July 2, 2025 | Volume 32, Issue 16
This Report summarizes opinions issued on June 18, 2025 (Part I); and cases granted review on June 16, 2025 (Part II).
OPINIONS
United States v. Skrmetti, 23-824.
By a 6-3 vote, the Court held that a Tennessee law restricting sex transition treatments for minors does not violate the Equal Protection Clause. “An estimated 1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex. Some transgender individuals suffer from gender dysphoria, a medical condition characterized by persistent, clinically significant distress resulting from an incongruence between gender identity and biological sex. Left untreated, gender dysphoria may result in severe physical and psychological harms.” (Citation omitted.) “In recent years, the number of minors requesting sex transition treatments has increased. This increase has corresponded with rising debates regarding the relative risks and benefits of such treatments. In the last three years, more than 20 States have enacted laws banning the provision of sex transition treatments to minors, while two have enacted near total bans. Meanwhile, health authorities in a number of European countries have raised significant concerns regarding the potential harms associated with using puberty blockers and hormones to treat transgender minors.” (Citations omitted.)
In March 2023, Tennessee enacted SB1. The Tennessee Legislature expressed medical “concerns regarding the use of puberty blockers and hormones to treat gender dysphoria in minors,” and declared “that the full range of harmful effects associated with the treatments were likely not yet known.” SB1 therefore bans the use of hormones and puberty blockers for the purpose of (1) “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or (2) “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Notably, S.B. 1 allows “[a] healthcare provider [to] administer puberty blockers or hormones to treat a minor’s congenital defect, precocious (or early) puberty, disease, or physical injury.” Three transgender minors, their parents, and a doctor (plaintiffs) brought a pre-enforcement challenge to SB1 alleging, among other things, that SB1 violates the Equal Protection Clause of the Fourteenth Amendment. The United States intervened as a plaintiff. The district court enjoined enforcement of the law, but the Sixth Circuit reversed. Applying rational-basis scrutiny to the law, the court concluded that the plaintiffs were unlikely to succeed on the merits of their equal protection claim. In an opinion by Chief Justice Roberts, the Court affirmed.
The Court first ruled that SB1 is not subject to heightened scrutiny as a classification based on sex. Rather, held the Court, “[o]n its face, SB1 incorporates two classifications. First, SB1 classifies on the basis of age. Healthcare providers may administer certain medical treatments to individuals ages 18 and older but not to minors. Second, SB1 classifies on the basis of medical use. Healthcare providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence. Classifications that turn on age or medical use are subject to only rational basis review.” The Court disagreed with the plaintiffs that SB1 classifies on the basis of sex merely because it references sex. “This Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. . . . Such an approach, moreover, would be especially inappropriate in the medical context. Some medical treatments and procedures are uniquely bound up in sex.”
The Court next rejected the plaintiffs’ contention “that the application of SB1 turns on sex.” “When properly understood from the perspective of the indications that puberty blockers and hormones treat, SB1 clearly does not classify on the basis of sex. Both puberty blockers and hormones can be used to treat certain overlapping indications (such as gender dysphoria), and each can be used to treat a range of other conditions. . . . SB1, in turn, restricts which of these medical treatments are available to minors: Under SB1, a healthcare provider may administer puberty blockers or hormones to any minor to treat a congenital defect, precocious puberty, disease, or physical injury; a healthcare provider may not administer puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence. The application of that prohibition does not turn on sex.” (Citations omitted.) The Court further found that “SB1 does not mask sex-based classifications.” Rather, “[u]nder SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.”
The Court then rejected plaintiffs’ contention “that SB1 warrants heightened scrutiny because it discriminates against transgender individuals, who the plaintiffs assert constitute a quasi-suspect class.” The Court concluded “that SB1 does not classify on the basis of transgender status.” Rather, as noted, it classifies based on age and medical use. And the Court has held “that a State does not trigger heightened constitutional scrutiny by regulating a medical procedure that only one sex can undergo unless the regulation is a mere pretext for invidious sex discrimination.” See Geduldig v. Aiello, 417 U.S. 484 (1974) (holding “that a California insurance program that excluded from coverage certain disabilities resulting from pregnancy did not discriminate on the basis of sex”). The Court added that Bostock v. Clayton County, 590 U.S. 644 (2020), “does not alter our analysis.” Bostock “held that an employer who fires an employee for being gay or transgender violates Title VII’s prohibition on discharging an individual ‘because of’ their sex.” The Court declined to consider whether Bostock extends beyond the Title VII context because, it ruled, “changing a minor’s sex or transgender status does not alter the application of SB1.” That is, “sex is simply not a but-for cause of SB1’s operation.”
Finally, the Court found that SB1 clearly satisfies rational-basis scrutiny. The Court credited Tennessee’s conclusion “that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty.” The Court noted that it “afford[s] States ‘wide discretion to pass legislation in areas where there is medical and scientific uncertainty.’” The Court pointed to the Cass Study, issued after Tennessee enacted SB1, which “conclud[ed] that there is ‘no good evidence on the long-term outcomes of interventions to manage gender-related distress.’” The Court closed by saying that the Constitution “leave[s] questions regarding its policy to the people, their elected representatives, and the democratic process.”
