February 18, 2020 Appellate Issues | Winter 2020

Supreme Court Preview: Next Year’s Headlines Today

By Gretchen Harris Sperry

The annual Appellate Judges Education Institute Summit is famed for its high-quality programming and exceptional access to the most well-regarded appellate practitioners of our day. In any given year, it would be thrilling to hear former United States Solicitor General Paul Clement and Stanford Law Professor Pam Karlan analyze cases currently pending before the United States Supreme Court. This year’s presentation was all the more insightful as they offered an insider’s view of the several cases they are each handling before the Court during this blockbuster term. Clement and Karlan brought attention to this Court’s renewed commitment to textualism and astutely wove that theme through their discussion.

Bostock v. Clayton County, GA (17-1618, argued Oct. 8, 2019 by Karlan). In this closely watched case, Pam Karlan argued on behalf of two men who claim they were fired from their jobs because they were gay. Under the plain language of Title VII of the Civil Rights Act, employers may not discriminate against individuals “because of [their] sex.” Rather than having to consider whether Congress intended to prohibit sexual orientation discrimination when passing Title VII, Karlan argued that the plain language of the statute supported this protection for the LGBT community. That is, taking adverse employment action against a man for having a relationship with another man is discriminatory under Title VII because no adverse action would befall a woman for having the same relationship. In other words, the plaintiffs could concede that Congress did not contemplate sexual orientation protection when it passed Title VII and still win. Ironically, Karlan’s textualist approach here, which favors extending Title VII protection for sexual orientation, creates a philosophical conflict for conservative members of the Court, who tend to view this case as one involving a social issue best addressed through the political process. Justice Anthony Kennedy had been the swing vote in support of LGBT rights in the past and it will be interesting to see how the Court realigns in his absence. Bostock was argued as part of a trio of cases that also included R.G. & G.R. Harris Funeral Homes v. EEOC, 18-107, which asks whether Title VII protections extend to transgendered individuals.

Maine Community Health Options v. United States (18-1023, argued Dec. 10, 2019 by Clement). Under the provisions of the Affordable Care Act passed in 2011, health insurance companies were eligible for reimbursement by the federal government for losses incurred in providing coverage for high-risk or otherwise uninsurable patients. All insurers were required to pay a certain amount into a fund and reimbursable expense claims were to be paid out of that fund. Since 2014, Congress has failed to appropriate funding from the pay-in fund to compensate insurers for their losses, and the claimed losses are now approaching $12 billion. The Federal Circuit Court of Appeals held that the government was obligated to reimburse the insurers under the statute. But it looked to the appropriations rider and the relatively unilluminating legislative history to determine Congress’s intent in failing to appropriate. The court concluded that the failure to appropriate amounted to an implied repeal of the statute.

Clement framed the case more fundamentally: the plain language of the statute stating that the government “shall pay” these costs created a statutory and contractual obligation to pay, irrespective of the source of the funds and irrespective of the content of the appropriations rider or legislative history. The insurers did not receive the benefit of their bargain and would not have agreed to participate if their losses were not reimbursed. Although he surmised that this failure to appropriate was an attempt by ACA opponents to undermine the statute without political accountability, Clement noted that this case could vastly affect the way companies do business with the government. He also expressed surprise that, at this point in the nation’s history, there was still so much uncertainty about what happens when Congress fails to appropriate funds for a payment it is obligated to make.

Seila Law v. CFPB (19-7, to be argued March 3, 2020 by Clement). In this case, the plaintiff law firm was being investigated for alleged telemarketing fraud by the Consumer Financial Protection Bureau, a government agency created as part of the Dodd-Frank Act after the 2008 financial crisis. In response to a request for documents, the firm challenged the CFPB’s validity, arguing that it is the product of an unconstitutional violation of the separation of powers. When Congress created the bureau, it statutorily restricted the president’s ability to remove the director of the agency from office for cause only. Although it could arguably undo all of the CFPB’s decisions over the past 9 years, the CFPB agreed with the petitioner that the removal provision was unconstitutional. The Supreme Court then appointed Clement to argue in support of the CFPB structure, contrary to the conservative position he often represents in high-profile matters. Clement also remarked on another unique aspect of this case: while sitting on the D.C. Circuit Court of Appeals, Justice Kavanaugh dissented in a case involving a similar challenge to the structure of the CFPB, finding it to be an unconstitutional violation of the separation of powers.

