroactivity bar to apply only to valid sentences,” the court stated, “it could easily have said so.” Quoting a dissenting Seventh Circuit opinion by then-Judge Barrett, the Fifth Circuit added that “vacatur wipes the slate clean insofar as the defendant will be sentenced anew,” but it “does not require the district court to proceed as if the initial sentencing never happened.” Accordingly, held the court, “because sentences for [petitioner’s] offenses had been imposed upon [him] prior to the First Step’s Act’s December 21, 2018 enactment date—even though those sentences were later vacated in 2020—§403(a) of the First Step Act does not apply, as the district court correctly held.”
Hewitt notes that the Government agrees with his reading of the First Step Act. As to the statutory language, he states: “To begin, Congress phrased the FSA’s applicability provision using the present-perfect tense—the reforms apply to any offense for which a sentence ‘has not been imposed.’” And, he insists, “[i]t would be incoherent and ungrammatical to say that a since-vacated sentence ‘has been imposed as of 2021’ because by the time of the speaking, the sentence is recognized as void.” He adds that, “[a]s a matter of simple logic and grammar, a vacated sentence does not ‘continue up to the present,’ The Chicago Manual of Style ¶ 5.132 (17th Ed. 2017), and thus it ‘has not been imposed’ for purposes of the FSA.” Hewitt also asserts that “[t]he FSA’s context and purpose underscore that Congress’s chosen words extend the FSA’s sentencing reform to all defendants on resentencing.”
Monsalvo Velazquez v. Garland, 23-929.
At issue is: “When a noncitizen’s voluntary-departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart?” The statutory background is as follows: “When a removable noncitizen possesses ‘good moral character’ and meets other eligibility criteria, the government may grant the noncitizen up to 60 days to leave the United States at his or her own expense rather than face forcible removal. 8 U.S.C. §1229c(b)(1). A noncitizen who accepts such a voluntary-departure offer but then fails to leave during the allotted period is subject to strict penalties—including hefty fines and ineligibility for various forms of immigration relief for 10 years. §1229c(d)(1). Those penalties do not apply, however, if the noncitizen ‘files a post-decision motion to reopen or reconsider during the period allowed for voluntary departure.’ 8 C.F.R. §1240.26(b)(3)(iii).” The question presented in this case is how this exception applies when the final day of the voluntary-departure period falls on a weekend or holiday.
“Hugo Monsalvo came to the United States nearly 20 years ago as a teenager; he lives in Colorado with his spouse and two U.S.-citizen children. On October 12, 2021, the Board of Immigration Appeals (BIA or Board) gave him 60 days to depart the United States. That 60-day deadline fell on a Saturday; the BIA received Mr. Monsalvo’s motion to reopen in the mail the next business day.” (Citation omitted.) The Board denied Monsalvo’s motion to reopen on its merits and also because he was “ineligible for cancellation of removal because his ‘motion to reopen was filed on December 13, 2021, after the 60-day period of voluntary departure expired.’ . . . Mr. Monsalvo petitioned for review of the BIA’s decision in the Tenth Circuit, challenging the BIA’s determination that he filed his motion to reopen too late and thus failed to comply with the deadline for voluntary departure.” The Tenth Circuit rejected Monsalvo’s petition. 88 F.4th 1301.
The Tenth Circuit ruled that “this case is governed by §1229c, which unambiguously states that while the Attorney General has the discretion to grant voluntary departure, in no event may the time allotted exceed 60 days.” “Monsalvo observed that the BIA’s published guidelines for weekend and holiday deadlines suggested a different result, but the court disagreed. According to the court, the fact ‘[t]hat [the term] “day” is applied in one manner when filing appeals, motions, or other documents in immigration court or with the BIA and another when interpreting a maximum time period designated by statute, makes sense.’ The court reasoned that ‘the same restrictions that apply in the filing context—court or agency closures—do not prevent one from departing, by, for example, boarding a plane, or otherwise being transported to one’s chosen destination.’”
In addition to arguing a circuit split on the issue, Monsalvo contends that the Tenth Circuit decision is wrong. He maintains that “[a] longstanding regulation—one that has existed in some form since immediately after the passage of the INA—expressly forecloses the Tenth Circuit’s holding. Under 8 C.F.R. §1001.1(h), ‘when computing the period of time for taking any action provided in [8 C.F.R., chapter V],’ if ‘the last day of the period . . . falls on a Saturday, Sunday or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, nor a legal holiday’ (emphasis added). Among the ‘action[s]’ provided for in Chapter V are voluntary departure from the country, see §1240.26, and the filing of post-decision motions, see §§1003.2, 1003.23.” (Citation omitted.) Monsalvo notes that “[t]he Department of Justice’s official guidance documents take the same position. Practice manuals for both the immigration courts and the Board of Immigration Appeals provide that ‘[i]f [a filing] deadline falls on a Saturday, Sunday, or legal holiday, the deadline is construed to fall on the next business day.’ Immigration Court Practice Manual §3.1(c)(2)(A), at 41; see BIA Practice Manual §3.1(b)(2), at 41 (using the phrase ‘weekend or legal holiday’).”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
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