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OF UNITED STATES SUPREME COURT CASES

PREVIEWPREVIEWIssue No. 4 | Volume 44 | January 9, 2017

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Previewing the Court’s Entire

January Calendar of Cases, including …

Lewis v. Clarke This appeal centers on an action for damages from a motor vehicle accident brought against a driver employed by the Mohegan Tribal Gaming Authority who was transporting casino patrons. The Connecticut Superior Court denied the respondent’s motion to dismiss the case based on tribal sovereign immunity, but the Connecticut Supreme Court reversed. It extended the doctrine of tribal sovereign immunity to individual tribal officials acting in their representative capacity and within the scope of their authority.

Lee v. TamSimon Tam is the front man for an all-Asian American dance-rock band called The Slants. Tam formed the band in part to express and promote his views on discrimination against Asian Americans. As part of his effort, he named the band to reappropriate a traditionally derogatory term used to insult Asian Americans and sought to trademark the name. The Patent and Trademark Office rejected Tam’s patent application for the band’s name as a “disparaging” trademark. The Court must now determine whether such a rejection violates the First Amendment.

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ADVISORY COMMISSION ON PUBLIC EDUCATIONJoEllen AmbroseAndover, MN

Alpha J. BuieSouth San Francisco, CA

William E. Cannon, JrWaynesville, NC

Anita CaseyCharleston, WV

Mia CharityAlexandria, VA

Michael D. GolerCleveland, OH

Leslie Ann HayashiHonolulu, HI

Michelle HerczogCulver City, CA

Sebastian KaplanSan Francisco, CA

Gary KempWashington, DC

Frank D. LoMonteWashington, DC

Elisabeth J. MedvedowNewton, MA

Mark S. WeinerHamden, CT

ChairHarry S. JohnsonBaltimore, MD

Alice A. BrunoNew Britain, CT

Stephen E. ChappelearColumbus, OH

Barbara Kerr HoweTowson, MD

David Morrow IIElon, NC

Dan NaranjoSan Antonio, TX

Adrienne NelsonPortland, OR

G. Michael Pace Jr.Salem, VA

Rachel PauloseMinneapolis, MN

Geraldine G. SanchezPortland, ME

Julie M. StrandlieAlexandria, VA

Lisa Michelle TatumSan Antonio, TX

Paul ZavalaAnn Arbor, MI

Chair, Gavel AwardsStephen EddsRidgeland, MS

Chair, Law DayStephanie ParkerAtlanta, GA

Board of Governors LiaisonBernard T. KingSyracuse, NY

Law Student LiaisonDarius JohnsonAtlanta, GA

Young Lawyers Division LiaisonSeth NadlerBrooklyn, NY

STANDING COMMITTEE ON PUBLIC EDUCATION

U.S. SUPREME COURT January 2017 CALENDAR

JANUARY 16Legal Holiday

JANUARY 17Lynch v. Dimaya

Midland Funding, LLC v. Johnson

JANUARY 18Lee v. Tam

Ziglar v. Abbasi, Ashcroft v. Abbasi, and Hasty v. Abbasi

MONDAY

JANUARY 9Nelson v. Colorado

Lewis v. Clarke

TUESDAY

JANUARY 10Expressions Hair Design v. Schneiderman

Goodyear Tire v. Haeger

WEDNESDAY

JANUARY 11Endrew F. v. Douglas County School District RE-1

CONTENTS

This month, the PREVIEW website (www.supremecourtpreview.org) features:

• a sign-up for our weekly e-blasts highlighting all the merits and amicus briefs submitted to the Court and

• all the merits and amicus briefs for the January cases.

Issue No. 4 | Volume 44

January 9, 2017

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CIVIL RIGHTSZiglar v. Abbasi, Ashcroft v. Abbasi, and Hasty v. Abbasi 117

DUE PROCESS Nelson v. Colorado 121

FAIR DEBT COLLECTION PRACTICES ACTMidland Funding, LLC v. Johnson 131

FIRST AMENDMENTLee v. Tam 107

FREE SPEECHExpressions Hair Design v. Schneiderman 113

IMMIGRATION LAWLynch v. Dimaya 104

INDIAN LAW Lewis v. Clarke 100

INDIVIDUALS WITH DISABILITIES EDUCATION ACTEndrew F. v. Douglas County School District RE-1 124

REMEDIESGoodyear Tire v. Haeger 111

PREVIEW of United States Supreme Court Cases100

ISSUESIs the Lewises' tort claim barred by the doctrine of sovereign immunity?

Is the Lewises' tort claim barred by the doctrine of offi cial immunity?

FACTSA vehicle occupied by petitioners Brian and Michelle Lewis was struck from behind by a vehicle driven by respondent William Clarke on Interstate 95 in Connecticut. Clarke was employed by the Mohegan Tribal Gaming Authority (MTGA), an arm of the Mohegan Tribe of Indians of Connecticut (the tribe). Passengers in the vehicle were patrons of the Mohegan Sun Casino.

The tribe provides a forum for civil suits arising from automobile accidents but prohibits punitive damages, damages for loss of consortium, noneconomic damages in excess of two hundred percent of the proven actual damages, or damages in excess of the limits of any applicable liability insurance policy. The tribe also affords the employee a defense and indemnifi cation.

Clarke argued that the MTGA was entitled to sovereign immunity because it is an arm of the Mohegan Tribe and that he as an employee likewise was immune because he was acting within the scope of his employment. The Connecticut Supreme Court agreed. It distinguished Maxwell v. County of San Diego, a 2013 decision from the Ninth Circuit that did not extend immunity to an employee, because Maxwell involved gross negligence, and actions involving more than negligence are often deemed to be outside the scope of employment and therefore not immune. 708 F.3d 1075.

CASE ANALYSISStatutory immunity derives from common law “that the king can do no wrong.” This case is about whether the law also says that an employee of an Indian tribe also can do no wrong. Or, as petitioners pugnaciously state, “[Should a] tribal employee transporting gamblers to and from a casino ... be treated as somehow akin to a foreign ambassador[?]”

The petitioners' argument in a nutshell is that tribal sovereignty goes only so far, as does sovereignty protecting other governments. Their key point is the distinction between individual- and offi cial-capacity lawsuits. In this particular case, the petitioners argue that the defendant is the driver in his individual capacity, not the tribe, and that distinguishes the case.

Although sovereign immunity protects offi cers when the suit is really seeking relief against the sovereign, such as in an offi cial-capacity suit, it does not bar damages suits against individuals, petitioners continue. An offi cial-capacity suit is really against the offi ce, not the offi ceholder, and the offi ce or government would pay the damages. In an individual-capacity suit, the offi cial is personally responsible for the damages and his or her assets may be seized to satisfy the judgment. Federal or state sovereign immunity does not bar individual-capacity actions against government employees, petitioners argue, and in this instance tribal government should be treated no differently.

Petitioners assert that the Connecticut Supreme Court (and other courts) used the wrong test to evaluate the case. The Connecticut court focused on the capacity in which the defendant acted and relied on the fact that Clarke was an employee acting in the scope of

Lewis v. Clarke Docket No. 15-1500

Argument Date: January 9, 2017From: The Supreme Court of Connecticut

by Barbara L. JonesMinnesota Lawyer

CASE AT A GLANCE This appeal centers on an action for damages from a motor vehicle accident brought against a driver employed by the Mohegan Tribal Gaming Authority who was transporting casino patrons. The case initially also named the tribe, but the tribe was later dropped. The Connecticut Superior Court denied the respondent’s motion to dismiss the case based on tribal sovereign immunity, but the Connecticut Supreme Court reversed. It extended the doctrine of tribal sovereign immunity to individual tribal offi cials acting in their representative capacity and within the scope of their authority.

I N D I A N L AW

Is a Tribal Employee Immune from an Individual-Capacity Tort Claim for Conduct Occurring Off the Reservation?

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his employment. That test has also been used by the Second Circuit and the Montana Supreme Court.

The correct standard, according to petitioners, is whether the relief sought is against the individual or the sovereign. That approach is followed by the Supreme Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and the Ninth Circuit in Maxwell. In that approach, the question becomes in what capacity is the officer sued, not in what capacity the tort occurred. The bar against official-capacity claims does not mean officers are immunized from individual liability for actions taken in their official capacity.

Additionally, petitioners contend that federal or state sovereign immunity does not bar individual-capacity actions against employees of other governments, and in this instance tribal government should be treated no differently. Perhaps the best-known example of such an action is the 1971 Supreme Court case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388. Under Bivens, the plaintiff may seek damages from the defendants in their individual capacities without running into a sovereign immunity wall. Other case law has resulted in similar rulings.

Congress has allowed state-law claims against federal officials under the Federal Employees Liability Reform and Tort Compensation Act and limited, but did not entirely eliminate, the personal liability of federal employees, petitioners continue. Similarly, individual-capacity claims may be brought against state officials without an Eleventh Amendment problem, petitioners argue, citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945) and Lapides v. Board of Regents of Univ. Sys. of GA, 535 U.S. 613 (2002).

Turning to policy arguments, the petitioners argue that extending tribal sovereign immunity to bar actions against employees is not necessary to protect the sovereign dignity of tribes, the tribal fisc, or tribal self-government. There is no reason that tribal immunity should be broader than the immunity of the federal or state government and no Supreme Court precedent says that it should be or should be extended to tort victims.

Continuing, petitioners argue that suits against individuals do not force the tribe into a coercive process or threaten the tribe's finances, since the tribe is not liable for the verdict. Tribal autonomy is not implicated by the application of nondiscriminatory laws, particularly where the employees are engaged in commercial activity.

An extension of immunity would, however, represent an unwarranted intrusion on state regulatory authority that exists on and off a reservation, argue petitioners. Such authority extends to tort claims, and it is beyond the tribe’s authority to deprive tort victims of compensation or to limit the jurisdiction of state courts.

The respondent makes a primarily policy argument—that the tribe should have immunity and that the petitioners’ argument is based on “happenstance,” i.e., the fact that the respondent was employed by the tribe and not a different government unit such as a state or federal argument. Some might view this as arguing that if the facts were different, the respondent would prevail. Most lawyers would like to be able to change the facts in their cases.

To respondent, the case is about whether the court should proceed under sovereign immunity or official immunity. Both terms have been used by the courts. “The inconsistent nomenclature may reflect the fact that, in the tribal context, the terminology makes little functional difference: Both forms of tribal immunity are defined by federal common law and subject to Congress’s ‘plenary control,’” he notes.

Respondent argues that sovereign immunity bars the lawsuit, because the tribe is the real party in interest. The tribe authorized the respondent’s acts, promised to indemnify him and through that law, substituted itself as a defendant in its own court. Since the tribe is legally obligated to indemnify Clarke if he incurs a damage claim, the lawsuit is “in essence” against the tribe, Clarke argues.

The Court may question whether insurance or other avenues of indemnification would be used to establish jurisdiction or liability in another context. Insurance companies are often the “real party in interest.” However, financial responsibility has been important to the Court.

