February 27, 2024
Volume 31, Issue 7
This Report summarizes opinions issued on February 8 and 21, 2024 (Part I).
Part I: Opinions
McElrath v. Georgia, 22-721. The Court unanimously held that the Double Jeopardy Clause bars retrial of a defendant for a crime on which he was previously acquitted―even where the 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. In 2012, Georgia charged 18-year-old Damien McElrath with three offenses stemming from the fatal stabbing of his adoptive mother: malice murder, felony murder, and aggravated assault. At trial, the jury found him “not guilty by reason of insanity” on the malice murder charge, but found him “guilty but mentally ill” on the others. On appeal, McElrath argued that the contrasting verdicts on the murder charges were legally and logically inconsistent (“repugnant,” under Georgia law) because each required affirmative findings of mental states that could not exist simultaneously. The Georgia Supreme Court agreed with him, vacated both convictions, and remanded the case for a new trial. McElrath then argued that the Double Jeopardy clause prohibited the state from retrying him on the malice murder charge because the jury’s verdict of not guilty by reason of insanity was an acquittal. The trial court disagreed, and McElrath was convicted of that charge. The Georgia Supreme Court affirmed. It recognized that the verdict at the first trial would ordinarily constitute an acquittal for double jeopardy purposes, but held that the “repugnant” verdicts on the two murder charges had rendered them both “valueless.” Thus, the trial judge had erred in accepting them, and under state law no acquittal had occurred. In an opinion by Justice Jackson, the Court reversed and remanded.
The Court began by emphasizing its longstanding precedent that a jury’s verdict of acquittal is “inviolate”—it is not subject to review for error or for any other reason. This rule exists to preserve the jury’s “overriding responsibility . . . to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” A jury’s verdict of acquittal may reflect the jury’s judgment that the defendant is innocent, or it may be the result of compromise, compassion, leniency, or even misunderstanding. Whatever the reason, “the Double Jeopardy Clause prohibits second-guessing the reason for a jury’s acquittal.”
The Court then rejected Georgia’s contention that, under the state’s “repugnancy” rule, “no verdict under state law issued,” and thus “no acquittal took place.” The Court clarified that the question whether an acquittal has occurred for double jeopardy purposes is a question of federal law, not state law, and the not guilty verdict here met the definition of an acquittal. And despite any inconsistency in the verdicts, it was impossible to know the reason for the jury’s acquittal on the malice murder charge without “improperly delving into the jurors’ deliberations.” To invalidate the acquittal because of its apparent inconsistency with another verdict amounted to the “second guessing” that the Clause prohibits. Thus, McElrath’s acquittal for malice murder prevented his retrial on that charge.
Justice Alito issued a concurring opinion clarifying that the Court’s opinion does not express any view about a situation in which a trial judge refuses to accept inconsistent verdicts and sends the jury back to deliberate.
Murray v. UBS Securities, LLC, 22-660. The Court unanimously held that a whistleblower alleging wrongful termination under the Sarbanes-Oxley Act, 18 U.S.C. §1514A(a), must prove only that his protected activity was a “contributing factor” to his termination—not that his employer acted with “retaliatory intent.” A provision of the Sarbanes-Oxley Act, §1514A, prohibits publicly traded companies from retaliating against employees who report what they reasonably believe to be instances of fraud or securities law violations. The statute provides that no employer may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” the employee’s protected whistleblowing activity. §1514A(a). By express incorporation of the burden-shifting framework set forth in another statute, 49 U.S.C. §42121(b), if the employee proves that his protected activity was “a contributing factor” to an adverse employment action, the burden shifts to the employer to show that it would have taken the same action in the absence of the protected activity.
