June 26, 2024 | Volume 31, Issue 15
This Report summarizes opinions issued on June 13 and 14, 2024 (Part I).
Opinions
Food and Drug Administration v. Alliance for Hippocratic Medicine, 23-235.
The Court unanimously held that pro-life doctors and medical associations lacked standing to sue the Food and Drug Administration for its recently relaxed regulatory requirements for mifepristone, an abortion drug. In 2000, FDA approved a new drug application for mifepristone tablets (brand name Mifeprex) for use to terminate pregnancies up to seven weeks. FDA placed various restrictions on the drug’s use and distribution, such as only doctors could prescribe Mifeprex; a prescription regimen included three in-person visits with the doctor; and “serious adverse events” related to the drug had to be reported to FDA. In 2016, FDA approved the application of Danco Laboratories, which sponsors Mifeprex, seeking to amend Mifeprex’s labeling and to relax some of the restrictions that FDA had imposed. The eased restrictions included that Mifeprex could be used to terminate pregnancies up to ten weeks; health practitioners other than doctors could prescribe the drug; a prescription regimen required only one in-person visit; and prescribers were required to report only fatalities to FDA. Also, in 2019 FDA approved an application for generic mifepristone, which established the same conditions of use of the generic version as required for the brand name drug. In 2021, based on experience gained from the pandemic, FDA removed the initial in-person visit requirement to obtain the Mifeprex or its generic equivalent.
In 2022, four pro-life medical associations and several individual doctors sued FDA, challenging, as relevant here, the lawfulness of FDA’s 2016 and 2021 actions modifying mifepristone’s conditions of use. Danco Laboratories intervened to defend FDA’s actions. The district court held that the plaintiff associations and doctors had standing; they were likely to succeed on the merits of their claims; and they met the other showings needed for a preliminary injunction. Eventually, the Supreme Court granted FDA and Danco’s motion to stay the district court’s order pending the disposition of their appeals in the Fifth Circuit and ultimate resolution by the Court. Eventually, the Fifth Circuit, as relevant here, affirmed the district court’s decision, holding that the doctors and medical associations had standing to sue and that they “were likely to succeed in showing that FDA’s 2016 and 2021 actions were unlawful.” In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Court resolved the case on the threshold question whether the doctors and medical associations had Article III standing to sue. In holding they did not, the Court emphasized that the “plaintiff doctors and medical associations [were] unregulated parties who [sought] to challenge FDA’s regulation.” They did “not prescribe or use mifepristone,” “[a]nd FDA ha[d] not required the plaintiffs to do anything or to refrain from doing anything.” Instead, “the plaintiffs [said] that they are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others.” In an attempt to establish standing, they advanced three “complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact.” The Court concluded, however, that none “suffice[d] to establish Article III standing.”
First, the Court rejected “plaintiffs’ claim that FDA’s relaxed regulation of mifepristone cause[d] conscience injuries to the doctors,” thus giving the doctors standing. Even if, as plaintiffs argued, FDA’s “changes to mifepristone’s conditions of use cause[d] more pregnant women to require emergency abortions and . . . some women would likely seek treatment from these plaintiff doctors,” the plaintiffs failed to demonstrate “that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections.” The reason is that “federal conscience laws protect doctors from being required to perform abortions or to provide other treatment that violates their consciences, . . . religious beliefs or moral convictions.” “Most if not all States have conscience laws to the same effect.” The plaintiffs did not present any evidence in this case that hospitals, in contravention of these laws, were “overriding or failing to accommodate doctors’ conscience objections.” Moreover, stated the Court, the Emergency Medical Treatment and Labor Act does not override “those federal conscience laws” or “an individual doctor’s conscience objections.” (Internal quotation marks omitted.) As a result, these federal laws “break[ ] any chain of causation between FDA’s relaxed regulation of mifepristone and any asserted conscience injuries to the doctors.”
Second, the Court dismissed plaintiffs’ contention that they had standing because they will incur “various monetary and related injuries” as a result of these relaxed regulations, namely, “diverting resources and time from other patients to treat patients with mifepristone complications; increasing risk of liability suits from treating those patients; and potentially increasing insurance costs.” The Court found that “[t]he causal link between FDA’s regulatory actions and those alleged injuries” lacked support in the record and was “too speculative or otherwise too attenuated to establish standing.” The Court has never recognized “doctor standing,” which would “allow doctors to challenge general government safety regulations.” That is because “[t]he chain of causation is simply too attenuated.” To allow for such standing “would be an unprecedented and limitless approach,” permitting “doctors to sue in federal court to challenge almost any policy affecting public health.” Instead, “[c]itizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities.”
Third, the Court rebuffed the medical associations’ argument that they have associational standing. The medical associations claimed that “FDA has ‘impaired’ their ‘ability to provide services and achieve their organization missions.’” The associations averred that it was not simply that they disagreed with FDA’s policies; instead, their standing was derived from their “incurring costs to oppose FDA’s actions.” The Court held, however, that this “does not work to demonstrate standing.” The Court explained that “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.” It ruled that its holding in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), did not support the associations’ “expansive theory of standing.” In Havens, a racial steering case, the plaintiff housing counseling organization “had standing to bring a claim under the Fair Housing Act against [the defendant], which owned and operated apartment complexes.” The plaintiff had standing to sue in that case because the defendant’s actions “directly affected and interfered with [the organization’s] core business activities―not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.” In any event, “Havens was an unusual case and th[e] Court has been careful not to extend the Havens holding beyond its context. So too here.”
