analysis – Page 7

Argument analysis: Justices close out 2018 term with a spirited discussion about sanctions for violating bankruptcy discharge

April 25, 2019 by admin Leave a Comment

It was a far cry from the census case or deep disagreement about proper methods of capital punishment, but the justices heard oral argument yesterday afternoon in Taggart v. Lorenzen, concluding the argument calendars for October Term 2018.

As explained in my preview, this case involves the discharge that a debtor receives at the conclusion of a bankruptcy proceeding, which excuses the debtor’s obligation to pay the debts that the discharge covers and bars creditors from later efforts to collect those debts. A creditor that attempts to collect a debt that has been discharged in bankruptcy faces the risk that the bankruptcy court will hold the creditor in contempt. Remarkably, the Supreme Court has never addressed the standard for deciding when a contempt sanction is appropriate. Taggart presents that question, asking whether a creditor can be held in contempt for violating the discharge even if it believed in good faith that the discharge did not apply to its efforts to collect the debt.

The particular dispute here is quite involved, but for purposes of the argument a few details should suffice. All agree that the creditors attempted to enforce a debt against Bradley Taggart after his bankruptcy; the justification is a lower-court doctrine that when a debtor “returns to the fray” of litigation with the creditor, the discharge no longer applies. In this case, the state courts in which the litigation occurred concluded that the “return to the fray” doctrine applied, which would make the creditors’ activity permissible. The federal courts, though, ultimately disagreed: The U.S. Court of Appeals for the 9th Circuit concluded that the creditors’ activity was wrongful, but that the creditors could not be held in contempt because they believed in good faith that the discharge did not apply.

From the moment Daniel Geyser, representing Taggart, began his argument, discussion was dominated by a group of justices who could not accept the idea that a court could hold a creditor in contempt if the creditor reasonably believed its conduct did not violate the discharge. Justice Brett Kavanaugh made the point most emphatically and at greatest length. As he put it:

[T]he statute says that the [discharge] order operates as an injunction, and the traditional rules of contempt for injunctions suggest that a reasonable, good faith belief that you weren’t violating the order is sufficient. So why shouldn’t that just follow squarely from the text referring to “operates like an injunction.” ….

[I]t’s a severe sanction. So before someone’s found to be liable … you would want some clear intent, and if they had a reasonable, good faith belief that they weren’t violating it, that’s not usually something that we’d say “tough” and still impose the sanctions.

That sentiment was expressed widely across the bench. Justice Samuel Alito, for example, asked Geyser if he could offer any “justification for holding somebody in contempt for doing something that two state courts have held was not a violation?” Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch seemed to react in the same way.

That is not to say the argument was entirely one-sided. There was a lone voice on the other side of the matter – Chief Justice John Roberts, who seemed to see the case entirely from the perspective of the bankrupt unable to get free of creditors even after a bankruptcy proceeding. For Roberts, it made sense that a creditor pursuing a bankrupt should seek guidance from the bankruptcy court if it has any doubt about the coverage of the discharge. For example, he interrupted the argument of Assistant to the Solicitor General Sopan Joshi, arguing for the federal government as a “friend of the court” on behalf of neither party, to comment:

I appreciate that you’re representing the largest creditor in the country, but I don’t see why it is so hard for a creditor, if he has any doubt, to go … get a clean ticket, a clean bill of health, instead of … going after the newly released debtor who … is supposed to get a fresh start and all of a sudden there are the same people who were … hounding him before.

Again, talking with Nicole Saharsky, who represented the creditors, Roberts acknowledged that the “safe-harbor” rule he supported would “have some chilling effect on creditors, and it doesn’t surprise me that creditors don’t like that.” But that did not trouble him at all, he explained, because of the salutary effects of the rule: “[I]t seems to me perfectly reasonable to have them bear the risk – have them make a careful choice.”

After the argument, several things seem clear. For one thing, it seems clear that none of the justices would affirm the reasoning of the 9th Circuit that a creditor is protected as long as it has a subjective belief that the discharge does not apply, even if that belief is unreasonable. The justices spent a long time debating what the standard for a “reasonable” belief should be, and that seems likely to be the approach the majority will take, which presumably would result in a remand for the court of appeals to apply the new standard.

