Tag: SCOTUS

SCOTUS: FTC Has No Authority to Obtain Monetary Relief Under Section 13(b) of the FTC Act

The Supreme Court unanimously held that Section 13(b) of the Federal Trade Commission Act does not give the Commission authority to bypass administrative proceedings and seek equitable monetary relief directly from the federal courts.

Section 13(b) of the FTC Act provides that when the Commission “has reason to believe that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the Federal Trade Commission . . . in proper cases the Commission may seek, and after proper proof, the court may issue, a permanent injunction.”  For over four decades the Commission has relied on this Section to bring consumer protection and antitrust actions directly before federal courts seeking injunctions and monetary relief, such as restitution and disgorgement, bringing “far more cases in court than it does through the administrative process.”  And through this path, the Commission has obtained billions of dollars in relief, securing $11.2 billion in consumer refunds during the past five years alone.

In 2012, relying on Section 13(b), the Commission filed a complaint in federal court against Scott Tucker and his companies, claiming that their short-term payday lending practices were deceptive, unfair, and violated Section 5(a) of the FTC Act.  At summary judgment, the district court granted the FTC’s request for an injunction and monetary relief, ordering Tucker to pay $1.27 billion in restitution and disgorgement, which was to be used by the Commission to provide “direct redress to consumers.”  On appeal to the Ninth Circuit, Tucker contended that Section 13(b) does not give the Commission the authority to seek the monetary relief awarded by the district court.  Adhering to its precedent, the Ninth Circuit found that Section 13(b) “empowers district courts to grant any ancillary relief necessary to accomplish complete justice, including restitution.”  The Supreme Court granted Tucker’s petition for certiorari to address the recent Circuit split concerning the “scope of Section 13(b).”

As previously discussed here , during oral arguments Tucker maintained that because Section 5(l) expressly authorizes the Commission to seek “an injunction and other further equitable relief” in district courts against respondents who violate an Administrative Law Judge’s final cease and desist order, and this provision was amended concurrently with the enactment of Section 13(b), Congress intentionally restricted the Commission’s authority under Section 13(b) to “permanent injunctions” only.  On the other side, the Commission argued that the textual variances reflected the functional differences between bringing a claim through the administrative process first versus going directly to the federal courts, and the enactment of Section 13(b) was Congress giving the Commission a choice of enforcement options.

The Supreme Court ultimately reversed the Ninth Circuit’s judgment and concluded that, based on the statutory language, Section 13(b) “does not grant the Commission authority to obtain equitable monetary relief.”

Specifically, the Court found that not only does Section 13(b) solely reference the ability to seek “injunctions,” but when considering the provision as a whole, including the grammatical structure—“is violating” and “is about to violate” —13(b) “focuses upon relief that is prospective, not retrospective.”  Additionally, the Court considered the structure of the Act and the other provisions that explicitly authorize the Commission to seek monetary relief in federal courts only after going through the administrative process and obtaining a cease and desist order.  This includes Section 5(l), which authorizes district courts to award “such other and further equitable relief as they deem appropriate”, and Section 19, which allows for “such relief as the court finds necessary to redress the injury to consumers.”  Based on these provisions, the Court found it “highly unlikely” that 13(b) would allow the Commission “to obtain that same monetary relief and more” without first having to satisfy the conditions and limitations of going through the administrative process as required by Sections 5(l) and 19.

The Court concluded by remarking that the gap in the Commission’s authority made by its decision may be filled by a legislative fix.  Following the decision, the FTC’s acting Chairwoman, Rebecca Kelly Slaughter, issued a statement urging Congress to “act swiftly and restore and strengthen the powers of the agency so we can make wronged consumers whole.”  Until and unless Congress acts, advertisers are likely to see more administrative proceedings with the FTC, as well as the Commission seeking alternative routes for pursuing monetary relief no longer available under Section 13(b).  Chairwoman Slaughter reaffirmed that during her opening statement on April 27, 2021 before the U.S. House Committee on Energy and Commerce Subcommittee on Consumer Protection and Commerce:  “[A] word about the FTC’s other authorities: we will use them all—administrative proceedings, penalty offense authority, more rule-violation cases, more rulemaking, more civil penalty cases where we have specific statutory authority. But, without Congressional action, none of these options will come close to protecting consumers and incentivizing compliance as much as our lost 13(b) authority. I hope you will move swiftly to restore it.”  To be continued, now in the halls of Congress.

The case is AMG Capital Management, LLC v. Federal Trade Commission, Docket No. 19-508, 593 U.S. __ (April 22, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

ARTICLE BY Anna B. Naydonov of Finnegan
For more articles on the FTC, visit the NLR Antitrust & Trade Regulation section.

Supreme Court to Hear Arguments regarding Natural Gas Act and Eminent Domain Power

On April 28, the Supreme Court will hear oral argument in PennEast Pipeline Co., LLC v. New Jersey et al., No. 19-1039, a case with significant implications for pipeline projects.  The main issue is whether the Natural Gas Act (NGA) delegates the federal government’s eminent domain power to Federal Energy Regulatory Commission (FERC) certificate holders and allows them to sue a state to condemn land in which the state claims an interest, or whether the Eleventh Amendment immunizes states from such lawsuits.

Factual and Legal Background

In 2018, following an extensive application and approval process that included public participation and numerous route modifications, FERC granted PennEast a certificate of public convenience and necessity allowing it to construct and operate a nearly 120-mile natural gas pipeline to transport gas in Pennsylvania and New Jersey.

The state of New Jersey has an interest in several properties in the pipeline’s approved route.  Section 717f(h) of the NGA provides that when any holder of a public convenience and necessity certificate cannot obtain by negotiation or contract the necessary rights-of-way to construct, operate, and maintain an interstate pipeline, it “may acquire the same by the exercise of the right of eminent domain” in federal district court.  Under that provision, PennEast brought several in rem actions against New Jersey in district court to establish just compensation and obtain by condemnation the rights-of-way that it had been unable to obtain.

New Jersey moved to dismiss, asserting Eleventh Amendment sovereign immunity from the suit.  The district court rejected New Jersey’s argument and granted the condemnation orders.  However, the Third Circuit disagreed, and vacated the district court’s ruling.  The Third Circuit expressed doubt that the United States can delegate to a private party the federal government’s exemption from Eleventh Amendment immunity that allows it to sue states.  The Third Circuit likened such delegation to an abrogation of sovereign immunity, which Congress can accomplish only through certain federal powers.  Regardless, the court held, the federal government’s eminent domain power and its exemption from state sovereign immunity “are separate and distinct,” and Section 717f(h) delegates only the former, not the latter.

The Third Circuit noted that its “holding may disrupt how the natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for the past eighty years, operates.” The Third Circuit stated that as “a work-around,” eminent domain actions could be filed by some “accountable federal official.” On January 30, 2020, in response to PennEast’s petition for a declaratory order interpreting the Third Circuit’s decision, FERC issued an order “confirm[ing its] strong belief in” the correctness of PennEast’s position.  FERC also disclaimed the authority to file condemnation actions itself, in place of natural gas companies.

On February 3, 2021, the Supreme Court granted PennEast’s petition for a writ of certiorari.  In addition, the Court instructed the parties to brief and argue a second issue—whether the Third Circuit properly exercised jurisdiction over the case.