Finally, the Court rejected the suggestion that the plaintiffs had standing because, if they did not, then no one would have standing to challenge FDA’s 2016 and 2021 actions. To begin, “it [was] not clear that no one else would have standing to challenge” these actions. And even if no one had standing, “th[e] Court has long rejected that kind of ‘if not us, who?’ argument as a basis for standing.” Instead, “some issues may be left to the political and democratic processes.” For example, the plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”
Justice Thomas filed a concurring opinion in which he reiterated his objection to third-party standing and expressed his concern with the doctrine of associational standing. As an initial matter, in Justice Thomas’s view, the Court’s “third-party standing doctrine is mistaken”; “a plaintiff cannot establish an Article III case or controversy by asserting another person’s rights.” Next, Justice Thomas explained that associational standing, which “is simply another form of third-party standing,” suffers from similar problems. Specifically, “[a]ssociational standing raises constitutional concerns by relaxing both the injury and redressability requirements for Article III standing,” as well as upsetting other legal doctrines. Among other things, he wrote, “associational standing conflicts with Article III by permitting an association to assert its members’ injuries instead of its own.” As a general matter, “Article III does not allow a plaintiff to seek to vindicate someone else’s injuries.” The logic behind this prohibition should apply with “equal force to an association as to any other plaintiff.”
Garland v. Cargill, 22-976.
By a 6-3 vote, the Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority by issuing a rule that classifies a bump stock as a “machinegun” under §2845(b) of the National Firearms Act of 1934. Section 2845(b) defines a machinegun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The definition also includes “any part designed and intended . . . for use in converting a weapon into a machinegun.” A semiautomatic firearm differs from a machine gun because it fires only once per trigger pull, requiring the shooter to release and press the trigger again for each additional shot. But shooters have developed techniques to achieve firing rates like some machine guns. One method involves using a bump stock, which replaces the semiautomatic rifle’s stock with a plastic casing that allows the rifle to slide back and forth. This harnesses the rifle’s recoil energy to repeatedly bump the shooter’s stationary trigger finger, enabling rapid fire.
For years, ATF maintained that semiautomatic rifles equipped with bump stocks did not qualify as machineguns under the law. But it reversed its stance after the October 2017 mass shooting in Las Vegas, where a gunman used weapons fitted with bump stocks to kill 58 people and injured 500 others. ATF thereafter introduced a proposed rule that would amend its regulations “to ‘clarify’ that bump stocks are machineguns.” The new rule explained that bump stocks qualify as machineguns because they enable a semiautomatic firearm to fire multiple shots with a single trigger pull, utilizing the firearm’s recoil energy to reset the trigger and sustain continuous firing without requiring additional manual trigger manipulation by the shooter. Upon updating its position on bump stocks, ATF ordered owners of bump stocks to destroy them or surrender them to ATF within 90 days or risk criminal prosecution. Petitioner Michael Cargill surrendered two bump stocks to ATF under protest and filed a lawsuit challenging the final rule. The district court agreed with ATF that “a bump stock fits the statutory definition of a machinegun.” The en banc Fifth Circuit reversed. A majority of the court concluded that §5845(b) was ambiguous regarding whether a semiautomatic rifle equipped with a bump stock qualifies as a machinegun and that the rule of lenity required ruling in favor of Cargill. In an opinion by Justice Thomas, the Court affirmed on the ground that a semiautomatic rifle equipped with a bump stock unambiguously does not qualify as a machinegun.
The Court reasoned that a semiautomatic rifle equipped with a bump stock is not a machine gun under §2845(b) because it cannot fire more than one shot with a single trigger pull; and even if it could, it would not fire automatically. Examining the statutory text, the Court focused on the phrase “function of the trigger.” Using dictionary definitions, the Court found “[t]he phrase ‘function of the trigger’ . . . refers to the mode of action by which the trigger activates the firing mechanism.” The Court used a series of illustrations to demonstrate the cycle the trigger mechanism of a semiautomatic rifle must complete for each shot to be fired, defining this as “a single function of the trigger.” The Court emphasized that the cycle remains unchanged when a semiautomatic rifle is equipped with a bump stock because a semiautomatic rifle still fires only one shot per “function of the trigger.” Instead, a bump stock merely reduces the amount of time that elapses between separate “functions” of the trigger. Thus, the Court found that even with a bump stock, a semiautomatic rifle does not fire more than one shot “by a single function of the trigger,” but requires the trigger to be released and reset between each shot.
The Court dismissed ATF’s argument that “single function of the trigger” means “a single pull of the trigger and analogous motions.” ATF alleged that with a bump stock, a shooter needs to pull the trigger only once to start a bump-firing sequence of multiple shots. Under its theory, the initial trigger pull initiates a cycle of fire, recoil, bump, and fire, enabling the weapon to continue firing without the shooter’s further physical manipulation of the trigger. But the Court said that argument was based on the mistaken assumption that there is a difference between the shooter flexing his finger to pull the trigger and pushing the firearm forward to bump the trigger against a stationary finger. The Court noted that the statutory definition does not depend on the type of human input used to engage the trigger or whether they have assistance but on the number of shots discharged when the trigger is engaged, which is only one. To make this point, the Court relied on the fact that a shooter can manually bump-fire a semiautomatic rifle, achieving the same continuous fire by holding his trigger finger stationary and maintaining forward pressure with his non-trigger hand.
