Supreme Court Oral Arguments

BP P.L.C. v. Mayor and City Council of Baltimore Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Jan 19, 2021.Decided on May 17, 2021. Petitioner: BP P.L.C., et al..Respondent: Mayor and City Council of Baltimore. Advocates: Kannon K. Shanmugam (for the Petitioners) Brinton Lucas (for the United States, as amicus curiae, supporting the Petitioners) Victor M. Sher (for the Respondents) Facts of the case (from oyez.org) In July 2018, the Mayor and City of Baltimore filed suit in Maryland state court against 26 oil and gas companies that Maryland says are partly responsible for climate change. The complaint asserted eight causes of action, all founded on Maryland law, and sought monetary damages, civil penalties, and equitable relief. Two of the defendants removed the case to federal court, asserting eight grounds for removal. Baltimore then moved to remand the case back to state court. The district court rejected all eight grounds for removal and granted Baltimore’s motion for remand back to state court. The defendants appealed the remand order, and the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court, finding that 28 U.S.C. § 1442 does not provide a proper basis for removal of the suit. Question Does federal law permit a court of appeals to review any issue included in a district court’s order remanding a case to state court, or only the ground for removal? Conclusion A federal appellate court has jurisdiction to consider all of a defendant’s grounds for removal under 28 U.S.C. § 1447(d). Justice Neil Gorsuch authored the 7-1 majority opinion of the Court.  Section 1447(d) provides that “an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” In this case, the defendants had relied on the federal officer removal statute in § 1442, which is precisely one of the situations in which § 1447(d) permits an appeal. While the Fourth Circuit interpreted the provision as authorizing only the part of the district court’s order discussing § 1442, the ordinary meaning of § 1442—particularly the use of the word “order”—does not support that interpretation. Rather, § 1447(d) permits appellate review of the district court’s remand order without qualification. This conclusion is consistent with the Court’s most analogous precedent, Yamaha Motor Corp., U.S.A., v. Calhoun, 516 U.S. 199 (1996), in which it held that another provision, 28 U.S.C. § 1292(b), which allows a district court to certify “an order,” is not tied to the particular question formulated by the district court. Finally, the Court found Baltimore’s policy arguments “cannot overcome a clear statutory directive.” Justice Sonia Sotomayor authored a dissenting opinion, arguing that the Court’s holding allows defendants to “sidestep” § 1447(d)’s bar on appellate review simply by “shoehorning a § 1442 or § 1443 argument into their case for removal.” This, Justice Sotomayor argued, “lets the exception swallow the rule.” Justice Samuel Alito took no part in the consideration or decision of the case.

FCC v. Prometheus Radio Project Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Jan 19, 2021.Decided on Apr 1, 2021. Petitioner: Federal Communications Commission, et al..Respondent: Prometheus Radio Project, et al.. Advocates: Malcolm L. Stewart (for the Petitioners in No. 19-1231) Helgi C. Walker (for the Petitioners in No. 19-1241) Ruthanne M. Deutsch (for the Respondents) Facts of the case (from oyez.org) The Federal Communications Commission (FCC) maintains a collection of rules governing ownership of broadcast media, intended to promote “competition, diversity, and localism.” In 1996, in response to sentiment that the rules were overly restrictive, Congress passed the Telecommunications Act, of which Section 202(h) required the Commission to review the broadcast ownership rules on a regular basis. The FCC’s performance of its duties under that section has been the subject of extensive litigation. In 2017, the FCC issued an order eliminating altogether newspaper/broadcast and television/radio cross-ownership rules, and making other substantial changes. It also announced its intention to adopt an incubator program, calling for comment on various aspects of the program. In August 2018, the FCC established a radio incubator program. Numerous parties filed petitions for review challenging various aspects of the FCC’s order. Among them, Petitioner Prometheus Radio Project argued that the FCC did not adequately consider the effect its rule changes would have on ownership of broadcast media by women and racial minorities. The U.S. Court of Appeals for the Third Circuit found that although the FCC did “ostensibly” consider this issue, its analysis was “so insubstantial” that it cannot provide a “reliable foundation” for the FCC’s conclusions. As such, the Third Circuit vacated the bulk of the agency’s actions over the past three years as arbitrary and capricious, in violation of the Administrative Procedure Act. Question Did the U.S. Court of Appeals for the