July 13, 2023
Volume 30, Issue 18
This Report summarizes cases granted review on June 30, 2023 (Part I).
Part I: Cases Granted Review
United States v. Rahimi, 22-915. At issue is “[w]hether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” Respondent Zackey Rahimi assaulted his girlfriend, C.M., grabbing her wrist, knocking her to the ground, dragging her back to his car, and shoving her back inside. C.M. fled the scene when Rahimi retrieved a gun to fire a shot after seeing a bystander. Rahimi later called C.M. and threatened to shoot her if she told anyone about the assault. In February 2020, a Texas state court granted C.M. a restraining order. The order prohibited Rahimi from threatening, harassing, or approaching C.M. or her family, suspended Rahimi’s handgun license, and prohibited him from possessing a firearm. Rahimi violated the restraining order by trying to communicate with C.M. and approaching her house. In November 2020, he threatened another woman with a gun, which led the State of Texas to charge him with aggravated assault with a deadly weapon. Rahimi then participated in a series of five shootings in December 2020 and January 2021. Police later found in his home, among other things, a .45-caliber pistol, a .308-caliber rifle, pistol and rifle magazines, and ammunition. A federal grand jury indicted Rahimi for violating 18 U.S.C. §922(g)(8) and 924(a)(2). Section 922(g)(8) prohibits a person who is subject to a domestic-violence restraining order from possessing a firearm in or affecting commerce. Rahimi moved to dismiss the indictment, arguing that §922(g)(8) violates the Second Amendment on its face. The district court denied the motion. Rahimi then pleaded guilty and was sentenced to 73 months of imprisonment, to be followed by three years of supervised release. The Fifth Circuit at first affirmed, but after the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), the Fifth Circuit withdrew its opinion. After receiving supplemental briefing on Bruen, the court of appeals reversed, holding that §922(g)(8) violates the Second Amendment on its face. 2023 WL 2317796.
The Fifth Circuit reasoned that Rahimi fell “within the Second Amendment’s scope.” Although the Supreme Court has described the right to keep and bear arms as a right belonging to “ordinary, law-abiding citizens,” the Fifth Circuit interpreted that phrase to exclude only “felons,” “the mentally ill,” and other “groups that have historically been stripped of their Second Amendment rights.” The court then concluded that, although Rahimi was “hardly a model citizen,” he was not a “convicted felon” or otherwise excluded from the Second Amendment’s scope. The Fifth Circuit then ruled that, under Bruen, the government had the burden to identify historical analogues to §922(g)(8). The court rejected each of the analogues the government offered.
The United States argues in its petition that “[g]overnments have long disarmed individuals who pose a threat to the safety of others, and Section 922(g)(8) falls comfortably within that tradition.” It points to a 17th century English statute that empowered the government to “seize all arms in the custody or possession of any person” who was “judge[d] dangerous to the Peace of the Kingdom.” It points to “early [Colonial] laws [that] categorically disarmed entire groups deemed dangerous or untrustworthy, such as those who refused to swear allegiance.” And it points to other Colonial laws that “called for case-by-case judgments about dangerousness.” The United States adds that “[p]ost-ratification practice points in the same direction. In the mid-19th century, many States enacted laws requiring ‘those threatening to do harm’ to ‘post bond before carrying weapons in public.’” The United States maintains that, “[i]n keeping with that history, th[e] Court explained in Heller that the right to keep and bear arms belongs only to ‘law-abiding, responsible citizens.’ And in Bruen, the Court stated that the Second Amendment protects the right of ‘an ordinary, law-abiding citizen’ to possess and carry arms for self-defense.” (Citation omitted.) The United States insists that §922(g)(8) “fits squarely within the longstanding tradition of disarming dangerous individuals.” The United States faults the Fifth Circuit for “analyz[ing] each historical statute in isolation and dismiss[ing] each one on the ground that it differed from Section 922(g)(8) in some way.” That was error because, “[a]lthough courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin.’ Bruen, 142 S. Ct. at 2133.” All told, says the United States, §922(g)(8) “is ‘analogous enough’ to its ‘historical precursors’ because it imposes similar burdens for similar reasons. Ibid.”
SEC v. Jarkesy, 22-859. The three questions presented are: (1) “Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment.” (2) “Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine.” (3) “Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.”