Also, there is a pretty good chance the court will be divided. Roberts could simply go along with a majority, but his strong views at argument suggest he would make the effort to document a dissent.

Editor’s Note: Analysis based on transcript of oral argument.

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Opinion analysis: The meaning of consent to class arbitration

April 25, 2019 by admin Leave a Comment

Of the three arbitration cases on the Supreme Court’s docket this term, two were decided unanimously in decisions issued relatively soon after argument. That trend did not hold for Lamps Plus v. Varela: The court split 5-4, with the more conservative justices rejecting the application of the common-law rule that ambiguous contracts are construed against their drafter when the contract in question is an arbitration contract and the ambiguity concerns whether plaintiff-employees may arbitrate on a class basis.

The underlying claim in Lamps Plus arose from a data breach that led to the disclosure of about 1,300 employees’ tax information. Employee Frank Varela filed a class action in federal district court, and Lamps Plus moved to compel individual arbitration based on the arbitration agreement that Varela signed when he started at the company. The district court agreed that Varela could bring his claim only in arbitration, but also held that he could arbitrate on a class-wide basis; it then dismissed his complaint. The U.S. Court of Appeals for the 9th Circuit affirmed, concluding that the arbitration agreement was ambiguous about whether it allowed class arbitration, and then applying the contra proferentem doctrine – a common-law rule that contract ambiguities should be construed against the party that drafted the contract, especially when the other party did not have an opportunity to help with the drafting.

Although the main issue in the case was whether the lower-court’s approach to construing the arbitration agreement was proper, there was also a preliminary question about whether the 9th Circuit, and by extension the Supreme Court, had jurisdiction over Lamps Plus’ appeal. Writing for the majority, Chief Justice John Roberts first held that the 9th Circuit had jurisdiction under a provision of the Federal Arbitration Act that allows a party to appeal “a final decision with respect to an arbitration.” That was so even though Lamps Plus both moved for arbitration and appealed the order granting it; usually, a party cannot appeal from a win, but Roberts wrote that the district court’s order was not really a win because “Lamps Plus did not secure the relief it requested” – individual, rather than class-wide, arbitration.

Turning to the meaning of Lamps Plus’ arbitration agreement, Roberts first invoked three principles at the core of the court’s modern arbitration caselaw. First, parties must agree to arbitrate, and the FAA requires courts to enforce arbitration agreements according to their terms. Second, courts usually interpret arbitration agreements by applying state contract law, but the FAA pre-empts state law that treats arbitration contracts differently from other contracts. Third, there is a “‘fundamental’ difference between class arbitration and the individualized form of arbitration envisioned by the FAA.”

The last of those principles was key to the court’s 2010 decision in Stolt-Nielsen v. AnimalFeeds Int’l Corp., which held that arbitrators cannot order class arbitration when the arbitration agreement is silent as to the use of class procedures. Relying on Stolt-Nielsen, the Lamps Plus majority held that ambiguity, like silence, “does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice the principal advantage of arbitration.’” This conclusion relied in part on the majority’s skepticism about class arbitration, which the majority deemed more expensive and cumbersome than individual arbitration – a conclusion that is uncontroversial if one compares Varela’s own individual arbitration to class arbitration, but which is not so clear if one instead considers the expense and effort involved in 1,300 individual arbitrations as compared to one class arbitration involving 1,300 class members. (Of course, not all 1,300 potential class members will pursue individual arbitration.) Additionally, the court rejected the application of contra proferentem, both because it viewed that doctrine as a reflection of “public policy” rather than of the contracting parties’ intentions, and because of the doctrine’s potential to undermine individual arbitration.

In addition to Roberts’ opinion for the court, Justice Clarence Thomas filed a concurring opinion, and each of the four more liberal justices wrote a dissent. Thomas first suggested that Lamps Plus’ arbitration agreement unambiguously required individual arbitration, and he then questioned the court’s approach to implied pre-emption. Thomas nonetheless joined Roberts’ opinion “because it correctly applies our FAA precedents.”

