An Earth Day Extravaganza: Weekly Brief for April 20

Earth Day was Wednesday, April 22. So it was only fitting that the Supreme Court decided its first environmental law cases of the term—two of them, in fact. One dealt with the process for cleaning up “Superfund” sites, and the other with point source pollution permits under the Clean Water Act. But the Court didn’t stop there; four more decisions were handed down: a landmark Sixth Amendment case, for which I wrote an in-depth analysis here; a complex immigration law case, for which you might need multiple cups of coffee and an abacus; and two intellectual property law cases, which, with all due respect, might be best read if you’re trying to fall asleep. Here’s your recap for the week of April 20.


This Week:
Decisions: 6
Opinions Relating to Orders: 1
Cases Argued: 0
Cert Grants: 1 (for O.T. 2020)
GVRs: 2

O.T. 2019:
Cases Decided: 29
Cases Remaining: 42
Weeks Left in Term: 9*

* This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, it’s likely O.T. 2019’s end date will be later due to measures taken in response to COVID-19.



First thing Monday morning, the Court released an orders list. The Court tacked on one case to next term’s docket, Van Buren v. United States. The case asks the Justices to interpret the text of the Computer Fraud and Abuse Act of 1984, which, inter alia, makes it a federal crime to “access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] information from any protected computer” (18 U.S.C. § 1030(a)(2)(C)). The question presented is whether §1030(a)(2) applies when an individual who is authorized to access protected computers (here, a local Georgia police officer) does so, but not necessarily for the purpose of his job (which is what authorizes him to access the computers in the first place). Federal courts have split on the answer. The Supreme Court will hear arguments in Van Buren next term, with a decision coming by July 2021.

Another nugget from the orders list is two GVRs in Brown v. Barr (DOJ confessed error) and Bronsozian v. United States (new lower court filing; this case involved a federal indictment for possession of a machine gun).

Finally, Justice Thomas (joined by Justice Kavanaugh) dissented from the denial of cert in Robinson v. Dept. of Education. The case dealt with federal sovereign immunity, presenting the question whether the 1970 Fair Credit Reporting Act (FCRA) allows consumers to file civil suits against federal agencies for violations under the FCRA. Federal appeals courts have split on the issue, but the Justices declined to resolve the disagreement. This split formed the crux of Thomas’ dissent. The Seventh Circuit has said the FCRA waives the federal government’s sovereign immunity, so federal loan borrowers in Illinois, Indiana, and Wisconsin can sue federal agencies for FCRA violations. But the opposite is true for borrowers in states covered by the Fourth and Ninth Circuits (MD, NC, SC, VA, and WV; and AK, AZ, CA, HI, ID, MT, NV, OR, and WA). Residents in all other states haven’t yet seen their respective federal appeals courts weigh in, so they’re stuck in legal limbo. In addition, Thomas wrote that the question whether a statute waives the federal government’s sovereign immunity is always “one of critical importance to any functioning . . . democratic republic,” and especially so “when it comes to suits for money damages.” For these reasons, Thomas (and Kavanaugh) would have granted the petition and heard the case.


Next, the Court released its decisions in three argued cases, ranging from the incorporation doctrine, to patent procedure, to guidelines for “Superfund” site cleanup.

Ramos v. Louisiana
The first decision from the bench was in Ramos v. Louisiana, which asked whether the Sixth Amendment requires a unanimous jury in all states to convict criminal defendants of serious crimes. Justice Gorsuch, writing for a 6:3 majority, answers “yes.” In the process, the Court overrules Apodaca v. Oregon (1972), which had answered “no.” The majority features a strange lineup, with Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh agreeing with Gorsuch. Justice Thomas concurred in the judgment. Justice Alito (joined by Chief Justice Roberts in full and Justice Kagan in part) dissents. For an in-depth analysis of the Court’s opinion, see my blockbuster review elsewhere on SCOTUS Predictions.

