THE IMPACT OF THE TERM OF THE SUPREME COURT OF THE UNITED STATES ON FEDERAL PRACTICE AND A PREVIEW OF THE TOP CASES FOR

Transcription

1 Pennsylvania Bar Association Midyear Meeting 2017 THE IMPACT OF THE TERM OF THE SUPREME COURT OF THE UNITED STATES ON FEDERAL PRACTICE AND A PREVIEW OF THE TOP CASES FOR PBI No (04)

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3 Pennsylvania Bar Association Midyear Meeting 2017 THE IMPACT OF THE TERM OF THE SUPREME COURT OF THE UNITED STATES ON FEDERAL PRACTICE AND A PREVIEW OF THE TOP CASES FOR

4 Neither the Pennsylvania Bar Association nor the Pennsylvania Bar Institute render any legal, accounting or other professional services. The Association s and the Institute s programs and publications are designed solely to help attorneys maintain their professional competence. In dealing with specific legal matters, the attorney using PBA and PBI publications or orally conveyed information should always also research original sources of authority. COPYRIGHT 2016, THE PENNSYLVANIA BAR ASSOCIATION AND THE PENNSYLVANIA BAR INSTITUTE. ALL RIGHTS RESERVED

5 The Pennsylvania Bar Institute PBI is a self-supporting nonprofit corporation chartered in 1965 under the guidance of the Pennsylvania Bar Association for the following purposes: The design, promotion and administration of cooperative programs in legal research, to the end of furtherance and betterment of the administration of justice in Pennsylvania and elsewhere. The development, promotion and administration of cooperative programs for continuing legal education and education of the interested public in law and related subjects. PBI is dedicated to excellence in continuing legal education and aims to provide a comprehensive curriculum of post-admission studies under competent instructors with course materials of immediate and continuing use in practice. PENNSYLVANIA BAR INSTITUTE 5080 RITTER ROAD MECHANICSBURG, PENNSYLVANIA / OR 717/ info@pbi.org WEBSITE:

6 Pennsylvania Bar Institute Board of Directors MAY OFFICERS President: Vice President: Treasurer: Secretary: Immediate Past President: Past President: Gail P. Granoff, Merion Station Dennis A. Whitaker, Harrisburg Hon. Bonnie B. Leadbetter, Harrisburg R. Burke McLemore, Jr., Harrisburg Seth A. Mendelsohn, Harrisburg Hon. Mark A. Kearney, Philadelphia DIRECTORS Norris E. Benns, Jr. Philadelphia Nancy Conrad Center Valley David G. Ries Pittsburgh Donald F. Smith, Jr. Reading Hon. Mark I. Bernstein Philadelphia Pamela F. Cross Harrisburg David E. Schwager Wilkes-Barre Rhodia D. Thomas Harrisburg Jay A. Blechman Pittsburgh Charles Eppolito, III Philadelphia Daniel J. Siegel Havertown Elizabeth R. Triscari Harrisburg Joel R. Burcat Harrisburg Jacqueline B. Martinez Pittsburgh Barry M. Simpson Harrisburg Kathleen D. Wilkinson Philadelphia Hon. Daniel J. Clifford Norristown Lisa C. McManus Warren Hon. Robert Simpson Nazareth Brett M. Woodburn Harrisburg PAST PRESIDENTS (HONORARY DIRECTORS) Susan L. Anderson Bryn Mawr Richard H. Galloway Greensburg Penina Kessler Lieber Pittsburgh Marvin J. Rudnitsky Selinsgrove Sara A. Austin York F. Hastings Griffin, Jr. Newtown Square Thomas S. Mansell New Castle William Z. Scott, Jr. Bethlehem John J. Bagnato Johnstown James L. Hollinger Norristown Jane R. Maughan Stroudsburg Ruth M. Siegel Hershey William G. Boyle Pittsburgh Hon. Lawrence W. Kaplan Pittsburgh Edwin L.R. McKean Erie Stanley H. Siegel Lewistown G. Daniel Carney Pittsburgh Stephanie F. Latimore Harrisburg William H. Murray Cape May, NJ Lee C. Swartz Lemoyne Chester C. Corse, Jr. Pottsville Hon. Francis J. Leahey, Jr. Ebensburg Herbert R. Nurick Harrisburg Paul C. Troy Norristown H. Robert Fiebach Philadelphia James R. Ledwith Berwyn Hon. William H. Platt Allentown Nancy Hopkins Wentz Norristown Joseph P. Flanagan, Jr. Philadelphia Marvin S. Lieber Pittsburgh Robert Raphael Pittsburgh Thomas G. Wilkinson, Jr. Philadelphia EXECUTIVE DIRECTOR Richard L. McCoy 5080 Ritter Road, Mechanicsburg, PA or ext ii

7 Biographies FACULTY The Honorable D. Brooks Smith, Chief Judge Chief Judge Smith has served on the United States Court of Appeals for the Third Circuit since He became Chief Judge of that court on October 1, Judge Smith also serves as an adjunct professor at Penn State Law, where he teaches a seminar on class actions. Judge Smith has served by appointment of the Chief Justice of the United States on the United States Judicial Conference Space and Facilities Committee, concluding a three-year term as chair on September 30, Prior to his elevation to the Third Circuit, Judge Smith was the Chief Judge of the United States District Court for the Western District of Pennsylvania. He joined the District Court in While on the federal bench, he has participated in various rule of law programs for the judiciary in a number of Eastern European Countries. Prior to his appointment to the federal bench, Judge Smith was on the Court of Common Pleas of Blair County, Pennsylvania; District Attorney of Blair County, Pennsylvania; and the managing partner in the law firm of Jubelirer, Carothers, Krier, Halpern and Smith. The Honorable Petrese B. Tucker, Chief Judge Chief Judge Tucker was nominated by President William J. Clinton to the United States District Court for the Eastern District of Pennsylvania in July, She was sworn in on July 14, Chief Judge Tucker became Chief Judge on May 1, Prior to becoming a federal judge, Chief Judge Tucker served 13 years as a state judge in the First Judicial District of Pennsylvania serving in Family Court and the Criminal and Civil Sections of the Trial division. Chief Judge Tucker also served as Administrative Judge of Orphans Court. The Honorable Christopher C. Conner, Chief Judge The Honorable Christopher C. Conner is the Chief Judge of the U.S. District Court for the Middle District of Pennsylvania. Nominated by President George W. Bush, he was confirmed by the U.S. Senate on July 26, On September 1, 2013, he became Chief Judge of the District. Prior to taking his seat on the Federal Bench, Chief Judge Conner practiced with the Harrisburg law firm of Mette, Evans and Woodside, where he headed the firm s Corporate and Commercial Litigation Department from 1995 to Chief Judge Conner is a past director of the Pennsylvania Bar Institute and the Dauphin County Bar Association, past director and officer of the Pennsylvania Bar Association, and a life fellow of the Pennsylvania Bar Foundation. Chief Judge Conner is an adjunct faculty member for the Pennsylvania State University Dickinson School of Law and sits on the school s Board of Counselors. He is a member of the Judicial Council for the United States Court of Appeals for the Third Circuit and a member of the Judicial Codes of Conduct Committee of the United States Judicial Conference. Chief Judge Conner earned his B.A. from Cornell University and his J.D. from the Dickinson School of Law. He was recently honored by Cornell University as Distinguished Classmate of the Class of iii

8 The Honorable Joy Flowers Conti, Chief Judge Judge Conti is the Chief Judge of the United States District Court for the Western District of Pennsylvania. Prior to her appointment, she was a shareholder with the Pittsburgh office of Buchanan Ingersoll, Professional Corporation, now Buchanan Ingersoll Rooney PC and prior to joining Buchanan she was a partner with Kirkpatrick, Lockhart, Johnson & Hutchinson, now known as K&L Gates LLP. Judge Conti was also a Professor of Law at Duquesne University and taught courses on civil procedure, corporations, corporate finance, corporate reorganizations and bankruptcy. She authored several articles and chapters in treatises dealing with bankruptcy and corporate law and was a frequent lecturer at seminars on those matters. Judge Conti is a former President of the Allegheny County Bar Association (1993), is listed in Who s Who in America and Who s Who in American Law, and while practicing law was listed in The Best Lawyers in America. She is a member of the prestigious American Law Institute and the American College of Bankruptcy. She also was Governor-at-Large of the Pennsylvania Bar Association (PBA), was the Chair of the PBA s Business Law Section, and received the PBA s 1995 Anne X. Alpern Award, which annually recognizes one outstanding woman lawyer. She was the President of the Third Circuit Historical Society. Judge Conti is a summa cum laude graduate of the Duquesne University School of Law, where she served as Editor-in-Chief of the Duquesne Law Review. Judge Conti was a member of the Judicial Conference of the United States, and is the former Chair of the Judicial Conference Committee on the Administration of the Bankruptcy System. She served as the Chair of the Local Rules Committee for the United States District Court for Western District of Pennsylvania from 2003 to September 2010 and as the Chair of the Alternative Dispute Resolution Committee for the United States District Court for the Western District of Pennsylvania from September 2010 until September Judge Conti is Chair of the Western District of Pennsylvania s U.S. Probation Job Development & Educational Services Advisory Committee. She also received the American Inns of Court 2009 Professionalism Award for the Third Circuit. The Honorable D. Michael Fisher* Judge Fisher is a Circuit Judge on the United States Court of Appeals for the Third Circuit. He was nominated by President George W. Bush and confirmed unanimously by the U.S. Senate in December Prior to becoming a judge, served as Attorney General of Pennsylvania having been elected in 1996 and re-elected in Judge Fisher personally argued major cases in state and federal appellate courts and in March 1998, he successfully argued before the United States Supreme Court a precedent-setting case ensuring that paroled criminals meet the conditions of their release. Before his election as Attorney General, Judge Fisher was in the Pennsylvania General Assembly, serving six years in the State House and 16 years as a member of the State Senate. He began his legal career as an assistant DA in his hometown of Pittsburgh following his graduation from Georgetown University and Georgetown University Law Center. He continued to practice law during his career in the General Assembly and was a shareholder or partner in various firms, including Houston Harbaugh, where he practiced from 1984 to Judge Fisher served for six years on the Budget Committee of the U.S. Judicial Conference, now serves on the Committee on Federal-State Jurisdiction, and is a Board member of the Federal Judges Association. Judge Fisher currently chairs the PBA s Federal Practice Committee, the Third Circuit Attorney Disciplinary Committee and is an adjunct professor at the University of Pittsburgh in the School of Law, where he has also served the University as a Commonwealth Trustee and currently is an Emeritus Trustee, and has taught at Georgetown Law Center and The West Virginia College of Law. Nancy Conrad, Esq. Ms. Conrad is a partner in the Commercial Litigation Department and Chair of the Labor and Employment Practice Group with White and Williams LLP, resident in Center Valley, iv

9 Pennsylvania. She practices in the area of employment law and litigation with a focus on representing businesses, educational institutions and non-profit organizations in all aspects of workplace disputes. In addition to representing management in employee relations matters, Ms. Conrad's practice includes the defense of federal and state discrimination claims, wrongful discharge claims, whistleblower claims, employment contract matters and restrictive covenant cases. Ms. Conrad s practice includes representing colleges and universities in employment and education law matters with an emphasis on tenure related disputes. Ms. Conrad also conducts workplace investigations related to compliance, personnel and misconduct. Ms. Conrad received her B.A., magna cum laude, from Lycoming College and her M.Ed., summa cum laude, from The Pennsylvania State University and her J.D., cum laude, from Temple University School of Law. Ms. Conrad has been selected in a survey of her peers as a Pennsylvania Super Lawyer by Law & Politics magazine; she has received the Athena Award from the Chamber of Commerce, and the Take the Lead Award from the Girl Scouts of Eastern Pennsylvania. She has been named by Lehigh Valley Business as a Woman of Influence. Ms. Conrad is a member of the Pennsylvania and Lehigh County Bar Associations, and serves as a Co-Vice Chair of the PBA Federal Practice Committee and Chair of the PBA Labor and Employment Law Section. She formerly served as a Chair of the PBA Commission on Women in the Legal Profession. Ms. Conrad serves on the Board of Directors for the Pennsylvania Bar Institute and the Bar Association of Lehigh County. Ms. Conrad is a member of the National Association of College and University Attorneys. Kathryn Lease Simpson, Esq. Ms. Simpson is a shareholder at Mette, Evans & Woodside, where she practices commercial litigation, professional liability defense, civil rights and employment law, and health law. She routinely represents clients in complex commercial litigation and professional liability matters. Ms. Simpson is a former chair of the Pennsylvania Bar Association s Federal Practice Committee and a past chair of the Professional Liability Committee. She serves as a member of the PBA House of Delegates. Ms. Simpson is a former governor of Allegheny County s prestigious Academy of Trial Lawyers and is a Master and vice-president of the William W. Lipsitt Chapter of the American Inns of Court. She is a member of the Dauphin and Pennsylvania Bar Associations. Ms. Simpson received her B.S. from the Pennsylvania State University, her MBA from the University of Pittsburgh and her J.D. from the University of Pittsburgh School of Law. She is a frequent speaker and author of CLE course materials for the Pennsylvania Bar Institute and has served as a faculty member of the University of Pittsburgh School of Law Trial Advocacy Program. *Denotes session moderator. v

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11 Summary of Contents See also Table of Contents beginning on page ix. Chapter One Major Constitutional Cases... 1 Chapter Two Criminal Law Chapter Three Federalism and Separation of Powers, Federal Statutory Interpretation Chapter Four Federal Courts and Civil Procedure Chapter Five Criminal Procedure Case Links vii

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13 Table of Contents See also Summary of Contents beginning on page vii. Chapter One Major Constitutional Cases... 1 Fisher v. University of Texas at Austin... 3 Whole Woman s Health v. Hellerstedt... 7 Zubik v. Burwell Evenwel v. Abbott Heffernan v. City of Paterson Chapter Two Criminal Law McDonnell v. United States Ocasio v. United States Mathis v. United States Voisine v. United States Taylor v. United States Chapter Three Federalism and Separation of Powers, Federal Statutory Interpretation DIRECTV, Inc. v. Imburgia United States v. Texas Bank Markazi v. Peterson CRST Van Expedited, Inc. v. EEOC...59 Simmons v. Himmelreich Spokeo, Inc. v. Robins Chapter Four Federal Courts and Civil Procedure Campbell-Ewald Co. v. Gomez Tyson Foods, Inc. v. Bouaphakeo Americold Realty Trust v. Conagra Foods, Inc ix

14 Dietz v. Bouldin RJR Nabisco, Inc. v. European Community Chapter Five Criminal Procedure Williams v. Pennsylvania Montgomery v. Louisiana Welch v. United States Utah v. Strieff Birchfield v. North Dakota Foster v. Chatman Luis v. United States Case Links x