Eleventh Amendment Arguments

New Jersey argues that the federal government cannot delegate its exemption from state sovereign immunity to allow private parties to bring condemnation suits against states, but even if it could, Congress did not clearly do so through the text of the NGA.  Thus, New Jersey asserts that the Court “need not conclusively resolve the constitutional question” because the text of the NGA disposes of the issue presented.

By contrast, PennEast asserts that the NGA’s delegation of the federal government’s eminent domain power necessarily includes the ability to sue states.  Concluding otherwise, PennEast argues, would overlook the history of eminent domain proceedings and the fact that Section 717f(h) includes no exception for state-owned properties.  It would also frustrate the NGA’s fundamental purpose of facilitating interstate pipelines.  PennEast also emphasizes that the condemnation actions are in rem proceedings that do not implicate the same state sovereign immunity concerns that in personam suits implicate.  Finally, PennEast argues that the Third Circuit’s decision “not only gives states a veto power over federally approved pipelines but creates gravely misaligned incentives, as a private property owner seeking to preclude construction of a pipeline could do so by granting an easement to a state that shares its opposition.”

A coalition of 19 states—including some facing potential suits regarding pipeline projects—filed an amicus brief in support of New Jersey, primarily based on “the constitutional questions that undergird [New Jersey’s] statutory analysis.”  PennEast’s argument on the merits is supported by numerous industry amici and the federal government.  Those industry amici argue that the Third Circuit’s decision will have significant negative impacts on the industry’s ability to reliably supply the country with affordable natural gas.  Similarly, the federal government has emphasized that an affordable and reliable interstate natural gas supply is a general purpose of the NGA, which the Third Circuit’s decision threatens.

Other Jurisdictional Arguments

In June 2020, the Supreme Court invited the Solicitor General to file a brief expressing the United States’ views on the certiorari petition.  The United States subsequently filed a brief characterizing the case as a “collateral attack on [PennEast’s] authority to execute the terms of the FERC-issued certificate.”  It, therefore, argued that the lower courts lacked jurisdiction to entertain the case because Section 717r(b) of the NGA vests exclusive jurisdiction for direct review of the certificate in the D.C. Circuit or the circuit in which the certificate-holder has its principal place of business.

PennEast and New Jersey both argue that the lower courts properly exercised jurisdiction; neither party understands New Jersey’s Eleventh Amendment challenge as a collateral attack on the FERC certificate.

***

The Supreme Court is expected to return a decision before the term ends in late June.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.

ARTICLE BY Kate Perkins of Hunton Andrews Kurth
For more articles on SCOTUS, visit the NLR Litigation / Trial Practice section.

Supreme Court “Unfriends” Ninth Circuit Decision Applying TCPA to Facebook

In a unanimous decision, the Supreme Court held that Facebook’s “login notification” text messages (sent to users when an attempt is made to access their Facebook account from an unknown device or browser) did not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act (“TCPA”).  In so holding, the Court narrowly construed the statute’s prohibition on automatic telephone dialing systems as applying only to devices that send calls and texts to randomly generated or sequential numbers.  Facebook, Inc. v. Duguid, No. 19-511, slip op. (Apr. 1, 2021).

The TCPA aims to prevent abusive telemarketing practices by restricting communications made through “automatic telephone dialing systems.”  The statute defines autodialers as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.  Plaintiff alleged Facebook violated the TCPA’s prohibition on autodialers by sending him login notification text messages using equipment that maintained a database of stored phone numbers. Plaintiff alleged Facebook’s system sent automated text messages to the stored numbers each time the associated account was accessed by an unrecognized device or browser.  Facebook moved to dismiss, arguing it did not use an autodialer as defined by the statute because it did not text numbers that were randomly or sequentially generated.  The Ninth Circuit was unpersuaded by Facebook’s reading of the statute, holding that an autodialer need only have the capacity to “store numbers to be called” and “to dial such numbers automatically” to fall within the ambit of the TCPA.

At the heart of the dispute was a question of statutory interpretation: whether the clause “using a random or sequential number generator” (in the phrase “store or produce telephone numbers to be called, using a random or sequential number generator”) modified both “store” and “produce,” or whether it applied only to the closest verb, “produce.”  Applying the series-qualifier canon of interpretation, which instructs that a modifier at the end of a series applies to the entire series, the Court decided the “random or sequential number generator” clause modified both “store” and “produce.”  The Court noted that applying this canon also reflects the most natural reading of the sentence: in a series of nouns or verbs, a modifier at the end of the list normally applies to the entire series.  The Court gave the example of the statement “students must not complete or check any homework to be turned in for a grade, using online homework-help websites.” The Court observed it would be “strange” to read that statement as prohibiting students from completing homework altogether, with or without online support, which would be the outcome if the final modifier did not apply to all the verbs in the series.

Moreover, the Court noted that the statutory context confirmed the autodialer prohibition was intended to apply only to equipment using a random or sequential number generator.  Congress was motivated to enact the TCPA in order to prevent telemarketing robocalls from dialing emergency lines and tying up sequentially numbered lines at a single entity.  Technology like Facebook’s simply did not pose that risk.  The Court noted plaintiff’s interpretation of “autodialer” would, “capture virtually all modern cell phones . . . .  The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses.”

The Court thus held that a necessary feature of an autodialer under the TCPA is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.  This decision is expected to considerably decrease the number of class actions that have been brought under the statute.  Watch this space for further developments.

© 2020 Proskauer Rose LLP.

ARTICLE BY Lawrence I Weinstein and
Anisha Shenai-Khatkhate of Proskauer Rose LLP
For more articles on the TCPA, visit the NLR Communications, Media & Internet section

Justice Amy Coney Barrett’s Potential Impact on the Supreme Court – President Biden’s Reaction

Justice Amy Coney Barrett was confirmed by the Senate to fill the Supreme Court seat left open by Justice Ruth Bader Ginsburg’s death by a vote of 52 to 48 on October 26, 2020.  Justice Barrett was sworn in on October 27.  Her confirmation was the first in 150 years to not include any votes from the party in the minority, in this case the Democrats, highlighting the polarized response to her candidacy as a Supreme Court Justice.

Justice Barrett served on the U.S. Court of Appeals for the Seventh Circuit after being confirmed in 2017. In addition to her position with the Seventh Circuit, Justice Barrett also served as a professor of law at her alma mater, Notre Dame Law School – a position she held since 2002 and up to her confirmation to the U.S. Court of Appeals for the Seventh Circuit.

The Supreme Court is already hearing oral arguments in key cases concerning healthcare and anti-discrimination laws and religious freedom, Justice Barrett’s background and previous rulings shed some light on how she could eventually rule on the Supreme Court.

How Justice Barrett’s Confirmation Could Impact the Politics of the Court

The confirmation of Justice Barrett to the Supreme Court tipped the political leanings of the Court further to the right, with Republican appointees outnumbering Democratic ones by a 6-to-3-margin.