Justice Elena Kagan wrote the main dissent. After positing that Lamps Plus’ arbitration agreement unambiguously allowed class arbitration, Kagan offered a full-throated defense of contra proferentem, focusing on the role that the FAA preserves for state contract law that does not “discriminate[] against arbitration agreements.” She reasoned that resolving ambiguities against a contract’s drafter is “as even-handed as contract rules come,” because, for example, Lamps Plus’ contract could have been interpreted as calling for individual arbitration either if Varela had drafted the contract or if it were Varela who sought individual arbitration. Further, she added that, as the drafter of the contract, Lamps Plus could have avoided class arbitration simply by being clear about its intentions.

Justice Sonia Sotomayor’s dissent criticized the majority for failing to conclude that the arbitration agreement was actually ambiguous before addressing how ambiguity should be resolved. And Justice Ruth Bader Ginsburg took aim at the majority’s view that employees’ or consumers’ consent to arbitrate is meaningful when it is required as a condition of being hired or engaging in a transaction. The resulting proliferation of arbitration agreements, Ginsburg continued, has eroded workers’ and consumers’ abilities to vindicate their rights. Finally, Justice Stephen Breyer focused on the majority’s jurisdictional holding, writing that when a district court orders arbitration, “there should be no appellate interference with the arbitral process unless and until that process has run its course.”

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Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon

April 24, 2019 by admin Leave a Comment

Tuesday afternoon’s oral argument in Rehaif v. United States was not, as a formal matter, about the well-known “felon-in-possession” provision of 18 U.S.C. §§ 922(g) and 924(a)(2). It was supposed to be about a much less commonly charged provision, which makes it a federal crime to possess a firearm while in the United States illegally. On Tuesday, however, the justices seemed to operate on the premise that, if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily also require the government to prove that an ex-con with a firearm knew he was an ex-con.

A reversal of Hamid Rehaif’s conviction, then, would appear to have significant practical consequences. At argument, as expected, Justice Neil Gorsuch signaled his adherence to the view he held while on the U.S. Court of Appeals for the 10th Circuit — that the government is required to prove the defendant’s knowledge of his culpable status, whether as an unauthorized immigrant or an ex-con. Justice Brett Kavanaugh signaled that he too holds that view. Only Justice Samuel Alito showed clear agreement with the government’s position that such status elements should be treated the same as jurisdictional elements, which require no mens rea, or criminal intent.

Petitioner Hamid Mohamed Ahmed Ali Rehaif entered the United States on an F-1 student visa to study at the Florida Institute of Technology in August 2013. Under immigration law, he retained his student-visa status only so long as he remained enrolled as a full-time student. Eventually, he failed most of his classes, and the school academically dismissed him. Instead of leaving the country, however, he took up residence in a Florida hotel. One day he went to a nearby shooting range, renting a Glock to shoot for an hour and buying ammunition.

Rehaif was eventually convicted on two counts of possessing a firearm while being in the United States illegally, in violation of Sections 922(g)(5)(A) and 924(a)(2). The district court had refused to instruct the jury that the government was required to prove that Rehaif knew he was in the country illegally. The U.S. Court of Appeals for the 11th Circuit affirmed.

Assistant to the Solicitor General Allon Kedem faced withering fire from Gorsuch. “[H]ere we’re talking about the only thing that separates not just innocent conduct but constitutionally protected conduct … knowledge of the status, that I am a felon. As you well know, I had a case where the fellow was told by the judge that he was not a felon when he was convicted. And yet he was put in jail for 10 years afterwards because the government didn’t have to prove that he knew his status.” (Gorsuch was referring to United States v. Games-Perez, a 10th Circuit case from 2012.)

Later, Gorsuch pressed Kedem on Kedem’s claim that practical consequences weighed against requiring the government to prove the defendant’s knowledge of his status, given that such proof will be easy in the vast majority of cases. “There is a small but significant number of cases where, gee, it’s really going to be a colorable question and, therefore, a burden on the government,” said Gorsuch.

“So our argument is not that it’s a burden on the government,” replied Kedem. “Sometimes it will be, but usually it won’t. And, in any event, we’re not asking for your sympathy. Our point is that you risk shifting the focus of all felon-in-possession trials out of a concern for a category of cases that, if they exist, is extraordinarily small.”

“That does seem like you’re asking for our sympathy, with all respect,” said Gorsuch. “What is the practical consequence argument then if it isn’t the burden on the government?”

“It’s that it will be deeply confusing to the jury,” said Kedem. “Imagine you are a juror and you are at a felon-in-possession trial. And all of a sudden the judge, the witnesses, the lawyers, all start talking about a prior crime totally unrelated. And under the best of circumstances that sort of ‘trial within a trial’ can be deeply confusing.”

