Supreme Court Oral Arguments

Wilkins v. United States Justia (with opinion) · Docket · oyez.org Argued on Nov 30, 2022.Decided on Mar 28, 2023. Petitioner: Larry Steven Wilkins, et al..Respondent: United States. Advocates: Jeffrey W. McCoy (for the Petitioners) Benjamin W. Snyder (for the Respondent) Facts of the case (from oyez.org) Robbins Gulch Road runs between Highway 93 and the Bitterroot National Forest, crossing the private properties of Larry Wilkins and Jane Stanton near Connor, Montana. The previous owners of each of their properties had granted the United States an easement for Robbins Gulch Road in 1962. In 2018, Wilkins and Stanton sued the United States under the Quiet Title Act (QTA) to confirm that the easement does not permit public use of the road and to enforce the government’s obligations to patrol and maintain the road against unrestricted public use. The district court granted the federal government’s motion to dismiss for lack of subject-matter jurisdiction, and the U.S. Court of Appeals for the Ninth Circuit affirmed. Question Is the Quiet Title Act’s statute of limitations a jurisdictional requirement or a claim-processing rule? Conclusion The Quiet Title Act’s 12-year statute of limitations is a claim-processing rule, not a jurisdictional requirement. Justice Sonia Sotomayor authored the 6-3 majority opinion of the Court holding that Wilkins's and Stanton's lawsuit may proceed. Jurisdictional rules tend to disrupt litigation, whereas procedural rules (including claim-processing rules) seek to facilitate the litigation process. Given the risk of disruption and waste that accompanies the jurisdictional label, courts will view a procedural requirement as jurisdictional only if Congress “clearly states” that it is. As a general rule, most statutes of limitations are nonjurisdictional. The 12-year statute of limitations described in 28 U.S.C. § 2409a(g) lacks a jurisdictional clear statement, and nothing in its text or context supports departing from the general rule that statutes of limitations are nonjurisdictional. Nor do any of the three cases the government cites definitively interpreted Section 2409a(g) as jurisdictional. Thus, the provision at issue is a claim-processing rule, not a jurisdictional one. Justice Clarence Thomas dissented, arguing that the Court has long treated conditions on waivers of sovereign immunity, such as the one at issue in this case, as jurisdictional, and he would recognize the Court’s precedents as resolving the question.

United States v. Texas Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Nov 29, 2022.Decided on Jun 23, 2023. Petitioner: United States of America, et al..Respondent: State of Texas and State of Louisiana. Advocates: Elizabeth B. Prelogar (for the Petitioners) Judd E. Stone, II (for the Respondents) Facts of the case (from oyez.org) In September 2021, the Secretary of Homeland Security issued the Guidelines for the Enforcement of Civil Immigration Law in an effort to allocate limited resources that could not feasibly deport every removable non-citizen presently in the United States. Texas and Louisiana challenged the Guidelines in federal court. The court concluded Texas had Article III standing to challenge the Guidelines because, as a result of the Guidelines, Texas would have to spend more money on law enforcement and social services. The court further concluded that the Guidelines violate the Administrative Procedure Act because they granted DHS discretion to decide who will be detained and when, and because they were issued without notice and comment. The court vacated the Guidelines nationwide, and the U.S. Court of Appeals for the Fifth Circuit denied a stay pending appeal. Question 1. Do the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law? 2. Do the Guidelines violate the Administrative Procedure Act? 3. Does 8 U.S.C. § 1252(f)(1) prevent the entry of an order to “hold unlawful and set aside” the guidelines under 5 U.S.C. § 706(2)? Conclusion Texas and Louisiana lack Article III standing to challenge immigration-enforcement guidelines promulgated by the Secretary of Homeland Security that prioritize the arrest and removal of certain noncitizens from the United States. Justice Brett Kavanaugh authored the majority opinion of the Court. For a plaintiff to establish standing, they must show