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January 29, 2026 | Volume 33, Issue 5
This Report summarizes opinions issued on January 9 and 14, 2026 (Part I); and cases granted review on January 9, 2026 (Part II).
Opinions
Bost v. Illinois State Board of Election, 24-568.
By a 5-2-2 vote, the Court held that candidates for political office have Article III standing to challenge state rules governing how votes are counted in their federal elections. Illinois law allows election officials to count mail-in ballots postmarked or certified no later than election day and received within two weeks of election day. Congressman Michael Bost challenged that law in federal court, arguing that it conflicts with 2 U.S.C. §7 and 3 U.S.C. §1, which set election day as the Tuesday following the first Monday in November. Bost argued that counting ballots after election day requires him to organize, fundraise, and run his campaign for 14 additional days. He also alleged that he risked injury if untimely and illegal ballots cause him to lose the election or reduce his margin of victory. Bost submitted that even a reduced margin of victory would cause reputational harm, undermining his constituents’ confidence in his performance, as well as the confidence of donors, future voters, colleagues in Congress, and political opponents. The district court dismissed Bost’s complaint, holding that he lacked Article III standing. The Seventh Circuit affirmed. It concluded that Bost’s alleged harms were not sufficient for standing because they represent speculative, hypothetical future harms rather than imminent or materialized injury, particularly considering that Bost had won the last election with 75% of the vote and the upcoming election would not occur for many months. In an opinion by Chief Justice Roberts, the Court reversed and remanded.
The Court held broadly that Bost has Article III standing because “a candidate has a personal stake in the rules that govern the counting of votes in his election.” The Court explained that “winning, and doing so as inexpensively and decisively as possible, are not a candidate’s only interests in an election.” Rather, they “have an interest in a fair process. . . . Win or lose, candidates suffer when the process departs from the law. Thus, the long-shot and shoo-in alike would suffer harm if a State chose to conduct its election by, say, flipping a coin.” And “[s]uch harm to candidates is in no sense ‘common to all members of the public.’” A candidate’s interest is “more particularized” because candidates more palpably experience reputational harm when election rules are unfair. The Court further found that “[r]ules that undermine the ‘integrity of the electoral process’ also undermine the winner’s political legitimacy.”
The Court rejected the contention put forth by respondents and the dissent that a candidate must show that he would likely lose an election due to an unlawful election rule. First, the Court found that this requirement would result in disruptive legal action too close to elections, because only then can a candidate determine with any certainty that an election rule will determine the outcome. The Court emphasized that judicial intervention just before an election confuses voters, reduces faith in election integrity, and disincentivizes voting. The Court further reasoned that public confidence is even more eroded in cases where courts intervene after votes have been counted. Finally, the Court observed that even experts have a notoriously difficult time predicting elections with accuracy. Judges are therefore poorly situated to determine whether an election rule will decide an election.
Justice Barrett issued an opinion concurring in the judgment, which Justice Kagan joined. Justice Barrett would have held that Bost has standing not based solely on his status as a candidate, but from his alleged monetary injury—the additional campaign expenditures for poll watchers up to two weeks after election day. In Justice Barrett’s view, a pocketbook injury presents concrete, easily identifiable harm that serves as a more stable, doctrinally established, ground for standing. Justice Barrett criticized the majority’s rule as novel, arguing that it effectively eliminates the historical requirement of injury in fact. In her view, the majority’s rule conflicts with TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), and Already, LLC v. Nike, Inc., 568 U.S. 85 (2013), which holds that a plaintiff cannot establish Article III injury by claiming only that an allegedly unlawful practice benefits a competitor without any showing of harm to himself. Justice Barrett also cited several cases showing that the Court has always held candidates to the same standards as other litigants.
Justice Jackson authored a dissenting opinion, which Justice Sotomayor joined. Justice Jackson criticized the majority’s reasoning, arguing that unlawful election rules do not inherently cause candidates to suffer more particularized harm than impacted voters and communities (whom all agree lack Article III standing). In Justice Jackson’s view, the majority mistakenly treats elections as competitions to be won by and for candidates rather than matters impacting all members of the relevant electorate. She agreed that candidates have a particularized interest in obtaining what is essentially a job, but submitted that standing only arises once a substantial risk of harm to that interest arises.
