I. Opinions. This Report summarizes opinions issued on April 17 and 24, 2018 (Part I); and cases granted review on April 23 and 30, 2018 (Part II).

Transcription

1 VOLUME 25, ISSUE 9 MAY 7, 2018 This Report summarizes opinions issued on April 17 and 24, 2018 (Part I); and cases granted review on April 23 and 30, 2018 (Part II). I. Opinions United States v. Microsoft Corp., In a per curiam opinion, the Court dismissed the case as moot. At issue was whether Microsoft must disclose to the Government, pursuant to a warrant issued under 2703 of the Stored Communications Act (SCA), electronic communications within its control but stored abroad. Federal agents had obtained a warrant requiring Microsoft to disclose all s and other information associated with the account of one of its customers, which was suspected of being used to further illegal drug trafficking. Microsoft determined that the account s contents were stored in Dublin, Ireland and moved to quash the warrant with respect to that information. The motion was denied, and the district court later held Microsoft in civil contempt for refusing to fully comply with the warrant. The Second Circuit reversed, holding that requiring Microsoft to disclose electronic communications stored abroad would be an unauthorized extraterritorial application of The Court granted certiorari. After oral argument was held but before a decision issued, however, Congress enacted the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which added the following provision to the SCA: A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States. CLOUD Act 103(a)(1). The government obtained a new 2703 warrant covering the information requested by the original warrant and moved for vacatur and remand with instructions to dismiss the case as moot. Microsoft agreed. The Court determined that [n]o live dispute remains and ordered that, [f]ollowing the Court s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to the... Second Circuit with instructions first to vacate the District Court s contempt finding and its denial of Microsoft s motion to quash, then to direct the District Court to dismiss the case as moot. Wilson v. Sellers, In a 6-3 opinion, the Court held that a federal habeas court reviewing under AEDPA an unexplained state-court decision on the merits should look through that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. In 1997, a Georgia jury convicted petitioner Marion Wilson of murder and sentenced him to death. After his conviction was affirmed on direct appeal, Wilson filed a state habeas petition alleging (among other things) that his counsel was ineffective during the sentencing proceeding for failing to introduce testimony from witnesses about his childhood and his brain injuries. The state habeas court denied the claim on the ground that the new evidence was inadmissible on evidentiary grounds, was cumulative of other testimony, or otherwise would not have, in reasonable probability, changed the outcome of the trial. The Georgia Supreme Court denied, without explanation, Wilson s application for a certificate of probable cause to appeal. Wilson then filed a federal habeas petition asserting the same ineffective-assistance claim. The district court denied the petition, concluding that the state habeas court s ruling was not, as 2018, NAAG, 1850 M Street, NW 12 th Floor Washington, DC (202)

2 required by 28 U.S.C. 2254(d)(1), an unreasonable application of clearly established law. An Eleventh Circuit panel affirmed. It first held that the district court erred by assessing the reasonableness of the state habeas court s opinion. Instead of looking through the Georgia Supreme Court s decision, the federal habeas court should have asked what arguments could have supported the Georgia Supreme Court s refusal to grant permission to appeal. The panel then identified several bases that it thought reasonably could have supported that decision. On en banc review, the Eleventh Circuit (by a 6-5 vote) agreed with the panel that its could have supported approach was correct. Through an opinion by Justice Breyer, the Court reversed and remanded. The Court explained that in Ylst v. Nunnemaker, 501 U.S. 797 (1991), it addressed the methodology for deciding whether a state court rejected a claim based on a procedural default or the merits. Ylst held that, [w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. The Court noted that every circuit that opined on the matter post-ylst (other than the Eleventh Circuit) employed this look through approach even where no state court applied a procedural bar. The Court found this not surprising in light of the fact that the look through presumption is often realistic, for state higher courts often [issue summary decisions] when they have examined the lower court s reasoning and found nothing significant with which they disagree. Moreover, it noted, a look through presumption is often more efficiently applied than an approach that would require a federal habeas court to imagine what might have been the state court s supportive reasoning. The Court then turned to the case upon which Georgia relied, Harrington v. Richter, 562 U.S. 86 (2011). Harrington held that when a federal habeas court is assessing under AEDPA an unreasoned state-court decision, the habeas court must determine what arguments or theories supported or, as here, could have supported, the state court s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. The Court held here that Richter does not control because in Richter there was no lower court opinion to look to ; the defendant raised his constitutional claim for the first time in the California Supreme Court (which denied the claim in an unexplained order). In addition, said the Court, Richter acknowledged that it was adopting a presumption that may be overcome when there is reason to think some other explanation for the state court s decision is more likely. The Court added that it has looked through to lower state-court decisions several times itself. See, e.g., Premo v. Moore, 562 U.S. 115 (2011); Sears v. Upton, 561 U.S. 945 (2010) (per curiam). The Court clarified that the look through presumption may be rebutted by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed. An unreasonable lower court decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning. More generally, a federal habeas court may conclude that counsel has rebutted the presumption on the basis of convincing alternative arguments for affirmance made to the State s highest court or equivalent evidence presented in its briefing to the federal court similarly establishing that the State s highest court relied on a different ground than the lower state court, such as the existence of a valid ground for affirmance that is obvious from the state-court record. Consequently, concluded the 2

