Blog

This may be the most Breyer concurring opinion I’ve ever read, from RJR Nabisco, Inc. v. European Community:

Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view.

Do you see what’s going on? Because the Solicitor General could not represent the United States actually checked with foreign nations about the issue of extraterritoriality, and those foreign nations told the Court that the SG was wrong about their views, Breyer would not defer to the United States on a question of foreign relations! It’s come to this: the Supreme Court is second-guessing the State Department’s foreign policy interests because foreign nations tell the Supreme Court otherwise. Where’s Justice Scalia when you need him.

Three other bits about RJR Nabisco.

First, Justice Sotomayor was recused because she previously ruled on this case on the Second Circuit. The Court split 4-3 on the second question of whether a domestic-injury requirement should be read into RICO’s extraterritoriality reach. Presumably, if Sotomayor voted the same way she did as a Circuit Judge, the Court would have split 4-4 on this question. Now we get to determine whether a 4-3 decision is precedential. I do not know the answer to this question, but if other questions present the same issue are in the pipeline, where there are no recusals, this case may quickly go the other way.

Second, Justice Alito referenced then-Judge Sotomayor’s decision:

4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U. S. 1092 (2006). It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U. S. 349, 355, n. 1 (2005).

Third, Justice Ginsburg’s dissent referred to her colleague’s “sound judgment.”

I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment:

“To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ §1962, and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F. 3d, at 151 (quoting Sedima, 473 U. S., at 495; Holmes, 503 U. S., at 268)).

Because the Court overturns that judgment, I dissent.

This morning I praised Justice Kagan for using the goo.gl URL shortener in her opinion. Though these links are much more aesthetically pleasing, I was reminded by Mike Lissner that Google makes the analytics for its links publicly available. Let’s walk through this. The link was copied from the Respondent’s merits brief (p.2), so Justice Kagan didn’t create it. The link was created on November 30, 2015–two months after cert was granted, and four days before the petitioner filed its opening brief. This gives us a hint when the eager-beavers at Stuart Banner’s UCLA Law Clinic started working on the brief.

Google also indicates when, and how many times the link was clicked on. It was clicked twice on 12/1/15, shortly after it was created. The brief was filed on 1/22/16. The link was clicked twice on 1/31/16–perhaps by a curious clerk? The case was argued on 2/22/16. The link was clicked twice, again on 3/1/16. It was clicked once on 5/1/16. There was one click on 5/27/16. Perhaps when the dissent was circulated? On June 14 and 15, it was clicked once. Perhaps by the cite checkers in the printing office? And once it was published, it had over 40 clicks. Although 22% of those referrals came from my blog. 75% came from unknown, so presumably, those were clicks straight from the PDF itself.

If you’d like to learn more about the browser preference of #SCOTUS followers, 26 clicked with Chrome, 15 with Firefox, 3 with Safari, and one lonely Internet Explorer/Edge users. Windows users far outnumber Mac users: 24-15. And to make Justice Breyer happy, internationalists are interested–we had one click each from China, Germany, and Canada.

I suspect this will be the last time the Court uses a link shortener.

 

 

On June 20, I was a guest on Public Radio International’s To The Point with Warren Olney. I discussed the Supreme Court’s remaining cases with Bob Barnes, Erwin Chemerinsky, and Susan Hays. You can listen to the exchange here:

After today’s hand-down, there are eight outstanding decisions. The Court has scheduled a special sitting on Thursday, so the final day of the term will likely be on Monday. (They may add a special sitting on Friday, but that seems unnecessary with only seven cases left over).

Let’s play our favorite end-of-the-term game, guess the assignments! (Please note that I’ve tried this in the past, and do not have a particularly good track record, so read at your own peril). What complicates this further is the fact that opinions may have been assigned to Scalia, and then reassigned.