Justice Jackson disputed that judges would need to accurately predict election results at the pleading stage to weigh standing. She would demand only more than mere conjecture. In her view, the substantial risk standard presents a relatively low bar to standing, requiring candidates to plead (and later prove) that the challenged rule presents some threat to their victory, pocketbook, or reputation. Justice Jackson maintained that Bost fails to satisfy that standard because his complaint and declaration are speculative and did not assert that the Illinois rule would cause him to lose the election or that mail-in ballots counted after election day would reduce his margin of victory in a way that harms his reputation. Justice Jackson further argued that the majority’s ruling will “open[] the floodgates” to litigation from candidates challenging rules that do not necessarily injure them and thereby encourage lawsuits as a means for political gamesmanship. Justice Jackson concluded that the majority opinion destabilizes both standing jurisprudence and the American electoral process.
Case v. Montana, 24-624.
The Court unanimously held that the “objectively reasonable” standard established in Brigham City v. Stuart, 547 U.S. 398 (2006)—not a probable-cause standard—governs when police may to enter a home without a warrant to provide emergency assistance. William Case’s ex-girlfriend reported to Montana police that he was threatening suicide and that she heard a clicking or gun-cocking noise over the phone, suggesting that Case may have shot himself or was about to do so. The police went to Case’s home, knocked on the door, and yelled into an open window but got no response. Police saw an empty handgun holster and what they believed to be a suicide note inside the window. Believing Case may have already shot himself, they entered the home to provide emergency aid. As it turned out, Case was hiding behind a curtain in a bedroom closet. When an officer approached the closet, Case threw the curtain open while holding an object the officer believed to be a gun. Fearing for his safety, the officer shot and injured Case. Case was charged with and later convicted of assaulting a police officer. Before trial, Case unsuccessfully moved to suppress evidence against him, arguing that the police’s entry into his home violated his Fourth Amendment rights. The Montana Supreme Court affirmed Case’s conviction, reasoning that the entry was proper under Montana’s community-caretaker doctrine and rejecting arguments that the doctrine requires a showing of probable cause. In an opinion by Justice Kagan, the Court affirmed.
In Brigham City, the Court held that police need “an objectively reasonable basis for believing” emergency assistance is needed inside a home to enter without a warrant. The Court here faulted the Montana Supreme Court for using the community-caretaker doctrine, noting that Caniglia v. Strom, 593 U.S. 194 (2021), “contrasted ‘community caretaking’ with ‘render[ing] emergency assistance’ and concluded that the former cannot alone justify a warrantless home entry.” But the Court disagreed with Case that the emergency-assistance doctrine requires probable cause to believe an occupant is seriously injured or imminently threatened with injury.
Case relied on the Fourth Amendment’s recognition of the “sanctity of the home” and case law concerning the standards for warrantless entry in instances of criminal investigation. The Court was unpersuaded. It explained that Brigham City does not have a probable-cause requirement baked into it. The Court noted that the probable-cause standard is historically rooted in the context of criminal investigations. The standard balances the Fourth Amendment interest in privacy against the government’s law enforcement prerogative by requiring the government to show that warrantless entry is likely to result in finding criminal contraband or evidence. Given that history and context, the probable-cause standard would “fit awkwardly, if at all” into settings where suspected criminal activity is not necessarily at issue. Addressing the sanctity of the home, the Court emphasized that a warrantless entry to provide emergency aid “provides no basis to search the premises beyond what is reasonably needed to deal with the emergency while maintaining the officers’ safety.” In sum, the Brigham City standard requires only what it says: an objectively reasonable basis for police to believe emergency aid is needed in the home.
The Court then applied that standard here and ruled that the Montana police’s entry into Case’s home was objectively reasonable. The officers knew that Case suffered from mental health and substance abuse problems and that he had previously talked about committing suicide. They knew that Case spoke of preparing a suicide note and possibly had cocked or even shot a gun during the call with his ex-girlfriend. Given that context, and the empty holster and note pad seen through Case’s window, Case’s failure to respond to the police’s attempts to communicate reasonably suggested that Case may have shot himself and might need immediate medical care. The Court added that the “totality of circumstances” analysis requires assessing police action on a case-by-case basis, and the risk of “suicide by cop”―a risk Case said was present here―does not automatically make an entry unreasonable where other circumstances weigh in favor of a need for emergency aid.
