Dec. 12, 2023

Volume 30, Issue 17

This Report summarizes an opinion issued on Dec. 5, 2023 (Part I); and cases granted review on Nov. 20 and Dec. 8, 2023 (Part II).

Part I: Opinion

Acheson Hotels, LLC, v. Laufer, 22-429. The Court dismissed the case as moot. At issue was whether “a self-appointed Americans with Disabilities Act ‘tester’ ha[s] Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.” Respondent Deborah Laufer has sued hundreds of hotels for their failure to state accessibility information on their websites in violation of the ADA. Laufer had no intention of booking a room at these hotels let alone staying at them. She searched for hotels on the web and when she found the relevant information was lacking, she sued under the ADA. Some hotels settled her claims. Others declined, instead urging that Laufer lacked standing because she did not have a concrete injury. The Court granted review to resolve a circuit split generated by Laufer. Sometime thereafter, Laufer’s counsel was suspended from practicing law based on his conduct in settling Laufer’s claims. Laufer’s counsel also funneled large sums to the father of Laufer’s grandchild for work he never performed, suggesting Laufer received a cut of the money from hotel settlements. After the suspension, Laufer voluntarily dismissed her pending suits, including her complaint against petitioner Acheson Hotels. She also filed a suggestion of mootness in the Supreme Court. Acheson objected to dismissing the case on mootness grounds, urging the Court to resolve the circuit split for efficiency’s sake and to discourage litigants from evading the Court’s review by abandoning a claim.

The Court was “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court,” but was not convinced that Laufer abandoned her case to evade the Court’s review. Based on the case history and Laufer’s avowal to not file any other cases, the Court found the case was moot. The Court vacated the First Circuit’s opinion and remanded with instructions to dismiss the case as moot, citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The Court declined Justice Jackson’s invitation to leave the First Circuit’s judgment in place, noting that the Court’s Munsingwear practice was well settled.

Justice Thomas wrote a concurring opinion to state his view that Laufer lacked standing. He believed the Court “should address Laufer’s standing, rather than resolve this case on mootness. As an analytical matter, whether Laufer had standing the day she filed her suit is logically antecedent to whether her later actions mooted the case. More importantly, whether Laufer has standing to bring her Reservation Rule claims is a recurring question that only this Court can definitively resolve.” He then concluded that Laufer lacked standing because she had not asserted a violation of a right under the ADA or a violation of her own rights. Justice Thomas distinguished Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), where “Havens Realty told a black tester that no apartments were available but told a white tester that it had vacancies,” and “the Court found that the black tester had standing to sue.” Havens Realty reasoned that the Fair Housing Act “created ‘a legal right to truthful information about available housing.’” Found Justice Thomas, “Havens Realty thus has no bearing on Laufer’s standing as a tester of compliance with the ADA, which provides no such statutory right to information.”

Justice Jackson also wrote a concurring opinion. She agreed that the case was moot. But in her view, when mootness resolves an appeal the question of what to do with the lower court’s judgment raised a distinct question that should be addressed separately. Because the parties had not provided an equitable basis for vacatur, she would not have imposed such a remedy.

Part I: Cases Granted Review

Erlinger v. United States, 23-370. The question presented is “[w]hether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were ‘committed on occasions different from one another,’ as is necessary to impose an enhanced sentence under the Armed Career Criminal Act [(ACCA)].” Under the ACCA, a defendant convicted of unlawful possession of a firearm may be sentenced under a lengthier sentencing range—15 years to life in prison versus a maximum of ten years’ imprisonment—if he or she has three or more previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. §924(e)(1). Last year, in Wooden v. United States, 595 U.S. 360 (2022), the Court ruled that the “on occasions different from one another” requirement is a multi-factored inquiry, considering: proximity in time and location, whether the crimes were committed in an uninterrupted course of conduct, the presence of intervening events, and the character and relationship of the offenses. The Court did not address whether the Sixth Amendment required those factors to be determined by a jury because the defendant had not raised the issue.

