In response to demands by the California Attorney General that they file the complete lists, the organizations filed a lawsuit alleging that the filing requirement unconstitutionally burdened their First Amendment right to free association by deterring individuals from financially supporting them. The organizations provided evidence that although the state is required to keep donor names private, the state’s database was vulnerable to hacking, and many donor names were repeatedly released to the public. But a panel of the U.S. Court of Appeals for the Ninth Circuit rejected that argument, based on its conclusion that “exacting scrutiny” rather than “strict scrutiny” was the appropriate standard, and “exacting scrutiny” requires only “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.”

During the argument, Justice Sotomayor asked Mr. Shaffer, for the petitioners, a question suggesting that California’s policy should survive exacting scrutiny. Specifically, she asked how the petitioners can reconcile their view of exacting scrutiny/narrow tailoring with the Court’s opinion in Doe v. Reed, 561 U.S. 186 (2010).  My answer explains why Doe is not on point.

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Title V of the CARES Act borrows the definition of “Indian tribe” from the Indian Self-Determination and Education Act of 1975 (ISDA), which the ISDA defines as:

any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act [ANCSA], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

25 U.S.C. 5304(e) (citation omitted).

The D.C. Circuit held that the ANCs do not satisfy the recognition clause. Congress explicitly declared tribes eligible for the special programs and services provided to Indians according them federal recognition and declared them no longer eligible when divesting them of that status. No ANC is presently federally recognized.

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Arthrex owns a patent that was subject to inter partes review, and a three-judge panel consisting of three APJs issued a final written decision finding the claims unpatentable. Arthrex appealed to the U.S. Circuit Court for the Federal Circuit, claiming that the appointment of APJs violates the Appointments Clause of the U.S. Constitution. The Federal Circuit agreed, finding that the statute as currently constructed makes APJs principal officers, who must be appointed by the President with the advice and consent of the Senate. The Federal Circuit stated that as a remedy it would sever the provision that restricts removal of APJs. It reasoned that by doing so, it rendered APJs inferior officers and eliminated the constitutional appointment problem.

Alan Morrison:

On the merits of the inferior officer question in United States v. Arthrex, Inc., there are two subsidiary questions: are Administrative Patent Judges (APJs)—whose status is at issue—inferior officers, and by what test will that be determined?  Because the second question should be answered first, I focus on that issue.

Malcolm Stewart for the United States and Mark Perry for the private party argued in favor of inferior officer status for APJs, relying on the Court’s decision in Edmond v. United States. That opinion cited to a number of facts that led the Edmond Court to conclude that Coast Guard Judges were inferior officers.  At least three Justices seemed troubled by the open-ended nature of that approach as applied to APJs:

JUSTICE SOTOMAYOR (of Stewart): For my colleagues — and there are some who don’t like amorphous concepts or ones that don’t have a yardstick by which to measure — what is the advantage of us keeping the Edmond test?

JUSTICE THOMAS (of Perry): What would be your test for whether someone is an inferior officer? It seems to be almost a totality of the circumstances.

JUSTICE ALITO (of Perry):  In your brief you tick off all the ways in which there is control over these APJs. So I’m going to go through these, go through your list and eliminate them one by one, and you tell me when to stop, when we get to the point where we’ve crossed the line and there’s no longer sufficient control [for the person to still be an inferior officer].

Below, I provide an answer that addresses the running theme in these three questions.

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The Fourth Amendment’s exigent circumstances doctrine excuses police from seeking a warrant when the circumstances are serious enough.  And the Court has permitted the warrantless entry of a home when the police engage in a “hot pursuit” of someone suspected of having just committed a felony.  But where should Lange’s case fall? Should the Court define a bright-line rule encompassing Lange’s misdemeanor facts, or should it apply the case-by-case exigent circumstances doctrine?

The Justices clearly struggled with trying to articulate a rule that was workable for the police, made sense in light of common law traditions, and accounted for two realities beyond their control: the sheer number of misdemeanor offenses under state law today, and the potential for danger when a person evades the police by entering their home.  For these reasons, the Chief Justice’s question here posed an opportunity to try and address some of these concerns.