Justice Sotomayor authored a concurring opinion to emphasize that in situations involving mental health crises, the presence of law enforcement can sometimes escalate rather than ameliorate danger, potentially undermining the reasonableness of some entries. Justice Sotomayor cited cases and statistics showing that the likelihood of a fatal shooting is greatly increased when police enter the home of individuals experiencing mental health crises, particularly given that Americans often have firearms in their homes. She therefore suggested that it may be more reasonable for officers to first try different means of deescalation before entering the home of a person believed to be experiencing a mental health crisis. Justice Sotomayor also said that, once officers decide to enter a home, the manner of entry and the officers’ subsequent conduct inside must also be reasonable. She was also receptive to Case’s arguments that police entry may be unreasonable where it creates higher risk of “suicide by cop.” But in her view, that concern was overridden here by the various facts upon which the Court relied.
Justice Gorsuch also filed a concurring opinion. He asserted that when interpreting the Fourth Amendment the Court should rely on the common law, rather than “current judicial instincts about ‘reasonable expectations of privacy.’” He concluded that “[i]t should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition.”
Bowe v. United States, 24-5438.
The Court resolved two issues related to second or successive motions for relief filed by federal prisoners under 28 U.S.C. §2255. First, it held by a 5-4 vote that “§2244(b)(3)(E), which prohibits the ‘denial of an authorization by a court of appeals to file a second or successive application’ from being the ‘subject of a petition for . . . a writ of certiorari’” (the certiorari bar), does not bar the “Court’s review of authorization decisions concerning the motions of federal prisoners.” Second, the Court held by a 5-3 vote that “§2244(b)(1), which directs courts to dismiss a claim ‘presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application’” (the old-claim bar), does not apply to motions filed by federal prisoners. Michael Bowe, a federal prisoner, sought authorization to file a second or successive motion under §2255(h). A panel of the Eleventh Circuit dismissed his application, applying §2244(b)(1). The panel dismissed Bowe’s subsequent applications for the same reason. Bowe also requested an initial hearing en banc, sought reversal of Eleventh Circuit precedent applying §2244(b)(1) to federal prisoners, and asked to certify a question on that issue, which were all denied. In an opinion by Justice Sotomayor, the Court vacated and remanded.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), prisoners must seek authorization from a circuit court of appeals before filing a second or successive request for post-conviction relief in federal court. State prisoners must comply with §2244. Section 2244(b) outlines the requirements for a court of appeals to certify a second or successive filing. Among these requirements are the certiorari bar, §2244(b)(3)(E), and the old-claim bar, §2244(b)(1). Meanwhile, federal prisoners must comply with §2255(h). Section 2255(h) incorporates certain procedures set out in §2244 by stating that a second or successive motion “must be certified as provided in section 2244 by a panel of the appropriate court of appeals” to contain either newly discovered evidence as provided by §2255(h)(1) or a new, retroactive rule of constitutional law under §2255(h)(2). The Court explained that §2244 applies only to state prisoners. Thus, whether the certiorari bar and the old-claim bar apply to federal prisoners turns on the scope of §2255(h)’s cross-reference to §2244.
The Court began with the certiorari bar. Citing Castro v. United States, 540 U.S. 375 (2003), the Court held that Congress must clearly indicate when it intends to strip the Court of its jurisdiction. Ambiguity is not enough to establish that intent. The Court then found that “[§]2255(h)’s cross-reference does not provide the clear indication required to bar this Court’s review.” The Court observed that §2255(h) incorporates the procedures in §2244 for how a “panel of the appropriate court of appeals” “certifies” a filing and “directs that those procedures be used to evaluate whether the filing ‘contains’ the content requirements listed in §2255(h).” But the “Court is not ‘a panel of the appropriate court of appeals’”; and the “Court’s review (or lack thereof) is not part of how a panel certifies a second or successive filing.” For those reasons, the certiorari bar is not incorporated into §2255(h). At best, it is ambiguous whether §2255(h) incorporates the certiorari bar, which does not suffice.
