This Report summarizes opinions issued on March 15 and 19, 2024 (Part I).
Opinions
Lindke v. Freed, 22-611. The Court unanimously held that a public official who prevents someone from commenting on his social media page engages in state action under §1983 only if the official (1) had actual authority to speak on the state’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts. James Freed maintained a public Facebook page where he posted primarily about his personal life, but also posted about his job as city manager of Port Huron, Michigan. He shared news about city developments, highlighted communications from other city officials, and occasionally solicited city-related feedback from the public. During the COVID-19 pandemic, Freed made various posts about how he and the city were responding to it. Some of Freed’s posts drew the ire of city resident Kevin Lindke, who began leaving comments on Freed’s posts expressing his displeasure with the city’s response to the pandemic. Freed initially deleted some of Lindke’s comments, but eventually blocked him, leaving Lindke able to see Freed’s posts but unable to comment on them. Lindke sued under §1983, alleging that Freed’s Facebook page was a public forum, that Lindke had a First Amendment right to comment on it, and that Freed had engaged in impermissible viewpoint discrimination by deleting his comments and blocking him. The district court granted summary judgment to Freed on the grounds that Freed had operated his Facebook page only in his private capacity. The Sixth Circuit affirmed, noting that the caselaw was “murky” as to when a state official acts personally versus officially, but holding that Freed’s Facebook posts had not been official action because his job as city manager did not require him to maintain his Facebook account, he did not use state resources or staff to run it, and the account belonged to Freed rather than to his office. This approach set the Sixth Circuit apart from the approach taken by the Second and Ninth Circuits, which focused less on the official’s authority and more on whether the account’s appearance and content looked official. In an opinion by Justice Barrett, the Court vacated and remanded.
The Court fashioned a two-part test grounded in the text of §1983, which provides a cause of action against a person who, “under color of any statute, ordinance, regulation, custom, or usage, of any State,” deprives someone of a federal constitutional or statutory right. The phrase “under color of” makes clear that §1983 is “designed as a protection against acts attributable to a State, not those of a private person.” The first prong of the Court’s test—that the official had actual authority to speak on the state’s behalf—reflects the “bedrock requirement” that the conduct allegedly causing the deprivation of a federal right be “fairly attributable to the state.” The question under this prong is not whether the official’s social media announcements “could fit within [his] job description but whether making such announcements is actually part of the job that the State entrusted the official to do.” And the official’s authority in this regard must come from one of the sources enumerated in the language of §1983. Thus, to satisfy this prong, “a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State,” and that authority “must extend to speech of the sort that caused the alleged rights deprivation.”
The Court’s second prong—that the official be purporting to exercise his state authority when speaking in the relevant social media posts—recognizes that public officials are also private citizens with a constitutional right to speak about public affairs in their personal capacity. In the social media context, this inquiry is “a fact-specific undertaking in which the post’s content and function are the most important considerations.” The Court emphasized that a state official “does not necessarily purport to exercise his authority simply by posting about a matter within it.” For example, a post that expressly “invokes state authority to make an announcement not available elsewhere,” such as an announcement that parking enforcement is suspended pursuant to a city ordinance, would be an official act. But a post that simply “repeats or shares otherwise available information,” such as a link to the parking announcement on the city’s webpage, would more likely be personal. Also relevant at this step is the nature of the social media technology at issue. For example, where a state official blocks a user on Facebook entirely, rather than deleting one of the user’s comments, the court must consider whether the official had engaged in state action with respect to any post on the official’s page on which the complaining party wished to comment. The Court vacated the judgment of the Sixth Circuit and remanded for further proceedings consistent with its newly elaborated test.
O’Connor-Ratcliff v. Garnier, 22-324. In this related case, the Court reviewed the Ninth Circuit’s application of its “appearance and content” test to a suit involving the public social media pages of two school board trustees. Applying that test, the Ninth Circuit held that petitioners had engaged in state action. Because the Ninth Circuit’s approach was inconsistent with the test elaborated in Lindke, the Court—through a brief per curiam opinion—vacated the Ninth Circuit judgment and remanded.