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The FCC’s media ownership rules regulate issues including how many television or radio licenses an entity can control in a local market or nationally. These structural regulations include voting and equity interest thresholds that trigger application of those rules (known as attribution rules). The FCC first adopted structural rules limiting a common entity’s control of FCC broadcast licenses in the mid-1940s to promote diffusion of broadcast licenses, diversity, competition, and localism (service to local communities). The agency adopted these rules to ensure that broadcast serves the public interest consistent with the requirements of the Communications Act of 1934.

The ’96 Act lifted the limit on the number of radio stations an entity could own nationally and imposed a tiered limit on the number of radio stations that could be owned locally based on market size. Telecom Act Section 202(h) directed the FCC to biennially review its media ownership rules, including its rules restricting cross-ownership of a television station and a newspaper in a local market (newspaper-broadcast cross-ownership (NBCO) rule), and its cable-television cross-ownership rules. That statute directs the FCC to “determine whether any of such rules are necessary in the public interest as the result of competition. The Commission shall repeal or modify any regulation it determines to be no longer in the public interest.” In 2004 Congress set by statute the number of television station licenses an entity could control nationally at 39% of U.S. television households and lengthened the timeline for 202(h) proceedings to quadrennial.

The FCC orders at issue in this case involve three decisions adopted as presidential administrations changed. In 2016 when Barack Obama was President and Tom Wheeler was FCC Chair, the FCC adopted a decision that retained many of its media ownership rules. The FCC’s 2016 order retained the newspaper-broadcast cross-ownership rule, the local television ownership rule, and the local radio ownership rule based in part on the FCC’s determination that doing so did not harm its goal of promoting minority and female ownership of broadcast television and radio stations. FCC, Media 2016 Ownership Review Order, 31 FCC Rcd. 9864, ¶¶ 77, 125, 134 (2016).

The Third Circuit faulted on APA grounds the FCC’s analysis that led to that conclusion. The 2016 order compared incompatible datasets (National Telecommunications and Information Administration (NTIA) data gathered before 2000 and FCC 323 reports gathered after 1998) to analyze the effect of its media ownership rules on minority and female license ownership. The Third Circuit in Prometheus IV concluded that the FCC’s irrational analysis flunked the APA. “Attempting to draw a trendline between the NTIA data and the Form 323 data is plainly an exercise in comparing apples to oranges, and the Commission does not seem to have recognized that problem or taken any effort to fix it,” Prometheus IV concluded. (939 F.3d at 586).

In 2017, following the inauguration of Donald Trump as President and the appointment of Ajit Pai as FCC Chair, the FCC decided on reconsideration to repeal the newspaper-broadcast ownership rule, though it conducted no new fact-finding.  The FCC’s 2018 Incubator Order sought to promote opportunities for small businesses, including those owned by minorities and women, by allowing broadcasters to invest in and “incubate” eligible entities in exchange for relief from some of the FCC’s structural ownership limits on the number of broadcast stations that could be owned locally.

Prometheus Radio Broadcasters, two television groups, and several public interest and industry organizations appealed the FCC’s decisions on APA grounds. After the Third Circuit vacated the FCC’s 2016, 2017, and 2018 decisions for APA violations, the U.S. Government and National Association of Broadcasters petitioned the U.S. Supreme Court to review the case, arguing Prometheus IV did not properly apply the APA and should have deferred to the FCC’s decisions.

At oral argument and in the briefs, Petitioners characterize the issue of the potential consequences of the FCC’s repeal, modification, or retention of its broadcast ownership rules on minorities and women as a side-issue whose importance the Third Circuit unduly elevated in its APA analysis. Petitioners argue that the FCC’s decisions, as reflected in its 2017 reconsideration order and 2018 Incubator order (which rely on the fact-finding and much of the analysis in the FCC’s 2016 order), should be allowed to go into effect to promote deregulation and enable broadcasters to compete with other media including the Internet.

Respondents argue this is a straightforward APA case. Respondents contend the FCC failed to explain its decision-making through rational analysis as the APA requires. Despite the FCC’s consistent statements that promoting minority and female ownership was an important goal in these proceedings, and its conclusion that the rules adopted do not conflict with those goals, Respondents argue the FCC failed to rationally analyze the record or explain its reasoning as the APA requires. Respondents emphasize that the FCC has considered the effect of its structural media ownership rules on minorities and women throughout its media ownership reviews and for more than a decade prior to that statutory process, making this an important issue the FCC must properly analyze under the APA.