Similarly, the Court ruled that §2255(h) does not incorporate “the content requirements contained in §2244, like §2244(b)(1)’s old-claim bar.” The Court first noted that “[§]2244(b)(1) states that ‘[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.’ State prisoners alone file habeas corpus applications under §2254.” Next, the Court reasoned that holding otherwise would “put §2255 on a collision course with §2244.” That is, if §2255(h) incorporates §2244(b)(1), it would also incorporate §2244(b)(2)’s “substantive gatekeeping” grounds that are “more stringent” and thus “irreconcilable” with §§2255(h)(1) and (h)(2). Accordingly, the Court held, §2255(h)’s cross-reference to §2244 does not make §2244(b)(1)’s old-claim bar applicable to federal prisoners.
Justice Jackson filed a concurring opinion noting that the Eleventh Circuit panel dismissed Bowe’s petition under §2244(b)(1)’s old-claim bar and did not grant or deny it under “the relevant criteria.” Thus, she concluded, §2255(b)(3)(E)’s certiorari bar does not apply. She reasoned that Congress would not “devise such a detailed gatekeeping scheme” only to “insulate a rogue panel’s actions from further review.”
Justice Gorsuch filed a dissenting opinion, joined in full by Justices Thomas and Alito, and in part by Justice Barrett. Rejecting the majority’s clear-indication rule, Justice Gorsuch maintained that the certiorari bar applies because it would make little sense to read §2255(h) as incorporating every subparagraph of §2244(b)(3) except for part of subparagraph (E). As to the old-claim bar, the dissent noted that §2255(h) incorporates §2244(b)(3)(C), which states that a court of appeals may certify a filing only if an applicant “satisfies the requirements of this subsection.” In turn, §2244(b)(1) is a “requirement[] of this subsection.” Applying it to federal prisoners would not disrupt the substantive requirements, as the majority suggested, because §2255(h)’s more specific requirements would displace §2244(b)(2)’s more general ones.
Barrett v. United States, 24-5774.
The Court unanimously held that “a defendant who commits a single act that violates both [18 U.S.C.] §924(c)(1)(A)(i) and §924(j) may be convicted only under one provision or the other,” and not both. Section 924(c)(1)(A)(i) criminalizes using, carrying, or possessing a firearm in connection with a federal crime of violence or drug trafficking crime. A violation of subsection (c) carries a mandatory minimum term of imprisonment that must run consecutively to “any other term of imprisonment imposed on the person.” §924(c)(1)(D)(ii). Subsection (c) also specifies that a conviction under this subsection is “in addition to the punishment” for the underlying federal crime of violence or drug trafficking crime. Meanwhile, §924(j) authorizes increased maximum penalties when “a violation of subsection (c)” causes death, including the death penalty or life imprisonment.
Dwayne Barrett was convicted of several charges stemming from a series of robberies, one of which resulted in the death of a person. Barrett’s conviction for Hobbs Act robbery under 18 U.S.C. §1951 served as the predicate offense for convictions under both §924(c)(1)(A)(i) and §924(j). Barrett appealed, which resulted in resentencing. At the resentencing, the district court chose to merge Barrett’s subsection (c)(1)(A)(i) conviction into his subsection (j) conviction, for which he had been given a consecutive sentence. The Court then decided Lora v. United States, 599 U.S. 453 (2023), holding that subsection (j) does not incorporate subsection (c)’s consecutive-sentence mandate. Barrett appealed again on that basis. The Second Circuit vacated and remanded, but rejected Barrett’s argument that his convictions under subsections (c)(1)(A)(i) and (j) must remain merged. The Second Circuit found that Congress “clearly authorized cumulative punishments” for violations of subsections (c)(1) and (j). In an opinion by Justice Jackson, the Court reversed and remanded.
The Court noted that it was undisputed that a violation of subsection (c)(1)(A)(i) and subsection (j) constitutes the “same offense” under Blockburger v. United States, 284 U.S. 299 (1932). Applying the Blockburger presumption that “Congress ordinarily does not intend to punish the same offense under two different statutes,” the Court analyzed the statutory text and structure to determine if Congress clearly indicated an intent to abandon that presumption. The Court relied on the absence of “Blockburger-surmounting language” in subsection (j), in contrast to subsection (c)(1), which specifies that a conviction under that subsection is “in addition to the punishment provided for” the predicate offense, and similar language in §924(c)(5). The Court found this to be strong, if not conclusive, evidence that Congress did not disavow Blockburger here.