Thryv, Inc. v. Click-to-Call Technologies, LP
Next the Court decided Thryv, Inc. v. Click-to-Call Technologies, LP, a very arcane patent procedure case. The question was whether, under the 2011 Leahy-Smith America Invents Act (AIA), a decision to institute inter partes review in a patent-review case is appealable. Justice Ginsburg, writing for a 7:2 majority, says “no.”

Suppose a company (Thryv) wants to challenge the validity of another company (Click-to-Call)’s patent, which has already been granted by the U.S. Patent and Trademark Office (PTO). One method for Thryv to do so is to ask the Patent Trial and Review Board (PTAB) for inter partes review. This is a special administrative review process, and under the AIA, it can only be used if the Director of the PTO agrees to use it (see 35 U.S.C. §314(a)). The AIA says that when the Director decides whether to institute inter partes review, that decision is “final and nonappealable” (§314(d)). However, the Director’s power of decision-making is not totally unfettered; there are a few limitations. As relevant here, inter partes review may not be instituted if the request comes more than a year after Thryv initially files its patent suit (§315(b)).

In this case, Thryv filed a patent infringement lawsuit against Click-to-Call in 2001 and sought inter partes review of several of Click-to-Call’s patents in 2013. Clearly, Thryv’s request for inter partes review came well more than a year after its initial filing of the suit. However, the PTAB determined that the one-year clock did not start when Thryv filed its lawsuit because the suit was dismissed without prejudice. The Director then approved inter partes review, and the PTAB ruled for Thryv and canceled thirteen of Click-to-Call’s previously-granted patents.

Click-to-Call appealed, challenging the decision to implement inter partes review. After multiple rounds of litigation, the Federal Circuit Court of Appeals eventually concluded it had jurisdiction to hear the appeal—despite §314(d)’s categorical statement that a decision to institute inter partes review is “final and nonappealable.” The Federal Circuit then held that inter partes review shouldn’t have been granted and vacated the PTAB’s decision to revoke Click-to-Call’s patents. Thryv appealed to the Supreme Court, arguing the Federal Circuit did not have jurisdiction under §314(d).

Justice Ginsburg, writing for a 7:2 majority, agrees and vacates the Federal Circuit’s decision. She begins by reaffirming the scope of §314(d), which applies any time a decision is made to institute inter partes review under its section of the AIA. She then compares this case to Cuozzo Speed Technologies, LLC v. Lee (2016), which was strikingly similar. In Cuozzo, the Court held that §314(d) barred federal courts from reviewing the PTO Director’s decision to invoke inter partes review even though the review request there failed a different procedural requirement (not the one-year deadline implicated here). Despite whatever facts are present in a suit or the reasons the PTO Director uses to grant inter partes review, Cuozzo said, §314(d) plainly says that the decision to implement inter partes review is “final and nonappealable.” No qualifications, no exceptions. In other words, the appeals both in Cuozzo and in this case are “contention[s] that the [PTO Director] should have refused to institute an inter partes review,” Ginsburg says. §314(d) plainly prohibits this kind of challenge.

Ginsburg next thinks that Congress’ purpose and design of the AIA bolster her conclusion (notably, two of her colleagues—Thomas and Alito—withheld their agreement on this point). She lastly dispatches Click-to-Call’s fallback arguments as precluded by Cuozzo. Thus, Ginsburg holds that the Federal Circuit erred; §314(d) does not allow Click-to-Call to appeal the decision to institute inter partes review. Chief Justice Roberts and Justices Thomas, Breyer, Alito, Kagan, and Kavanaugh join in her opinion.

Justice Gorsuch (joined almost in full by Justice Sotomayor) dissents. Gorsuch does not give the Court’s opinion any slack; he says it’s flawed from the start. First, Gorsuch maintains that the PTO Director erred in deciding to use inter partes review. Recall that requests for such review have a one-year deadline under §315(b). Now, §314(d) says the PTO Director’s determination whether to institute inter partes review “under this section” is “final and nonappealable” (emphasis added). This provision is under §314—not §315. So, Gorsuch argues, the decision to overlook §315(b)’s one-year deadline can be appealed because such a decision does not entail overlooking any requirement in §314.

