Tag: SCOTUS

Copyright Dispute Over Andy Warhol’s Portraits of Prince Heading to U.S. Supreme Court

The U.S. Supreme Court will review the standard for a “transformative” work as “fair use” under the Copyright Act.   Specifically, whether a second work of art is “transformative” when it conveys a different meaning or message from its source material, or not where it recognizably derives from and retains the essential elements of its source material.

The Court agreed to review the Second Circuit’s decision that Andy Warhol’s Prince Series portraits of the musician Prince did not make fair use of celebrity photographer Lynn Goldsmith’s photograph of Prince.  Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (petition granted Mar. 28, 2022).

The Warhol Foundation’s (AWF) petition argues that the Second Circuit’s decision contradicts Supreme Court precedent that a new work is “transformative” if it has a new “meaning or message” citing Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202-03 (2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).  AWF also argued that the Second Circuit’s decision creates a circuit split where the Ninth Circuit has held that even with few physical changes a work can be transformative if new expressive content or a new message is apparent.  As a result, this decision “threatens massive restrictions on First Amendment expression” that would create a “sea-change in the law of copyright.”

Goldsmith’s opposition brief asserts that the AWF mischaracterizes Supreme Court precedent.  And that the Second Circuit “faithfully applied” the proper test for transformativeness in determining Warhol’s series of silkscreen prints were not fair use.  Goldsmith also argues petitioner has manufactured a circuit split that does not exist.

This dispute stems from a a declaratory judgment action filed in 2017 by the Andy Warhol Foundation in the Southern District of New York seeking that Warhol’s portraits of Prince did not infringe photographer Lynn Goldsmith’s photograph.  In 2019, the district court granted summary judgment to the Warhol Foundation, holding that the Prince Series was “transformative” because it incorporated a new meaning and message different from Goldsmith’s photograph.

In 2021, the Second Circuit reversed, holding that Warhol’s portraits were not fair use as a matter of law.  The Second Circuit held that Warhol’s use was not “transformative,” even though Warhol’s use included some visual differences from Goldsmith’s photograph, because Warhol’s use “retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements.”

Multiple amicus briefs supporting the Warhol Foundation were filed including by a group of 12 copyright law professors; a group of 13 art law professors; artists and art professors Barbara Kruger and Robert Storr; and the Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, and Brooklyn Museum.  The visual arts community and content creators in every industry will heavily watch this case.

The Supreme Court will hear the Warhol case in its new term, which begins in October.

Article By Susan M. Kayser and Eric W. Lee of K&L Gates

For more intellectual property legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

U.S. Supreme Court Lifts Preliminary Injunctions on Healthcare Worker Vaccine Mandate

On January 13, 2022, the United States Supreme Court upheld the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule (the “Rule”) in a 5-4 decision, staying the preliminary injunctions issued for 24 states by the District Courts for the Eastern District of Missouri and the Western District of Louisiana.  Therefore, the CMS vaccine mandate is in full effect for all states except Texas, which was not part of the cases before the Court.  The Rule requires nearly all workers at Medicare- and Medicaid-certified facilities—whether medical personnel, volunteers, janitorial staff, or even contractors who service the facilities—to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

The Court based its holding on two main points.  First, the Court held that Congress clearly authorized CMS to put conditions on funding it provides to the Medicare and Medicaid certified facilities.  The Court opined that perhaps CMS’s “most basic” function is to ensure that regulated facilities protect the health and safety of their patients, noting that Medicare and Medicaid patients are often some of the most vulnerable to infection and death from COVID-19.  Because CMS determined that a vaccine mandate is necessary to protect patient health and safety, the Court held the mandate “fits neatly within the language of the [authorizing] statute.”  The Court acknowledged that CMS has never required vaccinations in the past, but attributed this in part to the fact that states typically already require necessary vaccinations like hepatitis B, influenza, and measles for healthcare workers.

Second, the Court held that the mandate is not arbitrary and capricious, and cautioned the district courts that their role is merely to make sure an agency acts within the “zone of reasonableness.”  The Court found the administrative record sufficient to explain CMS’s rationale for the mandate and also accepted that getting the vaccine mandate in place ahead of winter and flu season satisfied the “good cause” standard for skipping the notice and comment period.