During the December sitting, ten cases were argued. So far, Kennedy has 1 , Thomas has 1, Ginsburg has 1, Alito has 1, Sotomayor has 1, Kagan has 1, and Breyer has 2. Roberts and Scalia have 0. Outstanding from the December sitting are Fisher v. University of Texas and Dollar General v. Choctaw. It is possible that one of Breyer’s decisions was originally assigned to Scalia, and it was reassigned to him afterwards. Breyer wrote Franchise Tax Box Board, a 6-2 decision released on 4/19, and Harris v. AZ, an 8-0 decision released on 4/20. If Scalia was originally in the majority in Franchise Tax Board, then he would have assigned the opinion, because the Chief was in dissent. Harris seems like an unlikely assignment for Scalia, as it is a unanimous voting rights decision–give it to the jurist who loves making Democracy work. So may guess is that Scalia was assigned Dollar General, which raises meaty issues of tribal court jurisdiction–something Nino can really sink his teeth into. If in fact Scalia was assigned Dollar General, that would mean the Chief Justice originally assigned himself Fisher–not Justice Kennedy. Perhaps there were finally five votes to reverse the Fifth Circuit–with an AMK concurring opinion like in Parents Involved? But, down to seven Justices, whatever the Chief may have had in mind for Fisher is probably not what will happen. So if I had to guess, the Chief will write in both Fisher and Dollar General.

(Update on December. A commenter reminded me that Franchise Tax Board divided 4-4 on the first question of whether Nevada v. Hall ought to be overruled. Then Justice Breyer’s opinion moved onto the second question, finding that Nevada’s taxation is unconstitutional. Roberts and Thomas were in dissent. So it is possible that Scalia assigned himself that opinion, and was the fifth vote. If there were five votes, there would be no need to reach the second question. But with Justice Scalia’s passing, Kennedy would have assigned Breyer had to write Part II of the opinion. In any event, I don’t think this affects my prediction that the Cheif will write Fisher. If Scalia originally had Franchise Tax Board, Dollar General may be assigned to someone else).

During the January sitting, nine cases were argued, seven were decided on the merits, Freidrichs v. California Teachers Association was affirmed on a four-to-four margin, and Duncan v. Owens was DIG’d eight days after it was argued. There are no outstanding cases. I can say with great certainty that Alito was slated to write Freidrichs, in light of his prior decisions in Knox v. SEIU and Harris v. Quinn. It was possible that Scalia was not assigned an opinion for this sitting–it happens with a DIG. In any event, nothing left to predict. But we can guess what could have been.

During the February sitting, 10 cases were argued. Only Voisine and Whole Women’s Health are outstanding. Both cases were argued after Justice Scalia’s passing, so predicting the authorship is even more complicated. So far from that sitting, Thomas and Alito have 2, and with one opinion are Roberts, Kennedy, Ginsburg, and Sotomayor. Breyer and Kagan have zero. Williams v. Pennsylvania (the 5-3 judicial bias case) and Whole Women’s Health were argued on the same week. Justice Kennedy was the most senior Justice in both cases. He kept Williams for himself. Could it be that Justice Kennedy assigned Whole Women’s Health to Kagan? And over Ginsburg, who was assigned Hughs v. Talen the week before? In that case, Breyer is stuck with Voisine, yet another 922(g) case.  My predictions: Kagan for Whole Women’s Health and Breyer for Voisine. 

All of the cases from the March sitting have been decided, so there is nothing left to predict. Notably, Ginsburg and Kennedy both had two opinions, and the rest had one.

This brings us to the April sitting, the final sitting of the term. There were ten cases argued, and there are four cases outstanding: US v. Texas, Birchfield v. ND, Mathis v. US, and McDonnell v. US. One opinion has been assigned to Thomas, Kennedy, Kagan, Breyer, Sotomayor, and Ginsburg. Kennedy wrote the majority opinion today in Encino v. Navarro. If this is is only June assignment, what a letdown from last year! With zero assignments are Roberts, Breyer, and Alito. I predict that Justice Breyer was assigned the opinion in McDonnell because he was very agitated during oral arguments against the federal prosecution, because it would make it harder for democracy to work. Flip a coin, and assign Birchfield or Mathis to Alito, and one other burdened Justice. I won’t lose any sleep over those.