Respondent George Jarkesy launched two hedge funds with his advisory firm, respondent Patriot28, L.L.C. Respondents violated the securities laws by misrepresenting various important facts to their investors and by overvaluing the funds’ holdings to increase their management fees. In 2013, the SEC brought an administrative proceeding against respondents under the Securities Act of 1934, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. An ALJ held an evidentiary hearing and issued a decision finding that respondents had violated the three laws. The Commission reviewed the ALJ’s decision and agreed with it. The Commission ordered respondents to pay a civil penalty of $300,000 and to cease and desist from their violations of the securities laws; barred Jarkesy from various activities in the securities industry; and directed Patriot28 to disgorge nearly $685,000 in illicit gains. A divided panel of the Fifth Circuit granted respondents’ petition for review, vacated the SEC’s decision, and remanded to the Commission for further proceedings. 34 F.4th 446.
The Fifth Circuit first held that Congress had violated the Seventh Amendment by empowering the Commission to bring certain administrative proceedings seeking civil penalties. Although Congress may authorize administrative agencies to conduct adjudications involving “public rights,” the Fifth Circuit found that exception inapplicable because “fraud actions under the securities statutes echo actions that historically have been available under the common law” and because the claims here “are not the sort that are uniquely suited for agency adjudication.” The Fifth Circuit next held that Congress had improperly delegated legislative power to the SEC by giving the agency unconstrained authority to choose in particular cases to seek civil remedies by instituting administrative proceedings rather than by filing suit in district court. The court reasoned that “Congress may grant regulatory power to another entity only if it provides an ‘intelligible principle’ by which the recipient of the power can exercise it,” but the statutory scheme does not provide an “intelligible principle” to guide the Commission’s choice to institute administrative proceedings rather than to file a district court action. Finally, the Fifth Circuit ruled that the statutory restrictions on the removal of the Commission’s ALJs violated Article II. An ALJ may be removed “by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S.C. §7521(a). And members of the Board “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”
5 U.S.C. §1202(d). The Fifth Circuit found that Congress violated the principle announced in Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), that it may not grant executive officers “two layers of for-cause protection” from removal.
The SEC argues that the Fifth Circuit erred in all three holdings. As to the Seventh Amendment issue, the United States asserts that “[t]his Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, ‘the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.’ Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1379 (2018) (citation omitted).” And, says the Commission, “SEC administrative adjudications seeking civil penalties qualify as matters involving public rights” that may be assigned to non-Article III tribunals. Plus, “Congress may assign a matter involving public rights to an agency ‘even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned to a federal court of law instead.’ Atlas Roofing [Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 455 (1977)]. As to the nondelegation issue, the SEC maintains that “[t]he Commission’s decision whether to pursue an administrative or judicial remedy in a particular case is a core executive function, not the exercise of legislative power.” In short, the nondelegation doctrine does not apply to an exercise of prosecutorial discretion exercised under a statute that otherwise provides an intelligible principle―prosecutorial discretion “involves the execution rather than the making of federal law.” And the SEC insists that in United States v. Batchelder, 442 U.S. 114 (1979), the “Court rejected a nondelegation challenge closely analogous to the one that respondents assert here.”
Finally, the SEC argues that, “[c]ontrary to the court of appeals’ decision, Congress may grant tenure protection to ALJs who work at agencies whose heads likewise enjoy tenure protection.” The Commission says that the Court’s holding in Free Enterprise Fund “’d[id] not address that subset of independent agency employees who serve as administrative law judges.’” And it emphasizes that, “[u]nlike the Board members in Free Enterprise Fund, the Commission’s ALJs ‘perform adjudicative rather than enforcement or policymaking functions.’ The scope of the President’s constitutional power to remove and control adjudicators differs from the scope of his power to remove and control other executive officers.” (Citations omitted.) All told, says the SEC, “[g]iven the ALJs’ purely adjudicatory functions, that removal standard does not unconstitutionally impinge on the President’s control over the Executive Branch.”
McElrath v. Georgia, 22-721. As set out in the cert petition, the issue in the case is as follows: “The Georgia Supreme Court held that a jury’s verdict of acquittal on one criminal charge and its verdict of guilty on a different criminal charge arising from the same facts were logically and legally impossible to reconcile. It called the verdicts ‘repugnant,’ vacated both of them, and subsequently held that the defendant could be prosecuted a second time on both charges. Does the Double Jeopardy Clause of the Fifth Amendment prohibit a second prosecution for a crime of which a defendant was previously acquitted?”