Third Circuit err in vacating as arbitrary and capricious the FCC’s orders that substantially changed its approach to regulation of broadcast media ownership? Conclusion The Federal Communications Commission (FCC)’s 2017 decision to repeal or modify three of its media ownership rules was not arbitrary or capricious for purposes of the Administrative Procedure Act. Justice Brett Kavanaugh authored the majority opinion on behalf of a unanimous Court. The FCC has broad authority to regulate broadcast media “as public convenience, interest, or necessity requires.” In considering whether to repeal or modify its existing ownership rules, the agency considered evidence in the record and reasonably concluded that the three ownership rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity, and that the rule changes were not likely to harm minority and female ownership. The FCC acknowledged the gaps in data on which it relied and noted that despite requesting data supporting the contention that harm would result to minority- and female-owned media companies, it received no such data. Because its decision was based on the record and was reasonable, its decision to repeal or modify three of its rules was not arbitrary or capricious. Justice Clarence Thomas authored a concurring opinion to argue that the Third Circuit improperly imposed nonstatutory procedural requirements on the FCC by forcing it to consider ownership diversity in the first place.

AMG Capital Management, LLC v. Federal Trade Commission Justia (with opinion) · Docket · oyez.org Argued on Jan 13, 2021.Decided on Apr 22, 2021. Petitioner: AMG Capital Management, LLC, et al..Respondent: Federal Trade Commission. Advocates: Michael Pattillo (on behalf of the Petitioners) Joel R. Marcus (on behalf of the Respondent) Facts of the case (from oyez.org) Scott Tucker owned several companies that provided high-interest, short-term loans via several websites. The loans allegedly required customers to agree to terms that were obscured in several long, cross-referenced agreements. In April 2012, the Federal Trade Commission (“Commission”) filed a lawsuit against Tucker and his businesses in federal court in Nevada. The Commission alleged that Tucker’s loan business violated § 5 of the Federal Trade Commission Act (“FTC Act”)’s prohibition against “unfair or deceptive acts or practices in or affecting commerce.” The Commission asked the court to enjoin Tucker from engaging in consumer lending and to order him to disgorge his profits from the scheme. The court granted the Commission’s requested relief, enjoined Tucker from providing loans, and ordered him to pay approximately $1.27 billion in equitable monetary relief to the Commission. The court instructed the Commission to direct “as much money as practicable” to “direct redress to consumers,” then to “other equitable relief” related to the practices described in the Commission’s complaint, and finally to the U.S. Treasury as disgorgement. Tucker appealed, and the U.S. Court of Appeals for the Ninth Circuit affirmed. In relevant part, the Ninth Circuit rejected Tucker’s argument that the FTC Act authorizes district courts only to enter “injunctions,” and that the district court’s order to pay “equitable monetary relief” is not an injunction. The Ninth Circuit noted that its precedent squarely holds that § 13 of the FTC Act “empowers district courts to grant any ancillary relief necessary to accomplish complete justice.” Question Does Section 13(b) of the FTC Act authorize the FTC to demand monetary relief such as restitution? Conclusion Section 13(b) of the Federal Trade Commission Act does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. Justice Stephen Breyer authored the unanimous opinion of the Court. Congress established the Federal Trade Commission in 1914 to enforce the Act’s prohibitions on “unfair or deceptive acts or practices” by initiating administrative proceedings under Section 5 of the Act. Section 13(b) of the Act, which Congress added in 1973, authorizes the Commission to obtain “in proper cases” a permanent injunction in federal court against “any person, partnership, or corporation” that the Commission believes “is violating, or is about to violate, any provision of law” that the Commission enforces. In the late 1970s, the Commission began using Section 13(b) to obtain court orders in consumer protection cases without the prior use of the administrative proceedings in Section 5 of the Act, and in the 1990s, it extended that practice to seek monetary awards in antitrust cases. Today, the Commission frequently uses Section 13(b) to seek equitable monetary relief directly in court. The Court concluded that the Commission’s practice effectively bypasses the process set forth in Section 5 and was not the intent of the Congress that enacted Section 13(b). The provision does not explicitly authorize the Commission to obtain court-ordered monetary relief, and such relief is foreclosed by the structure and history of the Act.