Second, Gorsuch admonishes the Court to look at the bigger picture. The Court’s decision relinquishes some judicial decision-making power. It says federal courts cannot review decisions to institute inter partes review under the AIA. Worse, the decision relinquishes judicial decision-making power to an executive agency: the PTO and its PTAB. Did Congress in the AIA really intend to teleport some of the power of the judicial branch over to the executive, and then prohibit the judiciary from reviewing the actions taken by the executive? Indeed, Gorsuch argues, “[i]t should come as [a] surprise to think Congress might have imposed an express limit on an executive bureaucracy’s authority to decide the rights of individuals, and then entrusted that agency with the sole power to enforce the limits of its own authority.” “Nothing in the Constitution,” he continues, allows the Court to “requir[e] patent owners to try their disputes before employees of a political branch,” and then “limit[] their ability to obtain judicial review when those same employees fail or refuse to comply with the law” (which, here, Gorsuch says is the PTO Director and PTAB’s failure to abide by §315(b)’s one-year time bar). At the end of the day, today’s decision “takes [the Court] further down the road of handing over judicial powers involving the disposition of individual rights to executive agency officials,” writes Gorsuch.

Atlantic Richfield Co. v. Christian
For the final decision on Monday, Chief Justice Roberts wrote his first majority opinion of the term. It’s an environmental law case, Atlantic Richfield Co. v. Christian, which deals with the process for cleaning up “Superfund” sites under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Here are the facts: The Anaconda Copper Smelter mine (which closed in 1985) contaminated a 300-square-mile tract of land near Butte, Montana. The Environmental Protection Agency (EPA) designated the land a “Superfund” site. In the 35 years since, Atlantic Richfield (ARCO)—which took over the mine—has been working with the EPA to clean up the site under mutually-adopted guidelines pursuant to CERCLA. During this time, a group of Montana residents purchased land (or already had owned land) within the Superfund site as private property. But these landowners became dissatisfied; they thought the cleanup procedures didn’t suffice, and they sued ARCO under Montana state law. The litigation spawned a litany of legal questions which made their way to the Supreme Court. Ultimately, Chief Justice Roberts holds that (1) the Supreme Court has jurisdiction to review the Montana court’s decision (this holding was unanimous); (2) CERCLA does not strip the Montana courts of jurisdiction over the landowners’ lawsuit (8:1); but (3) the Montana Supreme Court erred when it ruled the landowners could force ARCO to implement more stringent cleanup methods without the EPA’s approval (7:2).

After first affirming (for a unanimous Court) that the Supreme Court has jurisdiction, Roberts addresses the question whether CERCLA allows the Montana courts to hear the landowners’ lawsuit. He answers “yes,” a conclusion with which only one Justice (Alito) disagrees. It’s true that CERCLA bars state courts from adjudicating suits arising under CERCLA (42 U.S.C. §9613(b)). But the Montana landowners here didn’t sue ARCO for failing to comply with CERCLA; they sued ARCO under common law and Montana state law claims for nuisance, trespass, and strict liability. The only reason CERCLA is involved is that the parties dispute whether CERCLA precludes Montana-court review of the landowners’ state-law tort suits. Thus, Roberts says the case does not need to be dismissed on this ground.

Now Roberts gets to the meat of the case: whether the Montana Supreme Court blundered when it concluded the landowners could pursue a cleanup plan that was more intensive than what ARCO and the EPA had devised under CERCLA. Roberts says “yes” for a 7:2 majority (Thomas and Gorsuch excepting).

CERCLA says a “potentially responsible party” for the contaminated site cannot engage in any kind of cleanup operations without the EPA’s approval (42 U.S.C. §9622(e)(6)). (That approval must be presaged by an EPA investigation and feasibility study.) The Montana Court held that the landowners were not “potentially responsible” parties and thus did not need EPA approval to pursue additional cleanup. The problem, however, is a different CERCLA provision, §9607(a). It lists four different classes of persons that qualify as “potentially responsible part[ies].” One is any “owner and operator . . . of a facility,” and “facility” is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located” (§9601(9)(B)). Thus, Roberts says, the text of CERCLA makes the current landowners “potentially responsible part[ies],” since they own (parts) of the area of land that has been contaminated with arsenic and lead tailings from the copper mine. Therefore, they cannot force ARCO to engage in additional cleanup measures without obtaining EPA approval first.

