June 11, 2025 | Volume 32, Issue 13
This Report summarizes an opinion issued on May 29, 2025 (Part I); and cases granted review on June 2, 2025 (Part II).
Opinion
Seven County Infrastructure Coalition v. Eagle County, 23-975.
Without dissent, the Court reversed a D.C. Circuit decision that rejected the Surface Transportation Board’s environmental impact statement (EIS) and its approval of an 88-mile railroad line in Utah. The Court ruled that the D.C. Circuit had not afforded the U.S. Surface Transportation Board (the Board) the “substantial judicial deference required” in a National Environmental Policy Act (NEPA) case, and that the Board need only address the environmental effects of the railroad line project in its report, not projects “separate in time or place” from the construction and operation of the railroad line. NEPA requires federal agencies to prepare an EIS for certain infrastructure projects that are built, funded, or approved by the federal government. The EIS must address the significant environmental effects of the proposed project and identify “feasible alternatives” that could mitigate those effects. Notably, NEPA “imposes no substantive environmental obligations or restrictions” and is “a purely procedural statute” that “simply” requires the agency to prepare a report.
This case began in 2020 when a group of seven counties in Utah applied for the construction and operation of an 88-mile railroad line in northeastern Utah. The railroad line will connect Utah’s oil-rich Uinta Basin to the national rail network to facilitate the transportation of crude oil from Utah to refineries in other states. The Board determines whether to approve construction of new railroad lines such as this, and it prepared an EIS that was more than 3,600 pages. The Board followed standard NEPA procedures in the process and invited public comments. Its final report addressed the environmental effects of the proposed railroad. Following that procedure, the Board approved the construction and operation of the Uinta Basin Railway. The D.C. Circuit found “numerous NEPA violations arising from the EIS.” The court faulted the Board and its EIS because it had not analyzed the environmental impacts of increased oil drilling upstream in the Uinta Basin and increased oil refining downstream along the Gulf Coast of Louisiana and Texas that could happen as a result of the proposed railroad. The EIS had noted these two matters, but did not analyze them because they are “potential future, as yet unplanned, oil and gas development projects.” The Board had also noted that it has “no authority” over future oil and gas development; those future projects would be subject to the approval of other government and tribal agencies. The D.C. Circuit rejected the Board’s contention that those effects would arise from projects separate from the current project and regulated by other agencies. Based on that failure, the D.C. Circuit vacated both the Board’s EIS and its approval of the railroad line. In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Court first took the opportunity to “reiterate and clarify the fundamental principles of judicial review applicable” in NEPA cases. The Court said: “A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process.” The Court believed a “course correction” was necessary to “bring judicial review under NEPA back in line with the statutory text and common sense.” The Court explained that a reviewing court must not ask whether it agrees with the decision of the agency, but whether the agency’s action was reasonable and reasonably explained. “[W]hen determining whether an agency’s EIS complied with NEPA, a court should afford substantial deference to the agency.” Furthermore, in evaluating the decision, the Court highlighted that NEPA is a “purely procedural statute” and the agency’s only obligation is to prepare an adequate report. The Court stated that the “only role for a court” in reviewing an agency’s EIS “is to confirm that the agency has addressed environmental consequences and feasible alternatives as to the relevant project.” An agency has “substantial discretion” in identifying the environmental consequences and alternatives. The Court noted that agencies will have to make “fact-dependent, context-specific, and policy-laden choices” as well as decisions on the “length, content, and level of detail” in the EIS. The Court stated that reviewing courts should “not micromanage those agency choices so long as they fall within a broad zone of reasonableness.” Here, the Court held that the D.C. Circuit had not afforded the Board the “substantial judicial deference required.”
Turning to the merits, the Court held that the D.C. Circuit was wrong to require the Board to address environmental impacts from future projects in its EIS. In preparing its EIS, the Board determined that upstream oil drilling and downstream oil refining were separate from the construction and operation of the railroad line. The Court agreed and held that the Board’s approach complied with NEPA. The Court held that the Boad need only address the environmental effects of the railroad line project in its report, not projects “separate in time or place” from the construction and operation of the railroad line. The Court ruled that NEPA does not require the agency to evaluate the effects of a separate possible future project or from geographically separate projects. The Court also noted that the Board has “no regulatory authority over those separate projects.” The Board approves railroad lines; it does not regulate oil drilling or oil refineries. The Court had previously stated that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” And “a court may not invoke but-for causation or mere foreseeability to order agency analysis of the effects of every project that might somehow or someday follow from the current project.” The Court concluded that the Board’s decision to exclude analysis of those separate projects was “[a]bsolutely correct.”