15 Chapter One Major Constitutional Cases Fisher v. University of Texas at Austin (June 23, 2016)... 3 Whole Woman s Health v. Hellerstedt (June 27, 2016)... 7 Zubik v. Burwell (May 16, 2016) Evenwel v. Abbott (April 4, 2016) Heffernan v. City of Paterson (April 26, 2016)

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17 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No Argued December 9, 2015 Decided June 23, 2016 The University of Texas at Austin (University) uses an undergraduate admissions system containing two components. First, as required by the State s Top Ten Percent Law, it offers admission to any students who graduate from a Texas high school in the top 10% of their class. It then fills the remainder of its incoming freshman class, some 25%, by combining an applicant s Academic Index the student s SAT score and high school academic performance with the applicant s Personal Achievement Index, a holistic review containing numerous factors, including race. The University adopted its current admissions process in 2004, after a year-long-study of its admissions process undertaken in the wake of Grutter v. Bollinger, 539 U. S. 306, and Gratz v. Bollinger, 539 U. S. 244 led it to conclude that its prior race-neutral system did not reach its goal of providing the educational benefits of diversity to its undergraduate students. Petitioner Abigail Fisher, who was not in the top 10% of her high school class, was denied admission to the University s 2008 freshman class. She filed suit, alleging that the University s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause. The District Court entered summary judgment in the University s favor, and the Fifth Circuit affirmed. This Court vacated the judgment, Fisher v. University of Tex. at Austin, 570 U. S. (Fisher I), and remanded the case to the Court of Appeals, so the University s program could be evaluated under the proper strict scrutiny standard. On remand, the Fifth Circuit again affirmed the entry of summary judgment for the University. Held: The race-conscious admissions program in use at the time of petitioner s application is lawful under the Equal Protection Clause. 3

18 2 FISHER v. UNIVERSITY OF TEX. AT AUSTIN Pp (a) Fisher I sets out three controlling principles relevant to assessing the constitutionality of a public university s affirmative action program. First, a university may not consider race unless the admissions process can withstand strict scrutiny, i.e., it must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to accomplish that purpose. 570 U. S., at. Second, the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper. Id., at. Third, when determining whether the use of race is narrowly tailored to achieve the university s permissible goals, the school bears the burden of demonstrating that available and workable race-neutral alternatives do not suffice. Id., at. Pp (b) The University s approach to admissions gives rise to an unusual consequence here. The component with the largest impact on petitioner s chances of admission was not the school s consideration of race under its holistic-review process but the Top Ten Percent Plan. Because petitioner did not challenge the percentage part of the plan, the record is devoid of evidence of its impact on diversity. Remand for further factfinding would serve little purpose, however, because at the time of petitioner s application, the current plan had been in effect only three years and, in any event, the University lacked authority to alter the percentage plan, which was mandated by the Texas Legislature. These circumstances refute any criticism that the University did not make good faith efforts to comply with the law. The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program s constitutionality, and efficacy, in light of the school s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests. Pp (c) Drawing all reasonable inferences in her favor, petitioner has not shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected. Pp (1) Petitioner claims that the University has not articulated its compelling interest with sufficient clarity because it has failed to state more precisely what level of minority enrollment would constitute a critical mass. However, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flow from student body diversity. Fisher I, 570 U. S., at. Since the University is prohibited from 4

19 Cite as: 579 U. S. (2016) 3 seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained. On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university s goals cannot be elusory or amorphous they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. The record here reveals that the University articulated concrete and precise goals e.g., ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizenry that mirror the compelling interest this Court has approved in prior cases. It also gave a reasoned, principled explanation for its decision, id., at, in a 39-page proposal written after a year-long study revealed that its race-neutral policies and programs did not meet its goals. Pp (2) Petitioner also claims that the University need not consider race because it had already achieved critical mass by 2003 under the Top Ten Percent Plan and race-neutral holistic review. The record, however, reveals that the University studied and deliberated for months, concluding that race-neutral programs had not achieved the University s diversity goals, a conclusion supported by significant statistical and anecdotal evidence. Pp (3) Petitioner argues further that it was unnecessary to consider race because such consideration had only a minor impact on the number of minority students the school admitted. But the record shows that the consideration of race has had a meaningful, if still limited, effect on freshman class diversity. That race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality. P. 15. (4) Finally, petitioner argues that there were numerous other race-neutral means to achieve the University s goals. However, as the record reveals, none of those alternatives was a workable means of attaining the University s educational goals, as of the time of her application. Pp F. 3d 633, affirmed. KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KAGAN, J., took no part in the consideration or decision of the case. 5

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21 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES WHOLE WOMAN S HEALTH ET AL. v. HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No Argued March 2, 2016 Decided June 27, 2016 A State has a legitimate interest in seeing to it that abortion... is performed under circumstances that insure maximum safety for the patient. Roe v. Wade, 410 U. S. 113, 150. But a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman s choice cannot be considered a permissible means of serving its legitimate ends, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality opinion), and [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right, id., at 878. In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2), which contains the two provisions challenged here. The admittingprivileges requirement provides that a physician performing or inducing an abortion... must, on the date [of service], have active admitting privileges at a hospital... located not further than 30 miles from the abortion facility. The surgical-center requirement requires an abortion facility to meet the minimum standards... for ambulatory surgical centers under Texas law. Before the law took effect, a group of Texas abortion providers filed the Abbott case, in which they lost a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, petitioners, another group of abortion providers (including some Abbott plaintiffs), filed this suit, claiming that both the admitting-privileges and the surgical-center provisions violated the Fourteenth Amendment, as interpreted in Casey. They sought injunctions preventing enforcement of the admitting-privileges provision as applied to physi- 7

22 2 WHOLE WOMAN S HEALTH v. HELLERSTEDT cians at one abortion facility in McAllen and one in El Paso and prohibiting enforcement of the surgical-center provision throughout Texas. Based on the parties stipulations, expert depositions, and expert and other trial testimony, the District Court made extensive findings, including, but not limited to: as the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2 s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of the provisions, holding that the surgical-center requirement imposed an undue burden on the right of women in Texas to seek previability abortions; that, together with that requirement, the admittingprivileges requirement imposed an undue burden in the Rio Grande Valley, El Paso, and West Texas; and that the provisions together created an impermissible obstacle as applied to all women seeking a previability abortion. The Fifth Circuit reversed in significant part. It concluded that res judicata barred the District Court from holding the admittingprivileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and (2) it is reasonably related to... a legitimate state interest, the court found that both requirements were rationally related to a compelling state interest in protecting women s health. Held: 1. Petitioners constitutional claims are not barred by res judicata. Pp (a) Res judicata neither bars petitioners challenges to the admitting-privileges requirement nor prevents the Court from awarding fa- 8

23 Cite as: 579 U. S. (2016) 3 cial relief. The fact that several petitioners had previously brought the unsuccessful facial challenge in Abbott does not mean that claim preclusion, the relevant aspect of res judicata, applies. Claim preclusion prohibits successive litigation of the very same claim, New Hampshire v. Maine, 532 U. S. 742, 748, but petitioners as-applied postenforcement challenge and the Abbott plaintiffs facial preenforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed. Res judicata also does not preclude facial relief here. In addition to requesting as-applied relief, petitioners asked for other appropriate relief, and their evidence and arguments convinced the District Court of the provision s unconstitutionality across the board. Federal Rule of Civil Procedure 54(c) provides that a final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings, and this Court has held that if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is proper, Citizens United v. Federal Election Comm n, 558 U. S. 310, 333. Pp (b) Claim preclusion also does not bar petitioners challenge to the surgical-center requirement. In concluding that petitioners should have raised this claim in Abbott, the Fifth Circuit did not take account of the fact that the surgical-center provision and the admitting-privileges provision are separate provisions with two different and independent regulatory requirements. Challenges to distinct regulatory requirements are ordinarily treated as distinct claims. Moreover, the surgical-center provision s implementing regulations had not even been promulgated at the time Abbott was filed, and the relevant factual circumstances changed between the two suits. Pp Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution. Pp (a) The Fifth Circuit s standard of review may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when deciding the undue burden question, but Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer, see 505 U. S., 9

24 4 WHOLE WOMAN S HEALTH v. HELLERSTEDT at The Fifth Circuit s test also mistakenly equates the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable to, e.g., economic legislation. And the court s requirement that legislatures resolve questions of medical uncertainty is inconsistent with this Court s case law, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures. See id., at Explicit legislative findings must be considered, but there were no such findings in H. B. 2. The District Court applied the correct legal standard here, considering the evidence in the record including expert evidence and then weighing the asserted benefits against the burdens. Pp (b) The record contains adequate legal and factual support for the District Court s conclusion that the admitting-privileges requirement imposes an undue burden on a woman s right to choose. The requirement s purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2 s passage, found no significant health-related problem for the new law to cure. The State s record evidence, in contrast, does not show how the new law advanced the State s legitimate interest in protecting women s health when compared to the prior law, which required providers to have a working arrangement with doctors who had admitting privileges. At the same time, the record evidence indicates that the requirement places a substantial obstacle in a woman s path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an undue burden, but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court s undue burden conclusion. Pp (c) The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an undue burden on their constitutional right to do so. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it 10

25 Cite as: 579 U. S. (2016) 5 provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities. This evidence, along with the absence of any contrary evidence, supports the District Court s conclusions, including its ultimate legal conclusion that requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court s conclusion that the requirement places a substantial obstacle in the path of women seeking an abortion. The court found that it strained credulity to think that the seven or eight abortion facilities would be able to meet the demand. The Fifth Circuit discounted expert witness Dr. Grossman s testimony that the surgical-center requirement would cause the number of abortions performed by each remaining clinic to increase by a factor of about 5. But an expert may testify in the form of an opinion as long as that opinion rests upon sufficient facts or data and reliable principles and methods. Fed. Rule Evid Here, Dr. Grossman s opinion rested upon his participation, together with other university researchers, in research tracking the number of facilities providing abortion services, using information from, among other things, the state health services department and other public sources. The District Court acted within its legal authority in finding his testimony admissible. Common sense also suggests that a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs. And Texas presented no evidence at trial suggesting that expansion was possible. Finally, the District Court s finding that a currently licensed abortion facility would have to incur considerable costs to meet the surgical-center requirements supports the conclusion that more surgical centers will not soon fill the gap left by closed facilities. Pp (d) Texas three additional arguments are unpersuasive. Pp F. 3d 563 and 598, reversed and remanded. BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. 11

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27 (Slip Opinion) Cite as: 578 U. S. (2016) 1 Per Curiam NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C , of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES Nos , , , 15 35, , , and DAVID A. ZUBIK, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PRIESTS FOR LIFE, ET AL., PETITIONERS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT EAST TEXAS BAPTIST UNIVERSITY, ET AL., PETITIONERS 13

28 2 ZUBIK v. BURWELL Per Curiam v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT SOUTHERN NAZARENE UNIVERSITY, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; AND ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT GENEVA COLLEGE, PETITIONER v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [May 16, 2016] 14

29 Cite as: 578 U. S. (2016) 3 PER CURIAM. Per Curiam Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. 2000bb et seq. Following oral argument, the Court requested supplemental briefing from the parties addressing whether contraceptive coverage could be provided to petitioners employees, through petitioners insurance companies, without any such notice from petitioners. Post, p.. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception, even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner posited in the Court s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage. Supplemental Brief for Respondents In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clari- 15

30 4 ZUBIK v. BURWELL Per Curiam fication and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners religious exercise while at the same time ensuring that women covered by petitioners health plans receive full and equal health coverage, including contraceptive coverage. Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them. The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court s involvement at this point to resolve them. This Court has taken similar action in other cases in the past. See, e.g., Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam) (vacating and remanding for the Second Circuit to address, in the first instance, whether to revisit its ruling on sovereign immunity in light of [a] new factual development, and if necessary proceed to address other questions in the case consistent with its sovereign immunity ruling ); Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam) (vacating and remanding for the D. C. Circuit to determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments ); Villarreal v. United States, 572 U. S. (2014) (vacating and remanding to the Fifth Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States ). The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners religious exercise has been substantially burdened, 16

31 Cite as: 578 U. S. (2016) 5 Per Curiam whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest. Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners health plans obtain, without cost, the full range of FDA approved contraceptives. Wheaton College v. Burwell, 573 U. S., (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet the requirements for exemption from the contraceptive coverage requirement on religious grounds. Id., at (slip op., at 2). Nothing in this opinion, or in the opinions or orders of the courts below, precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice. The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. 17

32 Cite as: 578 U. S. (2016) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES Nos , , , 15 35, , , and DAVID A. ZUBIK, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PRIESTS FOR LIFE, ET AL., PETITIONERS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT EAST TEXAS BAPTIST UNIVERSITY, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; 18

33 2 ZUBIK v. BURWELL SOTOMAYOR, J., concurring ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT SOUTHERN NAZARENE UNIVERSITY, ET AL., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.; AND ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT GENEVA COLLEGE, PETITIONER v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [May 16, 2016] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring. I join the Court s per curiam opinion because it expresses no view on the merits of the cases, whether petition- 19

34 Cite as: 578 U. S. (2016) 3 SOTOMAYOR, J., concurring ers religious exercise has been substantially burdened, or whether the current regulations are the least restrictive means of serving a compelling governmental interest. Ante, at 4 5. Lower courts, therefore, should not construe either today s per curiam or our order of March 29, 2016, as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. (2014) ( [T]his order should not be construed as an expression of the Court s views on the merits ). Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) ( [I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests ). On remand in these cases, the Courts of Appeals should not make the same mistake. I also join the Court s opinion because it allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage to petitioners employees, through petitioners insurance companies, without any... notice from petitioners. Ante, at 3. The opinion does not, by contrast, endorse the petitioners position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a separate policy, with a separate enrollment process. Supp. Brief for Petitioners 1; Supp. Reply Brief for Petitioners 5. Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation. See Supp. Reply Brief 20

35 4 ZUBIK v. BURWELL SOTOMAYOR, J., concurring for Respondents 3 4. Requiring standalone contraceptiveonly coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate. Id., at 6. Today s opinion does only what it says it does: afford[s] an opportunity for the parties and Courts of Appeals to reconsider the parties arguments in light of petitioners new articulation of their religious objection and the Government s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. Ante, at 4. As enlightened by the parties new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases. 21

36 22

37 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES EVENWEL ET AL. v. ABBOTT, GOVERNOR OF TEXAS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS No Argued December 8, 2015 Decided April 4, 2016 Under the one-person, one-vote principle, jurisdictions must design legislative districts with equal populations. See Wesberry v. Sanders, 376 U. S. 1, 7 8, Reynolds v. Sims, 377 U. S. 533, 568. In the context of state and local legislative districting, States may deviate somewhat from perfect population equality to accommodate traditional districting objectives. Where the maximum population deviation between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the one-person, onevote rule. Texas, like all other States, uses total-population numbers from the decennial census when drawing legislative districts. After the 2010 census, Texas adopted a State Senate map that has a maximum total-population deviation of 8.04%, safely within the presumptively permissible 10% range. However, measured by a voter-population baseline eligible voters or registered voters the map s maximum population deviation exceeds 40%. Appellants, who live in Texas Senate districts with particularly large eligible- and registered-voter populations, filed suit against the Texas Governor and Secretary of State. Basing apportionment on total population, appellants contended, dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause. Appellants sought an injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district. A three-judge District Court dismissed the complaint for failure to state a claim on which relief could be granted. Held: As constitutional history, precedent, and practice demonstrate, a 23