Justice Thomas filed a concurring opinion. He would not import Bostock’s logic to the Equal Protection Clause because it uses different language than Title VII and because the Court has “faced sexual-orientation claims in the equal protection context for decades” without treating those claims as if they were sex-discrimination claims. Justice Thomas then provided a long explanation for why, in his view, courts should not appeal, and defer, “to the authority of the expert class.” Among many other things, he stated that “[r]ecent revelations suggest that WPATH, long considered a standard bearer in treating pediatric gender dysphoria, bases its guidance on insufficient evidence and allows politics to influence its medical conclusions.” (Citation omitted.)
Justice Barrett filed a concurring opinion, which Justice Thomas joined. She wrote to explain why, in her view, transgender status does not constitute a suspect class. She noted that the Court has not added another suspect class beyond race, sex, and alienage in more than 40 years―rejecting that status for the mentally disabled, the elderly, and the poor. In concluding that transgender status should not be the first new suspect class in more than 40 years, Justice Barrett pointed to the following considerations: (1) “transgender status is not marked by the same sort of ‘obvious, immutable, or distinguishing characteristics’ as race or sex”; (2) the transgender population a not a “discrete group”; and (3) “holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion.” Justice Barrett added that the Fourteenth Amendment is concerned with de jure discrimination against a group, not private animus. Yet the plaintiffs and the district court focused solely on the latter.
Justice Alito filed an opinion concurring in part and concurring in the judgment. He “agree[d] with the Court that SB1 does not classify on the basis of ‘sex’ within the meaning of our equal protection precedents.” And for reasons similar to Justice Thomas, he did not believe that Bostock’s reasoning extends to the Equal Protection Clause. Justice Alito then turned to whether SB1 classifies based on transgender status. He would avoid that issue and instead hold that transgender status is not a quasi-suspect class. As he explained at greater length, “[t]ransgender status is not ‘immutable,’ and as a result, persons can and do move into and out of the class. Members of the class differ widely among themselves, and it is often difficult for others to determine whether a person is a member of the class. And transgender individuals have not been subjected to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or ‘quasi-suspect.’”
Justice Sotomayor filed a dissenting opinion, which Justice Jackson joined in full and Justice Kagan joined except for its final section. In Justice Sotomayor’s view, “Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise[.]” Justice Sotomayor first asserted that “sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl. . . . All this, the State openly admits, in service of ‘encouraging minors to appreciate their sex.’” The dissent stated that Bostock confirms this conclusion. “In deciding that discrimination based on incongruence between sex and gender identity was discrimination ‘because of sex,’ Bostock asked the very same question our equal protection precedents do: whether ‘changing the employee’s sex would have yielded a different choice by the employer.’”
Justice Sotomayor criticized the Court’s reasoning: “the very ‘medical purpose’ SB1 prohibits is defined by reference to the patient’s sex. Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex.” And while there may also be a medical difference in the treatment, “[a]s long as sex is one of the law’s distinguishing features [] the law classifies on the basis of sex, and the Equal Protection Clause requires application of intermediate scrutiny.”
Justice Sotomayor then maintained that SB1 discriminates on the basis of transgender status, which (in her view) is a suspect class. “SB1 prohibits Tennessee physicians from offering hormones and puberty blockers to allow a minor to ‘identify with’ a gender identity inconsistent with her sex. Desiring to ‘identify with’ a gender identity inconsistent with sex is, of course, exactly what it means to be transgender.” (Citation omitted.) She criticized the Court’s reliance on Geduldig, a decision that was “egregiously wrong” and is readily distinguishable. And, she said, there cannot “be serious dispute that transgender persons bear the hallmarks of a quasi-suspect class.” “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Further, “[i]ndividuals whose gender identity diverges from their sex identified at birth (whether labeled as ‘transgender’ at the time or not) [] have been subject to a lengthy history of de jure discrimination in the form of cross-dressing bans, police brutality, and anti-sodomy laws.”
Finally, in the section of the dissent that Justice Kagan did not join, Justice Sotomayor criticized the Court for “never even ask[ing] whether Tennessee’s sex-based classification imposes the sort of invidious discrimination that the Equal Protection Clause prohibits.” In her view, “[t]he present record offers reason to question (as the District Court did) whether Tennessee’s categorical ban on treating gender dysphoria bears the ‘requisite direct, substantial relationship’ to its interest in protecting minors’ health.” For example, she said, “Tennessee has offered little evidence . . . that it is more dangerous to receive puberty blockers to ‘identify with, or live as, a purported identity inconsistent with the minor’s sex’ than to treat other conditions like precocious puberty.” Justice Kagan filed a brief separate dissenting opinion to state that she “take[s] no view on how SB1 would fare under heightened scrutiny, and therefore do[es] not join Part V” of Justice Sotomayor’s dissent. She would simply hold that heightened scrutiny applies and remand to allow the Sixth Circuit to apply it.
Nuclear Regulatory Comm’n v. Texas, 23-1300.