Justice Sotomayor authored a concurring opinion, which Justices Kagan and Jackson joined. Justice Sotomayor agreed with the Court’s conclusion because the Board had no authority to reject the application for the railroad based on the harm third parties might cause with products transported on the railroad. The Board could not refuse the railroad based on what it would transport because of its “organic statute” and the common-carrier mandate. Justice Sotomayor noted that an agency is “not responsible for environmental impacts it could not lawfully have acted to avoid, either through mitigation or by disapproving the federal action.” Thus, she concluded that the Board correctly understood the scope of its decision-making and was not required to analyze environmental impacts it could not lawfully prevent. Justice Sotomayor faulted the majority for “tak[ing] a different path, unnecessarily grounding its analysis largely in matters of policy.”
Cases Granted Review
Case v. Montana, 24-624.
The Court will resolve whether “law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.” The Fourth Amendment requires law enforcement to have a warrant, supported by a showing of probable cause, before entering and searching a person’s home. Exceptions to the warrant requirement exist for certain exigent circumstances. Relevant here, a warrant is not required to enter a home if the officers have an “objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398, 400 (2006). “[I]ronclad proof” that a “’likely serious, life-threatening’ injury” is occurring is not necessary to invoke this emergency-aid exception. Michigan v. Fisher, 558 U.S. 45, 49 (2009).
In September 2021, petitioner William Case told his ex-girlfriend over the phone that he was going to commit suicide. He also told her that if she called the police he would harm any officer who came. During their conversation, the ex-girlfriend heard a clicking noise that she believed was a gunshot. Case did not respond to the ex-girlfriend thereafter. The ex-girlfriend reported this incident to police. She also reported that Case had sounded erratic and intoxicated on the phone and had told her that he had a loaded gun. Three officers responded to Case’s home. They knew Case had a history of substance abuse and mental health issues and that he had previously threatened suicide and attempted suicide by cop. At the house, the officers spoke to the ex-girlfriend, who repeated the earlier events, and called their police chief for assistance. In the meantime, the officers did not consider obtaining a warrant because the matter was not criminal and they were intending only to assist Case. The police chief arrived about 30 minutes later. The officers then knocked on Case’s front door and yelled out to Case from an open window but got no response. They surveilled the home through the windows and saw no signs of distress, movement, or injury. They saw instead an empty gun holster, empty beer cans, and a notepad on a table. At least one of the officers, Sergeant Richard Pasha, feared and was reluctant to enter the house, believing Case might again attempt suicide by cop by pulling a gun on them. About 40-45 minutes after their arrival, the officers entered the house. Sergeant Pasha found Case hidden in an upstairs closet and saw a dark object at his waist. Pasha reacted and shot Case, wounding him. The officers arrested Case and impounded his gun. Case later moved to suppress the evidence found in his home, which the trial court denied after finding “an exigent circumstance” had existed to allow the officers’ warrantless entry. In December 2022, Case was convicted of assault with a deadly weapon.
On appeal, a majority of the Montana Supreme Court upheld the court’s suppression ruling under the state’s “community caretaker” exception to the warrant requirement. 553 P.3d 985. That exception allows law enforcement to enter a house for purposes of conducting a welfare check, provided: (1) the welfare check is “wholly divorced from a criminal investigation and is otherwise reasonable”; and (2) there are “objective, specific and articulable facts from which an experienced officer would suspect that a citizen” in the house is in peril or in need of some type of officer assistance. Having found those requirements met here, the court held that the officers’ warrantless entry was justified. The court additionally stated that in cases like these—welfare checks not involving criminal activity—the probable-cause requirement was “’superfluous.’”
Case argues in his petition that the state court was wrong to suggest that the Fourth Amendment permits anything less than probable cause to enter a person’s home without a warrant. He maintains that probable cause is the standard for a warrantless entry, including when the circumstances involve a welfare check or non-criminal emergency. He reasons that the emergency-aid exception announced in Brigham City is an exigent circumstance, and the Court already held in Minnesota v. Olson, 495 U.S. 91 (1990), that exigent circumstances require a showing of probable cause to justify a warrantless entry. Case asserts that allowing anything less than probable cause “would both weaken the protection afforded the home and increase the risk of violent, avoidable confrontation.” He opines that this case exemplifies the risk created by a less-than-probable-cause standard because the officers’ entry into Case’s home was a circumstance that itself created the emergency.