Respondent notes that in 1994, the Supreme Court ruled that a sovereign’s obligation to pay a debt extends immunity to the sovereign’s instrumentality, and the same should be the result for an official. But in that case, Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, the Court decided that the Eleventh Amendment did not require extension of immunity to the Port Authority. However, it also relied on the fact that the Port Authority would pay its own bill.

Also informing the question is whether the sovereign pays the adverse judgment, not only whether the judgment is against the sovereign, respondent says. The latter “bright line” rule—who is the judgment debtor—has not been drawn by the court, respondent argues, and the caption of the lawsuit is not the sole determinant of immunity.

Another important consideration in evaluating an immunity claim is the government’s control over the defendant, not really an issue in this case, since Clarke was acting in the scope of his employment. Under this “two-pronged functional approach” and with emphasis on the financial obligation of the tribe, it is the real party in interest, respondent says. And that is not only for fiscal reasons; it is also because without tribal immunity, the state could exercise dominion over the tribe, he continues.

Alternatively, respondent continues, if he alone is considered the real party in interest, then he should receive official immunity, first recognized in this Court (outside the tribal context) in 1959. Tribes and their officials are entitled to immunity to protect the function of the tribes’ government, just as immunity protects other governments, he says. There may be some skirmishes over the fact that earlier pleadings have referred to sovereign immunity only.

Respondent devotes more than twenty pages of his brief to persuading the Court to establish official immunity for tribal employees. Tribal geography that requires travel and financial need that requires “outward-facing activities” support establishing the doctrine. The United States supports the respondent as amicus in this line of argument (the government’s argument is further detailed below). Official immunity is a creature of the common law, respondent points out, meaning that it is within the Court’s purview

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as this case is presented. It would align with case law extending official immunity to federal employees and be congruent with the Federal Tort Claims Act.

He contends that the “only real dispute” is what the scope of the immunity should be. Fairness dictates that it be absolute as per the Westfall Act, which does not differentiate employee conduct that occurs within the scope of employment, respondent asserts. Westfall is a clear statement of congressional intent and policy, he continues. It would be “deeply anomalous” if federal law treated tribal officials less favorably than state or federal employees or foreign visitors to American courts, respondent argues.

Respondent also argues that important federal policies support immunity—protecting the sovereign dignity of the tribes, safeguarding their funds, and otherwise aiding in the proper functioning of governments. Petitioners still have an adequate remedy in tribal court, he argues.

SIGNIFICANCEViews on this case obviously differ sharply inside and outside Indian Country. Indian Country closely watches the Supreme Court out of concern for its dignity and independence.

A case from last summer similarly was viewed as a commentary on the strength of tribes. In June, in Dollar General Corporation v. Mississippi Band of Choctaw Indians, 579 U.S. __ (2016), the eight-member Court split 4-4 on the question of tribal court jurisdiction, affirming without opinion the tribal court’s jurisdiction over a civil claim for the sexual molestation of a youth tribal member. Before that decision, SCOTUSblog reported that “Indian Country is watching this case carefully, understanding that a ruling for Dollar General is a blow to the nation-building process and the institutional strength of tribal courts.” (http://www.scotusblog.com/2015/11/argument-preview-the-future-of-tribal-courts-the-power-to-adjudicate-civil-torts-involving-non-indians/). The key difference is that Dollar General had a store on the reservation and a business relationship with the tribe. It might be another matter entirely to deny tort victims access to state or federal courts.

Justice Elena Kagan observed in Dollar General that “[w]e have never … specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.”

Similarly, in 2014, the Court upheld the Sixth Circuit’s ruling that tribal sovereign immunity banned a suit against a tribe to enjoin the construction of a casino outside of Indian lands in Michigan v. Bay Mills Indian Community et al., 134 S. Ct. 2024. That was a 5-4 decision with Justice Clarence Thomas dissenting, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Alito dissenting. The dissent argued that “[s]overeign immunity is not a freestanding ‘right’ that applies of its own force when a sovereign faces suit in the courts of another.” Presumably, the Bay Mills Indian Community dissenters would agree that sovereign immunity would not apply to a sovereign’s employee. The majority opinion in

Bay Mills relied on considerations of stare decisis, which may not apply in this case.

Other critics of the plaintiffs’ position worry that the tribe’s sovereign immunity would be evaded by filing lawsuits against individuals rather than the tribe. That concern is reflected in the Second Circuit’s 2004 decision extending immunity to Indian tribe or gaming employees, Chayoon v. Chao, 355 F.3d 141. (http://thepolitic.org/stella-on-scotus-lewis-v-clarke-2/)

Others worry, like Clarke, that tribal self-government will be damaged by a ruling for plaintiffs and that tribes will then limit the services they provide. (https://turtletalk.wordpress.com/2016/10/06/lewis-v-clarke-background-materials/)

The United States has filed an amicus brief in support of reversal, focusing on official immunity and sovereign immunity. The United States argues that sovereign immunity conferred on federal employees is coupled with an immunity allowing suits against the government in those cases. Similarly, Congress has substituted the United States for some tribal employees under the Federal Tort Claims Act but has not done so here.

But the United States offers an alternative: “The Connecticut courts could, however, extend a broader immunity defense to tribal employees, or defer to the Tribe’s waiver of its sovereign immunity or to tribal law, as a matter of comity. The Connecticut courts would be free on remand to consider the possibility that respondent is entitled to an official-immunity defense to the extent that issue remains open as a procedural matter.” That alternative could make sense to the Supreme Court or it could be seen as a bridge too far.

In a joint brief, the Connecticut Trial Lawyers Association and the American Association for Justice make a convincing, if predictable, argument: that tort victims should not be left without a remedy. They also argue that Connecticut’s decision improperly has extended tribal immunity beyond the principles of sovereign immunity.

“The critical point to consider is that this Court’s resolution of this question will create a rule affecting all persons across this country who find themselves victim to a tribe employee’s negligence, regardless of which tribe that employee works for, where the tribe is located, or what, if any, limited remedies are offered by the tribe,” the associations argue, asking for a reversal and remand.

Barbara Jones is an attorney and editor of Minnesota Lawyer newspaper. She can be reached at [email protected] or 651.587.7803.

PREVIEW of United States Supreme Court Cases, pages 100–103. © 2017 American Bar Association.

ATTORNEYS FOR THE PARTIES For Petitioner Brian Lewis (Eric D. Miller, 206.359.8000)

For Respondent William Clarke (Neal Kumar Katyal, 202.637.5600)


AMICUS BRIEFS In Support of Petitioner Brian Lewis

Connecticut Trial Lawyers Association & American Association for Justice (Dana Marie Hrelic, 860.522.8338)

In Support of Respondent William ClarkeNational Congress of American Indians (Jennifer H. Weddle, 303.572.6500)

Ninth and Tenth Circuit Tribes (Ian Robert Barker, 415.882.5082)

The Otoe-Missouria Tribe of Indians (Richard G. Verri, 202.652.0579)

Seminole Tribe of Florida (Joseph H. Webster, 202.822.8282)

In Support of ReversalUnited States (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)

Tracking the Term*

25 – Number of oral arguments

5 – Number of cases (granted full review and oral argument) decided

22 – Days of oral argument remaining

63 – Number of cases granted to date*As of December 29, 2016


I M M I G R AT I O N L AW

Is a Federal Criminal Law Centered on Crimes with “Signifi cant Risk,” as Incorporated into Immigration Law for Removal Purposes, Unconstitutionally Vague?

CASE AT A GLANCE Aliens convicted of an aggravated felony can be removed from the country in deportation proceedings. Federal law allows such deportations if they have engaged in a felony that “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The problem is in determining when an offense entails such “signifi cant risk.” Take the crime of burglary. Some burglaries involve physical force, but many burglaries involve no physical force and the offenses are committed when the owners are not present. The key question for the Court is whether this law is unconstitutionally vague.

Lynch v. Dimaya Docket No. 15-1498

Argument Date: January 17, 2017 From: The Ninth Circuit

by David L. Hudson Jr.Vanderbilt Law School and Nashville School of Law, Nashville, TN

ISSUEIs 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, unconstitutionally vague?

FACTS Respondent James Garcia Dimaya, a citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992 at 13 years old. He attended high school in California and eventually earned a G.E.D. He maintained employment at times but ran into criminal trouble.

In 2007 and 2009, respondent pleaded no contest to charges of residential burglary. In 2010, the Department of Homeland Security instituted removal proceedings against respondent under the Immigration and Nationality Act (INA). Homeland Security contended that respondent should be removed because his convictions qualifi ed as crimes of violence and thus were aggravated felonies.

An immigration judge agreed with the government and ordered respondent removed. The Board of Immigration Appeals agreed that respondent was removable because at least one of the burglary convictions qualifi ed as an aggravated felony.

Respondent fi led a petition for review in the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit determined that the defi nition of “crime of violence” from 18 U.S.C. § 16(b), as incorporated into the INA’s defi nition of “aggravated felony,” is unconstitutionally vague. This provision provides that a crime of violence means:

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Ninth Circuit reasoned that the provision suffered from the same indefi niteness as a similar provision in the Armed Career Criminal Act (ACCA). The U.S. Supreme Court had ruled in Johnson v. United States, 576 U.S. _____ (2015) that the clause was too vague.

The government petitioned for a writ of certiorari, which the Court granted.

CASE ANALYSIS The Impact of Johnson v. United States In Johnson v. United States, the U.S. Supreme Court invalidated a part of the ACCA known as the residual clause. This residual clause allowed for enhanced sentences of defendants who engaged in “conduct that presents a serious potential risk of physical injury to another.”

Writing for the Court, Justice Antonin Scalia explained that this residual clause was too vague:

Two features of the residual clause conspire to make it unconstitutionally vague. In the fi rst place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements. How does one go


about deciding what kind of conduct the “ordinary case” of a crime involves? …

At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.

The ACCA’s residual clause created vagueness problems because it was impossible to know whether a particular crime would create a serious potential risk.

The key question in this case is whether 18 U.S.C. § 16(b)—also termed a residual clause—suffers from the same constitutional problems or if it is distinguishable.

The government acknowledges that “section 16(b), like the ACCA’s residual clause, requires a court to assess the risk posed by the ordinary case of a particular offense.” But, the government asserts that there are three key differences.

First, the government contends that section 16(b)’s risk analysis is limited to risks that occur during the commission of the actual offense, rather than speculating about future risk. Second, the government emphasizes that section 16(b) focuses on the use of physical force against person or property while committing the offense. Third, the government says that section 16(b) does not contain a list of exemplar offenses, like the ACCA’s residual clause does.

Respondent says that Johnson squarely controls this case and that section 16(b) is void for vagueness just like the ACCA’s residual clause. The problem is in trying to determine how much “substantial risk” of “physical force” will an ordinary case entail. Take respondent’s offense of burglary. Some burglaries involve a substantial risk of physical force. However, notes respondent, many burglaries take place when the owners are not on the premises and there is no accompanying physical harm.

“Because the § 16 residual clause provides no greater clue how a court is supposed to identify the ‘ordinary case,’ it yields the same constitutionally impermissible level of arbitrariness and unpredictability as its ACCA counterpart,” respondent writes. Respondent also points out that section 16(b) arguably is even vaguer than its ACCA counterpart, because it does not list exemplar offenses and instead is more open-ended.

