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 Opinions! One unanimous and unanimous other than Thomas; noncontroversial day.JOHN STURGEON, PETITIONER v. BERT FROST, IN HIS OFFICIAL CAPACITY AS ALASKA REGIONAL DIRECTOR OF THE NATIONAL PARK SERVICE, ET AL. Holding / Majority Opinion: Sturgeon’s case raises the issue how much “Alaska is different” from the rest of the country—how much it is “the exception, not the rule.” The rule, just as the rangers told Sturgeon, is that the Park Service may regulate boating and other activities on waters within national parks—and that it has banned the use of hovercrafts there. But Sturgeon claims that Congress created an Alaska-specific exception to that broad authority when it enacted the Alaska National Interest Lands Conservation Act (ANILCA). In Alaska, Sturgeon argues, the Park Service has no power to regulate lands or waters that the Federal Government does not own; rather, the Service may regulate only what ANILCA calls “public land” (essentially, federally owned land) in national parks. And, Sturgeon continues, the Federal Government does not own the Nation River—so the Service cannot ban hovercrafts there. When we last faced that argument, we disagreed with the reason the lower courts gave to reject it. But we remanded the case for consideration of two remaining questions. First, does “the Nation River qualif[y] as ‘public land’ for purposes of ANILCA”? Second, “even if the [Nation] is not ‘public land,’” does the Park Service have authority to “regulate Sturgeon’s activities” on the part of the river in the Yukon-Charley? Today, we take up those questions, and answer both “no.” That means Sturgeon can again rev up his hovercraft in search of moose. ... The United States purchased Alaska from Russia in 1867....For 90 years after buying Alaska, the Federal Government owned all its land….By the 1950s, Alaskans hankered for both statehood and land—and Congress decided to give them both….The 1958 Alaska Statehood Act, 72 Stat. 339, made Alaska the country’s 49th State. And because the new State would need property—to propel private industry and create a tax base—the Statehood Act made a land grant too. Over the next 35 years, Alaska could select for itself 103 million acres of “vacant, unappropriated, and unreserved” federal land—an area totaling the size of California. … But the State’s bonanza provoked land claims from Alaska Natives. Their ancestors had lived in the area for thousands of years, and they asserted aboriginal title to much of the property the State was now taking (and more besides). When their demands threatened to impede the trans-Alaska pipeline, Congress stepped in. The Alaska Native Claims Settlement Act of 1971 (ANCSA) extinguished the Natives’ aboriginal claims. But it granted the Natives much in return. Under the law, corporations organized by groups of Alaska Natives could select for themselves 40 million acres of federal land—equivalent, when combined, to all of Pennsylvania. … Congress enacted a third major piece of legislation allocating land in Alaska. We thus reach ANILCA, the statute principally in dispute in this case, in which Congress set aside extensive land for national parks and preserves—but on terms different from those governing such areas in the rest of the country....ANILCA sought to “balance” two goals, often thought conflicting. The Act was designed to “provide[] sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” Ibid. “[A]nd at the same time,” the Act was framed to “provide[] adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” ... ANILCA set aside 104 million acres of federally owned land in Alaska for preservation purposes….In sketching those units’ boundary lines, Congress made an uncommon choice—to follow “topographic or natural features,” rather than enclose only federally owned lands….The upshot was a vast set of so-called inholdings—more than 18 million acres of state, Native, and private land—that wound up inside Alaskan system [park] units. Had Congress done nothing more, those inholdings could have become subject to many Park Service rules— the same kind of “restrictive federal regulations” Alaskans had protested in the years leading up to ANILCA (and further back too)...Congress thus acted, as even the Park Service agrees, to give the State and Natives “assurance that their [lands] wouldn’t be treated just like” federally owned property. ... Section 103(c) provides in full: “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after [the date of ANILCA’s passage], are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.” §3103(c). ... The term “land,” as found in all three sentences, actually—and crucially for this case—“means lands, waters, and interests therein.” The term “public lands,” in the first two sentences, then means “lands” (including waters and interests therein) “the title to which is in the United States”— except for lands selected for future transfer to the State or Native Corporations (under the Statehood Act or ANCSA). “Public lands” are therefore most but not quite all lands (and again, waters and interests) that the Federal Government owns. ... Section 103(c)’s first sentence makes clear that only public lands (again, defined as most federally owned lands, waters, and associated interests) would be considered part of a system unit (again, just meaning a national park, preserve, or similar area). By contrast, state, Native, or private lands would not be understood as part of such a unit, even though they in fact fall within its geographic boundaries. Section 103(c)’s second sentence then expressly exempts all those non-public lands (the inholdings) from certain regulations—though exactly which ones, as will soon become clear, is a matter of dispute. And last, Section 103(c)’s third sentence enables the Secretary to buy any inholdings. If he does, the lands (because now public) become part of the park, and may be administered in the usual way—e.g., without the provision’s regulatory exemption. … We can now return to John Sturgeon, on his way to a hunting ground alternatively dubbed “Moose Meadows” or “Sturgeon Fork.” As recounted above, Sturgeon used to travel by hovercraft up a stretch of the Nation River that lies within the boundaries of the Yukon-Charley Preserve. ... We first address whether, as the Ninth Circuit found, the Nation River is “public land” under ANILCA. As defined, once again, that term means (almost all) “lands, waters, and interests therein” the “title to which is in the United States.”...But the United States does not have “title” (as the just-quoted definition demands) to the Nation River in the ordinary sense. As the Park Service acknowledges, running waters cannot be owned—whether by a government or by a private party….[T]he Submerged Lands Act gives each State “title to and ownership of the lands beneath [its] navigable waters.” 43 U. S. C. §1311; see supra, at 4. That means Alaska, not the United States, has title to the lands beneath the Nation River. So the Park Service argues instead that the United States has “title” to an “interest” in the Nation River, under what is called the reserved-water-rights doctrine….That argument first raises the question whether it is even possible to hold “title,” as ANILCA uses the term, to reserved water rights....But even assuming so, the Nation River itself would not thereby become “public land” in the way the Park Service argues. Under ANILCA’s definition, the “public land” at issue would consist only of the Federal Government’s specific “interest” in the River—that is, its reserved water right….Even if the United States holds title to a reserved water right in the Nation River, that right (as opposed to title in the River itself) cannot prevent Sturgeon from wafting along the River’s surface toward his preferred hunting ground. We thus move on to the second question we posed in Sturgeon I, concerning the Park Service’s power to regulate even non-public lands and waters within Alaska’s system units (or, in our unofficial terminology, national parks)....If Sturgeon lived in any other State, his suit would not have a prayer of success. As noted earlier, the Park Service has used its Organic Act authority to ban hovercrafts on navigable waters “located within [a national park’s] boundaries” without any “regard to . . . ownership.” And no one disputes that Sturgeon was driving his hovercraft on a stretch of the Nation River (a navigable water) inside the borders of the Yukon-Charley (a national park). So case closed. Except that Sturgeon lives in Alaska. And as we have said before, “Alaska is often the exception, not the rule.” Here, Section 103(c) of ANILCA makes it so. As explained below, that section provides that even when non-public lands—again, including waters—are geographically within a national park’s boundaries, they may not be regulated as part of the park. And that means the Park Service’s hovercraft regulation cannot apply there. Lineup: Kagan, unanimous. Concurrence by Sotomayor. Other Opinions: Concurrence (Sotomayor): The Court decides that the Nation River is not parkland, and I join the Court’s opinion because it offers a cogent reading of §103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), 94 Stat. 2371, 16 U. S. C. §3101 et seq. I write separately to emphasize the important regulatory pathways that the Court’s decision leaves open for future exploration. The Court holds only that the National Park Service may not regulate the Nation River as if it were within Alaska’s federal park system, not that the Service lacks all authority over the Nation River. … Even though the Service may not apply its ordinary park rules to non-public areas like the Nation River, two sources of Service authority over navigable rivers remain undisturbed by today’s decision. First, as a default, the Service may well have authority to regulate out-of-park, nonpublic areas in the midst of parklands when doing so is necessary or proper to protect in-park, public areas—for instance, to ban pollution of the Nation River if necessary to preserve habitat on the