Justice Barrett clerked for late Supreme Court Justice Antonin Scalia from 1998 to 1999. Like Justice Scalia, she aligns herself with the legal philosophy of originalism – the idea that the Constitution should be given the original meaning it would have had at the time it became law. During her confirmation hearings, she answered a question from Judiciary Committee Chairman Senator Lindsey Graham about her views on originalism, saying:

“I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

Even though Justice Scalia was a mentor to Justice Barrett, she asserted in her confirmation hearings that with her confirmation Americans “would not be getting Justice Scalia, you would be getting Justice Barrett.” She also stressed that sometimes originalists don’t agree.

During her time as a Judge on the U.S. Circuit Court of Appeals for the Seventh Circuit, Justice Barrett voted conservatively over 80 percent of the time compared to other judges on the Seventh Circuit Court of Appeals, according to a study done by University of Virginia law professors Joshua Fischman and Kevin Cope cited by FiveThirtyEight that analyzed over 1,700 cases that were heard after her confirmation, including 378 that included rulings from Justice Barrett. Specifically, Justice Barrett voted conservatively 83.8 percent of the time in discrimination and labor cases, 87.9 percent conservative in criminal and habeas corpus cases and 83.2 percent conversative in civil rights cases.

However, Fischman told FiveThirtyEight that Justice Barrett is statistically indistinguishable from other conservative judges appointed by President Trump. Additionally, during her time as a judge on the Seventh Circuit, she didn’t always rule in line with other conservative judges, and ruled in a liberal direction 20 percent of the time when a Democratic nominee was on the panel, and 9 percent of the time when a fellow Republican nominee was on the panel,  according to the study.

“This is an attempt to establish a very strong Republican, conservative presence on the federal judiciary,” said Mark Graber, Maryland Carey Law professor and constitutional scholar on Justice Barrett’s confirmation in an interview with the National Law Review.

“That’s the great and terrible truth about this nomination: Judge Barrett holds far-right views well outside the American mainstream,” said Senate Minority Leader Chuck Schumer in response to Justice Barrett’s nomination. Specifically, Schumer highlighted Justice Barrett’s past criticism about previous rulings on the Affordable Care Act (ACA).

“We’re talking about the rights and freedoms of the American people. Their right to affordable health care. To make private medical decisions with their doctors …  Judge Amy Coney Barrett will decide whether all those rights will be sustained or curtailed for generations,” Schumer said.  “And based on her views on the issues—not her qualifications but her views on the issues—Judge Barrett puts every single one of those fundamental American rights at risk.”

While many on the left have expressed fears about a conservative majority on the Supreme Court, O. Carter Snead, a professor of law at the University of Notre Dame and one of Justice Barrett’s former colleagues for over 15 years, wrote that Democrats have “nothing to fear” from her in an op-ed published in the Washington Post.

“There is of course no way to know in advance how a Justice Barrett would rule on hot-button cases. What is clear is that she would carefully analyze each case on its merits, respectful of the stakes for both the rule of law and the stability of our polity, doing her level best to get the question right, regardless of her own personal views,” he said.

What Her Confirmation Could Mean for the ACA

When it comes to healthcare, Justice Barrett has been critical of past Supreme Court decisions on the ACA, writing in a 2017 article published by Notre Dame Law School that Chief Justice John Roberts’ opinions in previous ACA cases NFIB v. Sebelius and King v. Burwell “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Additionally, Justice Barrett said in an interview with NPR that the dissent had the better legal argument in King v. Burwell. However, Justice Barrett maintained in her confirmation hearing that she was not determined to overturn the ACA.

“I’m not here on a mission to destroy the Affordable Care Act,” she said.

Specifically, Justice Barrett seemed to suggest in her confirmation hearing that the ACA could survive without the individual mandate because of severability, or that there is a presumption on the Court’s part under judicial tradition to save an underlying law if part of it is struck down.

“The presumption is always in favor of severability,” Justice Barrett said in her hearing.

Supreme Court Oral Arguments in California v. Texas

On November 10, the Supreme Court heard oral arguments in California v. Texas, a case considering if Congress’ 2017 decision to reduce the penalty for the ACA’s individual mandate renders the law unconstitutional. The Court also considered if the challengers to the law have the legal right to sue.

During the arguments, Justice Barrett didn’t indicate whether she thought the ACA should stand, but did express misgivings about whether the penalty could be reduced to zero and still be considered a tax.

“Why can’t we say that when Congress zeroed out the tax, it was no longer a tax because it generated no revenue and, therefore, it could no longer be justified as a taxing power?” she asked.

Justice Brett Kavanaugh and Chief Justice Roberts argued that Congress’ 2017 decision to reduce the penalty for not purchasing health insurance did not indicate the desire to throw out the law in its entirety.

“I think it’s hard for you to argue that Congress intended the entire act to fall. The same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Chief Justice Roberts said. “I think, frankly, that they wanted the court to do that. But that’s not our job.”

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Justice Kavanaugh said.

A decision is expected on California v. Texas in 2021.

What Could Come Next

In the weeks following Justice Barrett’s confirmation to the Supreme Court, much of the political response to the confirmation has revolved around the possibility of adding more justices to the Supreme Court to remedy its shift rightward, and to dampen fears that the Court  could undermine the incoming Biden Administration by legislating from the bench.

“The Court might be a little more conservative or the Court might be a little more liberal, but it turns out, through most of American history, the court is about as close to public opinion to the other branches as anything else,” Professor Graber said. “What I think people are worried about is [that] it shouldn’t be the mission of the Roberts Court to, in some sense, undermine the fundamental initiatives of a Biden administration.”

While the Constitution allows Congress to add and take away judges from the Supreme Court, it has not done so since 1869. In 1937, President Franklin D. Roosevelt supported adding more justices to the Supreme Court, but that proved to be unsuccessful.

President Joe Biden responded to Justice Barrett’s confirmation by stating he would assemble a commission of bipartisan constitutional scholars to determine what the next steps would be moving forward.

In an interview with 60 Minutes, President Biden said that “there’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”

President Biden said that after 180 days of the commission’s creation, he would expect recommendations from them on how to reform the court system.

When it comes to how Justice Barrett’s confirmation will affect the Supreme Court and the U.S. judicial system in the long term, only time will tell.

“Which type of judge is Barrett going to be? Is she going to be with Roberts? Or, is going to be with Thomas and Alito and say, ‘We control the court and we’re going to fight the Democrats tooth and nail?’ … We don’t really know yet,” Professor Graber said.

For more, visit the National Law Review Election Law / Legislative News section.

What’s “So” Important: Computer Fraud and Abuse Act Gets a Close Look from SCOTUS

In a case with significant ramifications for employers concerned with protecting sensitive information, and for employees accused of abusing access to computer networks, the United States Supreme Court (“SCOTUS”) heard oral argument this week in Van Buren v. United States, No. 19-783, a case from the Court of Appeals for the Eleventh Circuit that will require interpretation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030.  The argument was lively.  All of the Justices asked questions, and several expressed concern about vagueness in the CFAA’s definition of covered activity.  Much of the discussion centered on an alleged “parade of horribles,” and on the meaning of the word “so.”  We expect a relatively prompt decision.  Time will tell what SCOTUS will decide, but we would not be surprised to see a reversal and remand.

