SCOTUS Rules Litigants Can Sue Federal Officials Individually in Religious Freedom Suits

Back in Tanzin v. Tanvir, 592 U. S. ____ (2020), the U.S. Supreme Court unanimously held that the Religious Freedom Restoration Act of 1993’s (RFRA) state remedies supply authorizes litigants, when appropriate, to acquire money damages against federal officials in their individual skills for separating litigants’ right to free exercise of religion under the First Amendment. Even the Court’s decision clears the way for Muslims put to the”No Fly List” to chase money compensation from a group of FBI agents in their private capacity.

Facts of the Case

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. Additionally, it gives a person whose religious exercise was burdened the right to find”appropriate relief.” The RFRA sought to offset the effect of the holding and restore the pre-Smith”compelling interest test” by”provid[ing] a claim… to persons whose religious exercise is substantially burdened by government.”

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that FBI agents put them over the No Fly List in retaliation for their refusal to act as informants from their spiritual communities. Respondents sued different representatives in their official capacities, seeking removal from the No Fly List. They also resisted the representatives in their individual capacities for cash. Based on respondents, the retaliation price them considerable sums of cash: airline tickets squandered and earnings from job opportunities lost.

More than a year after respondents suedthe Department of Homeland Security advised them they could now flythus mooting the claims for injunctive relief. The District Court then dismissed the individual-capacity claims for money damages, judgment that RFRA does not permit monetary relief. The Second Circuit Court of Appeals reversed. It determined that RFRA’s express remedies supply, combined with the statutory definition of”Government,” prides claims against government officials in their individual capacities. Determined by our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended term”appropriate relief” encompasses cash damages against officials.

Supreme Court’s Conclusion

With a vote of 8-0, the Supreme Court confirmed. “We conclude that RFRA’s state remedies provision allows litigants, when appropriate, to acquire money damages against federal officials in their individual capacities,” Justice Clarence Thomas wrote on behalf of their unanimous Court.

Justice Thomas initially addressed if wounded parties may sue Government officials in their personal capacities. In answering in the positive, Justice Thomas cited the plain language of the statute, composing:

RFRA’s text gives a clear answer: They could. Persons can sue and get relief”from a government,” §2000bb–1(c), which is defined to contain”a branch, division, agency, instrumentality, and official (or other individual acting under color of law) of the USA.” §2000bb–2(1) (emphasis added).

Since Justice Thomas explained, below the RFRA’s definition, the relief which may be implemented from an”official… of the Unites States” has been”relief from a government.” He further noted that this interpretation has been supported by RFRA’s use of the term”persons acting under color of law,” which has been interpreted by this Court in the 42 U.S.C. §1983 circumstance to permit suits against officials in their individual capacities.

Justice Thomas then turned to if the”appropriate relief” referenced in the RFRA allows for monetary compensation. Rejecting the government’s argument, the Court maintained that it will. “A damages remedy is not only’proper’ relief as viewed through the lens of lawsuits against Government workers,” he also wrote. “It’s is also the only form of relief which can remedy some RFRA violations. For specific injuries, such as economists’ wasted plane tickets, effective relief is composed of compensation, not even an injunction.”

The Court rejected the administration’s argument that it ought to be careful of harms against government officials since these awards could raise separation-of-powers concerns. “But there are no inherent reasons why people have to do this in its stead.”
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US Supreme Court Rejects Statute of Limitations for Military Rape

Accordingly, the Court reinstated the convictions of three former military service members.  

Facts of this Case

The Uniform Code of Military Justice (UCMJ) provides a military offense,”punishable with death, might be tried and punished at any time without restriction.” Other military offenses are subject to a 5-year statute of limitations.

The case revolves around three military service associates convicted of rape. When they were charged, the UCMJ provided that rape may be”penalized by death” Since the Supreme Court held Coker v. Georgia, 433 U. S. 584, 592 (1977) the Eighth Amendment forbids a departure sentence for the rape of an adult woman, respondents argued they could not, in actuality, were sentenced to death, and so that the UCMJ’s 5-year statute of limitations applies and bars their own convictions. The Court of Appeals for the Armed Forces (CAAF) agreed that the relevant statute of limitations was five years. Thus, it resisted the rape convictions of respondents.

Supreme Court’s Decision

Justice Samuel Alito wrote on behalf of this Court.

As Justice Alito explainedthe Respondents claimed that the UCMJ term”punishable by death” means capable of punishment by death when all pertinent law is taken into account. The Government characterized the term more like a term of art, meaning able of punishment by passing under the punishment provisions of the UCMJ. While the Court acknowledged that there had been”reasonable arguments on both sides,” it ultimately sided with the administration’s interpretation of this statute. In service, Justice Alito cited three reasons.