Pulsifer v. United States, 22-340. By a 6-3 vote, the Court held that a defendant is eligible for relief from a mandatory minimum sentence under the federal Sentencing Guidelines’ “safety valve” provision only if he satisfies each of the three conditions in 18 U.S.C. §3553(f)(1). Subparagraph (f)(1) is one of five criteria that a defendant convicted of certain drug offenses must satisfy to be sentenced without regard to a statutory minimum sentence. It relates to a defendant’s criminal history “points”—numbers the Guidelines assign based on the defendant’s prior convictions and the length of the associated sentences. Subparagraph (f)(1) is satisfied if the defendant “does not have”: (A) more than four total criminal history points, not counting any 1-point offense; (B) a prior 3-point offense; “and” (C) a prior “2-point violent offense.” The case turns on whether the negative “does not have” implicitly distributes to all three conditions, such that a defendant must not have (A), must not have (B), and must not have (C) to be eligible for safety-valve relief, or whether only those defendants with the combination of (A), (B), and (C) are rendered ineligible by (f)(1).
Mark Pulsifer pleaded guilty in 2020 to distributing 50 grams of methamphetamine, which would carry a 15-year mandatory minimum sentence unless he could satisfy the safety valve provision. But he had two prior 3-point offense convictions on his record, meaning he failed conditions (A) and (B). Under his reading, though, because his record lacked any 2-point violent offense, he “does not have” (A), (B), and (C), i.e., the disqualifying combination of all three conditions. The Eighth Circuit rejected that reading and adopted the Government’s reading—that each of the conditions are disqualifying—deepening a circuit split over how to read (f)(1). In an opinion by Justice Kagan, the Court affirmed the Eighth Circuit and held that the defendant must not have four criminal history points (excluding 1-point offenses), must not have a 3-point offense, and must not have a 2-point violent offense to remain eligible for safety-valve relief under (f)(1).
The Court identified two grammatically plausible ways of reading the conjunction “and” in (f)(1). It could group conditions (A), (B), and (C) into a “full package,” such that, using “some grade-school math notation,” (f)(1) asks whether “the defendant does not have (A, B, and C).” Or it could reflect a pervasive construction in everyday speech that distributes introductory words across a list of terms, each of them modified by those preceding words, just as “Cases and Controversies arising under . . .” distributes to “this Constitution,” “the Laws of the United States,” and “Treaties” in Article III, §2. Verb phrases framed in the negative could deploy this distributive construction too—one would understand a hospital’s instruction not to “eat, drink, and smoke” before a procedure to be an instruction not to eat, not to drink, and not to smoke. Because both Pulsifer’s reading and the Government’s distributive reading were grammatically sound, the Court found it necessary to look at the statute’s context to interpret it, not simply Congress’s choice of the term “and” over “or.”
In consulting that context, the Court gave significant weight to the canon against surplusage. The Court agreed with the Government that a defendant with a 3-point offense and a 2-point violent offense will always have a criminal history score of 5 or higher, such that a defendant fails condition (A) whenever he fails (B) and (C). That leaves no work for (A) to do in the statute under Pulsifer’s reading. The Court also found that Pulsifer’s reading would “make a hash of the scheme Congress devised” to sort serious and less serious criminal histories in determining safety-valve eligibility. Pulsifer’s reading would mean a defendant with 15 points from five prior 3-point offenses would be eligible for safety-valve relief, simply because he happens not to have a 2-point violent offense on his record, while the defendant with one 3-point offense and one 2-point violent offense would not be eligible. Because only the Government’s distributive reading properly performed the sorting function of (f)(1), and because it avoided the surplusage that Pulsifer’s reading created, context supported that distributive reading.
