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SCOTUS Symposium: Morales-Santana and the "Mean Remedy"

Today, the Court decided Sessions v. Morales-Santana, which is a case about who exactly is a citizen of the United States at birth. More specifically: If you are born abroad, and your parents are unmarried, and one of them is a citizen of the United States and one is not, are you a citizen? Until today, the law treated you differently depending on the sex of your citizen parent. If your father was a citizen, then (among other things) he had to be resident in the United States for five years before you were born for you to be a citizen; if it was your mother, it was a shorter period, just one year. The question presented in the case is whether this sex classification was constitutional. 

Because of the opinion assignments from November, it had been reasonably clear for some time that Justice Ginsburg had been assigned this opinion, and indeed on the merits she wrote for the Court an opinion that is perfectly consonant with what you might predict. No, said the Court, you cannot treat people differently depending on whether their citizen parent was a man or woman. Fair enough, and certainly seems right to me.

But! As Howard wrote about earlier today, the further question then arises: what do you do about this? Do you treat the children of citizen women worse, or the children of citizen men better? On First Mondays, back in November, co-symposiast Dan Epps and I referred to these as "the nice remedy" and "the mean remedy." Surprisingly, at least to me, today the Court elected the "mean remedy": children born to citizen mothers will, henceforth (more on that in a second), be worse off. A child born abroad to a non-citizen father and a citizen mother will not be a citizen unless that mother satisfied the longer residence requirements. The upshot is that Morales-Santana loses, and will be removed from the United States, because his father was a few days short of the required residence requirements.

There is a lot to dislike about the remedy portion of this opinion, which I think is an early contender for the worst thing Justice Ginsburg has ever written for the Court. Let me just pick out a couple of things.

1. Statelessness. One of the government's major justifications for the difference in treatment was the avoidance of statelessness for children—that is, to avoid a situation where a child would not be a citizen of any country. The government argued without contradiction that there were many states that "put the child of the U. S.-citizen mother at risk of statelessness" because they did not provide "for the child to acquire the father’s citizenship at birth." Yes, says the Court: but there are also "formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child."

In many countries, for example, a woman cannot "assign nationality to a nonmarital child born outside the subject country with a foreign father." In others, women who are citizens of such countries cannot even  "transmit their citizenship to nonmarital children born within the mother’s country." (Emphasis mine.) True—but the Court's remedy then makes this problem even worse by making it harder for children of U.S.-citizen mothers to be citizens. There is no evident appreciation in the Court's opinion for this fact. The practical consequence of the decision will absolutely be to worsen the problem of statelessness, something that is nowhere acknowledged in Justice Ginsburg's opinion.

2. Prospectivity. When the decision was handed down, I was immediately alarmed for the fate of the many, many people who have enjoyed citizenship at birth through their mothers, and whether their citizenship would be in jeopardy. What happens to the person whose mother was resident in the United States for 2 years when they were born (perhaps a long time ago), and who has lived their life as a citizen ever since? Deportation? This was an especial worry because the BIA recently decided Matter of Faldoun, in which the agency concluded that a person born outside the United States—even one who has been treated as a citizen—must always prove his citizenship in deportation proceedings, even if they have valid documentation of citizenship, and is vulnerable to later collateral challenges based on the facts or law.

The Court's opinion, however, addresses this worry in what is literally the last operative sentence of the opinion. Until Congress proscribes a different rule, the Court says, the "five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers." (Emphasis mine.) Now, why would that be? Prospectively, that is? The usual rule is that a court opinion construing the meaning or validity of a civil statute is "retroactive," in the sense that the court is simply announcing what the law has always been; there are a variety of exceptions to this principle, some more sensible than others, and perhaps they ought to apply here. Yet the Court says not one word about why the remedy is to be prospective—I suspect because it is a pure kludge, a price exacted by members of the Court who could not live with the cruelty of retroactivity but not elaborated upon because other members of the majority did not want the point labored.