Criminal Law vs. Removal Proceeding The essence of a vagueness challenge is that a criminal law must provide fair notice to a defendant as to when his or her conduct violates the law. The legal system cares about vague laws due to concerns about not only fair notice but also about arbitrary or selective enforcement of the laws.

The government asserts that the vagueness question differs from criminal laws to immigration removal laws, which are considered civil. According to the Court, “[r]emoval is a civil, not criminal matter.” The government contends that the Court’s jurisprudence often emphasizes that the core due process vagueness process principally limits criminal, or penal, statutes.

The government asserts that the proper test to determine whether this civil law, an immigration removal statute, is unconstitutionally vague is the unintelligibility test. This test asks whether a law or policy was so unintelligible that it was “not a rule at all.” The government explains that this unintelligibility test “would ensure that an alien is not subject to a proceeding governed by an incomprehensible legal standard” and “would also ensure immigration officials and courts are not obligated to enforce legal provisions from which it is impossible to discern any meaning, preserving the integrity of the immigration system.”

The government also concludes that under this standard of basic intelligibility, respondent was not denied due process. Section 16(b) has been applied by courts for decades, including by a unanimous Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004).

Respondent counters that the same standard for vagueness used to evaluate criminal laws applies to immigration statutes, because of the “grave nature of deportation.” Respondent agrees with the Sixth Circuit that wrote that “[t]he criminal versus civil distinction is … ill-suited to evaluating a vagueness challenge regarding the specific risk of deportation.” Deportation laws are punitive and carry severe consequences.

Respondent also points out that section 16 is a criminal statute. Respondent notes that stringent vagueness inquiries apply to civil laws implicating First Amendment freedoms. Respondent emphasizes that “punitive laws and those with otherwise severe consequences—including deportation laws and laws implicating First Amendment rights—are subject to the same vagueness scrutiny as criminal laws.”

Respondent further rejects the “basic intelligibility” standard as not adequately protecting individuals from vague laws with severe consequences.

SIGNIFICANCE The case is significant in part because it will resolve a circuit split on the constitutionality of section 16(b) in the deportation context and whether the reasoning of the Court’s decision in Johnson extends to the field of immigration. The lower courts have disagreed in immigration removal cases on whether certain crimes entailed a significant risk of physical violence.

The decision will be important to determine whether there is indeed any difference at all in the vagueness standards for criminal versus civil laws. Both parties spend a significant amount of time parsing different phrases from different cases in arguing this key point.

The government argues that the Court’s invalidation of section 16(b) “would have deleterious consequences for the immigration laws and the federal criminal code.” The government writes that section 16(b) is important to the enforcement and punishment of money laundering, racketeering, domestic violence, and crimes against children.

Respondent counters that these concerns are overblown. Respondent points out that in the immigration removal context, the government could still rely on section 16(a), which looks to the


actual elements of an offense rather than divining about substantial risk. Respondent contends that striking down section 16(b) would have a “limited” impact on the government’s enforcement of immigration laws.

David L. Hudson Jr. is a Nashville-based author and legal educator. The author, coauthor, or coeditor of more than 40 books, Hudson teaches classes at the Nashville School of Law and Vanderbilt Law School. He can be reached at 615.780.2279.


ATTORNEYS FOR THE PARTIES For Petitioner Loretta E. Lynch, Attorney General (Ian Heath Gershengorn, 202.514.2217)

For Respondent James Garcia Dimaya (E. Joshua Rosenkranz, 212.506.5000)

AMICUS BRIEFS In Support of Respondent James Garcia Dimaya

National Immigration Law Center (Andrew J. Pincus, 202.263.3000)

National Immigration Project of the National Lawyers Guild, Immigrant Defense Project, American Immigration Lawyers Association, and National Immigrant Justice Center (Sejal Ramnik Zota, 617.227.9727)

Retired Article III Judges (Justin G. Florence, 617.951.7000)

In December, the Court heard a number of interesting cases. Below we highlight some of the more engaging exchanges between the justices and the advocates during Life Technologies Corp. v. Promega Corp. This case asked the Court to consider whether supplying only one staple component of a patented invention for assembly overseas is enough to trigger infringement liability.

Justice Samuel Alito: Does “substantial portion” mean a majority?

Mr. Carter G. Phillips (on behalf of petitioners): Oh, I think it means substantially more than a majority. I … would say that it has to be approximating or very close or tantamount to all.

Justice Alito: So here, there were five components?

Mr. Phillips: Yes, Your Honor.

Justice Alito: And … and they would have to be … all five would have to be made in the United States? Or—

Mr. Phillips: Well, I … at minimum …

Justice Alito: … four would be enough?

Mr. Phillips: I would have thought at least four would have to be. But I … you know, in many instances, my guess is the right answer may well be five.

Justice Elena Kagan: Where do you get that from? What’s the principle there?

Mr. Phillips: Because all Congress wanted to do was to close a loophole where you’re essentially doing nothing but violating

U.S. patent law and avoiding it by simply off-loading it at the last second. In a lot of instances, I don’t think that’s true when you’re only talking about a majority of the items.

* * * *

Justice Stephen Breyer: But why do we have to go into the details here? I mean, it did strike me as an instance where maybe the less said by us the better. I mean, would you be happy if we say it means what it says? “All or substantially all” means a whole lot. Or what you said, tantamount to all. So if you get into that circumstance or you get into the “to” circumstance, which is there is a special ingredient here that has the special qualities, Mr. Manufacturer, don’t get close to that. All these lawyers that will be there telling them, don’t get close to that, and the thing will work over time. If we set a detailed test down, then all those lawyers will be trying to figure out how, in fact, they actually do the thing without quite infringing the detail test.

Mr. Zachary D. Tripp (on behalf of the United States as amicus in support of petitioners): Yeah, I think that …

Justice Breyer: That’s what worries me.

continued on page 110

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F I R S T A M E N D M E N T

Does Section 2(a) of the Lanham Act, Which Prohibits the Patent and Trademark Offi ce from Registering a “Disparaging” Trademark, Violate the First Amendment?

CASE AT A GLANCE Simon Tam is the front man for an all-Asian American dance-rock band called The Slants. Tam formed the band in part to express and promote his views on discrimination against Asian Americans. As part of his effort, he named the band to reappropriate a traditionally derogatory term used to insult Asian Americans and sought to trademark the name.

Lee v. TamDocket No. 15-1293

Argument Date: January 18, 2017From: The Federal Circuit

by Steven D. SchwinnThe John Marshall Law School, Chicago, IL

INTRODUCTIONThe Patent and Trademark Offi ce (PTO) rejected Tam’s application, because his band’s name was likely to disparage persons of Asian descent under section 2(a) of the Lanham Act. That section bars the PTO from registering a name that may “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The government says that section 2(a) simply sets a standard for conferring a government benefi t, a trademark; Tam counters that the provision imposes an unconstitutional burden on free speech.

ISSUEDoes section 2(a) of the Lanham Act violate the First Amendment?

FACTSSimon Tam is the front man for an all-Asian American dance-rock band called The Slants. Tam formed the band in 2006 not only to play music but also to express his views on discrimination against Asian Americans. So when Tam turned to name the band, he sought to embrace a term that has been used as a racial insult against Asian Americans, “slant.” (In so doing, Tam drew on a tradition of “reappropriation.” Reappropriation is when members of a minority group reclaim terms used to insult or stigmatize them and redirect those terms as badges of pride.)

The Slants’s political statements sweep well beyond the band’s name. For example, their fi rst album was called “Slanted Eyes, Slanted Hearts”; their fourth was called “The Yellow Album.” Some of their song lyrics advocate for Asian pride and promote cultural heritage. (For more on The Slants, check out their website, at www.theslants.com.)

In 2011, Tam sought to register The Slants as a trademark. The trademark examiner refused to register the mark, however, because it was likely to disparage persons of Asian descent, under section 2(a) of the Lanham Act. (As described below, this section prohibits the Patent and Trademark Offi ce from registering scandalous, immoral, or disparaging marks.) The Trademark Trial and Appeal Board agreed.

Tam appealed to the United States Court of Appeals for the Federal Circuit, arguing that the Board erred in fi nding the mark disparaging and that section 2(a) violated the First Amendment. A three-judge panel affi rmed the Board’s determination that the mark was disparaging and rejected Tam’s free-speech claim. The full court, however, reversed and ruled that section 2(a) violated the First Amendment. The government brought this appeal.

CASE ANALYSISCongress enacted the Lanham Act in 1946 to provide a national system for registering and protecting trademarks used in interstate and foreign commerce. With the Act, Congress sought to help assure consumers that a product bearing a particular mark is, indeed, the product that the consumer seeks and to protect a markholder from misappropriation and misuse of the mark.

Under the Act, trademark registration comes with signifi cant benefi ts. For example, the holder of a federal mark has the right to exclusive, nationwide use of the mark where there is no prior use by others. Moreover, a markholder can sue in federal court to enforce the trademark, obtain assistance from U.S. Customs and Border Protection in restricting importation of infringing goods, and qualify for a simplifi ed process for obtaining protection in countries that have signed the Paris Convention. Finally, a markholder can use registration as a complete defense to state or common-law claims of trademark dilution.


Under the Act, the PTO must register a trademark unless it falls into one of several categories of marks precluded from registration. One of those categories, section 2(a) of the Act, bars registration of a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The PTO has used section 2(a) to deny or cancel “disparaging” marks such as Stop the Islamisation of America, The Christian Prostitute, Marriage is for Fags, Democrats Shouldn’t Breed, Republicans Shouldn’t Breed, and others. Perhaps most famously, the PTO used section 2(a) to cancel six trademarks of the Washington Redskins NFL football team, although this decision is now on appeal and may be affected by Tam’s case.

In denying a mark under section 2(a), the PTO denies a significant government benefit to speech based on the content and viewpoint of that speech, even though the government does not prohibit the speech itself. (The Slants can still use The Slants, even if the name does not enjoy trademark protection.) The parties dispute whether this kind of denial violates the First Amendment.

The government argues that section 2(a) does not violate the First Amendment, because it does nothing to restrict Tam’s speech. The government argues that laws that restrict speech can violate the First Amendment, but that federal programs that subsidize speech (such as the Lanham Act) cannot. The government points to precedents upholding the denial of federal tax-exempt status for nonprofit organizations’ lobbying activities and sustaining federal regulations that prohibited the use of family-planning funds for abortion-related services. The government also says that it can decide not to subsidize speech at all, and, based on a case from just two Terms ago, that it need not provide a “mobile billboard” for offensive messages on state specialty license plates. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). In short, the government contends that it has “significant discretion to decide which activities to fund and what criteria to use for inclusion in government programs.”

The government argues that section 2(a) falls squarely within these principles. It says that trademark registration confers a significant government benefit, and the government has discretion in determining how to allocate this benefit. The government claims that the PTO’s denial of registration does not restrict Tam from using “The Slants”; it just means that Tam does not get the benefits of federal registration.