Healthcare employers subject to the Rule should immediately start implementing vaccine requirements if they have not already.  It is anticipated that in all states but Texas, CMS will likely begin enforcement of the vaccine mandate in approximately 30 days.  On December 28, 2021, CMS released guidance to state surveyors with enforcement standards to use starting 30 days from the memo, though at the time the memo only applied to the 25 states that were not enjoined.  Healthcare employers should also keep in mind that this is not the end of the road: the Court’s holding only means that the CMS vaccine mandate is in force while the 5th and 8th Circuits complete their review of the underlying state challenges to the mandate.  While the Supreme Court’s opinion sends a strong message that lower courts should uphold the mandate, there is no guarantee they will do so.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Article By Keeley A. McCarty and Ashley T. Hirano of Sheppard, Mullin, Richter & Hampton LLP

For more health law legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

SCOTUS Cert Recap: Civil Procedure, Bankruptcy, And Worker’s Comp

This week, the U.S. Supreme Court granted three of the cert. petitions it considered at its first conference of the new year.

The Court agreed to hear issues involving: 1) the grounds for relief from a final judgment under Federal Rule of Civil Procedure 60(b)(1), 2) the limits on Congress’ authority to apply different bankruptcy rules to different parts of the country, and 3) the scope of states’ authority to apply their workers’ compensation laws to federal facilities.

Such issues are not the most high-profile the Court will address this term, as underscored by the absence of cert-stage amicus briefs in all three of the cases (though this is less uncommon than one might think; by our calculations, about 40 percent of the cert. petitions granted for plenary review last term lacked cert-stage amicus briefs). For governmental entities, bankruptcy practitioners, and federal court civil litigators, however, the cases are worth noting and following.

Rule 60(b) Motions for Relief from Final Judgment

In Kemp v. United States, the Court finally agreed to resolve what the cert. petition characterizes as a 50-year circuit split on whether the “mistake” prong of Rule 60(b)(1) authorizes relief based on a district court’s legal error. Rule 60(b) sets out six categories of reasons why a district court may relieve a party from a final judgment, including “mistake, inadvertence, surprise, or excusable neglect” under 60(b)(1) and “any other reason that justifies relief” under 60(b)(6). The lower courts agree that 60(b)(1) and 60(b)(6) authorize relief for at least some legal errors, but disagree about which of those provisions does so.

And that seemingly picayune distinction can matter. The Federal Rules require all 60(b) motions to be made “within a reasonable time” but set a hard one-year time limit for relief sought on 60(b)(1) grounds. This means that if Rule 60(b)(1) does not encompass legal errors, motions alleging legal errors would fall under Rule 60(b)(6) and would not need to meet the bright-line one-year rule – though such motions would then be subject to the Supreme Court’s additional requirement that 60(b)(6) motions establish “extraordinary circumstances” justifying relief. Accordingly, the question in this case can mean the difference between a timely and untimely 60(b) motion, and civil litigators should be on the lookout for the Court’s answer.

Congress’ Authority to Adopt “Uniform” Bankruptcy Rules

The Court will also take up Siegel v. Fitzgerald, where it will consider the meaning of the Constitution’s Bankruptcy Clause, which authorizes Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The petitioner in this case contends that Congress violated this “uniformity” requirement by dividing the nation’s bankruptcy courts into two slightly different categories. Most operate under the U.S. Trustee program, while six (all in North Carolina and Alabama) operate under the Bankruptcy Administrator program.

In 2017, Congress increased the quarterly fees paid by debtors in large Chapter 11 bankruptcies from $30,000 to $250,000, and while this increase was immediately applicable to all pending and future cases in Trustee districts, it was imposed in Administrator districts nine months later, and then only to future cases. In Siegel the Court will decide whether this difference renders the 2017 statute unconstitutionally “non-uniform” (and, if the Court concludes it is unconstitutional, there will be a further difficult question to tackle concerning how such a defect should be remedied). Notably, even the respondent (who is represented by the U.S. Solicitor General) urged the Court to take this case, observing that though Congress eliminated the difference in 2020, the question presented in this case could affect the status of approximately $324 million in quarterly fees imposed nationwide under the 2017 statute.