3 Court, a presumption that can be rebutted is in accord with full and proper respect for state courts, even if (as here) the highest court of a state has indicated that its summary decisions should not be read to adopt the lower court s reasoning. The Court distinguished the rule that silent opinions of a federal appeals court do not presumptively adopt the lower court s reasoning, noting that a different rule in that context would risk judges and lawyers reading those decisions as creating, through silence, a precedent that could be read as binding throughout the circuit. That concern does not apply to the specific and narrow purpose of applying AEDPA deference. Justice Gorsuch filed a dissenting opinion that Justices Thomas and Alito joined. Justice Gorsuch complained that there is no statutory basis, Supreme Court precedent, or principle of appellate review supporting a look through presumption. In fact, said Justice Gorsuch, they support more nearly the opposite presumption: federal courts must presume the order rests on any reasonable basis the law and facts allow. First, the text of AEDPA demands that a federal habeas court must focus its review on the final state court decision on the merits, not any preceding decision by an inferior state court. Second, Richter teaches that the petitioner must show no lawful basis could have reasonably supported [the relevant state-court decision]. Justice Gorsuch distinguished Ylst as simply teach[ing] that, if a lower state court opinion expressly relied on an independent and adequate state ground, we should presume a later state appellate court summary disposition invoked it too. Finally, Justice Gorsuch contended that the Court should treat the work of our state court colleagues with [no] less respect than we demand of our own and our summary affirmances may be read only as signaling agreement with a lower court s judgment and not necessarily its reasons. Regardless, concluded Justice Gorsuch, the presumption nearly drops us back where we began, with only trouble to show for the effort, because a federal habeas court should sustain a state court summary decision denying relief if the state court arguments, briefs, and record reveal a basis to do so reasonably consistent with this Court s holdings. Jesner v. Arab Bank, PLC, The Alien Tort Statute (ATS) provides that [t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C By a 5-4 vote, the Court held that foreign corporations may not be defendants in suits brought under the ATS. Foreign plaintiffs had sought to impose liability on Arab Bank, PLC a major Jordanian financial institution alleging that [s]ome of Arab Bank s officials [had] allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. To proceed under the ATS, plaintiffs had to demonstrate that (1) the alleged violation is of a norm that is specific, universal, and obligatory ; and (2) allowing this case to proceed under the ATS is a proper exercise of judicial discretion, or instead whether caution requires the political branches to grant specific authority before corporate liability can be imposed. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Second Circuit held that the ATS does not permit suits against corporate entities. In an opinion by Justice Kennedy, the Court affirmed. (Most of Justice Kennedy s opinion was joined only by Chief Justice Roberts and Justice Thomas. We will first describe the part of Justice Kennedy s opinion that was for the Court, which Justices Alito and Gorsuch also joined, and then describe the part of the opinion that was for only a three-justice plurality.) 3

4 The Court explained that the ATS is strictly jurisdictional and does not by its own terms provide or delineate the definition of a cause of action for violations of international law. Nevertheless, said the Court, the ATS was intended to be immediately functional and was enacted against the backdrop of the general common law, which in 1789 recognized a limited category of torts in violation of the law of nations, including violation of safe conducts, infringement of the rights of ambassadors, and piracy. In Sosa, the Court had held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, but that such additions implicate[] serious separation-of-powers and foreign relations concerns [and] must be subject to vigilant doorkeeping. This is consistent, said the Court here, with this Court s general reluctance to extend judicially created private rights of action, even in the realm of domestic law. For example, the Court held in Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001), that corporate defendants may not be held liable in Bivens actions because [w]hether corporate defendants should be subject to suit was a question for Congress, not us, to decide. Since the separationof-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS[,]... absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations. The Court also pointed to the ATS purpose, which is to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable. Allowing Arab Bank to be sued, found the Court, had the opposite result: As the United States claimed in its amicus brief, this litigation has caused significant diplomatic tensions with Jordan, a critical ally in one of the world s most sensitive regions. Other countries and organizations including the European Commission, South