The Court held that Texas and a private entity were not entitled to obtain judicial review of a Nuclear Regulatory Commission (NRC) decision granting licenses to a private entity to store up to 40,000 metric tons of nuclear waste above-ground in Texas’s Permian Basin. In 2018, Interim Storage Partners (ISP) sought a license from the NRC to build a private facility to store spent nuclear fuel “off-site” (i.e., away from the nuclear facility that generated the nuclear fuel). Several entities sought to intervene in the licensing proceeding, including petitioner Fasken Land and Minerals, which “grazes cattle and operates oil and gas wells in West Texas. Fasken objected to the proposed facility and raised various concerns, including possible environmental contamination and harm to endangered species.” The NRC denied Fasken’s motion to intervene. Fasken appealed the denial of its intervention motion in the D.C. Circuit. Fasken did not argue that the NRC’s regulations governing intervention were inconsistent with the statute. (Those regulations require would-be intervenors to proffer a sufficient “contention,” which means “sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.” 10 CFR §2.309(f).) Rather, Fasken asserted that it had the right to intervene under those regulations. The D.C. Circuit affirmed the denial of intervention. Meanwhile, the NRC issued a draft environmental impact statement (EIS), on which both Texas and Fasken commented. After the NRC issued its final EIS, the commission issued ISP its license. Texas and Fasken then filed suit in the Fifth Circuit, asserting that the NRC “lacked statutory authority to license storage of spent nuclear fuel at a private off-site facility.” The Fifth Circuit vacated the license. “First, notwithstanding that the Hobbs Act limits jurisdiction to a ‘party’ aggrieved and that neither Fasken nor Texas successfully intervened as a ‘party’ under the Atomic Energy Act, the court ruled that it could reach the merits.” On the merits, it agreed with Texas and Fasken that the NRC lacked statutory authority to issue a license for off-site storage. In an opinion by Justice Kavanaugh, the Court reversed and remanded.
“The Hobbs Act generally allows any ‘party aggrieved’ by a licensing order of the Nuclear Regulatory Commission to obtain judicial review in a federal court of appeals. 28 U.S.C. §2344.” The Court ruled that neither Texas nor Fasken were “parties to the Commission’s licensing proceeding and therefore cannot obtain judicial review of the Commission’s licensing decision.” The Court rejected Texas and Fasken’s contention that they became parties under the Hobbs Act by attempting to intervene and submitting comments. The Court contrasted the Hobbs Act, which allows appeals only by a “party aggrieved,” with the Administrative Procedure Act, which created a cause of action for any “person . . . aggrieved” by agency action. The Court reasoned that it must therefore “’read ‘party’ as referring to a party before the agency.’” And, held the Court, “the text of the Atomic Energy Act indicates that one must be the license applicant or successfully intervene in order to obtain party status in a Commission licensing proceeding.” The Court disagreed with Texas’ assertion that “the same participation that confers party status in an agency rulemaking—namely, filing a comment—should suffice to qualify for party status in an agency adjudication such as a Commission licensing proceeding.” Rather, held the Court, “what suffices for party status in one category of proceeding may be inadequate in another.”
The Court next rejected Fasken’s contention that it satisfied the Atomic Energy Act’s criteria for intervention. That Act declares that the NRC “shall admit” any person who requests a hearing and “whose interest may be affected by the proceeding.” 42 U.S.C. §2239(a)(1)(A). Fasken maintained that it easily met that bar, and that the NRC “set a higher bar for intervention than the Atomic Energy Act contemplates.” The Court found, however, that Fasken didn’t make that argument when it appealed the NRC’s denial of its petition to intervene. “Fasken cannot now use a new Hobbs Act suit to collaterally attack the D.C. Circuit’s prior ruling on intervention.”
The Court then rejected the Fifth Circuit’s basis for finding the Hobbs Act satisfied, namely, that the NRC acted ultra vires. “According to Texas and Fasken,” supporting the Fifth Circuit’s holding, “judicial-review statutes like the Hobbs Act and the APA did not displace preexisting nonstatutory ultra vires review.” The Court ruled, however, that “[b]ecause ultra vires review could become an easy end-run around the limitations of the Hobbs Act and other judicial-review statutes, this Court’s subsequent cases have strictly limited nonstatutory ultra vires review[.]” “Rather, it applies only when an agency has taken action entirely ‘in excess of its delegated powers and contrary to a specific prohibition” in a statute.’” That’s not the case here: “Texas and Fasken basically dress up a typical statutory-authority argument as an ultra vires claim.” “Second, and alternatively, ultra vires review is not available because Texas and Fasken had an alternative path to judicial review.”
Finally, the Court addressed the merits―not to decide them but to “briefly note, in response to the dissent’s narrative, that history and precedent offer significant support for the Commission’s longstanding interpretation.” In a nutshell, the Court explained that “[i]n 1980, the Commission adopted regulations that interpreted the 1954 Atomic Energy Act to authorize storage at private off-site facilities. . . . In the ensuing 45 years, the Commission’s regulations have continued to authorize storage of spent nuclear fuel, including at private off-site facilities. . . . Importantly, in 1982 when enacting the heavily negotiated Nuclear Waste Policy Act, Congress was of course fully aware of the 1954 Atomic Energy Act and the Commission’s 1980 regulations authorizing private off-site storage of spent nuclear fuel—as well as the existence of private off-site storage facilities . . . . In that 1982 Act, Congress did not disturb the Commission’s 1980 regulations or its practice of licensing temporary private off-site facilities under the Atomic Energy Act.”
