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Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
February 10, 2025 | Volume 32, Issue 6
This Report summarizes opinions issued on January 17 and 21, 2025 (Part I); and cases granted review on January 17, 24, and 27, 2025 (Part II).
Opinions
TikTok Inc. v. Garland, 24-656.
Without dissent, the Court held that the Protecting Americans from Foreign Adversary Controlled Applications Act (Act)―which bars TikTok from operating in the United States as of January 19, 2025, unless the Chinese company that owns it divests its assets―does not violate the First Amendment. The Act makes it unlawful for any entity to provide certain services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States. Entities that violate this prohibition are subject to civil enforcement actions and hefty penalties. There are two ways by which an application may be designated a “foreign adversary controlled application.” Relevant to this matter is the provision specifically identifying any application that is “operated, directly or indirectly” by ByteDance Ltd. or TikTok or any subsidiary or successor thereof. These specific prohibitions took effect 270 days after the Act’s enactment—January 19, 2025. The Act exempts a foreign adversary-controlled application from the prohibitions if the application undergoes a “qualified divestiture” that the President determines will result in the application “no longer being controlled by a foreign adversary.”
ByteDance and TikTok and two sets of TikTok users and creators filed petitions for review in the D.C. Circuit, challenging the constitutionality of the Act as violating the First Amendment. The D.C. Circuit consolidated the petitions and held that the Act does not violate petitioners’ First Amendment rights. The court assumed without finding that strict scrutiny applied and found that the Act satisfied that standard—it is narrowly tailored to further the Government’s compelling interest in countering China’s data collection and covert content manipulation. The Supreme Court construed petitioners’ applications for an injunction pending review of the D.C. Circuit’s decision as petitions for a writ of certiorari and granted them. Through a per curiam opinion, the Court affirmed.
The Court turned first to whether the challenged provisions are subject to First Amendment scrutiny. The Court noted that it was not determining whether regulation of corporate control constitutes direct regulation of expressive activity or semi-expressive activity. It also declined to articulate a framework for determining whether regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review. It did, however, note that the parties did not dispute that the Act effectively bans TikTok in the United States because it is commercially infeasible for TikTok to undergo a qualified divestiture within the Act’s 270-day timeframe. The Court recognized that the effective ban burdens the 170 million U.S. users’ expressive activity in a non-trivial way. With this context, the Court assumed that the challenged provisions trigger First Amendment scrutiny.
The Court then addressed whether intermediate or strict scrutiny applies. The Court found that the TikTok-specific provisions are (1) facially content neutral and (2) justified by a content-neutral rationale—preventing China from collecting vast amounts of sensitive data from U.S. TikTok users. It also found that the TikTok-specific distinctions do not trigger strict scrutiny because the Act’s differential treatment is justified in this narrow circumstance given TikTok’s scale, susceptibility for foreign adversary control, and the amount of data it collects. Based on all that, the Court applied intermediate scrutiny.
The Court then held that the Act survives intermediate scrutiny because the challenged provisions further an important Government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest. The Court found that preventing a foreign adversary from leveraging control over ByteDance to capture the personal data of U.S. TikTok users qualifies as an important Government interest under intermediate scrutiny. The Court noted that the public record shows that the platform collects extensive personal information from its users, including names, contact information, photos, job titles, and notes in a user’s phone contact list. Under TikTok’s current structure, this information is vulnerable to Chinese law enabling China to require companies to surrender data to the government. Affording great deference to Congress’s predictive judgments as to the risks of TikTok-related data collection, the Court dismissed petitioners’ arguments that the Chinese government has yet to leverage this vulnerability. The Court also dismissed petitioners’ argument that the Act is underinclusive as to the Government’s data protection concern, noting that the First Amendment imposes no freestanding underinclusiveness limitation and that the Government “need not address all aspects of a problem in one fell swoop.”
Moving to the tailoring prong, the Court observed that under intermediate scrutiny a regulation need not be the least restrictive means of advancing the Government interest. Rather, the Court, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), stated that intermediate scrutiny is satisfied “so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation” and does not “burden substantially more speech than is necessary” to further that interest. The Court concluded that the challenged provisions meet this standard by serving the data collection interest in a “direct and effective way.” The Court observed that the provisions do not ban TikTok outright, instead conditioning U.S. operations on a divestiture that would address the Government’s data collection concerns. The Court concluded that the provisions are not substantially broader than necessary to achieve the important national security objective. The Court dismissed petitioners’ proffered alternatives, quoting Ward to note that the existence of “less-speech-restrictive alternatives” will not invalidate methods that are not substantially broader than necessary to achieve the Government’s interest.
Finally, the Court addressed petitioners’ argument that Congress’s interest in preventing a foreign adversary from having control over the recommendation algorithm is a content-based justification that taints the Government’s otherwise content-neutral data-collection interest and triggers strict scrutiny. The Court declined to determine the proper standard for cases in which there are mixed justifications or whether the Government’s foreign-adversary-control justification is content neutral. Instead, the Court found that the Government’s data-collection justification was sufficient to sustain the challenged provisions. It noted that Congress was focused on the data-collection concerns and found that nothing in the legislative record suggests that data collection was “anything but an overriding congressional concern.”