Petitioner Damian McElrath was indicted for aggravated assault, malice murder, and felony murder predicated on aggravated assault, all based on the same conduct―stabbing his mother to death. At trial, McElrath presented evidence indicating that he suffered from a schizoaffective mental disorder, which contributed to his difficulties with his mother. The jury returned contradictory verdicts. It found McElrath not guilty of malice murder by reason of insanity, but also found him “guilty but mentally ill” of felony murder and its predicate, aggravated assault. The trial court sentenced McElrath to life imprisonment and also committed him to a state mental health facility for psychiatric evaluation. McElrath argued on appeal that his verdicts were “repugnant” (not merely “inconsistent”), which under Georgia law occurs when the jury must “make affirmative findings shown on the record that cannot logically or legally exist at the same time.” In that circumstance, the verdicts are “a logical and legal impossibility” and both verdicts must be vacated and remanded for a new trial.
The Georgia Supreme Court ruled that the verdicts were repugnant. “This is because the not guilty by reason of insanity verdict on malice murder and the guilty but mentally ill verdict on felony murder . . . required affirmative findings of different mental states that could not exist at the same time during the commission of those crimes.” Because of this “logical and legal impossibility,” the court vacated both verdicts and remanded for a new trial. On remand, McElrath asserted that the Double Jeopardy Clause barred the state from subjecting him to a second trial on the malice murder charge because he had been acquitted on that charge at his first trial. The trial court denied his motion, and the Georgia Supreme Court affirmed. 880 S.E.2d 518. The Georgia Supreme Court acknowledged that “[u]nder the general principles of double jeopardy and viewed in isolation, the jury’s purported verdict of not guilty by reason of insanity would appear to be an acquittal that precludes retrial[.]” But the court reasoned that repugnant verdicts are “valueless” and thus “void” because “[t]here is no way to decipher what factual finding or determination” the verdicts represent. Thus, “McElrath cannot be said with any confidence to have been found not guilty based on insanity any more than it can be said that the jury made a finding of sanity and guilt with regard to the same conduct.” The situation is therefore “akin to a situation in which a mistrial is declared after a jury is unable to reach a verdict.”
McElrath argues in his petition that the Supreme “Court has repeatedly emphasized, in a wide range of circumstances, that the Double Jeopardy Clause ‘unequivocally prohibits a second trial following an acquittal.’” And that is so “even if the acquittal ‘was based upon an egregiously erroneous foundation.’” Further, says McElrath, the Court has specifically held that “when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact[,] . . . [t]he Government is barred by the Double Jeopardy Clause from challenging the acquittal[,] . . . [and] ‘the acquittals themselves remain inviolate.’” Bravo-Fernandez v. United States, 580 U.S. 5, 8, 24 (2016). He insists that “there is no exception from double jeopardy principles for verdicts that are so inconsistent as to be ‘repugnant.’”
Georgia responds that “repugnant verdicts are fundamentally different from merely inconsistent verdicts,” for whereas the “inconsistent verdicts rule rests on the assumption that a reviewing court cannot know why the jury acted as it did,” repugnant verdicts “require mutually exclusive, affirmative, on-the-record factual findings from the jury.” “With such findings, the reviewing court no longer has to wonder as to why the jury rendered inconsistent verdicts; the reason for the inconsistency, or the mistake that produced it, is ‘transparent’ in the record.” That difference means that repugnant verdicts are not merely a type of inconsistent verdict. And it means that “[a] repugnant verdict, unlike an inconsistent verdict, is not simply an erroneous verdict. Rather, it is no verdict at all. That means double jeopardy is not implicated because a repugnant verdict fails to terminate a defendant’s initial jeopardy.”
Muldrow v. City of St. Louis, MO, 22-193. The Court limited the grant of certiorari to the following question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?” Petitioner Jatonya Clayborn Muldrow was a Sergeant with the St. Louis, Missouri, Police Department. From 2008 to 2017, she worked in the department’s Intelligence Division on public-corruption and human-trafficking cases, and also served as head of the Gun Crimes Unit. She alleges that, without warning, her supervisor, Intelligence Commander Michael Deeba, transferred her to another district, purportedly because he viewed the role that Muldrow had been in for the last 10 years as too “dangerous.” She alleges that in her new position in the new district her schedule got worse (having to work most weekends); she did “basic entry level police work,” rather than intelligence and human-trafficking duties; she is no longer housed in police headquarters; and she has to wear a uniform, duty belt, and vest, adding an extra 15 to 25 pounds, rather than plainclothes as before. Muldrow sought a transfer to become an administrative aide to Captain Angela Coonce, a job that includes serving as a district’s liaison to City Hall and to federal and state agencies, making it “high profile.” She was denied that transfer. Muldrow sued the department in Missouri state court, as relevant here, under Title VII of the Civil Rights Act of 1964. Section 703(a)(1) of the Act prohibits an employer from discriminating against its employees on the basis of various characteristics, including sex, with respect to “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. §2000e-2(a)(1). She claimed that her transfer to the Fifth District and the denial of her transfer request to be an administrative aid to Captain Coonce were because of her sex.