The Court rejected two contrary textual arguments. First, the Court was unpersuaded that subsection (c)’s consecutive-sentence mandate shows that Congress intended a conviction under subsection (c)(1)(A)(i) to add on to a subsection (j) conviction. The consecutive-sentence mandate does not speak to the question of “whether two punishments (convictions) may be imposed at all.” Subsection (c) also includes a “distinct instruction” that a conviction adds on to the conviction for the predicate offense, undermining any suggestion that the consecutive-sentence mandate alone would achieve that result as to subsection (j). Second, the Court declined to find that subsection(c)(1) and subsection (j) have “different focuses” sufficient to show Congress intended the punishments to accumulate. It is often the case, and acceptable under Blockburger, that a greater offense will “introduce some new ‘focus’” when compared to the lesser-included offense. The Court was equally unpersuaded that Congress would not have intended to “let subsection (j) offenders out from under subsection (c)(1)’s mandatory minimums.” Under Lora, the Court found, subsection (j) “eschews mandatory penalties in favor of sentencing flexibility.” And judges are bound by 18 U.S.C. §3553(a) to avoid unwanted sentencing disparities. In any event, said the Court, prosecutors are “free to choose subsection (c)(1)(A)(i)’s low-end rigidity over subsection (j)’s high-end flexibility.”
Justice Jackson, joined by Chief Justice Roberts and Justices Sotomayor, and Kagan, proceeded to address the legislative history. Justice Jackson found the legislative history cited by court-appointed amicus curiae unpersuasive because it related to “double convicting for subsection (c) and its predicates,” not “the relationship between subsections (c) and (j).” As to the latter, the available legislative history suggests subsection (j) made a capital offense out of a “pre-existing crime.” Justice Jackson also credited the silence on the congressional debate floor and noted that Congress would not have “discarded Blockburger without comment here.”
Justice Gorsuch concurred in part to address a “tension” in the Court’s case law. The Double Jeopardy Clause “protects against multiple punishments for the same offense”; and multiple convictions, even in a single proceeding, “count as multiple punishments.” Here, if Barrett were prosecuted under subsections (c)(1) and (j) in two successive proceedings, Blockburger dictates that the Double Jeopardy Clause would bar the second prosecution. On the other hand, because both charges were brought under one indictment, “Blockburger operates as a mere ‘presumption’ for ascertaining congressional ‘intent.’” Justice Gorsuch questioned why the Constitution would tolerate this disparity. To resolve this conflict, Justice Gorsuch suggested that the Court “admit that Blockburger is not, after all, a mere presumption” and hold that “two charges amount to the same offense under the Double Jeopardy Clause if they fail the Blockburger test—full stop.”
Cases Granted Review
FCC v. AT&T, Inc., 25-406;
Verizon Communications Inc. v. FCC, 25-567.
These consolidated cases pose the same question: Does the Communications Act of 1934, 47 U.S.C. §151 et seq., violate the Seventh Amendment and Article III by allowing the FCC to order civil fines against a carrier for failing to reasonably safeguard customer data, without a jury trial? In relevant part, the Act authorizes the FCC to assess monetary forfeiture penalties for certain violations of the Act or the FCC’s regulations by issuing a notice of apparent liability, giving the regulated party an opportunity to respond in writing, and then issuing a final decision. If the regulated party declines to pay and the government sues to collect the penalties, the regulated party is entitled to a de novo jury trial in a federal district court. Alternatively, the subject of an FCC forfeiture order may pay the monetary penalty and file a petition for review in a court of appeals, thereby triggering a judicial review proceeding in which no jury is available.
The FCC brought administrative actions and assessed civil penalties against Verizon and AT&T (the Carriers) under the Act for failing to reasonably safeguard customer data. The Carriers opted to pay the FCC’s penalties and appeal. Verizon appealed to the Second Circuit, asserting that the Act’s procedures violate Article III and its Seventh Amendment right to jury trial. AT&T appealed to the Fifth Circuit under the same theory. Both Carriers relied on SEC v. Jarkesy, 603 U.S. 109 (2024), which held that the SEC cannot impose securities fraud penalties under the Dodd-Frank Act on an unregistered stockbroker without a jury trial. Jarkesy ruled that the Seventh Amendment inquiry focuses on whether the action at issue is in essence an action known at common law to which the right to jury trial attached at the time of ratification. In deciding this, the Court looks not only at the similarities between the common-law and present-day causes of action, but also whether the remedy sought is legal or equitable in nature. If the cause of action resembles an action historically known at common law, and if the damages sought are legal in nature, the right to jury trial typically attaches. The Court reasoned that securities fraud enforcement under the Dodd-Frank Act resembles an action for common-law fraud, and that the SEC’s penalties are legal rather than equitable in nature as they are meant to deter or punish rather than to compensate or restore a status quo. Notably, Jarkesy also narrowed the “public rights exception” recognized in Atlas Roofing v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977)—an exception to the right to jury trial where Congress creates statutory causes of action regulating matters within its Article I power.