The Court also found that even if a semiautomatic rifle with a bump stock could fire more than one shot by a “single function of the trigger,” it would still not do so automatically. The Court rejected ATF’s argument that there was no meaningful difference between holding down the trigger of a traditional machine gun and maintaining forward pressure on the front grip of a semiautomatic rifle with a bump stock. Instead, the Court distinguished the two actions by stating that “[s]imply pressing and holding the trigger down on a fully automatic rifle is not manual input in addition to a trigger’s function—it is what causes the trigger to function in the first place.” The Court likewise rejected the dissent’s claim that the Court’s decision went against the presumption against ineffectiveness, which weighs against a statutory interpretation that would enable offenders to elude its provisions easily. It stated that “[a] law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest.” Further, the Court highlighted that its reading of §5845(b) still regulates all traditional machineguns. Lastly, the Court noted that “Congress could have linked the definition of ‘machinegun’ to a weapon’s rate of fire . . . [b]ut it instead enacted a statute that turns on whether a weapon can fire more than one shot ‘automatically . . . by a single function of the trigger.’”
In a concurring opinion, Justice Alito acknowledged that, although the statute can only be interpreted in one way, a semiautomatic rifle equipped with a bump stock can have the same lethal effect as a machine gun. In his view, “[t]here is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.”
Justice Sotomayor filed a dissenting opinion, which Justices Kagan and Jackson joined. Justice Sotomayor criticized the Court for changing Congress’s definition of a machinegun and making it “inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose.” Instead, she found that a bump-stock-equipped semiautomatic rifle satisfies Congress’s definition of a machine gun. She emphasized that with a bump stock, “[a]s long as the shooter keeps his trigger finger on the finger rest and maintains constant forward pressure on the rifle’s barrel or front grip, the weapon will fire continuously.” This, she said, matches the definition of a machine gun under §5845(b), which includes “any part designed and intended . . . for use in converting a weapon into a machinegun.” That language “naturally covers devices like bump stocks which ‘conver[t] semiautomatic rifles so that a single pull of the trigger provides continuous fire as long as the shooter maintains forward pressure on the gun.’”
In Justice Sotomayor’s view, the Court erred by looking at the internal mechanism that initiates fire rather than the human act of the shooter’s initial pull. She argued that according to all tools of statutory interpretation—including dictionary definitions, evidence of contemporaneous usage, and the Court’s prior interpretation—the phrase “single function of the trigger” means “the initiation of the firing sequence by an act of the shooter.” She emphasized that regardless of the internal mechanics of a firearm, if a shooter needs to activate the trigger only once to initiate a firing sequence that automatically shoots more than one shot, that firearm is considered a “machine gun.” Lastly, Justice Sotomayor maintained that the Court violated the presumption against ineffectiveness by allowing bump stock users to bypass Congress’s ban on weapons that shoot rapidly with a single action of the shooter. She noted that Congress “sought to restrict civilian use of machineguns because they eliminated the need for a person rapidly to pull the trigger himself to fire continuously,” and a bump stock serves that function. The Court’s decision, she said, “eviscerates Congress’s regulation of machineguns and enables gun users and manufacturers to circumvent federal law.”
Vidal v. Elster, 22-704.
The Court unanimously held that the Lanham Act’s names clause—which prohibits the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent”—does not violate the First Amendment. The Lanham Act creates a federal trademark registration system administered by the Patent and Trademark Office (PTO). Registration of a mark is not mandatory but offers significant legal rights and benefits. For a mark to be federally registered it must meet specific criteria, such as the names clause. Petitioner Steve Elster sought to register the trademark “Trump too small” accompanied by an illustration of a hand gesture to use on shirts and hats. The PTO examiner denied the registration under the names clause because the mark used former President Trump’s name without his consent. The Trademark Trial and Appeal Board affirmed and rejected Elster’s argument that the names clause violates his First Amendment right to free speech. The Federal Circuit reversed, holding that the names clause violated the First Amendment. It said that as a viewpoint-neutral but content-based restriction, it was subject to at least intermediate scrutiny, which the government could not satisfy because the names clause did not advance any substantial government interest. In an opinion by Justice Thomas, the Court reversed.
The Court found that the names clause is viewpoint-neutral because it does not facially discriminate against any viewpoint; it applies regardless of whether the use of the name is flattering, critical, or neutral. The Court rejected petitioner’s claim that the names clause “verges on viewpoint discrimination in practice” because it’s easier to obtain consent for a trademark that flatters a person rather than mocks him. The Court noted that even if the trademark’s message is neutral or complimentary, a person may withhold consent to avoid association or exploitation. The Court ruled, however, that the names clause was a content-based restriction because it depends on the content of the proposed trademark, specifically whether it includes a person’s name. Thus, for the first time, the Court considered the constitutionality of a content-based but viewpoint-neutral trademark restriction.
The Court rejected a per se rule of applying heightened scrutiny to viewpoint-neutral but content-based trademark regulations. It highlighted that the history of trademark regulation demonstrates an “inherently content-based nature” that has “never been a cause for constitutional concern.” Considering the evolution of trademark restrictions leading up to the creation of the Lanham Act in 1946—where the focus had consistently been on the content of the mark—the Court concluded that it did not need to subject a content-based restriction on trademark registration to heightened scrutiny, given its longstanding compatibility with the First Amendment.
