Winter is an ideal time to look both back and forward at the U.S. Supreme Court. The October 2020 term is in the books, with the Court issuing the last of its opinions for that term this past summer. And the October 2021 term is in full swing, with the Court hearing arguments on a new slate of cases.
This article reviews the term that was and previews the current term, focusing on cases from the U.S. Court of Appeals for the Sixth Circuit. Our home circuit saw five cases from the October 2020 term go to the Supreme Court — all reversals. When this article was submitted for publication, another five Sixth Circuit cases were on the October 2021 term docket. These cases offer something for everyone: jurisdictional questions, the perennial Armed Career Criminal Act cases, administrative law matters, statutory interpretation issues, and habeas cases.
October Term 2020 Decisions
Brownback v. King, No. 19-546
Brownback addresses a question on judgments: Can a dismissal for lack of subject matter jurisdiction operate as a final judgment on the merits? Ordinarily, the answer is no, but Brownback addresses an exception to that rule.
To understand why, some background is required. Brownback involved the Federal Tort Claims Act, which waives sovereign immunity for claims of injury caused by federal employees acting within the scope of their employment.1 Federal courts have “exclusive jurisdiction” over such claims,2 but the statute cuts off liability for the federal employees themselves once the case against the government has been resolved — a “judgment in an action” against the government “shall constitute a complete bar to any action . . . against the employee of the government whose act or omission gave rise to the claim,”3 and “this judgment must have been a final judgment on the merits to trigger the bar . . . .”4
James King alleged that two members of a federal task force — Todd Allen and Douglas Brownback — mistook him for a fugitive and injured him in a violent encounter. King brought claims against the federal government as well as Allen and Brownback. The district court dismissed the claims.5 28 USC 1346 creates jurisdiction only for claims where the government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” On summary judgment, the district court found that the government would not have been liable under Michigan law (“where the act or omission occurred”) and held that it lacked subject matter jurisdiction with respect to King’s claims against the government. The district court dismissed the claims against the officers for other reasons.6
Then things got weird, procedurally speaking. King appealed the district court’s judgment only against the officers. The officers argued that the judgment bar blocked further action on the claim because there was a final (and now unappealable) “judgment in an action” against the government. The Sixth Circuit disagreed, holding that because the district court did not have subject matter jurisdiction over the claim against the government, there was no judgment on the merits that could bar King’s claims against the officers.7
The Supreme Court agreed that the district court’s dismissal was for lack of jurisdiction but held that the judgment bar still applies. The Court acknowledged that “[o]rdinarily, a court cannot issue a ruling on the merits ‘when it has no jurisdiction’ because ‘to do so is, by very definition, for a court to act ultra vires.’”8 But in some circumstances, the subject matter jurisdiction inquiry merges with the merits. Section 1346 falls into that category of merits-driven jurisdictional inquiries by framing the jurisdictional question, in part, on whether “a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”9 Hence, even though the district court dismissed King’s claims for lack of subject matter jurisdiction, the dismissal was also a “judgment on the merits” sufficient to trigger the judgment bar. By failing to appeal that dismissal, King necessarily cut off his right to pursue claims against the government employees.
There are both narrow and broader lessons in Brownback’s holding. The narrow lesson is that if you bring a claim under the Federal Tort Claims Act against the government and government employees, be sure to appeal any loss against both parties. The broader lesson is that while we think of jurisdictional rulings as not being on the merits, that’s not always so. Substance and context matter, and sometimes a jurisdictional inquiry includes the merits.
Niz-Chavez v. Garland, No. 19-863
Niz-Chavez is an immigration law case that exists because of a peculiar government practice. Immigration laws provide the executive branch discretion to “allow otherwise removable aliens to remain in the country.”10 However, the statute imposes conditions on that discretion. One is that the alien must have been continuously present in the United States for at least 10 years.11 In 1996, Congress further conditioned the 10-year minimum: The clock stops counting when the alien has been served with “a notice to appear” for a removal hearing. The statute requires the notice to contain specific information including the nature of the charges, the consequences of failing to appear, and the date and time of the proceeding.12
The government, however, is not always a well-oiled machine. For a time, the government omitted the date and time of the proceeding from notices to appear. The Supreme Court held in Pereira v. Sessions, 138 S. Ct. 2105 (2018) that these incomplete notices did not stop the 10-year clock. After Pereira, the government began sending the required information piecemeal, sending one notice with the charge, another with the date, etc. Some circuit courts rejected this approach, holding that the 10-year clock does not stop running until the government sends a single notice with all required information. In Nix-Chavez, the Sixth Circuit joined the other side of the split, holding that the clock stops running once the government supplies all necessary information, whether in one notice or several.