Africa, the Federal Republic of Germany, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Kingdom of the Netherlands have noted their objections to ATS litigation, which are the very foreign-relations tensions the First Congress sought to avoid. In short, said the Court, foreign corporate defendants create unique problems[, and] courts are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one. Accordingly, the Court held that foreign corporations may not be defendants in suits brought under the ATS. In his plurality opinion, Justice Kennedy said that there is considerable force and weight to interpreting a particular footnote in Sosa to mean that corporate defendants may be held liable under the ATS only if there is a specific, universal, and obligatory norm that corporations are liable for violations of international law. The plurality did not believe petitioners could satisfy that high bar. Although international law has recognized that human-rights norms bind individual men and women, it does not follow, however, that current principles of international law extend liability... to corporations or other artificial entities. This is confirmed by the fact that charters of international criminal tribunals including the Charter for the Nuremberg Tribunal and the Rome Statute of the International Criminal Court often exclude corporations from their jurisdictional reach. The plurality rejected counterexamples pointed out by petitioners and their amici as weak support, stating they at most demonstrate that corporate liability might be permissible under international law in some circumstances[, but t]hat falls far short of establishing a specific, universal, and obligatory norm of corporate liability. At the very least, said the plurality, there is sufficient doubt on the point to turn to Sosa s second question [of] whether the Judiciary must defer to Congress, allowing it to determine 4

5 in the first instance whether that universal norm has been recognized and, if so, whether it is prudent and necessary to direct its enforcement in suits under the ATS. The plurality emphasized that an analogous statute the Torture Victim Protection Act of 1991 (TVPA), created by Congress as a cause of action under the ATS limits liability to natural persons. Congress decision to constrain liability to natural persons, stated the plurality, illustrates that significant foreign-policy implications require the courts to draw a careful balance in defining the scope of actions under the ATS[, such that i]t would be inconsistent with that balance to create a remedy broader than the one created by Congress. The plurality also found that [i]t has not been shown that corporate liability under the ATS is essential to serve the goals of the statute, for the ATS is not the only way to hold perpetrators liable, plaintiffs can still sue corporate employees, and allowing plaintiffs to sue foreign corporations under the ATS could impair American corporations from participating in economic development abroad. The plurality concluded that judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government. Justice Thomas filed a short concurring opinion, stating that Justice Kennedy s opinion correctly applies our precedents, but that he also agrees with Justice Alito and Justice Gorsuch s critique of those precedents. Justice Alito filed an opinion concurring in part and concurring in the judgment. He explained that Sosa struggled to square the ATS and its reliance on general common law with the later rejection of a federal general common law. He is not certain that Sosa was correctly decided, but even accepting that decision, its second step mandates that [f]ederal courts should decline to create federal common law causes of action... whenever doing so would not materially advance the ATS s objective of avoiding diplomatic strife. Put another way, said Justice Alito, [u]nless corporate liability would actively decrease diplomatic disputes, we have no authority to act. And, he found, that is the case. Because [c]reating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate exactly the sort of diplomatic strife that the law was enacted to prevent, the separation of powers dictates that we have neither the luxury nor the right to make such policy decisions ourselves. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment. He raised two more fundamental reasons for dismissing petitioners suit: (1) We should refuse invitations to create new forms of legal liability ; and (2) we should not meddle in disputes between foreign citizens over international norms. Justice Gorsuch would end ATS exceptionalism. More specifically, he evinced serious doubt about Sosa s suggestion that federal judges may create new causes of action under the ATS because federal judges should not serve as policymakers for a large nation. That power belongs to the people s representatives and should be promptly returned to them. Even if Sosa is applied, however, judges should exercise good judgment by declining the project [to create new causes of action] before we create real trouble. Justice Gorsuch also believed that federal courts [must] require a domestic defendant before agreeing to exercise any Sosa-generated discretion to entertain an ATS suit. The original understanding of the ATS supports this theory, he concluded: Because Article III s diversity-of-citizenship clause calls for a U.S. party, and because the ATS clause requires an alien plaintiff, it follows that an American defendant was needed for an ATS suit to proceed. 5