In light of such figures, bankruptcy professionals across the country – especially those with cases subject to the 2017 statute – will likely have a strong interest in what the Court will say.

Limits on States’ Application of Workers’ Compensation Laws to Federal Facilities

In United States v. Washington, the Court agreed to hear the federal government’s challenge to a Washington workers’ compensation law that applies exclusively to contractors at a federally owned nuclear-waste cleanup site. Under longstanding principles of intergovernmental immunity, state regulation of federal facilities is generally permissible only where such regulation is clearly authorized by Congress. And the federal government contends that the relevant statute here – which allows states to regulate workers’ compensation at federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State” – does not permit states to single out federal facilities for unique treatment. The state of Washington, meanwhile, counters that states routinely apply different rules to different employers, and it argues that the federal statute simply authorizes such context-sensitive regulation at private and federal facilities alike.

The dispute accordingly consists of competing interpretations of a narrow federal statute (40 U.S.C. § 3172(a)), and it is therefore difficult to see how the case could have much broader significance outside the workers’ compensation context. Contractors working at federal facilities, however, may be interested to see whether the Supreme Court opens the door for future challenges to state workers’ compensation laws.

© 2022 BARNES & THORNBURG LLP

Article By Kian Hudson of Barnes & Thornburg LLP

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U.S. Supreme Court Shoots Down COVID-19 Shot-or-Test Rule

The U.S. Supreme Court has blocked the Occupational Safety and Health Administration’s emergency “vaccine-or-test” rule mandating private employers with 100 or more employees to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing.

The Court ruled 6-3 to block the vaccine-or-test rule on the basis that OSHA had exceeded its authority in enacting the emergency rule. The Court described the rule as “a significant encroachment into the lives—and health—of a vast number of employees.” Had the rule not been rejected by the nation’s highest court, it would have required roughly 84 million workers to be fully vaccinated against COVID-19 or submit to weekly testing and wear a mask at work. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

While blocking the vaccine-or-test rule for large private employers, the Court ruled 5-4 to allow a separate rule to take effect which mandates the COVID-19 vaccine for workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. The Court reasoned that the regulation serves to protect patients and ensure that healthcare providers take steps to avoid transmitting a dangerous virus to their patients. The Court noted: “It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

©2022 Roetzel & Andress
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The Legal Challenges to the OSHA ETS and CMS Vaccine Mandate Move to the Supreme Court

On December 22, 2021, the Supreme Court of the United States issued orders granting review of legal challenges to the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“OSHA ETS”) and the Centers for Medicare and Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”). In a rare move, the Supreme Court set an accelerated timeline for the cases, scheduling oral arguments in both cases on January 7, 2022.

Following a ruling out of the United States Court of Appeals for the Sixth Circuit on December 17, 2021, OSHA announced that it would not issue citations for non-compliance with any requirements of the OSHA ETS before January 10, 2022 and will not issue citations for noncompliance with testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the OSHA ETS. While it is unknown whether the Supreme Court will be able to issue a ruling by OSHA’s January 10, 2022 compliance date, the Supreme Court’s expedited schedule seems to indicate that it is attempting to give employers some finality concerning their obligations under the federal mandates.

Article By Lilian Doan Davis of Polsinelli PC

For more COVID-19 legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California

The Supreme Court’s Transgender Bathroom Case Rebuff, What Direction Should School Districts Take?

On June 28, 2021, the Supreme Court denied the Gloucester County School Board’s petition for a writ of certiorari or stated another way denied to hear an appeal from the School Board from a Federal Appellate court.  So at this juncture,  it appears the Justices don’t seem inclined to intervene in disputes over transgender rights and bathrooms.  So what are the implications of the Court’s action or more accurately inaction in Grimm v. Gloucester County School Board?

The Background and Twisting Litigation in Grimm v. Gloucester

Prior to appeal to the Supreme Court, the United States District Court for the Eastern District of Virginia denied a motion by the Gloucester County school board to dismiss the Title IX and Equal protection lawsuit brought by student Gavin Grimm.

