Volume 30, Issue 14
This Report summarizes opinions issued on June 15 and 16, 2023 (Part I); and cases granted review on June 20, 2023 (Part II).
Part I: Opinions
Haaland v. Brackeen, 21-376. By a 7-2 vote, the Court upheld the constitutionality of the Indian Child Welfare Act (ICWA), which aims to keep Native American children subject to custody or adoption proceedings with their tribes and traditions. The Court rejected all of petitioners’ challenges to the statute, some on the merits and others for lack of standing. ICWA, enacted by Congress in 1978, governs state court adoption and foster care proceedings involving Indian children. Among other things, the statute creates a hierarchical placement preference scheme to be used during those proceedings whereby members of the child’s Indian tribe, other Indian families, and Indian-approved organizations are given preferential treatment over non-Indian families or institutions. ICWA also mandates that the Indian child’s parent or custodian and tribe be given notice of any custody proceeding as well as the right to intervene in that proceeding.
This case arises from three separate state child custody proceedings governed by ICWA in which non-Indian families sought to foster or adopt Indian children. In two of those cases the non-Indian families ended up adopting the Indian children because the children’s tribes withdrew challenges to the adoption; in the other, ICWA posed a barrier to the non-Indian family’s attempts to adopt the Indian child. The non-Indian families, along with three states including Texas (petitioners), filed suit in federal court challenging ICWA as unconstitutional on numerous grounds: that Congress lacked authority to enact ICWA; that several of ICWA’s requirements violate the anticommandeering principle of the Tenth Amendment; that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children; and that ICWA violates the nondelegation doctrine. The district court granted petitioners’ motion for summary judgment on their constitutional claims, and a divided three-judge panel of the Fifth Circuit reversed. After rehearing the case en banc, the Fifth Circuit affirmed in part and reversed in part. The en banc court held that ICWA does not exceed Congress’s legislative power, does not violate the nondelegation doctrine, and that some parts of the preferential placement scheme do not violate equal protection. But the court was evenly divided on whether ICWA’s prioritization of Indian families and Indian foster homes over non-Indian families unconstitutionally discriminated on the basis of race. In addition, the en banc court affirmed the district court’s holdings that ICWA violated the Tenth Amendment’s anticommandeering principle. In an opinion by Justice Barrett, the Court affirmed in part, reversed in part, and vacated and remanded in part.
The Court began by rejecting petitioners’ claim that ICWA exceeds Congress’s legislative power under Article I. The Court explained that it has long and repeatedly held that Congress has “broad” and “plenary” power to legislate with respect to Indian tribes—though that authority is not without limits. The Court wrote that this power may be derived from the Indian Commerce Clause (art. I, §8, cl. 3) (which the Court has “declined to treat . . . as interchangeable with the Interstate Commerce Clause”) and the Treaty Clause (art. II, §2, cl. 2). And it may be derived from “principles inherent in the Constitution’s structure [that] empower Congress to act in the field of Indian affairs” and the “trust relationship between the United States and the Indian people.” “In sum,” said the Court, “Congress’s power to legislate with respect to Indians is well established and broad. Consistent with that breadth, we have not doubted Congress’s ability to legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade.”
The Court rejected petitioners’ argument that ICWA exceeds that authority because it treads on family law, which is the domain of the states. The Court explained that, while Congress “lacks a general power over domestic relations,” the Constitution does not “erect a firewall around family law.” The Court then provided numerous instances where Congress has legislated over family law matters as long as those laws were tied to an Article I power. Here, as noted, both the Indian Commerce Clause and other aspects of the constitution give Congress the authority to legislate over Indian matters without carving out family law from that authority. The Court acknowledged that “our case law puts petitioners in a difficult spot” because it has often sustained Indian-related legislation “without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are.” But, ultimately, because petitioners have failed to demonstrate that ICWA exceeds Congress’s Article I power, the Court rejected their challenge on this ground.