At oral argument, Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett asked whether the FCC was required to consider minority or female ownership in its media ownership rules or had a history of doing so. On multiple occasions, Malcom Stewart for Government Petitioners and Helgi Walker for Petitioner NAB misstated the record, ignoring the 35-year record of FCC consideration of minority and later female FCC license access in the development and analysis of FCC media ownership rules. As officers of the Court, Mr. Stewart and Ms. Walker have a duty to accurately represent the record. To make this ethical point, I offer an alternative response on behalf of Mr. Stewart, correcting the inaccurate representations of the FCC’s record. The answer informs the Court that the FCC considered minority ownership in designing and analyzing its media ownership rules since 1983, following its 1978 policy statement on promoting minority ownership of FCC licenses.

I also respond to a question Justice Kagan asked Respondent about this same issue.  I detail how, for more than a decade prior to and throughout the FCC’s media ownership reviews mandated by the Telecom Act of ’96, the FCC considered minority ownership as a basis for adopting and modifying its media ownership rules.

For reference, I include citations to the different rules that I discuss below.

*In the Matter of Amendment of Section 73.3555, (Formerly Sections 73.35, 73.240, & 73.636) of the Commission’s Rules Relating to Multiple Ownership of Am, Fm & Television Broad. Stations, 100 F.C.C.2d 17, 46-49 (Gen. Docket No. 83–1009) (1984).

**In the Matter of Corp. Ownership Reporting & Disclosure by Broad. Licensees. Amendment of Sections 73.35, 73.240 & 73.636 of the Commission’s Rules Relating to Multiple Ownership of Standard, Fm, & Television Broad. Stations. Amendment of Sections 73.35, 73.240, 73.636 & 76.501 of the Commission’s Rules Relating to Multiple Ownership of Am, Fm, & Television Stations & CATV Sys. Reexamination of the Commission’s Rules & Policies, 97 F.C.C.2d 997, 1002 (1984).

***In the Matter of Amendment of Section 73.3555 (Formerly Sections 73.35, 73.240 & 73.636) of the Commission’s Rules Relating to Multiple Ownership of Am, Fm & Television Broad. Stations, 100 F.C.C.2d 74, 94–95 (1985).

****In the Matter of Policies & Rules Regarding Minority & Female Ownership of Mass Media Facilities, 10 F.C.C. Rcd. 2788, 2789 n. 9 (1995) (citing Second Report and Order, MM Docket No. 92-264, 8 FCC Rcd 8565, 8578 (1993).

*****Second Report and Order, MM Docket No. 92-264, 8 FCC Rcd 8565, 8596 (1993).

^*In the Matter of Review of the Commission’s Regulations Governing Television Broad., 10 F.C.C. Rcd. 3524) (1995).

^**In the Matter of Review of the Commission’s Regulations Governing Attribution of Broad. Interests; Review of the Commission’s Regulations & Policies Affecting Inv. in the Broad. Industry; Reexamination of the Commission’s Cross-Interest Policy, 10 F.C.C. Rcd. 3606 (1995).

^***In Re 1998 Biennial Regulatory Review-Review of Commission’s Broad. Ownership Rules, 15 F.C.C. Rcd. 11058, 11073 (2000).

^****In Re 2002 Biennial Regulatory Review-Review of the Commission’s Broad. Ownership Rules & Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 18 F.C.C. Rcd. 13620, 13634 (2003) (citing e.g., Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 (1978); 1985 Multiple Ownership MO&O, 100 FCC 2d 74 (1985); Policies and Rules Regarding Minority and Female Ownership of Mass Media Facilities, 10 FCC Rcd 2788 (1995); 1998 Biennial Regulatory Review – Streamlining of Mass Media Applications, Rules, and Processes; Policies and Rules Regarding Minority and Female Ownership of Mass Media Facilities, 13 FCC Rcd 23056, 23095 (1998) (adopting competitive bidding rules consistent with 47 U.S.C. § 309(j)(3)(B) (requiring the Commission, in designing systems of competitive bidding for broadcast licenses, to “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including … businesses owned by members of minority groups and women”)); Section 257 Proceeding to Identify and Eliminate Market Entry Barriers for Small Businesses, 11 FCC Rcd 6280 (1996); Section 257 Proceeding to Identify and Eliminate Market Entry Barriers for Small Businesses, Report, 12 FCC Rcd 16802 (1997)).