The Court rejected Pulsifer’s remaining arguments based on the consistent usage and meaningful variation canons, the policy of the First Step Act, and the rule of lenity. Pulsifer argued that the use of “and” and “or” in surrounding provisions revealed a pattern consistent with his reading of “and” in (f)(1). The Court disagreed and expressed doubt that the two canons he invoked—essentially, a presumption that like terms express like concepts and different terms express different concepts—could shed much light on “ubiquitous” and “context-dependent” terms like “and” and “or.” The Court noted that the Government’s reading, consistent with the First Step Act’s purpose, expanded the set of defendants eligible for safety-valve relief, even if Pulsifer’s reading went further. The First Step Act reflected a balanced objective of curtailing but not eliminating mandatory minimum sentences. And because the Court held that the statute was unambiguous, once statutory context clarified the way to correctly read “and,” it rejected application of the rule of lenity.
Justice Gorsuch dissented, joined by Justices Sotomayor and Jackson. In the dissent’s view, only Pulsifer’s reading was grammatically plausible, because the distributive ambiguity arose only if there were “several antecedents” and “several consequents.” A reference to “charitable and educational institutions” (multiple antecedents and multiple consequents) might plausibly include an institution that is either charitable or educational, or only an institution that is both; but the term “a charitable and educational institution” (multiple antecedents and single consequent) could refer only to an institution that is both charitable and educational. So because subparagraph (f)(1) referred to “a defendant,” there could be no distributive ambiguity, and the provision read naturally as “a defendant may receive guidelines sentencing unless he has trait A, trait B, together with trait C.” The dissent echoed Pulsifer’s consistent usage argument in pointing to neighboring provisions that carefully distribute antecedents to avoid ambiguity and use “and” and “or” in the same natural sense as Pulsifer’s reading. It resolved the Government’s surplusage objection by arguing that certain offenses could be 2- or 3-point offenses while adding no points to the criminal history score under the Guidelines (e.g., sufficiently old offenses), such that a defendant might fail conditions (B) and (C) without necessarily failing (A). Finally, it argued that any lingering ambiguity should be resolved to “favor[] liberty” under the rule of lenity.
FBI v. Fikre, 22-1178. The Court unanimously held, in a U.S. citizen’s challenge to his placement on the No Fly List, that the Government had failed to show the case was moot where it had removed the citizen from the No Fly List and submitted a declaration stating he would not be placed back on the List in the future “based on currently available information.” Yonas Fikre alleges he was placed on the No Fly List in 2009 while on a business trip in Sudan, where FBI agents pressured him to become an informant and report on the mosque he attended in Portland, Oregon. He sued while still unable to fly home, alleging that the FBI’s procedures for placing him on the No Fly List violated due process guarantees and that the FBI had listed him for constitutionally impermissible reasons, including his race, national origin, and religious beliefs. In 2016, the Government notified Fikre that it had removed him from the No Fly List and argued to the district court that Fikre’s lawsuit was accordingly moot. While the district court agreed, the Ninth Circuit reversed, finding that Fikre’s mere removal from the No Fly List could not carry the Government’s burden under the voluntary cessation doctrine. On remand, the FBI submitted a declaration from an FBI official asserting that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” Again the district court found the challenge was moot, but the Ninth Circuit reversed. In the Ninth Circuit’s view, because the FBI had never explained what conduct had led to Fikre’s placement on the No Fly List, the FBI’s declaration could not reasonably establish that Fikre would not land back on the list again for the same or similar allegedly improper reasons. In an opinion by Justice Gorsuch, the Court affirmed.