You might contend this is unfair (and I don’t necessarily disagree). After all, can it really be true that by purchasing part of the Superfund site, the Montana landowners essentially shot themselves in the foot? Some of them owned their plots of the Superfund site before it became such, and before anyone even knew the mine was contaminating the land. They were simply private residents who had nothing to do with the operation of the mine. So can it really be that they’re prohibited by CERCLA from getting their land cleaned up—to their definition of an acceptable degree—without EPA approval? Well, regrettably, yes. This is precisely what the language of CERCLA says (putting aside the whole “buyer, beware” adage for those that bought later). Like it or not, the Court is bound by it. Under the current language of CERCLA, the landowners are “potentially responsible part[ies],” whether they simply resided on the land before it became the Superfund site or instead purchased part of the land after the EPA stepped in. If you think CERCLA should read differently, that’s fine: call up your Congressman and have §9607(a) amended (and today’s decision overturned). The Court, unfortunately, can’t do this for them.

Regardless, Roberts holds that the Montana Supreme Court erred when it concluded the landowners weren’t “potentially responsible part[ies]” and remanded the case.

Justice Alito concurred in part and dissented in part. He agrees that the Court has jurisdiction to review the Montana Supreme Court’s decision, and that the Montana Supreme Court gaffed on the “potentially responsible party” issue. However, Alito disagrees where Roberts concludes that state courts can review challenges to EPA-approved CERCLA cleanup plans. He wouldn’t even opine on that issue. His reason being, there are two outcomes on remand. The Montana Supreme Court can either (1) enter a stay to allow the landowners to try to seek EPA approval for their added cleanup measures, or (2) dismiss the case entirely since the landowners don’t have such EPA approval at this juncture. Either way, if the landowners’ suit is to survive, it must get the assent of the EPA. But bad news: the EPA so far has not looked favorably on the landowners’ plan and is not likely to give them the green light, Alito notes. Thus, the case is likely to die, and Roberts’ opining on state court jurisdiction under CERCLA is merely “academic,” he writes.

Further, Alito is positively bewildered at what CERCLA itself has to say on the issue. Its provisions are “a puzzle with pieces that are exceedingly difficult, if not impossible, to fit together,” he quips. In short, after unsuccessfully attempting to solve the puzzle (which he thinks involves a convoluted four-step process), Alito simply throws his hands up. Either this part of CERCLA is “a piece of very bad draftsmanship, with pieces that cannot be made to fit together,” he says, or it’s a “puzzle with a solution that neither the parties, the Court, nor I have been able to solve.” He’d prefer to wait for a later case with briefing and oral argument to decide the question, rather than plow ahead as Roberts does.

Justice Gorsuch, joined by Justice Thomas, also concurred and dissented in part. He agrees with Roberts that the Court has jurisdiction to review the lower court’s decision (and also that state courts can review challenges like the one at issue here, contra Alito). But there his agreement stops. In essence, Gorsuch reads the Court’s decision as saying CERCLA preempts the state tort law claims at issue. But CERCLA is not a statute that “supplant[s]” state guidelines for cleanup procedures, he says; it’s meant to “supplement” them. Three of its provisions all say something like the following: “Nothing in this [Act] shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State” (42 U.S.C. §9614(a)). This is essentially an anti-preemption clause. Gorsuch furthers offers a collection of textual and jurisprudential rebuttals to points Roberts makes.


The Court held no proceedings on Tuesday and Wednesday.


The Court issued three more decisions on Thursday.

Barton v. Barr
Fire up your Keurig and get out your abacus; Barton v. Barr might win the award for Most Complex Case of the term. (If not, it’s a close second to Kansas v. Garcia from a few weeks ago.) Indeed, as the Court’s majority opinion notes, the arguments in the case “are not easy to unpack.” Context is necessary before I get to the Court’s decision.