^*****In the Matter of 2006 Quadrennial Regulatory Review — Review of the Commissions Broad. Ownership Rules & Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 23 F.C.C. Rcd. 2010, 2016–2017 (2008).

^^*Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rulemaking, MB Docket No. 07-294, 23 FCC Rcd. 5922 (2007) [hereinafter Diversity Order]).

^^**In the Matter of 2010 Quadrennial Regulatory Review — Review of the Commissions Broad. Ownership Rules & Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 Promoting Diversification of Ownership in the Broad. Services, 26 F.C.C. Rcd. 17489, 17544–17545 (2011).

^^***In the Matter of 2014 Quadrennial Regulatory Review of the Commission’s Broad. Ownership Rules & Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Further Notice of Proposed Rulemaking, 29 F.C.C. Rcd. 4371, 4400 (2014).

^^****FCC, Media 2016 Ownership Review Order, 31 FCC Rcd. 9864, ¶¶ 77, 125, 134 (2016).

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Michael Pattillo, on behalf of the petitioner, insisted that the FTC Act’s authorization of injunctions is limited to injunctions—not other equitable relief, and decidedly not retrospective monetary relief for past harms. Petitioner’s counsel focused on three limits: (i) the requirement that the violation be ongoing; (ii) Section 13(b)’s lack of any language addressing additional equitable relief, despite the FTC Act’s explicit authorization of other equitable relief in different provisions such as Section 5(l); (iii) Section 13(b)’s lacking other broader remedial sections, such as Section 19’s authorization of monetary relief for past consumer injury. Pattillo distinguished any precedent broadly construing injunction power and emphasized that the FTC doesn’t seek to use an injunction to enforce an earlier right to restitution.

Joel Marcus, on behalf of the Commission, relied on a foundational principle of equity that a wrongdoer should not profit from their own wrongdoing. It is not plausible that Congress empowered the FTC to go to federal court to merely stop the violations while letting the violator keep the stolen money. Precedent supports the view that the statutory use of injunction includes ancillary equitable relief such as restitution and disgorgement. Once a court exercises its injunction power, the answer in centuries of law is pretty clear: the court can authorize the return of wrongful gains.

Justice Highlights:

• When Congress drafted Section 13(b), it did so with the backdrop of cases like Porter, Mitchell, and other cases that broadly construed equitable injunctive power and that were liberal in finding rights and remedies. (Roberts, C.J., and Kagan, J.)
• Assuming that the jurisprudence favorable to disgorgement incident to injunctions is a mistake, it’s been around for fifty years and all circuits except the Seventh Circuit have a uniform interpretation, so shouldn’t the Court keep it? (Breyer, J.)
• Most members of Congress aren’t lawyers and even those who are probably never heard of the word “equity” in law school. When legislating, they would have seen in Black’s Law Dictionary a definition of injunction as “a judicial process operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing.” If the member read that definition, wouldn’t they think that it would authorize exactly what was done here? (Alito, J.)
• Why did the Commission choose Section 13 rather than Section 19? (Thomas, J.)
  • Why would Congress use different language for injunctive relief in the two Sections? (Sotomayor, J.)
  • If Section 13(b) is such a clearly better path from the agency’s perspective, is that the kind of choice Congress really gave to the agency? (Kagan, J.)
  • What incentive does the FTC have today to use Section 19? (Gorsuch, J.)
• History matters. The FTC Act involved compromises between too much and not enough power for the agency. Congress mediated between the business community, which was suspicious of FTC power, and a progressive community that saw the FTC as essential to control unsavory business practices. What if the FTC’s Section 13(b) route and remedy are right for the instant transgressions but not for less clear cases of abuse? (Breyer, J.)
• When you work in the Executive Branch or an independent agency, you want to do good and sometimes your authority is borderline. So, with good intentions, the agency pushes the envelope and stretches the statutory language. The problem is that it results in a transfer of power from Congress to the Executive. Why isn’t the answer for the agency to seek this new authority from Congress, and for the courts to maintain the separation-of-powers principle that the agency should stick to the authority in the text and not go beyond that? (Kavanaugh, J.)