that they have suffered a real, specific injury that was caused by the defendant and that the court can remedy. While the district court had concluded that the states would suffer an injury in the form of additional costs due to the arrest policy in question, the Supreme Court pointed out that the injury also has to be "legally and judicially cognizable"—in other words, that it should be a type of dispute that courts have traditionally been involved in resolving. The states failed to point to any precedent or historical practice that supported their claim to have standing in this particular issue. Second, the Court acknowledged that there are good reasons for federal courts to avoid these types of lawsuits, one of which is the Executive Branch’s discretion in deciding whom to arrest or prosecute, which falls under its constitutional Article II powers. Additionally, the courts generally lack the standards to judge the appropriateness of such enforcement decisions, which can be influenced by various factors like resource constraints and public safety needs. This conclusion does not mean that federal courts can never handle cases involving the Executive Branch's decisions about arrests or prosecutions. Indeed, certain circumstances might warrant a different standing analysis; for instance, if there are claims of selective prosecution based on discrimination, or if Congress has explicitly made certain injuries legally recognizable. Justice Neil Gorsuch authored an opinion concurring in the judgment, in which Justices Clarence Thomas and Amy Coney Barrett joined, arguing that the states lack standing not because of the “cognizable injury” aspect of standing, but because of the redressability requirement. Justice Barrett authored an opinion concurring in the judgment, in which Justice Gorsuch joined, also arguing that the case should be resolved on redressability grounds. Justice Samuel Alito authored a dissenting opinion, arguing that Texas does have standing.

Percoco v. United States Justia (with opinion) · Docket · oyez.org Argued on Nov 28, 2022.Decided on May 11, 2023. Petitioner: Joseph Percoco.Respondent: United States. Advocates: Jacob M. Roth (for the Petitioner) Nicole F. Reaves (for the Respondent) Facts of the case (from oyez.org) In 2012, New York Governor Andrew Cuomo launched an initiative, known as the “Buffalo Billion” initiative, to develop the greater Buffalo area. Alain Kaloyeros strategically secured a highly influential role in the initiative and used that role to award contracts to certain developers of his choosing based on his knowledge and control over the process. Once the scheme came to light, the participants were charged and convicted of conspiracy to engage in wire fraud. In 2018, a jury returned a verdict of guilty on all counts, and the defendants were sentenced to prison terms of varying lengths. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the wire fraud convictions, relying on a “right-to-control theory” of wire fraud that allows for conviction on “a showing that the defendant, through the withholding or inaccurate reporting of information that could impact on economic decisions, deprived some person or entity of potentially valuable economic information.” Question Can a private citizen who has informal political or other influence over governmental decisionmaking owe a fiduciary duty to the general public such that he can be convicted of honest-services fraud? Conclusion A private citizen who has informal political or other influence over governmental decisionmaking can be convicted of honest-services fraud, but in this case, the jury instructions leading to Percoco’s conviction were insufficiently definite. Justice Samuel Alito authored the majority opinion of the Court. The jury instruction in this case required the jury to determine whether Percoco had a “special relationship” with the government and had “dominated and controlled” government business. However, these concepts are too vague to allow ordinary people to understand what conduct is prohibited. Justice Neil Gorsuch authored an opinion concurring in the judgment, in which Justice Clarence Thomas joined. Justice Gorsuch agreed with the majority but expressed concern over the vagueness of “honest-services fraud” more generally, regardless of what jury instruction might be provided.