riverbanks or to ban hovercraft use on that river if needed to protect adjacent public park areas. Nothing in ANILCA removes that power. Second, Congress most likely meant for the Service to retain power to regulate as parklands a particular subset of navigable rivers designated as “Wild and Scenic Rivers,” although that particular authority does not, by its terms, apply to the Nation River. Because the Court does not address these agency authorities, see ante, at 19, n. 5, 26–27, n. 10, I join its opinion. I also wish to emphasize, however, that the Court’s opinion introduces limitations on—and thus could engender uncertainty regarding—the Service’s authority over navigable rivers that run through Alaska’s parks. If this is not what Congress intended, Congress should amend ANILCA to clarify the scope of the Service’s authority. https://www.supremecourt.gov/opinions/18pdf/17-949_6kgn.pdf REPUBLIC OF SUDAN v. HARRISON ET AL. Holding / Majority Opinion: This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country. … If service is not possible under either of the first two methods, the third method, which is the one at issue in this case, may be used. This method calls for “sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” §1608(a)(3) … Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. Because respondents brought suit under the FSIA, they were required to serve Sudan with process under §1608(a). It is undisputed that service could not be made under §1608(a)(1) or §1608(a)(2), and respondents therefore turned to §1608(a)(3). At respondents’ request, the clerk of the court sent the service packet, return receipt requested, to: “Republic of Sudan, Deng Alor Koul, Minister of Foreign Affairs, Embassy of the Republic of Sudan, 2210 Massachusetts Avenue NW, Washington, DC 20008.” App. 172. The clerk certified that the service packet had been sent and, a few days later, certified that a signed receipt had been returned. The most natural reading of [§1608(a)(3)] is that service must be mailed directly to the foreign minister’s office in the foreign state. Although this is not, we grant, the only plausible reading of the statutory text, it is the most natural one. … A key term in §1608(a)(3) is the past participle “addressed.” A letter or package is “addressed” to an intended recipient when his or her name and “address” is placed on the outside of the item to be sent. And the noun “address,” in the sense relevant here, means “the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.”...Since a foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister and is not a place where the minister can customarily be found, the most common understanding of the minister’s “address” is inconsistent with the interpretation of §1608(a)(3) adopted by the court below and advanced by respondents. … Section 1608(a)(3)’s use of the term “dispatched” points in the same direction. To “dispatch” a communication means “to send [it] off or away (as to a special destination) with promptness or speed often as a matter of official business.”...A person who wishes to “dispatch” a letter to X will generally send it directly to X at a place where X is customarily found. The sender will not “dispatch” the letter in a roundabout way, such as by directing it to a third party who, it is hoped, will then send it on to the intended recipient. … A similar understanding underlies the venerable “mailbox rule.” As first-year law students learn in their course on contracts, there is a presumption that a mailed acceptance of an offer is deemed operative when “dispatched” if it is “properly addressed.” But no acceptance would be deemed properly addressed and dispatched if it lacked, and thus was not sent to, the offeror’s address (or an address that the offeror held out as the place for receipt of an acceptance). It is also significant that service under §1608(a)(3) requires a signed returned receipt, a standard method for ensuring delivery to the addressee....For all these reasons, we think that the most natural reading of §1608(a)(3) is that the service packet must bear the foreign minister’s name and customary address and that it be sent to the minister in a direct and expeditious way. And the minister’s customary office is the place where he or she generally works, not a far-flung outpost that the minister may at most occasionally visit. … Several related provisions in §1608 support this reading....One such provision is §1608(b)(3)(B). Section 1608(b) governs service on “an agency or instrumentality of a foreign state.” And like §1608(a)(3), §1608(b)(3)(B) requires delivery of a service packet to the intended recipient “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court.” But §1608(b)(3)(B), unlike §1608(a)(3), contains prefatory language saying that service by this method is permissible “if reasonably calculated to give actual notice.”...Because Congress included the “reasonably calculated to give actual notice” language only in §1608(b), and not in §1608(a), we resist the suggestion to read that language into §1608(a). … Section 1608(b)(2) similarly supports our interpretation of §1608(a)(3). Section 1608(b)(2) provides for delivery of a service packet to an officer or a managing or general agent of the agency or instrumentality of a foreign state or “to any other agent authorized by appointment or by law to receive service of process in the United States.” This language is significant for three reasons. First, it expressly allows service on an agent. Second, it specifies the particular individuals who are permitted to be served as agents of the recipient. Third, it makes clear that service on the agent may occur in the United States if an agent here falls within the provision’s terms. If Congress had contemplated anything similar under §1608(a)(3), there is no apparent reason why it would not have included in that provision terms similar to those in §1608(b)(2). ... Section 1608(c) further buttresses our reading of §1608(a)(3). Section 1608(c) sets out the rules for determining when service “shall be deemed to have been made.” For the first three methods of service under §1608(a), service is deemed to have occurred on the date indicated on “the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.” §1608(c)(2). The sole exception is service under §1608(a)(4), which requires the Secretary of State to transmit a service packet to the foreign state through diplomatic channels. Under this method, once the Secretary has transmitted the packet, the Secretary must send to the clerk of the court “a certified copy of the diplomatic note indicating when the papers were transmitted.” §1608(a)(4). And when service is effected in this way, service is regarded as having occurred on the transmittal date shown on the certified copy of the diplomatic note. §1608(c)(1). Under all these methods, service is deemed to have occurred only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under §1608(a)(4), where service is transmitted by the Secretary of State through diplomatic channels, there is presumably good reason to believe that the service packet will quickly come to the attention of a high-level foreign official, and thus service is regarded as having been completed on the date of transmittal. … The ordinary meaning of the “addressed and dispatched” requirement in §1608(a)(3) also has the virtue of avoiding potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations….If mailing a service packet to a foreign state’s embassy in the United States were sufficient for purposes of §1608(a)(3), then it would appear to be easier to serve the foreign state than to serve a person in that foreign state….It would be an odd state of affairs for a foreign state’s inhabitants to enjoy more protections in federal courts than the foreign state itself, particularly given that the foreign state’s immunity from suit is at stake. … Article 22(1) of the Vienna Convention provides: “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Since at least 1974, the State Department has taken the position that Article 22(1)’s principle of inviolability precludes serving a foreign state by mailing process to the foreign state’s embassy in the United States. In this case, the State Department has reiterated this view in amicus curiae briefs filed in this Court and in the Second Circuit. The Government also informs us that United States embassies do not accept service of process when the United States is sued in a foreign court, and the Government expresses concern that accepting respondents’ interpretation of §1608 might imperil this practice. We interpret §1608(a)(3) as it is most naturally understood: A service packet must be addressed and dispatched to the foreign minister at the minister’s office in the foreign state. Lineup: Alito, joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Dissent by Thomas. Other Opinions: Dissent (Thomas): The Court holds that service on a foreign state by certified mail under the Foreign Sovereign Immunities Act (FSIA) is defective unless the packet is “addressed and dispatched to the foreign minister at the minister’s office in the foreign state.” Ante, at 17 (emphasis added). This bright-line rule may be attractive from a policy perspective, but the FSIA neither specifies nor precludes the use of any particular address. Instead, the statute requires only that the packet be sent to a particular person—“the head of the ministry of foreign affairs.” Given the unique role that embassies play in facilitating communications between states, a foreign state’s embassy in Washington, D. C., is, absent an indication to the contrary, a place where a U. S. litigant can serve the state’s foreign minister. Because there is no evidence in this case suggesting that Sudan’s Embassy declined the service packet addressed to its foreign minister—as it was free to do—I would hold that respondents complied with the FSIA when they addressed and dispatched a service packet to Sudan’s Minister of Foreign Affairs at Sudan’s Embassy in Washington, D. C. Accordingly, I respectfully dissent. … I agree with the