Justice Gorsuch filed a dissenting opinion, which Justices Thomas and Alito joined. The dissent began with the merits. It noted that the 1982 Nuclear Waste Policy Act (NWPA) “authorizes only two places where spent nuclear fuel may be stored on an ‘interim’ basis—at reactor sites or on federal property.” Not at an off-site storage facility. And in the dissent’s view, the pre-existing Atomic Energy Act did not authorize off-site storage, for “[a]t the time of the AEA’s enactment in 1954, most assumed that spent nuclear fuel would be reprocessed and reused, not stored for millennia. Reflecting that assumption, the AEA did not even mention spent nuclear fuel, let alone address its storage.” (Citation omitted.) Justice Gorsuch rejected the NRC’s contention that the AEA authorizes off-site storage of spent nuclear fuel through three separate provisions that allow the commission to issue licenses to entities seeking to “possess . . . special nuclear material,” “distribute source material,” and “use byproduct material.” And he maintained that, “even assuming (against all the evidence) that the AEA once might have implicitly authorized the NRC to grant licenses like the one at issue here, it cannot be fairly read to do so after Congress adopted the NWPA in 1982.”
Turning to the Hobbs Act, Justice Gorsuch concluded that Texas and Fasken’s comments on the EIS made them “parties” because (as lower courts have held) “[i]n ‘administrative proceedings’ contemplating ‘notice-and-comment,’ . . . ‘commenting’ qualifies an individual as a ‘party’ for purposes of the Hobbs Act.” He found nothing in the Hobbs Act that requires an entity to participate in the licensing proceeding itself to be a “party.” And he found any doubt on that score resolved by the presumption of judicial reviewability of agency action. Justice Gorsuch criticized the NRC for making it unduly difficult to intervene in its proceedings, “which effectively seeks to control who may challenge its decisions in court—and ensure that the answer is no one.”
Perttu v. Richards, 23-1324.
By a 5-4 vote, the Court held “as a matter of statutory interpretation that parties have a right to a jury trial on [Prison Litigation Reform Act] exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” In 2020, respondent Kyle Richards and two other prisoners filed a §1983 action against petitioner Thomas Perttu alleging that Perttu sexually abused them and others. They further alleged that Perttu ripped up their prison “grievance forms, threw them away, and threatened to kill the[m] if they filed more.” “The plaintiffs also alleged they were being ‘wrongfully held in administrative segregation in retaliation for filing grievances’ and that Perttu was retaliating against them in other ways, all in violation of their First Amendment rights.” Perttu filed a summary judgment motion which asserted that the plaintiffs failed to exhaust available grievance procedures as required by the PLRA. See 42 U.S.C. §1997e(a). A magistrate judge held a hearing with witnesses who testified about the alleged ripping of the grievance forms. The magistrate judge concluded that the plaintiffs’ witnesses lacked credibility, and recommended that the case be dismissed without prejudice for failure to exhaust. The district court adopted the recommendation. Richards alone appealed to the Sixth Circuit, which reversed. “He argued that resolving exhaustion through ‘a bench trial’—one before a judge without a jury—is ‘not permissible where it would essentially be resolving a claim itself.’” The Sixth Circuit agreed. It acknowledged that as a general matter, judges can resolve PLRA exhaustion. But it held that “the Seventh Amendment requires a jury trial when the resolution of the exhaustion issue under the PLRA would also resolve a genuine dispute of material fact regarding the merits of the plaintiff ’s substantive case.” In an opinion by Chief Justice Roberts, the Court affirmed on different grounds.
The Court explained that before addressing a constitutional issue it should assess whether a statutory basis for resolving the case exists. And, it concluded, that’s the case here. The Court observed that the PLRA was silent as to whether the judge or jury resolves exhaustion disputes, which “’is strong evidence that the usual practice should be followed.’” And when Congress enacted the PLRA in 1996 “it was well established that when a factual dispute is intertwined with the merits of a claim that falls under the Seventh Amendment, that dispute should go to a jury, even if that requires judges to defer determinations they would ordinarily make on their own.” The Court pointed to a line of cases beginning with Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), which held that “judges may not resolve equitable claims first”―even though judges generally resolve such claims―”if doing so could prevent legal claims from getting to the jury.” The Court also pointed to a line of cases involving subject-matter jurisdiction. Although judges often resolve factual disputes when assessing their courts’ subject-matter jurisdiction, the Court has “long held that a court may not do so when the factual disputes are intertwined with the merits.” See, e.g., Smithers v. Smith, 204 U.S. 632 (1907); Land v. Dollar, 330 U.S. 731 (1947).
The Court rejected Perttu’s contention that “the concern in Beacon Theatres was that judicial resolution of the equitable claims would have had collateral estoppel effect on the legal claims. But here, . . . the judge’s factual findings related to exhaustion would have no such effect in a later jury trial.” The Court found that “a judicial ruling on PLRA exhaustion might have estoppel effect in a later jury trial.” And in any event, ruled the Court, Beacon Theatres was concerned about more than estoppel. Further, ruled the Court, “[i]t is no answer, . . . to say that a prisoner might someday get a jury by starting over, exhausting the grievance procedures, then refiling his lawsuit. After all, that path is impossible in most cases. . . . ‘[T]he time frames for . . . grievances are very short’—on the order of days.” Lastly, the Court rejected Perttu’s contention that requiring jury trials in intertwined cases would conflict with the PLRA’s objectives by allowing unexhausted claims to go to a jury. “But,” said the Court, “that objection would apply with even greater force in Smithers and Land, because—by the same logic—holding a trial on subject matter jurisdiction would conflict with the purpose of ensuring that trials happen only where jurisdiction is proper. Yet Smithers and Land show that, in cases of intertwinement, the proper practice is indeed to go to trial.” (Citation omitted.)