38 2 EVENWEL v. ABBOTT State or locality may draw its legislative districts based on total population. Pp (a) Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected proposals to allocate House seats to States on the basis of voter population. See U. S. Const., Amdt. 14, 2. The Framers recognized that use of a total-population baseline served the principle of representational equality. Appellants voter-population rule is inconsistent with the theory of the Constitution, Cong. Globe, 39th Cong., 1st Sess., , this Court recognized in Wesberry as underlying not just the method of allocating House seats to States but also the method of apportioning legislative seats within States. Pp (b) This Court s past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Appellants assert that language in this Court s precedent supports their view that States should equalize the voter-eligible population of districts. But for every sentence appellants quote, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation. See, e.g., Reynolds, 377 U. S., at Moreover, from Reynolds on, the Court has consistently looked to totalpopulation figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality. Pp (c) Settled practice confirms what constitutional history and prior decisions strongly suggest. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have long followed. As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. Pp (d) Because constitutional history, precedent, and practice reveal the infirmity of appellants claim, this Court need not resolve whether, as Texas now argues, States may draw districts to equalize votereligible population rather than total population. P. 19. Affirmed. 24

39 Cite as: 578 U. S. (2016) 3 GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined except as to Part III B. 25

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41 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES HEFFERNAN v. CITY OF PATERSON, NEW JERSEY, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No Argued January 19, 2016 Decided April 26, 2016 Petitioner Heffernan was a police officer working in the office of Paterson, New Jersey s chief of police. Both the chief of police and Heffernan s supervisor had been appointed by Paterson s incumbent mayor, who was running for re-election against Lawrence Spagnola, a good friend of Heffernan s. Heffernan was not involved in Spagnola s campaign in any capacity. As a favor to his bedridden mother, Heffernan agreed to pick up and deliver to her a Spagnola campaign yard sign. Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign. Word quickly spread throughout the force. The next day, Heffernan s supervisors demoted him from detective to patrol officer as punishment for his overt involvement in Spagnola s campaign. Heffernan filed suit, claiming that the police chief and the other respondents had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech. They had thereby depriv[ed] him of a right... secured by the Constitution. 42 U. S. C The District Court, however, found that Heffernan had not been deprived of any constitutionally protected right because he had not engaged in any First Amendment conduct. Affirming, the Third Circuit concluded that Heffernan s claim was actionable under 1983 only if his employer s action was prompted by Heffernan s actual, rather than his perceived, exercise of his free-speech rights. Held: 1. When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and 1983 even if, as here, the employer s actions are 27

42 2 HEFFERNAN v. CITY OF PATERSON based on a factual mistake about the employee s behavior. To answer the question whether an official s factual mistake makes a critical legal difference, the Court assumes that the activities that Heffernan s supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish. Section 1983 does not say whether the right protected primarily focuses on the employee s actual activity or on the supervisor s motive. Neither does precedent directly answer the question. In Connick v. Myers, 461 U. S. 138, Garcetti v. Ceballos, 547 U. S. 410, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, there were no factual mistakes: The only question was whether the undisputed reason for the adverse action was in fact protected by the First Amendment. However, in Waters v. Churchill, 511 U. S. 661, a government employer s adverse action was based on a mistaken belief that an employee had not engaged in protected speech. There, this Court determined that the employer s motive, and particularly the facts as the employer reasonably understood them, mattered in determining that the employer had not violated the First Amendment. The government s motive likewise matters here, where respondents demoted Heffernan on the mistaken belief that he had engaged in protected speech. A rule of law finding liability in these circumstances tracks the First Amendment s language, which focuses upon the Government s activity. Moreover, the constitutional harm discouraging employees from engaging in protected speech or association is the same whether or not the employer s action rests upon a factual mistake. Finally, a rule of law imposing liability despite the employer s factual mistake is not likely to impose significant extra costs upon the employer, for the employee bears the burden of proving an improper employer motive. Pp For the purposes of this opinion, the Court has assumed that Heffernan s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards. P F. 3d 147, reversed and remanded. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. 28

43 Chapter Two Criminal Law McDonnell v. United States (June 27, 2016) Ocasio v. United States (May 2, 2016) Mathis v. United States (June 23, 2016) Voisine v. United States (June 27, 2016) Taylor v. United States (June 20, 2016)

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45 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES McDONNELL v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No Argued April 27, 2016 Decided June 27, 2016 Petitioner, former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell, were indicted by the Federal Government on honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell s assistance in obtaining those studies. To convict the McDonnells, the Government was required to show that Governor McDonnell committed (or agreed to commit) an official act in exchange for the loans and gifts. An official act is defined as any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official s official capacity, or in such official s place of trust or profit. 18 U. S. C. 201(a)(3). According to the Government, Governor McDonnell committed at least five official acts, including arranging meetings for Williams with other Virginia officials to discuss Star Scientific s product, hosting events for Star Scientific at the Governor s Mansion, and contacting other government officials concerning the research studies. The case was tried before a jury. The District Court instructed the jury that official act encompasses acts that a public official customarily performs, including acts in furtherance of longer-term goals or in a series of steps to exercise influence or achieve an end. 31

46 2 MCDONNELL v. UNITED STATES Supp. App Governor McDonnell requested that the court further instruct the jury that merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, official acts, but the District Court declined to give that instruction. 792 F. 3d 478, 513 (internal quotation marks omitted). The jury convicted Governor McDonnell. Governor McDonnell moved to vacate his convictions on the ground that the definition of official act in the jury instructions was erroneous. He also moved for acquittal, arguing that there was insufficient evidence to convict him, and that the Hobbs Act and honest services statute were unconstitutionally vague. The District Court denied the motions, and the Fourth Circuit affirmed. Held: 1. An official act is a decision or action on a question, matter, cause, suit, proceeding or controversy. That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is pending or may by law be brought before a public official. To qualify as an official act, the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event without more does not fit that definition of official act. Pp (a) The Government argues that the term official act encompasses nearly any activity by a public official concerning any subject, including a broad policy issue such as Virginia economic development. Governor McDonnell, in contrast, contends that statutory context compels a more circumscribed reading. Taking into account text, precedent, and constitutional concerns, the Court rejects the Government s reading and adopts a more bounded interpretation of official act. Pp (b) Section 201(a)(3) sets forth two requirements for an official act. First, the Government must identify a question, matter, cause, suit, proceeding or controversy that may at any time be pending or may by law be brought before a public official. Second, the Government must prove that the public official made a decision or took an action on that question, matter, cause, suit, proceeding or controversy, or agreed to do so. Pp (1) The first inquiry is whether a typical meeting, call, or event is itself a question, matter, cause, suit, proceeding or controversy. The terms cause, suit, proceeding, and controversy connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination. Although it may be difficult to define the precise reach of those terms, a typical meeting, call, or event does not qualify. Question and matter could be defined more broadly, 32

47 Cite as: 579 U. S. (2016) 3 but under the familiar interpretive canon noscitur a sociis, a word is known by the company it keeps. Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307. Because a typical meeting, call, or event is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not count as a question or matter under 201(a)(3). That more limited reading also comports with the presumption that statutory language is not superfluous. Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 299, n. 1. Pp (2) Because a typical meeting, call, or event is not itself a question or matter, the next step is to determine whether arranging a meeting, contacting another official, or hosting an event may qualify as a decision or action on a different question or matter. That first requires the Court to establish what counts as a question or matter in this case. Section 201(a)(3) states that the question or matter must be pending or may by law be brought before any public official. Pending and may by law be brought suggest something that is relatively circumscribed the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete. May by law be brought conveys something within the specific duties of an official s position. Although the District Court determined that the relevant matter in this case could be considered at a much higher level of generality as Virginia business and economic development, Supp. App. 88, the pertinent matter must instead be more focused and concrete. The Fourth Circuit identified at least three such questions or matters: (1) whether researchers at Virginia s state universities would initiate a study of Anatabloc; (2) whether Virginia s Tobacco Commission would allocate grant money for studying anatabine; and (3) whether Virginia s health plan for state employees would cover Anatabloc. The Court agrees that those qualify as questions or matters under 201(a)(3). Pp (3) The question remains whether merely setting up a meeting, hosting an event, or calling another official qualifies as a decision or action on any of those three questions or matters. It is apparent from United States v. Sun-Diamond Growers of Cal., 526 U. S. 398, that the answer is no. Something more is required: 201(a)(3) specifies that the public official must make a decision or take an action on the question or matter, or agree to do so. For example, a decision or action to initiate a research study would qualify as an official act. A public official may also make a decision or take an action by using his official position to exert pressure on another official to perform an official act, or by using his official po- 33

48 4 MCDONNELL v. UNITED STATES sition to provide advice to another official, knowing or intending that such advice will form the basis for an official act by another official. A public official is not required to actually make a decision or take an action on a question, matter, cause, suit, proceeding or controversy ; it is enough that he agree to do so. Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. Pp (c) The Government s expansive interpretation of official act would raise significant constitutional concerns. Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. The Government s position could cast a pall of potential prosecution over these relationships. This concern is substantial, as recognized by White House counsel from every administration from that of President Reagan to President Obama, as well as two bipartisan groups of former state attorneys general. The Government s interpretation also raises due process and federalism concerns. Pp Given the Court s interpretation of official act, the District Court s jury instructions were erroneous, and the jury may have convicted Governor McDonnell for conduct that is not unlawful. Because the errors in the jury instructions are not harmless beyond a reasonable doubt, the Court vacates Governor McDonnell s convictions. Pp (a) The jury instructions lacked important qualifications, rendering them significantly overinclusive. First, they did not adequately explain to the jury how to identify the pertinent question, matter, cause, suit, proceeding or controversy. It is possible the jury thought that a typical meeting, call, or event was itself a question, matter, cause, suit, proceeding or controversy. If so, the jury could have convicted Governor McDonnell without finding that he committed or agreed to commit an official act, as properly defined. Second, the instructions did not inform the jury that the question, matter, cause, suit, proceeding or controversy must be more specific and focused than a broad policy objective. As a result, the jury could have thought that the relevant question, matter, cause, suit, proceeding or controversy was something as nebulous as Virginia economic development, and convicted Governor McDonnell on that basis. Third, the District Court did not instruct the jury that to convict Governor McDonnell, it had to find that he made a decision or took an action or agreed to do so on the identified question, matter, 34

49 Cite as: 579 U. S. (2016) 5 cause, suit, proceeding or controversy, as properly defined. At trial, several of Governor McDonnell s subordinates testified that he asked them to attend a meeting, not that he expected them to do anything other than that. If that testimony reflects what Governor McDonnell agreed to do at the time he accepted the loans and gifts from Williams, then he did not agree to make a decision or take an action on any of the three questions or matters described by the Fourth Circuit. Pp (b) Governor McDonnell raises two additional claims. First, he argues that the honest services statute and the Hobbs Act are unconstitutionally vague. The Court rejects that claim. For purposes of this case, the parties defined those statutes with reference to 201 of the federal bribery statute. Because the Court interprets the term official act in 201(a)(3) in a way that avoids the vagueness concerns raised by Governor McDonnell, it declines to invalidate those statutes under the facts here. Second, Governor McDonnell argues that there is insufficient evidence that he committed an official act, or agreed to do so. Because the parties have not had an opportunity to address that question in light of the Court s interpretation of official act, the Court leaves it for the Court of Appeals to resolve in the first instance. Pp F. 3d 478, vacated and remanded. ROBERTS, C. J., delivered the opinion for a unanimous Court. 35

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51 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES OCASIO v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No Argued October 6, 2015 Decided May 2, 2016 Petitioner Samuel Ocasio, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles from accident scenes to an auto repair shop in exchange for payments from the shopowners. Petitioner was charged with obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. 1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C At trial, the District Court rejected petitioner s argument that because the Hobbs Act prohibits the obtaining of property from another a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. Petitioner was convicted on all counts, and the Fourth Circuit affirmed. Petitioner now challenges his conspiracy conviction, contending that he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. Held: A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Pp (a) The general federal conspiracy statute, under which petitioner was convicted, makes it a crime to conspire... to commit any offense against the United States. 18 U. S. C Section 371 s use of the term conspire incorporates age-old principles of conspiracy law. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense. Salinas v. United States, 522 U. S. 52, 65. A conspirator need not agree to commit the substantive offense or 37

52 2 OCASIO v. UNITED STATES even be capable of committing it in order to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. See id., at 63 65; United States v. Holte, 236 U. S. 140; Gebardi v. United States, 287 U. S Pp (b) These basic principles of conspiracy law resolve this case. To establish the alleged Hobbs Act conspiracy, the Government only needed to prove an agreement that some conspirator commit each element of the substantive offense. Petitioner and the shopowners reached just such an agreement: They shared a common purpose that petitioner and other police officers would obtain property from another that is, from the shopowners under color of official right. Pp (c) Contrary to petitioner s claims, this decision does not dissolve the distinction between extortion and conspiracy to commit extortion. Nor does it transform every bribe of a public official into a conspiracy to commit extortion. And while petitioner exaggerates the impact of this decision, his argument would create serious practical problems. Under his approach, the validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with culpability. Pp F. 3d 399, affirmed. ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined. 38

53 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES MATHIS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No Argued April 26, 2016 Decided June 23, 2016 The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions for a violent felony, including burglary, arson, or extortion. 18 U. S. C. 924(e)(1), (e)(2)(b)(ii). To determine whether a prior conviction is for one of those listed crimes, courts apply the categorical approach they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime. See Taylor v. United States, 495 U. S. 575, Elements are the constituent parts of a crime s legal definition, which must be proved beyond a reasonable doubt to sustain a conviction; they are distinct from facts, which are mere real-world things extraneous to the crime s legal requirements and thus ignored by the categorical approach. When a statute defines only a single crime with a single set of elements, application of the categorical approach is straightforward. But when a statute defines multiple crimes by listing multiple, alternative elements, the elements-matching required by the categorical approach is more difficult. To decide whether a conviction under such a statute is for a listed ACCA offense, a sentencing court must discern which of the alternative elements was integral to the defendant s conviction. That determination is made possible by the modified categorical approach, which permits a court to look at a limited class of documents from the record of a prior conviction to determine what crime, with what elements, a defendant was convicted of before comparing that crime s elements to those of the generic offense. See, e.g., Shepard v. United States, 544 U. S. 13, 26. This case involves a 39