In Grimm v. Gloucester County School Board the Plaintiff Gavin Grimm, a transgender student, challenged a school board resolution that required him—and other transgender students—to use the bathroom associated with his “biological gender.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716 (4th Cir. 2016), cert. granted in part, No. 16-273, 2016 WL 4565643 (U.S. Oct. 28, 2016). Grimm sued the school board, alleging that the policy violated Title IX as well as the equal protection clause of the Constitution.

What does Title IX Protect?

Title IX of the Education Amendments of 1972 (Title IX) is a federal law that states in part:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

What does the Equal Protection Clause of the Constitution Protect?

The Equal Protection Clause is part of the Fourteenth Amendment to the U.S. Constitution and the part most frequently litigated reads:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Specifically, the phrase “equal protection of the laws” has been used by the Supreme Court to find constitutional protection in a number of gender and public education related situations.

What Does the Due Process Clause of the 14th Amendment Protect?

The Due Process clause of the 14th Amendment which explicitly applies to the states,   essentially mirroring the protections of the 5th Amendment, which only applies to the Federal Government , thereby adding additional protections for individual rights from intrusion by the states.  The Due Process clause guarantees the following rights from interference by the states:

In addition to his Title IX and equal protection clause claims, the plaintiff in Grimm v. Gloucester relied heavily on a Department of Education (DOE) /  Office of Civil Rights Letter (OCR) known as a “Dear Colleague Letter” interpreting Section 106.33 (34 CFR 106.33 Comparable Facilities)  to require schools to “treat transgender students consistent with their gender identity.” G.G., 822 F.3d at 718.

In response to the Fourth Circuit Court of Appeals decision in Grimm v. Gloucester County School Board, 2016 WL 1567467 (4th Cir. April 19, 2016), on May 13, 2016, the Department of Labor (DOL) and the Department of Education under the Trump Administration issued a joint directive to school districts summarizing “a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations” or another a “Dear Colleague Letter.”

The Fourth Circuit’s majority opinion in Grimm (2106) relied heavily, if not exclusively, on the Obama Era’s DOE’s interpretation of Title IX and that requiring transgender students to use the restroom associated with their biological sex equated to discrimination on the basis of sex.

The school district in Grimm, along with several state attorney generals, petitioned the Fourth Circuit for a hearing before the full panel.  The Fourth Circuit denied the and School District appealed to the United States Supreme Court for review and the Supreme Court granted certiorari in 2016, but after the change of administration the Department of Education withdrew the “Dear Colleague Letter”, the Supreme Court opted to not to hear the case and vacated and remanded the case back to the Fourth Circuit.

Grimm then filed an amended complaint, and in 2020, the Fourth Circuit affirmed the district court’s ruling in favor of Grimm.  The Fourth Circuit, in its 2020 ruling relied on 2020 landmark Supreme Court case, Bostock v. Clayton County, which held that Title VII’s prohibition of discrimination on the basis of sex necessarily includes discrimination on the basis of sexual orientation and gender identity. The Fourth Circuit extended the Supreme Court’s reasoning in Bostock  to Title IX’s analogous prohibition of discrimination on the basis of sex.

The School District once again appealed and the Supreme Court refused to grant certiorari on June 28, 2021, so the underlying 2020 Fourth Circuit opinion stays intact.

What Impact will Grimm v. Gloucester Actually Have?

According to Shannon Farmer a Labor & Employment partner in the Philadelphia office of Ballard Spahr, with extensive litigation experience related to civil rights:

“As the Fourth Circuit’s decision and the Supreme Court’s denial of certiorari makes clear, the Court’s landmark ruling in Bostock changed the legal landscape surrounding LGBTQ+ discrimination. When Grimm was before the Court in 2016, the underlying Fourth Circuit decision was based on administrative guidance with limited authority. The Fourth Circuit’s most recent ruling, however, was grounded in the Court’s reading of statutory language. Although the Supreme Court explicitly stated that the Bostock opinion did “not purport to address bathrooms, locker rooms, or anything else of the kind,” its decision not to hear the Grimm case allowed Bostock to be extended to provide exactly those protections. In addition, the Biden Administration’s March 8 Executive Order and a subsequent memorandum from the DOJ have extended Bostock to the educational context.”