First, Justice Alito mentioned that UCMJ is a uniform code which”a natural referent for a statute of limitations provision over the UCMJ is just another law at the UCMJ itself” He further explained:

From the context of this UCMJ, therefore, Article 120’s directive that rape may be”penalized by death” is probably the most natural place to start looking for Congress’s response to whether rape was”punish- able by passing” over the meaning of Article 43(a). We think that is so even if, as respondents claim that the individual prohibition on”cruel or unusual punishment” in Article 55 of the UCMJ would have been held to offer an independent defense against the imposition of the death penalty for rape.

Secondly, Justice Alito concluded that the Respondents’ interpretation of §843(a) is not the type of limitations provision that Congress is very likely to have chosen. Emphasizing that clarity is a goal for which lawmakers try when enacting such terms, Justice Alito mentioned the deadline for submitting rape charges would be unclear under the Respondents’ interpretation, as it would rely on an unresolved inherent question about Coker’s application to military prosecutions, on the Supreme Court’s “`evolving standards of decency”’ beneath the Eighth Amendment, and on whether §855 of this UCMJ independently prohibits a departure sentence for rape.

“In summary, if we approved that the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision put a statute of limitations that no one might have known together with any real assurance until important and novel legal questions were solved by this Court,” Justice Alito wrote. “This is not the type of limitations provision that Congress is very likely to have chosen.”

Third, Justice Alito discovered that the facets that lawmakers are likely to take into account when adjusting the statute of limitations for a offense vary considerably from the considerations that underlie the Court’s Eighth Amendment decisions. “[S]ince the ends served by statutes of limitations differ sharply from individuals served by provisions such as the Eighth Amendment or Article 55 of the UCMJ, it is not likely that lawmakers would want to tie a statute of limitations to judicial interpretations of such terms,” he wrote.

Based on the above, the Court concluded that that”punishable by death” is a”term of art that is defined by the conditions of the UCMJ defining the punishments for the offenses that it outlaws.”
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SCOTUS Sides With New Mexico in Interstate Dispute Over Pecos River

With a vote of 7-1, the justices agreed that New Mexico must receive delivery credit for the evaporated water though that water Wasn’t delivered to Texas

Facts of the Case

Even the 1949 interstate Pecos River Compact supplies for equitable apportionment of using the Pecos River’s water from New Mexico and Texas. In an 1988 amended decree in the same instance, the Supreme Court made a River Pro to annually compute New Mexico’s obligations to Texas under the Compact. The Court also adopted the River Master’s Manual, which elaborates how best to make the necessary calculations to ascertain if New Mexico is complying with its obligations under the Compact. As important, §C.5 of the Manual provides that if water is saved”in the request of Texas” in a facility in New Mexico, then New Mexico’s delivery obligation”will be lowered by the amount of reservoir losses due to the storage.”

In 2014, a tropical storm caused heavy rain in the Pecos River Basin. To stop flood, Texas’s Pecos River Commissioner requested that some of the River’s water be saved in New Mexico. New Mexico’s Commissioner agreed. Several months after, the water was released; but a substantial amount of water vanished while the water was held in New Mexico.

For years thereafter, the States sought to reach an agreement on the way the evaporated water ought to be accounted for under the Compact. To permit those discussions to last, the River Master outlined a procedure in 2015 that predicted for the upcoming resolution of the problem. Neither State objected. When discussions finally broke down, however, New Mexico filed a motion with the River Master that sought delivery credit for the evaporated water.

Supreme Court’s Decision

The Supreme Court rejected Texas’ motion, agreeing with all the River Master’s choice. “We concur with the River Master’s determination, and we deny Texas’s motion for review,” Justice Brett Kavanaugh composed on behalf of the majority.

The Court first rejected Texas’ argument that New Mexico’s motion for credit to the evaporated water has been untimely. As Justice Kavanaugh emphasized, both parties consented to postpone the River Master’s resolution of the evaporated-water issue. Thus, neither party may object to the negotiation procedure outlined from the River Master for solving the dispute.

The Court further found that New Mexico is entitled to delivery credit for the accumulated water. In service, the Court stage to Section C.5 of the River Master’s Manual. As Justice Kavanaugh clarified:

The River Master’s Manual, which was accepted by this Court in 1988, implements the Compact and speaks straight to the question: After water is saved in New Mexico”in the request of Texas,” then New Mexico’s delivery obligation”will be lowered by the amount of reservoir losses caused by its storage.” The water was saved in New Mexico at the request of Texas, therefore New Mexico’s delivery obligation must be lowered by the quantity of water that evaporated during its storage.