The government argues next that the lower court erred in ruling that section 2(a) was facially unconstitutional. The government says that section 2(a) is not an unconstitutional condition on a government program, and it is not an impermissible viewpoint-based restriction on speech. Instead, section 2(a) simply sets out criteria for a government benefit in a way that the Court has upheld, again, just two terms ago. The government contends that section 2(a)’s criteria serve legitimate government interests not to encourage the use of disparaging terms and to disassociate itself from racial slurs and other offensive speech. Finally, according to the government, “[t]he Constitution does not put Congress to the choice of either eliminating the federal trademark-registration

program altogether or promoting the use of racial slurs in interstate commerce.”

In response, Tam argues that section 2(a) creates an impermissible viewpoint-based burden on speech. Tam says that section 2(a) permits the registration of marks that express a positive or neutral view, but not those that express a negative view. He claims that the government’s only interest is in protecting people from offensive trademarks, and that this interest is not sufficiently compelling to justify the viewpoint-based burden.

Tam argues that the government is wrong to try to shoehorn section 2(a) into First Amendment principles that would allow a burden on speech. Tam says that trademark registration is not a government subsidy, because, unlike the subsidies in the Court’s precedents, it involves no actual disbursement of funds. He claims that registration does not amount to government speech, because the speech involved is by the markholder, not the government. And he contends that trademarks are not commercial speech subject to certain government regulation (and he says that it would fail the commercial speech standard, anyway).

Tam argues next that section 2(a) is unconstitutionally vague. He says that the provision is inherently vague—what does “disparaging” mean?—and that the PTO has applied the provision inconsistently. He claims that the PTO’s methodology, which considers whether a name disparages an entire racial or ethnic group, only compounds the problem, because the PTO does not have a determinate way to measure whether and how a name disparages an entire group. Tam contends that section 2(a), as a vague restriction on speech, chills speech, and facilitates discriminatory enforcement. He claims that it is therefore unconstitutional.

Finally, Tam argues that section 2(a) does not bar registration of The Slants, even if section 2(a) is constitutional. Tam says that The Slants is not disparaging under section 2(a); instead, it is exactly the opposite—a reappropriated term used as a badge of pride. He asserts that the PTO was wrong to deny registration based on whether The Slants disparages an entire racial or ethnic group. He claims that the Act requires the PTO instead to apply Section 2(a) only when a name disparages “persons,” not groups. The Slants, he says, does not meet this test.

SIGNIFICANCEWhile this case is certainly important to Simon Tam and his ability to protect his use of The Slants, the underlying issue has received far more attention in the dispute over the NFL’s Washington Redskins. Using the same section 2(a) involved in this case, the PTO in 2014 cancelled trademark protection for six Redskins trademarks at the request of a group of Native Americans. A federal judge upheld the cancellation, ruling that “Redskins” was disparaging to “a substantial composite of Native Americans” when each of the marks was registered. The Redskins appealed, but the case is on hold pending the outcome of Tam’s case. (The Redskins asked the Supreme Court to review their case along with Tam’s, but the Court declined.) The Redskins’s case illustrates the stakes involved to the markholders: Losing federal trademark protection would mean that markholders could not protect their marks against others’ uses in the federal system, potentially costing markholders


substantial revenue and exclusive name rights. The two cases—Tam’s case and the Redskins’s case—together also illustrate the difficulties in identifying and withholding trademark protection from disparaging names, while extending protection to nondisparaging names.

At the same time, denial or cancellation of federal trademark protection does not mean that a person cannot use the name. Tam could still use The Slants, and the Redskins could still use Redskins, even if they do not receive federal trademark protection. They simply would not get the benefits of federal trademark protection. Moreover, individuals could still seek trademark protection at the state level. (But this would provide protection only within the state, not nationwide. Moreover, states may have restrictions similar to section 2(a), so that Tam, the Redskins, and others might not qualify at the state level, either.)

Although much of the briefing in the case is couched in constitutional terms, the Court could rule on narrower grounds. For example, the Court could simply rule that the PTO misapplied section 2(a) in rejecting Tam’s application. (Tam sets the stage for this kind of ruling by arguing that the PTO erroneously considered disparagement to a group, not to “persons,” in evaluating his application.) If so, the Court could simply remand the case with instructions on interpreting section 2(a), without ruling on its constitutionality. This kind of ruling could limit the application of section 2(a), but it would not strike the provision.

If the Court engages the constitutional arguments, look for the Court to determine as an initial matter whether the First Amendment even applies. The Court could dodge the harder constitutional issues simply by ruling, as the government argues, that section 2(a) does not impose a burden on speech, because trademark registration is a benefit or subsidy, and because section 2(a) does not restrict speech. If so, the Court would uphold section 2(a), although it might limit it, as above.

If the Court sees section 2(a) as a burden on speech, however, the Court is almost certain to strike the provision as unconstitutionally vague or as a viewpoint-based restriction on speech. (The Court has consistently expressed its distaste for content-based restrictions on speech in recent years. Viewpoint-based restrictions are even more suspect.)

Steven D. Schwinn is a professor of law at The John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at [email protected] or 312.386.2865.


ATTORNEYS FOR THE PARTIES For Petitioner Michelle K. Lee, Director, United States Patent and Trademark Office (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)

For Respondent Simon Shiao Tam (John C. Connell, 856.795.2121)

AMICUS BRIEFSIn Support of Petitioner Michelle K. Lee, Director, United States Patent and Trademark Office

Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh (Jesse Amnon Witten, 202.842.8800)

Fred T. Korematsu Center for Law and Equality, Hispanic National Bar Association, National Asian Pacific American Bar Association, National Bar Association, National LGBT Bar Association, and National Native American Bar Association (William Cheever Rava, 206.359.8000)

Law Professors (Christine Haight Farley, 202.274.4171)

Native American Organizations (Charles A. Rothfeld, 202.263.3000)

In Support of Respondent Simon Shiao TamAlliance Defending Freedom (Kristen K. Waggoner, 480.444.0020)

American Center for Law and Justice (Jay Alan Sekulow, 202.546.8890)

American Civil Liberties Union, the ACLU of the Nation’s Capital, the ACLU Foundation of Oregon, the Asian American Legal Defense and Education Fund, the Asian Pacific American Network of Oregon, the Chinese American Citizens Alliance, Portland Lodge, the Portland Japanese American Citizens League, and the Oregon Commission on Asian and Pacific Islander Affairs (Lee Berkley Rowland, 212.549.2500)

American Jewish Committee (Kannon K. Shanmugam, 202.434.5000)

Becket Fund for Religious Liberty (Mark L. Rienzi, 202.955.0095)

Cato Institute and a Basket of Deplorable People and Organizations (Ilya Shapiro, 202.842.0200)

Chamber of Commerce of the United States of America (Eugene Scalia, 202.955.8500)

Erik Brunetti (John R. Sommer, 949.752.5344)

First Amendment Lawyers Association (Marc Randazza, 702.420.2001)

International Trademark Association (Anthony J. Dreyer, 212.735.3000)

Justice and Freedom Fund (James L. Hirsen, 714.283.8880)

Law Professors Gregory Dolin, Tara J. Helfman, Irina D. Manta, and Kristen Jacobsen Osenga (Matthew James Dowd, 202.573.3853)

Pacific Legal Foundation (Joshua P. Thompson, 916.419.7111)

Professor Hugh C. Hansen (Hugh C. Hansen, 212.636.6854)

Professors Edward Lee and Jake Linford (Edward S. Lee, 312.906.5212)


Pro-Football, Inc. (Lisa S. Blatt, 202.942.5000)

Rutherford Institute and Consumers’ Research (Megan L. Brown, 202.719.7000)

San Francisco Dykes on Bikes Women's Motorcycle Contingent, Inc. (Mark Lemley, 415.362.6666)

Thomas Jefferson Center for the Protection of Free Expression and the Electronic Frontier Foundation (J. Joshua Wheeler, 434.295.4784)

In Support of Neither PartyAmerican Bar Association (Linda A. Klein, 312.988.5000)

American Intellectual Property Law Association (Paul M. Smith, 202.639.6060)

Asian Americans Advancing Justice, AAJC, and Other Civil Rights and Advocacy Groups (Daniel J. Kornstein, 212.763.5000)

Certain Members of Congress (John A. Dragseth, 612.335.5070)

Constitutional Law Professors (Floyd Abrams, 212.701.3000)

New York Intellectual Property Law Association (Dyan Mary Finguerra-DuCharme, 212.421.4100)

Public Citizen, Inc. (Scott L. Nelson, 202.588.1000)

Public Knowledge (Phillip Robert Malone, 650.725.6369)

Mr. Tripp: I think if you said that one was never enough and it needs to be a whole lot, we would be quite happy. All that we’re …

Justice Breyer: End of the case. It says one means a lot, we need a whole lot, tantamount to the whole lot, and good-bye.

Mr. Tripp: Yeah, we … we would be perfectly happy with that.

(Laughter.)

* * * *

Mr. Seth Waxman (on behalf of respondents): [T]his parade of horribles that, gee, anybody who supplies a component from the

United States could be liable if they are in the supply chain is—is manifestly incorrect. They have to—they have to, number one, know that there is a patent. They have to know that the product is going to be combined with others. They have to know that the combination, if practiced in the United States, would infringe.

Justice Anthony Kennedy: Do they have to figure …

Mr. Waxman: They have to go beyond that and actively encourage, send instructions or blueprints or something, in order to do it, and a jury, properly instructed, based on the evidence, has to ascertain, gee, this really is a substantial portion.

continued from page 106


R E M E D I E S

Measuring a Civil-Discovery Sanction for Failure to Turn Over Requested Material

CASE AT A GLANCE A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specifi city of the causal link between Goodyear’s misconduct and the amount of the civil sanction.

Goodyear Tire v. Haeger Docket No. 15-1406

Argument Date: January 10, 2017From: The Ninth Circuit

by Doug RendlemanWashington and Lee Law School, Lexington, VA

ISSUEIs a federal court required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process?

FACTSThe Haegers brought a product liability lawsuit against tire manufacturer, Goodyear, charging that Goodyear’s G159 tire had failed, injuring them seriously. Civil discovery is the pretrial process where the parties exchange information leading to the full disclosure that prevents surprise and supports decisions on the merits. The Haegers’ discovery sought Goodyear’s tests of the tires. The Haegers and Goodyear settled the case on the fi rst day of trial.

During the pretrial-discovery process, Goodyear and its lawyers failed to produce certain important tests. After the settlement, the Haegers’ lawyer learned about those tests and moved for sanctions. The district court judge found that Goodyear should have produced the tests, and that Goodyear and its lawyers, hereafter just Goodyear, should be sanctioned because of “repeated and deliberate attempts to frustrate the resolution of this case on the merits.” Because Rule 37, section 1927 and Rule 11, the usual bases for sanctions, weren’t available, the judge based the sanction on the court’s inherent power.

The judge measured the Haegers’ compensatory award by their attorney fees. The $2,741,201.16 attorney fees awarded began to accrue with the Haegers’ First Request, the moment when Goodyear should have produced the tests. The trial judge wrote that “if Goodyear had responded to Plaintiffs’ First Request with

all responsive documents, Goodyear might have decided to settle the case immediately.” It was possible to “conclude practically all of Plaintiffs’ fees and costs were due to misconduct.”