A “lawful permanent resident” (LPR) is a legal immigrant, often called as a “green-card” holder. Now, suppose John Doe is an LPR who has been living in the United States since 1990. If John commits certain serious crimes, there are penalties for his immigration status. Most notably, an immigration judge can begin administrative proceedings to remove John from the country. However, even if the judge finds that John’s crime qualifies as a “removable” crime—i.e., that John’s actions have made him eligible for removal under federal immigration law—all hope is not lost for John. He can petition the judge to “cancel” removal, as long as John meets certain statutory criteria.

One criterion is that John has “resided in the United States continuously for 7 years after having been admitted in any status” (8 U.S.C. §1229b(a)(2)). So, great: If John, an LPR, was admitted into the U.S. on January 1, 1990, and has resided here ever since, he should meet the criterion, right? Well, there’s a caveat. There’s what’s called the “stop-time” rule. If, during an immigrant’s accumulation of seven years of residency, he commits a crime that would render him either “inadmissible” or “deportable,” the stopwatch stops; the seven-year accumulation halts (§1229b(d)(1)(B)). Now, “inadmissibility” applies only to immigrants who are seeking physical entry into the U.S. (not applicable to our John Doe, since John is currently living in the U.S.); “deportability” applies only to immigrants who are already in the U.S. (applicable to John). Of absolutely crucial importance: some of the types of crimes that make an immigrant inadmissible are different than the types of crimes that make an immigrant deportable. (Don’t ask me why. Ask Congress since it wrote the statute.)

So, let’s apply this scheme to our John Doe. Suppose John is convicted of a “removable” crime in 2016, and the federal government initiatives removal proceedings. John then asks the immigration judge to cancel removal, asserting that he has met the seven-year continuous-residency requirement (since he has been living in the country since January 1, 1990). 

But wait.  

In 1996—six years (not seven) after John began his continuous residence in the U.S.—John committed aggravated assault. Under the “stop-time” statute above, this type of crime renders an immigrant inadmissible (though it does not render an immigrant deportable). Aha!, the government says: John, your aggravated assault conviction triggers the stop-time rule. Hence, John failed to acquire the necessary seven years’ continuous residence and is therefore ineligible for cancellation of his removal proceedings.

But wait.

Yes, John’s aggravated assault would make him inadmissible. But he’s not seeking admission into the U.S.; he’s already here. Thus, John can only be subject to the stop-time rule if he had committed a deportable offense in 1996. And, per the statute above, aggravated assault is not a deportable offense. Thus, John responds to the government, his accumulation of seven years’ continuous residence didn’t halt in 1996; he has now acquired the necessary seven years’ residence; and he is eligible for cancellation of removal.


Believe it or not, that is exactly what happened here in Barton v. Barr (except the immigrant’s name was Andre Barton, not John Doe). If you’ve got a headache, I don’t blame you.

So, the question presented is whether the “stop-time” rule is invoked if an LPR (1) who is in the United States (2) commits an offense (3) that would render him inadmissible but not deportable and (4) commits that offense during the accumulation of his seven years’ continuous residence.

Justice Kavanaugh, writing for a 5:4 majority, answers “yes.” (Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch agree.) Kavanaugh first recaps the complex record of facts and statutory provisions. He then turns to the text of §1182a(2), which deals with “inadmissible” crimes. An LPR is rendered inadmissible at the point at which he is convicted of or admits to the offense (§1182a(2)(A)(i)). So, Andre Barton was convicted of an “inadmissible” crime, and he committed that crime during his seven years of continuous residence. Therefore, Kavanaugh concludes, the stop-time rule is invoked, and Barton is ineligible for cancellation of removal.

Kavanaugh then addresses Barton’s argument (and the dissent’s linchpin) that because Barton’s crime is not one that renders him deportable (but only inadmissible), and because he is not seeking admission into the U.S., his offense cannot possibly trigger the stop-time rule. Kavanaugh admits this argument does “carry some force.” And while he attempts to rebut it, those attempts are a bit crabbed. First, he simply restates what §1182a(2) says. An LPR “who commits a crime” that renders the LPR inadmissible “and is convicted of that offense is inadmissible. Full stop” (internal citation and quotation marks omitted). In other words, the statute does not bend to semantic arguments like the one advanced by Barton. Second, Kavanaugh points out that other immigration provisions also apply penalties to LPRs who are in the United States and yet commit an “inadmissible” offense.

