This Week at the Court – Week of June 12, 2017

On Monday, Justice Gorsuch announced his first opinion as a Justice of the Supreme Court in Henson v. Santander Consumer USA, Inc.,, was the first of four opinions the Court announced from the bench. In Henson, the plaintiffs alleged that Santander had violated the Fair Debt Collection Practices Act (FDCPA) in its communications with individuals who owed debts. Santander, however, contended that it was not a “debt collector” as defined by the FDCPA because it was collecting debts that it owned, not on behalf of another creditor, even though it had not originated the debts itself but had purchased them. The Supreme Court agreed with Santander in a unanimous decision holding that when a company purchases and then tries to collect debts, it is not a “debt collector” within the meaning of the FDCPA. The FDCPA defines a “debt collector” as a third party who collects a debt on behalf of another, not a party collecting a debt that it is owed firsthand. Joseph P. Williams of USNews noted that Justice Gorsuch’s writing skills “seem to be as good as advertised” as he “delivered a cleanly written opinion, using common language, discarding legal jargon when appropriate and showing some empathy for the common person.” And Tony Mauro of The National Law Journal wrote that the assignment of this opinion to Gorsuch “followed the high court’s tradition of giving the newbie a positive experience by assigning him or her to write in a relatively straightforward case likely to yield a unanimous decision.” Mauro added that the opinion itself, which was in fact unanimous, “follows [Gorsuch’s] pledge to focus on the text of statutes before the court.” And Colin Wilhelm of Politico noted that although “Gorsuch acknowledged that a reasonable person could argue that the law be revisited” to cover the at issue, the opinion explained that “it is not this Court’s job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” For more commentary on this opinion, check out The Washington Post, Bloomberg, and  The Washington Examiner.

A second opinion announced on Monday was in Sessions v. Morales-Santana. In this case, the Court addressed an issue at the intersection of immigration law and sex discrimination. For many years, Congress has provided that children who have one U.S. citizen parent and are born abroad are entitled to U.S. citizenship themselves only if one of the parentsresided in the United States for at least ten years prior to the child’s birth, at least five of which occurred after the parent turned 14 (the “presence requirement”). This presence requirement applies to children of married couples where one of the parents is a citizen, and it also applies to children of unmarried couples where the father is a citizen. But the statute makes an exception for children of unmarried couples where it is the mother who is a U.S. citizen. Under those circumstances, the mother can transmit her citizenship if she lived in the United States for only one continuous year prior to the child’s birth.

Morales-Santana was born in the Dominican Republic. His father was a U.S. citizen, but his mother was not, and they were unmarried when he was born. (They later married.) Morales-Santana was denied citizenship because his father did not meet the presence requirement. He challenged the statute as unconstitutional gender discrimination in violation of the Constitution’s guarantee of equal protection because, had his mother been the U.S. citizen, she would have met the more generous presence requirement. The Supreme Court, in an opinion by Justice Ginsburg, joined by the Chief Justice and Justices Breyer, Kagan, Kennedy, Sotomayor, agreed and, quoting Obergefell v. Hodges, held that a gender-based “classification must substantially serve an important governmental interest today, for ‘in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.’” Mark Joseph Stern of  Slate noted the significance of this citation to Obergefell as having potentially longterm implications for gender discrimination law, and along with others, noted that the Chief Justice, who dissented forcefully in Obergefell, nonetheless joined the Court’s opinion in full.

Unfortunately for Morales-Santana, although the Court concluded that the government could not justify the statute’s gender-based distinction, it held that appropriate remedy in this case did not allow it to extend the rule for children of U.S. citizen unwed mothers to his case. iInstead, as Ian Millhiser of ThinkProgress explains, the Court required the Goverment to “apply the harsher rule universally.” Justice Thomas, joined by Justice Alito, concurred in the judgment but would not have reached the constitutional question at all. More information on the ruling is available from The New York Times and the Washington Post, which noted that Justice Ginsburg cited some of her own most significant work on gender discrimination, notably United States v. Virginia Military Institute.

Additionally on Monday, the Court issued its opinion in Microsoft Corporation v. Baker. The plaintiffs in this case brought a putative class action, but the class allegations were stricken. They then voluntarily dismissed their individual claims with prejudice but appealed the rulings on the class allegations. In part, this maneuver was an effort to avoid the fact that there is no appeal as of right for rulings on class certification. The question before the Court was whether a federal court of appeals had jurisdiction over those class-action issues. In an opinion written by Justice Ginsburg, the Court, relying on Federal Rule of Civil Procedure 23(f) and 28 U.S.C. 1291, held that there was no federal appellate jurisdiction once the plaintiffs dismissed their individual claims with prejudice. The ruling reiterates that parties generally have a right to appeal only a final judgment. Although the Court was unanimous (8-0) as to the result, Justice Thomas wrote an opinion concurring in the judgment, which was joined by Chief Justice Roberts and Justice Alito, and would have held that there was no Article III case or controversy left once the plaintiffs dismissed their individual claims. Greg Stohr of Bloomberg stated that this decision gives companies a “new procedural tool in class action litigation.” Deborah J. LaFetra of The Pacific Legal Foundation opined that this decision “put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule.” Check out  Reuters, ARS Technica, and US News for more information on this ruling.

The final opinion in an argued case that the Court issued on Monday was Sandoz Inc. v. Amgen Inc., a unanimous (9-0) opinion written by Justice Thomas. This case involved notice practices regarding marketing of “biosimilar products” under the Biologics Price Competition and Innovation Act of 2009. Biosimilar products are products regulated by the FDA that are “highly similar” to already approved biological products. Producers of biosimilar products must give certain notice to the sellers of the original products before they market.  The Court held that patent holders cannot use the federal law to enforce that requirement, although they may be able to use state law to get the information. Greg Stohr of Bloomberg noted that this was “a mixed decision on the rules governing efforts to get low-cost alternatives to pricey biotechnology drugs on the market.” Read Endpoint News and Reuters analysis of this decision for more information.

On Monday, the Court also issued a unanimous per curiam opinion in Virginia v. LaBlanc. This case indirectly addresses whether a state law providing for the possibility of geriatric release satisfies Graham v. Florida, which prohibits life imprisonment without the possibility of parole for non-homicide juvenile offenders. Virginia state courts had said that it did, and on habeas, the federal court of appeals disagreed. The Supreme Court reversed, although it did not reach the ultimate question. Rather, it held only that the Virginia state court’s holding was a reasonable application of Supreme Court precedent, which is all that habeas law requires. And the Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, which addresses the constitutionality of an administrative procedure for challenging patents. And to quote ourselves from several weeks ago:  [Y]et again, [the Court] did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons.

The Court is entering the home stretch. David Savage of The Los Angeles Times has a summary of some of the cases the Court still has left to decide (or hold over for re-argument) before the end of June. This discussion does not, however, include any possible action in the travel ban cases. On Monday, the Ninth Circuit issued its ruling largely upholding the injunction staying President Trump’s Executive Order, agreeing with the Fourth Circuit, but applying different reasoning. The United States has asked the Supreme Court to stay the injunctions and to hear at least one of the cases in the fall, and it has asked for rulings on those requests before the Court recesses at the end of the month. Stay tuned for more information.


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