Uzuegbunam v. Preczewski Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Jan 12, 2021.Decided on Mar 8, 2021. Petitioner: Chike Uzuegbunam, et al..Respondent: Stanley C. Preczewski, et al.. Advocates: Kristen Kellie Waggoner (on behalf of the Petitioners) Hashim M. Mooppan (Counselor to the Solicitor General, for the United States, as amicus curiae) Andrew A. Pinson (on behalf of the Respondents) Facts of the case (from oyez.org) In July 2016, Chike Uzuegbunam, a student at Georgia Gwinnett College (GGC), began distributing religious literature in an outdoor plaza on GGC’s campus. The campus police stopped him, however, citing GGC’s “Freedom of Expression Policy,” which stated that students were generally permitted to engage in expressive activities only in two designated speech zones, and only after reserving them. Later, Uzuegbunam reserved one of the designated speech zones to speak to students about his religious beliefs, and campus police again stopped him. According to the police, he was exceeding the scope of his reservation by speaking in addition to handing out literature. After this incident, neither Uzuegbunam nor Joseph Bradford—another GGC student who wishes to speak publicly on campus about his religious beliefs—have attempted to speak publicly or distribute literature on campus. Uzuegbunam and Bradford filed a lawsuit seeking a declaratory judgment that the school’s policies, both facially and as-applied, violate their First and Fourteenth Amendment rights. They also sought nominal damages for the violation of these rights. GGC filed a motion to dismiss for failure to state a claim, and while that motion was pending, GGC revised its “Freedom of Expression Policy” to allow students to speak anywhere on campus without having to obtain a permit, except in limited circumstances. It also removed the portion of its student code of conduct that Uzuegbunam and Bradford had challenged. After making these changes, the school filed a motion to dismiss the case as moot. The district court dismissed the case as moot, concluding that the claims for nominal damages could not save otherwise moot constitutional challenges. The U.S. Court of Appeals for the Eleventh Circuit affirmed. Question Can an award of nominal damages by itself redress a past injury, or does revision of the unconstitutional policy render moot the constitutional challenge? Conclusion A constitutional challenge to a school policy that seeks nominal damages is not rendered moot if the constitutional policy is revised during litigation because an award of nominal damages can redress the past injury. Justice Clarence Thomas authored the opinion for the 8-1 majority. To satisfy the Article III standing, a plaintiff must establish that: (1) they suffered an injury in fact, (2) that the injury is fairly traceable to the challenged conduct, and (3) that the remedy sought from the Court would redress the injury. The parties did not dispute that Uzuegbunam had established the first two elements, leaving only the question whether the remedy he sought—nominal damages—can redress the constitutional violation that Uzuegbunam alleged occurred. Common law demonstrates that while early English courts required a plaintiff to prove monetary damages, they later “reasoned that every legal injury necessarily causes damage,” so courts award nominal damages even if there is no evidence of other damages. At the time of the Constitution’s ratification, courts were already following the latter approach. Thus, an award of nominal damages does redress any legal injury. Justice Brett Kavanaugh joined the majority in full but wrote separately to note his agreement with the Chief Justice and the U.S. Solicitor General that “a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.” Chief Justice John Roberts authored a dissenting opinion, in which he argued that the case is moot because the plaintiffs are no longer students, the challenged restrictions no longer exist, and the plaintiffs have not alleged actual damages. The Chief Justice noted that if nominal damages can preserve a live controversy to establish Article III standing, future plaintiffs have every incentive to “tack[] on a request for a dollar” to ensure that federal courts resolve their disputes.