On appeal of the compensatory award, the Court of Appeals held that the trial judge hadn’t abused discretion in either resorting to the inherent power or in fi nding Goodyear’s bad faith. Nor was measurement by the Haegers’ attorney fee an abuse of discretion.

The dissenting judge argued that the award was punitive, not compensatory, because it was not shown that the misconduct caused the amount of the award. Thus, according to contempt decisions, the judge should have followed criminal instead of civil procedure before imposing the punitive sanction.

CASE ANALYSISGoodyear argues that a judge’s inherent-power sanction must be limited by causation principles. An award not caused by the wrongdoer’s misconduct is not compensatory, but criminal. A criminal sanction may not follow mere civil procedure. Instead, notes Goodyear, due process requires criminal procedure to mete out punitive punishment. Direct causation is required, and Goodyear asserts, that simply was not shown here.

The Haegers counter that recovery of their attorney fee is tied to, and caused by, their loss from Goodyear’s failure to produce the test. The trial judge and the Court of Appeals acknowledged the need for a causal link and determined that Goodyear’s breach had resulted in the Haegers’ attorney fees. Goodyear’s failure to produce the tests permeated the whole case and caused the Haegers to expend attorney fees almost from the beginning. Directness in causation,


the Haegers argue, isn’t required and doesn’t add anything to causation. The Court of Appeals appropriately approved the district court’s decisions articulating the causal-link standard, finding a causal link, and setting the amount of attorney fees to award.

Like most discovery sanction cases, Goodyear Tire & Rubber v. Haeger is protracted and technical. As argued, it combines a court’s inherent power with compensatory contempt. The implied power here is the judge’s ability to sanction a litigant’s bad-faith misconduct that isn’t covered by another rule or statute. Compensatory contempt is a money award to the aggrieved party for breach of a court order.

The inherent power has been a wild card in the legal deck, perhaps the joker. Contempt, including compensatory contempt, is also contested and imprecise because it is difficult to distinguish coercive contempt, compensatory contempt, and criminal contempt. Attorney fees are often awarded under the inherent power and for both compensatory contempt and an opponent’s procedural and discovery misconduct.

The proper measurement rule for a sanction and its specific application are different questions. Measurement of recovery is often uncertain. For example, pain and suffering and punitive damages leave a lot of discretion to the judge or jury. An approach to measurement requires a claimant’s proof of the loss to be only as specific as the situation permits. A court will place the burden of uncertainty on the wrongdoer who caused the loss.

The rule to measure a compensatory contempt award is the aggrieved party’s “actual harm,” from the contemnor’s misconduct; “actual” means that the misconduct caused the harm. Requiring aggrieved parties to prove their loss prevents the judge from following civil procedure to punish misconduct under the guise of compensatory contempt.

Imprecision in measurement lurks in reaching a precise figure here. If Goodyear had produced the test, would it then have settled right away for more money? This is what the trial judge and the Court of Appeals majority thought and what the Haegers argue. Or as Goodyear argues, would it have followed production of the test with digging in for a trial or a later less-generous settlement? The problem of setting the aggrieved party’s harm from the misconduct is how to construct the counterfactual world that would have occurred without the misconduct, here Goodyear’s nondisclosure. A counterfactual is inescapably uncertain and speculative.

SIGNIFICANCEThe case is important for litigators and business defendants. Courts haven’t been firm on discovery sanctions. A decision affirming an attorney-fees sanction for the $2,741,201.16 that the judge awarded the Haegers will send a message to lawyers and litigants that discovery is crucial to decisions on the merits and will strengthen judges’ hands in discovery disputes.

An opinion that clarifies the relationship between contempt, compensatory variety, and the inherent power in civil discovery sanctions would reduce confusion and improve the law.

The decision might go either way. The case is factually complex, and the legal issues are inherently technical and controversial. The governing law and the lower courts’ opinions are murky. Either way, a divided opinion seems likely.

Doug Rendleman is Huntley Professor at Washington and Lee Law School. He has written about the inherent power and compensatory contempt in Complex Litigation: Injunctions, Structural Remedies, and Contempt (2010) and Compensatory Contempt: Plaintiff’s Remedy When Defendant Violates an Injunction, 1980 U.Ill.L.F. 971. He can be reached at [email protected] or 540.458.8934.


ATTORNEYS FOR THE PARTIES For Petitioner Goodyear Tire & Rubber Company (Pierre H. Bergeron, 202.457.6000)

For Respondent Leroy Haeger (John J. Egbert, 602.262.5994)

For Respondent Graeme Hancock & Fennemore Craig, P. C. (Andrew M. Jacobs, 520.882.1200)

AMICUS BRIEFS In Support of Petitioner Goodyear Tire & Rubber Company

American Bar Association (Linda A. Klein, 312.988.5000)

National Association of Manufacturers (Philip S. Goldberg, 202.783.8400)


F R E E S P E E C H

Does a State Statute That Prohibits Merchants from Imposing a Surcharge on Credit-Card Purchases Violate Their First Amendment Right to Communicate Their Prices?

CASE AT A GLANCE New York passed a law that prohibits “any seller in any sales transaction” from imposing a surcharge on purchases by credit card, in order to protect consumers. The law permits a merchant to offer a discount on purchases by cash or check, however. The law does not defi ne “surcharge” or “discount,” though, and the difference between the two is not always clear, because they have precisely the same economic effect. New York businesses challenged the law as infringing on their free-speech right to communicate the surcharge to their customers.

Expressions Hair Design v. SchneidermanDocket No. 15-1391

Argument Date: January 10, 2017From: The Second Circuit


INTRODUCTIONThe First Amendment applies only to restrictions on speech and not to regulations of economic matters. So if the Court reads the New York provision merely as a regulation of economic matters, then there is no First Amendment issue. If the Court reads the provision as a restriction on speech, however, then an appropriate level of review applies, and the Court will measure the provision against the state’s interests in protecting consumers. Finally, if the difference between a “surcharge” and a “discount” is so vague that a reasonable person cannot tell what the law proscribes, then the Court will strike it as unconstitutionally vague.

ISSUEDoes New York’s prohibition on surcharges on credit-card purchases infringe merchants’ free-speech right to communicate the surcharges to their customers?

FACTSWhen a customer makes a purchase with a credit card (as opposed to paying by cash or check), the credit card company charges the merchant a surcharge, or a “swipe fee.” The swipe fee typically runs between two and three percent of the purchase amount, but it can run even higher.

Merchants pass the swipe fee along to their customers in the form of higher prices. A merchant who wishes to pass the swipe fee on to credit-card purchasers only (and not to cash or check purchasers) can impose a surcharge for credit-card purchasers, or a discount for cash and check purchasers. Such a seller could inform customers of the differential pricing scheme by advertising a surcharge on credit-card purchases, advertising a discount on cash and check purchases,

or simply advertising two different prices, without saying that one price includes a surcharge or that the other includes a discount. Although the economic effect of each price-advertising option would be the same, the psychological effect on customers may be different. In particular, customers may perceive that a surcharge better refl ects the cost of using a credit card than a discount, and they may seek to avoid paying it. (This is called “loss aversion” in the psychology fi eld.)

Merchants might therefore prefer the fi rst option (imposing and advertising a surcharge), because this option allows a seller to set the default price at its lowest level and then to advertise the additional cost of using a credit card. But credit-card companies oppose surcharges, because they discourage customers from using a credit card (because of loss aversion). Some consumers and legislators also oppose surcharges because of the hassle of paying the extra fees, the adverse economic effects, and the occasional dishonest merchant who springs the surcharge on an unsuspecting customer only at the point of sale. (Surcharges also tend to exceed the amount of the swipe fee, so that merchants often get a windfall. But discounts can lead to this same problem.)

In 1974, Congress amended the Truth in Lending Act (TILA) to permit merchants to offer discounts to customers who used cash and checks. In 1976, Congress amended TILA again, this time barring merchants from imposing surcharges. As part of the 1976 amendments, Congress defi ned “surcharge” as “any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means.” Congress defi ned “discount” as “a reduction made from the regular price.” Finally, Congress clarifi ed that a discount “shall not mean a surcharge.”


These amendments expired in 1984. Without a federal ban on surcharges, eleven states, including New York, moved quickly to enact their own bans on surcharges. New York’s ban, “section 518,” reads as follows:

No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.

Any seller who violates the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both.

The operative language in section 518 is essentially identical to the lapsed federal surcharge ban. But unlike the prior federal law, section 518 does not define “surcharge,” “discount,” or “regular price.”

Although section 518 has been on the books for several decades, it has not been aggressively enforced. (The parties cited just one reported prosecution under section 518 in the lower court.) That’s because the prohibition on surcharges was redundant with standard provisions in credit-card companies’ contracts with merchants prohibiting merchants from imposing surcharges on customers. But in 2013, a federal court approved a nationwide class-action settlement in which Visa and MasterCard agreed to drop these contractual provisions.

On June 4, 2013, soon after the settlement, five New York businesses and their owners sued the state and state officials, arguing that section 518 violated their First Amendment right to communicate their prices, and that it was unconstitutionally vague. The plaintiffs claimed that they would like to advertise a credit-card surcharge, but that section 518 chilled them from doing so. They also claimed that the difference between a surcharge and a discount was not clear in the law, thus putting them in jeopardy of violating section 518.

The district court ruled in favor of the plaintiffs. But the United States Court of Appeals for the Second Circuit reversed, holding that section 518 regulated conduct, not speech. (The Second Circuit abstained from deciding whether section 518 is constitutional as applied to merchants who post separate cash and credit-card prices, or who do not post a price at all, because the state courts have not had a chance to interpret the provision.) This appeal followed.

CASE ANALYSISAs an initial matter, the First Amendment only applies to government restrictions on speech (for example, communicating a price or a surcharge). It does not apply to government regulations of economic matters (for example, mandating or controlling a price). section 518 looks a little like both, and the lower courts disagreed about whether it regulated speech (as the district court ruled) or conduct (as the Second Circuit ruled). If the Court reads section 518 merely as a regulation of economic matters, then there is no First Amendment issue.

But if, instead, the Court reads the provision as a restriction on speech, then the First Amendment applies, and the Court will apply

the appropriate First Amendment test. If the Court sees section 518 as a restriction on commercial speech, the Court will apply the commercial-speech test from Central Hudson Gas & Electric Corp. v. Public Services Commission of New York, 447 U.S. 557 (1980). The Central Hudson test would ask whether section 518 “directly advances” a substantial government interest and whether it is more extensive than necessary to advance that interest. But if the Court sees section 518 as a consumer-disclosure requirement, then it will apply the less-rigorous test from Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The Zauderer test would ask only whether section 518 is reasonably related to the government’s interest in preventing deception of consumers.

Finally, if the difference between a “surcharge” and a “discount” is so vague that a reasonable person could not tell what the law proscribes, then the Court will strike it as unconstitutionally vague.

The parties frame their arguments against these principles.