majority that §1608(a)(3) requires that the service packet be dispatched to an address for the foreign minister. The relevant question, in my view, is whether a foreign state’s embassy in the United States can serve as a place where the minister of foreign affairs may be reached by mail. Unlike the majority, I conclude that it can. … A foreign state’s embassy in Washington, D. C., is generally a place where a U. S. court can communicate by mail with the state’s foreign minister. Unless an embassy decides to decline packages containing judicial summonses— as it is free to do, both in individual cases or as a broader policy—a service packet addressed and dispatched to a foreign minister at the address of its embassy in the United States satisfies §1608(a)(3). … Of course, the FSIA does not impose a substantive obligation on the embassy to accept or transmit service of process directed to the attention of the foreign minister. A foreign state and its embassy are free to reject some or all packets addressed to the attention of the foreign minister. But, as detailed above, Sudan has pointed to nothing in the record suggesting that its embassy refused service, or that its embassy address was not a place at which its foreign minister could be reached. On these facts, I would hold that the service packet was properly “addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs.” … The Court focuses on the foreign minister’s “customary office” or “place of work,” ante, at 9, 7, but these terms appear nowhere in §1608. The FSIA requires that the service packet be “addressed and dispatched” to a particular person—“the head of the ministry of foreign affairs.” §1608(a)(3). It does not further require that the package be addressed and dispatched to any particular place. While I agree with the Court that sending the service packet to the foreign ministry is one way to satisfy §1608(a)(3), that is different from saying that §1608(a)(3) requires service exclusively at that location. The absence of a textual foundation for the majority’s rule is only accentuated when §1608(a)(3) is compared to §1608(a)(4), the adjacent paragraph governing service through diplomatic channels. Under that provision, the service packet must be “addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services.” Unlike §1608(a)(3), this provision specifies both the person to be served and the location of service. While not dispositive, the absence of a similar limitation in §1608(a)(3) undermines the categorical rule adopted by the Court. The Court offers three additional arguments in support of its position, but none justifies its bright-line rule. First, the Court offers a series of hypotheticals to suggest that the term “dispatched” not only contemplates a prompt shipment, but also connotes sending the letter directly to a place where the person is likely to be physically located. In my opinion, these hypotheticals are inapt. The unique role of an embassy in facilitating communications between sovereign governments does not have an analog in the hypotheticals offered by the majority. … Second, the Court notes that, under its rule, the effective date of service under §1608(c) will be closer in time to when the service packet reaches a foreign official who knows how to respond to the summons....An embassy is capable of quickly transmitting a summons to the foreign minister, whether electronically, by diplomatic bag, or by some other means. Any time lost in transmission is not significant enough to warrant the Court’s departure from the text of the statute. Third, the Court argues that allowing service at the embassy would make it easier to serve a foreign state than it is to serve a person in that foreign state under Federal Rule of Civil Procedure 4. I am not persuaded. Under the FSIA, service by mail is not effective until “the date of receipt indicated in the . . . signed and returned postal receipt.” §1608(c)(2). That is no more generous than practice under Rule 4, especially since the foreign minister need not accept service. ... Sudan also argues that allowing service by mail at an embassy would violate Article 22(1) of the VCDR. … Given the VCDR’s consistent use of “inviolability” to protect against physical intrusions and interference, and “immunity” to protect against judicial authority, Article 22(1)’s protection of the mission premises is best understood as a protection against the former. Thus, under the VCDR, the inviolability of the embassy’s premises is not implicated by receipt of service papers to any greater degree than it is by receipt of other mail. Cf. Reyes v. AlMalki, [2017] UKSC 61, ¶16 (holding that service via mail at the diplomatic residence—which is afforded the same level of protection as the mission premises under Article 30(1)—does not violate the VCDR). Because the method of service employed by respondents here complied with the FSIA, I would affirm the judgment of the Second Circuit. https://www.supremecourt.gov/opinions/18pdf/16-1094_3d94.pdf [internal citations inconsistently omitted throughout]
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Mar 26, 2019 17:27
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I'm glad Thomas is around to use a traditional19th century interpretation of what an ambassador plenipotentiary is regardless of modern communication making that moot.
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Mar 26, 2019 17:41
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Huh, i actually agree with Thomas on that ladt case. Doesn't happen too often
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Mar 26, 2019 17:45
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Alaska is a weird place. Much of it is undeveloped to this day and there are lots of little random enclaves of people that you can only get to either via long boat rides, or riding a seaplane that lands in a lake. Or, in this case, by travelling in a hovercraft up a river 
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Mar 26, 2019 18:57
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An embassy is where, by definition and tradition, most business with a foreign country is conducted. Why wouldn't an embassy be a valid location to mail their foreign minister? Yes, email and electronic messages have replaced most of that, but if you have to deliver paper its going to be the best place to do so. The embassy can forward it along through electronic means as necessary.
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Mar 26, 2019 18:59
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ilkhan posted:An embassy is where, by definition and tradition, most business with a foreign country is conducted. Why wouldn't an embassy be a valid location to mail their foreign minister? Because congress wrote the law that way.
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Mar 26, 2019 19:16
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The gerrymandering case was argued today. Last time it was punted for standing, but this time around it looks like they have to get into the merits. With a couple strong caveats: 1) Justices who may seem to be persuaded may actually be playing devil's advocate and will vote the other way and 2) Hope is a lie. Of all people, Justice Rapey McBeer seemed to be at least partially intrigued by the idea of striking down obvious gerrymanders, and he was focused on how the court could keep it just to that, and not having to go through a lot of maps every 10 years in his questioning. He also bluntly dismissed the GOP's arguments on standing and on "gerrymandering? No way, we drew these for nonpartisan reasons!" https://twitter.com/mcpli/status/1110585439017156615
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Mar 26, 2019 19:47
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e: meh. Thats not a great counter-example. It fits, but not a great example.
ilkhan fucked around with this message at 20:01 on Mar 26, 2019 |
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Mar 26, 2019 19:59
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Very cool, national parks in Alaska have been completely gutted. gently caress John sturgeon, he’s a rich rear end in a top hat from south anchorage, not some guy subsisting in the wild.
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Mar 26, 2019 20:46
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Kazak_Hstan posted:Very cool, national parks in Alaska have been completely gutted. Well the decision was unanimous so I guess blame Congress.
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Mar 27, 2019 00:10
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Did a case about hovercrafts seriously get to SCOTUS?
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Mar 27, 2019 00:22
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Besides the noise/wetland damage from hovercrafts after overturning Park Service's ability to regulate rivers running through Alaska National Parks, apparently the immediate concern is that the Federal government uses reserved water rights to justify regulating salmon fisheries in Alaska. US Fish and Wildlife's policy gives subsistence fishing priority during shortages, while Alaksa's Department of Fish and Game requires equal access. That means that weakening the reserved water rights argument reopens Federal regulation of salmon to challenge, and since Alaska salmon fisheries are increasingly overharvested could cause severe problems for subsistence fishing communities, at least without a legislative fix (good luck!).
Stickman fucked around with this message at 01:00 on Mar 27, 2019 |
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Mar 27, 2019 00:57
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Nissin Cup Nudist posted:Did a case about hovercrafts seriously get to SCOTUS? Nothing is a surprise after Morse v. Frederick.
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Mar 27, 2019 02:16
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The decision makes it pretty clear that Congress can fix this whenever it wants.