Lastly, the Court found that Texas’s counterarguments–that the saved water wasn’t actually a part of their”Texas allocation” known in §C.5, so that New Mexico didn’t”store” the water to §C.5 functions, and that Texas should not be billed for any evaporation occurring from March 15 until the water was published in August 2015–were unpersuasive.
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Supreme Court Rules Census Suit Not Ripe for Judicial Review

The U.S. Supreme Court recently dismissed a lawsuit demanding the Trump Administration’s policy of excluding undocumented immigrants from the apportionment foundation after conducting the U.S. census. With a vote of 6-3, the majority concluded that the legal struggle in Trump v. New York, 592 U.S. ____ (2020), was not ripe for judicial scrutiny.  

Legal Foundations of the US Census

Under two U.S.C. § 2a(a), the President is then needed to carry Congress”a statement showing the entire number of persons in each State… as ascertained under the… decennial census of the population, and the amount of Representatives to which each State would qualify” with a mathematical formulation”called the method of equal proportions.” 

Facts of the Case

The memorandum declared a policy of excluding”from the apportionment foundation aliens who aren’t in a lawful immigration status.”

To ease execution”to the maximum extent possible and consistent with all the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report,”to give advice per- mitting the President, to the extent practicable, to exercise the President’s discretion to execute the policy.” The President directed the Secretary to incorporate such information as well as a tabulation of inhabitants based on the standards promulgated by the Census Bureau for restricting each State’s inhabitants.

This case arises from one of several challenges to the memorandum brought by various States, local authorities, organizations, and people. Even a three-judge District Court held that the plaintiffs had standing to proceed in federal court because the memorandum was chilling offenders and their families from reacting to the census, thus degrading the quality of census information used to allocate federal funds and forcing a few plaintiffs to divert funds to combat the frightening effect. The District Court concluded the memorandum violates §141(b) by ordering the Secretary to produce two types of figures –a valid tabulation derived by the census, and also an invalid tabulation constituting aliens according to administrative documents beyond the census. The District Court further ruled that the exclusion of aliens on the basis of legal status could contravene the requirement in §2a(a) the President nation the”whole number of persons in each State” for purposes of apportionment. The District Court declared the memorandum unlawful and enjoined the Secretary from containing the data needed to execute the memorandum within his §141(b) report on the President. The Government appealed.

Supreme Court’s Conclusion

In a per curium decision, the Supreme Court decided that it lacked jurisdiction to decide the dispute and also remanded the case back to district court with directions to dismiss the case. As stated by the Court, the instance is”teeming with contingencies and speculation that impede judicial review.”

“The President, to be sure, has left his desire to exclude aliens with no lawful status from the apportionment base. However, the President characterized his directive by providing the Secretary should gather information’to the degree ‘ and aliens must be excluded’into the extent possible,”’ nearly all wrote.   “Any forecast the way the Executive Branch might eventually execute this general statement of policy is’no longer than conjecture’ at the time.”

The majority further emphasized the Trump Administration”can’t properly implement the memorandum” by excluding all illegal immigrants, noting that”the coverage may not prove possible to execute in any way at all, let alone in a manner substantially likely to harm any of these plaintiffs here.” It included:”The count here is complete; the current dispute includes the apportionment procedure, which remains at a preliminary phase. The Government’s final action will reveal both legal and practical constraints, making any prediction about future injury only that–a forecast.”

Given it was still too early for the Court to decide the dispute, the majority didn’t address the merits of the case. “At the conclusion of the day, the standing and ripeness queries both lead to the conclusion that judicial resolution of the dispute is premature. Consistent with our determination that standing has not been shown and the case is not ripe, we express no opinion regarding the merits of the inherent and related statutory claims presented,” the Court wrote.

Dissent

Justice Stephen Breyer authored a dissenting opinion, which has been joined by Justices Sonia Sotomayor and Elena Kagan. “The Government has declared a policy to exclude offenders with no lawful status from the apportionment foundation for the decennial census. The Government does not deny this, if completed, the coverage will harm the plaintiffs. Nor does it deny it will execute that coverage imminently (to the extent it is able to do so),” Justice Breyer wrote. “Under a simple application of our precedents, the plaintiffs have standing to sue.”

The dissenters further claimed that the plaintiffs should also prevail on the merits. “The plain meaning of the governing statutes, decades of historical training, along with uniform interpretations from all 3 branches of Government attest that extraterrestrial beings without lawful status cannot be excluded by the decennial census entirely on account of that status. The Government’s attempt to eliminate them from the apportionment foundation is unlawful, and I believe this Court should say so,” Justice Breyer wrote.
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Supreme Court Hears Oral Arguments in Three Cases

The U.S. Supreme Court began its January sitting on January 11, 2020. In light of this COVID-19 pandemic, the justices will continue to hear oral arguments remotely for the foreseeable future. Below is a brief summary of the problems before the Court a week:

Pham v. Guzman Chavez: The case involves noncitizens who are subject to reinstated elimination orders, which can be issued when a noncitizen has reentered the United States after having been removed. While these orders are usually are not open to challenge, the migrants might pursue withholding of removal if they have a reasonable fear of persecution or torture in the states designated in their elimination orders. The question problem before the Court is whether the alien set in withholding-only proceeding is because of the detention procedures set out at 8 U.S.C. 1231, or rather to the detention procedures set out at 8 U.S.C. 1226. Department 1231 authorizes the detention of an alien who”is arranged eliminated ” It provides that the government”shall” detain the alien during a first 90-day”removal period,” and that the government”may” detain the alien beyond that first period when the alien poses a”threat to the community” or will be”unlikely to obey the order of elimination.” Meanwhile, Section 1226(a) authorizes the detention of the alien”pending a determination on whether the alien will be removed from the United States.” In general, the statute specifically authorizes the government, in its own discretion, to release the alien on”bond” or”conditional parole.” The particular problem the justices should determine is”[w]hether that the detention of a person who’s subject to some reinstated removal order and who’s pursuing withholding or deferral of removal will be regulated by 8 U.S.C. 1231, or instead by 8 U.S.C. 1226.”

Uzuegbunam v. Preczewski: Even though a student at Georgia Gwinnett College, Petitioner Chike Uzuegbunam began distributing religious literature on campus. College officials stopped because he was outside the 0.0015% of campus where”free speech expression” was allowed. When Chike booked a free speech distance and again tried to evangelize, officials ceased because somebody whined which, under College policy, converted Chike’s speech to”disorderly conduct” Facing discipline if he continued, Chike registered suit. Another student, Petitioner Joseph Bradford, self-censored after hearing officials mistreated Chike. The students raised constitutional claims from the school’s enforcement of the policies, seeking damages and prospective equitable relief to remedy that the censorship and chill. After the college changed its speech coverages post-filing, the lower courts held the Chike and Joseph failed to adequately plead compensatory damages, and their nominal-damages claims were meaningless. The Supreme Court must now decide a question that has split into circuit courts of appeal:”When a government’s post-filing change of an unprotected policy moots nominal-damages asserts that vindicate the government’s previous, completed breach of a plaintiffs constitutional right.”

The Federal Trade Commission Act normally”empower[s] and direct[s]” that the FTC to stop individuals by having”unfair or deceptive acts or practices in or affecting commerce.” The question before the Court is”Whether §13(b) of this Act, by authorizing”injunction[s],”’  also authorizes the Commission to demand monetary relief such as restitution — and if that’s the case, the reach of the limits or requirements for this relief”

Decisions in the instances are expected before the Court’s term ends in June. Please check back for updates.
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SCOTUS Rules Retaining Bankruptcy Debtor’s Property Doesn’t Violate Automatic Stay

In City of Chicago, Illinois v. Fulton, 592 U.S. ____ (2021), the U.S. Supreme Court maintained that keeping estate land following the filing of a bankruptcy petition doesn’t violate the automatic stay granted under 11 U.S.C. § 362(a)(3). The Court’s conclusion was unanimous.

Facts of the Case

The filing of a petition under the Bankruptcy Code (11 U.S.C. §541(a)) automatically”creates an estate” that, with a few exceptions, comprises”all legal or equitable interests of the debtor in property at the initiation of the case.” Section 541 is meant to include within the estate any property made available by other states of the Bankruptcy Code. Section 542 is one particular provision, as it provides an entity in possession of land of the bankruptcy property”shall deliver to the trustee, and account for” that land. The filing of a petition also automatically”acts as a stay, applicable to all entities,” of attempts to gather prepetition debts outside the bankruptcy forum, §362(a), for example”any act to obtain possession of land of the estate or of property from the estate or to exercise control over property of the estate,” §362(a)(3).

In each case prior to the Court, the respondent filed a bankruptcy petition and asked that the town of Chicago (City) reunite her or his automobile, which had been impounded for failure to pay penalties for automobile infractions. In each instance, the City’s refusal was held by a bankruptcy court to violate the automatic stay. The Seventh Circuit Court of Appeals affirmed, concluding by keeping possession of the vehicles the City had behaved”to exercise control within” respondents’ land in violation of §362(a)(3).

Supreme Court’s Conclusion

Even the Supreme Court vacated the lower court ruling, holding that the mere retention of property land following the filing of a bankruptcy petition doesn’t violate §362(a)(3) of the Bankruptcy Code. Justice Alito delivered the opinion of the Court.

According to the Court, the plain text of the Bankruptcy Code supports its choice. As Justice Alito clarified:

The terminology used in §362(a)(3) suggests that merely keeping possession of property property doesn’t violate the automatic stay. Taken together, the most natural reading of these terms–“remain,””action,” and”exercise “–would be that §362(a)(3) prohibits affirmative acts that would disturb the status quo of property land at the time once the bankruptcy petition was filed.