The CFAA has been a useful litigation tool for employers when confidential or other sensitive information accessed via computer is misappropriated, misused, or otherwise compromised. The CFAA generally prohibits obtaining sensitive information from a computer without authorization, or by exceeding authorized access, and, importantly, confers federal jurisdiction.  While it is a criminal statute, it also provides for a private right of action for those damaged by certain violations.  The issue now before SCOTUS in Van Buren is whether the CFAA is violated when someone with authorized access obtains information for an unauthorized purpose.  For example, when an employee who is authorized to access and use the employer’s computer-stored customer information for business purposes downloads the information to a thumb drive and shares it with a potential new employer, s/he plainly violates company policy.  But does s/he run afoul of the CFAA? Over time, a Circuit split has developed regarding this issue.

Van Buren is a criminal case in which Petitioner Nathan Van Buren, a police sergeant in Cumming, Georgia, was convicted of violating the CFAA.  The Eleventh Circuit affirmed his conviction and SCOTUS granted certiorari.  Briefly stated, as part of his duties Van Buren was granted authorized access to a database containing license plate and vehicle registration information maintained by the Georgia Crime Information Center (“GCIC”).  Training materials supplied to those with access to the GCIC database quite reasonably prohibit use of the database for personal purposes.  However, in return for cash payments, Van Buren agreed to, and did, use his authorized GCIC username and password to access a woman’s license and registration information in order to learn personal information about her on behalf of another individual.  There is no dispute that such use was not within the GCIC guidelines for authorized use. Accordingly, Van Buren used his authorized access to the GCIC database for an unauthorized purpose.  He was charged with, among other things, violating the CFAA.  He was convicted of the CFAA violation, sentenced to 18 months in prison, and he appealed.  The Eleventh Circuit court upheld the conviction, holding, based on precedent within the Circuit, that the unauthorized use of authorized access does constitute a violation of the CFAA.

Because Van Buren was not an outsider or other unauthorized user hacking into the GCIC database, his conviction under the CFAA turns on application of the facts to the CFAA’s prohibition on “exceeding authorized access.” The CFAA defines “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”  18 U.S.C. 1030(e)(6) (emphasis added).  Generally, the First, Fifth, Seventh and Eleventh Circuits construe the definition broadly, finding CFAA violations against employees, for example, who access information they are entitled to obtain for certain purposes, but do so for unauthorized uses.  In other words, courts in those Circuits tend to focus on the purposes of authorized access and require computer users to stay within those purposes in order to avoid violations of the CFAA.  This interpretation would allow an employer to bring an action under the CFAA against an employee who, for example, misappropriates sensitive business information s/he was entitled to access as part of his or her job for use with a subsequent employer.  The Second, Fourth and Ninth Circuits, on the other hand, favor a narrower interpretation, in which there is no violation unless the accessed information at issue is, itself, not information the user is entitled to obtain or access at all.  Under that construction, an employee who obtains information from a database s/he is not otherwise permitted to use (e.g. restricted Human Resources information by someone not within the permitted sphere) would violate the CFAA while someone who misuses information s/he is otherwise entitled to access would not.

Van Buren is the first case to present the issue to SCOTUS.  Petitioner, with robust amici support from organizations like Reporters Committee for Freedom of the Press, National Whistleblower Center and technology companies, largely focused his arguments on the dangers of a “parade of horribles” that could arise from the broader interpretation. (See, e.g., Oral Argument at 8).  Petitioner posited that, for example, computer users who check Instagram on their work computers in violation of their employer’s computer use policies, or those who inflate their characteristics on a dating site, in violation of the stated terms of use of such sites, could be guilty of a federal crime should the Government choose to prosecute.  (Oral Argument 4, 22).  He argued that the CFAA is impermissibly vague and that any changes should be left to Congress.

The Government’s position that the CFAA should be broadly read was also supported by several amici, including the Electronic Privacy Information Center and the Digital Justice Foundation.  The Government contended that, pursuant to the definition, a user “exceeds authorized access” by accessing information that s/he did not have a right to access in the particular manner or circumstances used.  Thus, Van Buren violated the CFAA, according to the Government’s position, because he accessed the GCIC under circumstances other than for law enforcement purposes.  As part of its argument, the Government closely examined the meaning of the word “so” in the definition of “exceeds authorized access,” and contended that a person is “entitled so” to do something only when s/he has a right to do it in the particular manner or circumstance authorized.  Brief for the United States at 13.  Van Buren, on the other hand, contended that “so” refers only to “access[ing] a computer with authorization” such that an individual does not “exceed authorized access” if entitled to access the database in question at all. (Oral Argument at 21).

The questions from the Justices during oral argument closely followed those competing themes, further discussing the proper construction of the word “so,” and examining whether some of the more innocuous-sounding activities would actually constitute violations of the CFAA under the broader construction.  Some expressed concern about the privacy of the public if the CFAA is not construed to encompass, for example, government employees reviewing private information for purposes other than those called for in their jobs.  Oral Argument at 14.  Based on the overall tenor of the argument, SCOTUS may be prepared to agree with the more narrow interpretation currently favored by the Second, Fourth and Ninth Circuits, and to overturn Van Buren’s criminal conviction that turned on the broader interpretation. In any case, we will watch for a decision.

We observe use of the CFAA in civil cases to already be diminished in the last four years.  Passage of the Defense of Trade Secrets provides access to federal courts in circumstances where the CFAA was used to create federal jurisdiction.  And as explained above, use of the CFAA in such cases has been curtailed in several Circuits. It will be interesting to see whether the SCOTUS decision in Van Buren further restricts its utility.

©2020 Epstein Becker & Green, P.C. All rights reserved.
For more articles on computer fraud, visit the National Law Review Litigation / Trial Practice section.

Supreme Court Hears Oral Argument in Its First CFAA Case

On November 30, 2020, the Supreme Court held an oral argument in its first case interpreting the “unauthorized access” provision of the Computer Fraud and Abuse Act (CFAA). The CFAA in part prohibits knowingly accessing a computer “without authorization” or “exceeding authorized access” to a computer and thereby obtaining information and causing a “loss” under the statute. The case concerns an appeal of an Eleventh Circuit decision affirming the conviction of a police officer for violating the CFAA for accessing a police license plate database he was authorized to use but used instead for non-law enforcement purposes. (See U.S. v. Van Buren, 940 F. 3d 1192 (11th Cir. 2019), pet. for cert. granted Van Buren v. U.S., No. 19-783 (Apr. 20, 2020)). The issue presented is: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”

The defendant Van Buren argued that he is innocent because he accessed only databases that he was authorized to use, even though he did so for an inappropriate reason.  He contended that the CFAA was being interpreted too broadly and that such a precedent could subject individuals to criminal liability merely for violating corporate computer use policies. During oral argument, Van Buren’s counsel suggested that such a wide interpretation of the CFAA was turning the statute into a “sweeping Internet police mandate” and that the Court shouldn’t construe a statute “simply on the assumption the government will use it responsibly.”  In rebuttal, the Government countered that Van Buren’s misuse of access for personal gain was the type of “serious breaches of trust by insiders” that statutory language is designed to cover.