The plaintiffs argue first that section 518 infringes on their right to free speech. They say that communicating pricing information—and, in particular, a surcharge for credit-card purchases—is protected speech, and not conduct (as the state would have it). They claim that the purpose behind section 518 is to control consumers’ decisions by keeping them in the dark about the cost of using a credit card, and that the provision’s effect is to criminalize truthful speech that simply conveys pricing information. According to the plaintiffs, both the act’s purpose and effect are “at war” with basic free-speech principles.

The plaintiffs argue next that section 518 violates the Central Hudson test. In particular, they claim that section 518 does not directly advance an interest in consumer welfare. They point to the provision’s many “exceptions and inconsistencies,” including an exemption for state agencies, to show that the provision is under-inclusive. And they point out that other laws (such as false-advertising laws) already sufficiently protect against consumer deception to show that section 518 “is far broader than necessary to address a risk of consumer deception.”

Finally, the plaintiffs argue that section 518 is unconstitutionally vague. They claim that the difference between a “surcharge” and a “discount” is blurred, and that section 518, in not defining those terms, does nothing to clear this up. (As a very simple illustration, imagine that a merchant advertises two prices, one for credit-card purchasers and another for other purchasers, without using the terms “surcharge” or “discount.” Is the higher price for the credit-card purchasers a “surcharge,” even though the vendor does not use that term? Or is the lower price a “discount”? The plaintiffs say the law is unclear.) Moreover, they say that the state itself, in this very case, has “been unable to maintain a consistent party line about what the law means.” According to the plaintiffs, the law’s vagueness forces them into a Hobson’s choice: “operate in constant fear of inadvertently describing legal dual-pricing conduct in a criminal way, or refrain from dual pricing altogether."

The states counters that section 518 is a direct economic regulation not subject to the First Amendment. The state says that section 518 is a price control that regulates the amount of money a merchant can collect from customers (that is, the base price, but not a


surcharge), but not the merchant’s speech. The state says that price controls such as this have long been upheld as direct economic regulations not subject to First Amendment scrutiny.

The state argues that the plaintiffs are wrong to argue otherwise. According to the state, the plaintiffs mistakenly confuse a “surcharge” and a “discount,” when in fact those terms are clear: a “surcharge” is an adjustment up from a baseline price, and a “discount” is an adjustment down. Moreover, the state asserts that the plaintiffs’ claims about how section 518 impacts their pricing only proves its point: section 518 is a regulation of economic conduct (and not speech). Finally, the state claims that section 518 allows merchants to say whatever they want about surcharges, and that they “remain free to communicate their views about credit-card costs, and to characterize their prices—or price differentials between categories of users—in any way they see fit.”

The state argues next that even if the First Amendment applies, section 518 would satisfy it. The state says that section 518 satisfies the Central Hudson test, because it directly advances the state’s substantial interest in protecting consumers from unfair profiteering, preventing deceptive and abusive sales tactics, and reducing consumer confusion. The state contends that section 518 also satisfies the less-rigorous Zauderer test, because it operates just like the prior, valid federal provision “in ensuring that consumers are informed of the highest price that a seller would charge on account of credit-card use.”

Finally, the state argues that section 518 is not unconstitutionally vague. The state says that in most transactions, it is clear whether a merchant is imposing a surcharge above the base price or a discount below it. It contends that where a merchant offers both prices, then section 518 would not apply “because the seller has foregone the usual commercial practice of setting a regular price.”

The government, as amicus in support of neither party, adopts a middle position. The government argues first (along with the plaintiffs) that section 518 regulates speech. The government claims that section 518 is not merely a permissible economic regulation that has an indirect effect on speech (and which does not get First Amendment scrutiny). Instead, according to the government, section 518 is a direct regulation of speech, because it “addresses the manner in which a merchant may present its pricing scheme to the public.”

The government argues next that section 518 may be a valid consumer-disclosure law, and it should be analyzed under the consumer-disclosure doctrine. The government says that the expired surcharge rule under TILA, which required merchants who displayed a cash price to also display any higher credit-card price, was a valid consumer-disclosure law, because the “disclosure requirements are reasonably related to the [government’s] interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). But the government contends that the Second Circuit did not analyze the case this way, and so the Court should remand the case for analysis under the consumer-disclosure requirement, along with other unresolved questions about how section 518 operates.

SIGNIFICANCESwipe fees, and how merchants build them into their prices, are hotly contested issues. And it’s easy to see why. According to the plaintiffs (in their certiorari petition), “U.S. merchants pay some of the highest swipe fees in the world—around 3% of every credit-card purchase, or over $50 billion a year in fees.” The sheer economic scale of swipe fees ensures that merchants, consumers, and credit-card companies all have an opinion about them, and how best to pay them.

In general, merchants want to recoup swipe fees by explicitly building them into their prices and passing them along to consumers. Some merchants want to increase swipe fees only for credit-card users, and even to discourage higher-cost credit-card use. Moreover, because of loss aversion, many merchants and others believe that the best way to convey the cost of a credit-card purchase and to discourage higher-cost credit-card use is to post an explicit surcharge. Merchants and others see these as good reasons to strike surcharge bans such as section 518.

Consumers have different concerns. Some worry that no-swipe-fee laws force merchants to simply increase the base price for all consumers. (Some may worry that any pricing scheme that covers swipe fees—whether a single base price, a surcharge, a discount, or a differential—ends up overcharging the consumer to the benefit of merchants.) Moreover, consumers may worry about the redistributive effect when merchants do this: according to the plaintiffs (again, in their certiorari petition), this practice results in “an annual total transfer of $1,282 from the average cash payer to the average card payer.” Some consumers and others may see these as good reasons to strike surcharge bans.

Finally, credit card companies do not like behavior that discourages credit card use. That’s why they included provisions in their standard merchant contracts that prohibited surcharges and why they worked so hard for federal and state legislation to prohibit surcharges.

Ten states now have surcharge bans, and the federal circuits that have considered them have split. This patchwork of surcharge regulations (in our ever-increasing interstate economy) makes it all the more important for the Court to set a national standard. But it’s not clear that this is the best test case. For one, the enforcement history of section 518 is sparse, and we don’t really know how the state courts might construe it. (This is why the Second Circuit abstained from ruling on some of the issues in the case.) For another, as the government argues, the Second Circuit did not rule on the Zauderer argument. So if the Court sees the case turning on Zauderer, it may remand the case for further development. But none of this matters if the Court says that section 518 (and, by extension, other no-surcharge laws) regulates only economic activity and not speech. In that case, the First Amendment will not apply and will not pose a bar to legislation banning surcharges (although the Court could still rule section 518 unconstitutionally vague).




ATTORNEYS FOR THE PARTIES For Petitioner Expressions Hair Design (Deepak Gupta, 202.888.1741)

For Respondent Eric T. Schneiderman (Barbara D. Underwood, 212.416.8016)

AMICUS BRIEFS In Support of Petitioner Expressions Hair Design

Ahold U.S.A., Inc., Albertsons LLC, H.E. Butt Grocery Co., Hy-Vee, Inc., The Kroger Co., Safeway Inc., Spirit Airlines, Inc., and Walgreen Co. (Paul D. Clement, 202.879.5000)

Alan S. Frankel (K. Craig Wildfang, 612.349.8500)

CardX, LLC (James R. Leickly, 312.444.0425)

Cato Institute and Pacific Legal Foundation (Ilya Shapiro, 202.842.0200)

Consumer Action and National Association of Consumer Advocates (Sharon K. Robertson, 212.838.7797)

First Amendment Scholars & First Amendment Lawyers Association (Brianne Jenna Gorod, 202.296.6889)

Institute for Justice (Paul M. Sherman, 703.682.9320)

The James Madison Institute; Florida Taxwatch; Texas Public Policy Foundation; Yankee Institute; Oklahoma Council of Public Affairs; Advance Arkansas Institute; Independence Institute; John Locke Foundation; Sutherland Institute; Consumer Federation of the Southeast; and National Center for Public Policy Research (Jesse Michael Panuccio, 202.672.5300)

Professor Adam J. Levitin (Joseph Carl Cecere, 469.600.9455)

Retail Litigation Center, Retail Council of New York State, Florida Retail Federation, and Food Marketing Institute (Eric F. Citron, 202.362.0636)

Scholars of Behavioral Economics (Adam Wolff Hofmann, 415.777.3200)

United States Public Interest Research Group Education Fund, Inc. (Gregory A. Beck, 202.684.6339)

In Support of Respondent Eric T. SchneidermanAction on Smoking and Health (Thomas Bennigson, 510.336.1899)

Credit Union National Association (Jonathan F. Cohn, 202.736.8000)

Florida (Denise Harle, 850.414.3300)

Labor, Environmental, and Civil Rights Organizations (Stacey M. Leyton, 415.421.7151)

National Governors Association (Charles A. Rothfeld, 202.263.3000)

Public Citizen, Inc. (Scott L. Nelson, 202.588.1000)

In Support of Neither PartyUnited States (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)


Ziglar v. Abbasi, Ashcroft v. Abbasi, and Hasty v. AbbasiDocket Nos. 15-1358, 15-1359, and 15-1363

Argument Date: January 18, 2017From: The Second Circuit


INTRODUCTIONThis case involves three signifi cant hurdles to individuals who seek to lodge civil rights claims against federal offi cials. First, a plaintiff can only bring a civil rights claim against federal offi cials in certain established contexts. Next, federal offi cials enjoy qualifi ed immunity from suit when they did not violate clearly established constitutional or statutory rights. Third, plaintiffs have to plead their claims with a certain degree of particularity in order for their cases to move forward. The courts could dismiss this case on any one of these three grounds.

ISSUESDoes the plaintiffs’ civil rights case involve a new context, such that the courts cannot consider it?

Are the defendants protected from suit by the doctrine of qualifi ed immunity because they did not violate clearly established rights?

Did the plaintiffs plead their case suffi ciently to show that the defendants were plausibly and directly responsible for the violations?

FACTSSoon after the September 11, 2001 (9/11) attacks, the FBI and other agencies in the Department of Justice (DOJ) initiated an investigation aimed at identifying the 9/11 perpetrators and preventing another attack. The investigative unit, PENTTBOM, the Pentagon/Twin Towers Bombing investigation, was initially run out of the FBI’s fi eld offi ces but moved to the FBI’s Strategic Information and Operations Center, or SIOC, at FBI Headquarters in Washington,

D.C. FBI Director Robert Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI fi eld offi ces.

As part of the DOJ’s response to the attacks, offi cials, including Attorney General John Ashcroft and Mueller, developed policies on the arrest and detention of alien suspects based on tips that the FBI received from the public. As part of the policies, according to the plaintiffs’ complaint, “any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation … and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Ashcroft also created the “hold-until-cleared” policy, which required that individuals arrested in the investigation would not be released from custody until FBI Headquarters affi rmatively cleared them of ties to terrorism.

In order to coordinate efforts among the various agencies within the DOJ that had an interest in, or responsibility for, detainees, the Deputy Attorney General’s offi ce (DAG) established the SIOC working group. The group included representatives from the FBI, the INS, and the DAG. The group met at least once a day in the months following the 9/11 attacks. Its responsibilities included “coordinat[ing] information and evidence sharing among the FBI, INS, and U.S. Attorney's offi ces” and “ensur[ing] that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general.”