It is not as clean a solution as it seems. What does "prospectively" mean, for one thing? Does the Court mean the rule is to be applied to children who are born after today? To people who have not yet been adjudged citizens in some final-ish court or agency proceeding? What of a person who was born 25 years ago to a citizen mother who cannot satisfy the new rule, and who has held a passport his entire life, but who commits an offense in 2018 that would render an immigrant removable. Is his removal a "prospective" application of Morales-Santana? I can see arguments both ways, and there is absolutely nothing in the Court's opinion to help sort the matter out.

3. The Gentler World of Thomas and Alito. In concurrence, Justice Thomas writes (joined by Justice Alito) that he agrees the Court cannot afford the relief Morales-Santana wants, and so would decide nothing more than that—he would skip, in other words, the merits holding. In a strange way, this would leave many immigrants better off: because Justice Thomas does not want to reach the merits, and because it is hard to imagine who would have standing to challenge the (now-unlawful) grant of citizenship to a person on the basis of his mother's citizenship, there are a lot of people who will be deported from the United States in the years to come who would have remained if Justice Thomas had his way.

On the whole, the opinion left me (as might be clear) with a bad taste in my mouth. It is a symbolic victory, and perhaps a principled one, but an unmitigated material rout. There is not a single human being whose life will be made better because of this opinion, and many people whose lives will be worse. Its crucial operative portion is utterly unexplained and will spawn a great deal more litigation; it is, through and through, a disappointment.

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.

Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n the interim, as the Government suggests, § 1401(a)(7)'s now five-year requirement should apply prospectively to children born to unwed U.S.-citizen mothers." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Call for Papers for the Inaugural Northeast Privacy Scholars Workshop

October 20, 2017 at New York Law School

Abstracts/Applications due August 20, 2017

Papers due September 20, 2017

 

We invite submissions on a variety of privacy-related topics and from a wide range of disciplines, including, but not limited to, law, social science, computer science, engineering, communications, and public policy.

The Workshop format is designed to facilitate discussion and commentary on early stage papers and will give preference to papers that are sufficiently developed to be read and critiqued, but not yet submitted for publication. There will be no presentations at the Workshop; only brief commentary and feedback from participants. All participants and attendees are asked to read the papers ahead of time and stay for the entire workshop. 

The Program Committee, which will select from among the submitted abstracts, includes, in alphabetical order: Arvind Narayanan, Princeton University; Helen Nissenbaum, NYU Steinhardt/Cornell Tech; Frank Pasquale, University of Maryland Carey School of Law; Joel Reidenberg, Fordham Law School; Katherine Strandburg, NYU School of Law; Joseph Turow, University of Pennsylvania; Ari Waldman, New York Law School

For more information, please see the Workshop webpage.

Selections will be made no later than September 3, 2017. And papers will be due by September 20, 2017 at 5 PM Eastern.

We look forward to your submission and expect a stimulating conversation. If you have any questions, please email Ari Waldman at [email protected].

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

SCOTUS Symposium: Is Patent Agency Adjudication Unconstitutional?

This morning the Supreme Court granted review in just one case, and limited its review to one question (three were presented in the petition): Oil States Energy Services LLC v. Greene’s Energy Group, LLC. It's yet another patent law case from the Federal Circuit, but it is no ordinary question presented--at least for patent and administrative law scholars (and constitutional law and federal courts scholars):

Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

The argument, which is marshaled by Allyson Ho and her team at Morgan Lewis, is nicely summarized at the outset of the petition:

Patents create property rights, protected by the Constitution. Once a patent is granted, it “is not subject to be revoked or canceled by the president, or any other officer of the Government” because “[i]t has become the property of the patentee, and as such is entitled to the same legal protection as other property.” McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606, 608-09 (1898).