The CFAA does not define “authorization” (but courts have generally interpreted it to mean to access a computer with sanction or permission), but the Act defines “exceeds authorized access” as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). As we explained in our last post on the emerging CFAA issue, in the criminal context circuit courts are split on how to interpret the “unauthorized access” or “exceeding unauthorized access” provisions with respect to accessing a database with an improper purpose or against posted policies.

Although it is a criminal case, the Supreme Court has the opportunity to clarify the meaning of “exceeds authorized access” under the CFAA and perhaps bring more legal certainty to “unauthorized access” claims advanced against entities engaged in unwanted data scraping.  Interestingly, during oral argument, there was an exchange between the the Deputy Solicitor General arguing on behalf of the Government and Chief Justice Roberts that touched on what “authorization” means with respect to public websites:

CHIEF JUSTICE ROBERTS: Mr. Feigin, is your friend correct that everyone who violates a website’s terms of service or a workplace computer use policy is violating the CFAA?

FEIGIN: Absolutely not, Your Honor. […] First of all, on the public website, that is not a system that requires authorization. It’s not one that uses required credentials that reflect some specific individualized consideration.

CHIEF JUSTICE ROBERTS: Okay. Then limit my — my question to any computer system where you have to, you know, log on.

FEIGIN: So, Your Honor, I don’t think all log –all systems that require you to log in would be authorization-based systems because what Congress was driving at here are inside –­

­CHIEF JUSTICE ROBERTS: All right. Well, then every — every system that has a password.

FEIGIN: No, Your Honor, and let me explain why. What Congress was aiming at here were people who were  specifically trusted, people akin to employees, the kind of person you — that had actually been specifically  considered and individually authorized.

While prognosticating on how the Court will rule based on the tone and substance of the oral argument is an inexact science, it appeared that that the Justices encountered some difficulty parsing the ambiguity in the statute surrounding “authorization.”  Indeed, as Justice Alito commented: “Well, I find this a very difficult case to decide based on the briefs that we’ve received,” even adding that “I don’t really understand the potential scope of this statute, without having an idea about exactly what all of those terms mean.”  Thus, we will simply have to wait until next year to see how the Supreme Court interprets “exceeding authorized access.”

Final Thoughts

When first enacted in 1984 the CFAA was originally directed at serious “hacking” activities into government networks, inspired by the pre-digital era movie War Games, where a teenager hacks into the U.S. military missile system NORAD and nearly starts a global thermonuclear war while playing a simulated game with the computer (“Shall we play a game?).  But, we live in a different world now and the CFAA has also changed. Over the past three decades, Congress has expanded the statute and added a civil right of action, and technology and the way we store and access data have become more advanced.  As a result, the language of the CFAA is susceptible to broader application and has been brought to bear in many contexts beyond traditional outside hacking scenarios. With the Van Buren case, the Supreme Court has the opportunity to rule on the contours of “unauthorized access” and thus bring some clarity beyond the criminal context. However, criminal convictions present different equities than civil cases, and it remains to be seen if the Court’s opinion will resolve questions surrounding civil liability that we’ve been seeing in many scraping disputes, including the ongoing hiQ dispute (which itself is before the Supreme Court on a petition for cert.).

© 2020 Proskauer Rose LLP.

For more articles on SCOTUS, visit the National Law Review litigation section.

Supreme Court Considers Religious Exemptions to Nondiscrimination Laws

On November 4, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia, the most recent case to address how the First Amendment’s Religious Free Exercise Clause interacts with antidiscrimination laws as applied to religious entities. The case centers on foster care and certification of couples to be foster parents, but the case could have wide-ranging impacts on public accommodation and employment law, especially in the field of government contracts.

When the City of Philadelphia’s Department of Human Services removes children from their parents’ homes, it seeks to place those children temporarily with foster parents. But the city does not find those foster parents itself. Rather, it contracts with private agencies like Catholic Social Services to find suitable foster parents. The private organizations are responsible for doing home visits and the other steps necessary to approve individuals and couples as foster parents, and the city pays them for these services. In 2018, Catholic Social Services admitted to the City that it would not consider any same-sex couples as potential foster parents, which the City concluded was a violation of both its Fair Practices Ordinance and the terms of the contract between the City and Catholic Social Services. Thus, the City stated that it would only renew Catholic Social Services’ contract for certifying foster parents if the organization agreed to consider same-sex couples on the same grounds as opposite-sex couples. Catholic Social Services refused and sued the City, claiming that the City infringed on its right to free exercise of religion under the First Amendment.

The City won in both the federal district and appeals courts, and the Supreme Court agreed to hear the case to answer three questions relating to what a free exercise plaintiff must prove to win a discrimination case, whether the Supreme Court should overturn its prior case Employment Division v. Smith, and what conditions a government agency can place on its contracts with private agencies.

Employment Division v. Smith and the Current State of Free Exercise Law

Employment Division v. Smith, decided in 1990, dealt with two men who were fired from their jobs at a drug rehabilitation center because they had used peyote, which was against state law, and were then denied unemployment benefits since they had been fired for misconduct. But the men had used peyote as part of a religious ceremony, and claimed that the state violated the First Amendment when it denied them unemployment benefits based on their religious use of peyote. In an opinion written by Justice Scalia, the Supreme Court held that the Free Exercise Clause of the First Amendment prohibited governments from singling out religious conduct for regulation, but did not require governments to create religious exemptions from all of its laws. As long as the law was generally applicable to all religious and non-religious individuals alike, and neutral toward religion, meaning not intended to interfere with religious practice, the law met the requirements of the Free Exercise Clause. In other words, as long as Oregon’s peyote ban applied to all citizens, not just members of a certain religious group, and as long as that law was written for a neutral reason like promoting health and safety as opposed to a legislative desire to stop a religious practice, the law was constitutional and could be applied to both religious and non-religious individuals. The fact that the law incidentally infringed on religious practice did not make it invalid.

Congress responded to Employment Division v. Smith by passing the Religious Freedom Restoration Act of 1993, or RFRA. This bill stated that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It introduced a requirement that a person with a religious objection to a law must be exempted from that law unless the government had a compelling interest in passing the law, and the law was the least restrictive means of achieving that goal. This test is known as strict scrutiny, and is very difficult to meet, although religious employers do not always win when they invoke RFRA. For example in Bostock v. Clayton County Georgia, where the Supreme Court held that Title VII prohibits employers from discriminating on the basis of sexual orientation or gender identity, one of the employers had made a RFRA claim which failed in the lower court because Title VII did not substantially burden the employer’s religious exercise and met strict scrutiny regardless. Additionally, many federal circuits only apply RFRA to cases in which the federal government is a party, such as when the Equal Employment Opportunity Commission brings the action to enforce Title VII, but not when a private employee files the lawsuit.

While RFRA originally applied to both state and federal laws, the Supreme Court later said that it could only apply to federal laws. This meant that while federal laws would have to either meet RFRA’s strict scrutiny test or create religious exemptions, state laws only had to meet Employment Division v. Smith’s test that they be neutral toward religion and generally applicable to everyone—or whatever higher standard the state sets for its own laws.