Next, the Court noted it was not creating “an exhaustive framework for when a content-based trademark restriction passes muster under the First Amendment.” Instead, the Court concluded that the names clause is sufficiently compatible with the First Amendment. It emphasized that “[r]estrictions on trademarking names have a long history” that is grounded “in the notion that a person has ownership over his own name and that he may not be excluded from using that name by another’s trademark.” To illustrate this longstanding tradition, the Court referenced the common law prohibition on trademarking any name, including one’s own, and highlighted that in England selling a product under someone else’s name could constitute actionable fraud. The Court observed that this practice persisted through the first federal trademark law. Thus, the Court found it “unsurprising that the Lanham Act included the names clause,” as it aligns with trademark law’s historical purpose of identifying the source of goods and ensuring consumers are not misled about product responsibility while safeguarding the trademark holder’s reputation. Drawing on this history and tradition, the Court concluded that “restricting the trademarks of names has coexisted with the First Amendment, and the names clause fits within that tradition.” Thus, the clause does not run afoul of the First Amendment. But the Court specified that its decision was narrow and did not announce a “comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional.” It also stated that it did not suggest that “equivalent history and tradition is required to uphold every content-based trademark restriction.” Instead, the Court said it was simply deciding that the history and tradition surrounding the names clause demonstrate that it does not violate the First Amendment. (A section of Justice Thomas’s opinion, Part III, joined only by Justices Alito and Gorsuch, responded to Justice Barrett and Sotomayor’s concurring opinions.)
In a brief concurrence joined by Chief Justice Roberts, Justice Kavanaugh noted that he agreed that the names clause is constitutional “particularly in light of the long history of restricting the use of another’s name in a trademark,” but wrote separately to note that “viewpoint-neutral, content-based trademark restrictions might well be constitutional even absent such a historical pedigree.”
Justice Barrett, joined entirely by Justice Kagan and partially by Justices Sotomayor and Jackson, concurred that the names clause does not infringe upon the First Amendment. But she disagreed with the Court’s conclusion that history and tradition settle the constitutional question. Justice Barrett agreed with the Court that content-based restrictions on trademark registration do not invoke the presumption of unconstitutionality. She emphasized that over a century of precedent illustrates that trademark law has consistently been content-based without serving as a tool for government censorship. Justice Barrett noted that determining which marks deserve protection has always been “inherently content-based.” She pointed to Congress’s initial trademark statute, which included specific content-based restrictions for federal registration. She noted that today, the registration criteria under the Lanham Act continue to depend on the content of the applicant’s mark. Justice Barrett explained that “content discrimination has long been ‘necessary for [trademark’s] purposes and limitations.’” She highlighted that trademarks are protected because they assist consumers in identifying the goods they intend to purchase and enable producers to benefit financially from their product’s positive reputation. According to her, the essential question to achieve these goals is whether trademarks function as identifiers, which inherently involves assessing their content. But she pointed out that “[t]hese content-based trademark rules have long coexisted with the Free Speech Clause.”
In rejecting the application of strict scrutiny, Justice Barrett supported the Government’s proposed analogy to limited-public-forum analysis. This approach asks whether the imposed restrictions are reasonable given the purpose served by the forum in question. Applying that analysis to trademark registration, Justice Barrett said that content-based criteria for trademark registration do not violate free speech if the criteria are reasonably related to “the preservation of the mark owner’s goodwill and the prevention of consumer confusion.” And Justice Barrett found that, under that test, the names clause “passes muster.” She explained that a “trademark that includes another living person’s name without her consent has the obvious potential to create source confusion.” Additionally, she noted that the names clause protects a producer of goods’ goodwill by preventing others from “unfairly capitaliz[ing] on the reputation of the named individual, who may be a producer in her own right.”
Justice Barrett criticized the Court’s use of a historical record to demonstrate the names clause’s constitutionality. First, she noted that the record “does not support the Court’s conclusion,” and second, she “disagree[d] with [the Court’s] choice to treat tradition as dispositive of the First Amendment issue.” Justice Barrett therefore found it difficult to say “that the names clause is constitutional solely because of its historical pedigree.” Instead, she advocated for the adoption of a broadly applicable principle. Justice Barrett emphasized that the key lesson from history is that content-based trademark restrictions have consistently served the central purpose of facilitating source identification without presenting a significant risk of censorship.
Justice Sotomayor, along with Justices Kagan and Jackson, also concurred in the judgment. Justice Sotomayor criticized the Court’s emphasis on historical precedent rather than “settled First Amendment precedent,” noting that the Court has “never applied this kind of history-and-tradition test to a free-speech challenge.” She found the most straightforward way to resolve free-speech challenges to trademark registration criteria is through “a doctrinal framework drawn from this Court’s First Amendment precedent.” In her view the first step should be asking “whether the challenged provision targets particular views taken by speakers on a given subject.” If the answer is yes, the registration bar is viewpoint-based and presumptively unconstitutional, subject to heightened scrutiny. But Justice Sotomayor said that if the answer is no, it is viewpoint-neutral, and the registration bar “need only be reasonable in light of the purpose of the trademark system,” such as identifying and distinguishing goods for the public. In her view, “If the challenged provision is both viewpoint neutral and reasonable, then it does not violate the Free Speech Clause.” Justice Sotomayor clarified that such a result is justified because, under those conditions, the challenged provision does not burden expression but merely might withhold benefits. She argued that denying federal trademark registration benefits does not prevent someone from using his mark in commerce or conveying any message related to the mark. She emphasized this by pointing out that Elster’s denial of trademark registration did not prevent him from communicating his message or selling shirts bearing that message.
Starbucks Corp. v. McKinney, 23-367.