Kedem had an equally difficult time with Kavanaugh. “How is the defendant blameworthy if he or she truly thought that the status was lawful and then possesses the gun? Just focus on that question,” said Kavanaugh. “How is that person blameworthy?”

Kedem replied, “So I’m not sure that they are, but I think the more –”

“Well, okay, let me stop you there,” Kavanaugh broke in. “Then why should that person be subject to 10 years in prison?” Kedem responded with a question of his own, namely, whether Congress would have concerned itself with that small subset of cases. Kavanaugh agreed that the subset was small, but was not satisfied.

“[B]ut there are going to be those cases,” he continued, “the delta of cases where the defendant truly was mistaken about his or her status … and yet you would put that person in prison for up to 10 years.”

Justice Ruth Bader Ginsburg was clearly focused on the collateral effects of a reversal. Not far into the argument of Rehaif’s advocate, Rosemary Cakmis, Ginsburg said, “[A]s a practical matter I think I’m right that most of these possession cases are felon-in-possession cases.”

When Cakmis agreed, Ginsburg said, “And if that’s right and you prevail, then how many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said … I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.”

“[H]abeas is not nearly as simple to navigate as a criminal proceeding,” Cakmis responded. “And once you reach the land of habeas, you have cause and prejudice that have to be shown for procedural default. It’s even harsher than harmless error when you get into the habeas world. And so the number of people who might want to ask for relief might be more, but there is only a small but significant number of people out there who actually had a genuine dispute.”

Ginsburg asked essentially the same question of the government’s lawyer, Kedem. “I would like to know your view of — let’s just say we would reverse — the collateral review issue that I asked about.”

“So the government’s view is that under Bousley [v. United States], the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status,” replied Kedem.

Although the felon-in-possession provision dominated Tuesday’s hearing because the government uses it so much more often than the unauthorized-immigrant provision, there was some discussion of a politically salient hypothetical involving immigrants. When Alito asked Cakmis whether she really thought Congress meant to exempt unauthorized immigrants who “had every reason to know” they were in the country illegally but somehow still did not actually know, Cakmis brought up the DREAM Act.

“[T]ake, for example, the dreamers, children who come into this country with their parents illegally, live here all their lives and think they’re law-abiding citizens, only to find out later in adulthood that they never were law-abiding citizens. … [I]f that person who had no idea he was here illegally or unlawfully possessed a gun, he would be subject to 10 years in prison,” she said.

Almost as soon as Kedem began his argument, Justice Sonia Sotomayor brought that hypothetical right back up. “What do you do with that dreamer example of a student who got a visa from a certified institution and all of a sudden, unbeknownst to him or her, the school is decertified? And so they’re no longer in status. … [D]o you think Congress intended to include those innocent people as well?”

“I acknowledge that application of the government’s test in certain hypothetical examples that we could come up with would produce harsh results,” Kedem stated. “And perhaps you’re not comforted by the fact that this provision is applied many thousands of times every year, and no one has been able to identify an example like the type you’ve raised or anything close to it.”

Kedem later responded in much the same way to Justice Stephen Breyer’s hypothetical of a student who unwittingly overstayed his visa and yet possessed a gun. “Respectfully, Justice Breyer, if you reinterpret the mens rea for every 922(g) offense out of concern for that hypothetical category of people, that is worse than letting the tail wag the dog. That is letting the tail wag the dog where the dog is massive and the tail is tiny and largely hypothetical.”

Editor’s Note: Analysis based on transcript of oral argument.

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Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

April 23, 2019 by admin Leave a Comment

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 minutes of often tense debate, the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.

Solicitor General Noel G. Francisco at lectern (Art Lien)

Ross announced the decision to include the citizenship question last year. The question is not entirely new to the census: It was generally included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000.

But a group of state and local governments, along with several civil rights groups, went to federal court to challenge Ross’ decision. In January, the court ruled that the decision violated the federal law governing administrative agencies and barred the government from including the question on the upcoming census. The Supreme Court agreed to take up the case right away, without waiting for a federal appeals court to weigh in, to resolve the issue once and for all by June, when the government needs to start printing millions of census questionnaires.