Justice Sotomayor, concurring in part and concurring in the judgment, wrote briefly to express her disagreement with the Court’s choice to assume without deciding that the Act implicates the First Amendment. Justice Sotomayor stated that the Court’s precedents leave no doubt that First Amendment scrutiny is triggered.
Justice Gorsuch, concurring in the judgment, acknowledged the brief window the Court had to issue a decision in this case. He expressed reservations as to whether the challenged provisions were content neutral and not subject to strict scrutiny. But he concluded that the Government interest is compelling and that the challenged provisions were appropriately tailored.
Andrew v. White, 23-6573.
In a per curiam ruling, the Court summarily held that its prior precedent providing that the “Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair” constituted clearly established federal law under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Petitioner Brenda Andrew was convicted by an Oklahoma jury of murder and was sentenced to death. On appeal, Andrew argued that the introduction of irrelevant evidence at her trial, including evidence regarding her extramarital affairs, her sexual activities, and her provocative clothing, violated Oklahoma law and the federal Due Process Clause. The Oklahoma Court of Criminal Appeals agreed that much of the challenged evidence was irrelevant character evidence. The court denied relief, however, because it concluded that the trial court’s errors in admitting such evidence were harmless. In a federal habeas petition, Andrew reiterated her claim that the admission of irrelevant evidence rendered both the guilt and penalty phase of her trial fundamentally unfair, in violation of due process. The district court denied relief, and the Tenth Circuit affirmed. The Tenth Circuit held that the passage Andrew cited from Payne v. Tennessee, 501 U.S. 808, 825 (1991)―stating that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief”―was not “clearly established federal law governing her claim,” as required by AEDPA. As a result, the Tenth Circuit denied Andrew habeas corpus relief. In a per curiam opinion, the Court reversed and remanded.
The Court restated the familiar standard that a federal court may grant habeas corpus relief “as to a claim adjudicated on the merits in state court only if the state court relied on an unreasonable determination of the facts or unreasonably applied ‘clearly established Federal law, as determined by’ this Court.” Only the “holdings, as opposed to the dicta” of the Court’s decisions constitute clearly established law. And a “holding,” for purposes of AEDPA, includes a legal rule or principle the Court relied on to decide a case. Applying these principles, the Court ruled that the passage Andrew cited to in Payne constituted clearly established federal law. In Payne, the Court considered whether to overrule prior cases that had categorically barred the introduction of victim-impact evidence from the sentencing phase of a capital trial. The Court held that a categorical bar was not necessary given that the admission of victim-impact evidence is appropriate in certain circumstances and there is a federal due process protection already in place to guard against the admission of unduly prejudicial evidence. Specifically, the Court noted that “’the Due Process clause of the Fourteenth Amendment provides a mechanism for relief’ against the introduction of evidence ‘that is so unduly prejudicial that it renders the trial fundamentally unfair.’” The Court here held that, because this legal principle was “indispensable” to the decision in Payne, it was a holding for purposes of AEDPA. The Court also noted that Payne did not “invent due process protections against unduly prejudicial evidence” and that by the time the state court issued its decision in this case “it was clear that the introduction of unduly prejudicial evidence could, in certain cases, violate the Due Process Clause.”
The Court found that the Tenth Circuit was mistaken in constraining Payne to its facts when deciding what constitutes clearly established law under AEDPA. The Court clarified that “[g]eneral legal principles can constitute clearly established law for purposes of AEDPA so long as they are holdings of this Court.” Although the Court has not previously relied on Payne to invalidate a conviction for improperly admitted prejudicial evidence, it deemed the due process principle it enunciated to be so fundamental that the principle’s application should have been “beyond doubt.” The Court therefore held that the Tenth Circuit erred by refusing to consider whether the state court “unreasonably applied established due process principles to Andrew’s case.” On remand, the Court directed the Tenth Circuit to consider separately as to the guilt and sentencing phases, “whether a fairminded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.’”
Justice Alito concurred in the judgment to emphasize that while he agreed that the due process principle, as enunciated in Payne, constituted clearly established federal law, he expressed no opinion as to whether this “very high standard” was met in Andrew’s case.
Justice Thomas filed a dissenting opinion, which Justice Gorsuch joined. Justice Thomas disagreed with the majority that the due process rule it enunciated was clearly established by the Court’s prior precedents. In so holding, the dissent claimed that the majority framed the Court’s precedents at too “high [a] level of generality” to “supply a ground for relief” under AEDPA. In Justice Thomas’s view, Payne held only that the Eighth Amendment does not categorically bar the admission of victim-impact evidence in capital sentencing hearings. According to the dissent, the Court’s recognition in Payne that the admission of unduly prejudicial evidence could render a trial fundamentally unfair in violation of the Due Process Clause was a caveat that should be applied only to scenarios involving the admission of unfairly prejudicial victim-impact statements. Justice Thomas cautioned that defining clearly established law at such a highly general level as the majority did runs the risk of transforming the habeas statute into a tool for “ordinary error correction.” The dissent also found that the majority’s reading of Payne was not “clearly established” because fairminded jurists could reasonably disagree with its interpretation. And “[a] contestable interpretation of precedent cannot be clearly established law.”