The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the investigation and the effort to prevent additional attacks. It received about 96,000 tips in the week after the 9/11 attacks alone. (Many of these, including the tips on some of the

CASE AT A GLANCE In the aftermath of the 9/11 attacks, FBI offi cials identifi ed persons “of interest” based on its own investigations and tips and leads from the public. Some of these individuals, such as the plaintiffs in this case, had no connection to terrorism, although they were present in the United States without authorization. Federal offi cials arrested them, detained them at a facility in Brooklyn, New York, and abused them. When the plaintiffs were released, they sued various federal offi cials for violating their civil rights.

C I V I L R I G H T S

Can a Group of Muslim and Arab Men Sue Federal Offi cials forViolating Their Civil Rights in Identifying, Detaining, and

Abusing Them in the Investigations into the 9/11 Attacks?


plaintiffs in this case, were astonishingly weak or unreliable or had nothing to do with terrorism.)

The INS maintained a national list of aliens in which the FBI had “an interest.” Separately, the New York FBI created its own list of individuals that were “of interest” or “special interest.” (The New York effort differed from similar efforts in the rest of the country at least in part because of the New York FBI and U.S. Attorney’s offices’ long tradition of independence from their headquarters in Washington, D.C. For at least some number of individuals on the New York list, arresting officers failed to conduct the same vetting that detainees on the INS list received.) FBI Headquarters learned of the New York list in October 2001, and officials eventually merged the two lists. Ultimately, 762 detainees, including the plaintiffs, were placed on the INS custody list and were subject to the hold-until-cleared policy. (In New York, 491 of these detainees were arrested, but it is not clear how many of those were arrested as a result of the efforts of the New York FBI.)

(For more on the identification, arrest, detention, and treatment of individuals in the post-9/11 investigation, see the DOJ’s Office of Inspector General report, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003), available at https://oig.justice.gov/special/0306/full.pdf.)

The plaintiffs were held at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Under the MDC confinement policy, created by MDC officials in consultation with the FBI, these plaintiffs were placed in the MDC’s Administrative Maximum Special Housing Unit (ADMAX SHU), a particularly restrictive unit within the Center. Conditions in the ADMAX SHU were severe. For example, detainees, including the plaintiffs, were placed in small cells for over 23 hours a day, they were strip-searched whenever they were removed from or returned to their cells, they received “meager and barely edible” food, they were denied sleep, and they were denied basic hygiene items, among other problems. MDC staff also physically and verbally abused the plaintiffs. (The conditions are described in greater detail in the lower court opinion and in the plaintiffs’ briefs. For yet more on the conditions at the MDC, see the DOJ’s Office of Inspector General report, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (December 2003), available at http://www.justice.gov/oig/special/0312/final.pdf.) The plaintiffs were held from three to eight months.

The plaintiffs filed a putative class action lawsuit against Ashcroft, Mueller, former Commissioner of the INS James Ziglar, former MDC Warden Dennis Hasty, former MDC Warden Michael Zenk, and former MDC Associate Warden James Sherman, alleging that they discriminated against the plaintiffs and mistreated them in violation of the Constitution. They also alleged a conspiracy to violate their civil rights. (There are eight plaintiffs now in the case. It has not been certified as a class action.) The district court dismissed all the claims against the DOJ defendants and some (but not all) of the claims against the MDC defendants. The United States Court of Appeals for the Second Circuit reversed in part and ruled that many of the claims against all of the defendants could move forward. This appeal followed. (The defendants appealed in three separate petitions, but the Court consolidated them into a single appeal. Ashcroft and Mueller are represented by the solicitor general;

Ziglar is represented by private counsel; Hasty and Sherman are represented by different private counsel.)

CASE ANALYSISThe case involves three discrete issues. Let’s take them one at a time. (The various defendants make largely the same arguments on each point below. But where they make different arguments, this summary distinguishes between the arguments of the FBI defendants and those of the MDC defendants.)

Can the Plaintiffs Bring a Federal Civil Rights Action?Civil rights in the U.S. Constitution are not self-executing. This means that Congress has to enact legislation in order for individuals to enforce them in the courts. Congress has not enacted such legislation for civil rights claims against federal officials. But the Supreme Court has recognized an implied right of action against federal officials in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971).

Bivens is a quite limited remedy, however. The Court has recognized Bivens actions only in certain contexts (including, as relevant here, a case where a prisoner challenges the conditions of his or her confinement). And the Court will not extend a Bivens claim to new contexts when “special factors counsel hesitation,” that is, when circumstances suggest that Congress, and not the courts, should decide whether an action is appropriate.

The defendants argue that the plaintiffs’ case presents a new context, and that special factors counsel against a Bivens remedy. The defendants say that the context here is the executive branch’s response to an “unprecedented terrorist attack and the detention of foreign nationals illegally in the United States.” They claim that the plaintiffs seek to challenge high-level policy decisions on national security and immigration—new contexts for Bivens. Moreover, they claim that the case implicates the correctness of FBI terrorist designations and federal law enforcement lines of authority and chains of command, in addition to the DOJ’s response to a national security threat and its implementation of the nation’s immigration laws. They contend that these are all special factors that counsel against extending a Bivens remedy to this new context.

The plaintiffs counter that their case falls squarely within a recognized Bivens context, prisoner challenges to conditions of confinement. But even if their case presents a new context, the plaintiffs argue that a Bivens remedy is appropriate. They say that their claims have nothing to do with national security or immigration enforcement (some of the special factors that the defendants raise that, they say, counsel against a Bivens remedy), and that the interests in deterring federal officials from violating constitutional rights and compensating victims cut in favor of a Bivens remedy. The plaintiffs assert that these points are especially true against the MDC defendants (even if not against the DOJ defendants), because the MDC officials were directly responsible for their conditions of confinement.

Qualified ImmunityThe doctrine of qualified immunity protects government officials from civil liability for alleged constitutional harms, so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have


known.” In determining whether a right is “clearly established,” the Court looks to “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194 (2001). The inquiry necessarily looks to Supreme Court rulings on the right in question at the time of the officer’s actions.

The defendants argue that they are entitled to qualified immunity, given the special situation in which they operated. The FBI defendants claim that the plaintiffs did not have a “clearly established right to be immediately released from restrictive confinement” when the federal officials learned that “in some instances, arresting officers had failed to conduct the same initial vetting that other September 11 detainees received.” They contend that applying the hold-until-cleared policy was not clearly “so arbitrary as to constitute an impermissibly punitive or impermissibly discriminatory act.” The MDC defendants assert that they were simply implementing FBI and Bureau of Prisons (BOP) policies in holding the plaintiffs, and that no clearly established law required them to “impos[e] less restrictive conditions [of confinement] based on their own subjective assessment of the [plaintiffs’] terrorism connections.” They claim that the strip-searches did not violate clearly established Fourth Amendment law, because they were reasonably related to prison security.

The plaintiffs argue that the defendants are not entitled to qualified immunity. As to the FBI defendants, the plaintiffs claim that at the time of their arrests and detentions, precedent clearly established that officials could not detain individuals arbitrarily and without a purpose reasonably related to a legitimate government interest. They also say that precedent clearly established that officials could not single out individuals for arrest and detention based on race, religion, or ethnicity. As to the MDC defendants, the plaintiffs contend that placing individuals in restrictive detention without individualized justification violates BOP policy and clearly established law at the time of the detention.

Pleading StandardsWhile this case was moving through the lower courts, the Supreme Court clarified and heightened the pleading standard that a plaintiff must satisfy in a civil rights case. In particular, the Court ruled that a complaint must “state a claim to relief that is plausible on its face.” This means “more than a sheer possibility that a defendant has acted unlawfully,” or that the alleged facts are “merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). Moreover, a plaintiff’s Bivens claim cannot move forward based on supervisory (or vicarious) liability; instead, a plaintiff must plead that a defendant is directly liable for the unconstitutional conduct.

The defendants argue that the plaintiffs have failed to meet the Iqbal standards. The DOJ defendants point to Iqbal itself and contend that the Court in that case refused to credit similar assertions against the hold-until-cleared policy. They also say that the plaintiffs failed to plead that the DOJ defendants’ decision to merge the New York list and the INS list was based on discrimination, instead of a valid concern that “the FBI could unwittingly permit a dangerous individual to leave the United States.” The MDC defendants claim that they were simply implementing FBI and BOP policies, not acting to discriminate

or treat detainees arbitrarily. They also say that they were not personally responsible for certain abuses within the MDC (such as strip-searching), because they did not create or approve or even know about those abuses.

The plaintiffs counter that they have met the Iqbal standards against all the defendants. As to the DOJ defendants, the plaintiffs contend that their complaint included sufficiently detailed factual allegations that the DOJ defendants established policies to target Muslim men of Arab and South Asian descent and to hold such men in isolation and to treat them harshly. As to the MDC defendants, they assert that their complaint plausibly claimed that the MDC defendants were deliberately indifferent, and even willfully blind, to the abuse against them. They also say that the MDC defendants failed to correct the abuse when they learned of it.

SIGNIFICANCEThis is an incredibly important case that tests the boundaries of civil rights claims against individual federal officials for designing and implementing policies on the identification, arrest, detention, and treatment of individuals in the investigations into the 9/11 attacks. In other words, it tests when and how federal officials might be personally liable for civil damages arising out of these hotly disputed events and extremely challenging times for both law enforcement and targeted Muslims and Arabs alike.

But it’s important to remember that this case only touches on threshold defenses, and not on the underlying merits. The Court won’t examine whether the defendants actually violated the plaintiffs’ rights, except to the extent necessary to determine whether the claims arise in new context, whether the defendants are entitled to qualified immunity, and whether the plaintiffs sufficiently pleaded their case. (Moreover, the Court will almost surely say nothing about the merits of the underlying policies in investigating or preventing terrorist attacks.)

At the same time, however, these threshold defenses are very important. They operate as gate-keepers to the courts for any plaintiffs who seek to bring civil rights claims against federal officials. As such, they largely control whether a plaintiff has a remedy in the federal courts for a federal violation of civil rights. (And for many federal-civil-rights plaintiffs, the federal courts provide their only remedy.) How the Court rules on these defenses will determine whether plaintiffs have access to a federal judicial remedy in this case, and beyond.

When the Roberts Court has ruled on issues such as those in this case, it has fairly consistently restricted access to the courts (and not expanded it). But this case involves three different threshold issues with two (or more) sets of differently situated defendants, so it gives the Court a unique opportunity to more carefully explore the particular metes and bounds of these doctrines.

The Court will be particularly short-staffed in this case. That’s because Justices Sotomayor and Kagan are recused. If the Court divides along conventional ideological lines, three justices (Chief Justice Roberts and Justices Thomas and Alito) will likely rule in favor of the defendants, and two (Justices Ginsburg and Breyer) will likely rule in favor of the plaintiffs. Justice Kennedy could join


the conservatives to hand the defendants a win, or he could join the progressives to create a tie. If so, the Second Circuit ruling will stand, although it will have no nationwide precedential value. Given the number of issues and differently situated defendants, however, it is also possible that the Court could issue a more nuanced ruling.