Next, the Court turned to, and rejected, petitioners’ anticommandeering arguments. First, petitioners challenged certain requirements that apply in involuntary proceedings to place a child in foster care or terminate parental rights, including the requirements that an initiating party demonstrate “active efforts” to keep the Indian family together and serve notice of the proceeding on the parent or Indian custodian and Tribe. The Court rejected this challenge primarily because this requirement applies to both state and private actors initiating involuntary proceedings. Accordingly, those requirements pose no anticommandeering problem, for “Legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.” Second, petitioners argued that ICWA’s placement preferences impermissibly force state agencies to find preferred placements for Indian children and also require state courts to apply federal standards when making custody determinations even though some state laws forbid such placement preferences. Like the previous argument, the Court rejected this argument because it applies to both state-run and private agencies seeking to place Indian children. And while ICWA indeed does require state courts to apply federal standards, this comports with the Supremacy Clause, which permits the modification of state laws to comply with a validly enacted federal law. Finally, petitioners contended that Congress cannot force state courts to maintain or transmit to the federal government records of custody proceedings involving Indian children, as ICWA purports to do. The Court rejected this argument because “Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment.” The Court based this conclusion on the historical record, which revealed that at the founding, federal law imposed upon state courts various reporting requirements. “These early congressional enactments provid[e] contemporaneous and weighty evidence of the Constitution’s meaning.” (Quotation marks omitted.)
Finally the Court rejected for lack of standing petitioners’ equal protection and non-delegation claims related to the placement preferences. Although petitioners were able to show that the race-based placement preferences counted as an Article III injury, they failed to show that that injury is likely to be redressed by favorable review. This is because they seek an injunction preventing the federal parties (e.g., the Secretary of the Interior and other federal officials) from enforcing ICWA and a declaratory judgment that the challenged provisions are unconstitutional. Yet, “enjoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.” The Court noted that this holding would not prevent the individual petitioners from challenging ICWA’s constitutionality in state court, as some of them are presently doing. Finally, the Court noted that Texas, which joined as a petitioner, also lacks standing because it has no equal protection rights of its own and cannot assert such a claim on behalf of its citizens against the federal government.
Justice Gorsuch wrote a concurring opinion that was partially joined by Justices Sotomayor and Jackson. Justice Gorsuch (joined by his two colleagues) recounted in detail the gruesome history of the mass removal of Indian children from their families by state officials and private parties, which was “only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago.” ICWA was enacted to remedy the “devastating effects” this has on the Indian family and the “existential threat to the continued vitality of Tribes.” As Justice Gorsuch describes it, ICWA “installs substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life.”
Justice Gorsuch (now alone) also recounted the “Indian-law bargain struck in our Constitution,” under which Tribes remain independent sovereigns, states have virtually no role to play in Indian affairs, and the federal government has “a set of potent (but limited and enumerated) powers,” including powers to regulate the ways in which non-Indians may interact with Indians. The full historical picture of how Indians are regulated under the Constitution, which Justice Gorsuch describes in great detail, explains why ICWA falls under Congress’s Article I powers. According to Justice Gorsuch, ICWA passes constitutional muster because it is one of the latest in centuries of laws and government actions designed to affirm this bargain and recognize tribal sovereignty. And because it regulates the ways in which non-Indians (i.e., states and private individuals) may engage with Indians, it is valid under the Indian Commerce Clause: “The mass removal of Indian children by States and private parties, no less than a pattern of criminal trespasses by States and private parties, directly interferes with tribal intercourse.”
Justice Kavanaugh wrote a two-paragraph concurrence to state his view that, though the Court did not rule on it, the “equal protection issue is serious.” For him, the fact that an Indian child may be denied a particular placement because of his or her race raises “significant questions under bedrock equal protection principles and this Court’s precedents.”
Justice Thomas wrote a dissenting opinion to express his view that Congress lacks the authority to enact ICWA. ICWA, he explained, “regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands” and it is “not about tribal lands or tribal governments, commerce, treaties, or federal property.” Therefore, Justice Thomas concluded, the law fails under the plain text and original meaning of the Constitution. Justice Thomas rejected the Treaty Clause and the Indian Commerce Clause as the source of Congress’s authority to pass ICWA. The former, he wrote, cannot be the source because ICWA itself is not tied to any treaty and the Clause does not “confer a free-floating power over matters that might involve a party to a treaty.” As for the Commerce Clause, Justice Thomas wrote that that provision concerns only “commerce,” which does not include placement of children with families. Nor does it create a plenary power for Congress to regulate all Indian “affairs,” a term that was specifically rejected at the Constitutional Convention: “Like so many cases before it, the majority’s opinion lurches from one constitutional hook to another, not quite hanging the idea of a plenary power on any of them, while insisting that the plenary power is not absolute.”