CASES GRANTED REVIEW
Oklahoma Statewide Charter School Board v. Drummond, 24-394;
St. Isidore of Seville Catholic Virtual School v. Drummond, 24-396.
The Court is reviewing an Oklahoma Supreme Court decision that invalidated Oklahoma’s effort to establish a public charter school that is pervasively religious. The two questions presented are: (1) “Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.” (2) “Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.”
The Oklahoma Charter Schools Act authorizes private organizations to contract with the state to establish a charter school. The Charter School Act also requires the charter school be nonsectarian in its programs, admission policies, employment practices, and other operations. Charter schools receive state aid allocations like those provided to traditional public schools. Here, St. Isidore of Seville Virtual Charter School, Inc. applied to establish a public virtual charter school under the Charter School Act. It intended to establish the St. Isidore of Seville Virtual Charter School (SISVC) to operate as a “Catholic School” and to be a “genuine instrument of the Church” and “participate[] in the evangelizing mission of” the Catholic Church. The Oklahoma Statewide Virtual Charter School Board (Board) granted a contract establishing the SISVC School. The Attorney General of Oklahoma petitioned the Oklahoma Supreme Court for a writ of mandamus directing the Board to rescind the contract. He also sought a declaratory judgment stating that the contract violated the Oklahoma Constitution. The Oklahoma Supreme Court found that the contract violates the Oklahoma Constitution, the Charter School Act, and the federal Establishment Clause. 2024 OK 53.
After finding that the contract violated the Oklahoma Constitution, the Oklahoma Supreme Court turned to its federal analysis. The court found that the charter school is a state actor under the entwinement and public function tests. Given these findings, the court found that SISCV’s plan to establish and operate as a Catholic school would require students to participate in religious activities, violating the Establishment Clause. Finally, the court distinguished the charter school from the “Free Exercise Trilogy”—Carson v. Makin, 596 U.S. 767 (2022); Espinoza v. Montana Dep’t of Rev., 591 U.S. 464 (2020); and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017). It found that unlike the entities in the Free Exercise Trilogy, the charter school is state-created and does not exist independent of the state. Thus, the creation of the sectarian charter school goes beyond providing fair access to a generally available public benefit into a violation of the Establishment Clause.
Petitioners (the Board and its individual members, and SISCV) first dispute that SISVC’s operation as a charter school is “state action.” They argue that the Charter School Act’s characterization of charter schools as public schools is insufficient to establish state action. Relying primarily on Rendell-Baker v. Khon, 457 U.S. 830 (1982), petitioners then argue that the Court has held that total state funding and even extensive state regulation of an entity’s actions are insufficient to establish state action. Instead, petitioners assert, extensive state regulation supports a finding of state action only if the regulation compels the challenged conduct. Here, petitioners argue, the sectarian pedagogical choices of SISVC are not compelled or influenced by state regulation, and therefore SISVC is not a state actor. Petitioners further argue that SISVC cannot be considered a state actor because the provision of free public education is not an exclusively public function.
Petitioners next argue that preventing the establishment of a sectarian charter school violates the Free Exercise Clause because it withholds an otherwise available public benefit from religious organizations. They assert that the Oklahoma Supreme Court’s contrary conclusion contradicts the Court’s recent decisions in Trinity Lutheran, Espinoza, and Carson. These decisions illustrate that the state interest in having separation of church and state further than the federal constitution is not compelling in the face of religious entities and families’ free exercise rights. Petitioners liken the individual choices of the parents in using their scholarship funds or tuition assistance funds identified in Espinoza and Carson to the Oklahoma charter school funding allocation based on enrollment. Here, petitioners argue, Oklahoma’s choice to expand educational options through the Charter School Act does not involve operating more public schools of its own. Petitioners conclude that the Oklahoma court’s Establishment Clause analysis fails because it hinged on the erroneous conclusion that the establishment of SISVC as a charter school was state action. And, in any event, a state’s anti-establishment interest does not justify exclusion of some members of the community from otherwise generally available public benefit.
Mahmoud v. Taylor, 24-297.
The Court will consider whether schools burden parents’ rights to freely exercise their religion if they do not provide the parents notice or opportunity to opt out of instruction related to LGBTQ-themed storybooks that may raise issues or concepts against the parents’ religious convictions. Petitioners are parents who, for various religious reasons, object to instruction on gender and sexuality that violates their religious beliefs that gender and sexuality are inseparable. Petitioners specifically object to the Maryland School Board’s (the Board’s) policy not to provide notice or opportunity to opt out of their children’s participation in instruction on certain LGBTQ-inclusive storybooks in Maryland public schools’ elementary school curriculum. The storybooks discuss topics including genderfluidity, transgender identity, and queer identity and are included in the elementary language arts curriculum.
Petitioners filed a suit under the Free Exercise Clause against the Board and moved for a preliminary injunction. The district court denied the motion, concluding that petitioners were unlikely to show that the no-opt-out policy burdens their religious exercise. Petitioners sought an injunction pending appeal from the Fourth Circuit. A divided panel found that petitioners did not establish a free-exercise burden because there was no evidence yet that petitioners were compelled to change their beliefs or conduct because of the no-opt-out policy. And without some coercive effect, the Fourth Circuit concluded there could be no burden on petitioners’ rights. 102 F.4th 191.