By an 8-1 vote, the Court held that when evaluating the National Labor Relations Board’s (NLRB’s) request for a preliminary injunction under §10(j) of the National Labor Relations Act (the Act), district courts must apply the traditional four factors outlined in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). The Act prohibits employers and unions from engaging in unfair labor practices, with enforcement by the NLRB. When a charge is filed, an NLRB regional director investigates the claim. If the charge has merit, the director issues a formal complaint, leading to adjudicatory proceedings before an administrative law judge and then the NLRB. A federal court of appeals can review the NLRB’s final order if judicial review is requested. Because these proceedings can take years, the Act’s §10(j) grants the NLRB the authority to seek a preliminary injunction in federal court. This measure aims to preserve or restore the status quo during the proceedings, ensuring that the ability to address unfair labor practices is not hindered. Section 10(j) provides that the district court deciding the petition may “grant to the Board such temporary relief . . . as it deems just and proper.”
In 2022, six employees of a Starbucks in Memphis, Tennessee announced plans to unionize and formed an organizing committee. Several employees, including some organizing committee members, invited a local television news crew to visit the store after hours to promote their unionizing efforts. The next day, store management learned about the event. It launched an investigation, which led to the firing of multiple employees involved in the media event, including members of the organizing committee who attended, for violating company policy. The union filed charges with the NLRB, accusing Starbucks of unlawfully interfering with employees’ right to unionize and discriminating against union supporters. The NLRB issued a complaint against Starbucks. The regional director filed a §10(j) petition in district court seeking a preliminary injunction that, among other things, would require Starbucks to reinstate the fired employees. In determining whether the NLRB was entitled to a preliminary injunction under §10(j), the district court applied a two-part established by the Sixth Circuit, which asks “whether ‘there is reasonable cause to believe that unfair labor practices have occurred,’ and whether injunctive relief is ‘just and proper.’” The NLRB could establish reasonable cause by simply showing that its “legal theory [was] substantial and not frivolous.” And relief would be “just and proper” if it were “necessary to return the parties to [the] status quo pending the Board’s proceedings in order to protect the Board’s remedial powers under the NLRA.” Applying this standard, the district court granted the injunction; applying circuit precedent, the Sixth Circuit affirmed. In an opinion by Justice Thomas, the Court vacated and remanded.
The Court started with the language of §10(j), observing that when Congress “empowers courts to grant equitable relief, there is a strong presumption that courts will exercise that authority in a manner consistent with traditional principles of equity.” Regarding preliminary injunctions, the Court explained that “the four criteria identified in Winter encompass the relevant equitable principles.” The Court emphasized that “[a] preliminary injunction is an ‘extraordinary’ equitable remedy that is ‘never awarded as of right’” and cautioned against assuming Congress had intended to depart from established principles. Thus, without a clear mandate from Congress, “courts must adhere to the traditional four-factor test.” The Court then pointed out that nothing in §10(j)’s text overcomes that presumption. According to the Court, the statutory directive to grant relief when the district court “‘deems’ it ‘just and proper’” does not “jettison the normal equitable rules.” In fact, the Court interpreted the phrase “just and proper” as invoking “the discretion that courts traditionally exercise when confronted with requests for equitable relief.” The Court added that the language in §10(j) “bears no resemblance to the language that Congress has employed when it has altered the normal equitable rules.” The Court underscored this distinction with examples of other statutes that have expressly relieved the moving party from showing they can satisfy one of the traditional criteria.
The Court rejected the NLRB’s argument that the statutory text justifies a departure from the traditional equitable criteria. The NLRB pointed to the fact that Congress made the NLRB and not federal courts responsible for initially adjudicating unfair labor practice charges, with appellate courts applying a deferential standard for final decisions of the NLRB. According to the NLRB, this necessitates a less stringent evaluation of §10(j) petitions, which the Sixth Circuit’s reasonable-cause standard accomplishes. But the Court found that the “reasonable cause standard . . . substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.” The Court stressed that the NLRB could secure a §10(j) injunction under this lower standard by “merely showing ‘reasonable cause to believe that unfair labor practices have occurred.’” Thus, the NLRB does not need to convince a court of the validity of its theory of liability if it is substantial and not frivolous. The Court noted that “it is hard to imagine how the Board could lose under the reasonable-cause test if courts deferentially ask only whether the Board offered a minimally plausible legal theory, while ignoring conflicting law or facts.” The Court remanded so that the lower courts could apply the four-part test to this case.
Justice Jackson concurred in the judgment to send the case back to the lower court for reevaluation under the four-factor test, but dissented on what level of deference that reevaluation owes to the NLRB decision. Justice Jackson highlighted the Court’s decision in Hecht Co. v. Bowles, 321 U.S. 321 (1944), which established a two-part inquiry to establish congressional intent when interpreting a statute that authorizes equitable relief. The first step is to determine whether Congress has “stripped courts of their traditional equitable discretion by ‘a clear and valid legislative command.’” But if there is no clear expression, the second step is to look at “the statutory context to assess how courts should exercise their equitable discretion ‘as conditioned by the necessities of the public interest which Congress has sought to protect.’” Justice Jackson agreed that the Court correctly applied the first step because nothing in the Act “clearly strips courts of their equitable discretion to determine whether to issue a so-called §10(j) injunction.” But she criticized the majority for neglecting the second step by “ignoring the choices Congress has made in the [the Act] about how courts should exercise their discretion in light of the [NLRB’s] authority over labor disputes.” Because Congress has long aimed to limit judicial discretion in issuing injunctions in labor dispute contexts through the creation of the Act and the establishment of the NLRB to protect established rights, including the authority to seek preliminary injunctive relief, Justice Jackson found this context to mean that “a district court’s look at the merits when considering the Board’s petition for interim relief under §10(j) should be far less searching than normal.”