54 2 MATHIS v. UNITED STATES different type of alternatively worded statute one that defines only one crime, with one set of elements, but which lists alternative factual means by which a defendant can satisfy those elements. Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because of his five prior Iowa burglary convictions, the Government requested an ACCA sentence enhancement. Under the generic offense, burglary requires unlawful entry into a building or other structure. Taylor, 495 U. S., at 598. The Iowa statute, however, reaches any building, structure, [or] land, water, or air vehicle. Iowa Code Under Iowa law, that list of places does not set out alternative elements, but rather alternative means of fulfilling a single locational element. The District Court applied the modified categorical approach, found that Mathis had burgled structures, and imposed an enhanced sentence. The Eighth Circuit affirmed. Acknowledging that the Iowa statute swept more broadly than the generic statute, the court determined that, even if structures and vehicles were not separate elements but alternative means of fulfilling a single element, a sentencing court could still invoke the modified categorical approach. Because the record showed that Mathis had burgled structures, the court held, the District Court s treatment of Mathis s prior convictions as ACCA predicates was proper. Held: Because the elements of Iowa s burglary law are broader than those of generic burglary, Mathis s prior convictions cannot give rise to ACCA s sentence enhancement. Pp (a) This case is resolved by this Court s precedents, which have repeatedly held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The underlying brute facts or means by which the defendant commits his crime, Richardson v. United States, 526 U. S. 813, 817, make no difference; even if the defendant s conduct, in fact, fits within the definition of the generic offense, the mismatch of elements saves him from an ACCA sentence. ACCA requires a sentencing judge to look only to the elements of the [offense], not to the facts of [the] defendant s conduct. Taylor, 495 U. S., at 601. This Court s cases establish three basic reasons for adhering to an elements-only inquiry. First, ACCA s text, which asks only about a defendant s prior convictions, indicates that Congress meant for the sentencing judge to ask only whether the defendant had been convicted of crimes falling within certain categories, id., at 600, not what he had done. Second, construing ACCA to allow a sentencing judge to go any further would raise serious Sixth Amendment concerns because only a jury, not a judge, may find facts that increase 40

55 Cite as: 579 U. S. (2016) 3 the maximum penalty. See Apprendi v. New Jersey, 530 U. S. 466, 490. And third, an elements-focus avoids unfairness to defendants, who otherwise might be sentenced based on statements of nonelemental fact[s] that are prone to error because their proof is unnecessary to a conviction. Descamps v. United States, 570 U. S.,. Those reasons remain as strong as ever when a statute, like Iowa s burglary statute, lists alternative means of fulfilling one (or more) of a crime s elements. ACCA s term convictions still supports an elements-based inquiry. The Sixth Amendment problems associated with a court s exploration of means rather than elements do not abate in the face of a statute like Iowa s: Alternative factual scenarios remain just that, and thus off-limits to sentencing judges. Finally, a statute s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. Accordingly, whether means are listed in a statute or not, ACCA does not care about them; rather, its focus, as always, remains on a crime s elements. Pp (b) The first task for a court faced with an alternatively phrased statute is thus to determine whether the listed items are elements or means. That threshold inquiry is easy here, where a State Supreme Court ruling answers the question. A state statute on its face could also resolve the issue. And if state law fails to provide clear answers, the record of a prior conviction itself might prove useful to determining whether the listed items are elements of the offense. If such record materials do not speak plainly, a sentencing judge will be unable to satisfy Taylor s demand for certainty. Shepard, 544 U. S., at 21. But between the record and state law, that kind of indeterminacy should prove more the exception than the rule. Pp F. 3d 1068, reversed. KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. ALITO, J., filed a dissenting opinion. 41

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57 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES VOISINE ET AL. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No Argued February 29, 2016 Decided June 27, 2016 In an effort to close [a] dangerous loophole in the gun control laws, United States v. Castleman, 572 U. S.,, Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of a misdemeanor crime of domestic violence, 18 U. S. C. 922(g)(9). Section 921(a)(33)(A) defines that phrase to include a misdemeanor under federal, state, or tribal law, committed against a domestic relation that necessarily involves the use... of physical force. In Castleman, this Court held that a knowing or intentional assault qualifies as such a crime, but left open whether the same was true of a reckless assault. Petitioner Stephen Voisine pleaded guilty to assaulting his girlfriend in violation of 207 of the Maine Criminal Code, which makes it a misdemeanor to intentionally, knowingly or recklessly cause[ ] bodily injury to another. When law enforcement officials later investigated Voisine for killing a bald eagle, they learned that he owned a rifle. After a background check turned up Voisine s prior conviction under 207, the Government charged him with violating 922(g)(9). Petitioner William Armstrong pleaded guilty to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by 207 against a family or household member. While searching Armstrong s home as part of a narcotics investigation a few years later, law enforcement officers discovered six guns and a large quantity of ammunition. Armstrong was also charged under 922(g)(9). Both men argued that they were not subject to 922(g)(9) s prohibition because their prior convictions could have been based on reckless, rather than knowing or intentional, conduct and thus did not quality as misdemeanor crimes of domestic violence. The District Court rejected those claims, and each 43

58 2 VOISINE v. UNITED STATES petitioner pleaded guilty. The First Circuit affirmed, holding that an offense with a mens rea of recklessness may qualify as a misdemeanor crime of violence under 922(g)(9). Voisine and Armstrong filed a joint petition for certiorari, and their case was remanded for further consideration in light of Castleman. The First Circuit again upheld the convictions on the same ground. Held: A reckless domestic assault qualifies as a misdemeanor crime of domestic violence under 922(g)(9). Pp (a) That conclusion follows from the statutory text. Nothing in the phrase use... of physical force indicates that 922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. Dictionaries consistently define the word use to mean the act of employing something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at. But nothing about the definition of use demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Nor does Leocal v. Ashcroft, 543 U. S. 1, which held that the use of force excludes accidents. Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms. Pp (b) So too does the relevant history. Congress enacted 922(g)(9) in 1996 to bar those domestic abusers convicted of garden-variety assault or battery misdemeanors just like those convicted of felonies from owning guns. Then, as now, a significant majority of jurisdictions 34 States plus the District of Columbia defined such misdemeanor offenses to include the reckless infliction of bodily harm. In targeting those laws, Congress thus must have known it was sweeping in some persons who had engaged in reckless conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256. Indeed, that was part of the point: to apply the federal firearms restriction to those abusers, along with all others, covered by the States ordinary misdemeanor assault laws. Petitioners reading risks rendering 922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness. Consider Maine s law, which criminalizes intentionally, knowingly or recklessly injuring another. Assuming that statute defines a single crime, petitioners view that 921(a)(33)(A) requires at least a knowing mens rea would mean that no conviction obtained under that law could qualify as a misdemeanor crime of domestic violence. 44

59 Cite as: 579 U. S. (2016) 3 Descamps v. United States, 570 U. S.,. In Castleman, the Court declined to construe 921(a)(33)(A) so as to render 922(g)(9) ineffective in 10 States. All the more so here, where petitioners view would jeopardize 922(g)(9) s force in several times that many. Pp F. 3d 176, affirmed. KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined as to Parts I and II. 45

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61 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES TAYLOR v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No Argued February 23, 2016 Decided June 20, 2016 Petitioner Taylor was indicted under the Hobbs Act on two counts of affecting commerce or attempting to do so through robbery for his participation in two home invasions targeting marijuana dealers. In both cases, Taylor and other gang members broke into the homes, confronted the residents, demanded the location of drugs and money, found neither, and left relatively empty handed. Taylor s trial resulted in a hung jury. At his retrial, the Government urged the trial court to preclude Taylor from offering evidence that the drug dealers he targeted dealt only in locally-grown marijuana. The trial court excluded that evidence and Taylor was convicted on both counts. The Fourth Circuit affirmed, holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element. Held: 1. The prosecution in a Hobbs Act robbery case satisfies the Act s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. Pp (a) The language of the Hobbs Act is unmistakably broad and reaches any obstruction, delay, or other effect on commerce, 18 U. S. C. 1951(a), over which the United States has jurisdiction, 1951(b)(3). See United States v. Culbert, 435 U. S. 371, 373. Pp (b) Under its commerce power, this Court has held, Congress may regulate, among other things, activities that have a substantial aggregate effect on interstate commerce, see Wickard v. Filburn, 317 U. S. 111, 125. This includes purely local activities that are part of 47

62 2 TAYLOR v. UNITED STATES an economic class of activities that have a substantial effect on interstate commerce, Gonzales v. Raich, 545 U. S. 1, 17, so long as those activities are economic in nature. See United States v. Morrison, 529 U. S. 598, 613. One such class of activities is the production, possession, and distribution of controlled substances. 545 U. S., at 22. Grafting the holding in Raich onto the Hobbs Act s commerce element, it follows that a robber who affects even the intrastate sale of marijuana affects commerce over which the United States has jurisdiction. Pp (c) In arguing that Raich should be distinguished because the Controlled Substances Act lacks the Hobbs Act s additional commerce element, Taylor confuses the standard of proof with the meaning of the element that must be proved. The meaning of the Hobbs Act s commerce element is a question of law, which, Raich establishes, includes purely intrastate drug production and sale. Applying, without expanding, Raich s interpretation of the scope of Congress s Commerce Clause power, if the Government proves beyond a reasonable doubt that a robber targeted a marijuana dealer s drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected. Pp Here, the Government met its burden by introducing evidence that Taylor s gang intentionally targeted drug dealers to obtain drugs and drug proceeds. That evidence included information that the gang members targeted the victims because of their drug dealing activities, as well as explicit statements made during the course of the robberies that revealed their belief that drugs and money were present. Such proof is sufficient to meet the Hobbs Act s commerce element. P F. 3d 217, affirmed. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. 48

63 Chapter Three Federalism and Separation of Powers, Federal Statutory Interpretation DIRECTV, Inc. v. Imburgia (December 14, 2015) United States v. Texas (June 23, 2016) Bank Markazi v. Peterson (April 20, 2016) CRST Van Expedited, Inc. v. EEOC (May 19, 2016) Simmons v. Himmelreich (June 6, 2016) Spokeo, Inc. v. Robins (May 16, 2016)

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65 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES DIRECTV, INC. v. IMBURGIA ET AL. CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE No Argued October 6, 2015 Decided December 14, 2015 Petitioner DIRECTV, Inc., and its customers entered into a service agreement that included a binding arbitration provision with a classarbitration waiver. It specified that the entire arbitration provision was unenforceable if the law of your state made class-arbitration waivers unenforceable. The agreement also declared that the arbitration clause was governed by the Federal Arbitration Act. At the time that respondents, California residents, entered into that agreement with DIRECTV, California law made class-arbitration waivers unenforceable, see Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P. 3d This Court subsequently held in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, however, that California s Discover Bank rule was pre-empted by the Federal Arbitration Act, 9 U. S. C. 2. When respondents sued petitioner, the trial court denied DIRECTV s request to order the matter to arbitration, and the California Court of Appeal affirmed. The court thought that California law would render class-arbitration waivers unenforceable, so it held the entire arbitration provision was unenforceable under the agreement. The fact that the Federal Arbitration Act pre-empted that California law did not change the result, the court said, because the parties were free to refer in the contract to California law as it would have been absent federal pre-emption. The court reasoned that the phrase law of your state was both a specific provision that should govern more general provisions and an ambiguous provision that should be construed against the drafter. Therefore, the court held, the parties had in fact included California law as it would have been without federal pre-emption. Held: Because the California Court of Appeal s interpretation is pre- 51

66 2 DIRECTV, INC. v. IMBURGIA empted by the Federal Arbitration Act, that court must enforce the arbitration agreement. Pp (a) No one denies that lower courts must follow Concepcion, but that elementary point of law does not resolve the case because the parties are free to choose the law governing an arbitration provision, including California law as it would have been if not pre-empted. The state court interpreted the contract to mean that the parties did so, and the interpretation of a contract is ordinarily a matter of state law to which this Court defers, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474. The issue here is not whether the court s decision is a correct statement of California law but whether it is consistent with the Federal Arbitration Act. Pp (b) The California court s interpretation does not place arbitration contracts on equal footing with all other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443, because California courts would not interpret contracts other than arbitration contracts the same way. Several considerations lead to this conclusion. First, the phrase law of your state is not ambiguous and takes its ordinary meaning: valid state law. Second, California case law that under general contract principles, references to California law incorporate the California Legislature s power to change the law retroactively, Doe v. Harris, 57 Cal. 4th 64, 69 70, 302 P. 3d 598, clarifies any doubt about how to interpret it. Third, because the court nowhere suggests that California courts would reach the same interpretation in any other context, its conclusion appears to reflect the subject matter, rather than a general principle that would include state statutes invalidated by other federal law. Fourth, the language the court uses to frame the issue focuses only on arbitration. Fifth, the view that state law retains independent force after being authoritatively invalidated is one courts are unlikely to apply in other contexts. Sixth, none of the principles of contract interpretation relied on by the California court suggests that other California courts would reach the same interpretation elsewhere. The court applied the canon that contracts are construed against the drafter, but the lack of any similar case interpreting similar language to include invalid laws indicates that the antidrafter canon would not lead California courts to reach a similar conclusion in cases not involving arbitration. Pp Cal. App. 4th 338, 170 Cal. Rptr. 3d 190, reversed and remanded. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. 52

67 (Slip Opinion) Cite as: 579 U. S. (2016) 1 Per Curiam NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C , of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No UNITED STATES, ET AL., PETITIONERS v. TEXAS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PER CURIAM. [June 23, 2016] The judgment is affirmed by an equally divided Court. 53

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69 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES BANK MARKAZI, AKA CENTRAL BANK OF IRAN v. PETERSON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No Argued January 13, 2016 Decided April 20, 2016 American nationals may seek money damages from state sponsors of terrorism in the courts of the United States. See 28 U. S. C. 1605A. Prevailing plaintiffs, however, often face practical and legal difficulties enforcing their judgments. To place beyond dispute the availability of certain assets for satisfaction of judgments rendered in terrorism cases against Iran, Congress enacted the Iran Threat Reduction and Syria Human Rights Act of As relevant here, the Act makes a designated set of assets available to satisfy the judgments underlying a consolidated enforcement proceeding which the statute identifies by the District Court s docket number. 22 U. S. C Section 8772(a)(2) requires a court, before allowing execution against these assets, to determine, inter alia, whether Iran holds equitable title to, or the beneficial interest in, the assets. Respondents more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members rank within 16 discrete groups, each of which brought suit against Iran. To enforce judgments they obtained by default, the 16 groups moved for turnover of about $1.75 billion in bond assets held in a New York bank account assets that, respondents alleged, were owned by Bank Markazi, the Central Bank of Iran. The turnover proceeding began in In 2012, the judgment holders updated their motions to include execution claims under Bank Markazi maintained that 8772 could not withstand inspection under the separation-of-powers doctrine, contending that Congress had usurped the judicial role by directing a particular result in the pending enforcement proceeding. The District Court disagreed, concluding that 8772 permissibly changed the law applicable in a pending litigation. 55