Justice Alito also wrote a dissenting opinion to express his view that ICWA is unconstitutional because it exceeds Congress’s authority. Justice Alito stated that “[w]hatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership.” Justice Alito wrote that no enumerated power of Congress permits it to regulate “the very nature of” domestic relations or “dictate their creation, dissolution, or modification.” Instead, it is state courts that have historically been afforded the power to resolve child custody matters. He insisted that ICWA impermissibly overrides states’ authority to determine the child custody and welfare policies they deem most appropriate for their citizens. And, further interfering with states’ sovereignty in this realm, “ICWA’s directives apply even when the child is not a member of a tribe and has never been involved in tribal life, and even when a child’s biological parents object” and “may delay or prevent a child’s adoption by a family ready to provide her a permanent home.”
Smith v. United States, 21-1576. The Court unanimously held that the government may retry a defendant in the proper venue after obtaining a conviction in the wrong district. Petitioner Timothy Smith is an “avid angler from Mobile, Alabama.” He discovered that a company based in Florida, StrikeLines, locates privately-built artificial reefs and sells their geographic coordinates to fishers online. Smith surreptitiously obtained this information from StrikeLines’ website, then offered to give the data to others on social media. When StrikeLines contacted Smith, he offered to remove his posts and fix their website’s security issues if the company gave him more information that he had not been able to obtain from the site. Smith was indicted for, among other charges, theft of trade secrets in the Northern District of Florida, where StrikeLines’ headquarters were located. Before trial, Smith moved to dismiss for improper venue, arguing that he had accessed the data from Mobile (in the Southern District of Alabama) and the servers storing StrikeLines’ coordinates were located in Orlando (in the Middle District of Florida). The district court found that the jury would have to resolve factual disputes related to venue and denied the motion. After the jury convicted him, Smith moved for a judgment of acquittal on the same grounds. The district court ruled that venue was proper in the Northern District of Florida because StrikeLines felt the effects of the crime there. The Eleventh Circuit reversed and held that venue was improper. But it permitted the government to retry Smith in the correct district. In an opinion by Justice Alito, the Court affirmed that the government could retry Smith in the proper district.
The Court began by noting that “the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution.” (The only exception is for speedy trial violations.) The Court found that neither the text of the Venue Clause (which mandates that trials be held in the state where the crime occurred) nor the Vicinage Clause (mandating that a jury be drawn from the state and district where the crime occurred) required a departure from this rule. The Court rejected Smith’s arguments that the purpose of the clauses counseled for barred retrial. “Smith primarily argues that the Venue Clause aims to prevent the infliction of additional harm on a defendant who has already undergone the hardship of an initial trial in a distant and improper place.” But, found the Court, any criminal trial or retrial imposes burdens on a defendant, and neither constitutional provision required trial where it would be most convenient for a defendant (which would presumably be where he lived). Further, the Vicinage Clause is part of the Sixth Amendment right to a jury, and the Court had already recognized that retrial is the proper remedy for violation of other jury rights.
The Court also rejected Smith’s argument that the historical background of the clauses showed that they barred retrial. The Court agreed that the Framers intended to constitutionalize a slightly modified form of the common-law vicinage right, and further agreed that this was an important political issue to the founding generation. But nothing indicated that the Constitution altered the common law’s remedy for violating the vicinage right. After surveying Anglo-American cases and treatises, the Court concluded that “no common-law principle at the founding precluded retrial following a trial in an improper venue or before an improper jury.”
Finally, the Court disagreed that the Double Jeopardy Clause barred retrial. If the jury had acquitted Smith, double jeopardy principles would have barred retrial. But a judicial decision on venue, like the Eleventh Circuit’s ruling here, “is fundamentally different from a jury’s general verdict of acquittal.” Retrial is generally permissible when a trial terminates “‘on a basis unrelated to factual guilt or innocence of the offence of which [the defendant] is accused.’” Even if the district court had granted Smith’s motion for a judgment of acquittal based on venue, that decision would not have related to his ultimate criminal culpability.