Campos-Chaves v. Garland, 22-674.
In a 5-4 decision, the Court held that “[b]ecause each of the aliens in these cases received a proper [§1229(a)(2)] notice for [removal] hearings they missed and at which they were ordered removed, they [could not] seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii).” When the Government pursues removal proceedings, the Immigration and Nationality Act requires that the alien be provided with “written notice.” 8 U.S.C. §§1229(a)(1), (2). First, under §1229(a)(1), the alien “shall be given” a “notice to appear,” or NTA. The NTA must take the form of a single document and include information such as: “the [n]ature of the proceedings against the alien, [t]he legal authority under which the proceedings are conducted, [t]he time and place at which the proceedings will be held, and the consequences of failing to appear.” (Internal quotation marks omitted.) Second, under §1229(2), if the time and place of the alien’s upcoming hearing is changed, the agency must provide “a written notice” specifying “the new time or place of the proceedings” and “the consequences” of failing to attend. An alien who has been provided with written notice “under paragraph (1) or (2) of section 1229(a)” but fails to attend his hearing, “shall be ordered removed in absentia” if the Government “establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” §1229a(b)(5)(A). As relevant here, “an alien can seek rescission if he demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2) of §1229(a).” (Internal quotation marks omitted.)
The Court consolidated the cases of three aliens, one from the Fifth Circuit and two from the Ninth: Esmelis Campos-Chaves, Varinder Singh, and Raul Daniel Mendez-Colin. “Though the facts var[ied], the key details [were] the same in each case.” The Government sent each alien an NTA; but each notice indicated that a date and time for the hearing was to be determined at a later date. Under prior Supreme Court precedent, those NTAs were therefore inadequate. Thereafter, each alien was sent a hearing notice that specified a date and time. “When each alien failed to show up for the hearing, an Immigration Judge entered an in absentia order of removal. Each alien then sought rescission of that order” pursuant to statute. “In all three cases, an Immigration Judge and the Board of Immigration Appeals (BIA) refused to reopen the proceedings, prompting the aliens to file a petition for review in federal court.” The Fifth Circuit denied Campos-Chaves’s petition, whereas the Ninth Circuit granted the petitions of Singh and Mendez-Colin. In an opinion by Justice Alito, the Court affirmed the judgment of the Fifth Circuit and reversed the judgment of the Ninth Circuit.
The Court started with an important concession from the Government: Because the NTAs failed to include a specific date and time for the removal hearing, they “failed to comply with §1229(a)(1).” Thus, the issue here was whether the aliens were eligible “for rescission of their in absentia removal orders” where they had received incomplete NTAs and complete “paragraph (2) notices for the hearings they missed.” In concluding that the aliens were not eligible for rescission, the Court reasoned as follows. Beginning with the text of the relevant statutes, the Court homed in on the word “or” as used in the rescission provision. Specifically, §1229a(b)(5)(C)(ii) “provides that to be eligible for rescission of his in absentia removal order an alien must ‘demonstrat[e] that the alien did not receive notice in accordance with paragraph (1) or (2) of section §1229(a).’” (Emphasis added.) “The word ‘or’ is almost always disjunctive . . . and is generally used to indicate an alternative . . . .” (Citations and internal quotation marks omitted.) As a result, in this case, “§1229a(b)(5)’s ordinary meaning is that either a paragraph (1) notice or a paragraph (2) notice can count as ‘notice in accordance with paragraph (1) or (2).’”
Next, the Court explained, although “statutory context can overcome the ordinary, disjunctive meaning of ‘or,’” that “context points in the same direction as the usual meaning here.” Specifically, §1229a(b)(5)(A), “which sets out the preconditions for an alien to be removed in absentia in the first place,” uses an “unambiguously disjunctive” form of “or” in referring to a “paragraph (1) or (2) notice.” (Internal quotation marks omitted.) Additionally, subparagraph A of §1229a(b)(5) “requires the Government to establish that it provided ‘the written notice.’” If, as the Court previously had ruled, “the notice” described in paragraphs (1) and (2) must be a single document, then “it certainly must denote a single notice. As long as the Government can show―under the given burden of proof―that the alien is removable and was provided ‘the written notice,’ the alien ‘shall be ordered removed in absentia.’” Therefore, “[s]ubparagraph (A) clearly contemplates in absentia removal of aliens who received only one notice under paragraph (1) or (2).”
The Court’s “conclusion that a single notice defeats rescission under §1229a(b)(5)(C)(ii) [did] not end the analysis, however.” The Court still had to decide “which notice the alien must show was lacking in order to have his in absentia removal order rescinded.” It ultimately concluded that a “notice in accordance with paragraph (1) or (2),” for purposes of the removal rescission statute, “refers to the notice for the hearing the alien missed, and at which he was ordered removed.” The Court explained that the removal rescission statute “cross-references paragraphs (1) and (2) of §1229(a).” The NTA, which is the paragraph (1) notice, “is the initial document notifying the alien of ‘removal proceedings under’ §1229a.” On the other hand, a “[p]aragraph (2) notice issues ‘in the case of any change or postponement in the time and place of such proceedings’ and provides ‘the new time or place of the proceedings.’” Therefore, the Court determined, “notice under paragraph (2) supersedes the NTA.” So “when there is a paragraph (2) notice, it is that notice that informs the alien when to appear, not the NTA.” Moreover, “[t]he only way to make sense of §1229(b)(5)(C)(ii)’s reference to a single notice is for that notice to be the one that matters: the one that informed the alien of the time and date of the hearing the alien missed, and at which he was ordered removed.” Not only does this align with common sense, but it “gives the provision a substantive effect that is compatible with the rest of the law.” (Internal quotation marks omitted.)