The department removed the case to federal district court. The district court then granted the department’s motion for summary judgment, relying on Eighth Circuit precedent that a discriminatory transfer that does not “produce[] a material employment disadvantage” is “not an adverse employment action.” The Eighth Circuit affirmed, holding that the forced transfer and refusal to transfer were not “adverse employment actions” and, therefore, are not actionable under Title VII. 30 F.4th 680. Quoting circuit precedent, the court concluded that “a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” And the Eighth Circuit concluded that Muldrow had not suffered a “materially significant disadvantage” and lacked “proof of harm resulting from that reassignment.” As to Muldrow’s failure-to-transfer claim, the court affirmed on the ground that Muldrow did “not demonstrate how the sought-after transfer would have resulted in a material, beneficial change to her employment.”
Muldrow argues that “Title VII bans employment discrimination in ‘compensation, terms, conditions, or privileges of employment.’ 42 U.S.C. §2000e-2(a)(1). The phrase ‘adverse employment action’ appears nowhere in its text. It makes sense, then, that this Court ‘has never adopted’ a legal rule requiring an ‘adverse employment action’ as an element of a plaintiff’s case. Th[e] Court should reject that rule and apply the statute as written.” (Citation omitted.) She insists that Title VII bans “discrimination,” and is “thus not limited to workplace discrimination that employers or courts view as particularly injurious or as economically harmful. The statute’s simple, unadorned words establish no minimum level of actionable harm.” (Citation omitted.) Again turning to the words of the statute, Muldrow says that “[a] reassignment—that is, a transfer—[] necessarily alters previously established workplace ‘terms, conditions, or privileges.’” Here, it changed Muldrow’s hours, “job responsibilities, workplace conditions and privileges, and other benefits.” And as to her denied transfer, she maintains that “[t]here is no meaningful distinction between the harm suffered by Muldrow from the denied transfer and the injury a prospective employee suffers when denied a job in the first place.”
The city responds that, “[a]s the Eighth Circuit explained, the text of both §703(a)(1) and its surrounding provisions most naturally yields an adverse-employment-action requirement.” That is because “[t]o ‘discriminate against’ somebody, one must injure them.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“No one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.”). In addition, argues the city, “[u]nder §706(f)(1), Title VII’s private-cause-of-action provision, only ‘aggrieved’ individuals may pursue civil actions for violations of §703(a)(1).” And the “Court has interpreted the use of ‘aggrieved’ in Title VII’s private-cause-of-action provision to require Article III injury and more, by ‘excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.’”
Wilkinson v. Garland, 22-666. At issue is whether an immigration agency’s determination that a given set of established facts failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal “is a mixed question of law and fact reviewable under 8 U.S.C. §1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).” The statutory background is as follows. Under the Immigration and Nationality Act, the Attorney General has discretion to cancel removal of non-permanent residents where “removal would result in exceptional and extremely unusual hardship” to the applicant’s immediate family member who is a U.S. citizen or lawful permanent resident. §1229b(b)(1)(D). Congress stripped courts of jurisdiction to review cancellation-of-removal determinations, §1252(a)(2)(B)(i), but created an exception for “questions of law.” §1252(a)(2)(D). In Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), the Court held that mixed questions of fact and law constitute “questions of law” for these purposes. And so we return to the question presented: Is the “exceptional and extremely unusual hardship” requirement for cancellation of removal “a mixed question of law and fact reviewable under 8 U.S.C. §1252(a)(2)(D)” or “a discretionary judgment call unreviewable under [§]1252(a)(2)(B)(i)”?