Relying on Jarkesy, the Fifth Circuit ruled for AT&T. 149 F.4th 491. It reasoned that, like the SEC fines at issue in Jarkesy, the FCC’s fines are a legal rather than equitable remedy because they function to punish rather than compensate or restore the status quo. The Fifth Circuit also reasoned that the FCC’s cause of action, while not a close fit, is similar enough to common-law negligence to be a modern-day analogue to common-law negligence. The Fifth Circuit next ruled that the public-rights exception does not apply to the FCC’s cause of action, rejecting the FCC’s argument that AT&T is a “common carrier” that Congress may regulate under its Article I power without offering a jury. Finally, the Fifth Circuit rejected the FCC’s argument that its process is consistent with Article III and the Seventh Amendment because it leaves ample opportunity for a defendant to have either a jury trial or Article III appellate review. The Fifth Circuit explained that the Act’s review procedures are impermissible because reputational harm from the FCC’s initial liability determination occurs before any Article III tribunal becomes involved. In contrast, the Second Circuit ruled against Verizon, distinguishing Jarkesy and agreeing with the same arguments the Fifth Circuit found unconvincing. The FCC asked the Court to review the Fifth Circuit’s decision; Verizon asked the Court to review the Second Circuit’s decision.
In their respective certiorari briefing, the Carriers rely on this circuit split and reiterate the Fifth Circuit’s reasoning. The Carriers maintain that the Act’s judicial review features do not save it from violating Article III or the Seventh Amendment, and that the Second Circuit therefore erred because the initial FCC liability determination occurs without an Article III factfinder. They also argue, as before, that the FCC’s data privacy enforcement action is analogous to common-law negligence, and that the FCC’s fines are legal in nature because they are neither compensatory nor remedial.
In its certiorari briefing, the FCC “does not seek review of the Fifth Circuit’s holdings that (a) a case in which the FCC seeks a forfeiture penalty to enforce Section 222 of the Act is a suit at common law and (b) such a suit falls outside the public-rights exception to the Seventh Amendment and Article III.” Instead, the FCC focuses on cases unaddressed by the Fifth Circuit—Capital Traction Co. v. Hof, 174 U.S. 1 (1899), and Meeker v. Lehigh Valley Railroad Co., 236 U.S. 412 (1915)—to argue that enforcement schemes such as the Act’s do not violate Article III or the Seventh Amendment so long as they provide the option of a jury trial in an Article III court. The FCC relies on Hof and Meeker for the proposition that the Constitution does not require a jury trial at any specific point during judicial proceedings; it requires only that one be provided at some point, where applicable.
Sripetch v. SEC, 25-446.
The Court will resolve whether the SEC may seek equitable disgorgement under 15 U.S.C. §§78u(d)(5) and (d)(7) without showing that investors suffered pecuniary harm. The SEC brought a securities fraud action in federal district court against petitioner Ongkaruck Sripetch, a stock trader, alleging that he participated in a fraudulent stock scalping scheme and other securities law violations involving penny stock companies. Sripetch consented to judgment, and the district court awarded the SEC over $3 million in equitable disgorgement. Sripetch appealed to the Ninth Circuit, arguing that the district court abused its discretion by ordering disgorgement where the SEC failed to first show that the victim investors suffered pecuniary harm. Rejecting that argument, the Ninth Circuit affirmed. 2025 WL 2525848.
The Ninth Circuit relied on Liu v. SEC, 591 U.S. 71 (2020), which held that §78u(d)(5) authorizes equitable disgorgement. Citing Liu, the Ninth Circuit reasoned that the SEC’s statutory remedies are governed by “common law principles” and “traditional equity practices.” Under those principles, disgorgement is intended to deprive the wrongdoer of improper financial gains rather than compensate victims for losses. Thus, the Ninth Circuit held, the SEC need not show pecuniary harm to obtain an award of equitable disgorgement against a liable defendant.