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

Solicitor General Noel G. Francisco (Art Lien)

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

Sotomayor was again skeptical, telling Francisco that the government’s rationale amounted to plucking out one sentence from the record and relying on it, while ignoring everything else that suggests that adding the question would reduce the accuracy of the data.

Justice Elena Kagan echoed Sotomayor’s concerns. The secretary of commerce can deviate from the Census Bureau’s experts, she conceded, but he needs a reason to do so. “I don’t see any reasons,” Kagan told Francisco. Instead, Kagan continued, it seemed more as though the Department of Justice’s need for the citizenship data was “contrived”; lots of civil rights officials at the Department of Justice, Kagan observed, have never asked for this data.

Arguing on behalf of the state and local governments challenging the decision to add the citizenship question, New York Solicitor General Barbara Underwood began by complaining that Ross had decided to add the citizenship question even though the documents on which he relied to make that decision contained strong evidence that doing so would lead to an inaccurate count. All the reasons that Ross has cited to justify adding the question, Underwood asserted, are false.

New York Solicitor General Barbara D. Underwood (Art Lien)

Chief Justice John Roberts pushed back, asking Underwood whether having the citizenship data wouldn’t affect enforcement of the federal Voting Rights Act. Isn’t this critical data, Roberts asked?

Justice Brett Kavanaugh noted that the United Nations recommends including a citizenship question. Not only has the United States often asked the question, Kavanaugh stressed, but other countries – including Spain, Germany, Mexico, Canada and Ireland – also ask about citizenship. Does this international and historical practice affect how we look at the decision to add the question? Kavanaugh queried.

Underwood responded that the information provided by the question is “very useful for a country to have.” But should it be included on the census, she countered, whose principal purpose is to count people, knowing that it will reduce response rates?

Justices Samuel Alito and Neil Gorsuch, however, pushed back against the idea that including the citizenship question, standing alone, was the root cause of a lower response rate. Citizens and noncitizens are different in a lot of ways other than whether they have citizenship, Alito observed: For example, there may be socioeconomic differences between a household with citizens and one with noncitizens, as well as language differences. So there may be other explanations, Alito suggested, for why households with noncitizens would be less likely to return their citizenship questionnaires.

Dale E. Ho for respondents New York Immigration Coalition, et al. (Art Lien)

Gorsuch said the same thing a few minutes later to Dale Ho, who argued on behalf of the civil rights groups challenging the inclusion of the citizenship question. Some states, Gorsuch told Ho, argue that there are other explanations for the reduced response rates beyond the inclusion of the citizenship question on the surveys that have gone out to some households – for example, the questionnaires may be too long, and less affluent households may not have the time to fill them out completely. What do we do, Gorsuch asked, with the fact that we don’t know?

When General Counsel of the House of Representatives Douglas Letter, who appeared as a “friend of the court” in support of the challengers, stood up to argue, he provided one of the only light moments in an otherwise strained day. Letter began by conveying the thanks of House Speaker Nancy Pelosi for allowing him to appear and argue. Roberts shot back, “Tell her she’s welcome.”

Letter told the justices that anything that undermines the accuracy of the census count is a problem, even if the information is wanted for another reason – such as enforcing federal voting rights laws. But he didn’t seem to make much headway: Even Justice Ruth Bader Ginsburg, who seemed to be siding with the challengers for most of the case, noted that Congress had been made aware of the decision to include the citizenship question but hadn’t taken any action. Kavanaugh then chimed in, asking Letter why Congress didn’t prohibit the use of a question about citizenship on the census, the same way it had banned questions about religion.

Douglas N. Letter for U.S. House of Representatives (Art Lien)

The stakes in the case are high. The federal government uses the data from the census to divide up the 435 members of the U.S. House of Representatives among the 50 states. After the 2010 census, for example, Texas gained four seats in the House and Florida gained four, while New York – the lead plaintiff in today’s case – and Ohio both lost two. Census data is also used to allocate federal funding for a wide variety of programs: In fiscal year 2016, the federal government distributed over $ 900 billion through such programs. The challengers say that, as a result, including the citizenship question could lead to fewer members of Congress and less federal funding for states with large populations of undocumented and Hispanic residents – many of which tend to skew Democratic.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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Argument analysis: Employment discrimination law’s “natural experiment”

April 23, 2019 by admin Leave a Comment

As it turns out, oral argument in Fort Bend County v. Davis was not the most headline-grabbing Title-VII-related news emanating from the Supreme Court yesterday. Disagreement among the justices seemed relatively muted as they wrestled with whether the requirement that employment discrimination plaintiffs present their claims to the Equal Employment Opportunity Commission before filing lawsuits is a jurisdictional prerequisite or merely a claim-processing rule.