And everyone knew how this Term would end. The Chief will announce the outcome in U.S. v. Texas. Either he writes a majority opinion ruling against Texas, or he announces the case is rescheduled for argument next term, or it is affirmed 4-4. I think the last option is the most unlikely. If the Court was going to affirm 4-4, they would have done so much earlier, as we saw with Friedrichs. A 4-4 doesn’t sit around till the last day of the term. However, the second option, restoring to the calendar, does wait around till the last day of the term. The Court did this with Citizens in June 29, 2009, the last day of the term. So if the Court does not decide the case on Thursday, there is a slightly greater chance the Court reargues it.

But we all know how this ends. Every June, the Chief finds a different way to break my heart. (Zubik doesn’t count for this year, because it broke my heart in May).

Whenever I write these posts, #LawTwitter quickly tells me why I’m wrong. I’m sure they’re right. This is all pure speculation, made even harder by the Senior Associate Justice missing more than half the term.

The Fair Labor Standards Act generally requires employers to pay workers who labor more than forty hours a week overtime (1.5x the “regular rate”). However, the law has a number of exemptions, including for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” In 1970, the Labor Department interpreted “salesman” to mean “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” “Service Advisors” were not exempt, under this interpretation. Several courts rejected the interpretation that “service advisors” were not covered by the “salesman” exemption, because they are involved in sales. In 1978, the Department, through an opinion letter, stated that service advisors could be exempt. In 1987, the Department in its Field Operations Handbook confirmed that the service advisors would be exempt, and would not be eligible for overtime.  In 2008, the Department of Labor issued a notice of proposed rulemaking, which acknowledged that every court, and the Department itself, treated service advisors as exempt since 1987. The proposal would conform the regulation with practice and prevailing judicial interpretations.

But then we had hope and change. Justice Kennedy’s majority opinion in Encino Motorcars, LLC v. Navarro explains what happened next:

In 2011, however, the Department changed course yet again. It announced that it was “not proceeding with the proposed rule.” 76 Fed. Reg. 18833. Instead, the Depart­ ment completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells automo­ biles, trucks, or farm implements. Id., at 18859 (codified at 29 CFR §779.372(c)(1)).

That is, the interpretation that was rejected by courts for four decades, and which the Labor Department had rejected in practice for three decades. Why did they do it?

The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A). It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors “are not exempt” under the relevant provision. 29 CFR §779.372(c)(4) (1971). In promulgating the 2011 regula­ tion, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been “an inadvertent mistake in drafting.” Tr. of Oral Arg. 50.

Drafting error? Like “established by the state”? This is not the first time the Court has criticized the Obama administration for arbitrarily changing its positions. Based on political reasons. That last part wasn’t from the Court. It was from me. See earlier rebukes in Marvin M. Brandt Revocable Trust v. United States, Kiobel v. Royal Dutch Petroleum, Levin v. United States, US Airways v. McCutchen, and Myriad Genetics.

The Court unanimously held that this final regulation, which disregarded the proposed rulemaking, and offered no explanation, did not receive Chevron deference.

When Congress authorizes an agency to proceed through notice-and­ comment rulemaking, that “relatively formal administra­ tive procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev- ron should apply. Mead Corp., supra, at 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227; cf. Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 174–176 (2007) (reject­ ing challenge to procedures by which regulation was is­ sued and affording Chevron deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting Co. v. FCC, 22 F. 3d 320, 324–326 (CADC 1994); cf. also Auer v. Robbins, 519 U. S. 452, 458– 459 (1997) (party cannot challenge agency’s failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chev- ron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has chal­ lenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper.

The agencies are allow to change their positions, but they must provide a “reasoned explanation” for doing so.

Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981–982 (2005); Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Televi- sion Stations, Inc., 556 U. S. 502, 515 (2009). But the agency must at least “display awareness that it is chang­ ing position” and “show that there are good reasons for the new policy.” Ibid. (emphasis deleted). In explaining its changed position, an agency must also be cognizant that longstanding policies may have “engendered serious reli­ ance interests that must be taken into account.” Ibid.; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). “In such cases it is not that further justi­ fication is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television Stations, supra, at 515–516. It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Brand X, supra, at 981. An arbitrary and ca­ pricious regulation of this sort is itself unlawful and re­ ceives no Chevron deference. See Mead Corp., supra, at 227.

