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March 28, 2021


Spring 2021 Edition

Priyanka Shingwekar, 2021 Spring Intern

Recent Decisions

Federal Republic of Germany v. Philipp

Oral argument date: December 7, 2020

Decided on: February 3, 2021

Facts: In the 1930s, several Jewish art dealers were coerced into selling art pieces to Nazi leaders. In 2014, the heirs of the dealers attempted to retrieve the pieces and participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution. However, the Advisory Commission recommended against restitution of the collection. The heirs filed a lawsuit in federal court in the District of Columbia, invoking the expropriation exception of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue.”

Issue(s): (1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act provides jurisdiction over claims that a foreign sovereign has violated international human rights law when taking property from its own nationals within its own borders; (2) Whether the doctrine of international comity precludes the exercise of jurisdiction in this case.

Holding: The Court unanimously ruled in favor of Germany and held that the Foreign Sovereign Immunities Act’s expropriation exception, 28 U.S.C. § 1605(a)(3), incorporates the domestic takings rule, which recognizes that a foreign sovereign’s taking of its own nationals’ property is not a violation of international law.

Significance: This decision illuminates how international law can be used to handle individual property claims. The Court held that international law binds relationships between states but not between states and individual people. Thus, whatever a country does with its citizens’ property within its borders is not a subject of international law. This ruling will affect the process of restitution for victims of international crimes against humanity. Congress has already passed several statutes addressing redress for victims of the Holocaust. As per the Court’s ruling, victims should seek restitution through these statutes and not through the judicial system.

U.S. Fish and Wildlife Service v. Sierra Club

Oral argument date: November 2, 2020

Decided on: March 4, 2021

Facts: Section 316(b) of the Clean Water Act directs the Environmental Protection Agency (EPA) to regulate the design and operation of cooling water intake structures. In April 2011, the EPA proposed new regulations and consulted the Fish and Wildlife Service and the National Marine Fisheries Service to produce a written biological opinion on the impacts of the proposed agency action. The Sierra Club made a Freedom of Information Act (FOIA) request for records generated during the EPA’s rule-making process, including the documents generated as part of the consultation with the Services. The Services withheld some of the requested records, citing Exemption 5 of FOIA, which shields from disclosure documents subject to the “deliberative process privilege.”

Issue(s): Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process and  concerned a proposed agency action that was later modified in the consultation process.

Holding: The Court ruled that the deliberative process privilege gives protection from disclosure under the Freedom of Information Act to in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.

Significance: The Court’s recognition that the government can withhold draft documents as deliberative could have a significant impact across every sector and agency. While the Court maintained that government agencies cannot deem documents as “drafts” to avoid disclosure, this decision will still make the process of obtaining such draft documents more difficult. Any companies or entities that are interested in the government’s deliberation process before a decision may be constrained in their ability to access all of the relevant information.

The Supreme Court of the United States, Washington, D.C.

The Supreme Court of the United States, Washington, D.C.

March Arguments

Cedar Point Nursery v. Hassid

Oral argument date: March 22, 2021

Facts: California’s Agricultural Labor Relations Act of 1975 allows union organizers access to agricultural employees at employer worksites under specific circumstances. On October 29, 2015, organizers from the United Farm Workers union entered the Cedar Point Nursery, without providing prior written notice. The UFW allegedly disrupted the workers, and some workers left their work stations to join the protest, while a majority of workers did not. Cedar Point sued the Agricultural Labor Relations Board in federal district court, alleging that the access regulation, as applied to them, amounted to a taking without compensation, in violation of the Fifth Amendment, and an illegal seizure, in violation of the Fourth Amendment.

Issue(s): Whether the uncompensated appropriation of an easement that is limited in time affects a per se physical taking under the Fifth Amendment.

Significance: The Plaintiffs argued that the right to exclude unwanted persons from property should be a fundamental right, thus invoking the highest level of constitutional scrutiny. As such, laws that regulate this fundamental right must be narrowly tailored to achieve a compelling state interest. If the Justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its “taking” of the land. The Court will have to decide whether a fundamental right is at stake, as well as whether the Plaintiffs are entitled to Fourth and Fifth Amendment protection.

U.S. v. Cooley

Oral argument date: March 23, 2021

Facts: Joshua James Cooley was parked in his pickup truck on the side of a road within the Crow Reservation in Montana when Officer James Saylor of the Crow Tribe approached his truck in the early hours of the morning. During their exchange, the officer assumed, based on Cooley’s appearance, that Cooley did not belong to a Native American tribe. The officer grew suspicious that Cooley was engaged in unlawful activity and detained him to conduct a search of his truck, where he found evidence of methamphetamine. Cooley was charged with weapons and drug offenses in violation of federal law. He moved to suppress the evidence on the grounds that Saylor was acting outside the scope of his jurisdiction as a Crow Tribe law enforcement officer when he seized Cooley, in violation of the Indian Civil Rights Act of 1968.