Raffi Melkonian for respondent (Art Lien)

The question matters because claim-processing rules can be waived, unlike jurisdictional rules. Here, Fort Bend County waited five years to argue that Lois Davis did not properly pursue her religious-discrimination claim with the EEOC; during that time, Davis’ case traveled from the district court to the U.S. Court of Appeals for the 5th Circuit and back again. If Title VII’s administrative-exhaustion requirement is a claim-processing rule, then Fort Bend’s failure-to-exhaust argument came much too late. But if instead the exhaustion requirement is jurisdictional, then it is never too late for a defendant to raise a plaintiff’s failure to comply; in addition, courts would be required to raise potential administrative-exhaustion problems themselves, rather than leaving those issues solely to the parties.

Congress is free to impose either jurisdictional requirements or mandatory claim-processing rules, and much of the argument was devoted to how to discern whether Congress intended the former or the latter. Representing respondent Lois Davis, Raffi Melkonian argued that the court should apply the clear-statement rule from Arbaugh v. Y&H Corp., another Title VII case, as “the best way to discern congressional intent.” In Arbaugh, the court held in an 8-0 opinion that Title VII’s employee-numerosity requirement was not jurisdictional, and wrote that Congress could override that conclusion by “clearly stat[ing]” to the contrary. Chief Justice John Roberts pushed back, asking if it was reasonable to apply a clear-statement rule announced in 2006 to a statute enacted earlier. Melkonian answered that the clear-statement rule was still the best way to discern Congress’s intention, given the severe consequences that accompany jurisdictional rules – in other words, Congress would have been unlikely to impose a jurisdictional requirement by implication. Justice Neil Gorsuch later returned to the issue during Jonathan Bond’s argument for the solicitor general in support of Davis, inviting Bond to agree that “our decisions are normally retroactive.”

Whether the court agrees that Arbaugh’s clear-statement approach applies to this case will likely affect its receptivity to Colleen Roh Sinzdak’s argument on behalf of Fort Bend County that the text and structure of Title VII indicate that the exhaustion requirement is jurisdictional. The same subsection of Title VII contains the exhaustion requirement and, two paragraphs later, a grant of jurisdiction for federal courts to hear “actions brought under this subchapter.” Sinzdak argued that taken together, these paragraphs provided “text linking explicitly to the jurisdictional provision,” as “part of an intricate scheme for statutory and judicial review.” Additionally, Sinzdak noted that when a government entity is the defendant, a jurisdictional requirement forcing parties to attempt to resolve a claim at the agency level effectively narrows Title VII’s waiver of sovereign immunity.

Justice Ruth Bader Ginsburg asked the first 14 questions during Sinzdak’s argument, expressing skepticism about Sinzdak’s position. Ginsburg’s questioning centered on the EEOC’s limited power to resolve claims, and suggested that it would be unusual to deem jurisdictional an agency process that can result only in conciliation, and not adjudication. Later, Bond amplified this argument, distinguishing from Title VII statutory schemes like the National Labor Relations Act, which allow agencies to resolve claims in decisions that are then reviewable by the federal appellate courts.

Much of the rest of the argument centered on the potential consequences of treating Title VII’s exhaustion requirement as a claim-processing rule. Justice Brett Kavanaugh suggested that “so long as defendants raise the argument,” such a rule would have little effect on employers, while also saving judges from the obligation “to look through the record to make sure each claim was specifically exhausted.” In response, Sinzdak posited that some employers might not have an incentive to raise a plaintiff’s failure to exhaust, to the detriment of the EEOC’s process. Here, Sinzdak was referring to cases in which plaintiffs could cure their failure to exhaust by returning to the EEOC, ultimately lengthening the time it would take to resolve their claims. Later, Melkonian argued that few cases would fall into this category, given the relatively short time – 180 or 300 days – that employees have to file an EEOC charge.