Justice Jackson filed a dissenting opinion, which Justices Sotomayor, Kagan, and Gorsuch joined. Justice Jackson began noting that, “[f]or years . . . the Government has issued NTAs that lack the exact time (and date) of a noncitizen’s removal hearing.” It has done so despite the Court’s previous admonition that Government-issued NTAs “must contain the time-and-place particulars that the statute requires.” Indeed, the present “cases arise because the Government persisted with its practice of issuing facially defective NTAs in the wake” of the Court’s prior jurisprudential admonitions. In this case, however, the Court “finally blesse[d] the Government’s abject noncompliance with the statute’s unequivocal command.” It did so in a “holding that defie[d] the plain text and context of the statute, side-stepp[ed] [the Court’s] precedents, and upend[ed] the careful in absentia removal framework Congress has crafted.”
Specifically, Justice Jackson asserted, the Court’s decision “unjustifiably cleaves the paragraph (2) notice from the paragraph (1)’s NTA requirement.” The Court “ignores the fact that the statute Congress wrote makes an NTA issued under paragraph (1) indispensable, and, relatedly, it disregards the obviously supporting and secondary role that paragraph (2) notices play with respect to this statutory scheme.” Section 1229(a)(1) unequivocally states that ‘[i]n removal proceedings under section 1229a of this title,’ an NTA ‘shall be given’ to the noncitizen.”
Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC, 22-1238.
“Two terms ago in Siegel v. Fitzgerald, 596 U.S. 464 (2022), [the Court] held that a statute violated the Bankruptcy Clause’s uniformity requirement because it permitted different fees for Chapter 11 debtors depending on the district their case was filed.” In a 6-3 decision, the Court here held that “prospective parity” (i.e., equal fees going forward), was the appropriate remedy for that violation.
The federal bankruptcy system is administered by two programs: (1) the U.S. Trustee Program, which administers the vast majority of bankruptcy districts; and (2) the Bankruptcy Administrator Program, which administers the remaining small number of districts. For this case, the most important “difference between the two programs is their funding.” The Trustee Program is “entirely self-funded by user fees paid by debtors.” Conversely, the Bankruptcy Administrator Program is supported by Congress “through its general appropriation for the Judiciary, with fees used only to offset funding.” Between 2001 and 2018, the two programs charged debtors identical fees. But beginning in 2018, to address a funding shortfall for the Trustee Program, fees increased for large Chapter 11 debtors in Trustee districts. It was not until 2021, however, that such fees were increased in the Bankruptcy Administrator districts to equal those in the Trustee Program districts. In the meantime, “a disparity emerged between the fees paid by large Chapter 11 debtors in . . . Trustee districts and those paid by large Chapter 11 debtors in Bankruptcy Administrator districts.”
In 2016, a group of legal entities filed for bankruptcy in a U.S. Trustee district, specifically, the District of Kansas. “Starting in January 2018, the debtors were subject to increased quarterly fees under the amended fee statute. In March 2020, the debtors challenged the constitutionality of those fees, seeking both a refund of fees already paid and a reversion of future fees to their 2017 level.” Because the Bankruptcy Court found that no constitutional violation had occurred, it did not reach the question of remedy. The Tenth Circuit reversed, anticipating Siegel and finding that the fee statute permitting nonuniform fees violated the Bankruptcy Clause. As a remedy, the court “ordered a refund of the debtors’ quarterly fees so that they equaled the lower fees the debtors would have paid had their case been filed in a Bankruptcy Administrator district.” Following a GVR in the wake of in Siegel―which left open the remedial issue―the Tenth Circuit “reinstated its original opinion without alteration.” In a decision by Justice Jackson, the Court reversed and remanded.
The Court began with the well-established premise that, “[a]cross remedial contexts, ‘the nature of the violation determines the scope of the remedy.’” To understand the nature of the violation in Seigel, there were three aspects of the Court’s holding that were relevant. “First, the violation [the Court] identified was nonuniformity, not high fees.” “Second, the fee disparity . . . was short lived,” lasting from 2018 to 2021. “Finally, the disparity was small”: “98% of the relevant class of debtors still paid uniform fees.” Next, to determine how properly to “remedy a constitutional violation wrought by the legislative process,” one must look to “what the legislature would have willed had it been apprised of the constitutional infirmity.” (Internal quotation marks omitted.) “In cases involving unequal treatment, answering this question generally leads to focus on two considerations: Congress’s intensity of commitment to the more broadly applicable rule, and the degree of potential disruption of the statutory scheme that would occur if [the Court] were to extend the exception.” (Internal quotation marks omitted.)