The Court further reasoned that the respondents’ choice reading would produce at least two severe issues. To begin with, it discovered that studying §362(a)(3) to cover mere retention of land would render §542’s chief command–that an entity in possession of certain estate land”shall deliver to the trustee… such land”–largely superfluous, even though §542 seems to be the provision governing the turnover of estate property. Since Justice Alito clarified, Section 542 carves out exceptions to the turnover control. Under the respondents’ interpretation, an entity could be asked to turn over land under §362(a)(3) even if that land were exempt by turnover under §542. According to the Court, the foundation of the Bankruptcy Code affirms the greater reading. The Code originally included equally §362(a)(3) and §542(a), however, also the former provision lacked the term”or to exercise control over property of the estate” When that term was added by change, Congress made no mention of altering §362(a)(3) to a optimistic turnover responsibility. It’s not likely that Congress could have made such an important shift simply by adding the term”exercise control,” instead of simply by including a cross-reference to §542(a) or some other sign that it had been transforming §362(a)(3).
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SCOTUS to Hear Potential Blockbuster Voting Rights Case

Next month, the U.S. Supreme Court will hear two major voting rights cases from Arizona. The instances, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, demand an Arizona coverage that requires voters who vote in person to do so in their assigned precincts and also a state law that prohibits so-called”ballot harvesting,” in which mail-in ballots are collected and returned by someone aside from a voter’s caregiver, family member, mail provider, or an election officer. 

Facts of this Case

Such a discriminatory”outcome” occurs if an election is not”equally open to participation” by racial minorities, providing them”less opportunity than other members of their electorate to participate in the political process and to elect representatives of their choice”

The State of Arizona grants all citizens an equal opportunity to vote in person or by mail. However, additionally, it has voting laws in place that govern those voting processes. Arizona has an”non – precinct coverage,” which does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct. In addition, it has a”ballot-collection legislation,” called H.B. 2023, which allows only particular individuals (i.e., family and household members, caregivers, mail carriers, and elections officers ) to deal with another individual’s completed ancient ballot.

Both suits before the Court involve the above provisions. While a Ninth Circuit panel confirmed, the entire Ninth Circuit, sitting en banc, reversed.

Back in Arizona Republican Party v. Democratic National Committee, the Ninth Circuit held that Arizona violated § 2 of the Voting Rights Act by (1) requiring peer voters to cast ballots in their assigned precincts; and (2) banning”ballot-harvesting.” The federal appeals court stated that because racial minorities disproportionately vote out-of-precinct and utilize ballot-harvesting, the Voting Rights Act compels the State to permit those practices.

The Supreme Court granted certiorari in the two instances on October 2, 2020. In Arizona Republican Party v. Democratic National Committee, the justices have agreed to look at the following questions:

Whether § 2 of the Voting Rights Act compels countries to authorize any voting practice that could be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and Provide all voters an equal opportunity to vote; and
Whether the Ninth Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by means of intent though the legislators were admittedly driven by partisan interests and by allegedly”unfounded” concerns regarding voter fraud.
In Brnovich v. Democratic National Committee, the justices agreed to consider the following question:

Whether Arizona’s out-of-precinct coverage, which does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct, violates Section 2 of the Voting Rights Act; and also
Whether Arizona’s ballot-collection legislation, which permits only particular individuals (i.e., household members, caregivers, mail carriers and elections officers ) to deal with another individual’s completed ancient ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
The cases have been analyzed and are scheduled for oral argument on Tuesday, March 2, 2021.
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Divided Court Rules U.S. Railroad Retirement Board Decision Subject to Judicial Review