Petitioners characterize the storybook curriculum as instruction on family life and human sexuality. They argue that parents have an “enduring American tradition” of parental religious control over a child’s upbringing that has been upended by the Board’s no-opt-out policy. Turning to the Court’s free-exercise jurisprudence, petitioners first argue that the Fourth Circuit’s decision improperly heightens the showing of harm identified in Wisconsin v. Yoder, 406 U.S. 205 (1972). They argue that Yoder stands for the proposition that exposure to influences that substantially interfere with a child’s religious development at a crucial adolescent stage is enough to trigger a free-exercise burden. Petitioners then argue that they have been put into a similar position as the claimant in Sherbert v. Verner, 374 U.S. 398 (1963), likening the no-opt-out policy to the unconstitutional indirect pressure of denying benefits to a person who was discharged for refusing to work on Saturday, her religious day of rest. Just as the Sherbert claimant was unconstitutionally forced to choose between her religion and her access to work, petitioners argue that they are unconstitutionally forced to choose between their faith and the public benefit of public school. Petitioners next argue that the burden of removing their ability to opt out of instruction poses the same constitutional burdens as compelling the Bowen v. Roy, 476 U.S. 693 (1986), claimant to use her social security number against her religious beliefs.
The Board counters petitioners’ characterization of the Fourth Circuit’s application of Yoder. It notes that the Fourth Circuit was considering the issue on a preliminary injunction record and did not find evidence that the absence of the notice and opt-out procedures affirmatively compelled petitioners to perform acts undeniably at odds with fundamental tenets of their religious beliefs. The Board further notes that the remaining cases cited by petitioners similarly require evidence of direct or indirect coercion, which petitioners failed to establish on the preliminary injunction record. The Board reasons that the no-op-out policy does not require petitioners’ children to take any position on the permissibility or impermissibility of any person’s identity or require them to engage in any conduct that is religiously objectionable; the policy simply requires students to be present when the storybooks are read. The Board further argues that the opt out that petitioners seek is equal to an attempt to dictate the conduct of the government that Bowen rejected. Next, the Board maintains that requiring schools to shepherd certain students out of the room whenever objectionable material is read requires the government to refashion the curriculum for those students. The Board asserts that the “Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” Bowen, 476 U.S. at 700.
Martin v. United States, 24-362.
The Court will decide (1) whether the Supremacy Clause bars claims under the Federal Tort Claims Act (FTCA) when the negligent or wrongful acts of federal employees have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law; and (2) whether the discretionary-function exception to the FTCA is categorically inapplicable to claims arising under the law enforcement proviso to the intentional-torts exception. The FTCA waives the federal government’s sovereign immunity as to state-law tort claims arising from the wrongful or negligent acts or omissions of its employees if a private person, under the same circumstances, would be liable under the law of the state where the act or omission occurred. There are several exceptions to the FTCA’s waiver of sovereign immunity. Included among them are the discretionary-function and the intentional-torts exceptions. In 1974, in response to wrong-house raids conducted by federal police, Congress amended the FTCA to add a law enforcement proviso to the intentional-torts exception. This proviso authorizes claims arising out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution for acts or omissions committed by an investigative or law enforcement officer of the U.S. Government.
Petitioners, Curtrina Martin, her minor child, and Hilliard Toi Cliatt, filed suit in federal district court against the United States under the FTCA following the FBI’s execution of a no-knock search warrant at their home, which was not the address identified in the warrant. In their complaint, petitioners raised several claims based on state tort law, including negligence, negligent/intentional infliction of emotional distress, trespass and interference with private property, false imprisonment, and assault and battery. The Government moved for summary judgment, which the district court ultimately granted in full. The Eleventh Circuit affirmed in an unpublished per curiam decision. 2024 WL 1716235.
The Eleventh Circuit held that all of petitioners’ FTCA claims were barred by sovereign immunity. Using the two-factor test set forth in United States v. Gaubert, 499 U.S. 315, 323 (1991), the court concluded that the discretionary-function exception applied to bar petitioners’ claims for negligence, negligent/intentional infliction of emotional distress, trespass, and interference with private property. Based on existing circuit precedent, the court did not apply the discretionary-function exception to petitioners’ remaining claims for false imprisonment and assault and battery. The Eleventh Circuit holds that the discretionary-function exception is categorically inapplicable to FTCA claims Congress authorized through the law enforcement proviso. But the court ruled that these claims were nonetheless barred by the Supremacy Clause. According to Eleventh Circuit precedent, “the government may invoke the Supremacy Clause against state-tort liability” if it demonstrates that the official’s acts (1) “have some nexus with furthering federal policy” and (2) “can reasonably be characterized as complying with the full range of federal law.” Kordash v. United States, 51 F.4th 1289 (11th Cir. 2022). A government official’s acts satisfy the first part of the test if he “acted within the scope of his discretionary authority.” The court held that its two-part test was satisfied here because there was “no doubt that the FBI agent acted within the scope of his discretionary authority when he prepared for and executed the search warrant.”