Below, I respond to Justice Barrett’s question to Petitioners. Both Justice Alito and Justice Barrett expressed concern with the ultimate consequences of an equitable remedy—specifically whether the money would actually go back to the victims—and my answer assuages this concern.

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The first statute that may govern is 8 U.S.C. § 1226(a), which allows for detention or release of non-citizens “pending a decision on whether the alien is to be removed from the United States.”  In other words, this detention statute applies to individuals who are still awaiting a decision as to whether they will be deported or not.  Importantly, under this statute, the immigration authorities make an individualized determination regarding the need for detention, with independent review by the Immigration Court.  The respondents—detained non-citizens—assert that this provision applies because persons in withholding of removal proceedings are awaiting a decision as to whether they will actually be removed on the reinstated removal order.

The second detention statute posited as applicable is 8 U.S.C. § 1231(a)(2).  This provision envisions detention during a time-limited “removal period” once a removal decision is ready to be executed.  Individuals detained under this provision are held automatically during the removal period.  After the removal period, the Department of Homeland Security (DHS) makes a decision about continued detention, without any review by the Immigration Court.  The petitioner here—the government—argues that this provision applies to persons in withholding of removal proceedings with a reinstated prior removal order even though that order cannot be executed yet and may never be executed if protection is granted.

While the statutory question may seem mundane, the stakes are high.  Thousands of non-citizens each year pass the screening interview, with its high threshold, that places them into Immigration Court proceedings on a refugee-related withholding of removal claim.  The Immigration Court proceedings are often lengthy, easily lasting six months and often dragging on for years.  Non-citizens who win withholding cannot be removed to the countries they fled.  While they could theoretically be removed to another country that would take them, after the non-citizens have a fair opportunity to claim danger there as well, removals to a third country rarely take place.  Under the government’s interpretation, traumatized non-citizens who are seeking safety after surviving threats and attacks are deprived of their liberty.  DHS serves as judge and jailor and is disinclined to release even in the most compelling cases—and even during the COVID-19 pandemic.

The oral argument before the Supreme Court laid out the statutory arguments on both sides with great clarity and effectiveness.  However, the larger context was scarcely a shadow flitting in and out of the argument. Counsel for the detained non-citizens might have more emphatically reminded the Court of constitutional principles establishing that immigration detention is a civil, rather than criminal, process.  As such, it is to be exceptional in nature and permissible only in individual cases with strong governmental justification and independent review.  At the end of the oral argument before the Supreme Court, counsel for the government recognized that there were multiple plausible interpretations of the statute.  Counsel suggested several “tiebreaker” considerations that would lead to a finding that 8 U.S.C. § 1231 applies.  Yet, the government did not reference the Constitution as the most important tiebreaker of all.

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Edwards asks whether the Supreme Court’s decision from last term, Ramos v. Louisiana, is one of those retroactive rules. Ramos held that the Sixth and Fourteenth Amendments require states to obtain criminal convictions through unanimous verdicts; states cannot convict a defendant based on a 10-2 jury verdict.

In Edwards, Mr. Edwards is arguing first that the holding in Ramos did not announce a new rule. Writing for himself in Ramos, Justice Gorsuch agreed, explaining that the Court’s earlier cases on incorporating most of the Bill of Rights to apply against the states and on the requirement of unanimity dictated the result in Ramos. The defendant is also arguing that Ramos was a watershed rule.  Because only watershed rules apply retroactively, and because watershed rules are those that increase accuracy, the Court was interested in what it means for a rule to increase accuracy and whether Ramos is such a rule. The Chief Justice, Justice Kagan, Justice Barrett, and Justice Thomas all asked questions about “accuracy.”

Justice Kagan asked Mr. Edwards’ lawyer about what accuracy means and how to determine whether a given rule affects the accuracy of a conviction.

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Oona Hathaway:  The respondents in these cases are all children who were, they maintain, trafficked from Mali and subject to slavery and forced labor on cocoa plantations in Côte d’Ivoire in violation of some of the most deeply rooted norms of international law. In two separate cases, they sued petitioners Nestlé and Cargill, private corporations headquartered in the United States, under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, for knowingly aiding and abetting these international law violations. Both companies, they argued, had complete control over their cocoa production operations in Côte d’Ivoire from their U.S. headquarters. The Supreme Court consolidated these cases when it granted certiorari.