Based on this framework, the Obama Labor Department’s 2011 regulation was not entitled to Chevron deference.

Applying those principles here, the unavoidable conclu­ sion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reli­ ance interests involved. In promulgating the 2011 regula­ tion, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to overrule its previous position.

…

Whatever potential reasons the Department might have given, the agency in fact gave almost no rea­ sons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. See Fox Television Stations, 556 U. S., at 515–516. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43. It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.

I haven’t read this carefully, but this opinion may have a bearing on the Net Neutrality litigation, where the FCC radically altered several decades of its position on common carriage.

Ultimately, the Court remands the issue back to the 9th Circuit, with instructions to decide it without applying Chevron.

RBG, joined by Sotomayor, concurred to write that even on remand, the regulation is not arbitrary and capricious. She also stresses that nothing in the opinion alters settled law.

I write separately to stress that nothing in today’s opin­ ion disturbs well-established law. In particular, where an agency has departed from a prior position, there is no “heightened standard” of arbitrary-and-capricious review. Id., at 514. See also ante, at 9. An agency must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Fox, 556 U. S., at 515 (emphasis deleted). “But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Ibid.

Justice Thomas–who believes all administrative law is unlawful–concurred, joined by Justice Alito. The dynamic duo (who write together very often on the Scalia-less Court), explain that there is no reason to remand the case: the Court should resolve the issue properly before it.

I agree with the majority’s conclusion that we owe no Chevron deference to the Department’s position because “deference is not warranted where [a] regulation is ‘proce- durally defective.’ ” Ante, at 8. But I disagree with its ultimate decision to punt on the issue before it. We have an “obligation . . . to decide the merits of the question presented.” CBOCS West, Inc. v. Humphries, 553 U. S. 442, 472 (2008) (THOMAS, J., dissenting). We need not wade into the murky waters of Chevron deference to de- cide whether the Ninth Circuit’s reading of the statute was correct. We must instead examine the statutory text. That text reveals that service advisors are salesmen pri- marily engaged in the selling of services for automobiles. Accordingly, I would reverse the Ninth Circuit’s judgment.

CT’s opinion offers a grammatical discourse on the difference between a “salesman” and a “service advisor,” with citations to two dictionaries, and  a discussion of gerunds.

I start with the uncontroversial notion that a service advisor is a “salesman.” The FLSA does not define the term “salesman,” so “we give the term its ordinary mean- ing.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 5). A “salesman” is someone who sells goods or services. 14 Oxford English Dictionary 391 (2d ed. 1989) (“[a] man whose business it is to sell goods or conduct sales”); Random House Dictionary of the English Language 1262 (1966) (Random House) (“a man who sells goods, services, etc.”). Service advisors, whose role it is to “interact with customers and sell them services for their vehicles,” ante, at 2, are plainly “salesm[e]n.” See ibid. (cataloguing sales-related duties of service advisors).

A service advisor, however, is not “primarily engaged in selling . . . automobiles.” §213(b)(10)(A). On the contrary, a service advisor is a “salesman” who sells servicing solu- tions. Ante, at 2. So the exemption applies only if it cov- ers not only those salesmen primarily engaged in selling automobiles but also those salesmen primarily engaged in servicing automobiles.

The exemption’s structure confirms that salesmen could do both. The exemption contains three nouns (“salesman, partsman, or mechanic”) and two gerunds (“selling or servicing”). The three nouns are connected by the disjunc- tive “or,” as are the gerunds. So unless context dictates otherwise, a salesman can either be engaged in selling or servicing automobiles. Cf. Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979).

And for good measure, there is a citation to Justice Scalia:

There is no basis to infer that Congress means anything beyond what a statute plainly says simply because the legislation in question could be classified as “remedial.” See Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581–586 (1990).