Petitioners argue that the Eleventh Circuit’s use of the Supremacy Clause to bar FTCA claims for federal acts that “have some nexus with furthering federal policy” defeats Congress’s waiver of sovereign immunity through the FTCA, and its law enforcement proviso, in particular. According to petitioners, the Eleventh Circuit’s application of the Supremacy Clause “usurps ‘Congress’ policymaking role,’ and shields through sovereign immunity many (if not most) of the acts Congress intended to cover through the FTCA.” Petitioners also point out that because the FTCA itself is a federal law, it cannot conflict with the Supremacy Clause. They reason that, because federal law incorporates state tort law for purposes of FTCA claims, there can be no conflict between state and federal law in these circumstances. Petitioners also note that the circuits are split over whether the discretionary-function exception to the FTCA is categorically inapplicable to claims arising under the law enforcement proviso to the intentional-torts exception. They agree with the Eleventh Circuit that it is and that “applying the discretionary-function exception to bar claims permitted by the law-enforcement proviso ‘would defeat . . . the clear purpose of the 1974 amendment.’”
The United States asserts that the Eleventh Circuit did not need to invoke the Supremacy Clause as the basis for its decision because the discretionary-function exception already provides protection from suit in these circumstances. According to the United States, the Eleventh Circuit’s precedent that extends the law enforcement proviso to the discretionary-function exception is wrong. The United States argues that the text, structure, and history of §2680 (the provision that lists the exceptions to the FTCA’s waiver of sovereign immunity) make clear that the law enforcement proviso to the FTCA, which was placed within the intentional-torts exception, modifies only that exception and not any of the others.
Laboratory Corp. of America Holdings v. Davis, 24-304.
The Court will resolve whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury. Respondents, a group of legally blind individuals, sued petitioner Laboratory Corporation of America Holdings in federal district court alleging that LabCorp discriminated against them and other similarly situated blind individuals because it did not make its express self-service kiosks accessible to the blind. The district court certified a California class under Rule 23(b)(3) seeking damages under California’s Unruh Civil Rights Act and a nationwide class under Rule 23(b)(2) seeking injunctive relief under the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. The damages class included “all legally blind individuals who visited a LabCorp patient service center with a LabCorp Self-Service kiosk in California during the applicable limitations period and who, due to their disability, were unable to use the LabCorp Express Self-Service kiosk.” LabCorp filed an interlocutory appeal, challenging the district court’s class-certification decisions. The Ninth Circuit affirmed in an unpublished order. 2024 WL 489288.
With respect to the damages class, the Ninth Circuit held that Article III posed no bar to class certification because a named plaintiff suffered an “injury in fact” and that injury was sufficient to confer standing onto the entire class, even those who may not have been injured themselves. The court additionally held that respondents met the necessary requirements under Rule 23(a) and Rule 23(b)(3) for class certification. With respect to Rule 23(b)(3), the Ninth Circuit concluded that common facts predominated over individual ones because all the class members maintained that “their injury resulted from the inaccessibility of a LabCorp kiosk.” Relying on existing circuit precedent, the court noted that the presence of some potentially uninjured members in the proposed class did not defeat commonality. In the Ninth Circuit, as long as individualized inquiries regarding the injury status of class members do not predominate over common questions, a class that includes more than a de minimis number of uninjured class members may be certified. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022).
In its petition, LabCorp asserts that the Ninth Circuit’s decision affirming the district court’s certification of the damages class rests on an erroneous interpretation of Rule 23(b)(3) and Article III. With respect to Rule 23(b)(3), LabCorp argues that the presence of any more than a de minimis number of uninjured class members will vitiate the predominance requirement because the later individualized inquiry into each of these member’s standing will necessarily overwhelm the issues common to all class members. LabCorp points out that the predominance requirement is important because it ensures that a proposed class is sufficiently cohesive to warrant adjudication by representation. LabCorp argues that loosening that requirement, and allowing for any more than a de minimis number of uninjured members to be included in a class, transforms a procedural device for “aggregating” claims into a tool for “manufacturing” them. LabCorp cautions that this approach could tilt the playing field in favor of plaintiffs by allowing them to overinflate a proposed class, which would in turn provide them with leverage to “extract a settlement” upon certification. With respect to Article III, LabCorp contends that each class member must establish an injury in fact to confer standing, just as any litigant would have to do in an individual suit. LabCorp points out that a class action is merely a procedural device that allows for the aggregation of claims, and it cannot alter a class member’s substantive rights and duties. LabCorp thus asserts that for a class to be certified, the plaintiffs “must define its class in a way that all class members have Article III standing and offer common evidence to show that those members have indeed suffered an injury-in-fact on a classwide basis.”