A divided Supreme Court reversed. A written notice means one notice, the Court held,13 so the clock does not stop running until the government serves a document containing all required information. The opinion of the Court (written by Justice Neil Gorsuch) and the dissent (written by Justice Brett Kavanaugh) are interesting studies in textualism. Both opinions rely on ordinary meaning and plain language and draw from the provision’s text and structure but reach opposite conclusions. Practitioners with cases that turn on questions of statutory interpretation will do well to study both opinions, because together they gather a who’s who of statutory interpretation citations and canons.14 Plus, 41 pages of analysis of a single article is a linguist’s dream.
CIC Services, LLC v. IRS, No. 19-930
The Anti-Injunction Act prohibits lawsuits “for the purpose of restraining the assessment of any tax . . . .”15 Someone who wants to challenge a tax must pay it first. CIC Services applies the Anti-Injunction Act to unusual facts — the IRS promulgated a notice that required tax advisor companies to report certain transactions or pay a tax penalty if they failed to do so. CIC sued to invalidate the notice, arguing that it was promulgated without notice and comment in violation of the Administrative Procedures Act. The district court dismissed the suit, holding that the Anti-Injunction Act prohibited it. The Sixth Circuit affirmed, holding that the suit would restrain the tax penalty. To challenge the notice, CIC had to violate the reporting requirement, incur the penalty, pay the penalty, and then challenge it.16
A unanimous Supreme Court reversed.17 The purpose of CIC’s suit was to challenge the reporting requirement, not the tax penalty attached to violations of that requirement, and CIC had no tax liability to enjoin because it had not yet violated the notice. To be sure, the Court drew a line between CIC’s suit (which had the purpose of overturning the notice) and suits targeting so-called regulatory taxes (taxes on certain behaviors.) The former targets a reporting requirement; the latter targets a tax. So, had the Internal Revenue Service (IRS) imposed a tax on microcaptive transactions themselves as opposed to requiring companies to report those transactions, that would be a regulatory tax the Anti-Injunction Act would bar. But by inserting a reporting requirement, the IRS gave CIC a target for a suit not shielded by the Anti-Injunction Act.
Borden v. United States, No. 19-5410
The Armed Career Criminal Act, which provides sentencing enhancements for felons who commit crimes with firearms, makes perennial appearances in the Supreme Court.18 Rarely do those appearances end well for the act. Borden considered whether reckless conduct qualifies as a violent felony under the Act’s elements clause, which defines “violent felony” to include an offense that involves “the use, attempted use, or threatened use of physical force against the person of another.”19
Borden had a prior conviction for reckless aggravated assault. The district court held that this conviction was a violent felony under the elements clause. The Sixth Circuit affirmed based on its prior precedent but noted that later decisions had been critical of that precedent. The Sixth Circuit panel noted, however, that “[a]bsent an intervening decision by the Supreme Court or this court sitting en banc,” it was bound by Sixth Circuit precedent.20
If that was an invitation, the Supreme Court accepted it. A plurality of the Court held that recklessness is not the “use of physical force against the person of another . . . [and] the ‘use of force’ demands that the perpetrator direct his action at, or target, another individual.”21 Because the use of force must be against another, the statute requires intentionally directed force to an individual. Reckless crimes do not meet that requirement.
The most interesting thing about Borden is the groupings of justices. Four justices formed the plurality. Justice Clarence Thomas joined the plurality’s judgment but none of its reasoning. Instead, Thomas would have held that the use of force excludes reckless acts, an interpretation foreclosed by the Court’s earlier opinion in Voisine v. United States.22 Finally, four justices formed a dissent that followed Voisine and disagreed that the words “against another” exclude reckless conduct.23 So, if you’re keeping score at home, that’s eight justices who follow Voisine and think use of force includes reckless conduct and five justices who think “against another” includes reckless conduct. Despite all of that, Borden wins!
Mays v. Hines, No. 20-507
Mays v. Hines is a habeas case. Over a dissent, the Sixth Circuit granted post-conviction relief to Anthony Hines. The Supreme Court summarily reversed.24 Hines’s post-conviction counsel urged that his trial counsel should have pinned the murder on another man (an argument that trial counsel alluded to but did not forcefully make.) In state court post-conviction proceedings, the court determined that trial counsel was aware of the possible argument but found no prejudice to Hines because evidence of Hines’s guilt was overwhelming.25 Emphasizing the deference due to the state court’s finding and the evidence of Hines’s guilt in the record, the Supreme Court reversed the Sixth Circuit’s grant of post-conviction relief.26
October 2021 Term
Five cases from the Sixth Circuit await decision from the Supreme Court as part of its current term.