Ciminelli v. United States Justia (with opinion) · Docket · oyez.org Argued on Nov 28, 2022.Decided on May 11, 2023. Petitioner: Louis Ciminelli.Respondent: United States. Advocates: Michael R. Dreeben (for the Petitioner) Eric J. Feigin (for the Respondent) Facts of the case (from oyez.org) In 2012, New York Governor Andrew Cuomo launched an initiative, known as the “Buffalo Billion” initiative, to develop the greater Buffalo area. Alain Kaloyeros strategically secured a highly influential role in the initiative and used that role to award contracts to certain developers of his choosing based on his knowledge and control over the process. Once the scheme came to light, the participants were charged and convicted of conspiracy to engage in wire fraud. In 2018, a jury returned a verdict of guilty on all counts, and the defendants were sentenced to prison terms of varying lengths. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the wire fraud convictions, relying on a “right-to-control theory” of wire fraud that allows for conviction on “a showing that the defendant, through the withholding or inaccurate reporting of information that could impact on economic decisions, deprived some person or entity of potentially valuable economic information.” Question Does the Second Circuit’s “right to control” theory of fraud state a valid basis for liability under the federal wire fraud statute? Conclusion The Second Circuit’s right-to-control theory cannot form the basis for a conviction under the federal fraud statutes because the right to control is not grounded in a traditional property interest. Justice Clarence Thomas authored the unanimous opinion of the Court. The federal wire fraud statute prohibits the use of interstate wires for “any scheme or orifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” When the statute was enacted, the common understanding of the verb “to defraud” related to property rights. Although lower courts have interpreted the statute to include interests unconnected to traditional property rights, the Supreme Court in McNally v. United States, 483 U.S. 350 (1987), held that the statutes protect only individual property rights. The right-to-control theory has no roots in a traditional property interest and thus cannot be the basis for a conviction under the federal fraud statutes.

Haaland v. Brackeen Wikipedia · Justia · Docket · oyez.org Argued on Nov 9, 2022. Petitioner: Deb Haaland, Secretary of the Interior, et al..Respondent: Chat Everet Brackeen. Advocates: Matthew D. McGill (for Chad Everet Brackeen, et al.) Judd E. Stone, II (for Texas) Edwin S. Kneedler (for the federal parties) Ian H. Gershengorn (for the tribal parties) Facts of the case (from oyez.org) The Indian Child Welfare Act (ICWA), a federal law enacted in 1978, restricts the removal of Native American children from their families and establishes a preference that Native children who are removed from their families be placed with extended family members or Native foster homes. Several individuals and states filed a lawsuit challenging the law as violating constitutional anti-commandeering principles of the Tenth Amendment. The plaintiffs include several couples who wished to adopt or foster Native children, a woman who wished for her Native biological child to be adopted by non-Natives, and the states of Texas, Louisiana, and Indiana. The district court ruled for the plaintiffs, striking down portions of the  ICWA. The defendants appealed, and a panel of the U.S. Court of Appeals for the Fifth Circuit reversed. In a fractured ruling, the Fifth Circuit sitting en banc upheld portions of the district court’s decision and reversed other portions. Question Do the Indian Child Welfare Act’s restrictions on placement of Native American children violate anti-commandeering principles of the Tenth Amendment?

Mallory v. Norfolk Southern Railway Co. Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Nov 8, 2022.Decided on Jun 27, 2023. Petitioner: Robert Mallory.Respondent: Norfolk Southern Railway Co.. Advocates: Ashley C. Keller (for the Petitioner) Carter G. Phillips (for the Respondent) Curtis E. Gannon (for the United States, as amicus curiae, supporting the Respondent) Facts of the case (from oyez.org) Robert Mallory sued Norfolk Southern Railway Co. in the Philadelphia County Court of Common Pleas for claims arising under the Federal Employer’s Liability Act (FELA). According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania. Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed. Question Does a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violate the Due Process Clause of the Fourteenth Amendment? Conclusion A Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to appear in Pennsylvania courts on “any cause of action” against them comports with the Due Process Clause. Justice Neil Gorsuch authored the main opinion of the Court. The outcome in this case is controlled by the Court’s decision in Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), which held that suits based on the defendant’s consent to jurisdiction do not deny the defendant due process of law. The Pennsylvania Supreme Court concluded otherwise based on its erroneous belief that the Court had “implicitly overruled Pennsylvania Fire in International Shoe Co. v. Washington, 326 U.S. 310 (1945). However, rather than displace Pennsylvania Fire, International Shoe merely paved an additional road to jurisdiction over out-of-state corporations. Thus, the facts of this case fall squarely within Pennsylvania Fire, and there is no due process violation. Justice Ketanji Brown Jackson authored a concurring opinion noting another precedent, Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), which she finds “particularly instructive.” Justice Samuel Alito authored an opinion concurring in part and concurring in the judgment. Justice Alito agreed with the plurality that exercising jurisdiction pursuant to the state registration statute does not violate the Due Process Clause, but he opined that the statute might be unconstitutional on other grounds not before the Court. Justice Amy Coney Barrett authored a dissenting opinion, in which Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh joined, arguing that compelled state registration does not constitute “consent.”