Respondents counter that neither Article III nor Rule 23(b)(3) requires that uninjured class members be excluded from the class at the time of certification. Respondents agree with the Ninth Circuit that Article III requires only one individual plaintiff to demonstrate standing on behalf of a class. According to respondents, while the question whether all members can demonstrate an entitlement to relief may impact Rule 23(b)(3)’s predominance determination, it does not impact a court’s authority to entertain the class’s claims. And while respondents acknowledge that the existence of uninjured class members may inform whether a proposed class satisfies the requirements of Rule 23(b)(3), they contend that it is not necessary to prove that every member was injured for the class action to be certified. Respondents point out practical problems with conditioning certification on proof that all class members were injured. Rule 23(c)(1)(A) requires certification at an “early practicable time.” But assessing class members’ injuries at this early stage is difficult, and often not feasible, because in many cases their identities are unknown or the facts bearing on a member’s claims may be unknown.
A.J.T. v. Osseo Area Schools, Independent School District No. 279, 24-249.
The Court will resolve whether the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 require children with disabilities to satisfy a “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education. Petitioner A.J.T. is a student with a rare form of epilepsy that causes severe seizures in the morning, which prevents her from attending school before noon. Petitioner’s parents repeatedly sought accommodations from respondent Osseo Area Schools (the District) to allow her to receive the same amount of instruction time as her non-disabled peers. Although the District provided some accommodations, it denied petitioner’s request for evening instruction. Her parents filed an Individuals with Disabilities Education Act (IDEA) complaint, which guarantees “free appropriate public education.” An administrative law judge awarded petitioner IDEA relief, modifying her individualized education plan (IEP) to include evening instruction. The District challenged the ALJ’s ruling in district court. Petitioner, in turn, sued the District under the ADA and Rehabilitation Act, seeking an injunction to permanently secure adequate instruction time and compensatory damages over and above her IDEA claim.
Where the IDEA concerns only school-age children with respect to their education, the ADA and Rehabilitation Act guard against disability discrimination generally. Also, the ADA and Rehabilitation Act allow individuals to seek redress for violations through both injunctive relief and money damages. Petitioner succeeded under her IDEA claim, but the district court granted summary judgment to the District with respect to her ADA and Rehabilitation Act claims. The court found that under Monahan v. Nebraska, 687 F.2d 1164 (8th Cir. 1982), petitioner must show “bad faith or gross misjudgment” to succeed under those two claims. The Eighth Circuit unanimously affirmed. 96 F.4th 1058. The court of appeals agreed that IDEA had been violated, but that petitioner failed to establish “bad faith or gross misjudgment” by the District to succeed under her ADA or Rehabilitation Act claims made in the “context of education of handicapped children.”
Petitioner argues that the Eighth Circuit’s Monahan rule is not grounded in statutory text, structure, or purpose. First, she notes that outside the education context, plaintiffs may satisfy the intent requirement for an ADA or Rehabilitation Act claim by proving the defendant was deliberately indifferent to their federally protected rights. She argues that nothing in the text of either law establishes any different standard in the context of education of children with disabilities. Second, petitioner argues that the Monahan rule improperly restricts the rights and remedies available to children to IDEA claims, contrary to the explicit language in the IDEA stating that “nothing in the [IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], [Rehabilitation Act], or other Federal laws protecting the rights of children with disabilities.” 20 U.S.C. §1415(l). Lastly, petitioner argues that the Monahan rule’s doubt that courts can make judgments about decisions by educational officials in the technical field of educational accommodations is baseless, for the IDEA demands such an inquiry. Petitioner filed a supplemental brief to note that the United States has also taken the position in a different case that the ADA and Rehabilitation Act do not require children with disabilities to satisfy the “bad faith or gross misjudgment” standard when pursuing education discrimination claims.
The District counters by noting that the “bad faith or gross misjudgment” standard is an appropriate exercise of judicial discretion given that the private rights of action under the ADA and Rehabilitation Act are judicially implied. The District notes that claims like petitioner’s are unique as they require courts to adjudicate the proper exercise of educational policies, which are more properly addressed in an IDEA claim, justifying the heightened standard. The District further cautions that eliminating the heightened standard would essentially allow for an end-run of the statutorily provided IEP process and preempt IDEA facilitation, transforming every successful educational services claim into an open-and-shut discrimination claim under the ADA and the Rehabilitation Act.
Soto v. United States, 24-320.
Title 31 U.S.C. 3702, known as the Barring Act, created a comprehensive administrative claims-settlement process for all claims against the United States unless “another law” establishes how “claims” against the United States “shall be settled.” It contains a six-year statute of limitations. In 2002, Congress created Combat Related Special Compensation (CRSC) for veterans both injured in combat or other hazardous duty and who retired from the military because they served at least 20 years. 10 U.S.C. §1413a. Congress amended the CRSC in 2008 to include veterans whose disabilities prevented further service. The CRSC program does not contain a limitations period. At issue here is whether the CRSC is “another law” that establishes how “claims” against the United States “shall be settled.” Or, as phrased by the Court in granting certiorari, the question is: “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. §1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. §3702(a)(l)(A), does 10 U.S.C. §1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?”
Petitioner Simon Soto retired from the Marine Corps in 2006. In 2016, he sought CRSC under §1413a based on his PTSD. He was granted back payments for CRSC up to the six-year statute of limitations set forth in the Barring Act (i.e., back to 2010). Soto filed a putative class action in federal district court alleging an unlawful policy of paying no more than six years of retroactive CRSC. The district court granted summary judgment in favor of Soto, finding that the CRSC statute has its own settlement mechanism, placing it outside the reach of the Barring Act’s generally applicable six-year statute of limitations for settlement of claims against the United States. The Federal Circuit reversed. 92 F.4th 1094.