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Mar 27, 2019 02:53
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Nissin Cup Nudist posted:Did a case about hovercrafts seriously get to SCOTUS? Sort of. It's a case about Alaska park regulatory authority that just happened to have a hovercraft in play. Stickman posted:Besides the noise/wetland damage from hovercrafts after overturning Park Service's ability to regulate rivers running through Alaska National Parks, apparently the immediate concern is that the Federal government uses reserved water rights to justify regulating salmon fisheries in Alaska. Sotomayor tried to give a couple of options for ongoing river regulation other than reserved water rights in the concurrence. rjmccall posted:The decision makes it pretty clear that Congress can fix this whenever it wants. Narrator voice: Congress did not want.
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Mar 27, 2019 03:22
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rjmccall posted:The decision makes it pretty clear that Congress can fix this whenever it wants. This Congress?
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Mar 27, 2019 03:49
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ulmont posted:Sotomayor tried to give a couple of options for ongoing river regulation other than reserved water rights in the concurrence. Yeah, I saw that. Unfortunately, they seem pretty NPS-specific, so I'm not sure how they could apply to Fish and Wildlife Service. It looks like that authority was cemented by Katie John v Norton in 94, where the judge ruled that the Secretary of Interior could manage public lands and waters when the state management was out of compliance with the Alaska National Interest Lands Conservation Act, and the regulatory right was restricted to waters where the US had reserved water rights. So if reserved water rights do not inherently provide Federal regulatory power, then it seems like the 9th Circuit's Katie John decision is on shaky ground? I think I'm summarizing that correctly.
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Mar 27, 2019 05:24
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Kazak_Hstan posted:gently caress John sturgeon, he’s a rich rear end in a top hat from south anchorage, not some guy subsisting in the wild. Yeah 'hovercraft' pretty much gave that away
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Mar 27, 2019 06:42
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Opinion! One 6-2 opinion (Thomas and Gorsuch); noncontroversial day. LORENZO v. SECURITIES AND EXCHANGE COMMISSION Holding / Majority Opinion: Securities and Exchange Commission Rule 10b–5 makes it unlawful: “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact . . . , or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit . . . in connection with the purchase or sale of any security.” In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135 (2011), we examined the second of these provisions, Rule 10b–5(b), which forbids the “mak[ing]” of “any untrue statement of a material fact.” We held that the “maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” ... In this case, we consider whether those who do not “make” statements (as Janus defined “make”), but who disseminate false or misleading statements to potential investors with the intent to defraud, can be found to have violated the other parts of Rule 10b–5, subsections (a) and (c), as well as related provisions of the securities laws. We believe that they can. … Francis Lorenzo, the petitioner, was the director of investment banking at Charles Vista, LLC, a registered broker-dealer in Staten Island, New York. Lorenzo’s only investment banking client at the time was Waste2Energy Holdings, Inc., a company developing technology to convert “solid waste” into “clean renewable energy.” In a June 2009 public filing, Waste2Energy stated that its total assets were worth about $14 million. This figure included intangible assets, namely, intellectual property, valued at more than $10 million. Lorenzo was skeptical of this valuation, later testifying that the intangibles were a “dead asset” because the technology “didn’t really work.” ... In early October 2009, Waste2Energy publicly disclosed, and Lorenzo was told, that its intellectual property was worthless, that it had “‘“[w]rit[ten] off . . . all [of its] intangible assets,”’” and that its total assets (as of March 31, 2009) amounted to $370,552. Shortly thereafter, on October 14, 2009, Lorenzo sent two e-mails to prospective investors describing the debenture [debt secured by earning power, not assets] offering. According to later testimony by Lorenzo, he sent the e-mails at the direction of his boss, who supplied the content and “approved” the messages. The e-mails described the investment in Waste2Energy as having “3 layers of protection,” including $10 million in “confirmed assets.” The e-mails nowhere revealed the fact that Waste2Energy had publicly stated that its assets were in fact worth less than $400,000. Lorenzo signed the e-mails with his own name, he identified himself as “Vice President—Investment Banking,” and he invited the recipients to “call with any questions.” In 2013, the Securities and Exchange Commission instituted proceedings against Lorenzo (along with his boss and Charles Vista). The Commission charged that Lorenzo had violated Rule 10b–5, §10(b) of the Exchange Act, and §17(a)(1) of the Securities Act. Ultimately, the Commission found that Lorenzo had run afoul of these provisions by sending false and misleading statements to investors with intent to defraud. … Lorenzo then filed a petition for certiorari in this Court. We granted review to resolve disagreement about whether someone who is not a “maker” of a misstatement under Janus can nevertheless be found to have violated the other subsections of Rule 10b–5 and related provisions of the securities laws, when the only conduct involved concerns a misstatement. … It would seem obvious that the words in these provisions are, as ordinarily used, sufficiently broad to include within their scope the dissemination of false or misleading information with the intent to defraud. By sending emails he understood to contain material untruths, Lorenzo “employ[ed]” a “device,” “scheme,” and “artifice to defraud” within the meaning of subsection (a) of the Rule, §10(b), and §17(a)(1). By the same conduct, he “engage[d] in a[n] act, practice, or course of business” that “operate[d] . . . as a fraud or deceit” under subsection (c) of the Rule. Recall that Lorenzo does not challenge the appeals court’s scienter finding, so we take for granted that he sent the emails with “intent to deceive, manipulate, or defraud” the recipients. Under the circumstances, it is difficult to see how his actions could escape the reach of those provisions. Resort to dictionary definitions only strengthens this conclusion. … Lorenzo argues that, despite the natural meaning of these provisions, they should not reach his conduct. This is so, he says, because the only way to be liable for false statements is through those provisions that refer specifically to false statements. Other provisions, he says, concern “scheme liability claims” and are violated only when conduct other than misstatements is involved. Thus, only those who “make” untrue statements under subsection (b) can violate Rule 10b– 5 in connection with statements. (Similarly, §17(a)(2) would be the sole route for finding liability for statements under §17(a).) Holding to the contrary, he and the dissent insist, would render subsection (b) of Rule 10b–5 “superfluous.” The premise of this argument is that each of these provisions should be read as governing different, mutually exclusive, spheres of conduct. But this Court and the Commission have long recognized considerable overlap among the subsections of the Rule and related provisions of the securities laws. See Herman & MacLean v. Huddleston, 459 U. S. 375, 383 (1983) (“[I]t is hardly a novel proposition that” different portions of the securities laws “prohibit some of the same conduct” (internal quotation marks omitted)). … The idea that each subsection of Rule 10b–5 governs a separate type of conduct is also difficult to reconcile with the language of subsections (a) and (c). It should go without saying that at least some conduct amounts to “employ[ing]” a “device, scheme, or artifice to defraud” under subsection (a) as well as “engag[ing] in a[n] act . . . which operates . . . as a fraud” under subsection (c). … Coupled with the Rule’s expansive language, which readily embraces the conduct before us, this considerable overlap suggests we should not hesitate to hold that Lorenzo’s conduct ran afoul of subsections (a) and (c), as well as the related statutory provisions. Our conviction is strengthened by the fact that we here confront behavior that, though plainly fraudulent, might otherwise fall outside the scope of the Rule. Lorenzo’s view that subsection (b), the making-false-statements provision, exclusively regulates conduct involving false or misleading statements would mean those who disseminate false statements with the intent to cheat investors might escape liability under the Rule altogether. But using false representations to induce the purchase of securities would seem a paradigmatic example of securities fraud. We do not know why Congress or the Commission would have wanted to disarm enforcement in this way. … [Lorenzo and the dissent] contend that applying subsections (a) or (c) of Rule 10b–5 to conduct like his would render our decision in Janus (which we described at the outset, supra, at 1–2) “a dead letter,” post, at 9. But we do not see how that is so....We said nothing [in Janus] about the Rule’s application to the dissemination of false or misleading information. And we can assume that Janus would remain relevant (and preclude liability) where an individual neither makes nor disseminates false information—provided, of course, that the individual is not involved in some other form of fraud. Next, Lorenzo points to the statute’s “aiding and abetting” provision. 