Petitioner Trevor Murray was a research strategist at securities firm UBS. He was fired from the firm shortly after he reported to his direct supervisor that two leaders of the firm’s trading desk had improperly pressured him to skew his reports. Murray filed a §1514A action in federal court, and his claim went to trial. The district court instructed the jury that if Murray proved that his protected activity was a contributing factor to his termination, the burden would shift to UBS to prove that it would have terminated him regardless. When the jury asked for clarification of the “contributing factor” instruction, the court responded that the jury should consider whether “anyone with . . . knowledge of [Murray’s] protected activity, because of the protected activity, affect[ed] in any way the decision to terminate [Murray’s] employment.” The jury found in Murray’s favor. On appeal, however, the Second Circuit vacated the jury’s verdict. Focusing on the text of §1514A and the phrase “discriminate . . . because of,” the court held that to make the “contributing factor” showing, an employee must prove “retaliatory intent” on the part of the employer, and that the trial court’s instructions had failed to convey this requirement. In an opinion by Justice Sotomayor, the Court reversed and remanded.
The Court defined “retaliatory intent” as “something akin to animus,” observing that this is how both the Second Circuit and UBS had defined it below. Drawing from its precedent, the Court held that the term “discriminate” within §1514A(a) means simply “differential treatment”—not treatment based on animosity or malevolence. The Court then held that to import a requirement of “retaliatory intent” into the meaning of “discriminate” would ignore the statute’s burden-shifting framework by placing too heavy a burden on the employee. Because discriminatory intent is difficult to prove and because employers “control most of the cards,” burden shifting “plays a necessary role” of “forcing the defendant to come forward with some response to the employee’s circumstantial evidence.” More generally, “[t]he burden-shifting framework provides a means of getting at intent, and Congress here has decided that the plaintiff’s burden on intent is simply to show that the protected activity was a ‘contributing factor in the unfavorable personnel action.’” And while “[s]howing that an employer acted with retaliatory animus is one way of proving that the protected activity was a contributing factor in the adverse employment action, [] it is not the only way.”
The Court rejected UBS’s argument that, without a retaliatory intent requirement, innocent employers would face liability for nonretaliatory personnel decisions. UBS posited that if an employee’s whistleblowing caused the company to lose a client, leaving the employee without any work to do and leading to the elimination of his position, the company would be liable for retaliation even without any intent to retaliate. The Court responded that the statute, properly understood, would not lead to that result. The question under the statute is whether the employer “would have retained an otherwise identical employee” who had not engaged in the protected activity. Thus, in UBS’s hypothetical, “the relevant inquiry would be whether the employer still would have fired the employee if the client had left for some other reason. If so, it will have no trouble prevailing under the statute.”
Justice Alito filed a concurring opinion, which Justice Barrett joined. He “wrote separately to explain in simple terms how the statute works and to reiterate that our rejection of an ‘animus’ requirement does not read intent out of the statute. Rather, as the Court confirms, a plaintiff must still show intent to discriminate.”
Department of Agriculture Rural Development Rural Housing Service v. Kirtz, 22-846. The Court unanimously held that the Fair Credit Reporting Act (FRCA), 15 U.S.C. §§1681n, 1681o, waives sovereign immunity against federal agencies. As alleged in his complaint, respondent Reginald Kirtz obtained and repaid in full a loan from the U.S. Department of Agriculture’s Rural Housing Service, but the agency reported his loan as past due to a credit reporting agency. The Service continued to do so after he had alerted it to the error. He sued under the FRCA, and the Government asserted sovereign immunity. The Third Circuit held that the FRCA unmistakably waives immunity. It pointed to §§1681n and 1681o, which provide to consumers a cause of action for damages against “[a]ny person” that willfully or negligently supplies false information to credit reporting agencies, and to §1681a(b), which defines “person” to include “any . . . government or governmental subdivision or agency.” In an opinion by Justice Gorsuch, the Court affirmed.
The Court began with well-settled principles of sovereign immunity: the federal government is ordinarily immune from damages suits, but Congress may waive that immunity in a statute. The Court applies a “clear statement rule” in finding such waivers, which must be “unmistakably clear in the language of the statute.” Congress may clearly indicate a waiver of sovereign immunity with an explicit provision to that effect or by creating a cause of action and “explicitly authoriz[ing] suit against a government on that claim.” Applying these principles to the FRCA, the Court quickly concluded that the causes of action in §§1681n and 1681o against “any person” for false credit reporting, combined with the statutory definition of “person” that clearly included the federal government, supplied the unmistakable language necessary to waive sovereign immunity.