United States ex rel. Polansky v. Executive Health Resources, Inc., 21-1052. By an 8-1 vote, the Court held that, in a qui tam suit brought under the False Claims Act (FCA), the government may file a motion to dismiss anytime after it has intervened and that courts should resolve such motions under Federal Rule of Civil Procedure 41(a). The FCA creates civil liability for those who submit false claims for payment to the government. Although the government can directly sue defendants, the FCA allows private plaintiffs, called relators, to bring qui tam actions on behalf of the government. Relators may receive up to 30% of the judgment against a defendant; the government receives the rest. A relator must file his or her complaint under seal, and provide the supporting evidence to the government. The government then has 60 days (or longer, for good cause shown) while the case remains sealed to determine whether it wants to intervene. If it does, the government takes over the litigation and the relator continues only in a secondary role. If the government does not, the relator assumes primary responsibility. The government, however, may choose to intervene later for good cause. Four subparagraphs found at 31 U.S.C. §3730(c) outline the various rights of the government, the relator, and the defendant. Subparagraph (2)(A) gives the government the power to dismiss a claim over the relator’s objection. But subparagraph (2)(A) does not specify whether the government may do so if it initially chooses not to intervene.
Jesse Polansky is a doctor who worked for Executive Health Resources (EHR), which helped hospitals bill the government for Medicare. He filed a sealed complaint under the FCA alleging that EHR defrauded the government by inflating the value of Medicare claims. The government decided not to intervene, so Polansky became the primary party. As the case dragged on, the government eventually determined that the burden of discovery obligations outweighed the value of the case. It filed a motion to dismiss (also treated as a motion to intervene), which the relator (Polansky) opposed. The district court granted the motion, and the Third Circuit affirmed. The Third Circuit held that Subparagraph (2)(A) permits the government to dismiss so long as it had intervened at some point. It further held that courts should resolve such motions under Federal Rule of Civil Procedure 41(a). In an opinion by Justice Kagan, the Court affirmed.
All parties disagreed with the Third Circuit. The government and EHR claimed that the government may dismiss at any point without intervening, while Polansky argued that it may do so only if it chose to intervene while the complaint was sealed. The Court first rejected the government’s position. The first two paragraphs in §3730(c) give the government extraordinary and unusual powers to control the course of litigation; it would be odd to assume that the government could dismiss or settle a case without joining it. Paragraphs (3) and (4) operate on the assumption that the government has intervened at some point. And Paragraph (2) as a whole was linked to Paragraph (1), which expressly operates only if the government has intervened. Finally, reasoned the Court, the government’s interpretation would create surplusage in neighboring paragraphs.
The Court also rejected Polansky’s position that the government loses the right to move to dismiss if it does not intervene in the first stage of litigation. The FCA allows the government to intervene later and assume “primary responsibility.” Because Paragraph (1) expressly operates when the government intervenes and because it is linked to Paragraph (2), Subparagraph (2)(A) also operates when the government intervenes. Polansky pointed to a provision of Paragraph (3), which provides that the government’s intervention cannot “limit[] the status and rights” of the relator. The Court ruled that this could not override the plain language of Paragraphs (1) and (2). The “better reading” was that Paragraph (3) instructed district courts to not impose additional limitations on relators beyond those required by the preceding paragraphs. The Court believed that the Third Circuit’s “seal-agnostic view of intervention” better served the purposes of the FCA.
The Court further held that Rule 41(a) governs government motions to dismiss after intervention under Subparagraph (2)(A). The Rules of Civil Procedure are “the default rules” and the Court saw no reason to depart from them. Moreover, the FCA expressly references the Rules in several other provisions. The Court observed that “(2)(A) motions will satisfy Rule 41 in all but the most exceptional cases.” Because qui tam suits are brought on behalf of the government to serve its interests, the government’s subjective evaluation that the “burdens of continued litigation outweigh its benefits” should ordinarily carry the day “even if the relator presents a credible assessment to the contrary.” The Court went further than holding that the district court did not abuse its discretion in this case. In the “interest of providing guidance,” it “put that standard of review to the side” and stated that “the District Court got this one right.”
Justice Kavanaugh, joined by Justice Barrett, concurred. He joined the majority in full, writing separately only to agree with Justice Thomas that the Court should examine an Article II challenge to the FCA “in an appropriate case.”