In his petition, Sripetch points to the growing circuit split as grounds for review. He also argues that Liu does not support the Ninth Circuit’s holding. Sripetch submits that Liu discourages ordering a wrongdoer to pay more than “fair compensation” to the injured victims, as such awards amount to punishment that is not equitable. Specifically, Sripetch argues that ordering equitable disgorgement without a showing of pecuniary harm would result in an unjust windfall of damages to victims in excess of any actual harm―an outcome discouraged by traditional notions of equity. Sripetch also says that (d)(5) contains the language “for the benefit of investors[,]” suggesting that remedies under (d)(5) were intended by Congress to be compensatory only. Sripetch accordingly asks the Court to adopt the Second Circuit’s view, which authorizes equitable disgorgement only where the SEC has first shown that victims suffered pecuniary harm.
The SEC agrees with Sripetch that the growing circuit split warrants review. But it disagrees with Sripetch’s reading of Liu and his common-law analysis. According to the SEC, Sripetch’s view disregards that equitable disgorgement was historically intended to make sure that wrongdoers do not profit from their unlawful actions. Thus, it says, disgorgement under (d)(5) is not limited to purely compensatory awards. The SEC also points to the term “unjust enrichment” in (d)(5) to argue that Congress intended disgorgement under (d)(5) to focus on correcting the improper enrichment of a defendant rather than the loss of victims. Finally, the SEC argues that (d)(7) independently authorizes “equitable disgorgement” in its plain language, and, unlike (d)(5), does not contain the term “equitable relief” or mention “the benefit of investors.” Thus, it insists, even if (d)(5) could be read to require pecuniary harm to investors, (d)(7) independently allows disgorgement without first showing harm to investors.
Cisco Systems, Inc. v. Doe I, 24-856.
The Court will consider whether either the Alien Tort Statute (ATS), 28 U.S.C. §1350, or the Torture Victim Protection Act (TVPA), 28 U.S.C. §1350 note, allows a judicially-implied private right of action for aiding and abetting. The ATS allows foreign plaintiffs to bring tort claims against U.S. companies in federal court for violations of international law. Courts have determined the causes of action available under the ATS by reference to federal common law. The TVPA adds a private right of action for damages for victims of “torture” and “extrajudicial killing[s]” in violation of international law. §1350 note §2(a)(1)-(2).
Respondents, a group of Chinese nationals and one U.S. citizen who practice the Falun Gong religion, filed suit under the ATS and the TVPA alleging that Cisco Systems and two of its executives aided and abetted violations of international law by selling networking equipment to the Chinese government. Respondents alleged that the Chinese government used Cisco’s equipment to identify, apprehend, and torture members of the Falun Gong religion. The district court dismissed the suit. It held that the ATS allegations were impermissibly extraterritorial and, in the alternative, that respondents failed adequately to plead elements of their aiding-and-abetting claim. And it held that aiding-and-abetting liability is not available under the TVPA. A divided panel of the Ninth Circuit reversed in part and remanded. 73 F.4th 700.
The Ninth Circuit first ruled that the ATS allows a judicially-implied private right of action for aiding and abetting an alleged international-law violation. The court found that “aiding and abetting liability is a norm of customary international law with sufficient definition and universality to establish liability under the ATS.” And it found that “recognizing aiding and abetting liability does not raise separation-of-powers or foreign policy concerns.” As to the TVPA, the court concluded that the statute’s creation of liability for a defendant who “subjects an individual to torture” encompasses aiding and abetting.
Cisco argues in its petition that only Congress can create causes of action. Thus, it is improper for courts to imply any cause of action under the ATS beyond the three torts contemplated by Congress when the ATS was enacted (violation of safe conducts, infringement of the rights of ambassadors, and piracy). Aiding and abetting claims are not among those torts or their “close analogs.” Cisco also argues that Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994), “instruct[s] against” judicial Implication of aiding and abetting claims under the ATS and the TVPA. To do so, Cisco says, would also contradict the text of the TVPA, which imposes liability only on a defendant who “subjects” a person to torture or extrajudicial killing. At a minimum, it is improper here because “the claims raise profound foreign-policy and separation-of-powers concerns.”