On the other hand, Justice Sotomayor’s dissent is a bit more enticing (joined by Justices Ginsburg, Breyer, and Kagan). The majority’s opinion creates a “paradox,” she says: Barton has been admitted to the U.S.—and yet he’s inadmissible? “Neither the express language of the statute nor any interpretative canons support” this bizarre conclusion, she says. To Sotomayor, the stop-time rule can only apply to an admitted LPR like Barton if a deportable offense is committed within the relevant time frame.

First, she details the long, “two-track[ed]” history of inadmissibility and deportability in immigration law. They are “separate concepts, triggered by different grounds,” she says. And “[w]ith few exceptions, the grounds for inadmissibility are broader than those for deportability.” Next, she homes in on Barton’s “surely correct” argument that, as an admitted immigrant, he cannot be inadmissible—an argument which the majority “fails to grapple with meaningfully,” Sotomayor jabs. “Inadmissible” and “deportable” are used in the statute as mutually exclusive disjuncts. It follows, Sotomayor writes, that they must be interpreted in light of immigration law’s two-tracked background. If an LPR commits an inadmissible offense, he cannot be admitted into the country; if an LPR commits a deportable offense, he cannot remain in the country. But you can’t get your wires crossed. So if an LPR commits a deportable offense, he necessarily cannot be “denied admittance,” because the very nature of a deportable offense requires the LPR to have already been admitted to the country (and now requires his removal from the country).

Finally, Sotomayor argues the majority opinion mangles the text of the stop-time provision. The provision says that the accumulation of seven years’ continuous residence is halted when an LPR commits “an offense referred to in [§1182(a)(2)] that renders the alien inadmissible to the United States under [§1182(a)(2)or removable from the United States under §1227(a)(2) or 1227(a)(4) of this title, whichever is earliest” (emphasis added). Barton’s offense in 1996 was aggravated assault, which is included in §1182(a)(2) (and thus is an inadmissible crime) and is not included in §§ 1227(a)(2) or (a)(4) (and thus isn’t a deportable one). So, since the majority concludes the stop-time rule is triggered by aggravated assault, it jettisons the italicized words from the statute. Now, the stop-time rule is invoked if an LPR commits “an offense” (here, aggravated assault) that is “referred to in §1182(a)(2).” Full stop. The majority has effectively erased the language of the provision that signals the difference between inadmissible and deportable crimes. This conclusion, Sotomayor says, “completely ignores what Congress wrote” in the stop-time provision. (So it’s a bit ironic when Kavanaugh ends his majority opinion with a salvo that it’s Congress who’s compelling the Court to come to the majority’s interpretation of the statute’s text.) “Had Congress intended for commission of a crime in §1182(a)(2) alone to trigger the stop-time rule, it would have said so,” Sotomayor declares.

Romag Fasteners, Inc. v. Fossil Group, Inc.
After that exhausting case, the Court decided its second intellectual property case of the week. This one involves the interpretation of a trademark infringement statute. And good news: this decision was far more straightforward than Barton v. Barr.

Under the 1946 Lanham Act, a company that has been the victim of trademark infringement can seek damages if it can prove that the infringing company “violat[ed] . . . [15 U.S.C.] §1125(a) or (d),” or “willful[ly] violat[ed] §1125(c)” (emphasis added). Now, suppose a company (here, Romag) is able to prove that the infringing company (here, Fossil) violated §§ 1125(a) or (d), but is unable to prove that the company willfully violated §1125(c). Must Romag then also prove a willful violation of §§ 1125(a) or (d) to obtain damages? If it seems that the answer is fairly clear, don’t get ahead of yourself. All twelve regional circuit courts of appeals have weighed in; six have (understandably) said no, and six have (confoundingly) said yes.