That exchange prompted a question from Justice Samuel Alito about whether stronger incentives for plaintiffs to file thorough EEOC charges would result in more cases being resolved at the agency level, and thus fewer cases reaching the courts. Although it wasn’t clear after argument how many claims are now successfully resolved at the EEOC level, Melkonian also argued that – given that most courts now treat Title VII’s exhaustion requirement as a claim-processing rule – “we have been running a natural experiment across this country on whether our rule works or not.” Roberts observed that it would be difficult to collect hard data about the outcome of this experiment, though Melkonian suggested that the EEOC (which supports his position) was in a position to “observe what’s happening in the district courts.” Later, Sinzdak pointed to “at least 50” decisions “in the last two months on Westlaw” in which courts dismissed unexhausted Title VII claims, arguing that “in our natural experiment, plaintiffs are not bringing their … claims to the EEOC.”

Because the justices spent little time pressing Melkonian or Bond on Title VII’s text, I predict a win for Davis and the federal government. Further, Ginsburg strikes me as the most likely author of an opinion in Davis’ favor, based on her apparent interest in the case and given that she also wrote Arbaugh. Finally, Roberts and Alito seemed the most supportive of Fort Bend’s position; if there is an opinion – either a majority or a dissent – in favor of the county, then I would expect one of them to write it.

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Argument analysis: Spinning heads and swimming constitutional rights in debates over an accrual rule

April 18, 2019 by admin Leave a Comment

McDonough v. Smith, argued Wednesday, saw justices and attorneys repeating metaphors about heads spinning and constitutional rights swimming. The justices seemed inclined to rule for the petitioner (supported by the United States) that his claim was timely and that the limitations period on a civil action should not begin until favorable termination of criminal proceedings. But the likely scope of the ruling remains uncertain.

Respondent Youel Smith prosecuted petitioner Edward McDonough, a former election official, for fraud arising from a primary election; the prosecution was initiated and continued on allegedly fabricated evidence, fabricated affidavits, false testimony and faulty DNA analysis. McDonough was indicted and tried twice, the first trial ending in a mistrial and the second ending in an acquittal. Less than three years after the acquittal, McDonough filed an action in federal district court under 42 U.S.C. § 1983, alleging malicious prosecution and fabrication of evidence before the grand jury and at the two trials, in violation of the Fourth, Fifth, Sixth and 14th Amendments. The lower courts dismissed the fabrication-of-evidence claim as untimely, because the three-year statute of limitations began to run when McDonough became aware of the use of fabricated evidence, which occurred well before his acquittal and thus more than three years before he filed the federal civil action. The issue before the Supreme Court is whether the limitations period instead began to run only when the state criminal proceedings terminated in McDonough’s favor with his acquittal, making his Section 1983 action timely.

Arguments of petitioner McDonough

Neal Katyal represented McDonough, launching the parade of metaphors. Justice Samuel Alito complained that the case had his head spinning because he could not understand how to discuss rules for when a claim accrues without identifying the constitutional right at issue or the elements of that right. Katyal responded that it was unnecessary to identify the source, because either the Fourth Amendment or 14th Amendment “swim to exactly the same result,” prompting Justice Neil Gorsuch to quip that “they don’t swim at all.” (The justices would refer to swimming several more times during the argument.) But Katyal stuck to his position that it did not matter whether this was a Fourth Amendment case, requiring the plaintiff to show lack of probable cause, or a 14th Amendment procedural due process claim, requiring the plaintiff to show a “reasonable probability” that the prosecutor would not have proceeded but for the fabricated evidence. Although these rights might diverge in a hypothetical case, the outcome in this case would be the same.

Justices Ruth Bader Ginsburg and Elena Kagan questioned whether Smith would enjoy absolute prosecutorial immunity for this claim, as he enjoyed absolute immunity from the malicious prosecution claim. Katyal argued that the fabrication claim was different than malicious prosecution, because it focused on the “use and maintenance of the criminal prosecution” and did not require malice as an element, only fabrication of evidence, even reckless fabrication, and a deprivation of liberty.