Montana defends the state court opinion. While Montana does not take an explicit position in its brief in opposition about whether probable cause is the correct standard, it acknowledges that Brigham City’s objectively-reasonable test for warrantless home entries “requires, in function if not in form, that officers have probable cause to believe someone is in danger and requires immediate assistance.” Even so, Montana contends the state court reached “the correct result” because it applied Brigham City’s objectively-reasonable test and, when doing so, asked the same question that it would have asked to determine probable cause. Specifically, the court asked whether “an experienced officer would reasonably conclude that entry was necessary because Case was in danger and required assistance.” Montana contends that courts ask a similar question when determining probable cause. Given the similar dispositive question, Montana believes there is little practical difference between an objective reasonably basis that emergency aid is needed and probable cause that emergency aid is needed. Alternatively, Montana argues that the majority’s opinion remains correct even if the state court applied a standard less exacting than probable cause. It reasons that the majority “properly balance[d] the Fourth Amendment’s privacy and public safety interest.” It noted that the Fourth Amendment’s privacy protections “’must give way to the sanctity of human life,’” as the Eleventh Circuit wrote in United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002), and as Justices Alito and Kavanaugh have acknowledged in separate concurring opinions in Caniglia v. Strom, 593 U.S. 194 (2021).
Bost v. Illinois State Board of Elections, 24-568.
At issue is whether three political candidates “pleaded sufficient factual allegations to show Article III standing to challenge” an Illinois law that requires absentee ballots cast pre-election but received post-election to be counted. Illinois requires state election officials to count federal absentee ballots that are post-marked (or certification dated) on or before election day. For such ballots received after election day, only those ballots received within 14 days of election day must be counted. The parties refer to the latter law as Illinois’s ballot “receipt deadline” law.
Prior to the 2022 federal election, three political candidates challenged Illinois’ receipt-deadline law in federal district court. One such challenger was Michael J. Bost, an Illinois congressman who has served in that capacity since 2015. Most recently, Bost won the seat in both the 2022 and 2024 elections. The other challengers were two Republican electors “for president and vice president during both the 2020 and 2024 federal elections.” They asserted three claims: Illinois’ “receipt and counting of late-arriving ballots dilutes the value of [their] right to vote”; the receipt-deadline law “injures them as federal candidates” by “infringing on their right to stand for office”; and the receipt-deadline law is preempted by the federal law setting Election Day as the first Tuesday after the first Monday in November. Illinois moved to dismiss the complaint, arguing in part lack of standing. The challengers responded that they had standing based on (1) their “interest[s] in ensuring the final official vote tally in their elections reflects only legally valid votes”; and (2) Bost’s expending money and time to organize, fund, and continue running his campaign during the state’s counting of post-election absentee ballots. They did not specifically allege that the late-counted votes would affect the outcome of any races in which they competed. The district court granted the state’s motion to dismiss for lack of standing, and a divided panel of the Seventh Circuit affirmed. 2024 U.S. App. LEXIS 21142.
The Seventh Circuit panel concluded that the alleged harm based on the challengers’ interests in ensuring that only “legally valid votes” are counted was speculative. It faulted Bost and the electors for not alleging a “competitive injury,” i.e., a risk that the post-election ballots “’that will be received and counted after Election Day’ would materially affect their likelihood of prevailing in their elections.” On this point, the majority rejected the challengers’ reliance on “concerns about margins of victory and the potential impact [of] illegal ballots on [their] reputations and fundraising.” The court noted that Bost went on to win the 2022 election “by a large margin.” The Seventh Circuit panel next concluded that the challengers’ campaign-finance theory was speculative and did not concern an actual or imminent, and “certainly” not impending, injury. It reasoned that, to the extent Bost expended additional money and time in connection with the post-election ballots’ counting, he had done so by choice, which was insufficient to establish standing.
In his petition, Bost and the electors argue that the Seventh Circuit misread, misapplied, or ignored key precedent regarding Article III standing, including such cases as FEC v. Ted Cruz for Senate, 596 U.S. 289 (2022), Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), and Lance v. Coffman, 549 U.S. 467 (2007). Bost maintains that he has standing based “on the prospect that illegal votes could diminish [his] margin of victory.” He also relies on the “real, out-of-pocket monetary losses” and other losses of campaign resources that he would incur by extending his campaign. He and the electors assert that those losses are incurred not by choice but rather by necessity. The two electors assert a similar campaign-resources theory for their injury in fact. Relatedly, Bost and the electors criticize the Seventh Circuit for requiring them to demonstrate their “electoral prospects” in connection with their campaign-resources theory. They argue that requiring such a showing is an “unworkable and unmanageable” approach in a pre-election challenge partly because “electoral prospects fluctuate, often wildly, and even the experts get it wrong.” They believe the Seventh Circuit’s approach will incentivize candidates to pursue avenues of relief that courts have discouraged, namely in the form of emergency or expedited litigation.