Johnson v. Guzman Chavez Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Jan 11, 2021.Decided on Jun 29, 2021. Petitioner: Tae D. Johnson, Acting Director of U.S. Immigration and Customs Enforcement, et al..Respondent: Maria Angelica Guzman Chavez, et al.. Advocates: Vivek Suri (Assistant to the Solicitor General, on behalf of the Petitioners) Paul W. Hughes (on behalf of the Respondents) Facts of the case (from oyez.org) Respondents are a class of noncitizens subject to reinstated removal orders, which generally are not open to challenge. However, if a noncitizen has a reasonable fear of persecution or torture in the countries designated in their removal orders, the person may pursue withholding of removal. That is the remedy the respondents in this case sought, and they are being detained by the government while they await the outcome of those withholding-only proceedings. The respondents requested individualized bond hearings, which could lead to their release during the withholding-only proceedings. The government argued that they are not entitled to individualized bond hearings because they were subject to mandatory detention under 8 U.S.C. § 1231, and bond hearings were denied.  The noncitizens argued that 8 U.S.C. § 1226, rather than 8 U.S.C. § 1231, governs their detention. Section 1226 provides for detention "pending a decision on whether the alien is to be removed from the United States" and allows for discretionary release on bond. The district court ruled in favor of the noncitizens, finding that the text of the two statutes made clear that § 1226 applied. The court held that § 1231 does not come into play until the government has “the present and final legal authority to actually execute that order of removal.” A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed. Question Are the respondents—who were subject to reinstated removal orders, but with pending claims for withholding of removal—detained under 8 U.S.C. § 1226 or under 8 U.S.C. § 1231? Conclusion Section §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal. Justice Samuel Alito authored the majority opinion of the Court. Section 1231 authorizes detention “when an alien is ordered removed” and enters the “removal period,” which begins on “[t]he date the order of removal becomes administratively final.” The presence of the word “administratively,” means DHS does not need to wait for the alien to seek or exhaust judicial review of that order. Even if the alien pursues withholding-only relief, the removal order remains in full force, and DHS retains the authority to remove the alien to any other authorized country. The validity of removal orders is not affected by the outcome of withholding-only proceedings. The statutory structure confirms this interpretation. Justice Clarence Thomas authored an opinion, joined by Justice Neil Gorsuch, concurring except as to the majority’s determination that it has jurisdiction to review the decision below. Justice Thomas argued that the Court lacks jurisdiction to hear challenges to detention during the removal process but otherwise agreed with the majority’s opinion. Justice Stephen Breyer authored a dissenting opinion in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Breyer argued that it is unreasonable to infer, and statutory language does not support, that Congress intended to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years.

Collins v. Yellen Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Dec 9, 2020.Decided on Jun 23, 2021. Petitioner: Patrick J. Collins, et al..Respondent: Janet L. Yellen, Secretary of the Treasury, et al.. Advocates: Hashim M. Mooppan (on behalf of the federal parties) Aaron L. Nielson (Court-appointed amicus curiae) David H. Thompson (on behalf of the petitioners in 19-422 and the respondents in 19-563) Facts of the case (from oyez.org) Fannie Mae and Freddie Mac are government-sponsored enterprises (GSEs) that purchase mortgages, buy and sell mortgage-backed securities, and guarantee many of the mortgages in the United States. In 2005 and 2006, as the housing market was reaching its peak, Fannie and Freddie over-invested in risky mortgages in an attempt to compete with large investment banks and mortgage lenders. In the aftermath of the 2008 housing crisis, during which Fannie and Freddie required billions of dollars in federal bailouts, Congress created the Federal Housing Finance Agency (FHFA), an independent agency to oversee the two GSEs. FHFA was to be led by a single director who could be fired by the President “for cause.” Upon its creation, FHFA placed Fannie and Freddie in a conservatorship with itself as the conservator and negotiated agreements with the Department of Treasury. Under the agreements, the Treasury would invest billions of dollars in the GSEs in return for compensation consisting in part of fixed dividends. For several years, the GSEs’ dividend obligations exceeded their total earnings, requiring them to draw even more money from the Treasury. FHFA and Treasury negotiated and came up with the “Third Amendment,” which replaced the fixed dividend with a variable quarterly dividend equal to the GSEs’ net worth minus a specified capital reserve. Collins and others are shareholders in Fannie and Freddie. They filed a lawsuit challenging the actions of FHFA, claiming the agency had destroyed the value of their ownership interests. The shareholders argued that FHFA had exceeded its authority under two federal statutes and that the