Gorsuch questioned how the court could adopt a favorable-termination requirement for limitations purposes without deciding whether favorable termination is part of the claim; he wondered whether the court should look for a case allowing it to identify the elements of the fabrication claim, rather than a case in which happenstance caused the plaintiff to “create this rather bespoke tort” to obtain a longer limitations period. Katyal argued that favorable termination is significant as a way to allow criminal defendants to defend themselves without having to pursue simultaneous civil litigation. It serves policy goals of avoiding duplicative and collateral litigation, allowing plaintiffs to pursue their criminal defenses to the end before seeking compensation and deterrence through Section 1983. Katyal added, in response to a question from Ginsburg, that having the federal court stay the civil action is not sufficient because stays are discretionary and many federal courts decline to issue them.

Katyal returned to these policy concerns in his rebuttal, emphasizing the need for the criminal case to conclude and for the plaintiff to wait until favorable termination of that case before seeking civil damages. Katyal added that “it’s quite remarkable to actually have the federal government agreeing with this former criminal defendant” on the need to hold the limitations period pending favorable termination of the prosecution.

Arguments of amicus curiae United States

Principal Deputy Solicitor General Jeffrey Wall argued for the United States as amicus curiae urging reversal. Wall said the “parties’ presentations may make this case seem more difficult than it is,” arguing that favorable termination is an element of a Section 1983 claim for fabrication of evidence. In an exchange with Alito, Gorsuch and Justice Brett Kavanaugh, Wall identified the claim as grounded in procedural due process, akin to claims that prosecutors failed to disclose exculpatory evidence, in which the use of fabricated evidence or perjured testimony is the same as failing to disclose evidence. Wall then clarified that favorable termination is an element of the Section 1983 damages claim, although not of the constitutional claim. The United States could prosecute a line attorney who fabricated evidence and used it at trial; an individual can sue for damages, which collaterally attacks the state criminal process, only if that process terminated in the individual’s favor.

Kagan asked whether the claim could be one for substantive due process, in that simple fabrication of evidence is so awful as to shock the conscience and violate the Constitution. Wall rejected that position, emphasizing the Supreme Court’s reluctance to expand substantive due process and precedent holding that presentation of false evidence is a procedural due process concern. The key, Wall argued, was the deprivation of the defendant’s liberty — the restrictions on travel while on bail and perhaps the obligation to appear for trial.

Arguments of respondent Smith

Thomas O’Connor argued for Smith, insisting that “my head has been spinning from this case for a lot longer than yours.” O’Connor pushed the point that McDonough’s claimed constitutional right to be free from fabricated evidence did not exist, but if it did, it sounded in substantive due process. Ginsburg challenged that point, because a fair trial is the “most fundamental procedural right” and the dramatic allegations of perjury throughout made this a “corrupt process.” O’Connor declined to dispute that, prompting Justice Sonia Sotomayor to suggest that each use of fabricated evidence until acquittal constitutes “either a continuing violation or a finishing of the accrual time.” O’Connor responded that each isolated, distinctive use would be a distinct violation, with the claim accruing when the use occurred. Kagan summarized O’Connor’s argument, a summary with which he agreed — a favorable termination element makes sense when a claim has as a component the deprivation of liberty, but not when the claim, like this one, arises from the fabrication itself and does not require that deprivation.

Chief Justice John Roberts, Justice Stephen Breyer, Sotomayor and Kavanaugh engaged O’Connor on policy reasons for a favorable-termination requirement, regardless of the source of the constitutional right or how the action is characterized. All expressed concern for the confusion created by simultaneous civil and criminal proceedings; for interfering with the orderly division between criminal proceedings and civil tort suits; for complicating strategy for the defendant and perhaps prejudicing him in his criminal proceeding; and for rendering prosecutors (the targets of any civil action) less inclined to enter a plea agreement. Why not, Kavanaugh asked, “choose the more orderly, practical approach” of allowing the criminal proceedings to conclude rather than encouraging plaintiffs to routinely file Section 1983 actions during the criminal case? O’Connor urged the court not to “sacrifice[] the correct to the convenient,” suggesting a stay of civil proceedings as the remedy. But Roberts doubted that a stay eliminated the complications and burdens on the criminal defendant. And Kavanaugh suggested that routine stays reflect that these cases should not proceed simultaneously, but that the criminal defendant should be able to await conclusion of the criminal case before the clock begins to run on his civil action.

Editor’s Note: Analysis based on transcript of oral argument.

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