Justice Barrett filed a dissenting opinion, which Justices Thomas, Alito, and Kavanaugh joined. The dissent first addressed the Seventh Amendment, which was the basis for the Sixth Circuit’s ruling. Justice Barrett explained that “[b]ecause the Seventh Amendment provides that the ‘right of trial by jury shall be preserved,’ it protects ‘the right which existed under the English common law when the Amendment was adopted.’” (Cleaned up.) Under that standard, she said, it is unclear “whether the Seventh Amendment requires jury trials for all disputes about exhaustion.” But, she found, “Richards has presented no evidence that intertwinement with the merits was relevant to the jury-trial right.” “The upshot is that there is no historical support for a special intertwinement rule. Mere factual overlap with the merits does not transform a collateral issue ordinarily resolved by a court into one necessarily resolved by a jury.”
Justice Barrett then turned to the statutory ground upon which the majority resolved the case. She first criticized the majority for addressing that ground, given that Richards never asserted it. On its merits, Justice Barrett maintained that the Court got the background presumption wrong: “when we have considered whether a statute confers the right to a jury trial, we have understood silence to mean what you would expect—that Congress did not affirmatively confer such a right.” See, e.g., Tull v. United States, 481 U.S. 412 (1987); Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). She distinguished the Beacon Theatres line of cases, observing: “Beacon Theatres does not hold [] that the Seventh Amendment compels legal-then-equitable sequencing. Nor does it ‘construc[t]’ statutory silence to require such a rule. Instead, as our later cases confirm, Beacon Theatres ‘enunciate[s] no more than a general prudential rule’ governing the trial court’s ‘discretion in determining the sequence of trial’ when legal and equitable claims are joined in the same action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 334 (1979).” She agreed with Perttu that collateral estoppel concerns drove Beacon Theatres and are not present here. And she asserted that neither Smithers v. Smith nor Land v. Dollar addressed the intertwinement issue presented here. In the end, Justice Barrett declared, “the Court creates a regime under which an exhaustion requirement designed to ‘reduce the quantity and improve the quality of prisoner suits’ just generates more litigation of its own.”
EPA v. Calumet Shreveport Refining, L.L.C., 23-1229.
The Court held by a 7-2 vote that small refineries’ challenges to EPA’s denials of their exemption petitions should be heard in the D.C. Circuit, not in regional circuits. The Clean Air Act provides that “[a] petition for review of the [EPA’s] action in approving or promulgating any implementation plan . . . or any other final action of the [EPA] under this Act . . . which is locally or regionally applicable may be filed only in” the appropriate regional circuit, while challenges to “nationally applicable regulations . . . may be filed only in” the D.C. Circuit. 42 U.S.C. §7607(b)(1). The Act makes an exception, though, for local or regional actions that are “based on a determination of nationwide scope or effect” and accompanied by an EPA finding of this basis, which also must be challenged in the D.C. Circuit. The Court concluded that EPA’s denials of the refineries’ exemption petitions “are only locally or regionally applicable, but they fall within the ‘nationwide scope or effect’ exception.”
The Clean Air Act’s renewable fuel program (RFP) “’requires most domestic refineries to blend a certain amount of ethanol and other renewable fuels into the transportation fuels they produce.’” The Act exempted small refineries until 2011; extended that exemption for at least two years for all small refineries found to face “disproportionate economic hardship” if subjected to the RFP’s obligations; and allows a small refinery to “at any time petition [EPA] for an extension of [its] exemption . . . for the reason of disproportionate economic hardship.” In 2021, EPA proposed to deny all pending exemption petitions by small refineries. Its notice set out two principles. First, it interpreted “disproportionate economic hardship” to cover only hardship caused by RFP compliance. Second, EPA “theorized that, as a matter of economics, small refineries ordinarily do not suffer disproportionate economic hardship as a result of the RFP because” the refineries fully pass on their costs to consumers. “After receiving comments, EPA followed through and denied the pending exemption petitions in two omnibus notices” that “relied primarily on the principles from its proposal.” EPA asserted in its denial notices that they were reviewable only in the D.C. Circuit because they were “nationally applicable” or, alternatively, “based on a determination of nationwide scope or effect.” Small refineries nonetheless challenged the denials in various regional circuits. All but the Fifth Circuit (whose ruling was under review here) agreed with EPA that the litigation belonged in the D.C. Circuit. In an opinion by Justice Thomas, the Court vacated the Fifth Circuit decision and remanded.