structure of FHFA violated the constitutional principle of separation of powers. The district court dismissed the statutory claims and granted the government’s motion for summary judgment on the constitutional claim. A panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of the statutory claims but reversed the judgment as to the constitutional claim, finding that the structure of FHFA was unconstitutional but the remedy was to invalidate the provision addressing removal of FHFA’s director. In a deeply divided opinion, the Fifth Circuit, rehearing the case en banc, affirmed as to one statutory claim, reversed as to the other statutory claim, held that FHFA’s structure violated the Constitution, and held that the appropriate remedy was to declare unconstitutional the removal provision, not to invalidate the Third Amendment. Question 1. Did the shareholders of Fannie Mae and Freddie Mac properly bring a claim under the Housing and Economic Recovery Act of 2008? 2. Does the Federal Housing Finance Agency’s (FHFA) structure violate the separation of powers? 3. If FHFA’s structure violates the separation of powers, what is the proper remedy for a final agency action that FHFA took when it was unconstitutionally structured? Conclusion 1. Because the FHFA did not exceed its authority under the Recovery Act as a conservator of Fannie Mae and Freddie Mac, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of those entities. 2. The structure of the Housing and Economic Recovery Act of 2008, which restricts the President’s power to remove the Federal Housing Finance Agency (FHFA) Director, violates the separation of powers. 3. It is unnecessary to set aside the entire Third Amendment, but the case is remanded for the lower court to determine the proper remedy based on the harms suffered. Justice Samuel Alito authored the majority opinion of the Court. The Court first considered whether the shareholders were barred from bringing their statutory claim. The Recovery Act contains a provision known as the anti-injunction provision, stating that unless review is specifically authorized by a provision or requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” This provision applies only when the FHFA exercised its “powers or functions” “as a conservator or a receiver,” and not when it exceeds those powers or functions. When the FHFA agreed to the Third Amendment, it was acting in the best interests of the regulated entity or the Agency, as required by statute, and thus it was exercising authority granted to it by the Recovery Act. As such, the shareholders are barred from bringing their statutory claim.  The Court then considered the shareholders’ constitutional claim—that the Recovery Act violated the separation of powers by restricting the President’s power to remove the Director. As a threshold matter, the Court determined that the shareholders had standing to bring their claim and that their claim is not moot. Turning to the merits, the Court noted that its decision in Seila Law is “all but dispositive”; there, the Court held Congress could not limit the President’s power to remove the single director of an independent agency (the Consumer Financial Protection Bureau, in that case). Just as the CFPB was in Seila Law, the FHFA is led by a single director, so Congress similarly cannot limit the President’s power to remove the director of the FHFA. Finally, the Court considered the relief to which shareholders were entitled based on the success of their constitutional claim. Because the head of the FHFA apparently had the authority to carry out the functions of the office, the Court declined to hold that the Third Amendment must be completely undone and differentiated directors unconstitutionally appointed from those unconstitutionally insulated from removal. The parties disputed whether the unconstitutional restriction caused harm, so the Court remanded the issue for the lower courts to resolve. Justice Clarence Thomas joined the majority opinion in full but authored a concurring opinion to clarify that “the government does not necessarily act unlawfully even if a removal restriction is unlawful in the abstract.” Justice Neil Gorsuch joined the majority opinion except as to the question of retrospective relief. In his concurring opinion, Justice Gorsuch argued that the Court should vacate the judgment below with instructions requiring the appellate court to set aside the Director’s ultra vires actions as “contrary to constitutional right” and criticized the Court’s attempt to differentiate unconstitutionally appointed directors from those unconstitutionally insulated. Justice Elena Kagan authored an opinion concurring in part and concurring in the judgment, joined by Justice Stephen Breyer and Sonia Sotomayor. Justice Kagan agreed with the majority that the FHFA acted within its statutory authority but argued that the Court could have reached the conclusion that the FHFA’s for-cause removal provision violates the Constitution on stare decisis alone, rather than using “faulty theoretical premises” that go “further than it needs to.” Justice Sotomayor authored an opinion concurring in part and dissenting in part, which Justice Breyer joined. Justice Sotomayor pointed out that the Court’s decision in Seila Law expressly distinguished the FHFA from the CFPB on the ground that the FHFA does not possess “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” As such, Seila Law should not determine the outcome in this case.