In a crisp, seven-page opinion, Gorsuch sides with the “no” camp. (Eight Justices agreed in full; Sotomayor concurred in the judgment.) First, to require Romag to prove a willful violation of §§ 1225(a) or (d) would be to quite literally “read into [the] statutes words that aren’t there,” Gorsuch notes. Moreover, the Court “doubly avoid[s]” doing so when Congress deliberately wrote that exact language into a neighboring provision and left that language out in the provisions at issue. Gorsuch then refers the reader to other provisions in the Lanham Act. Each makes it clear when Congress intended to create a mens rea standard. So the “absence” of any such standard in §§ 1225(a) or (d) is “all the more telling.”

In defense, Fossil tries to argue that equity courts have historically required a mens rea showing when a company seeks damages after trademark infringement. The problem is that this fails to account for the absence of any such requirement in §§ 1225(a) or (d). For Fossil’s argument to carry the day, the Court would have to “assume that Congress intended to incorporate a willfulness requirement here obliquely while it prescribed mens rea conditions expressly elsewhere throughout the Lanham Act,” Gorsuch notes.

Ultimately, the statutes at issue are crystal clear. Had Congress meant there to be a willfulness element to §§ 1225(a) or (d), it could have written one in. But it didn’t. For the Court to do so regardless would be to change the plain text of the statute—a job reserved for Congress. Gorsuch concludes thusly and overturns the lower court decision which had concluded differently.

Justice Alito (joined by Justices Breyer and Kagan) penned a short, one-paragraph concurrence. He notes that when the Court originally granted the case, the question presented was whether willfulness is a “necessary prerequisite” to obtaining damages under 15 U.S.C. §1117(a) (which contains the disputed language of §§ 1225(a), (c), and (d)). It clearly isn’t, since §1117(a)’s plain text says that willfulness is not a prerequisite to damages when §§ 1225(a) or (d) are concerned (which is what the majority holds). So, Alito agrees on this point.

Finally, Justice Sotomayor concurred in the judgment. She principally agrees with the substance of Alito’s concurrence, and she adds a few pointers about the majority’s discussion of courts of equity.

County of Maui, Hawaii v. Hawaii Wildlife Fund
The final decision of the week comes from Justice Breyer in County of Maui, Hawaii v. Hawaii Wildlife Fund, an environmental law case. A little word of note: it’s an interesting one.

Under the Clean Water Act of 1972 (CWA), a person needs a permit to discharge point source pollutants into navigable waterways. But what if point source pollutants are conveyed via a nonpoint source (in this case, groundwater) into navigable waterways? Must the person discharging the point source pollutants obtain a permit here too? Breyer, writing for a 6:3 majority, strikes a compromise and ultimately says “sometimes.” Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh agree.

Everything in this case hinges on the word “from,” Breyer says. Is pollution that comes “from” a point source and is conveyed by a nonpoint source to, say, the ocean “pollution from a point source?” The County of Maui says no; “from” denotes a direct link between the pollution’s source and the navigable waters. If there is at least one nonpoint source between the point source and the navigable waters, then the pollution does not come “from” the point source (rather, it comes “from” the nonpoint source)—and hence the CWA does not require a permit in this case. The Hawaii Wildlife Fund, however, argues oppositely. Pollution comes “from” a point source if it is “fairly traceable” to such a source, even if it has traveled through a nonpoint source medium.

An analogy best illustrates the issue here. Suppose John Q. Citizen is born in Germany and moves to Chicago at age 30. At a conference down the road, a business partner asks John where he’s from. Does he say Chicago or Germany?

Both answers are technically correct, and yet both prima facie have problems in the context of the CWA. Suppose we say that the Hawaii Wildlife Fund has it right—that a permit is required whenever the pollution’s origin is a point source, no matter how many steps are in between the origin and the pollution’s deposition in navigable waters (this would be the Germany answer). So does a family with a sewage line need a CWA permit since the sewage line might seep into groundwater, and, over the course of 250 miles and 100 years, into rivers and lakes? Or, as Breyer says, how about when pollutants are carried 500 miles to the ocean on a bird’s feathers? Clearly these “bizarre” examples were not meant to fall under the CWA’s umbrella.