Revisiting Employment Division v. Smith

In Fulton v. City of Philadelphia, both sides argue that they can win under Employment Division v. Smith. The City of Philadelphia argues that its requirements that foster care agencies not discriminate against potential parents based on sexual orientation, as contained in its Fair Practices Ordinance and the service contracts, are generally applicable to all foster care agencies, and have the neutral goal of stopping discrimination as opposed to infringing on religious practice. Catholic Social Services claims that the nondiscrimination provisions are intended to infringe on religious practices, and that they are not generally applied by the city, which allows foster care agencies to consider other protected categories like race and disability in narrow circumstances, but do not provide an exception to the sexual orientation nondiscrimination policy for religious objectors.

But in the event that argument fails, Catholic Social Services also asked the Supreme Court to revisit its decision in Employment Division v. Smith, and to replace that precedent with the strict scrutiny standard established by RFRA. A decision by the Supreme Court that the First Amendment requires religious exemptions from neutral laws of general applicability unless the law is the least restrictive means of serving a compelling governmental interest would not only extend the strict scrutiny test to state and local laws like the Philadelphia Fair Practices Ordinance, it would elevate it from a legislative mandate that any future Congress can overturn to a constitutional holding that only the Supreme Court or a constitutional amendment could undo. It would also go against legislative and judicial history tracing back to our country’s founding, which traditionally indicates that the Free Exercise Clause does not require religious exemptions from neutral and generally applicable laws, as First Amendment scholars argued in an amicus brief, and as Justice Scalia noted in Employment Division v. Smith itself.

Control over Government Contracts

Another dimension of the Fulton v. City of Philadelphia case is that the City is acting not only as a regulator enforcing its Fair Practices Ordinance, but also as a market participant paying—or not paying—Catholic Social Services to perform a vital function on behalf of the city government. And the Supreme Court has stated in various cases that a government has the power to decide how it wants its work to be carried out by private contractors, even if there is some conflict with religious exercise. So, if that principle is followed, even if the Fair Practices Ordinance were required to include an exemption for those who religiously oppose same-sex marriage, the City could still grant contracts for its foster care program only to those organizations that agree not to discriminate against same-sex couples. Catholic Social Services argues that this too would violate the First Amendment, and that governments must grant exceptions to contractors based on honestly held religious beliefs.

Possible Impacts of Fulton v. City of Philadelphia on Employment Law

With a six to three conservative majority on the high Court, it is likely that Catholic Social Services will win this case, although it is far from clear on what ground the Court will base its decision. At oral argument the Justices spent little time asking about whether they should overrule Employment Division v. Smith, which indicates that they may take a more moderate approach such as narrowing the situations in which Smith applies or introducing some sort of balancing test for courts to apply when religious beliefs conflict with nondiscrimination laws. But whatever ground it rules on, the decision is likely to chip away at employment protections for workers in at least some contexts, as the decision will apply not only to organizations discriminating against clients, but also against employers discriminating against employees, based on their religious beliefs.

A full overruling of Smith would mean that all state, local, and federal employment nondiscrimination laws must include exemptions for religious employers based on their firmly held religious beliefs. A ruling that governments must provide such exceptions in their contracts with private entities would allow greater discrimination in a huge portion of the economy. In fiscal year 2019 the federal government entered into nearly six million contracts for services from private entities, spending almost $600 billion on those contracts. The federal, state, and local governments contract with private entities for a huge range of things, from production of military supplies and energy to provision of day care through Head Start and running private prisons. As a group of businesses ranging from tech giants Apple and Google to retailers Macy’s and Levi Strauss argued in an amicus brief, a ruling for Catholic Social Services could create unfair competition for government contracts where employers with religious objections—ranging from entities like Catholic Social Services, which is run by the Archdiocese of Philadelphia, to corporations like Hobby Lobby that are owned by a small number of religious adherents—are not required to comply with all neutral laws, and could make it difficult to recruit employees to locations where those employees might be denied public services by the only government contractor in town. And as 160 members of Congress argued, an expansion of religious exemptions would greatly infringe on Congress’s ability to eradicate discrimination, especially in the contracts it funds through taxpayer money.

And as the City of Philadelphia stressed at oral argument, these exemptions for religious employers and service providers would not only pertain to sexual orientation discrimination. Rather, religious entities would be allowed to discriminate against employees and clients based on any sincerely held religious belief, including beliefs about the superiority of certain religions, genders, or races. And while everyone was in agreement that the government has a compelling interest in eradicating racial discrimination, meaning that a ban on race discrimination would pass strict scrutiny against religious objections, the attorneys representing Catholic Social Services would not state whether the government had a compelling interest in eradicating other forms of discrimination, a question that is less clear from prior Supreme Court cases. The Supreme Court’s decisions on the “Ministerial Exception” already allow religious employers to discriminate on any grounds against those employees they consider ministers, such as teachers in a Catholic school who play a role in spreading the faith, but this decision could expand the license to discriminate beyond those who qualify as “ministers.” The Supreme Court explicitly declined to address the employer’s religious objections to Title VII in Bostock v. Clayton County, Georgia, but a ruling in Fulton could fill in that gap now that the question of religious objections to neutral laws is properly before the Court.

Decisions from the Supreme Court involving LGBTQ rights typically come out at the end of the term in June, but the Court’s decision could be published any time between now and then.

Katz, Marshall & Banks, LLP
For more articles on SCOTUS, visit the National Law Review Litigation / Trial Practice section

A More Conservative SCOTUS Slated to Hear Remand Question in Baltimore Climate Suit

With the confirmation of Justice Amy Coney Barrett on October 26, the Supreme Court that will review a Fourth Circuit decision affirming the remand of Baltimore City’s ongoing climate suit is significantly more conservative than the Supreme Court that granted certiorari just a few weeks prior.[1] Justice Barrett, a self-proclaimed textualist and a prior clerk to the late Justice Antonin Scalia, is expected to give strong preference to the plain language meaning of federal statutes, regardless of the policy ramifications. This will likely favor Petitioners, whose certiorari petition relied on a plain language reading of the relevant federal statute.

Petitioners—major energy companies—had removed the case to federal court on multiple jurisdictional grounds, including federal officer jurisdiction under 28 U.S.C. § 1442. After the U.S. District Court for Maryland ordered remand, Petitioners appealed to the Fourth Circuit Court of Appeals based on an exception to the federal statutory prohibition on such appeals where removal is based on the federal officer provision. See 28 U.S.C. § 1447(d).  On March 6, 2020, the Fourth Circuit affirmed the district court’s rejection of the federal officer basis for removal but declined to review the other jurisdictional arguments, ruling them outside the purview of the Section 1447(d) exception. Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020). The Petitioners sought certiorari on the issue of whether the Fourth Circuit improperly declined to review the other bases for removal. The Supreme Court granted certiorari on October 2, 2020.

The Supreme Court will address a question that has split nine federal circuit courts. The Fifth, Sixth, and Seventh Circuits have found that the Section 1447(d) exception allows for appellate review of all issues subject to an eligible remand order. The Second, Fourth, Eighth, Ninth, and Eleventh Circuits have found review is limited to the jurisdictional issue that forms the basis of the exception for an otherwise non-appealable remand order, i.e., removal based on federal officer jurisdiction or civil rights claims.[2]

While limited to an arcane jurisdictional question regarding the proper scope of appellate review of federal remand orders, the Supreme Court’s review of the case will have significant implications for the dozens of ongoing lawsuits for climate-related damages across the country. As cities and states pursue their claims, there will continue to be procedural battles over whether the cases should be heard in state or federal court, and federal appellate review of remand orders could play a significant role in deciding the proper forum for such suits. In turn, it will be either state or federal judges who review the substantive merit of such claims, including whether federal or state common law should be applied to interstate climate torts and whether federal environmental statutes preempt such tort claims.