Health and Hospital Corporation of Marion County v. Talevski Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Nov 8, 2022.Decided on Jun 8, 2023. Petitioner: Health and Hospital Corporation of Marion County, et al..Respondent: Gorgi Talevski. Advocates: Lawrence S. Robbins (for the Petitioners) Thomas M. Fisher (for Indiana, et al., as amicus curiae supporting the Petitioners) Benjamin W. Snyder (for the United States, as amicus curiae, supporting neither party) Andrew T. Tutt (for the Respondent) Facts of the case (from oyez.org) Gorgi Talevski was living with dementia and receiving care at Valparaiso Care and Rehabilitation, a state-run nursing facility in Indiana. His wife, Ivanka Talevski, filed a lawsuit on behalf of her husband alleging that Valparaiso Care failed to provide Gorgi with adequate medical care, used psychotropic medications as unnecessary chemical restraint, and improperly discharged and transferred him, among other practices, in violation of the Federal Nursing Home Reform Act (FNHRA). The district court dismissed the action for failure to state a claim, finding that FNHRA does not provide a private right of action that may be redressed under 42 U.S.C. § 1983. On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed, finding that Section 1983 has a broad purpose of providing a remedy for federal statutory and constitutional violations. Question May a plaintiff file a federal civil rights claim for violation of the Federal Nursing Home Reform Act, which was enacted under Congress’s Spending Clause power? Conclusion A plaintiff may file a federal civil rights claim for violation of the Federal Nursing Home Reform Act (FNHRA). Justice Ketanji Brown Jackson authored the 7-2 majority opinion of the Court. The Court first considered whether FNHRA can create rights enforceable through Section 1983. Section 1983 allows private parties to sue for deprivations of any any “rights, privileges, or immunities secured by the Constitution and laws” of the United States. The phrase “and laws,” without modifiers, means that the rights at issue need not fall within a specific category (e.g., civil rights) or through a specific power of Congress. The Court then considered whether FNHRA unambiguously created a right to be enforced via § 1983 and concluded that it does. A law unambiguously creates a right enforceable via § 1983 if “the provision in question is ‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an “unmistakable focus on the benefited class.” The provisions at issue here addressing unnecessary restraint and predischarge notice pass that stringent test; they unambiguously confer rights on residents of nursing-home facilities. Finally, the Court considered whether FNHRA creates a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. While FNHRA does have a complex enforcement scheme, that scheme is not incompatible with individual enforcement under § 1983 and does not suggest Congress intended to preclude § 1983 enforcement. Justice Neil Gorsuch wrote a concurring opinion to point out two questions the petitioners could have raised but did not and called for the resolution of those questions another time in another case. Justice Amy Coney Barrett authored a concurring opinion, in which Chief Justice John Roberts joined, cautioning that while she agreed with the disposition in this particular case, courts must “tread carefully before concluding that Spending Clause statutes may be enforced through § 1983.” Justice Clarence Thomas authored a dissenting opinion arguing that laws passed pursuant to Congress’s spending power cannot secure rights within the meaning of § 1983. Justice Samuel Alito authored a dissenting opinion, in which Justice Thomas joined, arguing that while FNHRA does create individual rights, the remedial scheme of the Act forecloses enforcement of those rights via § 1983.