Petitioner Situ Wilkinson is a citizen of Trinidad and Tobago. He fled to the United States in 2003 after being beaten and threatened by the police. Wilkinson built a life in the United States, where he has a 9-year-old son (a U.S. citizen) who has several medical conditions and with whom he is very close. In 2020, immigration agents took Wilkinson into custody and instituted removal proceedings against him. Wilkinson conceded removability, but applied for cancellation under §1229b(b)(1)(D). The immigration court found that Wilkinson met the first three statutory eligibility criteria, but ruled that he did not show that “removal would result in exceptional and extremely unusual hardship” to his U.S.-citizen son, concluding that on the facts found, they did not “rise to the level” of exceptional hardship. The Bureau of Immigration Affairs affirmed without opinion. Wilkinson petitioned for review in the Third Circuit, but the court held that it lacked jurisdiction. It cited a circuit precedent holding that the agency’s hardship determination is discretionary and therefore unreviewable.
Wilkinson argues in his petition that the courts are deeply divided on the reviewability issue. On its merits, he maintains that under the immigration laws, to be eligible “for relief from removal ’a noncitizen must show that he satisfies various threshold requirements established by Congress’ and ‘that he merits a favorable exercise of discretion.’” Here, cancellation of removal under §1229b(b)(1)(D) is the first, statutory issue; the second step “is whether the noncitizen should be granted cancellation as a matter of discretion.” Thus, he says, “’[t]he threshold eligibility determinations . . . are not discretionary decisions.’” Wilkinson also notes that the hardship determination follows three other statutory eligibility criteria (physical presence in the United States for 10 years; “good moral character” during that time; and no disqualifying criminal convictions)―and everyone agrees that courts can review determinations of those three criteria. “The statute’s structure,” he argues, “indicates that the hardship showing is of a piece with the other three eligibility criteria.”
The United States responds that, while “a court could review the agency’s use of an incorrect legal standard to make the hardship determination, . . . subparagraph (D) does not authorize a court of appeals to reweigh the relevant factual considerations, as petitioner here requests. That is an inherently fact-intensive, discretionary task allocated to the agency.” (Citations omitted.) And the United States says that the Court has already rejected the contention that “’[e]verything . . . is reviewable’ except the ‘decision whether to grant relief to an applicant eligible to receive it.’”
Campos-Chaves v. Garland, 22-674; Garland v. Singh, 22-884. The issue in these consolidated cases, as set out in the United States’ cert petition, is: “Under 8 U.S.C. 1229a(b)(5), a noncitizen may be ordered removed in absentia when he ‘does not attend a [removal] proceeding’ ‘after written notice required under paragraph (1) or (2) of [8 U.S.C. 1229(a)] has been provided’ to him or his counsel of record. An order of removal that was entered in absentia ‘may be rescinded’ ‘upon a motion to reopen filed at any time’ if the noncitizen subject to the order demonstrates that he ‘did not receive’ such notice. 8 U.S.C. 1229a(b)(5)(C)(ii). The question presented is whether the failure to receive, in a single document, all of the information specified in paragraph (1) of 8 U.S.C. 1229(a) precludes an additional document from providing adequate notice under paragraph (2) of that section, and renders any in-absentia removal order subject, indefinitely, to rescission.” Among the required information is the time and place of the proceedings. In these two cases, the first notice said that the time and place of the proceedings was to be set; the second notice set the time and place.
The key precedent is Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), which involved the “stop time” rule, under which the government’s service of “a notice to appear under section 1229(a)” stops a noncitizen from accruing additional periods of residency needed to qualify for cancellation of removal. Niz-Chavez held that §1229(a)(1) requires “’a single document containing all the [required] information,” and that―for purposes of the stop-time rule―the government could not split the information into two separate documents. Campos-Chavez argues that “[t]here is no real dispute that the two-step notice practice does not provide notice under paragraph (1) of section 1229(a)―that was this Court’s precise holding in Niz-Chavez. The question is therefore whether the two-step notice practice provides valid notice under paragraph (2) of section 1229(a), which allows the government to ‘change’ the ‘time and place of such proceedings’ by serving notice of ‘the new time or place.’” He argues that “[t]he hearing notice that the government sent [him] was the first notice it ever provided that set the time and place of his hearing. That notice therefore did not ‘change’ the time and place of his hearing under any ordinary usage of that word, and so it was not a valid notice under paragraph (2).” The government responds that the second notice of hearing “qualified as valid notice under paragraph (2) because it changed a ‘to be set’ time to a specific time.”
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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