6 Justice Sotomayor filed a dissenting opinion, which Justices Ginsburg, Breyer, and Kagan joined. Justice Sotomayor chided the Court for erroneously absolv[ing] corporations from responsibility under the ATS for conscience-shocking behavior. The Court misapplied Sosa s first step, said Justice Sotomayor, by asking whether there exists a specific, universal, and obligatory norm of corporate liability under international law, when the relevant inquiry is whether there is any reason under either international law or our domestic law to distinguish between a corporation and a natural person who is alleged to have violated the law of nations under the ATS. Justice Sotomayor pointed out that international tribunals limiting liability to natural persons may have had strategic and pragmatic reasons such as a desire to focus on the principle of non-state criminal responsibility for human-rights violations at Nuremberg for doing that. She then listed a number of international and domestic tribunals that found non-natural entities liable for obligations under international law, and pointed out that [c]orporations have long been held liable in tort under the federal common law. Justice Sotomayor concluded that [n]othing about the historical background against which the ATS was enacted rebuts the presumption that the statute incorporated the accepted principle of corporate liability for tortious conduct. She responded to the diplomatic friction concerns of the plurality by identifying tool[s] more tailored to the source of the problem than a blanket ban on corporate liability : the presumption against extraterritoriality, limits on courts personal jurisdiction over a foreign corporate defendant, and dismissal of suits for a plaintiff s failure to exhaust the remedies available in her domestic forum, on forum non conveniens grounds, for reasons of international comity, or when asked to do so by the State Department. All told, said Justice Sotomayor, [i]mmunizing corporations that violate human rights from liability under the ATS undermines the system of accountability for law-of-nations violations that the First Congress endeavored to impose. It allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights,... without having to shoulder attendant fundamental responsibilities. Sessions v. Dimaya, By a 5-4 vote, the Court held that a provision of the Immigration and Nationality Act defining crime of violence is unconstitutionally vague. Under the Immigration and Nationality Act (INA), an alien convicted of an aggravated felony after entering the United States is deportable and is ineligible for cancellation of removal. 8 U.S.C. 1227(a)(2)(A)(iii); 1229b(a)(3). The INA defines aggravated felony to include a crime of violence (as defined in section 16 of title...) for which the term of imprisonment [is] at least one year. 1101(a)(43)(f). Section 16(b), in turn, defines a crime of violence to include (in its residual clause ) any... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Respondent James Dimaya is a lawful permanent resident with two convictions for first-degree burglary under California law. Following his second conviction, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals found that first-degree burglary under the California statute qualified as a crime of violence under 16(b). While Dimaya s appeal was pending before the Ninth Circuit, the Supreme Court decided Johnson v. United States, 576 U.S. (2015), which held that the similarly worded residual clause in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Relying on Johnson, the Ninth Circuit held that 16(b) was likewise unconstitutionally vague. In an opinion by Justice Kagan, the Court affirmed. (Justice Gorsuch, who provided the decisive fifth vote, joined most but not all of Justice Kagan s opinion.) 6

7 In deciding whether a person s conviction falls within the residual clauses of the INA or ACCA, the courts use the categorical approach, which looks not at the particular facts underlying the conviction, but whether the ordinary case of an offense poses the requisite risk. Whereas 16(b) s residual clause covers a crime that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, ACCA s clause covered a crime that involves conduct that presents a serious potential risk of physical injury to another. The Court concluded that Johnson is a straightforward decision, with equally straightforward application here. Johnson held that [t]wo features of [ACCA s] residual clause conspire to make it unconstitutionally vague. First, it provided no guidance on what constituted the ordinary case of an offense. For example, [i]n the ordinary case of attempted burglary, is the would-be culprit spotted and confronted, or scared off by a yell? Second, the clause left unclear what threshold level of risk made any given crime a violent felony. The Court concluded here that 16(b) suffers from the same two flaws. The result is that 16(b) produces, just as ACCA s residual clause did, more unpredictability and arbitrariness than the Due Process Clause tolerates. The Court rejected the Government s attempts to distinguish 16(b) from its ACCA counterpart. The Government relied on 16(b) s express requirement which ACCA lacked that the risk arise from acts taken in the course of committing the offense. According to the Government, because this temporal limitation excludes risks arising after the crime s commission it demands a significantly more focused inquiry than did ACCA s residual clause. The Court disagreed, concluding that [i]n the ordinary case, the riskiness of a crime arises from events occurring during its commission, not events occurring later. Indeed, noted the Court, none of its ACCA decisions concerned conduct that could occur after the crime s commission. Nor did the Court find persuasive the Government s argument that 16(b) uses of the term physical force, whereas ACCA used the term physical injury. This mattered, said the Government, because assessing the risk of physical injury requires courts to speculate about a chain of causation not required to assess the risk of physical force used when committing a crime. The Court found, however, that this doesn t solve the problem of determining the ordinary case of the offense and its potential consequences. Nor did the Court find persuasive the Government s contention that 16(b) had divided the lower courts less often than ACCA s residual clause and had led to fewer cases in the Supreme Court. In a portion of her opinion joined by only three additional Justices, Justice Kagan rejected the Government s argument that because removal proceedings are civil, rather than criminal, a