In Salinas v. United States Railroad Retirement Board, 592 U. S. ____ (2021), a broken U.S. Supreme Court held that a denial by the U.S. Enforcement Retirement Board to reopen a previous benefits determination will be subject to judicial scrutiny. The choice represents the initial 5-to-4 divide in a case argued throughout the Court’s 2020-21 period.
Legal Background
The Railroad Retirement Act of 1974 (RRA) builds a method of disability, retirement, and survivor benefits for railroad employees. The system is administered by the U. S. Railroad Retirement Board (Board).
Part 231g of the RRA offers:
Choices of the Board determining the obligations or rights of any person under this subchapter shall be subject to judicial scrutiny in the exact same fashion, subject to the exact limitations, and all provisions of law shall apply in the exact same manner like the decision were a decision of corresponding rights or liabilities under the Railroad Unemployment Insurance Act [45 U.S.C. 351 et seq.] except that the time in which proceedings for the review of a determination with respect to an annuity, supplemental annuity, or lump sum benefit might be commenced shall be one year after the decision is going to have been entered upon the records of the Board and communicated to the plaintiff.
The RUIA’s judicial review provision, 45 U.S.C. §355(f), provides:”Any claimant, or any railroad labor organization organized in compliance with the terms of the Railway Labor Act…, of which claimant is a member, or any base-year company of the claimant, or another party aggrieved by a last decision under subsection (c) of the section, may… get a review of any last decision of the Board.”
Facts of the Case
In 1992, petitioner Manfredo M. Salinas started looking for disability benefits under the RRA according to serious injuries he suffered during his 15-year livelihood using the Union Pacific Railroad. Salinas’ first three applications were denied, but he had been granted benefits after he filed his fourth application in 2013. After reconsideration has been denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened since the Board hadn’t considered specific medical records. An intermediary of the Board denied the petition to reopen since it wasn’t made”[w]ithin four years” of the 2006 decision, and the Board affirmed.
Salinas sought review together with the Fifth Circuit Court of Appeals. The Fifth Circuit noted a longstanding divide among the Circuits on the matter.
Majority Decision
Justice Sonia Sotomayor authored the majority opinion, that was linked with Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh.
In reaching its decision, most noted that to qualify for judicial scrutiny below 45 U.S.C. §355(f ), the Board’s refusal to reopen its denial of Salinas’ 2006 application should constitute”any last decision of the Board.” It went on to conclude that it does.
Since Justice Sotomayor clarified, the term”any last decision” is wide and reflects Congress’ intent it could be interpreted widely. Citing Smith v. Berryhill, 587 U. S. ___, ___ (2019), she included the term also”denotes some sort of terminal event,” like the”final stage of review.” Justice Sotomayor further highlighted that language from the Administrative Procedure Act was interpreted to refer to an agency actions which”the two (1) mark[s] the consummation of the agency’s decision making process and (2) is only one in which rights or obligations have been determined, or from which legal consequences will flow.”
As stated by the majority, the Board’s refusal to reopen the previous denial of benefits fulfills those criteria. To begin with, the decision was the”terminal event” from the Board’s administrative review procedure. Since Justice Sotomayor noted, after attractive the intermediary’s denial of reopening to the Board, Salinas’ only recourse was to seek judicial scrutiny. Secondly, the characteristics of a reopening choice make it ” in which rights or obligations have been determined, or from which legal consequences will flow.” By way of example, a reopening is described as”a conscious determination… to rethink an otherwise final decision for purposes of revising that choice.” It thus entails significant changes that influence benefits and obligations under the RRA. The Board reads §355(f )’s prior reference to”another party aggrieved by a last decision under subsection (c)” to mean that each licensed party could seek review of just”a last choice under” §355(c). Part 355(f ), but utilizes the wide term”any last decision” without tying it into the earlier reference to §355(c). As stated by the majority, this is a”noteworthy omission,” since Congress used such limiting language elsewhere in Section 355.
The majority next determined that any ambiguity in the meaning of”any last decision” must be solved in Salinas’ prefer under the”strong presumption favoring judicial review of administrative actions.” Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015). While the Board contended that various cross-references in §355 establish that §355(f ) and §355(c) are coextensive. The majority pointed out that there are several signs that §355(f ) is wider than §355(c). Accordingly, it concluded that the Board didn’t meet the”significant burden” of showing that the statute’s”speech or structure” forecloses judicial review.
The majority rejected several other arguments raised by the Board. To begin with, it dismissed the Board’s effort to analogize §355(f ) into the judicial-review provision dealt in Califano v. Sanders, 430 U.S. 99 (1977), noting that the latter provision comprises an express limitation that §355(f ) does not, distinguishing Califano from this circumstance. Secondly, most rejected the Board’s argument that reopening does not be eligible for judicial review since it’s just a”refusal to generate a new decision” of obligations or rights, like the denial of reopening on Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449 (1999). In support, justice Sotomayor emphasized that the statute on Your House failed to implicate the presumption in favor of judicial review and was thinner than §231g, that only incorporates §355(f ) to the RRA. Ultimately, the majority held that the fact that the Board could decline to offer reopening did not indicate that, having chosen to supply it, the Board could steer clear of the plain text of §355(f ). The Board’s decision to deny or grant reopening is ultimately optional, yet, and therefore subject to reversal just for abuse of discretion.
Dissent
Justice Clarence Thomas penned a dissent, which was joined in dissent by Justices Samuel Alito, Neil Gorsuch, also Amy Coney Barrett. While Justice Thomas confessed that most”might well correctly translate the judicial review provision located in the Railroad Unemployment Insurance Act (RUIA),” he contended the case concerns the judicial review provision located in the Railroad Retirement Act (RRA). As stated by Justice Thomas, the essential issue is that which could be assessed, which is addressed at the RRA.
“Only Board decisions’determining the rights or liabilities of any person’ under the RRA are subject to judicial scrutiny,” Justice Thomas wrote. “Since the Board’s decision below did not decide any right or liability, the RRA does not provide for judicial scrutiny.”

