Supreme Court News - Spring 2024

As of late April, the Supreme Court has issued 18 non-shadow-docket opinions. It has not yet resolved any of the “big” administrative law cases. So, we don’t know, among other things, whether Chevron has survived (Loper Bright Enterprises v. Raimondo, No. 22-451, and Relentless, Inc. v. Department of Commerce, No. 22-1219), whether adjudication by SEC ALJs of enforcement actions seeking civil penalties violates the Seventh Amendment (Securities and Exchange Commission v. Jarkesy, No. 22-859), or whether a plaintiff’s challenge to a rule under the Administrative Procedure Act accrues when the rule is issued or when it causes the plaintiff to suffer legal wrong (Corner Post v. Board of Governors of the Federal Reserve System, No. 22-1008). Seems like June might be busy.

In the meantime, the Court has issued 18 opinions, several of which do shed some light on general administrative law principles. Summaries of four follow.

Waiving Sovereign Immunity: Dept. of Agriculture Rural Development Rural Housing Service v. Kirtz, 601 U.S. 42 (2024).

Justice Gorsuch, writing for a unanimous Court, held that the Fair Credit Reporting Act (FCRA) waived the Department of Agriculture’s sovereign immunity against a claim that it had falsely informed a credit reporting agency that the plaintiff was past due on loan repayments.

Justice Gorsuch began his analysis by rehearsing familiar principles. Absent waiver by Congress, the United States is immune from suits for money damages. The Court will find a waiver only where statutory language is “unmistakably clear” on the issue. Id. at 49 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)). This clear statement rule precludes reliance on legislative history because: (a) if the text of a statute is ambiguous regarding sovereign immunity, this ambiguity must be construed in favor of the government, regardless of legislative history; and (b) if the text of a statute is not ambiguous regarding sovereign immunity, legislative history cannot be used to create it. Id.

Justice Gorsuch explained that the Court has found two situations warranting waiving sovereign immunity. First, a statute may reference waiving sovereign immunity “in so many words.” Id. (cleaned up). Second, “a statute creates a cause of action and explicitly authorizes suit against a government on that claim.” Id. (cleaned up).

He then concluded that the FCRA waiver satisfied the requirements for the second category. Specifically, FCRA imposes a duty on persons who furnish information to consumer reporting agencies to investigate complaints and make needed corrections. 15 U.S.C. § 1681s-2(b). A plaintiff can sue “[a]ny person” for willfully or negligently failing to comply. 15 U.S.C. §§ 1681n & 1681o. Completing the chain, § 1681a(b) specifies that “person” includes “any … governmental … agency.” 15 U.S.C. § 1681a(b).

Justice Gorsuch devoted the rest of his relatively brief opinion to shooting down the government’s numerous efforts to evade the preceding argument—e.g.: The fact that other provisions of FCRA arguably contained even more obvious waivers of sovereign immunity did not undermine the conclusion that the combination of §§ 1681a, 1681n, and 1681o effected a clear waiver. Id. at 51-52. Contrary to the government’s implication, “a cause of action authorizing suit against the government may waive sovereign immunity even without a separate waiver provision.” Id. at 53. The government was wrong to suggest, based on extrapolation from the canon against superfluity, that a statutory provision can waive sovereign immunity “only if that provision would have no other role to play in the statutory scheme.” Id. Nor was it true that a statute cannot waive sovereign immunity where “a cause of action merely cross-references a general definition that includes sovereigns along with non-sovereigns.” Id. at 54.

The Formidable Burden of Demonstrating Mootness from Voluntary Cessation: FBI v. Fikre, 144 S. Ct. 771 (2024).

Fikre’s allegations, accepted as true for the purpose of resolving a motion to dismiss for mootness, included: He is a naturalized United States citizen who resides in Portland, Oregon. In 2009, he flew to Sudan to pursue business opportunities. At the United States embassy, FBI officials informed him that he had been placed on the No Fly List and could not return to the United States. They offered to help remove him from the list if he served as an informant, reporting on activities at his Portland mosque. Fikre refused. He traveled to the United Arab Emirates where he was detained and tortured. Emirati authorities told him that they had detained him at the behest of the FBI. After several months, Emirati authorities flew him to Sweden, where he had relatives. In February 2015, Swedish authorities flew him back to Portland, Oregon.

While in Sweden, Fikre sued the government, alleging that it had violated his right to procedural due process “by failing to provide any meaningful notice of his addition to the No Fly List, any information about the factual basis for his listing, and any appropriate way to secure redress.” Id. at 776. He sought declaratory and injunctive relief. In May 2016, the government informed Fikre that he had been removed from the list but offered no explanation. The government then moved to dismiss Fikre’s complaint as moot; the district court granted the motion, but the Ninth Circuit reversed. On remand, the government submitted a declaration from the Acting Deputy Director for Operations of the Terrorist Screening Center. It represented that Fikre “will not be placed on the No Fly List in the future based on currently available information.” Id. (quoting App. to Pet. for Cert. 118a, ¶ 5). Repeating the cycle, the district court dismissed for mootness, and the Ninth Circuit reversed.

In another unanimous opinion from Justice Gorsuch, the Supreme Court held that the government’s promise did not manage to satisfy the “formidable burden” of demonstrating mootness due to “voluntary cessation of a challenged practice.” Id. at 777 (citations omitted). To prevent a defendant’s manipulation of jurisdiction, voluntary cessation moots a case “only if the defendant can show that the practice cannot reasonably be expected to recur.” Id. (cleaned up).