70 2 BANK MARKAZI v. PETERSON The Second Circuit affirmed. Held: Section 8772 does not violate the separation of powers. Pp (a) Article III of the Constitution establishes an independent Judiciary with the province and duty... to say what the law is in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. Necessarily, that endowment of authority blocks Congress from requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218. Although Article III bars Congress from telling a court how to apply pre-existing law to particular circumstances, Robertson v. Seattle Audubon Soc., 503 U. S. 429, , Congress may amend a law and make the amended prescription retroactively applicable in pending cases, Landgraf v. USI Film Products, 511 U. S. 244, ; United States v. Schooner Peggy, 1 Cranch 103, 110. In United States v. Klein, 13 Wall. 128, 146, this Court enigmatically observed that Congress may not prescribe rules of decision to the Judicial Department... in [pending] cases. More recent decisions have clarified that Klein does not inhibit Congress from amend[ing] applicable law. Robertson, 503 U. S., at 441; Plaut, 514 U. S., at 218. Section 8772 does just that: It requires a court to apply a new legal standard in a pending postjudgment enforcement proceeding. No different result obtains because, as Bank Markazi argues, the outcome of applying 8772 to the facts in the proceeding below was a foregone conclusio[n]. Brief for Petitioner 47. A statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. See Pope v. United States, 323 U. S. 1, 11. Pp (b) Nor is 8772 invalid because, as Bank Markazi further objects, it prescribes a rule for a single, pending case identified by caption and docket number. The amended law upheld in Robertson also applied to cases identified in the statute by caption and docket number. 503 U. S., at 440. Moreover, 8772 is not an instruction governing one case only: It facilitates execution of judgments in 16 suits. While consolidated for administrative purposes at the execution stage, the judgment-execution claims were not independent of the original actions for damages and each retained its separate character. In any event, the Bank s argument rests on the flawed assumption that legislation must be generally applicable. See Plaut, 514 U. S., at 239, n. 9. This Court and lower courts have upheld as a valid exercise of Congress legislative power laws governing one or a very small number of specific subjects. Pp (c) Adding weight to this decision, 8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the con- 56

71 Cite as: 578 U. S. (2016) 3 trolling role of the political branches is both necessary and proper. Measures taken by the political branches to control the disposition of foreign-state property, including blocking specific foreign-state assets or making them available for attachment, have never been rejected as invasions upon the Article III judicial power. Cf. Dames & Moore v. Regan, 453 U. S. 654, 674. Notably, before enactment of the Foreign Sovereign Immunities Act, the Executive regularly made casespecific determinations whether sovereign immunity should be recognized, and courts accepted those determinations as binding. See, e.g., Republic of Austria v. Altmann, 541 U. S. 677, This practice, too, was never perceived as an encroachment on the federal courts jurisdiction. Dames & Moore, 453 U. S., at Pp F. 3d 185, affirmed. GINSBURG, J., delivered the opinion of the Court, in which KENNEDY, BREYER, ALITO, and KAGAN, JJ., joined, and in all but Part II C of which THOMAS, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. 57

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73 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES CRST VAN EXPEDITED, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No Argued March 28, 2016 Decided May 19, 2016 Petitioner CRST, a trucking company using a system under which two employees share driving duties on a single truck, requires its drivers to graduate from the company s training program before becoming a certified driver. In 2005, new driver Monika Starke filed a charge with the Equal Employment Opportunity Commission (Commission), alleging that she was sexually harassed by two male trainers during the road-trip portion of her training. Following the procedures set out in Title VII of the Civil Rights Act of 1964, see 42 U. S. C. 2000e 5(b), the Commission informed CRST about the charge and investigated the allegation, ultimately informing CRST that it had found reasonable cause to believe that CRST subjected Starke and a class of employees and prospective employees to sexual harassment and offering to conciliate. In 2007, having determined that conciliation had failed, the Commission, in its own name, filed suit against CRST under 706 of Title VII. During discovery, the Commission identified over 250 allegedly aggrieved women. The District Court, however, dismissed all of the claims, including those on behalf of 67 women, which, the court found, were barred on the ground that the Commission had not adequately investigated or attempted to conciliate its claims on their behalf before filing suit. The District Court then dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for attorney s fees. CRST filed a motion for attorney s fees. The District Court awarded the company over $4 million in fees. The Eighth Circuit reversed the dismissal of only two claims on behalf of Starke and one other employee but that led it to vacate, without prejudice, the attorney s fees award. On remand, the Commission settled the claim on behalf of Starke and withdrew 59

74 2 CRST VAN EXPEDITED, INC. v. EEOC the other. CRST again sought attorney s fees, and the District Court again awarded it more than $4 million, finding that CRST had prevailed on the claims for over 150 of the allegedly aggrieved women, including the 67 claims dismissed because of the Commission s failure to satisfy its presuit requirements. The Eighth Circuit reversed and remanded once more. It held that a Title VII defendant can be a prevailing party only by obtaining a ruling on the merits, and that the District Court s dismissal of the claims was not a ruling on the merits. Held: A favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party. Pp (a) Common sense undermines the notion that a defendant cannot prevail unless the relevant disposition is on the merits. A plaintiff seeks a material alteration in the legal relationship between the parties. But a defendant seeks to prevent an alteration in the plaintiff s favor, and that objective is fulfilled whenever the plaintiff s challenge is rebuffed, irrespective of the precise reason for the court s decision, i.e., even if the court s final judgment rejects the plaintiff s claim for a nonmerits reason. There is no indication that Congress intended that defendants should be eligible to recover attorney s fees only when courts dispose of claims on the merits. Title VII s fee-shifting statute allows prevailing defendants to recover whenever the plaintiff s claim was frivolous, unreasonable, or groundless. Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422. Congress thus must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant s favor, whether on the merits or not. Christiansburg itself involved a defendant s request for attorney s fees in a case where the District Court had rejected the plaintiff s claim for a nonmerits reason. Various Courts of Appeals likewise have applied the Christiansburg standard when claims were dismissed for nonmerits reasons. Pp (b) The Court declines to decide the argument, raised by the Commission for the first time during the merits stage of this case, whether a defendant must obtain a preclusive judgment in order to prevail. The Commission s failure to articulate its preclusion theory earlier has resulted in inadequate briefing on the issue, and the parties dispute whether the District Court s judgment was in fact preclusive. The Commission also submits that the Court should affirm on the alternative ground that, even if CRST is a prevailing party, the Commission s position that it had satisfied its presuit obligations was not frivolous, unreasonable, or groundless. These matters are left for the Eighth Circuit to consider in the first instance. It is not this Court s usual practice to adjudicate either legal or predicate factual questions 60

75 Cite as: 578 U. S. (2016) 3 in the first instance, see Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110, and that is the proper course here, given the extensive record in this case and the Commission s change of position between the certiorari and merits stages. Pp F. 3d 1169, vacated and remanded. KENNEDY, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion. 61

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77 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES SIMMONS ET AL. v. HIMMELREICH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No Argued March 22, 2016 Decided June 6, 2016 This case began with two suits filed by respondent Walter Himmelreich, a federal prisoner. He first filed suit against the United States, alleging that a severe beating he received from a fellow inmate was the result of negligence by prison officials. The Government treated the suit as a claim under the Federal Tort Claims Act (FTCA), which allows plaintiffs to seek damages from the United States for certain torts committed by federal employees, 28 U. S. C. 1346(b), [s]ubject to the provisions of chapter 171 of Title 28. But an Exceptions section of the FTCA dictates that the provisions of [Chapter 171] and section 1346(b) of this title... shall not apply to certain categories of claims. The Government moved to dismiss the action on the ground that the claim fell into the exception for [a]ny claim based upon... the exercise or performance... [of] a discretionary function, namely, deciding where to house inmates, 2680(a). While the motion was pending, Himmelreich filed a second suit: a constitutional tort suit against individual Bureau of Prison employees, again alleging that his beating was the result of prison officials negligence. Ordinarily, the FTCA would have no bearing on that claim. But after the dismissal of Himmelreich s first suit, the individual employee defendants argued that Himmelreich s second suit was foreclosed by the FTCA s judgment bar provision, according to which a judgment in an FTCA suit forecloses any future suit against individual employees. Agreeing, the District Court granted summary judgment in favor of the individual prison employees. The Sixth Circuit reversed, however, holding that the judgment bar provision did not apply to Himmelreich s suit. Held: The judgment bar provision does not apply to the claims dismissed for falling within the Exceptions section of the FTCA. 63

78 2 SIMMONS v. HIMMELREICH Pp (a) The FTCA explicitly excepts from its coverage certain categories of claims, including the one into which Himmelreich s first suit fell. If, as the Government maintains, Chapter 171 s judgment bar provision applies to claims in that Exceptions category, it applied to Himmelreich s first suit and would preclude any future actions, including his second suit. On Himmelreich s reading, however, the provision does not apply and he may proceed with his second suit. Pp (b) Himmelreich is correct. The FTCA s Exceptions section reads: [T]he provisions of this chapter Chapter 171 shall not apply to... [a]ny claim based upon... the exercise or performance... [of] a discretionary function or duty. 2680(a). The judgment bar is a provision of Chapter 171. The Exceptions section s plain text thus dictates that the judgment bar does not apply to cases that, like Himmelreich s first suit, are based on the performance of a discretionary function. Because the judgment bar provision does not apply to Himmelreich s first suit, his second suit against individual prison employees should be permitted to go forward. Nothing about the Exceptions section or the judgment bar provision gives this Court any reason to disregard the plain text of the statute. P. 5. (c) United States v. Smith, 499 U. S. 160, does not require a different result. There, the Court found that the exclusive remedies provision of Chapter 171 which prevents a plaintiff from suing an employee where the FTCA would allow him to sue the United States instead, see 2679(b)(1) applied to a claim for injuries sustained at a hospital in Italy, even though that claim fell within the category of [a]ny claim arising in a foreign country, one of the Exceptions to which the provisions of [Chapter 171]... shall not apply, 2680(k). Smith s outcome, the Government argues, forecloses a literal reading of the Exceptions provision, but Smith does not control here. First, Smith does not even mention the Exceptions section s shall not apply language. Second, the exclusive remedies provision at issue there was enacted as part of the Federal Employee Liability Reform and Tort Compensation Act of 1988, which also contained a mechanism to convert tort suits against Government employees into FTCA suits subject to the limitations and exceptions applicable to those actions. 499 U. S., at 166 (quoting 2679(d)(4); emphasis in Smith). By taking note of those limitations and exceptions, the Smith Court reasoned, the Liability Reform Act was intended to apply to the Exceptions categories of claims. Nothing in the text of the judgment bar provision compels the same result here. Pp (d) The Government s remaining counterargument is a parade of horribles that it believes will come to pass if every provision of Chap- 64

79 Cite as: 578 U. S. (2016) 3 ter 171 shall not apply to the Exceptions categories of claims, but it raises few concerns about the judgment bar provision itself. If the Government is right about Chapter 171 s other provisions, the Court may hold so in the appropriate case, see Smith, 499 U. S., at 175, but the reading adopted here yields utterly sensible results. Had the District Court in this case issued a judgment dismissing Himmelreich s first suit because, e.g., the prison employees were not negligent, it would make sense that the judgment bar provision would prevent a second suit against the employees. But where an FTCA claim is dismissed because it falls within one of the Exceptions, the dismissal signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be liable instead. Pp F. 3d 576, affirmed and remanded. SOTOMAYOR, J., delivered the opinion for a unanimous Court. 65

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81 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES SPOKEO, INC. v. ROBINS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No Argued November 2, 2015 Decided May 16, 2016 The Fair Credit Reporting Act of 1970 (FCRA) requires consumer reporting agencies to follow reasonable procedures to assure maximum possible accuracy of consumer reports, 15 U. S. C. 1681e(b), and imposes liability on [a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any individual, 1681n(a). Petitioner Spokeo, Inc., an alleged consumer reporting agency, operates a people search engine, which searches a wide spectrum of databases to gather and provide personal information about individuals to a variety of users, including employers wanting to evaluate prospective employees. After respondent Thomas Robins discovered that his Spokeo-generated profile contained inaccurate information, he filed a federal class-action complaint against Spokeo, alleging that the company willfully failed to comply with the FCRA s requirements. The District Court dismissed Robins complaint, holding that he had not properly pleaded injury in fact as required by Article III. The Ninth Circuit reversed. Based on Robins allegation that Spokeo violated his statutory rights and the fact that Robins personal interests in the handling of his credit information are individualized, the court held that Robins had adequately alleged an injury in fact. Held: Because the Ninth Circuit failed to consider both aspects of the injury-in-fact requirement, its Article III standing analysis was incomplete. Pp (a) A plaintiff invoking federal jurisdiction bears the burden of establishing the irreducible constitutional minimum of standing by demonstrating (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a 67

82 2 SPOKEO, INC. v. ROBINS favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U. S. 555, Pp (b) As relevant here, the injury-in-fact requirement requires a plaintiff to show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Lujan, supra, at 560. Pp (1) The Ninth Circuit s injury-in-fact analysis elided the independent concreteness requirement. Both observations it made concerned only particularization, i.e., the requirement that an injury affect the plaintiff in a personal and individual way, Lujan, supra, at 560, n. 1, but an injury in fact must be both concrete and particularized, see, e.g., Susan B. Anthony List v. Driehaus, 573 U. S.,. Concreteness is quite different from particularization and requires an injury to be de facto, that is, to actually exist. Pp (2) The Ninth Circuit also failed to address whether the alleged procedural violations entail a degree of risk sufficient to meet the concreteness requirement. A concrete injury need not be a tangible injury. See, e.g., Pleasant Grove City v. Summum, 555 U. S To determine whether an intangible harm constitutes injury in fact, both history and the judgment of Congress are instructive. Congress is well positioned to identify intangible harms that meet minimum Article III requirements, but a plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a right and purports to authorize a suit to vindicate it. Article III standing requires a concrete injury even in the context of a statutory violation. This does not mean, however, that the risk of real harm cannot satisfy that requirement. See, e.g., Clapper v. Amnesty Int l USA, 568 U. S.. The violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact; in such a case, a plaintiff need not allege any additional harm beyond the one identified by Congress, see Federal Election Comm n v. Akins, 524 U. S. 11, This Court takes no position on the correctness of the Ninth Circuit s ultimate conclusion, but these general principles demonstrate two things: that Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk and that Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. Pp F. 3d 409, vacated and remanded. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, BREYER, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. 68

83 Chapter Four Federal Courts and Civil Procedure Campbell-Ewald Co. v. Gomez (January 20, 2016) Tyson Foods, Inc. v. Bouaphakeo (March 22, 2016) Americold Realty Trust v. Conagra Foods, Inc. (March 7, 2016) Dietz v. Bouldin (June 9, 2016) RJR Nabisco, Inc. v. The European Community (June 20, 2016)