Issue(s): Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Significance: The Court will have to determine whether the police officer had justified jurisdiction in detaining the respondent, and also will have to decide whether the respondent was entitled to protection under the Indian Civil Rights Act and the Fourth Amendment. If the Justices rule in favor of the respondent, they will have to discuss whether the Indian Civil Rights Act applies to people or land in regard to where police jurisdiction ends. This ruling bears implications for other cases involving the protection of tribal lands and communities, and their relationship to Fourth Amendment protections.

Caniglia v. Strom

Oral argument date: March 24, 2021

Facts: After a violent argument, the wife of the Plaintiff, Edward Caniglia, left her home at night and returned in the morning with a police escort. The ranking officer determined that Caniglia was imminently dangerous to himself and others and asked him to go to the hospital for a psychiatric evaluation, which Caniglia agreed to do. While Caniglia was at the hospital, the officer (with telephone approval from a superior officer) seized two of Caniglia’s guns, despite knowing that Caniglia did not consent to their seizure. The Plaintiff filed a lawsuit under Section 1983 alleging the seizure of his firearms constituted a violation of his rights under the Second and Fourth Amendments. Although the Supreme Court has recognized “community caretaking” as an exception to the Fourth Amendment’s warrant requirement in the context of a vehicle search, whether that concept applies in the context of a private home is a new matter.

Issue(s): Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.

Significance: This decision will further elucidate the “community caretaking” exception of the Fourth Amendment’s warrant requirement. If the Court rules in favor of the respondent, this decision may create a loophole for police officers’ searches and seizures. The Court must determine whether the exception applies to the new context of a private home, which can open the floodgates of allowing further neglect of the warrant requirement.

April Sitting

Greer v. U.S.

Oral argument date: April 20, 2021

Facts: In 2018, Gregory Greer was convicted of being a felon in possession of a firearm, in violation of Title 18 of the United States Code. Greer appealed to the U.S. Court of Appeals for the 11th Circuit, arguing that the law was unconstitutional, based on the Supreme Court's decision in Rehaif v. United States. The 11th Circuit affirmed the conviction. Greer appealed to the Supreme Court, which vacated the 11th Circuit's ruling and remanded the case for reconsideration. On remand, the 11th Circuit concluded that although Greer had shown plain error, he could not prove that he experienced prejudice as a result of the errors, nor that they affected the fairness, integrity, or public reputation of his trial. To reach this conclusion, the court looked at the entire trial record and Greer’s previous convictions, not merely the evidence submitted to the jury.

Issue(s): Whether, when applying plain-error review based upon an intervening Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

Significance: This case will clarify what exactly appellate courts can review outside of the court record. This decision may implicate how lower court proceedings are conducted. If the Court rules in favor of the respondent, it may introduce flexibility for what lower courts can consider in their decisions, which can affect an individual’s right to a fair and just trial.

Americans for Prosperity Foundation v. Becerra

Oral argument date: April 26, 2021

Facts: The California Attorney General’s office has a policy requiring charities to provide the state, on a confidential basis, information about their major donors. The Petitioners filed a lawsuit alleging that the filing requirement unconstitutionally burdened their First Amendment right to free association by deterring individuals from financially supporting them. The district court reasoned that the government’s filing demands were not the “least restrictive means” of obtaining the information and thus did not satisfy “strict scrutiny.” The U.S. Court of Appeals for the Ninth Circuit reversed, based on its conclusion that “exacting scrutiny” rather than “strict scrutiny” was the appropriate standard.

Issue(s): (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; (2) whether the policy of the California Attorney General’s Office requiring charities to disclose the names and addresses of their major donors violate the First Amendment of the U.S. Constitution.

Significance: This decision warrants the Court to consider whether a state can routinely compel nonprofits to disclose their donors and affect organizations involved in election campaigns. This would affect campaign finance laws and precedents that have regarded the donation of money as protected speech. Furthermore, the Court will have to address the issue of invoking strict scrutiny and whether state Attorney General offices have the authority to determine the type of constitutional review.

Mahanoy Area School District v. B.L.

Oral argument date: April 28, 2021

Facts: B.L., a high school student, tried out for and failed to make her high school's varsity cheerleading team, making instead only the junior varsity team. Over a weekend and away from school, she posted a picture of herself with a profane caption directed at her school. The coaches decided B.L.’s post violated team and school rules, which B.L. had acknowledged before joining the team, and she was suspended from the junior varsity team for a year. B.L. sued the school alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague.

Issue(s): Whether the First Amendment prohibits public school officials from regulating off-campus student speech.

Significance: This case gives the Court the opportunity to redetermine the scope of the ruling in Tinker v. Des Moines Independent Community School District, which held that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school. The outcome of this case will have implications in determining whether individuals are entitled to First Amendment protections based on the age and position of the speaker, as well as the location of the speech.

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS Updates (Winter 2021, Fall 2020, Summer 2020) from the Section's quarterly e-Newsletter on cases related to civil rights and social justice. 

Additionally, the Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing social inequities and their legal connection. If you are interested in learning more about these issues, recordings of past webinars can be found on the Section’s YouTube channel. 

Please refer to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs filed by the ABA pertaining to civil rights cases. 

For existing policy, check out the Policy Project, featuring a compilation of all policy drafted by the ABA relating to the committees of the Section of Civil Rights and Social Justice.