Babcock v. Kijakazi involves rules concerning Social Security benefits.27 When a person retires, the Social Security Administration calculates the statutory benefits owed by the government. The statute reduces benefits if the person gets retirement benefits from a job for which the person did not take a deduction in his paycheck to fund Social Security. But there is an exception in the statute for payments “based wholly on service as a member of a uniformed service.”28 The question presented in Babcock asks how that exception applies to “dual-status military technicians” — employees paid as civilians but required to maintain a membership in the National Guard. In other words, is civilian work performed by workers required to hold a military rank “based wholly on service as a member of a uniformed service?” The Sixth Circuit held it was not. Oral arguments were held in the Supreme Court on October 13; questions from the justices revealed little about how the case will come out.29
Cameron v. EMW Women’s Surgical Center concerns a statute regulating abortions in Kentucky.30 The issue before the Supreme Court, however, is purely procedural. For two years, Kentucky’s secretary of cabinet for health and family services defended a statute with attorneys from the Kentucky Attorney General’s office representing the secretary. The Sixth Circuit upheld a permanent injunction against the statute and the secretary decided to stop litigating, but the attorney general did not. Relying on a Kentucky law, the attorney general moved to intervene. The Sixth Circuit denied the motion.31 A few days later, the Supreme Court decided June Medical Services, L.L.C. v. Russo.32 The attorney general filed a motion for rehearing based on June, but the Sixth Circuit rejected the filing. In the Supreme Court, the focus at oral argument was on the request for intervention, and the Court seems likely to permit it.33
The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted in 1996.34 Twenty-five years on, it still generates novel questions of law. Brown v. Davenport will address such a question.35 To obtain reversal of a criminal conviction based on constitutional violation, the Supreme Court requires a defendant to establish that a constitutional violation was not harmless. In 1993, Brecht v. Abrahamson held that a habeas petitioner must meet a special requirement and demonstrate “actual prejudice” from a constitutional violation to obtain habeas relief from a state conviction.36 In 1996, Congress passed AEDPA requiring state prisoners to prove that a state court’s adjudication of a constitutional claim “was contrary to, or involved an unreasonable application of, clearly established Federal law. . ..” A question remains regarding the interplay of Brecht with this provision: Must a prisoner prove that he suffered both “actual prejudice” and that the state court’s finding of no “harmless error” violated clearly established federal law? That confluence of opinions and statutes generated a 2-1 split from the panel in the Sixth Circuit and an 8-7 vote refusing to hear the case en banc.37 Oral arguments offered few clues on how the Supreme Court would untangle this knot.
Wooden v. United States involves . . . wait for it . . . the Armed Career Criminal Act.38 This time, the question is whether offenses committed sequentially in time but as part of a single criminal spree are “committed on occasions different from one another” for purposes of a sentencing enhancement. The Sixth Circuit answered yes.39 Briefing and oral argument suggest that this will be another exercise in statutory interpretation with the justices focused on the meaning of the word “occasion.”
Finally, the Court in November granted certiorari in Marietta Memorial Hospital v. Davita Inc.40 The case will take the justices deep into the Byzantine world of Medicare reimbursement and its application to patients with a particular condition: end-stage renal disease. Many individuals receive health coverage from a mixture of both private insurers and Medicare. In the early 1980s, Congress determined insurers were denying coverage when they knew Medicare would cover a condition. To avoid this deliberate push from private to public coverage, Congress amended the Medicare Secondary Payers Act to curtail the practice.41 For certain periods, a private insurer is forbidden from taking into account an end-stage renal dialysis patient’s Medicare coverage when determining its own coverage.42 Marietta involves a health care plan that provides uniform reimbursement for all dialysis treatments — according to the allegations, the reimbursement rates are particularly poor compared to the rest of the plan’s benefits. The district court held that this was not the sort of discrimination prohibited by the Secondary Payers Act. The Sixth Circuit disagreed, holding that the Secondary Payers Act prohibits both direct and indirect discrimination of end-stage renal dialysis patients.43 In other words, even though the plan had not explicitly singled out individuals with end-stage renal dialysis for differential treatment, the plan had, through its rate setting for all dialysis patients, achieved the same effect.44