The Federal Circuit held that the CRSC statute does not contain its own settlement mechanism, differentiating the CRSC eligibility terms from a mandate from Congress “confer[ring] settlement authority independent of the Barring Act.” It explained that such a statute must “explicitly grant an agency or entity the authority to settle claims” using “specific language” that would typically use the term “settle.” Without this specific language, held the court, the statutory scheme in question would need to specifically set out a period of recovery to place it outside the general application of the Barring Act.
Soto argues that the Federal Circuit’s test conflicts with the Supreme Court’s definition of the term “settlement.” He contends that CRSC is a specific statute that details who is entitled to its benefits, how the benefits are calculated, the source of the benefits, and who is responsible for paying for the benefits. These specific provisions, he says, take it out of the purview of the general application of the Barring Act. More generally, Soto insists that the Court’s definition of “settlement” means the administrative determination of the amount due on a claim―which the CRSC statute accomplishes. Soto argues that the Federal Circuit’s two-part test completely replaces the Court’s definition of settlement. For example, the specific language prong would eliminate a statute that had all the necessary features to allow an agency to make an “administrative determination of the amount due.” Conversely, that test would pass any statute with the word “settle” in it.
Bowe v. United States, 24-5438.
Title 28 U.S.C. §2244(b)(1) requires the dismissal of “a claim presented in a second or successive habeas corpus application under §2254 that was presented in a prior application.” Six federal circuits have extended §2244(b)(1)’s procedural bar to federal-prisoner motions to vacate filed under 28 U.S.C. §2255. Three circuits have come to the opposite conclusion, holding that §2244(b)(1) does not apply to §2255 motions. The Court will resolve this circuit split and determine whether §2244(b)(1) applies to a claim presented in a second or successive motion to vacate under §2255. To reach that question, however, the Court will first have to resolve whether 28 U.S.C. §2244(b)(3)(E) deprives it of certiorari jurisdiction over a court of appeals decision to permit or deny the filing of a second or successive motion to vacate under §2255. Section 2244(b)(3)(E) provides that “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”
Petitioner Michael Bowe filed an application in the Eleventh Circuit seeking an order authorizing the district court to consider a second or successive §2255 motion to vacate, set aside, or correct his federal sentence. In the application, Bowe acknowledged that he was bringing a claim that he had previously presented in a prior §2255 motion. He also acknowledged that, because of this, his application was “foreclosed” by binding circuit precedent. The Eleventh Circuit is one of the circuits that has extended the §2244(b)(1) procedural bar to §2255 motions. In re Baptiste, 828 F.3d 1337 (11th Cir. 2017). Consequently, Bowe filed a petition for initial hearing en banc, asking the en banc court to overrule the Baptiste decision. In the alternative, he filed a motion to certify a question of law to the Supreme Court under 28 U.S.C. §1254(2). The Eleventh Circuit declined Bowe’s request to reconsider Baptiste en banc, dismissed the application for lack of jurisdiction, and denied the motion to certify.
Bowe argues that the plain text of §2244(b)(1) limits its application to habeas corpus petitions filed by state prisoners pursuant to §2254. He points out that the statute references only §2254. And he asserts that if Congress had intended to include §2255 motions filed by federal prisoners within §2244(b)(1)’s purview, it could have included §2255 in the statutory language. Bowe also disagrees with the Eleventh Circuit’s textual justification for applying §2244(b)(1) to federal prisoners. The Eleventh Circuit emphasized that, pursuant to §2255(h), a successive §2255 motion “must be certified as provided in section 2244.” The court construed this language to incorporate the “whole range of procedures and limitations set out in” §2244, including §2244(b)(1). Bowe endorses an alternative interpretation of this provision from other circuits. These circuits have explained that “§2255(h)’s reference to §2244’s certification requirement is much more sensibly read as referring to the portions of §2244 that actually concern the certification procedures[,]” as set forth in §2244(b)(3).
Bowe recognizes that to resolve the question he presents on the merits, the Court must also resolve the threshold question whether §2244(b)(3)(E) deprives the Court of certiorari jurisdiction. He asserts that, according §2244(b)(3)(E)’s plain terms, it does not. Bowe points out that the provision prohibits certiorari review of “the grant or denial of an authorization by a court of appeals to file a second or successive application.” He argues that §2244’s text and structure make clear that the term “application” refers to a habeas corpus application, not a motion to vacate under §2255. And because §2255(h) does not incorporate the entirety of §2244, but rather only the provisions of that section that govern the certification determination by the court of appeals, it does not include §2244(b)(3)(E)’s prohibition on certiorari review.