US Supreme Court Rules Germany Entitled to State Immunity in the Nazi Art Case

In Federal Republic of Germany v. Philipp, 592 U. S. ____ (2021), the U.S. Supreme Court held that Germany had been entitled to State immunity in a suit seeking compensation for the forced selling of medieval art called the”Welfenschatz” through the rise of Nazi Germany. As stated by the Courta country’s alleged taking of property from its own nationals doesn’t collapse under Foreign Sovereign Immunities Act’s expropriation exception, which applies to”property obtained in violation of international law”

Facts of this Case

The respondents will be the heirs of German Jewish art dealers who made a consortium through the waning decades of the Weimar Republic to purchase an assortment of medieval relics called the Welfenschatz. The heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection into Prussia for a third of its value.

After unsuccessfully seeking compensation in Germany, the heirs brought several common law property asserts in U.S. District Court from Germany and SPK (together Germany). Germany proceeded to dismiss, asserting that it was immune from suit under the Foreign Sovereign Immunities Act (FSIA).  

The heirs contend that their claims fall within the exception for”property obtained in violation of international law,” since the coerced sale of the Welfenschatz, their property, constituted an act of genocide, and genocide is a violation of international human rights law. Meanwhile, Germany argues that the exception is inapplicable since the applicable global law is the international law of property–not the law of genocide–and below the international law of property that a foreign sovereign’s taking of its nationals’ property remains a domestic event. This”domestic takings rule” assumes that what a nation does to property belonging to its citizens within its borders is not the topic of international law. The District Court denied Germany’s motion to dismiss, and also the D.C. Circuit Court of Appeals affirmed.

Supreme Court’s Decision

It held that The phrase”rights in property taken in violation of international law,” as utilized in the FSIA’s expropriation exception, describes violations of the international law of expropriation and thereby comprises the domestic takings rule. Chief Justice John Roberts wrote on behalf of the unanimous Court.

As stated by the Supreme Court, the lower courts interpreted the expropriation exception also broadly. The Court also dismissed the respondents’ argument that the expropriation exception applied since the forced purchase of this Welfenschatz lacked the ban on genocide.

“We don’t decide whether the selling of this consortium’s land has been a act of genocide, since the expropriation exception is read as imitating the international law of expropriation rather than of human rights,” Chief Justice Roberts clarified. “We do not look to the law of genocide to find out whether we have jurisdiction within the heirs’ common law property claims. We look into the law of property” In further support, Roberts noted that the exception”places repeated emphasis on property and property-related rights, while injuries and acts we could connect with genocide are especially missing”

Citing Kiobel v Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013), Roberts highlighted that the Court has long recognized that”United States law governs domestically but doesn’t rule the planet.” Thus, the Court interpreted the FSIA as it does other statutes affecting global relations: to avoid, wherever possible,”producing friction in our relationships with [other] states and leading some to reciprocate by granting their courts permission to embroil the United States in costly and hard litigation.”

The Court also highlighted that a wide interpretation of the FSIA exception would invite suits against america in foreign courts.

As a Nation, we would be amazed –and might even initiate mutual action–if a court in Germany adjudicated claims by Americans they were entitled to countless millions of dollars due to human rights violations com- mitted by the United States Government years back. There’s absolutely no reason to expect that Germany’s response would be any different were American courts to exercise the authority claimed in this case.

The Supreme Court did not tackle Germany’s argument that the District Court was obligated to abstain from deciding the case with global comity motives or the heirs’ alternative argument that the purchase of this Welfenschatz is not subject to the domestic takings rule since the consortium members weren’t German nationals at the time of this trade.
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Supreme Court Considers “Hot Pursuit” in Closely Watched Fourth Amendment Case

Even the U.S. Supreme Court heard oral arguments in three cases last week. It also declared it will continue to listen to disagreements this session”in keeping with public health advice in reaction to COVID-19.”

The most-closely watched case is Lange v. California, that involves whether police pursuits for misdemeanors justify a warrantless entry, an issue that has divided the lower courts.  Absent approval or”exigent conditions,” a police officer normally can not enter a home to conduct a search or make an arrest without obtaining a warrant. Courts have held that exigent conditions may exist if officials are reacting to or investigating criminal actions, such as being in”hot pursuit” of a fleeing suspect.