In 2011, Congress passed the America Invents Act to combat what it perceived as inefficiencies in patent litigation. The Act allows the PTO’s Patent Trial and Appeal Board (the Board) to review existing patents and extinguish those rights in an adversarial process. See 35 U.S.C. §§ 311(a) & 318(a); Google Inc. v. Jongerius Panoramic Techs., LLC, No. IPR 2013-00191, Paper No. 50, at 4 (PTAB, Feb. 13, 2014). This is known as inter partes review. 37 C.F.R. § 42.100(a); H.R. REP. NO. 112-98, pt. 1, at 46-47 (2011). Inter partes review commences when a party—often an alleged patent infringer—asks the Board to reconsider the PTO’s issuance of an existing patent and invalidate it on the ground that it was anticipated by prior art or obvious. 35 U.S.C. § 311(b).

Historically, though, suits to invalidate patents would have been tried before a jury in a court of law. The Constitution thus provides patent owners with a right to a jury and an Article III forum. Inter partes review violates these rights. 

Unsurprisingly, the Solicitor General sided with the Respondent in filing a brief in opposition, arguing that the statutory scheme is constitutional as "[p]atents are quintessential public rights" and the process Congress has designed for agency review of its own decisions to issue patents is proper for the administration of a public-rights scheme. I can't wait for all the amicus briefs on both sides of the public-private rights debate, and I wonder if we'll see a full Hamburger assault on the modern administrative state, accompanied by witty (perhaps one-word) responses. 

The stakes are high here. This agency patent adjudication procedure has become extremely popular among those parties seeking to challenge patents, arguably because it is faster and cheaper than district court litigation--and also, perhaps, because the two paths under the statute are not mutually exclusive, such that patent challengers can pursue both options (with some limitations) to invalidate patents.

The numbers speak for themselves. As of last fall, the Patent Trial and Appeal Board (the agency that adjudicates these claims) had received over 5,000 petitions for inter partes review since starting to hear such claims in 2012 (shortly after the American Invents Act was enacted in 2011 to provide this adjudicatory authority to the agency). Indeed, the Federal Circuit, the court of appeals that has near-exclusive jurisdiction over patent appeals, now hears more patent appeals from the PTAB than from the district courts. 

I would expect this agency adjudication path to become even more popular after the Supreme Court's decision this Term in TC Heartland LLC v. Kraft Foods Group Brands LLC, which interpreted the patent venue statute to require that lawsuits only be brought in districts where the defendant corporation resides--i.e., its State of incorporation. In other words, we should see far fewer patent lawsuits being litigated in a small town in East Texas (a venue patent plaintiffs have found to be very favorable) and more cases being filed in federal district court in Delaware and arguably even more patent challengers opting for agency adjudication.

Selfishly, this cert grant could not have come at a better time. Last year the Duke Law Journal held a terrific symposium on the intersection of patent law and administrative law, which I had the opportunity to attend and pen a short response regarding Chevron deference to PTAB statutory interpretations. I write a fair amount about agency adjudication, including the annual ABA administrative law developments chapter on agency adjudication with ACUS Executive Director Matt Wiener, and I've become just fascinated by the PTAB's adjudicatory procedures. In fact, Melissa Wasserman and I are currently working on a project--tentatively entitled The Lost World of Agency Adjudication (yes, this is a nod to Dan Farber and Anne O'Connell's fabulous article The Lost World of Administrative Law)--that takes a closer look at the PTAB. In this paper, we will draw substantially from Michael Asimow and the Administrative Conference of the United States' terrific work on the rise of agency adjudication outside of the Administrative Procedure Act and will situate the PTAB adjudicatory process within administrative law’s larger movement away from APA-governed formal adjudication and toward formal-like adjudication outside of the APA. 

In all events, I hope to blog more about the merits of this case later this month. For now, I'd  flag Part III of Justice Thomas's 2015 dissent in B&B Hardware v. Hargis Industries, in which he expresses constitutional concerns about a somewhat similar agency adjudication institution (the Trademark and Trial Appeal Board). Note that he is the only member on the current Court who expressed such concerns then, with only Justice Scalia joining him. Yet with today's grant we have at least four Justices who are interested in this related constitutional question.