The United States agrees with Bowe’s position that §2244(b)(1) does not apply to §2255 motions and that the Eleventh Circuit erred in holding otherwise. But it disputes Bowe’s assertion that the Court has jurisdiction to review the Eleventh Circuit’s decision. The United States interprets §2255(h)’s certification requirement as incorporating the §2244(b)(3)(E) bar and making it applicable to a court of appeals decision to either permit or deny a successive §2255 motion. The United States notes that §2255(h) is a parallel provision to §2244(b)(2). Both permit a litigant to seek leave to file a second or successive petition in certain, delineated circumstances. Section 2244(b)(3) contains subdivisions regulating the procedure for obtaining authorization to file a second or successive habeas corpus application. Included in these subdivisions is §2244(b)(3)(E), which bars certiorari review of the court of appeals decision to either permit or deny a second or successive application. Because a §2255 motion is subject to the certification procedures under §2244, it is necessarily subject to all the subdivisions of §2244(b)(3), including subdivision E. The United States also points out that, throughout §2244, when Congress intended to refer only to a state prisoner’s petition for a writ of habeas corpus, it said so expressly. In the certification subparagraphs, which include §2244(b)(3)(E), Congress used only the term “a second or successive application.” According to the United States, this signals that these subparagraphs are applicable to certification requests by both state and federal prisoners.
Parrish v. United States, 24-275.
At issue is whether a litigant who files a notice of appeal after the ordinary appeal period under 28 U.S.C. §2107(a)-(b) expires must file a second, duplicative notice after the appeal period is reopened under §2107(c) and Federal Rule of Appellate Procedure 4(a)(6). Section 2107(c) and Federal Rule of Appellate Procedure 4 provide two exceptions to the ordinary appeal period. Under the first exception, the district court may “extend the time for appeal upon a showing of excusable neglect or good cause” if the motion for such an extension is filed within 30 days after the expiration of the ordinary deadline. Under the second exception, the district court may “reopen the time for appeal” for 14 days if the court finds that an entitled party did not receive notice of entry of the judgment or order at issue within 21 days of its entry and that no party would be prejudiced by the reopening of the time for appeal.
Donte Parrish, a pro se prisoner litigant, brought an action against the United States under the Federal Tort Claims Act in federal district court. After dismissal of his claims, Parrish did not file a timely notice of appeal. Parrish did, however, send a handwritten notice of appeal to the district court on July 9, 2020. In the notice, he alleged that, due to his transfer from federal to state custody, he had not received the court’s prior judgment until June 25, 2020. The district court transmitted the notice of appeal to the Fourth Circuit. The court of appeals construed the notice of appeal as a motion to reopen the appeal period under §2107(c) and Federal Rule of Appellate Procedure 4(a)(6) and remanded to the district court to address Parrish’s motion in the first instance. On remand, the district court allowed the motion and reopened the time for Parrish to file his appeal for 14 days following entry of the order. Parrish did not file an additional notice of appeal during the 14-day period. Parrish nonetheless argued that the Fourth Circuit had appellate jurisdiction based on a combination of his untimely notice of appeal and the district court’s subsequent order reopening the appeal period under §2107(c) and Rule 4(a)(6). The Government agreed with Parrish’s jurisdictional statement and the parties joined issue on the merits. The Fourth Circuit dismissed Parrish’s appeal for lack of appellate jurisdiction. 74 F.4th 160.
The Fourth Circuit held that because Parrish did not file a new notice of appeal within 14 days after the district court’s order reopening the time for appeal, it lacked jurisdiction under §2107(c). In so holding, the court differentiated between the two exceptions set forth in §2107(c). The court noted that, if granted, a motion for an extension filed within the required 30-day period extends the original time for filing an appeal. And a court order granting the motion validates any prior notice of appeal filed within the period of extension. A motion to reopen, however, involves a special exception recognized by Congress “by which a court could authorize a new 14-day window for filing an appeal.” That exception, the court reasoned, “clearly requires that a notice of appeal be filed within the 14-day period.”
In his petition, Parrish notes that the Court has stated that filing a notice of appeal too early does not “extinguish an otherwise proper appeal.” FirsTier Mortg. Co. v. Investors Mortg., 498 U.S. 269 (1991). Parrish asserts that, as reflected by the Court’s decision in FirsTier and several federal rules of appellate procedure, there is a generally recognized principle that premature notices of appeal ripen once an appeal becomes procedurally proper. He contends that the Fourth Circuit erred by applying this ripening principle to extensions, but not to the reopening of the appeal period under §2107(c). Parrish asserts that the court’s reasoning rests on two faulty premises. The first premise is that an extension, unlike reopening, necessarily involves an unbroken appeal period. Parrish contends that this interpretation is refuted by the plain terms of §2107(c) and Rule 4(a)(5), which state that such a motion can be filed 30 days after the appeal period has lapsed. He also points out that the Court has cited to Rule 4(a)(5) extensions as an example of extensions that do not necessarily involve a continuous period. The second premise is that a notice of appeal can ripen only when it is retroactively deemed to have been filed during a continuous, unbroken appeal period. Parrish argues that this construction finds no basis in text. And he contends that imposing a continuity requirement for ripening would upset settled law regarding other federal rules of appellate procedure, such as Rule 54(b) certification, Rule 4(a)(2), and Rule 4(a)(4)(B)(i).
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Sianha Gualano, Supreme Court Fellow
- Nicole Nixon, Supreme Court Fellow
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