more permissive form of the void-for-vagueness doctrine should be applied than the one in Johnson. Citing Jordan v. De George, 341 U.S. 223 (1951), the Court stated that the most exacting vagueness standard must apply here because deportation is a particularly severe penalty one that may be of greater concern to a convicted alien that any criminal jail sentence. Justice Gorsuch, in his concurring opinion, rejected the Government s argument for a different reason. He stated that, if the severity of the consequences counts when deciding the standard of review, shouldn t we also take account of the fact that today s civil laws regularly impose penalties far more severe than those found in many criminal statutes? He pointed to confiscatory fines, civil asset forfeiture, debarring professionals, and civil commitment. Rather than treating deportation as a special civil sanction that deserves treatment on par with criminal sanctions (as the plurality would), Justice Gorsuch would apply the same fairnotice standard to both civil and criminal sanctions. He also responded at length to Justice Thomas s separate dissenting view questioning the void-for-vagueness doctrine. Justice Gorsuch said that 7

8 vague laws invite arbitrary enforcement, permitting prosecutors and courts to make it up for themselves. He described the doctrine as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution. Chief Justice Roberts filed a dissenting opinion, which Justices Kennedy, Thomas, and Alito joined. The dissent maintained that 16(b) s residual clause is valid because a crime s nature and risk are readily revealed when atypical cases are eliminated. Chief Justice Roberts also distinguished between ACCA s befuddling requirement to measure serious potential risk of injury and 16(b) s markedly more determinate standard to consider substantial risk that the offender used physical force while carrying out the crime. He also pointed out that 16(b) lacks the disjointed list of paradigm offenses contained in ACCA. Justice Thomas filed a separate dissenting opinion. In the part of that opinion joined by Justices Kennedy and Alito, he asserted that a person challenging statutes as void for vagueness must prove that the statute is vague as applied to him. Yet, he concluded, respondent s convictions for first-degree residential burglary are a classic example of a crime of violence. Justice Thomas (again joined by Justices Kennedy and Alito) would also hold that the Court should discard the categorical (ordinary-case) approach to applying 16(b) and should as a matter of statutory construction, including the constitutional-doubt doctrine instead consult the underlying facts of the alien s crime and then assess its riskiness. Finally, Justice Thomas (in a portion of his dissent not joined by any other Justices) reiterated his view that the void-for-vagueness doctrine probably cannot be squared with the original meaning of the Due Process Clause. Oil States Energy Serv., LLC v. Green s Energy Group, LLC, The 2012 America Invents Act creates a comprehensive adjudicatory process called inter partes review, which authorizes the U.S. Patent and Trademark Office (PTO) to reconsider and cancel an approved patent upon a petition from anyone other than the patent owner. 35 U.S.C By a 7-2 vote, the Court held that inter partes review does not violate Article III or the Seventh Amendment. Petitioner Oil States Energy Services and respondent Greene s Energy Group are both oilfield service companies. Oil States sued Greene s Energy in federal court for infringing Oil States patent relating to technology to protect wellhead equipment used in hydraulic fracturing. Greene s Energy challenged the patent s validity in court, and also petitioned the PTO for inter partes review. The court issued a claim-construction order in favor of Oil States, but the Patent Trial and Appeal Board (Board) the PTO body that conducts inter partes review concluded that Oil States claims were unpatentable. Oil States appealed the Board ruling to the Federal Circuit, where (in addition to its patentability arguments) it challenged the constitutionality of inter partes review. Oil States asserted that an action to revoke a patent must be tried in an Article III court before a jury. While the case was pending, the Federal Circuit issued a decision in a separate case, rejecting the same argument raised by Oil States. The Federal Circuit then summarily affirmed the Board decision. In an opinion by Justice Thomas, the Court affirmed. The Court reaffirmed that, because Article III vests the judicial power of the United States in the Supreme Court and such inferior courts as Congress may establish, Congress cannot confer judicial power on entities outside of Article III courts. Court precedents, however, distinguish between public rights and private rights, and give Congress significant latitude to assign adjudication of public rights to forums other than Article III courts. The Court then explained that the public-rights doctrine applies (among other things) to matters arising between the government and others, which 8

9 from their nature do not require judicial determination and yet are susceptible of it. (Internal quotation marks omitted.) And, the Court found, [i]nter partes review involves one such matter: reconsideration of the Government s decision to grant a public franchise. In reaching that conclusion, the Court noted that granting a patent indisputably involves public rights the government take[s] from the public rights of immense value, and bestow[s] them upon the patentee. The Court has therefore held that granting patents is one of the constitutional functions that can be carried out by the executive or legislative branches without judicial reexamination. The Court concluded that [i]nter partes review involves the same basic subject matter as the grant of a patent. So it, too, falls on the public-rights side of the line. Plus, like other public franchises, [p]atent claims are granted subject to the qualification that the PTO has the authority to reexamine and perhaps cancel a patent claim