SCOTUS Symposium: Summary Reversal in Virginia v. LeBlanc

The Supreme Court released a new batch of opinions today, and these are a bit more interesting than the ones last week.  We have Justice Gorsuch's first opinion in Henson v. Santander, about the FDCPA; a big case about class actions in Microsoft v. Baker (one of the cases that kept being put off after Justice Scalia's death); a significant equal protection decision in Sessions v. Morales-Santana; and Sandoz v. Amgen, a case involving some complicated FDA issues.  Particularly interesting to me, though, was a summary reversal in Virginia v. LeBlanc, which involves an interesting follow-on question from Graham v. Florida. Basically, Graham held that juvenile defendants who didn't commit homicide can't receive life without parole; instead, they are entitled to "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." But the Court didn't decide in Graham what that "meaningful opportunity" looks like exactly, and it hasn't provided further clarification (yet). So lower courts have been working that through in Graham challenges brought by juvenile non-homicide offenders.

LeBlanc is one of those follow-on cases. The defendant, a Virginia prisoner, was serving a life without parole sentence for a rape he committed at age 16. He challenged his sentence under Graham, and lost in the state courts; a state trial court concluded that he had a "meaningful opportunity" for release: though Virginia had abolished parole for offenders like LeBlanc, it has a geriatric release program that enables older inmates to get out of prison if certain conditions apply, and the state court found that this program satisfied Graham. On federal habeas review, the Fourth Circuit concluded that the state courts erred, and that the geriatric release program wasn't enough to satisfy Graham. Today, the Supreme Court unanimously reversed that decision. My thoughts after the jump.

The opinion is pretty straightforward, and in my view right. Not because it's totally clear that Virginia's geriatric release program is an acceptable procedure under Graham, but because of the significant restrictions on federal habeas review for state prisoners. Under AEDPA, federal courts aren't supposed to contradict state court decisions denying relief unless those decisions unreasonably apply clearly established federal law. Here, it's at least a hard and open question whether Virginia's procedure satisfies Graham; even if the best answer is that it doesn't, it's not unreasonable for a state court to conclude otherwise. 

I think there is one fair criticism of LeBlanc, although it's not exactly a criticism on the merits. LeBlanc was a summary reversal, where the Court just decides the case on the basis of the certiorari filings. The Court does a handful of these a year, probably no more than a dozen. While I have no problem with the Court using its power to summarily reverse when appropriate, the Court seems to prioritize certain issues over others. As symposium co-participant Will Baude has shown, the Court has been eager to summarily reverse in cases where lower courts misapplied AEDPA by granting habeas relief. The Court has also been pretty eager to reverse in cases that denied qualified immunity to police-officer defendants. While there are potentially good reasons for the Justices to use their energies in this way, the problem is that the Court, as Will explains, doesn't explain why it is using its resources as it does. And that creates a possible inference that the Justices aren't applying an evenhanded standard ("summarily reverse if the decision below is really really wrong") but instead just think errors in one direction are more important than others. Justice Sotomayor herself recently accused her colleagues of being inconsistent in the qualified immunity context, noting the "disturbing trend regarding the use of this Court’s resources" that it has "not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force" while it "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." 

The objection, to be clear, doesn't go to the merits of the Court's decisions summarily reversing; most of them seem right on the law and perhaps even uncontroversially so. The objection is that by only summarily reversing for certain kinds of errors but not others, the Court subtly pushes the law in one direction without explaining what it's doing. I don't think LeBlanc makes that problem worse. But it is yet another state-on-top AEDPA reversal.  So it may signal that, with Justice Gorsuch aboard, the Court's summary reversal practices aren't changing anytime soon. 

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]