Justice Thomas dissented. In his view, the government’s initial decision whether to intervene conclusively determines which party was charged with “conduct[ing]” or “proceed[ing] with the action.” Section 3730(c) set the rights of the parties based upon this decision. Paragraph (1) applies when the government “proceeds with the action,” which Justice Thomas took to “naturally refer[] to the same seal-period choice.” He agreed with the majority that Paragraph (1) carries Paragraph (2) along with it. He agreed with Polansky that the “without limiting” language in Paragraph (3) preserves the relator’s ability to control the course of litigation if the government did not initially chose to intervene. Justice Thomas noted that the majority’s reading, which would allow the government to “proceed with the action” even if it intervened at the last moment, would limit the relator’s recovery under a different subsection, thus “limiting” the relator’s rights. Justice Thomas noted that historic versions of the FCA functioned according to his view. Although Congress changed the law to allow the government to intervene at any time, it also added language to protect the relator as the primary litigant.
Justice Thomas also would have remanded the case back to the Third Circuit to determine whether qui tam suits are unconstitutional. He believed that there are “substantial arguments” that they are inconsistent with Article II of the Constitution, which vests executive authority in the President alone. He acknowledged the “long historical pedigree” of qui tam suits (dating back to the First Congress), but suggested that they were an unconstitutional holdover from British parliamentary government. In his view, this raised a complex issue about assigning interests under the FCA, because relators bring suits on their own behalf in addition to the government’s. This in turn raised constitutional questions about how Congress could partially assign interests in federal damages claims. He would leave these “complex questions” for the parties and lower courts to resolve on remand.
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 22-227. By an 8-1 vote, the Court held that the Bankruptcy Code abrogates tribal sovereign immunity. The Lac du Flambeau Band is a federally-recognized tribe that operates several businesses. One of those businesses, Lendgreen, loaned respondent Brian Coughlin $1,100 through a “high-interest, short-term loan.” Shortly after taking out the loan, Coughlin filed for Chapter 13 bankruptcy. Filing a bankruptcy petition triggered an automatic stay on collection efforts from creditors. Coughlin alleged that Lendgreen nonetheless aggressively attempted to collect the debt even after learning of the petition. Eventually, Coughlin filed a motion in his bankruptcy proceeding not only to enforce the stay against the Band and its businesses, but also for emotional damages, costs, and attorney’s fees. The Band asserted tribal sovereign immunity in the bankruptcy court and prevailed. A divided First Circuit reversed, holding that Congress abrogated tribal immunity in the Code. In an opinion by Justice Jackson, the Court affirmed.
The Court agreed that tribes have sovereign immunity from suit that Congress may only abrogate if it clearly states its intention to do so. The Code abrogates sovereign immunity for “governmental unit[s].” It defines “governmental unit” broadly to include the United States, a state, commonwealth, district, territory, municipality, foreign state, the components or instrumentalities of those governments, “or other foreign or domestic government.” The Court stated that this definition “exudes comprehensiveness from beginning to end.” The Court continued, “by coupling foreign and domestic together, and placing the pair at the end of an extensive list, Congress unmistakably intended to cover all governments in §101(27)’s definition, whatever their location, nature, or type.”
The Court found that other provisions of the Code supported this conclusion. The Code provides an “orderly and centralized” process for debt resolution that “generally apply to all creditors,” so it would not make sense to prevent bankruptcy courts from enforcing certain provisions against only tribes. The Code also struck a careful balance by exempting governmental units from certain provisions; allowing just one type of government to circumvent the Code would upend that compromise. Concluded the Court, because the “Code unequivocally abrogates the sovereign immunity of all governments” and “[t]ribes are indisputably governments,” it abrogates their immunity as well.
The Court rejected the Band’s arguments to the contrary. The Band emphasized that Congress did not specify Indian tribes by name. But the Court said that “the clear-statement rule is not a magic-words requirement.” Although Congress could have expressly listed tribes in the definition of “governmental unit,” it was not required to do so to abrogate immunity. Although Congress expressly referred to tribes in other statutes that abrogated their immunity, none of those laws are like the Code. The Band further argued that the phrase “other foreign or domestic government” could still have meaning without including tribes―it could be read to cover entities created by interstate compacts. But because the Code defines the word “or” broadly, the Court declined to adopt a “laser focus” on that word. Finally, the Court rejected the Band’s arguments that tribes had historically received different treatment under older versions of the Code. Even if that was true, the modern Code broke with the past by adopting provisions that “unequivocally extend to all governments.”