The government’s declaration did not carry this burden because its promise that Fikre would not be relisted for past conduct did not preclude relisting him based on similar future conduct, such as “say, attend[ing] a particular mosque or refus[ing] overtures to serve as an informant.” Id. at 778.

The government observed that Fikre had presumably participated in religious organizations since his delisting in 2016. It contended that the fact that it had not relisted Fikre during this time demonstrated that it was unlikely to relist him based on future conduct. Unimpressed, Justice Gorsuch responded, “[a] case does not automatically become moot when a defendant suspends its challenged conduct and then carries on litigating for some specified period. Nor can a defendant’s speculation about a plaintiff ’s actions make up for a lack of assurance about its own.” Id.

State Action on Social Media?: Lindke v. Freed, 601 U.S. 187 (2023).

The role of social media in administrative law will no doubt be a hot topic for years to come. In Lindke, the Supreme Court took up what may be thought of as a threshold issue regarding social media’s intersection with public law: whether a state official’s social media posts are state action that triggers the First Amendment rights of commenters to those posts. James Freed became City Manager of Port Huron, Michigan in 2014. At that time, Freed updated his personal Facebook page to include information about his role as City Manager. In addition to personal information, Freed’s posts included information about his job as City Manager and solicited public feedback on issues of public concern. Freed also responded to comments from members of the public about his posts. When Kevin Lindke posted a series of comments on Freed’s Facebook page expressing concern about Port Huron’s response to the COVID-19 pandemic, Freed first deleted Lindke’s comments. He then blocked Lindke from commenting altogether.

Lindke sued Freed under 42 U.S.C. § 1983, claiming that Freed’s blocking of Lindke from Freed’s Facebook page violated Lindke’s First Amendment rights. Freed responded that his social media activity was not state action and thus was not subject to suit under § 1983. The district and circuit courts both ruled for Freed on the grounds that he managed his Facebook page in his capacity as a private citizen.

The Supreme Court vacated and remanded. In Justice Barrett’s unanimous decision, the Court explained that while most state action cases address whether private individuals have engaged in state action in certain circumstances, the present case presents the more unusual question of whether a state official engages in state action when they are purporting to act in their capacity as a private citizen. The Court began by noting that Freed’s status as a state employee was not dispositive because state action turns on “substance, not labels.” Id. at 197. The Court instead announced a two-part analysis to identify state action in cases where a state official appears to be acting in their private capacity. First, the official must “possess[] actual authority to speak on the State’s behalf,” such that Freed’s speech in this case was “actually part of the job that the State entrusted the official to do.” Id. at 189, 201. Second, the public official must have “purported to exercise that authority when he spoke on social media.” Without an explicit label designating his page “personal” or “official,” which would create a “heavy presumption” in favor of the label, Freed’s postings must be evaluated for their content and function. The Court elaborated on its content and function approach by distinguishing explicitly official posts, which contain otherwise unavailable information, from posts that merely repeat official information available elsewhere. While the former are likely to constitute state action under the Court’s new framework, the latter are not. Finally, the Court acknowledged that the nature of the social media technology being used by public officials may impact the analysis. For example, “[b]ecause Facebook’s blocking tool operates on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment.” Id. at 204.

Judicial Review of Immigration Judges’ Discretionary Decisions: Wilkinson v. Garland, 601 U.S. 209 (2024).

Situ Kamu Wilkinson was deported for overstaying his tourist visa. He applied for discretionary cancellation of his removal under 8 U.S.C. § 1292(a)-(b) on the grounds that his case met one of § 1229b(b)(1)(D)’s criteria by creating “exceptional and extremely unusual hardship” for his child, who is a United States citizen. Wilkinson argued that if he were deported, his son’s medical condition would worsen because Wilkinson would not be able to provide the same financial and emotional support.

The Immigration Judge (IJ) denied Wilkinson’s request for discretionary cancellation on the grounds that the exceptional hardship criteria was not met, and the Board of Immigration Appeals affirmed. The Third Circuit held on appeal that it lacked jurisdiction to review the IJ’s discretionary decision under 8 U.S.C. § 1252(a)(2)(B)(i).

The Court granted certiorari to determine whether the IJ’s decision falls under § 1252(a)(2)(B)(i), which prohibits review of any “judgment[s] regarding the granting of [discretionary] relief,” or § 1252(a)(2)(D), which creates an exception allowing for review of “questions of law.” Justice Sotomayor, writing for the majority, reversed in part and remanded. Her analysis relied on the Court’s previous holding in Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), for the proposition that “questions of law” under § 1252(a)(2)(D) includes mixed questions of law and fact, including mixed questions such as the extreme hardship inquiry in Wilkinson’s case that “require[] a close examination of the facts.” Id. at 222.

Justice Alito, joined by Chief Justice Roberts and Justice Thomas, dissented on the grounds that the majority’s reading of Guerrero-Lasprilla is overbroad. According to Justice Alito, Guerrero-Lasprilla addressed the relatively narrow question of whether the BIA had applied the wrong legal test in its equitable tolling analysis. Although he conceded that the majority in Guerrero-Lasprilla “stated broadly that ‘questions of law’ include all questions that involve the application of the law to a particular set of facts,” he pointed out that such a broad reading was not necessary to resolve that case, and that such a broad reading would, as he also argued in his dissent in that case, “lead to ‘absurd results in light of the statute’s structure.’” Wilkinson, 601 U.S. at 229, 230.