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85 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES CAMPBELL-EWALD CO. v. GOMEZ CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No Argued October 14, 2015 Decided January 20, 2016 The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had opted in to receipt of marketing solicitations on topics that included Navy service. Campbell s subcontractor Mindmatics LLC generated a list of cellular phone numbers for consenting 18- to 24-year-old users and then transmitted the Navy s message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages and, at age 40, was not in the Navy s targeted age group. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA), 47 U. S. C. 227(b)(1)(A)(iii), which prohibits using any automatic dialing system to send a text message to a cellular telephone, absent the recipient s prior express consent. He sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell s involvement in unsolicited messaging. Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez s individual claim by providing him with complete relief. Next, Campbell urged that Gomez s failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well. The District Court de- 71

86 2 CAMPBELL-EWALD CO. v. GOMEZ nied the motion. After limited discovery, the District Court granted Campbell s motion for summary judgment. Relying on Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, the court held that Campbell, as a contractor acting on the Navy s behalf, acquired the Navy s sovereign immunity from suit under the TCPA. The Ninth Circuit reversed. It agreed that Gomez s case remained live but concluded that Campbell was not entitled to derivative sovereign immunity under Yearsley or on any other basis. Held: 1. An unaccepted settlement offer or offer of judgment does not moot a plaintiff s case, so the District Court retained jurisdiction to adjudicate Gomez s complaint. Article III s cases and controversies limitation requires that an actual controversy... be extant at all stages of review, not merely at the time the complaint is filed, Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (internal quotation marks omitted), but a case does not become moot as long as the parties have a concrete interest, however small, in the litigation s outcome, Chafin v. Chafin, 568 U. S., (internal quotation marks omitted). Gomez s complaint was not effaced by Campbell s unaccepted offer to satisfy his individual claim. Under basic principles of contract law, Campbell s settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. With no settlement offer operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. Neither Rule 68 nor the 19thcentury railroad tax cases California v. San Pablo & Tulare R. Co., 149 U. S. 308, Little v. Bowers, 134 U. S. 547, and San Mateo County v. Southern Pacific R. Co., 116 U. S. 138, support the argument that an unaccepted settlement offer can moot a complaint. Pp Campbell s status as a federal contractor does not entitle it to immunity from suit for its violation of the TCPA. Unlike the United States and its agencies, federal contractors do not enjoy absolute immunity. A federal contractor who simply performs as directed by the Government may be shielded from liability for injuries caused by its conduct. See Yearsley, 309 U. S., at But no derivative immunity exists when the contractor has exceeded [its] authority or its authority was not validly conferred. Id., at 21. The summary judgment record includes evidence that the Navy authorized Campbell to send text messages only to individuals who had opted in to receive solicitations, as required by the TCPA. When a contractor violates both federal law and the Government s explicit instructions, as alleged here, no immunity shields the contractor from suit. Pp

87 Cite as: 577 U. S. (2016) F. 3d 871, affirmed and remanded. GINSBURG, J., delivered the opinion of the Court, in which KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and ALITO, JJ., joined. ALITO, J., filed a dissenting opinion. 73

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89 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES TYSON FOODS, INC. v. BOUAPHAKEO ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No Argued November 10, 2015 Decided March 22, 2016 Respondents, employees of petitioner Tyson Foods, work in the kill, cut, and retrim departments of a pork processing plant in Iowa. Respondents work requires them to wear protective gear, but the exact composition of the gear depends on the tasks a worker performs on a given day. Petitioner compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Respondents filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that petitioner s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). Respondents also raised a claim under an Iowa wage law. They sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a collective action. See 29 U. S. C Petitioner objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees claims were not sufficiently similar to be resolved on a classwide basis. The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear. To recover for a violation of the FLSA s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because petitioner failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mer- 75

90 2 TYSON FOODS, INC. v. BOUAPHAKEO icle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery. Petitioner argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle s sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The award has not yet been disbursed to individual employees. The Eighth Circuit affirmed the judgment and the award. Held: The District Court did not err in certifying and maintaining the class. Pp (a) Before certifying a class under Rule 23(b)(3), a district court must find that questions of law or fact common to class members predominate over any questions affecting only individual members. The parties agree that the most significant question common to the class is whether donning and doffing protective gear is compensable under the FLSA. Petitioner claims, however, that individual inquiries into the time each worker spent donning and doffing predominate over this common question. Respondents argue that individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time observed in Mericle s sample. Whether and when statistical evidence such as Mericle s sample can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action, Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Respondents can show that Mericle s sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, shows why Mericle s sample was permissible in the circumstances of this case. There, where an employer violated its statutory duty to keep proper records, the Court concluded the employees could meet their burden by proving that they in fact performed work for which [they were] improperly compensated and... produc[ing] sufficient evidence to 76

91 Cite as: 577 U. S. (2016) 3 show the amount and extent of that work as a matter of just and reasonable inference. Id., at 687. Here, similarly, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an individual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle s study in a series of individual suits. This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle s has been permitted by the Court so long as the study is otherwise admissible. Mt. Clemens, supra, at 687. Pp (b) Petitioner contends that respondents are required to demonstrate that uninjured class members will not recover damages here. That question is not yet fairly presented by this case, because the damages award has not yet been disbursed and the record does not indicate how it will be disbursed. Petitioner may raise a challenge to the allocation method when the case returns to the District Court for disbursal of the award. Pp F. 3d 791, affirmed and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined as to Part II. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. 77

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93 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES AMERICOLD REALTY TRUST v. CONAGRA FOODS, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No Argued January 19, 2016 Decided March 7, 2016 Respondents, corporate citizens of Delaware, Nebraska, and Illinois, sued petitioner Americold Realty Trust, a real estate investment trust organized under Maryland law, in a Kansas court. Americold removed the suit to Federal District Court based on diversity-ofcitizenship jurisdiction. See 28 U. S. C. 1332(a)(1), 1441(b). The District Court accepted jurisdiction and ruled in Americold s favor. On appeal, the Tenth Circuit held that the District Court lacked jurisdiction to hear the suit. Since Americold was not a corporation, the court reasoned, its citizenship for diversity jurisdiction purposes should be based on the citizenship of its members, which included its shareholders. Because no record of those shareholders citizenship existed, diversity was not proved. Held: For purposes of diversity jurisdiction, Americold s citizenship is based on the citizenship of its members, which include its shareholders. Pp (a) Historically, the relevant citizens for jurisdictional purposes in a suit involving a mere legal entity were that entity s members, or the real persons who come into court in the entity s name. Bank of United States v. Deveaux, 5 Cranch 61, 86, 91. But for the limited exception of jurisdictional citizenship for corporations, see Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558, this Court continues to adhere to [the] oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of all [its] members, Carden v. Arkoma Associates, 494 U. S. 185, 195. Applying the rule here, Americold possesses the citizenship of all its members, who, under Maryland law, include its shareholders. See, e.g., Md. Corp. & Assns. Code Ann (c). Pp

94 2 AMERICOLD REALTY TRUST v. CONAGRA FOODS, INC. (b) Americold argues that anything called a trust possesses the citizenship of its trustees alone. Traditionally, a trust was considered a fiduciary relationship between multiple people and could not be haled into court; hence, legal proceedings involving a trust were brought by or against the trustees in their own name, Deveaux, 5 Cranch, at 91. Americold confuses the traditional trust with the variety of unincorporated entities that many States have given the trust label. Under Maryland law, the real estate investment trust at issue is treated as a separate legal entity that can sue or be sued (2), 8 301(2). Despite what such an entity calls itself, so long as it is unincorporated, this Court will apply the oft-repeated rule that it possesses the citizenship of all its members. Pp F. 3d 1175, affirmed. SOTOMAYOR, J., delivered the opinion for a unanimous Court. 80

95 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES DIETZ v. BOULDIN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No Argued April 26, 2016 Decided June 9, 2016 Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz favor but awarded him $0 in damages. After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building including one who may have left for a short time and returned. Over the objection of Dietz counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed. Held: A federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury s verdict. The District Court did not abuse that power here. Pp (a) The inherent powers that district courts possess to manage 81

96 2 DIETZ v. BOULDIN their own affairs so as to achieve the orderly and expeditious disposition of cases, Link v. Wabash R. Co., 370 U. S. 626, , have certain limits. The exercise of an inherent power must be a reasonable response to the problems and needs confronting the court s fair administration of justice and cannot be contrary to any express grant of, or limitation on, the district court s power contained in a rule or statute. Degen v. United States, 517 U. S. 820, These two principles support the conclusion here. First, rescinding a discharge order and recalling the jury can be a reasonable response to correcting an error in the jury s verdict in certain circumstances, and is similar in operation to a district court s express power under Federal Rule of Civil Procedure 51(b)(3) to give the jury a curative instruction and order them to continue deliberating to correct an error in the verdict before discharge. Other inherent powers possessed by district courts, e.g., a district court s inherent power to modify or rescind its orders before final judgment in a civil case, see Marconi Wireless Telegraph Co. of America v. United States, 320 U. S. 1, 47 48, or to manage its docket and courtroom with a view toward the efficient and expedient resolution of cases, see Landis v. North American Co., 299 U. S. 248, 254, also support this conclusion. Second, rescinding a discharge order to recall a jury does not violate any other rule or statute. No implicit limitation in Rule 51(b)(3) prohibits a court from rescinding its discharge order and reassembling the jury. Nor are such limits imposed by other rules dealing with postverdict remedies. See, e.g., Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A). Pp (b) This inherent power must be carefully circumscribed, especially in light of the guarantee of an impartial jury. Because discharge releases a juror from the obligations to avoid discussing the case outside the jury room and to avoid external prejudicial information, the potential that a jury reassembled after being discharged might be tainted looms large. Thus, any suggestion of prejudice should counsel a district court not to exercise its inherent power. The court should determine whether any juror has been directly tainted and should also take into account additional factors that can indirectly create prejudice, which at a minimum, include the length of delay between discharge and recall, whether the jurors have spoken to anyone about the case after discharge, and any emotional reactions to the verdict witnessed by the jurors. Courts should also ask to what extent justdismissed jurors accessed their smartphones or the internet. Applying those factors here, the District Court did not abuse its discretion. The jury was out for only a few minutes, and, with the exception of one juror, remained inside the courthouse. The jurors did 82

97 Cite as: 579 U. S. (2016) 3 not speak to any person about the case after discharge. And, there is no indication in the record that the verdict generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. Pp (c) Dietz call for a categorical bar on reempaneling a jury after discharge is rejected. Even assuming that at common law a discharged jury could never be brought back, the advent of modern federal trial practice limits the common law s relevance as to the specific question raised here. There is no benefit to imposing a rule that says that as soon as a jury is free to go a judge categorically cannot rescind that order to correct an easily identified and fixable mistake. And Dietz functional discharge test, which turns on whether the jurors remain within the district court s presence and control, i.e., within the courtroom, raises similar problems. Pp F. 3d 1093; affirmed. SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY, J., joined. 83

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99 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES RJR NABISCO, INC., ET AL. v. EUROPEAN COMMUNITY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No Argued March 21, 2016 Decided June 20, 2016 The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain activities of organized crime groups in relation to an enterprise. RICO makes it a crime to invest income derived from a pattern of racketeering activity in an enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce, 18 U. S. C. 1962(a); to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, 1962(b); to conduct an enterprise s affairs through a pattern of racketeering activity, 1962(c); and to conspire to violate any of the other three prohibitions, 1962(d). RICO also provides a civil cause of action for [a]ny person injured in his business or property by reason of a violation of those prohibitions. 1964(c). Respondents (the European Community and 26 of its member states) filed suit under RICO, alleging that petitioners (RJR Nabisco and related entities (collectively RJR)) participated in a global money-laundering scheme in association with various organized crime groups. Under the alleged scheme, drug traffickers smuggled narcotics into Europe and sold them for euros that through transactions involving black-market money brokers, cigarette importers, and wholesalers were used to pay for large shipments of RJR cigarettes into Europe. The complaint alleged that RJR violated 1962(a) (d) by engaging in a pattern of racketeering activity that included numerous predicate acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. The District Court granted RJR s motion to dismiss on the ground that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The Second 85

100 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Circuit reinstated the claims, however, concluding that RICO applies extraterritorially to the same extent as the predicate acts of racketeering that underlie the alleged RICO violation, and that certain predicates alleged in this case expressly apply extraterritorially. In denying rehearing, the court held further that RICO s civil action does not require a domestic injury, but permits recovery for a foreign injury caused by the violation of a predicate statute that applies extraterritorially. Held: 1. The law of extraterritoriality provides guidance in determining RICO s reach to events outside the United States. The Court applies a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255. Morrison and Kiobel v. Royal Dutch Petroleum Co., 569 U. S., reflect a two-step framework for analyzing extraterritoriality issues. First, the Court asks whether the presumption against extraterritoriality has been rebutted i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially. This question is asked regardless of whether the particular statute regulates conduct, affords relief, or merely confers jurisdiction. If, and only if, the statute is not found extraterritorial at step one, the Court moves to step two, where it examines the statute s focus to determine whether the case involves a domestic application of the statute. If the conduct relevant to the statute s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the relevant conduct occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of whether other conduct occurred in U. S. territory. In the event the statute is found to have clear extraterritorial effect at step one, then the statute s scope turns on the limits Congress has or has not imposed on the statute s foreign application, and not on the statute s focus. Pp The presumption against extraterritoriality has been rebutted with respect to certain applications of RICO s substantive prohibitions in Pp (a) RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct, such as the prohibition against engaging in monetary transactions in criminally derived property, 1957(d)(2), the prohibitions against the assassination of Government officials, 351(i), 1751(k), and the prohibition against hostage taking, 1203(b). Congress has thus given a clear, affirmative indication that 1962 applies to foreign racketeer- 86

101 Cite as: 579 U. S. (2016) 3 ing activity but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. This fact is determinative as to 1962(b) and (c), which both prohibit the employment of a pattern of racketeering. But 1962(a), which targets certain uses of income derived from a pattern of racketeering, arguably extends only to domestic uses of that income. Because the parties have not focused on this issue, and because its resolution does not affect this case, it is assumed that respondents have pleaded a domestic investment of racketeering income in violation of 1962(a). It is also assumed that the extraterritoriality of a violation of RICO s conspiracy provision, 1962(d), tracks that of the RICO provision underlying the alleged conspiracy. Pp (b) RJR contends that RICO s focus is its enterprise element, which gives no clear indication of extraterritorial effect. But focus is considered only when it is necessary to proceed to the inquiry s second step. See Morrison, supra, at 267, n. 9. Here, however, there is a clear indication at step one that at least 1962(b) and (c) apply to all transnational patterns of racketeering, subject to the stated limitation. A domestic enterprise requirement would lead to difficult linedrawing problems and counterintuitive results, such as excluding from RICO s reach foreign enterprises that operate within the United States. Such troubling consequences reinforce the conclusion that Congress intended the 1962(b) and (c) prohibitions to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise. Of course, foreign enterprises will qualify only if they engage in, or significantly affect, commerce directly involving the United States. Pp (c) Applying these principles here, respondents allegations that RJR violated 1962(b) and (c) do not involve an impermissibly extraterritorial application of RICO. The Court assumes that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies and its activities depend on sales of RJR s cigarettes conducted through the U. S. mails and wires, among other things. Pp Irrespective of any extraterritoriality of 1962 s substantive provisions, 1964(c) s private right of action does not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Pp (a) The Second Circuit reasoned that the presumption against extraterritoriality did not apply to 1964(c) independently of its application to 1962 s substantive provisions because 1964(c) does not 87