Justice Thomas concurred in the judgment. He believed that the Band did not have sovereign immunity in the first place, “regardless of the Bankruptcy Code’s abrogation provision.” In his view, tribes at most have a limited common-law immunity, not the full immunity of sovereigns. Because no federal law recognizes this immunity, tribes do not enjoy it in federal courts. Further, said Justice Thomas, even if their immunity did apply in federal courts, it would not extend to off-reservation commercial acts, like the ones that occurred here. He criticized the Court’s tribal immunity doctrine as being out of step with the constitution and recent immunity decisions. The doctrine allows tribes to “circumvent vast swaths of both state and federal laws.” Justice Thomas encouraged the Court to “simply abandon its judicially created tribal sovereign immunity doctrine.”
Justice Gorsuch dissented. He noted that this was the first time the Court had held that a statute abrogated tribal immunity “’without expressly mentioning Indian tribes somewhere in the statute.’” He agreed that the majority’s interpretation was “plausible,” but plausibly abrogating immunity falls short of what the clear-statement rule requires. Justice Gorsuch maintained that, although Congress expressly abrogated the immunity of governmental units, that abrogation applies to tribes only if they count as “domestic governments” or “foreign government[s].” Yet, he said after reviewing the Court’s Indian law cases dating back to its “earliest Indian-law jurisprudence,” tribes are not domestic governments; although they are territorially domestic, they occupy a sui generis place “between foreign and domestic states.” (Quotation marks omitted.) Even if their precise status was ambiguous―“a jump ball”―a general reference to domestic governments was insufficient under the clear-statement rule to abrogate tribal immunity. Justice Gorsuch believed that the phrase “other foreign or domestic government” fares no better; although the majority’s reading was plausible, it was not clearly correct. Under another plausible reading, tribes are neither entirely foreign nor entirely domestic, and so do not fall under the conjoined concepts either. Justice Gorsuch agreed that policy reasons supported the majority’s interpretation, but that could not change the fact that Congress did not expressly abrogate tribal immunity.
Lora v. United States, 22-49. The Court unanimously held that a sentence for using, carrying, or possessing a firearm during the commission of a crime resulting in death under 18 U.S.C. §924(j) may run concurrently or consecutively to other sentences. This case involved two subsections of 18 U.S.C. §924. Under subsection (c), it is a crime to “us[e] or carr[y] a firearm” “during and in relation to any crime of violence or drug trafficking crime,” or to “posses[s] a firearm” “in furtherance of any such crime.” The subsection provides a series of mandatory minimum penalties ranging from five to 30 years of imprisonment for different theories of prosecution. A defendant must serve a §924(c) sentence consecutively to any other sentence; “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” (Emphasis added.) Congress added subsection (j) to §924 decades after subsection (c). Subsection (j) applies to those who, “in the course of a violation of subsection (c), caus[e] the death of a person through the use of a firearm.” It authorizes sentences up to death or imprisonment for any term of years, but does not say whether that punishment may run concurrently to one imposed for another offense.
Petitioner Efrain Lora was a leader of a drug gang in New York and “acted as a scout” when other members killed another drug dealer. A jury convicted him of conspiring to distribute drugs and of violating §924(j) by causing the death of another through the use of a firearm in a drug crime. At sentencing, Lora argued that the district court should run the §924(j) sentence concurrently with that of his conspiracy conviction. Relying on circuit precedent, the district court ruled that it did not have discretion to do so because §924(j)’s reference to “in the course of a violation of subsection (c)” incorporated §924(c)’s prohibition on concurrent sentences. It also ruled that subsection (c)’s five-year mandatory minimum applied to the subsection (j) sentence. The Second Circuit affirmed. In an opinion by Justice Jackson, the Court vacated and remanded.
The Court found that, by its plain terms, the prohibition on concurrent sentences in subsection (c) applies to convictions “under this subsection,” and the jury convicted Lora of violating a different subsection of the statute. Although subsection (j) references subsection (c), it does so “only with respect to offense elements, not penalties.”