Illinois defends the Seventh Circuit’s opinion as being consistent with the Court’s precedent and with the record on appeal. It argues that the Seventh Circuit used the correct standard for determining Article III standing because it had required Bost and the electors to show an actual or imminent injury that was not speculative. Illinois notes that “[p]olitical candidates in other cases challenging state election laws have not hesitated to explain why the laws that they challenge might in fact affect their likelihood of prevailing in elections—including in cases challenging ballot receipt deadlines materially identical to Illinois’s.” Illinois maintains that, “[a]bsent such an allegation, . . . the risks that petitioners allegedly spend resources to prevent are merely ‘conjectural,’ and they ‘cannot manufacture standing by choosing to spend money to mitigate’ them, just as in Clapper.”
Hencely v. Fluor Corp., 24-924.
At issue is whether Boyle v. United Technologies Corp., 487 U.S. 500 (1988), should “be extended to allow federal interests emanating from the [Federal Tort Claims Act’s (FTCA’s)] combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders[.]” Relevant here, the FTCA states: “the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” The combatant-activities exception in the FTCA states that that section shall not apply to “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”
In Boyle, the Court held that the discretionary-function exception in the FTCA precluded state tort claims against a government contractor for a design defect in military helicopters. Boyle gave a two-part analysis for evaluating preemption. First, the Court identified “an area of uniquely federal interest” in the “procurement of equipment by the United States.” Second, the Court found a significant conflict between those “federal interests and state law in the context of Government procurement.” Boyle added that “[n]o one suggests that state law would generally be pre-empted” if no conflict exists between the federal interest and state law, such that “[t]he contractor could comply both with its contractual obligations and the state-prescribed duty of care.”
Petitioner Winston Hencely was serving in the U.S. Army in Afghanistan in 2016 when he was severely and permanently injured from a suicide bomber’s attack inside the base. The bomber was employed by a subcontractor of respondent Fluor. An investigation by the U.S. Army found that failures by Flour were “the primary contributing factor” to the bombing, mostly based on Fluor’s lack of proper supervision and failure to follow protocols. Hencely brought state tort claims against Fluor in South Carolina based on its actions related to employing and supervising the bomber. Fluor moved for summary judgment based on “combatant activities” preemption. The district court agreed and granted the motion for summary judgment. The Fourth Circuit affirmed. 120 F.4th 412.
The Fourth Circuit recognized that the FTCA’s provisions “by their terms” “do not apply to government contractors.” But the court extended Boyle’s logic to the FTCA combatant-activities exception. The Fourth Circuit applied the same test used by the D.C. and Third Circuits: a claim is preempted if a government contractor is “integrated into combatant activities over which the military retains command authority” and the tort claim arises out of “such activities.” The Fourth Circuit rejected Hencely’s argument that preemption was improper because “Fluor could comply with state tort duties and the military’s directives.” The court also rejected Hencely’s argument that there is no “federal interest” emanating from the FTCA when a government contractor “flouts” “army instructions and fail[s] to comply with its contractual obligations.” The court noted that the purpose of the exception is “to foreclose state regulation of the military’s battlefield conduct and decisions.”
Hencely argues that the Fourth Circuit test is wrong and that the circuits are split 3-1-1 over when the federal interest from the FTCA’s combatant-activities exception preempts state claims against government contractors. Hencely argues that the Fourth Circuit’s decision contradicts the Court’s preemption decisions declaring that “‘[t]here is no federal pre-emption in vacuo,’ without a constitutional text, federal statute, or treaty made under the authority of the United States.” Hencely submits that the Fourth Circuit “divined” a “federal interest” in shielding contractors from state-law liability from a statute that does not expressly do so. He argues that the Fourth Circuit’s test does not ask whether the specific state claim against the contactor would pose a “significant conflict” with any identified “federal interest.” Further, he argues that the decision wrongly extends Boyle by barring state claims even when they do not implicate a specific exercise of military judgment and that Boyle did not give blanket immunity to contractors.