Although many institutions have created or are beginning to create policies for transgender students, the long and winding road of the Grimm case shows there are still challenges ahead and changes in direction from the DOL, DOE and OCR  with different administrations, can make keeping up with the rules a moving target. As it stands today, revisions to existing policies will call for more clearly-defined inclusivity provisions for the LGBTQ community.

According to Nikki Hatza, an associate in the Philadelphia office of Ballard Spahr with previous experience with the Employment Litigation Section of the U.S. Department of Justice’s Civil Rights Division:

“Given the Biden Administration’s guidance and the existing appellate court decisions interpreting Title IX and the Equal Protection Clause to prohibit discrimination on the basis of gender identity, schools should review and adjust their policies as needed to comply.”

Per Art Coleman, of EducationCounsel and past Deputy Assistant Secretary for Civil Rights, U.S. Department of Education, who along with his team, last year filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit on behalf of Gavin Grimm:

“The U.S. Supreme Court’s decision not to consider the appeal in the Grimm case is not surprising in light of the unbroken string of recent federal appellate decisions that affirm that the protections of Title IX extend to transgender students.  Coupled with recent U.S. Departments of Justice and Education actions that align with those rulings, clear consensus has emerged under federal law.”

The federal court rulings that affirm the extension of Title IX protections to transgender students have continued to affirm the reality of consequential harm to transgender students that occurs when they are denied from full participation and opportunities in education.  In the end, the cases really are about the indisputable harm to students that results from lack of equal opportunity—medically, psychologically and educationally.  The federal courts—and the Biden administration—have recognized that reality, and won’t countenance it.  Because the law doesn’t.

Jessica Clarke, a professor of law and co-director of the George Barrett Social Justice Program at Vanderbilt University believes that Grimm v. Gloucester will cause groups with concerns related to LGBTQ rights to shift their attention from the bathroom issue and served as the impetus for school districts to adopt more trans-friendly bathroom policies.

“The decision not to grant certiorari is important because it did not disrupt the emerging consensus among federal courts–not just the Fourth Circuit–that schools may not forbid transgender students from using restrooms consistent with their gender identities. One factor that has been important in this development is that school districts around the country have adopted trans-inclusive restroom policies without experiencing any of the disruption that was feared. As a result, we are likely to see conservative advocacy groups shift the focus of their attacks on the LGBTQ community from restrooms to other issues.”

Copyright ©2021 National Law Forum, LLC
For more articles on the Supreme Court, visit the NLRLitigation / Trial Practice section.

U.S. Supreme Court Rejects Latest Challenge to ACA in 7-2 Ruling

On June 17, 2021, the U.S. Supreme Court rejected a long-anticipated challenge to the Patient Protection and Affordable Care Act, known as the “Affordable Care Act” (ACA). This was the third case in a trilogy of challenges to the ACA. See California et al. v. Texas et al., No. 19-840.

In a 7-2 decision, the Court held that the state of Texas (along with over a dozen states and two individuals) simply lacked standing to challenge the constitutionality of a statutory mandate with no consequences. Justices Alito and Gorsuch dissented, and Justice Coney Barrett joined the majority.

The Court did not reach the merits of the appeal, which concerned whether the individual mandate provision of the ACA, previously determined to be unconstitutional, may be severed from the rest of the law or whether the entire law must be struck down. Basically, the plaintiffs argued that if the individual mandate provision was unconstitutional, the entire ACA was unconstitutional.

Instead, the Court determined that the plaintiffs lacked standing, explaining that the plaintiffs could not demonstrate any actual injury traceable to the penalty for violating the individual mandate, which was established in 2017 at an amount of $0.

From its inception, the status of this case has been of concern to a wide variety of stakeholders in the health care industry. Beginning with the ruling by a federal district court in Texas that invalidated the ACA in its entirety, to the Fifth Circuit Court of Appeal’s ruling that only the individual mandate was unconstitutional while the rest of the ACA should remain intact, onlookers have eagerly anticipated the Supreme Court’s decision on this matter.