Respondents counter that Supreme Court precedent allows courts to imply causes of action under the ATS based on modern international law, so long as judicial implication is “subject to vigilant doorkeeping.” Respondents disagree that Central Bank decides this case in Cisco’s favor. The Court in Central Bank addressed whether the Securities Exchange Act, which prohibits the use of “manipulative or deceptive device[s]” in connection with securities, affords a cause of action for aiding and abetting. In contrast, the ATS covers torts “committed in violation of the law of nations.” According to respondents, Central Bank suggests that the relevant inquiry here is “whether aiding and abetting is a tort in violation of the law of nations.” Respondents argue that founding-era and modern sources show that it is. As for the TVPA, respondents argue that persons who “subject” others to harm can include those who facilitate that harm. Indeed, they say, the Court has already extended TVPA liability beyond those who “personally execute the torture or extrajudicial killing.”
Bondi v. Lau, 25-429.
The Court will resolve whether, to remove a green card holder or other lawful permanent resident (LPR) who committed an offense listed in 8 U.S.C. §1182(a)(2) and was later paroled into the United States, the government must prove that it possessed clear and convincing evidence of the offense at the time of the LPR’s last reentry into the United States. Under the Immigration and Nationality Act (INA), §1182(a), some categories of noncitizens, including those who have committed certain crimes, are “ineligible to be admitted to the United States” and subject to removal. An LPR returning to the United States after an international trip is generally not considered to be “seeking an admission to the United States” and is thus not subject to the inadmissibility grounds under §1182(a). 8 U.S.C. §1101(a)(13)(C). That general rule gives way, however, when an LPR “has committed an offense identified in section 1182(a)(2).” 8 U.S.C. §1101(a)(13)(C)(v). This includes crimes “involving moral turpitude” under §1182(a)(2)(A)(i)(I).
Muk Choi Lau is a Chinese national who became an LPR in 2007. In 2012, the government charged him with trademark counterfeiting. While awaiting trial, Lau left the United States; he returned at JFK airport in June 2012. Upon his reentry, an immigration officer paroled Lau into the United States but did not admit him. In June 2013, Lau pleaded guilty and was sentenced to probation. The Department of Homeland Security initiated removal proceedings, charging Lau with the inadmissibility ground of having committed a crime of moral turpitude. An immigration judge found Lau to be inadmissible, and the Board of Immigration Appeals affirmed. The Second Circuit reversed, holding that the government must possess clear and convincing evidence at the time of the LPR’s reentry that the LPR has committed an eligible offense, and the government could not meet that burden here by citing an after-the-fact conviction. 130 F.4th 42.
In its petition, the United States argues that the Second Circuit erred in requiring the government to meet its burden of proof at the port of entry. The relevant inquiry is instead “whether an alien is removable from the United States” under §1229a(c)(1)(A) based on the circumstances existing at the time of the hearing before an immigration judge. The United States asserts that it is common practice for litigants to prove facts as of a certain date by relying on evidence obtained after that date. The Second Circuit’s rule, it says, improperly focuses on the unreviewable, discretionary decision to parole an LPR at the border. But at the border, immigration officers are not equipped to “assess the strength of the government’s evidence.” The United States adds that a rule effectively requiring evidence of a conviction would undermine the government’s long-standing practice of paroling noncitizens into the United States for “purposes of prosecution.” Finally, the United States contends that the government satisfied its burden of proof even under the Second Circuit’s formulation because Lau’s conviction proved that he committed his offense before he reentered the United States.
Lau argues that the Second Circuit’s holding is supported by the text of the INA. Under §1182(d)(5)(A), only when a noncitizen is “applying for admission” into the United States may the government temporarily parole the person into the country on suspicion of inadmissibility. An LPR returning from abroad is not considered to be “seeking an admission to the United States” unless, for example, the LPR that “has committed” a crime involving moral turpitude under §1182(a). It follows that the government must first determine whether an LPR has committed such a crime that would cause him to be regarded as seeking admission before admitting or paroling the person into the United States. Here, Lau contends, the government lacked the requisite evidence because at the time of his reentry Lau “had not been convicted of any crime and did not admit to one at the border.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Watford, Supreme Court Fellow
- Alex Tucker, Supreme Court Fellow
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