Facebook, Inc. v. Duguid Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Dec 8, 2020.Decided on Apr 1, 2021. Petitioner: Facebook, Inc..Respondent: Noah Duguid. Advocates: Paul D. Clement (for the petitioner) Jonathan Y. Ellis (for the United States, as amicus curiae, supporting the petitioner) Bryan A. Garner (for the respondents) Facts of the case (from oyez.org) Noah Duguid brought this lawsuit because Facebook sent him numerous automatic text messages without his consent. Duguid did not use Facebook, yet for approximately ten months, the social media company repeatedly alerted him by text message that someone was attempting to access his (nonexistent) Facebook account. Duguid sued Facebook for violating a provision of the Telephone and Consumer Protection Act of 1991 that forbids calls placed using an automated telephone dialing system (“ATDS”), or autodialer. Facebook moved to dismiss Duguid’s claims for two alternate reasons. Of relevance here, Facebook argued that the equipment it used to send text messages to Duguid is not an ATDS within the meaning of the statute. The district court dismissed the claim, and a panel of the U.S. Court of Appeals for the Ninth Circuit reversed, finding Facebook’s equipment plausibly falls within the definition of an ATDS. TCPA defines an ATDS as a device with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.” Ninth Circuit precedent further clarifies that an ATDS “need not be able to use a random or sequential generator to store numbers,” only that it “have the capacity to store numbers to be called and to dial such numbers automatically.” Question Does the definition of an "automatic telephone dialing system" in the Telephone and Consumer Protection Act of 1991 encompass any device that can “store” and “automatically dial” telephone numbers, even if the device does not “use a random or sequential number generator”? Conclusion Under the Telephone Consumer Protection Act of 1991, to qualify as an “automatic telephone dialing system,” a device must have the capacity either to store or to produce a telephone number using a random or sequential number generator. Justice Sonia Sotomayor authored the opinion of the Court. Section 227(a)(1) defines an autodialer as “equipment which has the capacity...to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” Contrary to Duguid’s contention, the clause “using a random or sequential number generator” modifies both verbs to “store” and to “produce” telephone numbers. Because Facebook’s notification system neither stores nor produces numbers “using a random or sequential number generator,” it is not an autodialer. Justice Samuel Alito filed an opinion concurring in the judgment to caution about the majority’s overreliance on a canon of statutory construction, that “when there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series.’”

Henry Schein Inc. v. Archer and White Sales Inc. Justia (with opinion) · Docket · oyez.org Argued on Dec 8, 2020.Decided on Jan 25, 2021. Petitioner: Henry Schein Inc..Respondent: Archer and White Sales Inc.. Advocates: Kannon K. Shanmugam (for the petitioner) Daniel L. Geyser (for the respondent) Facts of the case (from oyez.org) In 2019, the Court unanimously held in Henry Schein Inc. v. Archer and White Sales Inc. that under the Federal Arbitration Act, a court may not decide whether an arbitration agreement applies to the particular dispute if the parties “clearly and unmistakably” delegated the question to an arbitrator, even if the court believes that the argument for arbitrability is “wholly groundless.” On remand the U.S. Court of Appeals again refused to compel arbitration, finding that the parties had delegated at least some questions of arbitrability to the arbitrator. Notably, the Fifth Circuit held that because the arbitration agreement included a provision exempting certain claims from arbitration, the agreement did not “clearly and unmistakably” delegate the question of arbitrability to an arbitrator. Question Does an arbitration agreement that exempts certain claims from arbitration negate an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator? Conclusion The writ of certiorari was dismissed as improvidently granted.