In 1991, petitioner Paul Erlinger pleaded guilty to four counts of burglary that were committed in the same county in Indiana, charged in the same complaint, entered on the same day, but were committed over the course of a week. In 2017, Erlinger was charged with being a felon in possession of a firearm, pleaded guilty, and was sentenced to 180 months of imprisonment pursuant to the mandatory minimum under the ACCA. The district court later granted Erlinger’s motion to vacate his sentence after finding that three of the four offenses the court had previously relied on no longer qualified as ACCA predicate offenses. At resentencing, the government argued that Erlinger should be sentenced under the ACCA again based on the 1991 burglaries. Erlinger objected, arguing that the burglaries were not committed on different occasions and that judicial factfinding on the issue was impermissible under the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466 (2002). The district court granted the government’s request, reasoning it could rely on the generic factual information about the convictions contained in the 1991 charging document. The Seventh Circuit affirmed, noting that Wooden had reserved the question at issue. 77 F.4th 617. The Seventh Circuit applied circuit precedent and held that (1) the government was not required to prove Erlinger had committed the burglaries on different occasions to a jury beyond a reasonable doubt, and (2) the 1991 burglaries were committed on different occasions.

Erlinger argues that the constitutional right recognized in Apprendi—that juries must determine beyond a reasonable doubt any fact that increases the mandatory minimum sentence except for prior convictions—applies to the different-occasions inquiry required by the ACCA because the factors used to answer that inquiry fall outside its only exception. In its responsive brief, the federal government agreed that certiorari should be granted and agreed with Erlinger’s position that juries must decide the different-occasions inquiry. The Court appointed counsel to defend the judgment of the Seventh Circuit.

Becerra v. San Carlos Apache Tribe, 23-250; Becerra v. Northern Arapaho Tribe, 23-253. These consolidated cases present the question whether the Indian Health Service (IHS) must pay overhead expenses to support “not only the IHS-funded programs that are transferred to a tribe under a self-determination contract, but also activities that the contracting tribe funds using reimbursement income from third-party health care payors.” In both cases, the tribes sued under the Indian Self Determination and Education Assistance Act to recover the overhead expenses associated with their providing medical services covered by third-party payors. The district courts dismissed the tribes’ suits. The Ninth and Tenth Circuits reversed. 53 F.4th 1236; 61 F.4th 810.

The statutory background, as set out in the federal government’s cert petitions, is as follows:  “The Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5301 et seq., permits eligible Indian tribes to contract with the federal government to assume responsibility for federal health care programs administered for the benefit of Indians. Upon entering into the contract, a tribe is entitled to the appropriated funds that the [IHS] would have otherwise allocated to the federal program. 25 U.S.C. 5325(a)(1). The Act also requires IHS to pay ‘contract support costs’—funds ‘added to’ that appropriated amount to cover the costs of activities the tribe must undertake to operate the transferred program, but which either ‘normally are not carried on’ by IHS when acting as program operator, or which IHS would have ‘provided * * * from resources other than’ the appropriated funds transferred under the contract. 25 U.S.C. 5325(a)(2). Separately, contracting tribes are permitted to collect payment from third-party payors—like private insurers, Medicare, and Medicaid—when they provide health care services to covered individuals.” This case concerns tribes’ efforts to recover the overhead expenses associated with those third-party payments.

The courts of appeal held that the Act requires the IHS to pay for these overhead expenses. The Ninth Circuit concluded that the statutory language was ambiguous and construed the language in favor of tribes consistent with the Indian canon. The Ninth Circuit reasoned that the expenses were arguably covered under the Act’s definition of “contract support costs” because they were incurred as “activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract” since tribes were required to spend the third-party monies on health care. And the Ninth Circuit decided that other provisions addressing third-party income and prohibiting IHS funding for costs not “directly attributable” to the contracts between the IHS and tribes did not clearly exclude these costs. The Tenth Circuit reached the same result in a fractured decision with one judge finding the statutory scheme ambiguous and applying the Indian canon to break the tie and the other concluding that the tribe’s interpretation was the only reasonable construction giving effect to the entire statutory scheme.