Fluor responds that the Fourth Circuit correctly recognized that the federal government retains exclusive authority over the conduct of war on foreign battlefields and that allowing state-law tort claims would interfere with that important federal interest. Fluor maintains that the court “faithfully” applied the Court’s preemption decisions and that there is no true circuit split for the Court to resolve because all the circuits would find Hencely’s claims preempted. And Fluor insists that Boyle is directly on point. It therefore submits that Hencely’s argument really asks this Court to overrule Boyle, which it should not do because of stare decisis.
The GEO Group v. Menocal, 24-758.
At issue is whether an order denying a government contractor’s claim of derivative sovereign immunity is immediately appealable under the collateral order doctrine. Under 28 U.S.C. §1291, the courts of appeals “have jurisdiction of appeals from all final decisions of the district courts.” Under the collateral order doctrine, the Court has held that a “narrow class of decisions” are immediately appealable even though they do not terminate the litigation. That exception applies if three requirements are met: (1) the order must be conclusive; (2) it must resolve important questions completely separate from the merits; and (3) it must render such important questions effectively unreviewable on appeal from final judgment in the underlying action. The Court will resolve how those factors apply in the context of a government contractor’s claim of derivative sovereign immunity.
The GEO Group operates private immigration detention facilities under a contract with the federal government. At the center of the underlying lawsuit are two GEO practices, one that requires detainees to perform unpaid janitorial work or be subject to punishment, and another that pays $1 a day for work done through the “voluntary work program.” The certified class is detainees who have been subject to such practices. They allege violations of the Trafficking Victims Protection Act and prohibitions against unjust enrichment. The parties each moved for summary judgment on whether GEO was entitled to a defense of derivative sovereign immunity under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). Following hours of deposition testimony and review of hundreds of pages of GEO’s internal documents, the district court ruled that GEO was not entitled to the Yearsley defense. The court concluded that the federal government had not directed GEO to force those detained to conduct janitorial work nor had it required GEO to pay only $1 a day for voluntary work. GEO then appealed. Following briefing and argument, the Tenth Circuit dismissed the appeal for lack of appellate jurisdiction in an unpublished order. 2024 WL 454418.
The Tenth Circuit held that “[A]n order denying Yearsley’s applicability . . . does not satisfy the collateral order doctrine.” The court relied on the second prong of the collateral order doctrine, that an order must “resolve an important issue completely separate from the merits.” The court held that the same “factual questions concerning what the government did and did not specifically direct” that are “at the heart of the Yearsley inquiry” are “also at the heart of the merits inquiry.” Thus, these types of orders are “enmeshed in the merits.” The panel rejected GEO’s comparisons to qualified immunity appeals because in those the “court is concerned with resolving abstract issues of law,” while in Yearsley appeals “the actual facts” play a “significant role.”
At the forefront, the parties disagree on the exact meaning of a Yearsley immunity claim. GEO argues that it is akin to qualified immunity, and while it is not the “embracive” immunity that the government enjoys, it is still an immunity from suit, rather than a defense. GEO submits that this immunity encourages contractors to work for the government and should be treated as other types of immunity. By contrast, the certified class argues that Yearsley “did not afford the contractor sovereign immunity, derivative or otherwise.” Rather, Yearsley held that a contractor sued for damages caused by executing a lawful order from the government may defend against liability by arguing that the government as principal is liable. They argue that Yearsley is thus a defense to liability, not an immunity from suit. This disagreement frames how the parties each view the application of the collateral order doctrine to this case.
GEO argues that it should be able to appeal the denial of derivative sovereign immunity under the collateral order doctrine like other forms of immunity such as qualified immunity and Eleventh Amendment immunity. GEO believes “there is no question” that its entitlement to derivative sovereign immunity is distinct from the merits of the underlying claims so that prong two of the Yearsley analysis has been met. GEO also maintains that the decision below has “profound implications” for government contractors and separations of powers that will burden government functions and dissuade contractors from working with the government.
The certified class maintains that the law is clear that the government’s sovereign immunity does not extend to contractors. They also dispute GEO’s policy argument that the lower court’s decision dissuades contractors from working with the federal government. The certified class notes that if this were true, the federal government would advocate for Yearsley orders to be appealable, but the last two administrations have both taken the opposite position. They insist that the “inquiry can begin and end with the separateness requirement.” The certified class says that GEO’s Yearsley defense depends on whether the federal government “specifically directed” GEO to punish those who refused to do janitorial work―the same as its defense on the merits. They believe that defense is intensely fact dependent, unlike claims of true immunity. Thus, they argue that the second prong of the collateral order doctrine cannot be met here.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Campbell, Supreme Court Fellow
- Gracynthia Claw, Supreme Court Fellow
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