For now, the ACA remains the law of the land.

©2021 Greenberg Traurig, LLP. All rights reserved.
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Supreme Court: Philadelphia Ordinance Unconstitutionally Burdened Religious Exercise

The U.S. Supreme Court has found that Philadelphia’s ordinance requiring a private foster care agency to certify same-sex couples as foster parents burdened the agency’s religious exercise in violation of the Free Exercise Clause of the First Amendment. Fulton et al. v. City of Philadelphia, Pennsylvania et al., No. 19-123 (June 17, 2021).

Justice John Roberts, writing for the Court, found that Philadelphia unconstitutionally burdened the religious exercise of Catholic Social Services (CSS) — a private foster care agency in Philadelphia — by “forcing it to either curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

The Court’s decision primarily focused on whether Philadelphia’s Fair Practices Ordinance was both neutral and generally applicable and, therefore, constitutional, even if it incidentally burdened religion. For employers, however, the Court’s decision that CSS’s actions were not subject to the public accommodation provisions of Philadelphia’s Fair Practices Ordinance presents significant implications in cases alleging discrimination in places of public accommodation. The scope of this decision is limited in its application to the private sector.

Supreme Court Decision

The Court ruled that the contractual terms in contracts offered to private foster care agencies by Philadelphia forbidding discrimination on the basis of sexual orientation were not neutral and generally applicable. This ruling was based on a key exception in Philadelphia’s Fair Practices Ordinance granting the Commissioner of the Department of Human Services the authority to make individual exceptions to its general prohibition on discrimination based upon sexual orientation — “in his/her sole discretion.” Justice Roberts reasoned, “No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual nondiscrimination requirement not generally applicable.”

The Court also ruled that CSS’s refusal to certify same-sex couples did not constitute an “Unlawful Public Accommodations Practice[]” in violation of Philadelphia’s Fair Practices Ordinance, which prohibits “deny[ing] or interfer[ing] with the public accommodation opportunities of an individual or otherwise discriminat[ing] based on his or her race, ethnicity, color, sex, sexual orientation,” among other protected categories. The Court explained that the decision whether or not to certify foster parents for adoptions was not a service “made available to the public” because it “involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.” Justice Roberts noted, “[T]he ‘common theme’ is that a public accommodation must ‘provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.’” Therefore, because of the personalized nature of evaluating and selecting foster parents for adoption, CSS’s certification process was not the type of public service that Philadelphia’s Fair Practices Ordinance was intended to cover, the Court said.

Finally, the Court rejected Philadelphia’s various justifications for its non-discrimination requirements in its contracts with foster care agencies. This included the City’s stated interest in “the equal treatment of prospective foster parents and foster children.” The Court acknowledged that “this interest is a weighty one,” but could not justify denying CSS an exception for its religious exercise in this case, while making such exceptions available to others in the Commissioner’s “sole discretion” under the Fair Practices Ordinance.

Concurring Opinions

In three separate concurring opinions, the justices questioned the scope and impact of the majority’s decision, though endorsing its holding. Justice Amy Coney Barrett’s concurrence (joined all or in part by Justices Brett Kavanaugh and Stephen Breyer) questioned what standard would apply if the Court were, in a future case, to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which set the standard that neutral and generally applicable laws do not violate the First Amendment’s Free Exercise Clause. However, Justice Barrett noted the Court need not find a replacement for Smith now, as Smith did not apply in the present dispute, because the contract at issue was neither neutral nor generally applicable. As the CSS contract gave the government the right to make discretionary exemptions from its non-discrimination rule, the law was subject to strict scrutiny, instead of the Smith standard.

In another concurrence, Justice Alito (joined by Justices Clarence Thomas and Neil Gorsuch) reasoned that the majority should have ruled on the constitutionality of Smith, and strongly suggested that Smith should be overruled, because of its perceived failure to sufficiently protect the free exercise of religion, as well as failing to provide a clear-cut standard.