The Court first held that EPA’s actions here were “locally or regionally applicable,” rather than “nationally applicable.” To resolve that issue, the Court said it must “determine what the relevant ‘action’ is, and what it means for an action to be ‘nationally applicable’ as opposed to ‘locally or regionally applicable.’” On the former point, the Court noted that “Section 7607(b)(1) lists various examples of EPA actions that qualify as either ‘nationally applicable’ or ‘locally or regionally applicable.’ For both these terms, it then provides a catchall for ‘any other’ ‘final action.’” The Court found that “[t]he enumerated ‘actions’ in §7607(b)(1) make clear that this provision ‘treats each activity the Clean Air Act allows the EPA to take as a distinct ‘action.’” That means it doesn’t matter how EPA packages the denials. Next, as a matter of ordinary meaning, the Court found that whether an action is “nationally applicable” or “locally or regionally applicable” depends on “whether the action ‘[o]n its face’ applies throughout the entire country, or only to particular localities or regions.” “Applying these principles here,” the Court “treat[ed] each EPA denial of a refinery’s exemption petition as its own ‘action’ for venue purposes. And, EPA’s denial of a single refinery’s petition plainly is only locally or regionally applicable.” In so concluding, the Court rejected EPA’s arguments that (1) it can control the unit of action by bundling decisions into one notice, and (2) “any agency action is nationally applicable if it affects more than one Circuit.”
The Court then “ask[ed] whether the ‘nationwide scope or effect’ exception applies to override the default of regional Circuit review for locally or regionally applicable actions.” Looking at dictionary definitions of the relevant terms, the Court concluded that, “[t]aken together, an agency action involves determinations of nationwide ‘scope’ if they apply throughout the country ‘as a legal matter (de jure)’ and determinations of nationwide ‘effect’ if they so apply ‘as a practical one (de facto).’” The Court explained that the key inquiry is causality, for the exception applies to actions that are “based on a determination of nationwide scope or effect.” Focusing on the exception’s function, the Court declared that “an EPA action is based on a determination of nationwide scope or effect only if a justification of nationwide breadth is the primary explanation for and driver of EPA’s action. A determination of nationwide scope or effect does not rise to this level if EPA also relied in significant part on other, ‘intensely factual’ considerations, or if the key driver of EPA’s action is otherwise debatable.” Lastly (as to methodology), the Court ruled that “courts should assess EPA’s reasoning de novo.” “Applying this framework,” the Court “conclude[d] that EPA’s denials of the small refineries’ exemption petitions were based on determinations of nationwide scope or effect.” That is because “EPA invoked both its statutory interpretation and its passthrough theory in justifying its denials, and both points apply generically to all refineries, regardless of their geographic location.” The Court rejected the Fifth Circuit’s ruling “that the ‘nationwide scope or effect’ exception is inapplicable in light of EPA’s consideration of refinery-specific facts.” Stated the Court, “[s]o long as a determination of nationwide scope or effect served as the primary driver of EPA’s action, other, more ‘peripheral’ determinations ‘are not relevant’ for venue purposes.”
Justice Gorsuch filed a dissenting opinion, which Chief Justice Roberts joined. Justice Gorsuch agreed that the action is locally or regionally applicable, but disagreed that the “nationwide scope or effect” exception applies. In his view, the small refineries’ “challenge belongs in a regional circuit because nothing in the Act’s relevant substantive provisions calls for EPA to act on a determination of nationwide scope or effect. . . . To the contrary, after the blanket exemption for small refineries expired in 2011, all agency actions and determinations became refinery-specific ones.” All told, he said, “[a]s a matter of administrative convenience, the agency may choose to address a number of petitions collectively rather than separately. And the agency of course may (and, to avoid acting arbitrarily and capriciously, generally must) apply consistent reasoning to like petitions. But the Act’s venue provision does not route cases to one circuit or another based on how EPA packages them or the quality or nature of its reasoning. Instead, the Act’s venue provision asks whether the agency based its action on a determination of nationwide scope or effect. And, as the Act’s substantive provisions make clear, EPA does no such thing when it passes on an individual small refinery’s hardship petition.” Justice Gorsuch asserted that the Court “conflate[s] the determinations EPA must make under the Act with the reasons the agency offers to support them.” And he maintained that courts will have a difficult time applying an approach that requires (as the Court’s does) “sorting and weighing all the reasons EPA may advance.”
Oklahoma v. EPA, 23-1067.
Applying the methodology set out in Calumet, the Court held by an 8-0 vote that EPA’s disapprovals of two state emissions-control plans “are locally or regionally applicable actions reviewable in a regional Circuit.” After EPA revised the “national primary or secondary ambient air quality standard” (NAAQS) for ozone, each state submitted a state implementation plan (SIP). The SIPs all set out how the submitting state would comply with the Clean Air Act’s “Good Neighbor” provision, which requires SIPs to “contain adequate provisions . . . prohibiting” in-state “emissions activity” that would interfere with other states’ NAAQS compliance. EPA disapproved 21 states’ SIPs for failure to comply with the Good Neighbor provision. “[A]fter considering ‘the contents of each individual state’s submission . . . on their own merits’ and making an individual determination with respect to each SIP,” EPA disagreed with those states’ contention that they didn’t need to propose new emissions-reduction measures. EPA then “aggregated its disapprovals into one omnibus Federal Register rule.” The rule described EPA’s “4-step framework” for evaluating SIP submissions. As in Calumet, EPA asserted in its denial notices that they were reviewable only in the D.C. Circuit because they were “nationally applicable” or, alternatively, “based on a determination of nationwide scope or effect.” States and energy-industry petitioners challenged the SIP disapprovals in the regional circuits. Four circuits rejected EPA’s motions to transfer the cases to the D.C. Circuit. But the Tenth Circuit (in the decision under review here) granted EPA’s motion to transfer suits brought by Oklahoma and Utah and by industry petitioners. In an opinion by Justice Thomas, the Court reversed and remanded.