But on the other hand, consider the County of Maui’s position: a company discharging pollutants needs a permit only if the pollutants are transferred directly from a point source to open waters; if there is any medium whatsoever, no permit necessary (this is the Chicago answer). To use Breyer’s example, suppose a discharge pipe spews sewage directly into the ocean. To wriggle out of the CWA’s permit requirement, the pipe’s owner could simply move the pipe back a yard so that the pollution must traverse three feet of groundwater before entering the ocean. Hence, there is a medium (nonpoint source groundwater) between the pollution’s point source and its deposition in navigable waters, and thus no permit is needed. Clearly the CWA isn’t meant to greenlight this “loophole” either.

Taking the middle route, Breyer holds that the CWA “requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge” (emphasis in original). This language “best captures” the circumstances in which the CWA intended the permit requirement to apply,” he claims. In other words, pollutant discharge requires a permit when (1) “a point source directly deposits pollutants into navigable waters,” or, crucially, (2) “when the discharge reaches the same result through roughly similar means.” Though Breyer doesn’t say what qualifies as “roughly similar means,” he does refer back to his hypotheticals. The pipe that is moved just a few feet inland from the ocean does indeed require a permit. But a pipe that ends “50 miles from navigable waters and . . . emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later . . . likely do[es] not.”

For readers who are still skeptical, Breyer attempts to reassure you that, in time, several government entities will have the chance to make this rule clearer. Subsequent litigation will provide guidance based on individual facts. The CWA itself will yield more information when read in tandem with today’s decision. And the Environmental Protection Agency—the agency responsible for granting and reviewing CWA permits—has the statutory authority to expand on the Court’s decision and issue new guidelines for when a pollution source needs a permit.

Justice Kavanaugh authored a short concurrence, in which he agrees with the majority “in full” and simply wants to underscore three things. First, the Court’s opinion aligns with precedent in Rapanos v. United States (2006) (plurality opinion). Second, Rapanos noted that the CWA doesn’t create any sort of “bright-line” test for determining whether a pollution source requires a permit. So, this absence stems not from Rapanos but from the CWA itself. And third, Kavanaugh issues a quick rebuttal to a point advanced in Thomas’ dissent.

Speaking of which, Justice Thomas (joined by Justice Gorsuch) would have sided with the County of Maui (the “Chicago”) answer: the CWA requires a permit only when the pollutants are discharged directly from the point source to the navigable waterways (i.e., there cannot be any medium). Notably, Thomas takes issue with the majority opinion’s “minimal” guidance for its new “functional equivalent” rule.

Justice Alito also penned a separate dissent—one far more biting than Thomas’. In essence, Alito calls out the majority’s opinion as judicial policymaking. Reading the CWA, either the “Germany” answer or the “Chicago” answer is correct. And yet the Court “refuses to accept either,” believing both “lead to unacceptable results,” Alito says. Its compromise solution doubly errors: it is “not a plausible interpretation” of the CWA’s text and, á la Thomas, is naked of guidance. Instead, Alito would adopt the “Chicago” answer (like Thomas): the CWA requires a permit when pollutants are directly conveyed from point 1 to point 2, with no point 1.5 (or a “functional equivalent”). (As an aside, Alito writes his own dissent and does not join Thomas’ because of an arcane liability point and a doctrinal argument relating to Rapanos. I won’t discuss the differences here, as they appeal only to legal/technical nuts and would take far too many words for this already-long brief. For curious readers, see Part II of Thomas’ dissent and footnote 5 of Alito’s dissent.)


The Court conducted its weekly, private (tele-)conference on Friday. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s next orders list on Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment permits a state to sue the leader of a protest for criminal negligence, even where the leader does not necessarily instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

On Monday, the Court at 9:30am EDT will release orders from Friday’s conference, and there is a possibility of opinions at 10:00am. On Friday, the Court will meet for its next weekly conference.

Photo Credits: Arizona Mirror (2019)

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