The Court restated the uncontested law of mootness. Under Article III, federal courts can and must resolve live controversies and refuse to entertain moot ones. Under the “voluntary cessation” doctrine, a party that suspends its challenged conduct must carry a “formidable burden” to show that “no reasonable expectation” remains that it will “return to its old ways” after dismissal. This rule applies with equal force to government defendants. Taking Fikre’s allegations as true at this stage, the Court found that the FBI had not met this burden. While the submitted declaration might show that his past actions would not land him back on the No Fly List after dismissal, it shed no light on whether attending a particular mosque or rebuffing new overtures to serve as an informant would get Fikre relisted. The Court likewise found insufficient two additional facts the FBI had highlighted: that it had continued litigating with Fikre after his delisting, and that Fikre “presumably” had continued to attend mosques since that delisting without returning to the List. “In all cases,” the Court wrote, “it is the defendant’s ‘burden to establish’ that it cannot reasonably be expected to resume its challenged conduct—whether the suit happens to be new or long lingering, and whether the challenged conduct might recur immediately or later at some more propitious moment.” Finally, the Court rejected the FBI’s argument that the Ninth Circuit’s decision required it to repudiate its past conduct on the merits to moot the case. Repudiation of past conduct, the Court stated, might help demonstrate that such conduct was unlikely to recur but was not necessary; it is only what any repudiation shows about “the potential for a defendant’s future conduct” that matters.
Justice Alito, joined by Justice Kavanaugh, concurred in the opinion, but wrote to emphasize that the Court’s decision would not require the Government to disclose classified information to Fikre, his attorney, or a court to show that the case is moot. Noting the national security sensitivities of the case, the concurrence asserted that non-classified FBI information or discovery obtained from the plaintiff could be sufficient here to show mootness under the voluntary cessation doctrine.
Wilkinson v. Garland, 22-666. By a 5-1-3 vote, the Court held that the federal courts of appeals have jurisdiction to review an immigration judge’s hardship determination under 8 U.S.C. §1229b(b)(1)(D). Section 1229b gives immigration judges (IJs) discretionary authority to cancel the removal of a noncitizen and permit the noncitizen to remain in the country lawfully if certain statutory criteria are met. This is a two-step process: First, the IJ must determine whether the noncitizen is eligible for cancellation; if so, the IJ must then decide whether to exercise discretion to cancel the order of removal. To be eligible at the first step, a noncitizen must establish, among other things, that removal would result in “exceptional and extremely unusual hardship to [the noncitizen’s] spouse, parent, or child” who is a citizen or lawful permanent resident. §1229b(b)(1)(D). In making this determination, the IJ must consider a range of factors, for example, the age and health of the qualifying family member, and must apply the legal standard to those factors in the aggregate. A separate statute—§1252(a)—grants federal courts limited jurisdiction to review final orders of removal. Under the provisions of this statute, courts have jurisdiction to review “constitutional claims or questions of law,” §1252(a)(2)(D), but they lack jurisdiction to review “judgment[s] regarding the granting of [discretionary] relief under section . . . 1229b.” §1252(a)(2)(B)(i). The federal circuit courts have split on the question whether an IJ’s hardship determination under §1229b(b)(1)(D) is a question of law or a discretionary judgment.
Petitioner Situ Kamu Wilkinson was detained by Immigration and Customs Enforcement after remaining in the United States beyond the expiration of his tourist visa. He applied for cancellation of removal under §1229b(b)(1)(D) based on hardship to his 7-year-old, U.S.-born son, who suffers from a serious medical condition and relies on Wilkinson for support. An IJ ruled that Wilkinson had not made the requisite showing of hardship and denied his application without reaching the second, discretionary step of the process. Wilkinson appealed, but the Third Circuit held that it lacked jurisdiction to review the immigration judge’s hardship determination. In an opinion by Justice Sotomayor, the Court reversed in part, vacated in part, and remanded.