The Court concluded that, in light of the constitutional violation “identified in Siegel, Congress would have wanted prospective parity, not a refund or retrospective raising of fees.” This was “clear” for the following reasons. First, Congress exhibited an “intens[e]” “commitment to raising fees in U.S. Trustee districts.” The U.S. Trustee Program was designed by Congress to be funded entirely by user fees. As a result, it was no surprise “that when there was a funding shortfall for the U.S. Trustee Program, Congress chose to address it by raising fees on the largest Chapter 11 debtors.” Later, “when Congress amended the fee statute” to require uniformity, it “specifically stated that the purpose of keeping fees at an elevated level was ‘to further the long-standing goal of ensuring that the bankruptcy system is self-funded, at no cost to the taxpayer.’”
Second, refunding the difference in fees for all U.S. Trustee district Chapter 11 debtors would cause an “extreme disruption” to the bankruptcy system. It “would significantly undermine Congress’s goal of keeping the U.S. Trustee Program self-funded.” Indeed, based on Government estimates, the refund would cost $326 million, resulting in “an enormous bill for taxpayers.” In addition, “respondents’ proposed refund would almost certainly exacerbate the small fee disparity [the Court was] attempting to remedy.” By refunding respondents and other large Chapter 11 debtors who paid higher fees, the Court would end up “add[ing] to the past nonuniformity by increasing the tiny percentage of debtors―currently 2%―who paid lower fees.”
Third, and finally, it was apparent that Congress did not intend to retrospectively impose higher fees on debtors in Bankruptcy Administrator districts. Specifically, when Congress revised the fee scheme in 2021 to address the disparity, “it did so by mandating equal fees prospectively only.” This “makes sense.” “[R]etrospectively raising fees in Bankruptcy Administrator districts would do nothing to achieve Congress’s goal of keeping the U.S. Trustee Program self-funding.” Moreover, such a remedy would come with “serious practical challenges.” “[M]any of the debtors who paid lower fees in Bankruptcy Administrator districts have [since] exited bankruptcy or ceased to exist.” Plus, “[t]he Government would be forced to extract fees from funds that might already be disbursed, inevitably prompting additional litigation and even the unwinding of closed cases.”
In contrast, respondents and the dissent asserted that due process required the Court to override Congress’s clear intent and order a refund for the difference in fees. Specifically, they argued that a series of the Court’s cases involving unconstitutional state taxes “stand for the proposition that due process requires meaningful backward-looking relief unless an exclusive predeprivation remedy is both clear and certain.” (Internal quotation marks omitted.) Respondents further contended “that because the predeprivation here was neither exclusive nor clear and certain, they are entitled to a refund.” The Court rejected this argument, explaining that, even if the tax cases applied here, respondents still were “not entitled to relief under them.” That was because those cases held that due process was satisfied if taxpayers had the opportunity to challenge the validity of their contested tax assessments in a predeprivation hearing. Here, “respondents acknowledge[d] that they had the opportunity to challenge their fees before they paid them.” Rather than accept the foregoing, “[r]espondents and the dissent misread [the Court’s] later decisions as displacing that basic holding.” Those subsequent cases involved a state’s unfair “mid-course” reconfiguration of its tax scheme, where it would “bait and switch taxpayers out of a refund remedy guaranteed by state law.” (Internal quotation marks omitted.) The Court had held “that States could not hold open a postdeprivation refund remedy to encourage payment and then take it away after taxpayers paid.” But in this case, “there was neither a guaranteed refund remedy nor a bait and switch.” Sometimes “due process and other constitutional protections . . . will limit the possible remedies in many cases. Here, though, due process does not mandate any particular remedy.” As a result, “as the tax cases themselves advise, we must, ‘within the bounds of [our] institutional competence, . . . implement what the legislature would have willed.’” (Internal quotation marks omitted.)
Justice Gorsuch, joined by Justices Thomas and Barrett, dissented. Justice Gorsuch asserted that “traditional remedial principles” and the Court’s “longstanding precedents should [have made] short work of this case.” Respondents paid to the U.S. Trustee millions of dollars in “overpayments.” As made clear from the Court’s decision in Siegel, respondents’ overpayments “were exacted in violation of the Bankruptcy Clause.” The “Court has long said that the appropriate remedy for duties or taxes erroneously or illegally assessed is . . . restitution or compensation.” (Internal quotation marks omitted.) So too, in this case, respondents were entitled to a refund―“the relief the U.S. Trustee promised from the start.”
Justice Gorsuch maintained that the Court’s reliance on how Congress would have “address[ed] the constitutional injury its fee regime imposed had it been warned in advance” directly contradicted traditional remedial principles. “A promise of fee uniformity going forward may prevent future discrimination between debtors. But it does nothing to remedy fees unlawfully exacted in the past.” Next, “even assuming speculation about Congress’s wishes ha[d] anything to do with the scope of retrospective relief, it would still require a refund here.” That’s because, as the Government acknowledged, “existing statutory text reveal[ed] that ‘Congress [has] authorized payments of refunds’ from appropriated funds.” Finally, Justice Gorsuch argued, the Court’s due process jurisprudence demanded a refund in this case where respondents reasonably relied on the availability of a refund when it paid the contested higher fees. Specifically, as litigants throughout the country began challenging the fee disparity, U.S. Trustees urged courts not to provide injunctive relief or setoffs to the challengers. Such relief “was unnecessary, the [G]overnment contended, precisely ‘because the statute appropriating funds to the [U.S.] Trustee Program . . . permits refunds from the U.S. Trustee System fund . . . according to standard procedures.’” Now, however, the Government insisted that litigants could not “in fact secure refunds from the U.S. Trustee System Fund under any procedures.” (Internal quotation marks omitted.) “That bait and switch violat[ed] due process, plain and simple.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
- Amanda Schwartz, Supreme Court Fellow
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