New York State Rifle & Pistol Assoc. v. City of New York (18-280, argued Dec. 2, 2019 by Clement). This case began as a dispute about whether and how individuals could transport duly licensed weapons outside of their homes, but has become something more symbolic. The City of New York passed a regulation barring gun owners from traveling with guns outside of the city limits. A group of New York City residents challenged the rule as an unconstitutional abridgement of their Second Amendment right to keep and bear arms. The district court upheld the rule, and the Second Circuit affirmed. The Supreme Court granted review, making this the first gun rights case it would hear in ten years. Before merits briefing was completed, however, the City repealed the regulation and moved to dismiss the case as moot. Clement opposed the motion, expressing concern about allowing litigants to moot a case after review is granted. The Court denied the motion and set the matter for argument. Clement characterized this case as “idiosyncratic,” and does not find this case to be particularly well suited for a new proclamation on the Second Amendment. However, it demonstrates the Court’s willingness to revisit gun rights cases. Justice Kennedy had been hesitant to grant review in Second Amendment cases after McDonald v. City of Chicago in 2010, but the new composition of the Court appears more eager to do so.

Hernandez v. Mesa (17-1678, argued Nov. 12, 2019). While Hernandez does not involve the textual interpretation of a statute, Clement explained how it further illustrates this Court’s commitment to anchoring its decisions in language. In this case, a 15-year old Mexican boy was standing at the United States-Mexico border, across from a Border Patrol agent. The boy was on the Mexico side of the border and the agent was on the United States side. The agent fired his weapon across the border, killing Hernandez. The question here is whether Hernandez’s family can sue the agent under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for using excessive force in violation of the boy’s Fourth and Fifth Amendment rights.  In Bivens, the Court recognized an implied right of action against a federal agent where there was a constitutional violation and the law was clearly established. However, in 2017, the Court issued Ziglar v. Abbasi, 582 U.S. ___, in which it cautioned against expanding Bivens to a “new context” when there are “special factors counseling hesitation.” Because it is not clear that constitutional protections apply to a foreign citizen on foreign soil, the district court dismissed, finding that this would be an improper expansion of Bivens to a new context. The Fifth Circuit affirmed. Clement remarked that while tragic, this will be a difficult case for the plaintiffs. In Ziglar, the Court showed its antipathy to Bivens and the potential for implying a new right of action for constitutional violations against non-citizens on foreign soil. It is likely that the Court will further contain Bivens here.

Dep’t of Homeland Security v. Regents of the University of California (18-587, argued Nov. 12, 2019). The Deferred Action for Childhood Arrivals (DACA) policy, enacted during the Obama administration, allowed undocumented young adults who came to the United States as children, known as “Dreamers,” to apply for protection from deportation. DACA allowed Dreamers to get work status, access to health insurance, and driver’s licenses, and provided a path to citizenship. The Trump administration ended the policy in 2017. Several lawsuits were filed, challenging that action as violating the Administrative Procedures Act. In response, Clement noted, the government argued dueling positions. On the one hand, it argued that the decision to end DACA is not subject to judicial review because it was a discretionary policy decision that cannot be second guessed by the courts. On the other hand, it argued that it was required to end DACA because it was an illegal policy enacted by the Obama administration, in which case ending the program would not be discretionary. As a result, the discussion at oral argument shifted to the process by which the Trump administration made its determination to end the program under the APA, similar to the analysis applied in reviewing the census question in Department of Commerce v. New  York, 588 U.S. ___. That is, assuming the Court found the policy legal, did the Trump administration adequately consider the effect of ending the program? Clement remarked that the government has created an unusual and more difficult argument for itself by undermining the administration’s authority, arguing that the decision to discontinue DACA was due to something other than the president’s prerogative.

There are an unusually high number of politically sensitive cases before the Court in this October 2019 term. Perhaps, as Clement speculates, that was by design, postponing review of these long-pending cases and maintaining a “sleepy” 2018 term following Justice Kavanaugh’s installation and the headline-grabbing process leading up to it. This means, of course, that the Court’s decisions in these high-profile cases likely will be released in the middle of a presidential campaign. If nothing else, that may reinforce the adage that elections have consequences, especially as to the Court and future appointments.

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Gretchen Harris Sperry

Gretchen Harris Sperry is a partner at Hinshaw & Culbertson LLP in Chicago and chairs its Appellate Practice Group. In addition to serving on the CAL Executive Board, she also serves as the President of the Illinois Appellate Lawyers Association. Her practice includes appeals and critical motion practice as well as white collar criminal defense and internal investigations.