The balance of the opinion responded to the Government’s unsuccessful arguments. Relying on Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), and Employees of Dept. of Public Health and Welfare of Missouri v. Dept. of Public Health & Welfare of Missouri, 411 U.S. 279 (1973), the Government argued that only a reference to governmental defendants in the cause of action provisions, rather than a general authorization of suit in federal court, could satisfy the clear-statement rule. While not overruling Atascadero or Employees, the Court distinguished these precedents as part of a “journey” to its modern, more disciplined sovereign immunity jurisprudence, which rejects any “magic words” test or specific statutory mechanism that Congress must use to waive sovereign immunity, as long as the text is clear. Atascadero, too, involved important federalism concerns about Congress waiving state sovereign immunity. The Government also pointed out several incongruities from applying the statutory definition of “person” invariably throughout the FRCA, including the prospect of unconstitutionally waiving state sovereign immunity in legislation promulgated under the Commerce Clause, and subjecting the United States to criminal liability under 15 U.S.C. §1681q. The Court agreed that these anomalous results could justify departing from the statutory definition in those circumstances, but considered them no reason to find the plain text any less “clear” or “unmistakable” in waiving federal sovereign immunity against §§1681n or 1681o suits—a result perfectly congruous with the statute’s objectives.
Great Lakes Insurance SE v. Raiders Retreat Realty Co., 22-500. The Court unanimously held that choice-of-law provisions in maritime contracts are presumptively enforceable under federal maritime law, subject to narrow exceptions inapplicable here such as repugnance to federal maritime policy. Petitioner Great Lakes, a maritime insurer, denied the claim of its policyholder, respondent Raiders Retreat Realty Co., over a damaged yacht, and sued for declaratory judgment to uphold the denial of coverage. The insurance contract contained a choice-of-law provision calling for application of New York law when no federal maritime rule applies. Raiders Retreat argued that this provision must yield to Pennsylvania’s public policy on insurance contracts, which would permit it to bring certain counterclaims under Pennsylvania consumer protection laws. The district court held that the choice of New York law was presumptively valid under federal maritime law and dismissed the counterclaims. The Third Circuit disagreed and remanded, finding that while a choice-of-law provision was presumptively valid, the forum state’s public policy might displace it. In an opinion by Justice Kavanaugh, the Court reversed.
Because the Constitution extends federal judicial power to “all Cases of admiralty and maritime Jurisdiction,” U.S. Const., Art. III, §2, cl. 1, federal courts act as common-law courts in maritime cases, fashioning a uniform body of decisional law in this federal enclave. Federal courts will, first, follow any “established” federal maritime rule; if no such rule exists, they will either create a uniform federal rule or apply state law. Relying on maritime law treatises, federal decisions on choice-of-law provisions in maritime contracts, and two relatively recent Supreme Court decisions on analogous forum-selection clauses’ enforceability, the Court confirmed that the presumptive enforceability of a maritime contract’s choice-of-law provision is an established federal maritime rule.
The Court went on to specify two exceptions that could overcome the presumption: (1) when the chosen law conflicts with a federal statute or established federal maritime policy, and (2) when the parties lacked a “reasonable basis” for choosing the particular jurisdiction’s law. The Court noted that even without any ties to the chosen jurisdiction, parties might reasonably choose a jurisdiction known for its well developed and well regarded body of law, like New York. But the Court rejected Raiders Retreat’s state-law public-policy exception, which relied on the much criticized decision in Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310 (1955). The Court observed that Wilburn Boat did not concern a choice-of-law provision and noted subsequent cases that limited its holding to its narrow circumstances. Without further narrowing Wilburn Boat, the Court held simply that a state-law public-policy exception would defeat the federal maritime policy of uniformity in federal maritime law and predictability in maritime contracting.
Justice Thomas wrote a concurrence emphasizing Wilburn Boat’s flaws and limited status. He wrote that “[t]his Court has already retreated from Wilburn Boat’s unsound holding, limiting it to local disputes. Litigants and courts applying Wilburn Boat in the future should not ignore these developments.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Theodore McCombs, Supreme Court Fellow
- Brian Lanni, Supreme Court Fellow
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.
Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