Federal Republic of Germany v. Philipp Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Dec 7, 2020.Decided on Feb 3, 2021. Petitioner: Federal Republic of Germany, et al..Respondent: Alan Philipp, et al.. Advocates: Jonathan M. Freiman (for the petitioners) Edwin S. Kneedler (for the United States, as amicus curiae, supporting the petitioners) Nicholas M. O'Donnell (for the respondents) Facts of the case (from oyez.org) In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then. In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection. The respondents filed a lawsuit in federal court in the District of Columbia, invoking the expropriation exception of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” as the jurisdictional basis for their claims. Germany and SPK moved to dismiss, and the district court largely denied the motion, holding the claims fell within the scope of the expropriation exception. Germany and SPK appealed, and the U.S. Appeals Court for D.C. affirmed as to jurisdiction, reiterating its holding in a prior case that a genocidal taking is a violation of international law and rejecting Germany’s and SPK’s argument based on principles of international comity.  Question 1. Does the “expropriation exception” of the Foreign Sovereign Immunities Act provide jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders? 2. Does the doctrine of international comity preclude the exercise of jurisdiction in this case? Conclusion The expropriation exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §1605(a)(3), incorporates the domestic takings rule, which recognizes that a foreign sovereign’s taking of its own nationals’ property is not a violation of international law. Chief Justice John Roberts delivered the majority opinion for a unanimous Court. FSIA immunizes foreign sovereigns from the jurisdiction of United States courts, subject to several specific exceptions, including the so-called expropriation exception, which abrogates immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U.S.C. §1605(a)(3). The taking of property by a foreign sovereign from its own nationals, at issue in this case, does not violate international law because it does not interfere with relations among states. Known as the domestic takings rule, this principle has endured, notwithstanding developments in other areas of international human rights law. The text of FSIA’s expropriation exception supports this interpretation, as do other provisions of FSIA. Because Germany took property from its own citizens, that act did not violate international law and thus cannot be the basis for an exemption to sovereign immunity under the FSIA’s expropriation exemption.

Republic of Hungary v. Simon Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Dec 7, 2020.Decided on Feb 3, 2021. Petitioner: Republic of Hungary, et al..Respondent: Rosalie Simon, et al.. Advocates: Gregory Silbert (for the petitioners) Benjamin W. Snyder (for the United States, as amicus curiae, supporting the petitioners) Sarah E. Harrington (for the respondents) Facts of the case (from oyez.org) Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law. The district court dismissed the suit, holding that FSIA's treaty exception grants the Hungarian defendants immunity, that the 1947 Peace Treaty between the Allied Powers and Hungary set forth an exclusive mechanism for Hungarian Holocaust victims to obtain recovery for their property losses, and that permitting the plaintiffs' lawsuit to proceed under FSIA would conflict with the peace treaty's terms. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal as to the non-property claims and reversed as to the property-based claims. The court remanded the case for the district court to determine whether, as a matter of international comity, it should refrain from exercising jurisdiction over those claims until the plaintiffs exhaust domestic remedies in Hungary. On remand, the district court again dismissed the case, holding that international comity required that the plaintiffs first exhaust their claims in Hungary. Again, the D.C. Circuit reversed, noting that its intervening decision in Philipp v. Federal Republic of Germany (2018) “squarely rejected” the comity-based ground for declining to exercise jurisdiction. Question Was it proper for the district court to abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, because the plaintiffs made no attempt to exhaust local Hungarian remedies? Conclusion The Court vacated the judgment below and remanded the case to the D.C. Circuit for further proceedings consistent with Federal Republic of Germany v. Philipp, 592 U.S. ___ (2021).