In a separate concurrence, Justice Gorsuch (joined by Justices Samuel Alito and Thomas) agreed that the Court should have ruled on the constitutionality of Smith, and recounted the past cases in which the Court’s decision not to address Smith’s constitutionality led to a perceived lack of predictability and prolonged lower court litigation.

Implications

For organizations with a religious-based mission, the Court’s ruling represents an expansion of their ability to dictate the terms on which they offer their services to the public. State and federal government agencies may want to re-evaluate and re-consider their current contracts with private entities. Employers who contract with state or federal government should examine closely the existing terms and conditions of their arrangements, as well as understand what exceptions, if any, are available under relevant state or federal law.

The implications of the Court’s interpretation of the public accommodation provision under Philadelphia’s ordinance on future public accommodation disputes remains to be seen.

(Summer law clerk Nicholas Bonelli contributed significantly to this article.)

Jackson Lewis P.C. © 2021
ARTICLE BY Michelle E. Phillips, Kristopher W. Peters, and Christopher M. Repole of Jackson Lewis P.C.

 

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Supreme Court Update: Van Buren v. United States (No. 19-783), United States v. Cooley (No. 19-1414), Garland v. Ming Dai (No. 19-1155)

Greetings, Court Fans!

Three more opinions this week, as The Nine continue to chip away at OT20’s remaining backlog. Most notably, in Van Buren v. United States (No. 19-783), an interesting mix (no scare-quotes this time, as it actually is a unique line-up) led by Justice Barrett concluded that the Computer Fraud and Abuse Act (CFAA) does not apply to all individuals who misuse authorized access to a computer, but only to those who exceed their authorized access by obtaining information located in particular files, folders, or databases that are off-limits to him. We’ll have more on yesterday’s decision in Van Buren, the first major case dealing with the CFAA, next time. For now, read on for summaries of United States v. Cooley (No. 19-1414), which held that tribal police officers have authority to detain and search non-Indian persons on public rights-of-way within reservations, and Garland v. Ming Dai (No. 19-1155), which rejected a Ninth Circuit rule that courts reviewing orders denying asylum applications must a treat noncitizen’s testimony as credible in the absence of express adverse credibility findings.

United States v. Cooley (No. 19-1414) addresses the power of tribal police officers to temporarily detain and search non-Indians within reservations. In a unanimous opinion, the Court held that tribal authorities retain fairly broad power to detain and search provided it is necessary to preserve the health and welfare of the tribe.

The case began when Officer James Saylor of the Crow Police Department approached a truck parked on U.S. Highway 212, which runs through the Crow Reservation in Montana. Saylor questioned the driver, Joshua James Cooley, and observed that he appeared to be non-native and had watery, bloodshot eyes. He also happened to notice two semiautomatic rifles on the front seat. Fearing violence, Saylor ordered Cooley out of the car and conducted a pat-down search, during which he found drugs. After Cooley was indicted in federal court on gun and drug charges, the District Court granted Cooley’s motion to suppress the drug evidence on the ground that Saylor lacked authority to detain and search Cooley, a non-Indian. The Ninth Circuit affirmed, concluding that tribal police officers can stop and detain non-Indian suspects but only if they first try to determine whether the suspect is non-Indian and, in the course of doing so, find an apparent violation of state and federal law. Because Saylor didn’t inquire whether Cooley was a non-Indian, the Ninth Circuit found the search invalid.

The Supreme Court unanimously reversed, in a decision by Justice Breyer. Breyer acknowledged that, as a “general proposition,” the inherent sovereign powers of an Indian tribe do not extend to nonmembers of the tribe. But there are two exceptions to that rule, one of which “fits the present case, almost like a glove”: A tribe retains inherent power to exercise civil authority over the conduct of non-Indians on lands within its reservation “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Here, Saylor acted to preserve the health and welfare of the tribe, which he reasonably thought might be imperiled if Cooley—apparently drunk and armed—was let alone. Breyer approvingly cited several state court decisions recognizing that tribal police must have the power to detain drunk drivers, for example, as well as the Court’s own decisions permitting tribal police to detain suspects for the purpose of transporting them to proper authorities. Though the Ninth Circuit gave lip service to this authority (and the need for tribal police to preserve the health and welfare of the tribe), its standard is unworkable. If tribal police could only detain suspects for violations observed in the course of determining whether they’re tribe members, it would give actual tribe members an incentive to lie and claim to be non-Indian. And permitting officers to detain and search only in connection with “apparent” legal violations would introduce a new standard into general search-and-seizure law, and with it new interpretation problems.