Securities and Exchange Commission v. Cochran Justia (with opinion) · Docket · oyez.org Argued on Nov 7, 2022.Decided on Apr 14, 2023. Petitioner: Securities and Exchange Commission, et al..Respondent: Michelle Cochran. Advocates: Gregory G. Garre (for Michelle Cochran) Malcolm L. Stewart (for the SEC, et al.) Facts of the case (from oyez.org) In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. After a hearing, an SEC administrative law judge (ALJ) agreed that Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected. Before the SEC could rule on Cochran’s objection, the U.S. Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to that ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s. Cochran filed a lawsuit in federal district court arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed Cochran’s case for lack of subject-matter jurisdiction based on a reading of the Exchange Act as implicitly stripping district courts of jurisdiction to hear challenges to ongoing SEC enforcement proceedings. A panel of the U.S. Court of Appeals for the Fifth Circuit affirmed, but the Fifth Circuit sitting en banc reversed as to that interpretation of the Exchange Act. Question Does a federal district court have jurisdiction to consider claims challenging the constitutionality of the Securities and Exchange Commission’s administrative proceedings? Conclusion Federal courts have federal-question jurisdiction to hear constitutional challenges to the structure or existence of the SEC or FTC notwithstanding statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act. Justice Elena Kagan authored the majority opinion holding that the Federal Trade Commission Act (in 21-86) and the Securities Exchange Act (in 21-1239) did not preclude district courts’ ordinary subject-matter jurisdiction to hear challenges to those agencies’ structure, procedure, or existence. The Court considered three factors, known as the Thunder Basin factors, to determine whether particular claims concerning agency action are “of the type Congress intended to be reviewed within th[e] statutory structure,” and thus would preclude district court jurisdiction. The three factors are: (1) Could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim? (2) Is the claim “wholly collateral” to the statute’s review provisions? (3) Is the claim “outside the agency’s expertise”? The Court concluded that all three factors supported the conclusion that district courts retained subject-matter jurisdiction. First, preclusion of district court jurisdiction “could foreclose all meaningful judicial review” because Axon and Cochran will lose their rights not to undergo the complained-of agency proceedings if they cannot assert those rights until the proceedings are over. Second, the claims are “wholly collateral” to the statutes’ review provisions because challenges to the Commissions’ authority have nothing to do with either the enforcement-related matters the Commissions regularly adjudicate or those they would adjudicate in assessing the charges against Axon and Cochran. Finally, the claims are outside the agencies’ expertise because neither specializes in constitutional issues like separation of powers. Justice Clarence Thomas authored a concurring opinion to express “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.” Justice Neil Gorsuch authored an opinion concurring in the judgment, arguing that he would reach the same conclusion as the majority by applying only 28 U.S.C. § 1331, which establishes federal-question jurisdiction of federal courts.