However, the Supreme Court’s exigent circumstances precedents still have not addressed pursuits involving suspected misdemeanors, that are undoubtedly the most usual basis because of arrest. The issue before the Court in Lange is”Does pursuit of a individual who a police officer has probable cause to believe has committed a misdemeanor overwhelmingly qualify as an exigent circumstance enough to allow the officer to enter a home without a warrant?”

Though the Supreme Court’s decision isn’t expected until, several justices appeared poised to deny a categorical rule allowing warrantless police pursuit of misdemeanor suspects into a home.

Below is a brief summary:

Florida v. Georgia: The longstanding dispute involving Florida and Georgia involves the rights to the water in the Apalachicola-Chattahoochee-Flint River Basin. The question this time is”if Florida is eligible for fair apportionment of the waters of their Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to maintain a decent flow of fresh water to the Apalachicola Region.”
Rosen v. Dai & Rosen v. Alcaraz-Enriquez: The immigration cases, which have been consolidated for one hour of oral argument, centers around the credibility of an immigrant’s testimony.   The justices have agreed to answer two questions: (1) When a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and accurate whenever an immigration judge or the Board of Immigration Appeals adjudicates a program without making an explicit adverse credibility determination; also (2) if the court of appeals violated the remand principle as set forth in INS v. Ventura, 537 U.S. 12 (2002), if it decided in the first case the respondent, Ming Dai, was eligible for asylum and eligible for withholding of removal.Decisions in every one of the cases are anticipated prior to the Court’s term ends in June. Please check back for updates.
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Rep. Eric Swalwell Sues Trump And His Obnoxious Son For Inciting MAGA Mob

(Photo by Justin Sullivan/Getty Images)

The Senate may have failed to convict Donald Trump, but House impeachment manager Eric Swalwell isn’t giving up just yet. Today the California congressman filed a civil suit against the former president, his hapless eldest son, his leaky pro bono lawyer, and Alabama Rep. Mo Brooks, all of whom addressed the MAGA mob before it stormed the Capitol on January 6.

“Today I filed a civil claim against Donald J. Trump, Donald Trump Jr., Rudolph Giuliani, and Representative Mo Brooks for inciting an attack against the Capitol that terrorized lawmakers and prevented us from doing our job of certifying the votes of the American people,” he tweeted.

“As a direct and foreseeable consequence of the Defendants’ false and incendiary allegations of fraud and theft, and in direct response to the Defendants’ express calls for violence at the rally, a violent mob attacked the U.S. Capitol and stopped Congress’s counting of electoral college votes. The Defendants assembled, inflamed and incited the mob, and as such are wholly responsible for the injury and destruction that followed.”

Whether a civil suit in U.S. District Court will be an effective means of redress remains to be seen. After an exhaustive recitation of the Defendants’ behavior leading up to the insurrection, Swalwell claims that they conspired to violate his civil rights by interfering with his official duty to certify the presidential election results.

This echoes the claims made by Rep. Bennie Thompson, who alleged a violation of 42 U.S.C. § 1985, better known as the Ku Klux Klan Act of 1871, a Reconstruction-era law aimed at mobs who would interfere with federal officials doing their jobs. And indeed Swalwell has requested that his suit should be treated as related to Rep. Thompson’s case and placed on Judge Amit Mehta’s docket. (Naturally this has nothing to do with Mehta’s record of hostility to Trump’s wild claims of executive immunity.)

The nine counts range from the quotidian (negligence, intentional infliction of emotional distress, incitement), to the interesting (the KKK claim) to the HUH WHAT??? (aiding and abetting a common law assault because, although he was never physically assaulted, the presence of the mob “caused the Plaintiff to fear imminent physical harm”). It should be an fascinating First Amendment case, with Trump et al. sure to assert that they were simply exercising their right to free speech and had no idea the mob might get unruly, notwithstanding Trump’s recommendation to acting Defense Secretary Christopher Miller on January 5 that 10,000 National Guard troops would be needed to control the crowd.

The former president commented via his spokesman Jason Miller, who described Swalwell to the Washington Post as “a low-life with no credibility” and rehashed discredited allegations that the California congressman is a “compromised” Chinese asset.

“I make no apologies whatsoever for fighting for accurate and honest elections,” Brooks said, in comments reported by Newsweek. “In sum, I wear Communist-sympathizer Swalwell’s scurrilous and malicious lawsuit like a badge of courage.

Still waiting on Don Jr. and Rudy to poke their heads up. Let’s assume that Rudy said, “Ha, take a number, pal,” and Deej is trying to hold his jaw still long enough to form semi-coherent sentences.

Swalwell is represented by Joseph Caleb and Philip Andonian of Caleb Andonian PLLC, Matthew Kaiser and Sarah Fink of KaiserDillon PLLC, and Barry Coburn and Marc Eisenstein of Coburn and Greenbaum PLLC.

Swalwell v. Trump [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.