Applying the Calumet methodology, the Court first ruled that “each EPA SIP disapproval constitutes its own ‘action.’” The Court “therefore reject[ed] EPA’s contention, adopted by the Tenth Circuit, that EPA’s omnibus rule should be treated as a single ‘action.’” “Instead,” held the Court, “we have before us two distinct ‘actions’—EPA’s respective disapprovals of the Oklahoma and Utah SIPs.” Buttressing that conclusion, the Court noted that 42 U.S.C. §7607(b)(1) specifically provides that EPA action approving “any implementation plan under section 7410 of this title”―which includes SIPs―are “locally or regionally applicable.” This “makes clear that each EPA SIP approval is its own action. It follows that each EPA SIP disapproval is also its own action.” Accordingly, held the Court, “[t]hese two disapprovals are undisputedly locally or regionally applicable actions. A SIP is a state-specific plan, so an EPA disapproval on its face applies only to the State that proposed the SIP.”
The Court next held that the “nationwide scope or effect” exception does not apply here because EPA’s disapprovals “were based on ‘a number of intensely factual determinations’ particular to the State at issue.” “As EPA explained, it evaluated the contents of each SIP ‘on their own merits,’ ‘consider[ing] the facts and information . . . available to the state at the time of its submission,’ as well as more recent information regarding that State’s circumstances. From this state-specific analysis, EPA produced for each State a list of ‘bases for disapproval,’ with each list ‘giving a unique mixture of reasons[.]” (Citations omitted.) The Court found that, in contrast to Calumet, “no nationwide factor all but settles EPA’s ultimate decisions.” EPA pointed to the four factors it took into account in disapproving the SIPs. The Court found, however, that “these [factors] are at most heuristics that aided EPA’s analysis, as opposed to the primary drivers of its disapprovals. None of these determinations, either alone or in combination, makes clear why EPA concluded that Oklahoma and Utah had produced inadequate proposals for compliance with their Good Neighbor obligations.” Put another way, “EPA does not dispute, even after it made its threshold determination, ‘there was still a lot of work to be done’ before EPA could issue its disapprovals.”
Justice Gorsuch filed a short opinion concurring in the judgment, which Chief Justice Roberts joined. He agreed that the case should be heard in the regional circuit, but through the reasoning set out in his Calumet dissent. (Justice Alito did not participate in the case.)
Cases Granted Review
First Choice Women’s Resource Centers, Inc. v. Platkin, 24-781.
The question presented is: “Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?” The New Jersey Division of Consumer Affairs began investigating whether First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, violated state law by “misle[ading] donors and potential clients, among others, into believing that it was providing certain reproductive health care services.” The Division served a civil subpoena upon First Choice seeking, inter alia, the identity of most of its donors. Shortly before the deadline for responding to the subpoena, First Choice filed suit in federal district court asserting that the subpoena violated its First Amendment rights. The district court dismissed the case as unripe, noting “that state law grants exclusive authority to enforce or quash a subpoena to the New Jersey Superior Court.” After the district court dismissed First Choice’s lawsuit, the Attorney General filed an enforcement action in state court. First Choice then sought appellate review of the district court ruling, but the Third Circuit denied First Choice’s motion for an injunction pending appeal and the Supreme Court denied First Choice’s petition for a writ of mandamus. The state trial court then held that the subpoena was enforceable, though it declined to rule on First Choice’s First Amendment claim, finding it preserved but premature. The Third Circuit then remanded the federal case back to district court, where First Choice argued that the lawsuit was now ripe given the intervening state-court orders. The district court disagreed, holding that First Choice’s claims would not be ripe until the state court “require[s] the subpoena recipient to respond to the subpoena under threat of contempt.” The Third Circuit then issued the decision under review, affirming the district court’s ruling that the First Amendment claim was not ripe. 2024 WL 5088105.
The Third Circuit reasoned that First Choice “can continue to assert its constitutional claims in state court as that litigation unfolds; the parties have been ordered by the state court to negotiate to narrow the subpoena’s scope; they have agreed to so negotiate; the Attorney General has conceded that he seeks donor information from only two websites; and First Choice’s current affidavits do not yet show enough of an injury.” The court added that the state court “will adequately adjudicate First Choice’s constitutional claims, and we expect that any future federal litigation between these parties would likewise adequately adjudicate them.” Judge Bibas dissented “and would find First Choice’s constitutional claims ripe because he believes that this case is indistinguishable from Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021).”