[1] Justice Samuel A. Alito Jr. recused himself from consideration of the petition.  Presumably, he will also recuse himself from consideration of the appeal on the merits.

[2] There are currently two exceptions: one for federal officers and one for civil rights claims. See 28 U.S.C. § 1447(d) (citing id. §§ 1442, 1443).

© 2020 Beveridge & Diamond PC
For more articles on environmental litigation, visit the National Law Review Environmental, Energy & Resources section.

Justice Ginsberg’s Multi-Generational Impact

I knew Justice Ginsburg had been seriously ill, so I shouldn’t have been surprised when I heard the news of her passing. But it was still a big shock, and tears started falling. I thought to myself, “I don’t even personally know her—why am I crying?” It was because of all that she represented. She was truly inspirational. She had a tough life—losing her mother at a young age and trying to get her foot in the door and succeed in a male-dominated profession, not to mention numerous serious health issues. Yet she persevered, and she became a “first” in so many ways, even in death—being the first woman and first Jewish American to lie in state at the U.S. Capitol.

Reading about her life has been fascinating, but two parts I especially enjoyed were her sense of humor and her friendship with the late Justice Antonin Scalia. The two justices were on opposite ends of the law but close friends. I love the picture of the two of them in India on an elephant. She was behind him, and when asked why she, an advocate of women’s rights, would agree to sit behind a man, she explained that it was for weight distribution purposes! It also just goes to show that you can be on polar opposite ends of important and often contentious issues, but still be respectful and mindful of others and their opinions.

Justice Ginsburg’s cachet was appealing to multiple generations—young, old, and everyone in between. I was surprised that even my 17-year-old twins knew of her and something about her life even if only because of “Notorious RBG” mania! That’s something special that not many public personas are able to achieve. She fought for equality and opened doors for the rest of us so that we could also succeed in professions previously dominated by men. Not only have I managed to succeed as an attorney and working mother because women like Ruth Bader Ginsburg paved the way, but I know that my daughter will have fewer challenges as a result. For that, I am so grateful to Justice Ginsburg, and she will be missed so very much.

©2020 Epstein Becker & Green, P.C. All rights reserved.
For more articles on RBG, visit the National Law Review Litigation / Trial Practice section.

Review of McGirt v. Oklahoma – How the Supreme Court and Justice Gorsuch’s Revolutionary Textualism Brought America’s “Trail of Tears” Promise to the Creek Nation Back From the Dead

How does a child sex offender’s appeal of his criminal conviction result in half the State of Oklahoma – 113 years after it was admitted as the 46th State in the Union – being declared “Indian Lands” and given back to the Creek Nation Native Americans? That is the crazy plot not of a Best-Selling novel, but of the United States Supreme Court case McGirt v. Oklahoma, No. 18-9526, decided 5-4 late this term on July 9, 2020 in a ground-breaking majority opinion written by Justice Neil Gorsuch.

To understand McGirt’s impact we must start with its historical context. Roughly 180 years ago, a group of indigenous Native Americans known as the Five Civilized Tribes – the Cherokee, Chickasaw, Choctaw, Creek and Seminole – lived as autonomous nations throughout the American Deep South, as they had for hundreds of years before. As our new United States nation grew, however, European Americans were growing in number and had designs on the land for expansion of the young country. Not surprisingly, these designs didn’t include a place for Native Americans.

The “Indian Problem”

To remedy this so-called “Indian Problem,” the federal government imposed a forced relocation plan to remove the Native Americans from the Deep South. This plan, first championed by George Washington, evolved and was codified in American law and history by President Andrew Jackson, when he successfully pushed the Indian Removal Act of 1830 through Congress (over pioneer Davy Crockett’s fervent, raccoon-capped objection!). It was the Indian Removal Act of 1830 that authorized the federal government to extinguish all Indian title to Deep South lands, and to fully and finally remove the Native Americans by any means necessary.

To peacefully execute this plan, the federal government made a promise to the Five Civilized Tribes that if they agreed to remove themselves voluntarily, they would forever be granted replacement land out in the frontier American West. Had they not agreed, of course, the federal government was more than ready to remove them by force. Realizing they’d been given a Godfather-like “offer you can’t refuse,” the Tribes agreed that they would remove West, in reliance on this promise. One of the Five Civilized Tribes who accepted the government’s offer was the Creek Nation (who, while not a party to McGirt, became the biggest beneficiary of its ultimate holding). That almost 200-year-old promise is where the story of McGirt v. Oklahoma begins.

In what is known in American history as the “Trail of Tears,” beginning in the 1820s and into the 1830s, approximately 60,000 Native American men, women and children were uprooted from their ancestral homes and forced as refugees to pick up and walk hundreds of miles West on faith that the federal government’s promise would be honored. The “Trail of Tears” is a traumatic part of Native American history, as more than 4,000 Native Americans died from exposure, disease and starvation before ever reaching their promised lands. A promise that was made, but never fully fulfilled.

As Justice Gorsuch summarized in his majority opinion:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U.S. government agreed by treaty that ‘[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty with the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty).

It was against this great historical backdrop that the otherwise unremarkable criminal appeal of McGirt v. Oklahoma arose.

An Otherwise Unremarkable Appeal

By all accounts, Jimcy McGirt, a Native American, was an unsavory character and is by no means a hero of this story. In 1997, the State of Oklahoma convicted him of molesting, raping and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. His other appellate grounds apparently unconvincing, and the individual circumstances of his case so horrific, his appellate lawyers – as good lawyers do – instead focused elsewhere, on an issue that had been simmering under the surface of Oklahoma state law for years. Perhaps, the lawyers argued, regardless of Mr. McGirt’s heinous conduct, his conviction is null and void for reasons other than the facts of the underlying case all together? Perhaps Oklahoma did not even have jurisdiction – the power – to criminally prosecute and/or to convict him in the first place, because the crime, as heinous as it was – was committed not on state land, but instead on federal “Indian Lands.” Land that Oklahoma has owned and controlled for over 100 years, but that the Creek Nation had been promised, pursuant to treaty, long ago.

Great headwinds worked against McGirt and his appellate counsel, not the least of which was that all of the main parties involved – the United States, the State of Oklahoma – and even the Creek Nation itself – had acquiesced to Oklahoma’s criminal jurisdiction and control over the land for the past 100 years.

As Justice Gorsuch succinctly put it, the question presented in McGirt was “did [McGirt] commit his crimes in Indian Territory?” Or was the crime committed on lands, as everyone seemed to assume for the past century, owned and controlled by State of Oklahoma?

If Eastern Oklahoma (including the large city of Tulsa) was in fact “Indian territory,” i.e. a reservation granted by the United States after the “Trail of Tears” promise, then it would be federal land and pursuant to the Major Crimes Act (MCA), McGirt could not be prosecuted by the State of Oklahoma, but could only be prosecuted by the federal government in federal court. And if that were the case, then McGirt’s conviction would be void, as Oklahoma had no more power to prosecute and convict McGirt of his crimes than you or I do sitting in our comfiest chair.