In the most recent case before the U.S. Supreme Court involving the ATS, Jesner v. Arab Bank, PLC., 138 S. Ct. 1386 (2018), the Court decided that foreign corporations could not be sued under the ATS for violations of international law that take place abroad.  The Court did not reach the issue of domestic corporate liability and did not determine whether the law of nations provides for corporate liability. Instead, the Court exercised its judicial discretion under the second step of the analysis set forth by the Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), deciding that foreign corporations should be exempt from ATS liability based on the potential disruption imposing liability might cause to U.S. foreign relations.

Neal Katyal, arguing for petitioners, confronted several difficult lines of questioning.  He sought to emphasize that the harm to respondents took place abroad and thus was outside the reach of the ATS, but several justices pressed back.  Chief Justice Roberts noted that no foreign country had objected to the “United States haling its own citizens into its own courts,” signaling that the Justices would not be so easily persuaded to come to the same result they had regarding foreign corporations in Jesner.

Curtis Gannon, arguing for the United States in support of petitioners, affirmed that no state had raised concerns with the U.S. government about the case.  He nonetheless expressed concerns that similar cases might in the future present foreign relations problems.

Paul Hoffman, arguing for respondents, emphasized that while the child slavery took place abroad, the planning and oversight of the companies’ foreign operations took place in the United States. Hoffman’s toughest questioning concerned the specificity of the complaint, particularly when Justice Alito asked whether the allegations were sufficient to establish aiding and abetting liability.

Justice Amy Coney Barrett is the newest member of the Court and likely an essential vote if respondents are to sustain the favorable judgment below.  Her question to Hoffman returned to an issue of clear concern to many justices (and a possible basis for differentiating between these cases and Jesner)—the foreign policy implications of allowing the case to proceed. What’s so intriguing about the question is that she recognizes that in a case involving U.S. corporations (rather than foreign ones), there may be foreign policy consequences for failing to recognize a cause of action when they commit egregious international law violations abroad.

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The United States and its officers prevailed on pretrial motions in the district court, albeit on different grounds.  The district court held that it did not have subject matter jurisdiction over the claim against the United States under the Federal Tort Claims Act (FTCA) and that the individual defendants were entitled to summary judgment on the grounds of qualified immunity.  King appealed this judgment with respect to two of the officers but did not challenge the judgment in favor of the United States and another defendant.

The United States Court of Appeals for the Sixth Circuit reversed the district court.  It considered whether, following the district court’s ruling, the judgment bar of the FTCA precluded the plaintiff’s claims against the officers.  The FTCA judgment bar states, “The judgment in an action under section 1346(b) of this title [against the United States] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”  Defendants argued, on appeal, that the district court’s dismissal of the plaintiff’s claims against the United States activated the judgment bar. The Sixth Circuit held the claims were not barred, reasoning that the “FTCA does not bar Plaintiff from maintaining his claims . . . because the district court lacked subject matter jurisdiction over Plaintiff’s FTCA claim.”

The officers appealed the Sixth Circuit’s judgment to the Supreme Court, which granted certiorari.  The Court will now determine whether a final judgment, in favor of the United States, in an action brought under Section 1346(b)(1) of the FTCA, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.

We have focused on two exchanges.  In the first, Justice Clarence Thomas asked Mr. Huston whether a judgment that is appealable still has preclusive effect.  Mr. Huston answered the question correctly, saying “Yes,” because “the definition of judgment” in the federal statute, 28 U.S.C. section 2676 (the judgment bar), “is the same as the definition of the word judgment in the Federal Rules of Civil Procedure.”  We have elaborated on Mr. Huston’s answer to suggest that he could have incorporated the procedural history of the case to support the government’s argument for reversal.

In the second, Justice Breyer clarified with Mr. Jaicomo that under his theory of the case, a plaintiff could sue the United States and individual officers in the same case, prevail against the United States and obtain damages, and also prevail against the individual officers and obtain additional – not duplicative – damages.  Consistent with his position, Mr. Jaicomo agreed that this was possible and in fact had been Congress’s intent under the FTCA and related legal authorities.  We have elaborated on his answer to explain why, on balance, this would be better than the scenario that would result from the government’s broad reading of the judgment bar.

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