in a later review. The Court distinguished three cases Oil States pointed to as purportedly recognizing patent rights as the private property of the patentee. Those cases, stated the Court, merely recognized that patents convey a property right possessed by the patentee but it s a property right derived from statutes and qualified by those statutes. Oil States and the dissent s principal argument was that inter partes review violates the general principle that Congress may not withdraw from judicial cognizance any matter which, from its nature, is the subject of suit at the common law, or in equity, or admiralty (internal quotation marks omitted). They maintained that patent validity was often decided in English courts of law 18 th century as defenses to infringement actions or in suits in which challengers filed a writ of scire facias. The Court did not dispute that courts heard some patent disputes between private parties. But, found the Court, there was another means of canceling a patent in 18 th -century England, which more closely resembles inter partes review: a petition to the Privy Council to vacate a patent. The Court observed that the Privy Council had exclusive authority to revoke patents until 1753 and continued to consider revocation claims and to revoke patents through the 18 th century. The Court concluded that the Constitution s Patent Clause was written against [that] backdrop. The Court also stated that [h]istorical practice is not decisive here because matters governed by the public-rights doctrine by their nature can be resolved multiple ways[.]... That Congress chose the courts in the past does not foreclose its choice of the PTO today. Nor did the Court find it dispositive that the motion practice, discovery, and evidentiary procedures used in inter partes review are similar to those features in court proceedings. The Court has never adopted a looks like test to determine if an adjudication has improperly occurred outside of an Article III court. The Court cautioned that this decision (1) is limited to inter partes review and does not address other patent matters, such as infringement actions, and (2) must not be misconstrued to suggest that patents are not property for purposes of the Due Process Clause or Takings Clause. Finally, the Court rejected Oil States Seventh Amendment claim, stating that [w]hen Congress properly assigns a matter to adjudication in a non-article III tribunal, the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder. Granfinanciera, S.A. v Nordberg, 491 U.S. 33, (1989). Justice Breyer filed a concurring opinion, joined by Justices Ginsburg and Sotomayor, stating their view that even private rights may sometimes be adjudicated other than by Article III courts, such as by agencies. 9

10 Justice Gorsuch filed a dissenting opinion, which Chief Justice Roberts joined. The dissent insisted that it is wrong to allow a political appointee and his administrative agents, instead of an independent judge, resolve whether you may retain your personal property right to a patent. The dissent stated that, under Article III, the federal judicial Power is vested in independent judges and [a]s originally understood, the judicial power extended to suit[s] at common law, or in equity, or admiralty. In Justice Gorsuch s view, the historical record shows that only courts could hear patent challenges in England at the time of the founding. Although the Privacy Council invalidated patents at one time, the last time it did so was in 1746 and the last time it even considered doing so was in Further, he contended, from the time it established the American patent system in 1790 until about 1980, Congress left the job of invalidating patents at the federal level to courts alone. Nor does it follow, he said, that just because the Executive could issue patents, so too could it cancel them. Just because you give a gift doesn t mean you forever enjoy the right to reclaim it. SAS Institute Inc. v. Iancu, The Court again addressed inter partes review, holding by a 5-4 vote that when the Patent Office initiates inter partes review it must decide all claims asserted in the initial petition. To begin the review process, a party must file a petition that request[s] to cancel as unpatentable 1 or more claims of [the] patent, and identifies with particularity the claims and grounds for the challenge(s). 35 U.S.C. 312(a)(3). The patent owner may file a response The Director of the Patent Office then determines whether to institute an inter partes review... pursuant to [the] petition, which he will do if he determines that there is a reasonable likelihood that the petitioner will prevail with respect to at least 1 of the claims challenged in the petition. 314(a). If review is instituted and not dismissed, the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner. 318(a). This case arose when petitioner SAS sought review of respondent ComplementSoft s software patent, alleging that all 16 of its claims were unpatentable. The Board, acting on behalf of the Director, initiated review of some (but not all) of the claims and denied review of the rest. The Board relied on 27 CFR (a), which authorizes the Board to proceed on all or some of the challenged claims and on all or some of the grounds of unpatentability asserted for each claim. The Board s final decision found eight claims to be unpatentable and another claim to be patentable; it did not address the remaining seven claims challenged in the original petition. On appeal, the Federal Circuit rejected SAS s argument that 318(a) requires the Board to decide the patentability of all of the claims challenged in its petition. In an opinion by Justice Gorsuch, the Court reversed and remanded. The Court stated that the plain text of 318(a) supplies a ready answer to the question presented. The provision says that once the Director exercises his discretion to institute review, the [Board] shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner (emphasis added). It naturally follows, found the Court, that the Board must address every claim the petitioner has challenged. The Court rejected the Director s contention that he has the discretion to decide which claims make it into inter partes review, and must then decide all of those claims. The Court found nothing in the statutory language authorizing that claimed partial institution power. Rather, Congress chose to structure a process in which it s the petitioner, not the Director, who gets to define the contours of the proceeding. Section 314(b) provides that the Director must decide whether to institute an inter partes review... pursuant to a petition (emphasis added). This gives the Director a binary choice : either institute review or don t in accordance with the petition. By contrast, noted the Court, the ex parte reexamination statute, 303(a), 10