On its face, the question sounds almost ridiculous. Oklahoma has been a State prosecuting and convicting criminals, including in the areas of Eastern Oklahoma, for over 100 years. Land that McGirt now argues were never under Oklahoma’s power to control, but instead were always part of the Creek Reservation. Oklahoma countered, of course, with what seems like the more logical and pragmatic answer to that question – that through subsequent legislation, Oklahoma’s statehood in 1907, and the passage of generations without recognizing the Creek Nation’s sovereignty over these lands – that even if the land had been the Creek Nation’s at one point, that ended long ago. Oklahoma presented its argument as if it were a “no brainer.”

Justice Gorsuch’s “Textualist” Approach

Justice Gorsuch saw it differently. Siding with the 4 more liberal Supreme Court Justices, Justice Gorsuch wrote for the majority of the Court finding that the land did belong to the Creek Nation, that it was not a part of Oklahoma, and that therefore McGirt’s conviction must be vacated.

Most compelling, however, was how Justice Gorsuch boldly advanced his “textualist” approach in this opinion, regardless of whether it led to a “liberal” or “conservative” outcome.

Justice Gorsuch was President Donald J. Trump’s first Supreme Court appointee. He was championed as a staunch political conservative who would push the Supreme Court to the right. While no one can doubt Justice Gorsuch’s conservative bona fides, what was less understood by the talking heads in the media was that his true convictions are not to political ideology – but to his own brand of “textualist” legal philosophy.

Through this “textualist” lens, Justice Gorsuch ignored all of the numerous arguments over whether the argued outcomes would be best, most reasonable, or most fair and just. Instead, he focused squarely on the words used by Congress when it made and carried out its “Trail of Tears” promise to the Creek Nation. To that end, Justice Gorsuch posited the premise that once a reservation is established by Congress, the only question is whether Congress ever took that reservation away. You can’t look to the States. The law is clear that the States do not have any power to declare or negate a federally granted Indian Reservation. You also can’t look to the Courts. The Courts cannot judicially legislate a reservation into, or out of, existence. Therefore, what must be focused on exclusively is whether Congress ever expressly broke its “Trail of Tears” promise and ended the Creek Nation’s reservation. For that “[t]here is only one place we may look:” Justice Gorsuch said matter-of-factly, “the Acts of Congress.”

In applying this purely “textualist” approach, Justice Gorsuch was unyielding:

History shows that Congress knows how to withdraw a reservation when it can muster the will. Sometimes, legislation has provided an “explicit reference to cessation” or an “unconditional commitment … to compensate the Indian tribe for its opened land.” Ibid. Other times, Congress has directed that tribal lands shall be “restored to the public domain.” Hagen v. Utah, 510 U.S. 399, 412 (1994)(emphasis deleted). Likewise, Congress might speak of a reservation as being “discontinued”, “abolished”, or “vacated.” Mattz v. Arnett, 412 U.S. 481, 504, n. 22 (1973). Disestablishment has “never required any particular form of words,” Hagen, 510 U.S., at 411. But it does require that Congress clearly express its intent to do so, “commonly with an explicit reference to cessation or other language evidencing the present and total surrender of all tribal interests.” Nebraska v. Parker, 577 U.S. 481 (2016).

Oklahoma attempted to argue that either a reservation was never established, or the text of the subsequent Acts of Congress, if not expressly, at least effectively terminated any reservation that may have ever existed. But in Justice Gorsuch’s deft hands, this argument was doomed to fail. As Justice Gorsuch famously and efficiently proclaimed in his now famous Bostock v. Clayton County Title VII opinion earlier this term: “(o)nly the written word is law, and all persons are entitled to its benefit.” This is the textualist (almost religious) creed, and to ignore it as the foundation of any argument before this Court in its current make-up is done at one’s own peril.

To Justice Gorsuch (and most times a majority of this Court), one must set aside all else – what “chaos” may ensue from a ruling, what the conventional wisdom is on an issue (or here, has been for over a hundred years), or – more controversially put – what may be the best or most just outcome of a dispute – and decide disputes based solely on the written words of the law at issue. To a textualist, all citizens should be able to rely on the law as written, regardless of what even a majority may believe was intended by the law, or what an individual jurist may believe in a given case is a more just outcome. It is Judge Gorsuch’s purely textualist approach that dictated the outcome in this case, more than any political ideology or concern.

Once Justice Gorsuch rejected Oklahoma’s argument on the text of the law, he further applied his own textualist principles to dismiss the others. Oklahoma’s argument that the “historical practices and demographics, both around the time of, and long after the enactment of, all the relevant legislation” controlled was soundly rejected. To ignore the plain meaning of the words of a statute based upon matters outside the text, in Justice Gorsuch’s thinking, would risk, as he stated, “substituting stories for statutes.” Stories, to a textualist, are inherently more unreliable than the plain meaning of words on a page. Here, historical stories also typically favor history’s victors and undermine its victims. In this case, Justice Gorsuch found an exemplar case to divorce his “textualist” approach from previous criticism from the left that it is merely a conservative tool, or means to dictate conservative ends. Once you accept stories over the written word of law, to Justice Gorsuch, then the law itself is unmoored and subject only to the prevailing political winds of the time.

Justice Roberts’ Striking Dissent

Almost as striking as Justice Gorsuch’s triumphant planting of his textualist flag this term in Bostock and now McGirt, was Justice Roberts’ continued trend towards a more pragmatic and cautious legal approach. While that trend was highlighted more by pundits in cases where he sided with the more liberal justices, in McGirt, Justice Roberts again (even though he sided with the conservatives) championed the narrower and less ideological approach.

Writing for the four dissenting Justices, Justice Roberts concluded that “a century of practice confirms that the Five Tribes’ prior domains were extinguished.” The dissent ignored what Justice Gorsuch and the other majority justices could not. That to hold as such would be to allow Oklahoma to re-cast its decades of illegal practices, usurpation of authority, and mistreatment of the Creek Nation into “historical custom and practice” that it could then use to justify its dishonoring the “Trail of Tears” promise.

McGirt most assuredly creates sensational headlines due to its massive shift of power and authority from Oklahoma to the Creek Nation. Most articles reviewing this case focus on the uncertainty it will cause in matters between Native Americans and States within whose borders Indian Reservations exist. However, McGirt is also important for another, less sensational, but perhaps more impactful assertion regarding the rule of law in America going forward – the rise of Justice Gorsuch’s brand of “textualism.”

Takeaways

To Justice Gorsuch, the rule of law and the word of the law are paramount to all other interests. As the saying goes – one’s word is their bond. And it is that word – and that word alone – that should always be honored, whether you are a person, or a country. Justice Gorsuch closed his opinion consistently:

Today, we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

While perhaps over 100 years late, in McGirt, the United States Supreme Court affirmed that what you promise must be honored, and in doing so, belatedly (and surprisingly) fulfilled a “Trail of Tears” promise most thought died long ago.

Copyright 2020 © Burg Simpson Eldredge Hersh & Jardine, P.C.