The Court’s analysis centered on two of its prior decisions: Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), and Patel v. Garland, 596 U.S. 328 (2022). In Guerrero-Lasprilla, the Court held that the statutory phrase “questions of law” includes “the application of a legal standard to undisputed or established facts,” and that petitions raising “mixed questions of law and fact” are therefore “always reviewable as questions of law under §1252(a)(2)(D).” In reaching this result, the Court had rejected the Government’s arguments that the phrase “question of law” should be limited to purely legal questions or mixed questions that are “primarily” legal. In Patel, the Court held that “questions of fact underlying denials of discretionary relief are unreviewable under both §1252(a)(2)(B)(i) and §1252(a)(2)(D).” At issue in Patel was not a mixed question, but a purely factual one—whether a noncitizen’s false statement on his driver’s license application had been a mistake or an act of deception.
Synthesizing these two prior decisions, the Court held here that the question whether an IJ correctly applied the statutory hardship standard to a given set of facts is a mixed question of law and fact. Under Guerrero-Lasprilla, then, it is a reviewable “question of law,” and under Patel, it is not purely a question of fact. The Court rejected the Government’s arguments that the statutory hardship standard is not a legal one, and that Guerrero-Lasprilla should be limited solely to judicially created standards, as attempts to “relitigate Guerrero-Lasprilla” and prior decisions that had already defined the application of a statutory standard as a mixed question of law and fact. “That a mixed question requires a court to immerse itself in facts does not transform the question into one of fact. It simply suggests a more deferential standard of review.”
The Court rejected the Government’s analogy to Williamsport Wire Rope Co. v. United States, 277 U.S. 551 (1928), where the Court had held that an “exceptional hardship” determination by an IRS commissioner, under a provision that permitted the commissioner to “act, for the most part, without justification,” was a question of administrative discretion not subject to judicial review. The Court reasoned that Williamsport has “no relevance to the question presented here” because an IJ applying the §1229b(b)(1)(D) hardship standard “must create an extensive record of his decisionmaking,” and because Williamsport “did not evaluate the term ‘exceptional hardship’ against the background of a jurisdiction-restoring provision like §1252(a)(2)(D).” The Court declined the Government’s invitation to consider and give weight to the precursor to the statute governing cancellation of removal, which made relief available only if deportation would, “in the opinion of the Attorney General,” result in exceptional hardship. The Court found the Government’s “request to reinstate statutory language removed by Congress” to be “particularly unavailing” because in other provisions governing other forms of discretionary relief Congress had chosen to retain similar language vesting the determination with the Attorney General.
Finally, the Court clarified that its holding “does not render §1252(a)(2)’s jurisdiction-stripping provisions meaningless.” Rather, those provisions still operate to exclude “agency fact-finding” from review, for example, “an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides.” Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review, and “[b]ecause this mixed question is primarily factual, that review is deferential.”
Justice Jackson wrote a separate opinion concurring in the judgment. She expressed skepticism that Congress intended the phrase “questions of law” as used in §1252(a)(2)(D) to “sweep so broadly,” but reasoned that stare decisis compelled the court to follow its holding in Guerrero-Lasprilla.
Chief Justice Roberts wrote a dissenting opinion, explaining that he had joined the majority in Guerrero-Lasprilla and stood by its holding, but the majority in this case had taken it too far. Justice Alito filed a separate dissenting opinion in which Chief Justice Roberts and Justice Thomas joined. Justice Alito wrote that Guerrero-Lasprilla was wrongly decided, and that the decision in this case took its holding “to the outer limits of its possible reach.” Congress had initially enacted §1252(a)(2)(B)(i) without the provision giving courts jurisdiction to review “questions of law,” and added this language after the Court, in INS v. St. Cyr, 533 U.S. 289, 300 (2001), had flagged a “substantial constitutional questio[n]” that would arise if Congress were to strip federal habeas courts of jurisdiction to review “pure question[s] of law.” This, in the dissent’s view, limited the meaning of “questions of law” as used in the statute to questions that are purely legal. And the question “[w]hether ‘removal would result in exceptional and extremely unusual hardship’ to the ‘spouse, parent, or child’ of the alien subject to removal is overwhelmingly a question of fact.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Theodore McCombs, Supreme Court Fellow
- Brian Lanni, Supreme Court Fellow
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