102 4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY regulate conduct. But this view was rejected in Kiobel, 569 U. S., at, and the logic of that decision requires that the presumption be applied separately to RICO s cause of action even though it has been overcome with respect to RICO s substantive prohibitions. As in other contexts, allowing recovery for foreign injuries in a civil RICO action creates a danger of international friction that militates against recognizing foreign-injury claims without clear direction from Congress. Respondents, in arguing that such concerns are inapplicable here because the plaintiffs are not foreign citizens seeking to bypass their home countries less generous remedies but are foreign countries themselves, forget that this Court s interpretation of 1964(c) s injury requirement will necessarily govern suits by nongovernmental plaintiffs. The Court will not forgo the presumption against extraterritoriality to permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the affected sovereign s consent. Nor will the Court adopt a double standard that would treat suits by foreign sovereigns more favorably than other suits. Pp (b) Section 1964(c) does not provide a clear indication that Congress intended to provide a private right of action for injuries suffered outside of the United States. It provides a cause of action to [a]ny person injured in his business or property by a violation of 1962, but neither the word any nor the reference to injury to business or property indicates extraterritorial application. Respondents arguments to the contrary are unpersuasive. In particular, while they are correct that RICO s private right of action was modeled after 4 of the Clayton Act, which allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India, 434 U. S. 308, , this Court has declined to transplant features of the Clayton Act s cause of action into the RICO context where doing so would be inappropriate. Cf. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 485, 495. There is good reason not to do so here. Most importantly, RICO lacks the very language that the Court found critical to its decision in Pfizer, namely, the Clayton Act s definition of a person who may sue, which explicitly includes corporations and associations existing under or authorized by... the laws of any foreign country, 434 U. S., at 313. Congress s more recent decision to exclude from the antitrust laws reach most conduct that causes only foreign injury, F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 158, also counsels against importing into RICO those Clayton Act principles that are at odds with the Court s current extraterritoriality doctrine. Pp (c) Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. Respondents waived their domestic injury 88

103 Cite as: 579 U. S. (2016) 5 damages claims, so the District Court dismissed them with prejudice. Their remaining RICO damages claims therefore rest entirely on injury suffered abroad and must be dismissed. P F. 3d 129, reversed and remanded. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY and THOMAS, JJ., joined, and in which GINSBURG, BREY- ER, and KAGAN, JJ., joined as to Parts I, II, and III. GINSBURG, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which BREYER and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. SOTOMAYOR, J., took no part in the consideration or decision of the case. 89

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105 Chapter Five Criminal Procedure Williams v. Pennsylvania (June 9, 2016) Montgomery v. Louisiana (January 25, 2016) Welch v. United States (April 18, 2016) Utah v. Strieff (June 20, 2016) Birchfield v. North Dakota (June 23, 2016) Foster v. Chatman (May 23, 2016) Luis v. United States (March 30, 2016)

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107 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES WILLIAMS v. PENNSYLVANIA CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA No Argued February 29, 2016 Decided June 9, 2016 Petitioner Williams was convicted of the 1984 murder of Amos Norwood and sentenced to death. During the trial, the then-district attorney of Philadelphia, Ronald Castille, approved the trial prosecutor s request to seek the death penalty against Williams. Over the next 26 years, Williams s conviction and sentence were upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania s Post Conviction Relief Act (PCRA), arguing that the prosecutor had obtained false testimony from his codefendant and suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83. Finding that the trial prosecutor had committed Brady violations, the PCRA court stayed Williams s execution and ordered a new sentencing hearing. The Commonwealth asked the Pennsylvania Supreme Court, whose chief justice was former District Attorney Castille, to vacate the stay. Williams filed a response, along with a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the motion to the full court for decision. Without explanation, the chief justice denied Williams s motion for recusal and the request for its referral. He then joined the State Supreme Court opinion vacating the PCRA court s grant of penaltyphase relief and reinstating Williams s death sentence. Two weeks later, Chief Justice Castille retired from the bench. Held: 1. Chief Justice Castille s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. Pp (a) The Court s due process precedents do not set forth a specific test governing recusal when a judge had prior involvement in a case as a prosecutor; but the principles on which these precedents rest dic- 93

108 2 WILLIAMS v. PENNSYLVANIA tate the rule that must control in the circumstances here: Under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant s case. The Court applies an objective standard that requires recusal when the likelihood of bias on the part of the judge is too high to be constitutionally tolerable. Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872. A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133, No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. As a result, a serious question arises as to whether a judge who has served as an advocate for the State in the very case the court is now asked to adjudicate would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. In these circumstances, neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decision may have set in motion. Pp (b) Because Chief Justice Castille s authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision, his failure to recuse from Williams s case presented an unconstitutional risk of bias. The decision to pursue the death penalty is a critical choice in the adversary process, and Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. Given the importance of this decision and the profound consequences it carries, a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion. The fact that many jurisdictions, including Pennsylvania, have statutes and professional codes of conduct that already require recusal under the circumstances of this case suggests that today s decision will not occasion a significant change in recusal practice. Pp An unconstitutional failure to recuse constitutes structural error that is not amenable to harmless-error review, regardless of whether the judge s vote was dispositive, Puckett v. United States, 556 U. S. 129, 141. Because an appellate panel s deliberations are generally confidential, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to ensure that jurists can reexamine old 94

109 Cite as: 579 U. S. (2016) 3 ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. It does not matter whether the disqualified judge s vote was necessary to the disposition of the case. The fact that the interested judge s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position an outcome that does not lessen the unfairness to the affected party. A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. Because Chief Justice Castille s participation in Williams s case was an error that affected the State Supreme Court s whole adjudicatory framework below, Williams must be granted an opportunity to present his claims to a court unburdened by any possible temptation... not to hold the balance nice, clear and true between the State and the accused, Tumey v. Ohio, 273 U. S. 510, 532. Pp Pa., 105 A. 3d 1234, vacated and remanded. KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. THOMAS, J., filed a dissenting opinion. 95

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111 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES MONTGOMERY v. LOUISIANA CERTIORARI TO THE SUPREME COURT OF LOUISIANA No Argued October 13, 2015 Decided January 25, 2016 Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. The jury returned a verdict of guilty without capital punishment, which carried an automatic sentence of life without parole. Nearly 50 years after Montgomery was taken into custody, this Court decided that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment s prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U. S.,. Montgomery sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review. Held: 1. This Court has jurisdiction to decide whether the Louisiana Supreme Court correctly refused to give retroactive effect to Miller. Pp (a) Teague v. Lane, 489 U. S. 288, a federal habeas case, set forth a framework for the retroactive application of a new constitutional rule to convictions that were final when the new rule was announced. While the Court held that new constitutional rules of criminal procedure are generally not retroactive, it recognized that courts must give retroactive effect to new watershed procedural rules and to substantive rules of constitutional law. Substantive constitutional rules include rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense, Penry v. Lynaugh, 492 U. S. 302, 330. Court-appointed amicus contends that because Teague was an interpretation of the federal habeas statute, 97

112 2 MONTGOMERY v. LOUISIANA not a constitutional command, its retroactivity holding has no application in state collateral review proceedings. However, neither Teague nor Danforth v. Minnesota, 552 U. S. 264 which concerned only Teague s general retroactivity bar for new constitutional rules of criminal procedure had occasion to address whether States are required as a constitutional matter to give retroactive effect to new substantive rules. Pp (b) When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. This conclusion is established by precedents addressing the nature of substantive rules, their differences from procedural rules, and their history of retroactive application. As Teague, supra, at 292, 312, and Penry, supra, at 330, indicate, substantive rules set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. In contrast, where procedural error has infected a trial, a conviction or sentence may still be accurate and the defendant s continued confinement may still be lawful, see Schriro v. Summerlin, 542 U. S. 348, ; for this reason, a trial conducted under a procedure found unconstitutional in a later case does not automatically invalidate a defendant s conviction or sentence. The same possibility of a valid result does not exist where a substantive rule has eliminated a State s power to proscribe the defendant s conduct or impose a given punishment. See United States v. United States Coin & Currency, 401 U. S. 715, 724. By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of recognizing that substantive rules must have retroactive effect regardless of when the defendant s conviction became final; for a conviction under an unconstitutional law is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment, Ex parte Siebold, 100 U. S. 371, The same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose, Penry, supra, at 330. It follows that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced. This Court s precedents may not directly control the question here, but they bear on the necessary analysis, for a State that may not constitutionally insist that a prisoner remain in jail on federal habeas review may not constitutionally insist on the same result in its own postconviction proceedings. Pp Miller s prohibition on mandatory life without parole for juvenile 98

113 Cite as: 577 U. S. (2016) 3 offenders announced a new substantive rule that, under the Constitution, is retroactive in cases on state collateral review. The foundation stone for Miller s analysis was the line of precedent holding certain punishments disproportionate when applied to juveniles, 567 U. S., at, n. 4. Relying on Roper v. Simmons, 543 U. S. 551, and Graham v. Florida, 560 U. S. 48, Miller recognized that children differ from adults in their diminished culpability and greater prospects for reform, 567 U. S., at, and that these distinctions diminish the penological justifications for imposing life without parole on juvenile offenders, id., at. Because Miller determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption, id., at, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status i.e., juvenile offenders whose crimes reflect the transient immaturity of youth, Penry, 492 U. S., at 330. Miller therefore announced a substantive rule of constitutional law, which, like other substantive rules, is retroactive because it necessarily carr[ies] a significant risk that a defendant here, the vast majority of juvenile offenders faces a punishment that the law cannot impose upon him. Schriro, supra, at 352. A State may remedy a Miller violation by extending parole eligibility to juvenile offenders. This would neither impose an onerous burden on the States nor disturb the finality of state convictions. And it would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller s central intuition that children who commit even heinous crimes are capable of change. Pp (La. 6/20/14), 141 So. 3d 264, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion. 99

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115 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES WELCH v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No Argued March 30, 2016 Decided April 18, 2016 Federal law makes the possession of a firearm by a felon a crime punishable by a prison term of up to 10 years, 18 U. S. C. 922(g), 924(a)(2), but the Armed Career Criminal Act of 1984 increases that sentence to a mandatory 15 years to life if the offender has three or more prior convictions for a serious drug offense or a violent felony, 924(e)(1). The definition of violent felony includes the socalled residual clause, covering any felony that otherwise involves conduct that presents a serious potential risk of physical injury to another. 924(e)(2)(B)(ii). In Johnson v. United States, 576 U. S., this Court held that clause unconstitutional under the void-forvagueness doctrine. Petitioner Welch was sentenced under the Armed Career Criminal Act before Johnson was decided. On direct review, the Eleventh Circuit affirmed his sentence, holding that Welch s prior Florida conviction for robbery qualified as a violent felony under the residual clause. After his conviction became final, Welch sought collateral relief under 28 U. S. C. 2255, which the District Court denied. The Eleventh Circuit then denied Welch a certificate of appealability. Three weeks later, this Court decided Johnson. Welch now seeks the retroactive application of Johnson to his case. Held: Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Pp (a) An applicant seeking a certificate of appealability in a 2255 proceeding must make a substantial showing of the denial of a constitutional right. 2253(c)(2). That standard is met when reasonable jurists could debate whether... the petition should have been resolved in a different manner. Slack v. McDaniel, 529 U. S. 473, 484. The question whether Welch met that standard implicates a broader 101

116 2 WELCH v. UNITED STATES legal issue: whether Johnson is a substantive decision with retroactive effect in cases on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. Pp (b) New constitutional rules of criminal procedure generally do not apply retroactively to cases on collateral review, but new substantive rules do apply retroactively. Teague v. Lane, 489 U. S. 288, 310; Schriro v. Summerlin, 542 U. S. 348, 351. Substantive rules alter the range of conduct or the class of persons that the law punishes, id., at 353. Procedural rules, by contrast, regulate only the manner of determining the defendant s culpability. Ibid. Under this framework, Johnson is substantive. Before Johnson, the residual clause could cause an offender to face a prison sentence of at least 15 years instead of at most 10. Since Johnson made the clause invalid, it can no longer mandate or authorize any sentence. By the same logic, Johnson is not procedural, since it had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Act, see Schriro, supra, at 353. Pp (c) The counterarguments made by Court-appointed amicus are unpersuasive. She contends that Johnson is a procedural decision because the void-for-vagueness doctrine is based on procedural due process. But the Teague framework turns on whether the function of the rule is substantive or procedural, not on the rule s underlying constitutional source. Amicus approach would lead to results that cannot be squared with prior precedent. Precedent also does not support amicus claim that a rule must limit Congress power to be substantive, see, e.g., Bousley v. United States, 523 U. S. 614, or her claim that statutory construction cases are an ad hoc exception to that principle and are substantive only because they implement the intent of Congress. The separation-of-powers argument raised by amicus is also misplaced, for regardless of whether a decision involves statutory interpretation or statutory invalidation, a court lacks the power to exact a penalty that has not been authorized by any valid criminal statute. Pp Vacated and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. 102

117 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES UTAH v. STRIEFF CERTIORARI TO THE SUPREME COURT OF UTAH No Argued February 22, 2016 Decided June 20, 2016 Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed. Held: The evidence Officer Fackrell seized incident to Strieff s arrest is admissible based on an application of the attenuation factors from Brown v. Illinois, 422 U. S In this case, there was no flagrant police misconduct. Therefore, Officer Fackrell s discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest. Pp (a) As the primary judicial remedy for deterring Fourth Amendment violations, the exclusionary rule encompasses both the primary evidence obtained as a direct result of an illegal search or seizure and, relevant here, evidence later discovered and found to be derivative of an illegality. Segura v. United States, 468 U. S. 796, 804. But to ensure that those deterrence benefits are not outweighed by 103

118 2 UTAH v. STRIEFF the rule s substantial social costs, there are several exceptions to the rule. One exception is the attenuation doctrine, which provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. Pp (b) As a threshold matter, the attenuation doctrine is not limited to the defendant s independent acts. The doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant. Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest. Pp (1) Three factors articulated in Brown v. Illinois, 422 U. S. 590, lead to this conclusion. The first, temporal proximity between the initially unlawful stop and the search, id., at 603, favors suppressing the evidence. Officer Fackrell discovered drug contraband on Strieff only minutes after the illegal stop. In contrast, the second factor, the presence of intervening circumstances, id., at , strongly favors the State. The existence of a valid warrant, predating the investigation and entirely unconnected with the stop, favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence. That warrant authorized Officer Fackrell to arrest Strieff, and once the arrest was authorized, his search of Strieff incident to that arrest was undisputedly lawful. The third factor, the purpose and flagrancy of the official misconduct, id., at 604, also strongly favors the State. Officer Fackrell was at most negligent, but his errors in judgment hardly rise to a purposeful or flagrant violation of Strieff s Fourth Amendment rights. After the unlawful stop, his conduct was lawful, and there is no indication that the stop was part of any systemic or recurrent police misconduct. Pp (2) Strieff s counterarguments are unpersuasive. First, neither Officer Fackrell s purpose nor the flagrancy of the violation rises to a level of misconduct warranting suppression. Officer Fackrell s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs. Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police. Such misconduct would expose police to civil liability and, in any event, is already accounted for by Brown s purpose and flagrancy factor. Pp