Axon Enterprise, Inc. v. Federal Trade Commission Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Nov 7, 2022.Decided on Apr 14, 2023. Petitioner: Axon Enterprise, Inc..Respondent: Federal Trade Commission, et al.. Advocates: Paul D. Clement (for the Petitioner) Malcolm L. Stewart (for the Respondents) Facts of the case (from oyez.org) Axon Enterprises manufactures personal body cameras for law enforcement. In 2018, it acquired a competitor body camera company called Vievu. After the acquisition, the Federal Trade Commission informed Axon that the transaction raised antitrust concerns and that the Commission would be investigating. At the end of 2019, the FTC informed Axon of its demands, which it could either accede or face administrative proceedings. Axon filed a lawsuit in federal district court alleging that (1) the FTC’s administrative proceeding violates Axon’s Fifth Amendment due process rights, (2) the FTC’s structure violates Article II by providing improper insulation from the President, and (3) Axon’s acquisition of Vievu did not violate antitrust law. The district court dismissed Axon’s complaint, holding that the FTC’s statutory scheme required Axon to raise its constitutional challenge first in the administrative proceeding. The U.S. Court of Appeals for the Ninth Circuit affirmed, finding that Congress impliedly barred jurisdiction in federal district court. Question Do federal courts have jurisdiction to hear constitutional challenges to the Federal Trade Commission’s structure, procedure, and existence, or must such challenges be raised first in the administrative proceeding? Conclusion Federal courts have federal-question jurisdiction to hear constitutional challenges to the structure or existence of the SEC or FTC notwithstanding statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act. Justice Elena Kagan authored the majority opinion holding that the Federal Trade Commission Act (in 21-86) and the Securities Exchange Act (in 21-1239) did not preclude district courts’ ordinary subject-matter jurisdiction to hear challenges to those agencies’ structure, procedure, or existence. The Court considered three factors, known as the Thunder Basin factors, to determine whether particular claims concerning agency action are “of the type Congress intended to be reviewed within th[e] statutory structure,” and thus would preclude district court jurisdiction. The three factors are: (1) Could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim? (2) Is the claim “wholly collateral” to the statute’s review provisions? (3) Is the claim “outside the agency’s expertise”? The Court concluded that all three factors supported the conclusion that district courts retained subject-matter jurisdiction. First, preclusion of district court jurisdiction “could foreclose all meaningful judicial review” because Axon and Cochran will lose their rights not to undergo the complained-of agency proceedings if they cannot assert those rights until the proceedings are over. Second, the claims are “wholly collateral” to the statutes’ review provisions because challenges to the Commissions’ authority have nothing to do with either the enforcement-related matters the Commissions regularly adjudicate or those they would adjudicate in assessing the charges against Axon and Cochran. Finally, the claims are outside the agencies’ expertise because neither specializes in constitutional issues like separation of powers. Justice Clarence Thomas authored a concurring opinion to express “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.” Justice Neil Gorsuch authored an opinion concurring in the judgment, arguing that he would reach the same conclusion as the majority by applying only 28 U.S.C. § 1331, which establishes federal-question jurisdiction of federal courts.

Bittner v. United States Justia (with opinion) · Docket · oyez.org Argued on Nov 2, 2022.Decided on Feb 28, 2023. Petitioner: Alexandru Bittner.Respondent: United States. Advocates: Daniel L. Geyser (for the Petitioner) Matthew Guarnieri (for the Respondent) Facts of the case (from oyez.org) Alexandru Bittner erroneously failed to report his interests in foreign bank accounts on annual FBAR forms, as required by the Bank Secrecy Act of 1970 (BSA). The government fined him $2.72 million—$10,000 for each unreported account each year from 2007 to 2011. Bittner challenged the fine, and the district court reduced the assessment to $50,000, holding that the $10,000 maximum penalty attaches to each failure to file an annual FBAR, not to each failure to report an account. The U.S. Court of Appeals for the Fifth Circuit reversed on this issue, holding that each failure to report a qualifying foreign account constitutes a separate reporting violation subject to penalty. Question Is a “violation” under the Bank Secrecy Act the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or is there a separate violation for each individual account that was not properly reported? Conclusion The Bank Secrecy Act’s $10,000 maximum penalty for the nonwillful failure to file a compliant report accrues on a per-report, not a per-account, basis. Justice Neil Gorsuch authored the 5-4 majority opinion holding that Bittner was subject to a fine only for each report he failed to file, not for each account he failed to report over that five-year period. The plain language of Section 5321 addresses the legal duty to file reports, not of individual accounts or their number. The penalty the statute prescribes for nonwillful violations must therefore be based on the number of reports, not on the number of accounts. In contrast, for willful violations, the statute expressly considers a penalty on a per-account basis. The government’s guidance as to these provisions, as well as the drafting history, further support this understanding. Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Clarence Thomas, Sonia Sotomayor, and Elena Kagan joined, arguing that “the most natural reading of the statute establishes that each failure to report a qualifying foreign account constitutes a separate reporting violation.”