First Choice argues in its petition that under the Third Circuit’s decision, the target of a state investigatory demand “is relegated to state court to litigate its federal constitutional claims, even if the subpoena is unlawful, the target has suffered an objectively reasonable chill of its First Amendment rights, and the target filed its federal lawsuit before the state official filed in state court.” First Choice maintains that “[t]he conclusion that a section 1983 claim is unripe because it can be litigated in state court is plainly wrong. Section 1983 was enacted to guarantee ‘a federal forum for claims of unconstitutional treatment at the hands of state officials.’ It would defeat that purpose to dismiss a federal case because the recipient of a government investigative demand can ‘assert its constitutional claims in state court.’ The Third Circuit’s rule is also contrary to ‘the settled rule’ that state litigation is ‘not a prerequisite’ to a federal section 1983 action. There is no subpoena exception to section 1983.” (Citations omitted.) Making matters worse, says First Choice, is that “res judicata will almost certainly bar First Choice from having its federal claims decided by a federal court.” First Choice also asserts that “[a] plaintiff asserting First Amendment retaliation claims against an attorney general’s investigative demand—as First Choice does here—satisfies ripeness ‘even prior to’ state litigation if the plaintiff alleges ‘objectively reasonable chilling of its speech or another legally cognizable harm.’” And it says that the subpoena at issue here “reasonably chill[s] First Choice’s association and speech rights.”
New Jersey responds that this case is not ripe because First Choice “will not need to produce documents in response or face any penalties unless the state court decides to enforce the subpoena first.” As two other subpoena cases show, “it is generally speculative whether a state court will do so. But it is especially speculative in this case, because the court ordered the parties to ‘negotiate to narrow the subpoena’s scope’ before it considers constitutional defenses and any order compelling production. It is thus unclear whether [First Choice] will have to produce documents—let alone which requests in the subpoena it will ultimately have to satisfy.” (Citations omitted.) Further, says the state, First Choice’s “claims of a chilling effect are largely based on statements from anonymous donors whose information the State is not even seeking.” And “[a] ruling that identifies a lack of Article III injury merely applies the proper limits of federal court jurisdiction; it does not, as [First Choice] suggests, evade federal court jurisdiction.” As to First Choice’s concern about the res judicata impact of a state court ruling, New Jersey says that “whether preclusion will actually result is highly dependent both on case-specific facts and on the preclusion law of the first forum.” Plus, the Supreme Court can review any First Amendment ruling by the New Jersey state courts.
Chevron USA Inc. v. Plaquemines Parish, 24-813.
The Court will resolve two questions regarding how the federal-officer removal statute, 28 U.S.C. §1442(a)(1), as amended in 2011, applies to oil and gas companies sued based on their exploration and production activities conducted in Louisiana’s coastal zone during World War II. Several Louisiana coastal parishes, joined by the Louisiana Attorney General and the Louisiana Secretary of Natural Resources, filed suit against various oil and gas companies (petitioners) in state court alleging violations of Louisiana’s State and Local Coastal Resources Management Act of 1978 (SLCRMA). The suits were based in part on petitioners’ (and their predecessors’) World War II-era activities. The plaintiffs assert that the SLCRMA applies to that pre-enactment activity because “most, if not all, of [petitioners’] operations or activities . . . were not ‘lawfully commenced or established’ prior to the implementation of the coastal zone management program.” Petitioners then invoked the federal officer removal statute, which provides federal jurisdiction over civil actions against “any person acting under [an] officer” of the United States “for or relating to any act under color of such office.” Petitioners contended they meet that test because (1) they “had federal contracts to supply the U.S. government with refined petroleum products during WWII, and (2) produced crude oil that they used to fulfill those contracts.” The district court granted respondents’ motion to remand, and a divided panel of the Fifth Circuit affirmed. 103 F.4th 324.
The Fifth Circuit agreed that “petitioners here ‘satisfy the “acting under” requirement’ of 28 U.S.C. §1442(a)(1) by virtue of their federal contracts to supply the federal government with avgas for the armed forces during WWII.” But the panel held that “the challenged ‘exploration and production activities’ were ‘unrelated’ to the refining activities that petitioners carried out under their federal contracts.” The court “reasoned that the federal contracts themselves lacked ‘any reference, let alone direction, pertaining to crude oil.’ In the panel majority’s view, because the federal contracts gave petitioners ‘complete latitude’ over how to acquire the necessary crude—i.e., they could purchase it from other producers or extract it themselves—their exploration and production activities undertaken to fulfill their federal contracts were unrelated to their refining activities under those same federal contracts.”
Petitioners present two questions: “(1) Whether a causal-nexus or contractual-direction test survives the 2011 amendment to the federal-officer removal statute. (2) Whether a federal contractor can remove to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract.” Petitioners note that in 2011 Congress amended §1442(a)(1) to permit removal of an action not only “for a[ny] act under color of [federal] office,” but also for an action “for or relating to any act under color of such office.” They argue that this amended text “rejects any contractual-direction or causal-nexus requirement.” And they argue that they plainly meet the “relating to” requirement: “The statute asks only whether production activities undertaken to fulfill the contract were ‘related to’ the contractual refining obligations. And the answer to that question is self-evident: Petitioners’ crude oil exploration and production activities are closely and inextricably related to their subsequent refining of that same crude oil to satisfy their federal contracts for refined avgas.”
The state asserts that §1442(a)(1) “does not fit here for the obvious reason that this lawsuit was filed against Petitioners—based on their exploration and production activities—who avowedly were not acting under a United States officer in exploring for, and producing, crude oil, since Petitioners’ refining contracts are ‘utterly silent’ on how Petitioners were to ‘gather[] the required component parts of avgas.’ . . . If the rule were otherwise (as Petitioners urge), that would render meaningless the ‘for or relating to’ language in §1442(a)(1) because virtually every remote and tenuous activity could be deemed related to a government contract.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
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