15 U. S. C. §78t(e). This provision, enforceable only by the Commission (and not by private parties), makes it unlawful to “knowingly or recklessly . . . provid[e] substantial assistance to another person” who violates the Rule. Lorenzo claims that imposing primary liability upon his conduct would erase or at least weaken what is otherwise a clear distinction between primary and secondary (i.e., aiding and abetting) liability. … We do not believe, however, that our decision creates a serious anomaly or otherwise weakens the distinction between primary and secondary liability. For one thing, it is hardly unusual for the same conduct to be a primary violation with respect to one offense and aiding and abetting with respect to another. John, for example, might sell Bill an unregistered firearm in order to help Bill rob a bank, under circumstances that make him primarily liable for the gun sale and secondarily liable for the bank robbery. … Congress intended to root out all manner of fraud in the securities industry. And it gave to the Commission the tools to accomplish that job. For these reasons, the judgment of the Court of Appeals is affirmed. Lineup: Breyer, joined by Roberts, Ginsburg, Alito, Sotomayor, and Kagan. Dissent by Thomas, joined by Gorsuch. Kavanaugh did not participate. Other Opinions: Dissent (Thomas, joined by Gorsuch): In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135 (2011), we drew a clear line between primary and secondary liability in fraudulent-misstatement cases: A person does not “make” a fraudulent misstatement within the meaning of Securities and Exchange Commission (SEC) Rule 10b–5(b)—and thus is not primarily liable for the statement—if the person lacks “ultimate authority over the statement.” Such a person could, however, be liable as an aider and abettor under principles of secondary liability. Today, the Court eviscerates this distinction by holding that a person who has not “made” a fraudulent misstatement can nevertheless be primarily liable for it. Because the majority misconstrues the securities laws and flouts our precedent in a way that is likely to have far-reaching consequences, I respectfully dissent. … Here, it is undisputed that Lorenzo did not engage in any conduct involving planning, scheming, designing, or strategizing, as Rule 10b–5(a) and §17(a)(1) require for a primary violation. He sent two e-mails drafted by a superior, to recipients specified by the superior, pursuant to instructions given by the superior, without collaborating on the substance of the e-mails or otherwise playing an independent role in perpetrating a fraud. That Lorenzo knew the messages contained falsities does not change the essentially administrative nature of his conduct here; he might have assisted in a scheme, but he did not himself plan, scheme, design, or strategize. In my view, the plain text of Rule 10b–5(a) and §17(a)(1) thus does not encompass Lorenzo’s conduct as a matter of primary liability. The remaining provision, Rule 10b–5(c), seems broader at first blush. But the scope of this conduct-based provision—and, for that matter, Rule 10b–5(a) and §17(a)(1)—must be understood in light of its codification alongside a prohibition specifically addressing primary liability for false statements. Rule 10b–5(b) imposes primary liability on the “make[r]” of a fraudulent misstatement. And §17(a)(2) imposes primary liability on a person who “obtain[s] money or property by means of ” a false statement. The conduct-based provisions of Rules 10b–5(a) and (c) and §17(a)(1) must be interpreted in view of the specificity of these false-statement provisions, and therefore cannot be construed to encompass primary liability solely for false statements. This view is consistent with our previous recognition that “each subparagraph of §17(a) ‘proscribes a distinct category of misconduct’” and “‘is meant to cover additional kinds of illegalities.’” The majority’s approach contradicts our precedent in two distinct ways. First, the majority’s opinion renders Janus a dead letter. In Janus, we held that liability under Rule 10b–5(b) was limited to the “make[r]” of the statement and that “[o]ne who prepares or publishes a statement on behalf of another is not its maker” within the meaning of Rule 10b– 5(b). It is undisputed here that Lorenzo was not the maker of the fraudulent misstatements. ... Second, the majority fails to maintain a clear line between primary and secondary liability in fraudulent-misstatement cases. Maintaining this distinction is important because, as the majority notes, there is no private right of action against mere aiders and abettors. … Instead of blurring the distinction between primary and secondary liability, I would hold that Lorenzo’s conduct did not amount to a primary violation of the securities laws and reverse the judgment of the Court of Appeals. Accordingly, I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1077_21o3.pdf
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Mar 27, 2019 15:54
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Great writeup. We're sure Gorsuch has a law degree, yes? Like, someone has actually held a letter from a school confirming he has one? There's a breakdown in his capacity to discriminate between aiding & abetting fraud versus willfully steering a conspiracy to defraud investors. The line he chooses to draw in the circumstances of the case between what is behavior of primary vs secondary liable parties comes across as BS, provided the plain facts of what Lorenzo did as described in the majority opinion are accurate.
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Mar 29, 2019 11:39
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Okay I'm not like, even a little knowledgeable about law so help me out. The dissent just appears to be saying Lorenzo is still guilty of breaking the law, just not primarily guilty. So like does that mean Thomas just thinks his punishment should be reduced or am I completely misunderstanding
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Mar 29, 2019 11:47
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Potato Salad posted:Great writeup. Sure but when your mommy was a Reagan lapdog you're going to get a degree regardless of how qualified you are(n't). mandatory lesbian posted:Okay I'm not like, even a little knowledgeable about law so help me out. The dissent just appears to be saying Lorenzo is still guilty of breaking the law, just not primarily guilty. So like does that mean Thomas just thinks his punishment should be reduced or am I completely misunderstanding It looks like they're trying to say "well his boss gave him the messaging, he just sent it and fully attached himself to information he completely knew to be false but he's only the messenger" which would be like a drug runner saying they knew the drugs were illegal they were just moving them for their druglord boss.
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Mar 29, 2019 12:21
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There is a difference in civil liability, but the guy composed fraudulent email himself-- deciding what template fraudulent information his boss had available would best suit the marks--and got approval from his boss before sending. He wasn't "just the drug runner patsy" because he selected his own routes.
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Mar 29, 2019 13:32
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mandatory lesbian posted:Okay I'm not like, even a little knowledgeable about law so help me out. The dissent just appears to be saying Lorenzo is still guilty of breaking the law, just not primarily guilty. So like does that mean Thomas just thinks his punishment should be reduced or am I completely misunderstanding Thomas thinks Lorenzo couldn't be sued by a private actor because (in Thomas's view) Lorenzo only helped someone else commit a fraud, but that only the government could bring any cases against him. So Lorenzo is aiding and abetting (secondary liability) rather than committing the fraud himself. The majority thinks "come on, man! He knew the statements were false even if he didn't make them himself, and then he sent them on to third parties!"
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Mar 29, 2019 15:30
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something's up! So last month, the Supreme Court lifted a stay of execution against Alabama despite Alabama refusing a request for an imam in the chamber: quote:JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting from grant of application to vacate stay. This month, the Supreme Court stayed a similar case against Texas ordering that execution had to be halted "unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution." quote:JUSTICE KAVANAUGH, concurring in grant of application (Thomas and Gorsuch would have denied the stay). Better late than never, I guess?
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Mar 29, 2019 15:35
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ulmont posted:
That's really weird. I wonder if Roberts was surprised by news coverage of the prior denial. Or just if it not being a muslim meant that his bigotry circuits didn't kick in quite as hard.
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Mar 29, 2019 15:38
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Hieronymous Alloy posted:That's really weird. I wonder if Roberts was surprised by news coverage of the prior denial. Or just if it not being a muslim meant that his bigotry circuits didn't kick in quite as hard. This truly is the question.