119 Cite as: 579 U. S. (2016) UT 2, 357 P. 3d 532, reversed. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Parts I, II, and III. KAGAN, J., filed a dissenting opinion, in which GINSBURG, J., joined. 105

120 106

121 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES BIRCHFIELD v. NORTH DAKOTA CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA No Argued April 20, 2016 Decided June 23, 2016* To fight the serious harms inflicted by drunk drivers, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) exceeding a specified level. BAC is typically determined through a direct analysis of a blood sample or by using a machine to measure the amount of alcohol in a person s breath. To help secure drivers cooperation with such testing, the States have also enacted implied consent laws that require drivers to submit to BAC tests. Originally, the penalty for refusing a test was suspension of the motorist s license. Over time, however, States have toughened their drunk-driving laws, imposing harsher penalties on recidivists and drivers with particularly high BAC levels. Because motorists who fear these increased punishments have strong incentives to reject testing, some States, including North Dakota and Minnesota, now make it a crime to refuse to undergo testing. In these cases, all three petitioners were arrested on drunk-driving charges. The state trooper who arrested petitioner Danny Birchfield advised him of his obligation under North Dakota law to undergo BAC testing and told him, as state law requires, that refusing to submit to a blood test could lead to criminal punishment. Birchfield refused to let his blood be drawn and was charged with a misdemeanor violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court re- * Together with No , Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and No , Beylund v. Levi, Director, North Dakota Department of Transportation, also on certiorari to the Supreme Court of North Dakota. 107

122 2 BIRCHFIELD v. NORTH DAKOTA jected his argument, and the State Supreme Court affirmed. After arresting petitioner William Robert Bernard, Jr., Minnesota police transported him to the station. There, officers read him Minnesota s implied consent advisory, which like North Dakota s informs motorists that it is a crime to refuse to submit to a BAC test. Bernard refused to take a breath test and was charged with test refusal in the first degree. The Minnesota District Court dismissed the charges, concluding that the warrantless breath test was not permitted under the Fourth Amendment. The State Court of Appeals reversed, and the State Supreme Court affirmed. The officer who arrested petitioner Steve Michael Beylund took him to a nearby hospital. The officer read him North Dakota s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. Beylund agreed to have his blood drawn. The test revealed a BAC level more than three times the legal limit. Beylund s license was suspended for two years after an administrative hearing, and on appeal, the State District Court rejected his argument that his consent to the blood test was coerced by the officer s warning. The State Supreme Court affirmed. Held: 1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Pp (a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives Assn., 489 U. S. 602, ; Schmerber v. California, 384 U. S. 757, These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S.,, n. 3. Pp (b) The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nation s founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere fact of the lawful arrest justifies a full search of the person. United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S., the Court considered how to apply the doctrine to searches of an arrestee s cell phone. Because founding era guidance was lacking, the Court determined whether to exempt [the] search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual s privacy and, on the other, the degree to which it is needed for the promotion of legit- 108

123 Cite as: 579 U. S. (2016) 3 imate governmental interests. Id., at. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest. Pp (c) The analysis begins by considering the impact of breath and blood tests on individual privacy interests. Pp (1) Breath tests do not implicat[e] significant privacy concerns. Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests do not require piercing the skin and entail a minimum of inconvenience. Id., at 625. Requiring an arrestee to insert the machine s mouthpiece into his or her mouth and to exhale deep lung air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person s cheek, Maryland v. King, 569 U. S.,, or scraping underneath a suspect s fingernails, Cupp v. Murphy, 412 U. S Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. Pp (2) The same cannot be said about blood tests. They require piercing the skin and extract a part of the subject s body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. Pp (d) The analysis next turns to the States asserted need to obtain BAC readings. Pp (1) The States and the Federal Government have a paramount interest... in preserving [public highway] safety, Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in creating deterrent[s] to drunken driving, a leading cause of traffic fatalities and injuries, id., at 18. Sanctions for refusing to take a BAC test were increased because consequences like license suspension were no longer adequate to persuade the most dangerous offenders to agree to a test that could lead to severe criminal sanctions. By making it a crime to refuse to submit to a BAC test, the laws at issue provide an incentive to cooperate and thus serve a very important function. Pp (2) As for other ways to combat drunk driving, this Court s decisions establish that an arresting officer is not obligated to obtain a warrant before conducting a search incident to arrest simply because there might be adequate time in the particular circumstances to obtain a warrant. The legality of a search incident to arrest must be 109

124 4 BIRCHFIELD v. NORTH DAKOTA judged on the basis of categorical rules. See e.g., Robinson, supra, at 235. McNeely, supra, at, distinguished. Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit. And other alternatives e.g., sobriety checkpoints and ignition interlock systems are poor substitutes. Pp (3) Bernard argues that warrantless BAC testing cannot be justified as a search incident to arrest because that doctrine aims to prevent the arrestee from destroying evidence, while the loss of blood alcohol evidence results from the body s metabolism of alcohol, a natural process not controlled by the arrestee. In both instances, however, the State is justifiably concerned that evidence may be lost. The State s general interest in evidence preservation or avoiding the loss of evidence, Riley, supra, at, readily encompasses the metabolization of alcohol in the blood. Bernard s view finds no support in Chimel v. California, 395 U. S. 752, 763, Schmerber, 384 U. S., at 769, or McNeely, supra, at. Pp (e) Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable e.g., where substances other than alcohol impair the driver s ability to operate a car safely, or where the subject is unconscious nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation. Pp Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pp These legal conclusions resolve the three present cases. Birchfield was criminally prosecuted for refusing a warrantless blood 110

125 Cite as: 579 U. S. (2016) 5 draw, and therefore the search that he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Because there appears to be no other basis for a warrantless test of Birchfield s blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Bernard was criminally prosecuted for refusing a warrantless breath test. Because that test was a permissible search incident to his arrest for drunk driving, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police told him that the law required his submission. The North Dakota Supreme Court, which based its conclusion that Beylund s consent was voluntary on the erroneous assumption that the State could compel blood tests, should reevaluate Beylund s consent in light of the partial inaccuracy of the officer s advisory. Pp No , 2015 ND 6, 858 N. W. 2d 302, reversed and remanded; No , 859 N. W. 2d 762, affirmed; No , 2015 ND 18, 859 N. W. 2d 403, vacated and remanded. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J, and KENNEDY, BREYER, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part. 111

126 112

127 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES FOSTER v. CHATMAN, WARDEN CERTIORARI TO THE SUPREME COURT OF GEORGIA No Argued November 2, 2015 Decided May 23, 2016 Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State s use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U. S. 79. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained from the State copies of the file used by the prosecution during his trial. Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror were highlighted in bright green, with a legend indicating that the highlighting represents Blacks ; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, If it comes down to having to pick one of the black jurors, [this one] might be okay ; (3) notes identifying black prospective jurors as B#1, B#2, and B#3 ; (4) notes with N (for no ) appearing next to the names of all black prospective jurors; (5) a list titled [D]efinite NO s containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated NO. No Black Church ; and (7) the questionnaires filled out by five prospective black jurors, on which each juror s response indicating his or her race had been circled. The state habeas court denied relief. It noted that Foster s Batson claim had been adjudicated on direct appeal. Because Foster s renewed Batson claim fail[ed] to demonstrate purposeful discrimination, the court concluded that he had failed to show any change in the facts sufficient to overcome the state law doctrine of res judicata. 113

128 2 FOSTER v. CHATMAN The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal. Held: 1. This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds for that unelaborated judgment, there is no indication that it rested on a state law ground that is both independent of the merits of Foster s Batson claim and an adequate basis for that decision, so as to preclude jurisdiction. Harris v. Reed, 489 U. S. 255, 260. The state habeas court held that the state law doctrine of res judicata barred Foster s claim only by examining the entire record and determining that Foster had not alleged a change in facts sufficient to overcome the bar. Based on this lengthy Batson analysis, the state habeas court concluded that Foster s renewed Batson claim was without merit. Because the state court s application of res judicata thus depend[ed] on a federal constitutional ruling, [that] prong of the court s holding is not independent of federal law, and [this Court s] jurisdiction is not precluded. Ake v. Oklahoma, 470 U. S. 68, 75; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152. Pp The decision that Foster failed to show purposeful discrimination was clearly erroneous. Pp (a) Batson provides a three-step process for adjudicating claims such as Foster s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, 552 U. S. 472, 477 (internal quotation marks and brackets omitted). Only Batson s third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp (b) Foster established purposeful discrimination in the State s strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution s justifications for both strikes, the record belies much of the prosecution s reasoning. Pp (i) The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence 114

129 Cite as: 578 U. S. (2016) 3 showing that Garrett s name appeared on the prosecution s list of [D]efinite NO s the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State s willingness to accept white jurors with the same characteristics. For example, the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve. Pp (ii) With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster s pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood s membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny. As to the age of Hood s son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster s age would be a factor at sentencing. And as to Hood s religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State s file contains a handwritten note stating, NO. NO Black Church, while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns were expressed with regard to similar white prospective jurors. Pp (c) Evidence that a prosecutor s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U. S. 231, 241. Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution s shifting explanations, misrepresentations of the record, 115

130 4 FOSTER v. CHATMAN and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent. Snyder, 552 U. S., at 485. P. 23. (d) Because Batson was decided only months before Foster s trial, the State asserts that the focus on black prospective jurors in the prosecution s file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster s trial, reeks of afterthought. Miller-El, 545 U. S., at 246. And the focus on race in the prosecution s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. Pp Reversed and remanded. ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion. 116

131 (Slip Opinion) OCTOBER TERM, NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES LUIS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No Argued November 10, 2015 Decided March 30, 2016 A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property obtained as a result of the crime, (2) property traceable to the crime, and (3), as relevant here, other property of equivalent value. 18 U. S. C. 1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. Held: The judgment is vacated, and the case is remanded. 564 Fed. Appx. 493, vacated and remanded. JUSTICE BREYER, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this conclusion. Pp (a) The Sixth Amendment right to counsel grants a defendant a fair opportunity to secure counsel of his own choice, Powell v. Alabama, 287 U. S. 45, 53, that he can afford to hire, Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has 117

132 2 LUIS v. UNITED STATES consistently referred to the right to counsel of choice as fundamental. Pp (b) While the Government does not deny Luis fundamental right to be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right by taking from Luis the ability to use funds she needs to pay for her chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will be available later to help pay for statutory penalties and restitution, for example. The Government further argues that two previous cases from this Court, Caplin & Drysdale, supra, at 619, and United States v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining order in this case. However, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference. Pp (1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may well be able to freeze before trial tainted assets e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the defendant s ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used to commit a crime (or otherwise traceable to a crime) passes to the Government at the instant the crime is planned or committed. See 21 U. S. C. 853(c). But here, the Government seeks to impose restrictions upon Luis untainted property without any showing of any equivalent governmental interest in that property. Pp (2) This distinction does not by itself answer the constitutional question because the law of property may allow a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. However, insofar as innocent funds are needed to obtain counsel of choice, the Sixth Amendment prohibits the court order sought here. Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government s interest in securing its punishment of choice, as well as the victim s interest in securing restitution. These latter interests are important, but compared to the right to counsel they seem to lie somewhat further from the heart of a fair, effective criminal justice system. Second, relevant, common-law legal tradition offers virtually no significant support for the Government s position and in fact argues to the con- 118

133 Cite as: 578 U. S. (2016) 3 trary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant s own innocent property. Third, as a practical matter, accepting the Government s position could erode the right to counsel considerably. It would, in fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep financial consequences. These defendants, often rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. The upshot is a substantial risk that accepting the Government s views would render less effective the basic right the Sixth Amendment seeks to protect. Pp (3) The constitutional line between a criminal defendant s tainted funds and innocent funds needed to pay for counsel should prove workable. Money may be fungible, but courts, which use tracing rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. Pp JUSTICE THOMAS concluded that the rule that a pretrial freeze of untainted assets violates a defendant s Sixth Amendment right to counsel of choice rests strictly on the Sixth Amendment s text and common-law backdrop. Pp (a) The Sixth Amendment abolished the common-law rule that generally prohibited representation in felony cases. The right to select counsel of one s choice is thus the root meaning of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140, Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant s assets before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned property to pay for an attorney, the right to counsel originally understood to protect only the right to hire counsel of choice would be meaningless. Without pretrial protection for at least some of a defendant s assets, the Government could nullify the right to counsel of choice, eviscerating the Sixth Amendment s original meaning and purpose. The modern, judicially created right to governmentappointed counsel does not obviate these concerns. Pp (b) History confirms this textual understanding. The common-law forfeiture tradition provides an administrable rule for the Sixth Amendment s protection: A criminal defendant s untainted assets are protected from government interference before trial and judgment, but his tainted assets may be seized before trial as contraband or 119

134 4 LUIS v. UNITED STATES through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original meaning of the right to counsel does real work. Here, the incursion of the pretrial asset freeze into untainted assets, for which there is no historical tradition, violates the Sixth Amendment. Pp (c) This conclusion leaves no room for an atextual balancing analysis. Pp BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KEN- NEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion. 120

135 2017 PBA Midyear Meeting The Impact of the Term of the Supreme Court of the U.S. on Federal Practice Case Links Overview of the Term and Major Constitutional Cases Fisher v. University of Texas at Austin Whole Woman s Health v. Hellerstedt Zubick v. Burwell Evenwel v. Abbott Heffernan v. City of Paterson Criminal Law McDonnell v. United States Ocasio v United States Mathis v. United States Voisine v. United States Taylor v. U.S. Federalism and Separation of Powers, Federal Statutory Interpretation DIRECTV, Inc. v Imburgia U.S. v. Texas Bank Markazi v. Peterson CRST Van Expedited v. EEOC Simmons v. Himmelreich Spokeo, Inc. v. Robins Federal Courts and Civil Procedure Campbell-Ewald Company v. Gomez Tyson Foods v. Bouaphakeo Americold Realty Trust v. Conagra Foods Dietz v. Bouldin RJR Nabisco v. the European Community Criminal Procedure Williams v. Pennsylvania Montgomery v. Louisiana Welch v. U.S. Utah v. Strieff Birchfield v. North Dakota Foster v. Chatman Luis v. U.S. 121

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