Petitioner in both cases, the federal government, argues that contract support costs are available only to support “the IHS-transferred activities that the tribe assumes under the contract and for which IHS transfers its appropriated funds.” This is because the purpose of contract support costs is to bridge funding gaps for tribes to fully replicate the transferred programs, given that when the IHS provides the services instead of the tribe, it may draw on other federal resources for overhead costs. The government maintains that the statutory text and structure support its interpretation because (1) the meaning of contract support costs explicitly refers to the tribe’s activities “as a contractor”; (2) Congress treats third-party reimbursement revenue as supplemental to the tribe’s IHS contract funds and provides for this third-party revenue to have no effect one way or another on the amounts tribes receive under IHS contracts; (3) another statutory provision prohibits expending IHS funds for costs not “directly attributable” to the IHS contracts, which excludes these administrative expenses because of the lack of a sufficiently direct connection; and (4) the statutory rationale of covering funding gaps for overhead expenses does not apply to the tribes’ revenue from third parties because that revenue is itself the funding for additional health care services.

Harrow v. Department of Defense, 23-21. At issue is whether the 60-day deadline in 5 U.S.C. §7703(b)(1)(A) for seeking review in the Federal Circuit of a final decision of the Merit Systems Protection Board is jurisdictional. Petitioner Stuart Harrow, an employee of the Department of Defense, was furloughed for six days in 2013 under a Department-wide furlough order. He challenged the furlough before an administrative judge, claiming financial hardship. The Merits Systems Protection Board (MSPB) affirmed on May 11, 2022, more than five years later (the delay being attributable to the Board lacking a quorum for most of that time). Because of a change in email address, Harrow didn’t receive notice of the affirmance until August 30, 2022. He filed his petition for review of the Board’s decision with the Federal Circuit 17 days later, on September 16, 2022. Harrow proceeded pro se the entire time. Relying on its decision in Fedora v. MSPB, 848 F.3d 1013 (Fed. Cir. 2017), the Federal Circuit dismissed his petition for review on the ground that Harrow had not filed his petition within the 60-day deadline prescribed by §7703(b)(1)(A). The court held: “The timely filing of a petition from the Board’s final decision is a jurisdictional requirement and ‘not subject to equitable tolling’” (quoting Fedora, 848 F.3d at 1016).

In Fedora, the Federal Circuit observed that it had held in 1984 that the statutory deadline was “‘mandatory [and] jurisdictional.’” The court went on to rely on Bowles v. Russell, 551 U.S. 205 (2007), which held that the statutory deadline to file a notice of appeal from a district court to a court of appeals in a civil case was jurisdictional. The Federal Circuit in Fedora ruled: “Appeal periods to Article III courts, such as the period in §7703(b)(1), are controlled by the Court’s decision in Bowles.” In a subsequent case, Fed. Educ. Ass’n—Stateside Reg. v. Dep’t of Defense, Domestic Dependent Elem. & Secondary Schs., 898 F.3d 1222 (Fed. Cir. 2018), the Federal Circuit offered another reason for finding the 60-day deadline in §7703(b)(1)(A) to be jurisdictional. The court pointed to 28 U.S.C. §1295(a)(9), which gives the Federal Circuit “exclusive jurisdiction” over “an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to section 7703(b)(1) and 7703(d).” The Federal Circuit concluded that §1295(a)(9)’s reference to §7703(b)(1) meant the deadline in §7703(b)(1)(A) was jurisdictional.

Harrow argues in his petition that “Fedora’s interpretation of Bowles is inconsistent with this Court’s precedent.” He points to Bowen v. City of New York, 476 U.S. 467 (1986), which held that the 60-day deadline in 28 U.S.C. §405(g) for seeking judicial review of a final decision of the Social Security Administration to federal district court was not jurisdictional. And he observed that Bowles itself, unlike this case, “involved an appeal between Article III courts.” Harrow insists that his case is governed by the “larger framework” the Court has used in recent years to assess whether filing deadlines are jurisdictional, which “is built around a presumption against jurisdiction. Courts may treat a procedural requirement as jurisdictional only if Congress clearly states that it is.” (Quotation marks omitted.) Harrow maintains that §7703(b)(1) lacks the requisite clarity. And he counters the Federal Circuit’s reasoning in Fed. Educ. Ass’n, asserting that the “Court has made clear that ‘a nonjurisdictional provision does not metamorphose into a jurisdictional limitation by cross-referencing a jurisdictional provision.’ Fort Bend County, [Texas v. Davis, 139 S. Ct. 1843, 1851 n.8 (2019)].”

NAAG Center for Supreme Court Advocacy Staff

• Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
• Celeste Kinney, Supreme Court Fellow
• Kimber Rodgers, Supreme Court Fellow

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