Justice Alito penned a brief concurrence explaining that he joined the Court’s opinion “on the understanding that it holds no more than the following: On a public right-of-way that traverses an Indian reservation and is primarily controlled by tribal police, a tribal police offer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene.” Whether lower courts will also share that understanding (considering Alito’s vote was not necessary to the judgment) remains to be seen.

Next up, in Garland v. Ming Dai (No. 19-1155), Justice Gorsuch led a unanimous Court in scrapping a longstanding Ninth Circuit immigration rule that, in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a noncitizen’s testimony as credible and true. Agreeing with numerous Ninth Circuit judges who’ve objected to the rule, Justice Gorsuch concluded that it has no place in a reviewing court’s analysis. While there is a rebuttable presumption of credibility in appeals, judicial proceedings in immigration cases are not “appeals.” Under the INA, the “sole and exclusive means for judicial review of an order of removal” is through a “petition for review,” not an “appeal.” Therefore, while a presumption of credibility might arise in appeals from immigration judges to the BIA, there is no such presumption in the antecedent proceedings before the immigration judge, or in subsequent petitions for review before a federal court. Enough said.

© 1998-2021 Wiggin and Dana LLP

ARTICLE BY Tadhg A.J. Dooley and David Roth of Wiggin and Dana LLP
For more articles on SCOTUS, visit the NLRLitigation / Trial Practice section.

SCOTUS Slashes Scope of Cybercrime Statute

The Supreme Court handed down a decision significantly narrowing the scope of the Computer Fraud and Abuse Act (“CFAA”), a federal statute that can impose both criminal and civil liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access”, in its first-ever decision addressing this law.

In a 6-3 opinion in Van Buren v. United States, No. 19-783, authored by Justice Barrett, the Court reversed the Eleventh Circuit’s decision to uphold the conviction of a former police officer who was charged under the CFAA for searching a license plate in a law enforcement database for unofficial purposes.  His conviction concerned a provision of the statute that made it illegal “to access a computer with authorization and to use such access to obtain . . . . information in the computer that the accesser is not entitled so to obtain”.  The officer appealed, claiming that the CFAA did not cover unauthorized use of a database that he was otherwise authorized to access as part of his job.

Recall that the CFAA, which was passed in 1986, is considered to be the primary anti-hacking law and prosecutorial tool against outside actors who are accused of breaking into computer networks (although the statute has also been litigated recently in the commercial context, including in relation to data scraping).  It forbids individuals from intentionally accessing a computer without authorization or “exceed[ing] authorized access.”  The Supreme Court granted certiorari to resolve a split in authority among the Courts of Appeal regarding the scope of liability under the CFAA’s “exceeds authorized access” clause.

The majority opinion closely parsed the language of the CFAA and examined the types of activities that constituted “exceed[ing] authorized access.”  Ultimately, the Court concluded that the provision that Plaintiff had been convicted under “covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend.  It does not cover those who, like [Petitioner], have improper motives for obtaining information that is otherwise available to them.”  Op. at 1 (emphasis supplied).  Justice Barrett’s opinion also focused on the statute’s scope, noting that the government’s broad interpretation would criminalize a “breathtaking amount of commonplace computer activity,” including mundane activities such as using a work computer for personal purposes.

This case is a game changer for pending and future cases brought under the CFAA.  As CPW readers will remember, the hiQ/LinkedIn data-scraping saga ongoing in California federal court had been paused pending a ruling from SCOTUS in Van Buren.  All eyes will be back on that case now, in light of the circumscribed interpretation of the statute adopted by SCOTUS.

© Copyright 2021 Squire Patton Boggs (US) LLP

ARTICLE BY John A. Burlingame,  Kristin L. Bryan and Christina Lamoureux of Squire Patton Boggs (US) LLP
For more articles on SCOTUS, visit the NLR Litigation section.