11 authorizes the Director to investigate patentability questions on his own initiative, on a claim-by-claim and ground-by-ground basis. The Court was likewise unimpressed by the Director s contention that, because he must evaluate the claims individually to determine whether there is a reasonable likelihood the petitioner will prevail on at least one of them (as required to institute inter partes review), this means he may institute the review on a claim-by-claim basis. To the contrary, found the Court, the statute does not require the Director to review each claim individually; it simply requires him to decide whether the petitioner is likely to succeed on at least 1 claim. Once that finding is made, it doesn t matter whether the petitioner is likely to prevail on any additional claims. Nor was the Court moved by the Director s reliance on an apparent textual discrepancy between 314(a) and 318(a). The former provision requires the Director, when deciding whether to institute review, to look at claims challenged in the petition ; the latter requires the Director to resolve claims challenged by the petitioner. The Director contended that 318(a) s failure to use the phrase in the petition means the petition is not the focal point of the claims he must finally resolve. The Court found, however, that both provisions focus on the petitioner s contentions and, given that it s difficult to see how they might be read to give the Director power to decide what claims are at issue. Plus, 316(d)(1)(A) permits a patent owner to concede any challenged patent claim, which fully explains why Congress adopted slightly different language in these provisions. Next, the Court rejected the Director s policy argument that partial review promotes efficiency by focusing time and resources on the most promising challenges. That concern, said the Court, is a matter properly addressed by Congress, not the Court. Finally, the Court held that the Director s asserted partial institution power is not entitled to Chevron deference because the statute unmistakabl[y] bars a partial institution power. Justice Ginsberg filed a one-paragraph dissenting opinion, which Justices Breyer, Sotomayor, and Kagan joined. She noted that the Board could simply deny a petition containing multiple challenges, while signaling that one or more claims may warrant reexamination, leaving petitioners free to file new or amended challenges. (The Court said in a footnote that it has no occasion today to consider whether this stratagem is consistent with the statute s demands. ) Justice Breyer filed a lengthier dissenting opinion, which Justices Ginsburg and Sotomayor joined and which Justice Kagan joined except for one paragraph. Justice Breyer concluded that 318(a) s phrase any patent claim challenged by the petitioner fails to reveal whether the relevant challenge is one made in the initial petition or only one made in the inter partes review itself. The majority conceded that claims that are settled or cancelled during the course of the review are no longer considered challenged by the petitioner for purposes of 318(a). Justice Breyer saw no reason to treat claims weeded out by the Board during the institution phase any differently. And Justice Breyer asked why Congress would have intended to require the Board to proceed with an inter partes review, take evidence, and hear argument in respect to challenges to claims that the Board had previously determined had no reasonable likelihood of success. The dissent would therefore have given Chevron deference to the Patent Office s interpretation. (In the paragraph of the dissent not joined by Justice Kagan, Justice Breyer added that, to effectuate Chevron, courts can often implement a more general, virtually omnipresent congressional purpose namely, the creation of a well-functioning statutory scheme by using a canon-like, judicially created construct, the hypothetical reasonable legislator, and asking what such legislators would likely have intended had Congress considered the question of delegating gap-filling authority to the agency. ) 11

12 II. Cases Granted Review Frank v. Gaos, As issue is [w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement of Federal Rule of Civil Procedure 23(b)(3) that a settlement binding class members must be fair, reasonable, and adequate. The cy pres doctrine, which originated in the law of charitable trusts, allows unclaimed class-action settlement proceeds to be used for a charitable purpose related to the plaintiffs injury when it is difficult for all class members to receive individual shares of the recovery. This case arises from a settlement Google entered into to resolve a class-action lawsuit that challenged its practice of transmitting users search terms to third parties. Petitioners were objectors in the district court class-action proceedings; respondents include the individual named plaintiffs and Google. The Ninth Circuit upheld the district court s approval of an $8.5 million settlement that disposed of absent class members claims but did not directly provide them with any monetary relief. Under the settlement, $3.2 million would be paid in attorney s fees, administrative costs, and incentive payments to the named plaintiffs, with the remaining $5.3 million to be paid to organizations that agree to devote the funds to promote public awareness and education, and/or to support research, development, and initiative, related to protecting privacy on the Internet. The organizations chosen included class counsel s alma maters and nonprofits already funded by Google. The Ninth Circuit found that the settlement award to the thirdparty organizations selected by Google and class counsel was a fair and adequate remedy under the cy pres doctrine. 