The Court rejected the government’s arguments to the contrary. The government argued that subsection (j) incorporated subsection (c) as a whole, including its penalty provisions. The Court rejected this reading because a sentencing court could not simultaneously follow both subsections. For example, a defendant who committed voluntary manslaughter with a machinegun would face a mandatory term of 30 years under subsection (c), but could only be sentenced to 15 years under subsection (j). To address this concern, the government claimed that, similarly to another portion of the statute, a sentencing court should first apply subsection (c)’s penalties, add the subsection (j) penalties, then impose subsection (c)’s consecutive sentence requirement. But the Court believed that the text of subsection (j) is materially different from the one the government pointed to. The Court further explained that this showed that Congress understood how to accomplish such a result; that it did not do so in subsection (j) demonstrated that it did not intend to do so there. The government also claimed that double jeopardy principles showed that the two subsections were the same offense. Even if that were true (which the Court did not decide), this fit with the Court’s reading: a defendant who received a sentence under subsection (j) did not receive one under subsection (c), so there would be no double jeopardy problem.
Finally, the government argued that it would be irrational to conclude that Congress intended to impose harsher penalties for the lesser offenses under subsection (c) when subsection (j) applies to the same conduct that results in a death. The Court reasoned that Congress rationally could have chosen to adopt different sentencing approaches for the subsections that it enacted many years apart. Subsection (c) provides for mandatory penalties, while subsection (j) gives sentencing courts discretion. Moreover, subsection (j) provides for higher maximum penalties―up to and including death―for the most culpable conduct. Although Congress could have made different policy judgments at either step, it did not do so in the text of the statute.
II. CERT GRANT REVIEW
Department of Agriculture Rural Development Rural Housing Service v. Kirtz, 22-846. The Court granted certiorari to determine whether Congress waived the United States’ sovereign immunity in the Fair Credit Reporting Act (FCRA). Reginald Kirtz borrowed money from the Pennsylvania Higher Education Assistance Agency and the U.S. Department of Agriculture (USDA) Rural Development Rural Housing Service. Both entities reported information about the loans to TransUnion, LLC, a credit-reporting agency. Using the FCRA, Kirtz notified TransUnion that some of that information was wrong and that the error hurt his credit score. Although TransUnion notified the agencies, Kirtz alleged that they failed to take the necessary action to investigate and correct the error. He sued TransUnion and the agencies in federal court for violating the FCRA. The USDA moved to dismiss the complaint against it, arguing that Congress had not waived the federal government’s immunity from suits for damages under the FCRA. The district court agreed, but the Third Circuit reversed. 46 F.4th 159. The court of appeals held that Congress waived the government’s sovereign immunity by authorizing suit against any “person” who violated the FCRA and defining “person” to include any “government or governmental subdivision or agency.”
The government argues that Congress did not unequivocally express its intent to waive sovereign immunity in the FCRA and therefore did not do so. When Congress enacted the FCRA in 1970, it did not waive federal sovereign immunity because the provisions authorizing civil damages applied only to credit reporting agencies. The government says that, although Congress included governments in the original definition of “person,” it did not intend to include governments in the provisions that, for example, authorized criminal prosecutions against persons. When Congress amended the FCRA in 1996, it authorized suit broadly against any “person” who violated the act. The government, pointing to an analogous situation in Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279 (1973), argues that such an amendment does not evince a clear intent to abrogate immunity.
In the government’s view, Congress did not intend to apply the FCRA’s full remedial mechanism against the federal government because it usually does not, for example, allow states to sue federal agencies or authorize punitive damages against the government. Further, notes the government, although Congress expressly waived sovereign immunity in another part of the statute, it did not do so in the general civil liability provisions. The government also insists that the FCRA’s broad enforcement mechanisms would displace the carefully limited remedies available under the Privacy Act in situations where both statutes apply. Finally, says the government, nothing in the legislative history of the statute reflects an intent to abrogate immunity.
Kirtz argues that the plain text of the statute authorizes suits against the government. He insists that the clear-statement rule is not a magic words requirement, and that the text of the statute is unambiguous. He argues that Employees does not control because it focused on legislative history, which the modern Court has largely abandoned as a tool for interpreting statutes. Kirtz adds that, although Congress authorized remedies under the FCRA that would be unusual to apply to government entities, it would not be absurd to do so. The portion of the statute that expressly waived sovereign immunity did so because that section applied only to the federal government. Although Kirtz acknowledges that the Privacy Act can overlap with the FCRA, he claims the two are not incompatible.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
- Todd Grabarsky, Supreme Court Fellow
- Van Snow, Supreme Court Fellow
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