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Mar 29, 2019 15:42
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Hieronymous Alloy posted:That's really weird. I wonder if Roberts was surprised by news coverage of the prior denial. Or just if it not being a muslim meant that his bigotry circuits didn't kick in quite as hard. I'm not sure, but it might be one of those hyper-technical things that conservative judges love to latch on to when it suits them. I think in the Alabama case, the argument was that their chaplain was properly vetted not to be a security risk, and it wasn't really a policy to favor one religion over another, its just that the only guy qualified to (I guess not go crazy and attack the guards, lol) be there was the christian chaplain. That may have allowed the majority to go beep boop beep, ok sounds good, tough luck if you aren't christian. In this case the policy just straight-up says christians and muslims only, and thats a bridge too far. Either that, or perhaps 3 conservative judges really did change their mind in the last couple months, maybe surprised at the backlash.
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Mar 29, 2019 15:43
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Rigel posted:I'm not sure, but it might be one of those hyper-technical things that conservative judges love to latch on to when it suits them. I think in the Alabama case, the argument was that their chaplain was properly vetted not to be a security risk, and it wasn't really a policy to favor one religion over another, its just that the only guy qualified to (I guess not go crazy and attack the guards, lol) be there was the christian chaplain. That may have allowed the majority to go beep boop beep, ok sounds good, tough luck if you aren't christian. Ahhh, that makes sense then. So what probably happened here is 1) there's a technical difference they can latch onto, and 2) Roberts got surprised when the media called out his anti-muslim bigotry and is trying to walk it back
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Mar 29, 2019 15:45
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Hieronymous Alloy posted:Ahhh, that makes sense then. i mean, explicit vs implicit favoring of religion is also kind of a big technical difference - it appears to have really rubbed kavanaugh the wrong way because he wrote a separate concurrence to the one-paragraph stay with a footnote that's a bit  and makes me think he's on board with number 2 as wellquote:Under all the circumstances of this case, I conclude that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution.
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Mar 29, 2019 15:49
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Kav is just saying why it was ok to deny the stay three weeks early and not four.
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Mar 29, 2019 16:34
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I believe Texas made the same sort of “not on the approved list to be in the room” argument (interestingly, their approved list included an imam). The hyper-technical difference the conservative justices are latching on to is the timing: in the earlier case, the dude was supposedly informed of the procedure months before and just didn’t understand how it would work until just before the execution, whereas here the appeal was more immediate. Again, supposedly.
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Mar 29, 2019 16:51
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rjmccall posted:I believe Texas made the same sort of “not on the approved list to be in the room” argument (interestingly, their approved list included an imam). The hyper-technical difference the conservative justices are latching on to is the timing: in the earlier case, the dude was supposedly informed of the procedure months before and just didn’t understand how it would work until just before the execution, whereas here the appeal was more immediate. Again, supposedly. Ooo, sorry condemned muslim person. You should have realized that the law that explicitly allows your spiritual advisor to be present has been interpreted to mean "the jail's christian chaplain only". Better luck next time we execute you.
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Mar 29, 2019 17:13
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I just love providing criminals their rights on the basis of gut feeling timetables without any citable precedent on those imaginary timetables, golly.
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Mar 29, 2019 18:53
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In my highly partisan opinion, the incompetence of that dissent is
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Mar 29, 2019 19:07
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Potato Salad posted:the supreme Court is ostensibly here to clarify law. It isn't here to tie the practice of law to whether or not Gorsuch woke up that morning feeling like 3 or 4 weeks are long enough to provide for the inexpensive, harmless, but important act of letting someone talk to a clergyman before loving dying. That's pretty much an inevitable result of conservative "jurisprudence." It's been obvious that was the path we were on ever since the decisions in Masterpiece Cake Shop and Trump v. Hawaii came out in the same week. It's all motivated reasoning and that means there's no consistency.
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Mar 29, 2019 19:17
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rjmccall posted:I believe Texas made the same sort of “not on the approved list to be in the room” argument (interestingly, their approved list included an imam). The hyper-technical difference the conservative justices are latching on to is the timing: in the earlier case, the dude was supposedly informed of the procedure months before and just didn’t understand how it would work until just before the execution, whereas here the appeal was more immediate. Again, supposedly. Yeah, this is the 'difference'. In the Texas case he was denied a copy of the regs during the so called appropriate time to request someone not on the approved list and then filled a couple days before the execution and was told it was too late, he should have known and taken the necessary steps earlier.
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Mar 30, 2019 20:54
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Opinions! 1. Party-line death penalty case being pilloried in the news and with two dissents and two concurrences. 2. 6-3, again with Gorsuch and Ginsburg dissenting together. BUCKLEW v. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL. Holding / Majority Opinion: Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U. S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitutional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so. … 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new protocol. Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Bucklew now contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors— clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications. ... [In the 2015 Glossip case], the Court clarified that THE CHIEF JUSTICE’s plurality opinion in Baze was controlling under Marks v. United States, 430 U. S. 188 (1977). In doing so, it reaffirmed that an inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies “an alternative that is ‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’” Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in 2015 he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” App. 30, Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution. The district court allowed Mr. Bucklew “extensive discovery” on his new proposal. But even at the close of discovery in 2017, the district court still found the proposal lacking and granted the State’s motion for summary judgment. … We begin with Mr. Bucklew’s suggestion that the test for lethal injection protocol challenges announced in Baze and Glossip should govern only facial challenges, not as-applied challenges like his. In evaluating this argument, we first examine the original and historical understanding of the Eighth Amendment and our precedent in Baze and Glossip. We then address whether, in light of those authorities, it would be appropriate to adopt a different constitutional test for as-applied claims. The Constitution allows capital punishment.In fact, death was “the standard penalty for all serious crimes” at the time of the founding. Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a penalty, so long as proper procedures are followed. … While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse— punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” … Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. … Consistent with the Constitution’s original understanding, this Court in Wilkerson v. Utah, 99 U. S. 130 (1879), permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” … What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. ... This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite, exactly as Justice Story predicted...Still, accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner, how can a court determine when a State has crossed the line? THE CHIEF JUSTICE’s opinion in Baze, which a majority of the Court held to be controlling in Glossip, supplies critical guidance. It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. ... Before turning to the application of Baze and Glossip, however, we must confront Mr. Bucklew’s argument that a different standard entirely should govern as-applied challenges like his. He admits that Baze and Glossip supply the controlling test in facial challenges to a State’s chosen method of execution. But he suggests that he should not have to prove an alternative method of execution in his as-applied challenge because “certain categories” of punishment are “manifestly cruel . . . without reference to any alternative methods.” … The first problem with this argument is that it’s foreclosed by precedent. Glossip expressly held that identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. ... Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest. As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. … [W]e conclude Mr. Bucklew has failed for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol. First, an inmate must show that his proposed alternative method is not just theoretically “‘feasible’” but also “‘readily implemented.’” This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” Mr. Bucklew’s barebones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. … Second, and relatedly, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law. Rather than point to a proven alternative method, Mr. Bucklew sought the adoption of an entirely new method— one that had “never been used to carry out an execution” and had “no track record of successful use.” Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain. A minor reduction in risk is insufficient; the difference must be clear and considerable. Over the course of this litigation, Mr. Bucklew’s explanation why nitrogen hypoxia meets this standard has evolved significantly. But neither of the two theories he has advanced in this Court turns out to be supported by record evidence. … Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning. ... The judgment of the court of appeals is Affirmed. Lineup: Gorsuch, joined by Roberts, Thomas, Alito, and Kavanaugh. Concurrence by Thomas. Concurrence by Kavanaugh. Dissent by Breyer, joined by Ginsburg, Sotomayor, and Kagan (other than Part III for all). Dissent by Sotomayor. Other Opinions: Concurrence (Thomas): I adhere to my view that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there. Nonetheless, I join the Court’s opinion in full because it correctly explains why Bucklew’s claim fails even under the Court’s precedents. … Contrary to JUSTICE BREYER’s suggestion, my view does not render the Eighth Amendment “a static prohibition” proscribing only “the same things that it proscribed in the 18th century.” A method of execution not specifically contemplated at the founding could today be imposed to “superad[d]” “terror, pain, or disgrace.” Concurrence (Kavanaugh): When an inmate raises an as-applied constitutional challenge to a particular method of execution—that is, a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain—one question is whether the inmate must identify an available alternative method of execution that would significantly reduce the risk of severe pain. Applying our recent decisions in Glossip v. Gross, 576 U. S. ___ (2015), and Baze v. Rees, 553 U. S. 35 (2008) (plurality opinion), the Court’s answer to that question is yes. Under those precedents, I agree with the Court’s holding and join the Court’s opinion. I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision. Importantly, all nine Justices today agree on that point. Dissent (Breyer): The Court’s decision in this case raises three questions. The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering. The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him. And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death. I disagree with the majority’s answers to all three questions. Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies. That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering. The majority holds that the State may execute him anyway. In my view, that holding violates the clear command of the Eighth Amendment. … The State asked the District Court to grant summary judgment in its favor on the theory that Bucklew failed to identify a genuine factual issue regarding whether an execution by lethal injection would be impermissibly painful. The District Court refused. The court believed that Bucklew had adequately shown that for up to several minutes he “could be aware that he is choking or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.” Recognizing that the State’s evidence suggested that Bucklew would experience this choking sensation for a shorter period, the District Court concluded that the dispute between the experts was “a factual dispute that the Court cannot resolve on summary judgment, and would have to be resolved at trial.” The District Court was right. The evidence, taken in the light most favorable to Bucklew, creates a genuine factual issue as to whether Missouri’s lethal injection protocol would subject him to several minutes of “severe pain and suffering,” during which he would choke and suffocate on his own blood. In my view, executing Bucklew by forcing him to choke on his grossly enlarged uvula and suffocate on his blood would exceed “the limits of civilized standards.” The experts dispute whether Bucklew’s execution will prove as unusually painful as he claims, but resolution of that dispute is a matter for trial. … This case next presents a legal question. The Court in Glossip held in the context of a facial challenge to a State’s execution protocol that the plaintiffs were required not only to establish that the execution method gave rise to a “demonstrated risk of severe pain,” but also to identify a “known and available” alternative method. … The plaintiffs in Glossip undertook an across-the-board attack against the use of a particular execution method, which they maintained violated the Eighth Amendment categorically. In this case, by contrast, Bucklew does not attack Missouri’s lethal injection protocol categorically, or even in respect to any execution other than his own. Instead, he maintains that he is special; that he suffers from a nearly unique illness; and that, by virtue of that illness, Missouri’s execution method will be excruciatingly painful for him even though it would not affect others in the same way. These differences make a difference. First, these differences show that the reasons that underlie Glossip’s “alternative method” requirement do not apply here. The Glossip Court stressed the importance of preventing method-of-execution challenges from becoming a backdoor means to abolish capital punishment in general. … Second, precedent counsels against extending Glossip. Neither this Court’s oldest method-of-execution case, Wilkerson v. Utah, 99 U. S. 130 (1879), nor any subsequent decision of this Court until Glossip, held that prisoners who challenge a State’s method of execution must identify an alternative means by which the State may execute them. To the contrary, in Hill v. McDonough, 547 U. S. 573 (2006), the Court squarely and unanimously rejected the argument that a prisoner must “identif[y] an alternative, authorized method of execution.” … Third, the troubling implications of today’s ruling provide the best reason for declining to extend Glossip’s “alternative method” requirement. The majority acknowledges that the Eighth Amendment prohibits States from executing prisoners by “‘horrid modes of torture’” such as burning at the stake. But the majority’s decision permits a State to execute a prisoner who suffers from a medical condition that would render his execution no less painful. … Bucklew identified as an alternative method of execution the use of nitrogen hypoxia, which is a form of execution by lethal gas. Missouri law permits the use of this method of execution. Three other States—Alabama, Mississippi, and Oklahoma—have specifically authorized nitrogen hypoxia as a method of execution. And Bucklew introduced into the record reports from Oklahoma and Louisiana indicating that nitrogen hypoxia would be simple and painless. These reports summarized the scientific literature as indicating that there is “no reported physical discom[fort] associated with inhaling pure nitrogen,” App. 742, that the “onset of hypoxia is typically so subtle that it is unnoticeable to the subject,” id., at 745, and that nitrogen hypoxia would take an estimated “seventeen-to-twenty seconds” to render a subject unconscious, id., at 746–747. The Oklahoma study concluded that nitrogen hypoxia is “the most humane method” of execution available. Id., at 736. And the Louisiana study stated that the “[u]se of nitrogen as a method of execution can assure a quick and painless death of the offender.” Id., at 746. … [Here’s the part the other 3 dissenters didn’t join] Implicitly at the beginning of its opinion and explicitly at the end, the majority invokes the long delays that now typically occur between the time an offender is sentenced to death and his execution. Bucklew was arrested for the crime that led to his death sentence more than 20 years ago. And Bucklew’s case is not an anomaly. … Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante, at 8, the Constitution must allow capital punishment to occur quickly. … These conclusions do not follow. It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty. Dissent (Sotomayor): As I have maintained ever since the Court started down this wayward path in Glossip v. Gross, 576 U. S. ___ (2015), there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions. JUSTICE BREYER ably explains why today’s extension of Glossip’s alternative-method requirement is misguided (even on that precedent’s own terms), and why (with or without that requirement) a trial is needed to determine whether Missouri’s planned means of executing Russell Bucklew creates an intolerable risk of suffering in light of his rare medical condition. I join JUSTICE BREYER’s dissent, except for Part III. I write separately to address the troubling dicta with which the Court concludes its opinion. Given the majority’s ominous words about late-arising death penalty litigation, ante, at 29–30, one might assume there is some legal question before us concerning delay. Make no mistake: There is not. The majority’s commentary on once and future stay applications is not only inessential but also wholly irrelevant to its resolution of any issue before us. … There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness. https://www.supremecourt.gov/opinions/18pdf/17-8151_new_0pm1.pdf BIESTEK v. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Holding / Majority Opinion: The Social Security Administration (SSA) provides benefits to individuals who cannot obtain work because of a physical or mental disability. To determine whether an applicant is entitled to benefits, the agency may hold an informal hearing examining (among other things) the kind and number of jobs available for someone with the applicant’s disability and other characteristics. The agency’s factual findings on that score are “conclusive” in judicial review of the benefits decision so long as they are supported by “substantial evidence.” This case arises from the SSA’s reliance on an expert’s testimony about the availability of certain jobs in the economy. The expert largely based her opinion on private market-survey data. The question presented is whether her refusal to provide that data upon the applicant’s request categorically precludes her testimony from counting as “substantial evidence.” We hold it does not. … At Biestek’s hearing, the ALJ asked a vocational expert named Erin O’Callaghan to identify a sampling of “sedentary” jobs that a person with Biestek’s disabilities, education, and job history could perform. Tr. 59 (July 21, 2015); see 20 CFR §§404.1567(a), 416.967(a) (defining a “sedentary” job as one that “involves sitting” and requires “lifting no more than 10 pounds”). O’Callaghan had served as a vocational expert in SSA proceedings for five years; she also had more than ten years’ experience counseling people with disabilities about employment opportunities. In response to the ALJ’s query, O’Callaghan listed sedentary jobs “such as a bench assembler [or] sorter” that did not require many skills. And she further testified that 240,000 bench assembler jobs and 120,000 sorter jobs existed in the national economy. On cross-examination, Biestek’s attorney asked O’Callaghan “where [she was] getting those [numbers] from.” O’Callaghan replied that they came from the Bureau of Labor Statistics and her “own individual labor market surveys.” The lawyer then requested that O’Callaghan turn over the private surveys so he could review them. O’Callaghan responded that she wished to keep the surveys confidential because they were “part of [her] client files.” The lawyer suggested that O’Callaghan could “take the clients’ names out.” But at that point the ALJ interjected that he “would not require” O’Callaghan to produce the files in any form. Biestek’s counsel asked no further questions about the basis for O’Callaghan’s assembler and sorter numbers. … Today, Biestek argues that the testimony of a vocational expert who (like O’Callaghan) refuses a request for supporting data about job availability can never clear the substantial-evidence bar. As that formulation makes clear, Biestek’s proposed rule is categorical, rendering expert testimony insufficient to sustain an ALJ’s factfinding whenever such a refusal has occurred. … To assess Biestek’s proposal, we begin with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data…[I]f that is true, why should one additional fact—a refusal to a request for that data—make a vocational expert’s testimony categorically inadequate? Assume that an applicant challenges our hypothetical expert to turn over her supporting data; and assume the expert declines because the data reveals private information about her clients and making careful redactions will take a fair bit of time. Nothing in the expert’s refusal changes her testimony (as described above) about job availability. Nor does it alter any other material in the record. So if our expert’s opinion was sufficient—i.e., qualified as substantial evidence—before the refusal, it is hard to see why the opinion has to be insufficient afterward. … Where Biestek goes wrong, at bottom, is in pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. Sometimes an expert’s withholding of such data, when combined with other aspects of the record, will prevent her testimony from qualifying as substantial evidence. That would be so, for example, if the expert has no good reason to keep the data private and her testimony lacks other markers of reliability. But sometimes the reservation of data will have no such effect....The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. ... That much is sufficient to decide this case. Biestek petitioned us only to adopt the categorical rule we have now rejected. He did not ask us to decide whether, in the absence of that rule, substantial evidence supported the ALJ in denying him benefits. Accordingly, we affirm the Court of Appeals’ judgment. It is so ordered. Lineup: Kagan, joined by Roberts, Thomas, Breyer, Alito, and Kavanaugh. Dissent by Sotomayor. Dissent by Gorsuch, joined by Ginsburg. Other Opinions: Dissent (Sotomayor): The Court focuses on the propriety of a categorical rule that precludes private data that a vocational expert refuses to provide upon request from qualifying as “ ‘substantial evidence.’ ” I agree with JUSTICE GORSUCH that the question presented by this case encompasses an inquiry not just into the propriety of a categorical rule in such circumstances but also into whether the substantial-evidence standard was met in the narrower circumstances of Michael Biestek’s case. For the reasons that JUSTICE GORSUCH sets out, the vocational expert’s conclusory testimony in this case, offered without even a hint of support, did not constitute substantial evidence. … [A] Social Security proceeding is “inquisitorial rather than adversarial.” The ALJ acts as “an examiner charged with developing the facts,” and has a duty to “develop the arguments both for and against granting benefits,” Here, instead of taking steps to ensure that the claimant had a basis from which effective cross-examination could be made and thus the record could be developed, the ALJ cut off that process by intervening when Biestek’s counsel asked about the possibility of redaction. The result was that the expert offered no detail whatsoever on the basis for her testimony. She did not say whom she had surveyed, how many surveys she had conducted, or what information she had gathered, nor did she offer any other explanation of the data on which she relied. In conjunction with the failure to proffer the surveys themselves, the expert’s conclusory testimony alone could not constitute substantial evidence to support the ALJ’s fact-finding. … I agree with much of JUSTICE GORSUCH’s reasoning. I emphasize that I do not foreclose the possibility that a more developed record could justify an ALJ’s reliance on vocational-expert testimony in some circumstances even if the expert does not produce records underlying that testimony on request. An expert may have legitimate reasons for not turning over data, such as the burden of gathering records or confidentiality concerns that redaction cannot address. In those circumstances, as the majority suggests, the agency may be able to support an expert’s testimony in ways other than by providing underlying data, such as by offering a fulsome description of the data and methodology on which the expert relies. The agency simply did not do so here. Dissent (Gorsuch): Start with the legal standard. The Social Security Act of 1935 requires the agency to support its conclusions about the number of available jobs with “substantial evidence.” Congress borrowed that standard from civil litigation practice, where reviewing courts may overturn a jury verdict when the record lacks “substantial evidence”—that is, evidence sufficient to permit a reasonable jury to reach the verdict it did. Much the same standard governs summary judgment and directed verdict practice today. Next, consider what we know about this standard. Witness testimony that’s clearly wrong as a matter of fact cannot be substantial evidence. Falsified evidence isn’t substantial evidence. Speculation isn’t substantial evidence. And, maybe most pointedly for our purposes, courts have held that a party or expert who supplies only conclusory assertions fails this standard too. If clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence aren’t substantial evidence, the evidence here shouldn’t be either. The case hinges on an expert who (a) claims to possess evidence on the dispositive legal question that can be found nowhere else in the record, but (b) offers only a conclusion about its contents, and (c) refuses to supply the evidence when requested without showing that it can’t readily be made available. What reasonable factfinder would rely on evidence like that? … The refusal to supply readily available evidentiary support for a conclusion strongly suggests that the conclusion is, well, unsupported. Meanwhile, a similar inference may not arise if no one’s bothered to ask for the evidence, or if the evidence is shown to be unavailable for a good reason. In cases like those, there may be just too many other plausible and innocent excuses for the evidence’s absence. Maybe, for example, nobody bothered to seek the underlying data because everyone knew what it would show. Fine, the Court responds, all that’s true enough. But even if we accept that an expert’s failure to produce the evidence underlying her conclusion may support an inference that her conclusion is unsupported, that doesn’t mean such an inference must follow. Whether an inference is appropriate depends on the facts of the particular case. But what more do we need to know about the facts of this case? All of the relevant facts are undisputed, and it remains only to decide the legal question whether they meet the substantial evidence standard. We know that the expert offered a firm and exact conclusion about the number of available jobs. We know that the expert claimed to have private information to support her conclusion. We know Mr. Biestek requested that information and we have no reason to think any confidentiality concerns could not have been addressed. We know, too, that the hearing examiner had “no other reason to trust the expert[’s]” numbers beyond her say-so. Ibid. Finally and looking to the law, we know that a witness’s bare conclusion is regularly held insufficient to meet the substantial evidence threshold—and we know that the government hasn’t cited a single case finding substantial evidence on so little. This is exactly the sort of case where an adverse inference should “tip the scales.” … The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decision-making. Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice. Over 100 years ago, in ICC v. Louisville & Nashville R. Co., 227 U. S. 88 (1913), the government sought to justify an agency order binding private parties without producing the information on which the agency had relied. The government argued that its findings should be “presumed to have been supported.” In essence, the government sought the right to “act upon any sort of secret evidence.” This Court did not approve of that practice then, and I would not have hesitated to make clear that we do not approve of it today. I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1184_1b82.pdf [internal citations inconsistently omitted throughout]
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Apr 1, 2019 21:19
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That Berryhill opinion is really interesting. I *think* I agree with the majority. The problem in informal administrative hearings is that you generally have a lot less time to gather evidence and many fewer tools with which to do so. The rule seems unfair but there are going to be a lot of instances where plaintiffs and individuals can only assemble so much evidence by the hearing date and you don't want people to be kicked out of the hearing automatically just because they could only get nine of their ten ducks in a row in time.
Hieronymous Alloy fucked around with this message at 21:42 on Apr 1, 2019 |
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Apr 1, 2019 21:34
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Poor writing aside, that Gorsuch/RBG concurrence is objectively correct. Disability rejections like that are bullshit.
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Apr 1, 2019 21:36
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