869 F.3d 737. According to petitioners, [u]nder the standard set by the Ninth Circuit, it is not considered feasible to provide any compensation to class members when it would be infeasible to compensate all of them. The result is that, by defining a sufficiently large class, class counsel can ensure that direct compensation is never required, opening the door to a cy pres-only settlement that denies class members any real relief. They contrast that standard with the approach followed by the Third, Fifth, Seventh, and Eighth Circuits, which hold that a cy pres distribution to a third party of unclaimed settlement funds is permissible only when it is not feasible to make further distributions to class members who have not yet been fully compensated. Petitioners contend that cy pres awards require special scrutiny because they can foster collusion between defendants, eager to settle at the lowest price, and class counsel, interested in maximizing their fees. They insist that [w]here cy pres can be used to facilitate an early settlement, with a full fee award, class counsel have every incentive to sell their putative clients down the river. Google counters that there is no circuit split and that the Ninth Circuit acted within its discretion in approving the cy pres award to organizations with established Internet privacy programs. It maintains that the court correctly found that it was infeasible to distribute de minimis settlement proceeds to 129 million class members who did not suffer any actual harm resulting from the challenged Internet search feature. The named plaintiffs agree with Google that there is no circuit split, in that all circuits apply nearly identical factors to approve cy pres remedies, and that the issue here arises from a factual dispute about the fairness of an arm s-length settlement. 12

13 Bucklew v. Precythe, At issue is whether Missouri may execute by lethal injection a death-row inmate who suffers from a rare disease called cavernous hemangioma, which he claims means he would likely suffer excruciating pain if he underwent the state s lethal injection protocol. Missouri s death penalty statute provides for administration of lethal injection or lethal gas. Its current method of execution is by injection of a lethal dose of pentobarbital. Petitioner Russell Bucklew was sentenced to death in 1998 for his convictions by a Missouri jury for murder, kidnapping, and rape. As his execution date neared, Bucklew brought a 1983 action asserting that his progressive disease has caused unstable tumors to grow in his head, neck, and throat. He relied on an expert who examined him, who maintains that any form lethal injection is highly likely to cause Bucklew excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway. Bucklew sought to obtain a full and complete set of imaging studies to establish the extent of the risk of suffering posed by lethal injection and by the possible alternative method of execution, nitrogen gas-induced hypoxia. The district court granted summary judgment in favor of the state. In a 2-1 decision, the Eighth Circuit affirmed. It rejected his claim on the merits, concluding that lethal injection is not cruel and unusual punishment because Bucklew failed to prove that his alternative method would substantially reduce his risk of suffering. The court also held that he was not entitled to discovery about the medical technicians' qualifications, training, and experience. 883 F.3d The appeals court denied rehearing en banc, with four judges dissenting. 885 F.3d 527. Bucklew argues that the Eighth Circuit made three errors. First, he maintains that the Eighth Circuit misapplied the Court s decisions in Glossip v. Gross, 135 S. Ct (2015), and Baze v. Rees, 553 U.S. 35 (2008), by presuming that state personnel are competent to handle situations that may arise when evaluating the risks posed by the state s method of execution. As a result, he argues, the appeals court wrongly upheld the district court s decision to foreclose discovery about whether the medical professionals charged with administering the execution have the necessary training and knowledge to address complications. Second, Bucklew argues that the Eighth Circuit wrongly held that, to prove there is a feasible and available alternative that would substantially reduce his risk of suffering, he had to present a single witness who compares the risks posed by the two methods of execution and who concludes that the inmate s proposal substantially reduces the risks posed by the state s method. He maintains that the court should have compared his expert s testimony (that lethal injection would cause several minutes of substantial pain) with the state expert s testimony (that the nitrogen gas alternative would cause only seconds of substantial pain). Finally, Bucklew argues that the Glossip and Baze requirement that an inmate must prove there is a feasible and available alternative that would substantially reduce his risk of suffering should not extend to an as-applied challenge to a method of execution based on a prisoner s particular medical condition. He insists that the Court imposed the alternative-method requirement in response to facial challenges to execution methods because [s]uch a challenge runs the risk of being a disguised effort to render the death penalty itself unconstitutional. But that risk is not present at all when the inmate raises an as-applied challenge. The Court agreed to address those three issues, and directed the parties to additionally brief and argue the following question: Whether petitioner met his burden under [Glossip] to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State s method of execution. 13