ATTORNEYS FOR THE PARTIES For Petitioner James W. Ziglar (William A. McDaniel Jr., 410.528.5600)

For Petitioner John D. Ashcroft, Former Attorney General (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)

For Petitioner Dennis Hasty (Jeffrey A. Lamken, 202.556.2000)

For Respondent Ahmer Iqbal Abbasi (Rachel Meeropol, 212.614.6432)

AMICUS BRIEFS In Support of Petitioners

Former U.S. Attorneys General William P. Barr, Alberto R. Gonzales, Edwin Meese III, and Dick Thornburgh; and Washington Legal Foundation (Richard A. Samp, 202.588.0302)

In Support of RespondentCommonwealth Lawyers Association (Gary A. Isaac, 312.782.0600)

Former Correctional Officials (Andrew S. Pollis, 216.368.2766)

Immigration Detention Advocacy Organizations (Brian J. Murray, 312.782.3939)

Medical and Other Scientific and Health-Related Professionals (Eric Ordway, 212.310.8609)

Professors of Civil Procedure (Allan Ides, 213.793.6845)


D U E P R O C E S S

Can a State Deny a Refund of Fees to Defendants Whose Convictions Are No Longer Valid Unless They Prove Actual Innocence?

CASE AT A GLANCE In Colorado, a defendant whose conviction is no longer valid is not entitled to a refund of fees, court costs, or restitution unless the defendant proves his or her innocence of the underlying criminal charges by clear and convincing evidence. The question in this case is whether this scheme comports with substantive and procedural due process.

Nelson v. Colorado Docket No. 15-1256

Argument Date: January 9, 2017 From: Supreme Court of Colorado

by David L. Hudson Jr.Nashville School of Law and Vanderbilt Law School, Nashville, TN

ISSUEColorado, like many states, imposes various monetary penalties when a person is convicted of a crime. But Colorado appears to be the only state that does not refund these penalties when a conviction is reversed. Rather, Colorado requires defendants to prove their innocence by clear and convincing evidence to get their money back. Is this requirement consistent with due process?

FACTS This case concerns two defendants convicted in Colorado of sexual offenses whose convictions were later overturned or vacated. In Colorado, defendants whose convictions are no longer valid are not entitled to a refund of monies paid unless they prove their actual innocence by clear and convincing evidence.

Petitioner Shannon Nelson was convicted in 2006 of fi ve charges related to sexual assaults allegedly committed against her children. The trial court sentenced her to 20 years to life and ordered that she pay court costs, fees, and restitution. She paid a total of $702.10 in fees and restitution.

The Colorado Court of Appeals reversed her conviction, fi nding that a prosecution witness was improperly presented as an expert witness. The state tried Nelson again, but a jury acquitted her of all charges.

Nelson fi led a motion for a refund of the monies she had paid in costs, fees, and restitution. The trial court concluded it did not have the authority to order repayment of those monies. The Colorado Court of Appeals reversed and ruled she was entitled to a refund.

On further appeal, the Colorado Supreme Court reversed the Court of Appeals and found that Nelson was not entitled to a refund. People

v. Nelson, 362 P.3d 1070 (Colo. 2015). The Colorado high court reasoned that the only avenue for a person in Nelson’s situation to recover such monies was under the Exoneration Act.

Nelson did not fi le a motion for recovery of monies under the Exoneration Act. This law requires a defendant, who has had her conviction reversed, to prove by clear and convincing evidence that she is actually innocent of the criminal charges.

The second petitioner, Louis Alonzo Madden, was convicted in 2005 of attempting to patronize a prostituted child and attempted sexual assault. In addition to a prison term, Madden had to pay various court costs, fees, and restitution. Madden paid more than $4,000 in fees.

On direct appeal, the Colorado Court of Appeals reversed his attempted patronizing conviction but upheld his conviction for attempted assault. However, during a state postconviction proceeding, his attempted assault charge was vacated. The prosecutor chose not to retry the case.

Madden moved for a refund of the monies he had paid but did not fi le under the Colorado Exoneration Act. A trial court denied the request. The Colorado Court of Appeals reversed, fi nding that any monies paid must be tied to a valid conviction. The state appealed to the Colorado Supreme Court, which reversed and ruled that Madden was not entitled to a refund of the monies.

Both petitioners sought a writ of certiorari to the United States Supreme Court, which granted review. Both petitioners challenge the constitutionality of Colorado’s scheme, which provides that defendants whose convictions are no longer valid can only recover monies if they prove by clear and convincing evidence that they are actually innocent.


CASE ANALYSIS Petitioners assert that Colorado law violates the most basic requirement of due process by flipping the presumption of innocence. Due process requires the state to prove that a defendant has committed a crime beyond a reasonable doubt. However, the Colorado Exoneration Act requires a defendant to prove his or her innocence by clear and convincing evidence.

Petitioners say that Colorado can impose this heightened evidentiary burden for a defendant who is seeking a tort remedy for unlawful confinement but not to defendants who simply want a refund of monies they paid in court costs, fees, and restitution.

Colorado counters that there is no substantive due process right to a return of a monetary judgment. Substantive due process requires that a right be both clearly described and deeply rooted in history.

Colorado argues that the right is not clearly defined and accuses petitioners of trying to “constitutionalize a new area of law.” Colorado also reads the historical record differently, noting that “American courts have not always ordered compensation for a defendant’s monetary losses.”

Petitioners also argue that the Colorado scheme violates procedural due process under the standard articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). Under the Mathews test, a governmental scheme is evaluated under three factors: (1) the private interest impacted by governmental conduct; (2) the risk of an erroneous deprivation affected by government conduct; and (3) the government’s interest.

According to petitioners, all three factors countenance in their favor and against Colorado. Petitioners have a property interest in obtaining a refund. There is a great risk of erroneous deprivation, as the heightened burden of proof placed on individuals virtually guarantees that most people cannot affirmatively prove their innocence. Lastly, petitioners argue the government has no interest in keep money that belongs to people whose convictions have been reversed.

Colorado counters that the Mathews test is inapposite in criminal cases. Instead, the proper test is the Patterson-Medina test from Patterson v. New York, 432 U.S. 197 (1977) and Medina v. California, 505 U.S. 437 (1992). Under this test, a governmental procedure is constitutional unless it offends principles of justice rooted in the traditions and conscience of a people. According to Colorado, there is “no settled historical right to an automatic, unqualified monetary judgment against the State after a criminal defendant’s conviction was overturned.”

Colorado also argues that the Exoneration Act complies with the Mathews test: petitioners don’t define the source or nature of their property interest, there is no risk of erroneous deprivation because of numerous protections during the criminal trial process, and the state has a strong interest in ensuring that exonerated defendants receive an award for their deprivation of freedom.

Petitioners next analogize their cases to tax refund cases. When a state collects a tax that is later determined unlawful, due process

requires the state to refund the monies. According to petitioners, this principle also demands that the state of Colorado refund monies to those individuals whose convictions are no longer valid.

Colorado vigorously questions the analogy to tax refund cases. “Indeed, the settings are significantly different, and their differences dictate the appropriate outcome in each,” Colorado writes. In tax cases, a taxpayer must pay and then dispute later. However, in the criminal setting, states provide numerous procedures designed to provide protections to defendants facing deprivation of their liberty.

Petitioners also argue that history and tradition counsel against a finding of a due-process violation. The traditional rule, applied by many courts over centuries, is that individuals whose convictions are overturned are entitled to be put back in the place where they were before the unlawful convictions. This practice is “so well founded in equity” that it remains a staple of modern American jurisprudence.

Colorado reads the historical record quite differently, citing several cases where courts did not order full refunds to defendants whose convictions had been overturned. Since the historical record is not consistent, Colorado concludes, there is no settled right to a return of those monies.

Related to history and tradition, petitioners argue that Colorado is the ultimate outlier. “Everywhere else, defendants get their money back as a matter of course when their convictions are reversed,” petitioners write. “They do not have to prove anything.” Some states mandate refunds by statute. In other jurisdictions, courts routinely return monies to such defendants.

Colorado disputes petitioners’ reading of other jurisdictions. According to Colorado, many jurisdictions and courts do not automatically grant refunds to defendants whose convictions have been set aside. “Petitioners misrepresent current practice,” when they claim that Colorado is unlike every other jurisdiction, concludes the state.

Lastly, petitioners argue that all monies should be refunded to them, even monies that already have been awarded to crime victims as restitution. Petitioners assert that “[a] state cannot evade its constitutional obligations by changing the names it attaches to mandatory exactions.”

Colorado counters that “the weakest aspect” of petitioners’ claim concerns the return of restitution already paid to crime victims. They cite several cases in which courts refused to grant a return of monies to defendants for restitution.

SIGNIFICANCE The decision carries obvious significance to those defendants whose convictions are overturned, reversed, or vacated. Many defendants may not be able to meet the high burden imposed in Colorado by its Exoneration Act.

An interesting fact is that neither petitioner sought relief under the Exoneration Act. Instead, they argued for a refund from the trial


courts as a matter of due process. But the Court knows this, so it presumably has something important to say about due process in this context.

The Court could decide what test applies in the procedural due process context: the Mathews test, sometimes used in public employee procedural due-process cases, or the Patterson-Medina test urged by Colorado.

Several of the amici emphasize that the Colorado Exoneration Act turns the presumption of innocence on its head. The Institute for Justice and the Cato Institute emphasize this bedrock principle in declaring that “this should be an easy case.”

The case could be important for forfeiture laws in general, as many of the amici are urging that there is a strong property interest at stake in this case. An interesting question will be whether the Court will parse any differences between court costs, fees, and restitution, since states have a compelling interest in ensuring that crime victims receive restitution.

Finally, it also will be worth watching how the Court treats the analogy to tax refund cases. Petitioners and several amici drew such an analogy, but Colorado emphasizes key differences in the two areas.

David L. Hudson Jr. is a Nashville-based author and legal educator. The author, coauthor, or coeditor of more than 40 books, Hudson teaches classes at the Nashville School of Law and Vanderbilt Law School. He can be reached at 615.780.2279.


ATTORNEYS FOR THE PARTIES For Petitioners Shannon Nelson and Louis Alonzo Madden (Stuart Banner, 310.206.8506)

For Respondent State of Colorado (Frederick R. Yarger, 720.508.6168)

AMICUS BRIEFS In Support of Petitioners

Institute for Justice and the Cato Institute (David G. Post, 202.256.7375)

National Association of Criminal Defense Lawyers (Andrew J. Pincus, 202.263.3000)

Pacific Legal Foundation (M. Reed Hopper, 916.419.7111)


ISSUEWhat degree of benefi t must a special education program provide to satisfy the “free and appropriate public education” requirement imposed by the Individuals with Disabilities Education Act?

INTRODUCTIONIn determining whether the education and services provided to a child with disabilities satisfi es the free and appropriate public education requirement imposed by the Individuals with Disabilities Education Act, the Tenth Circuit has long held that the child must merely receive a “more than de minimis benefi t.” Other circuits have held that a child with disabilities must be provided a “meaningful educational benefi t” to satisfy the “free appropriate public education” (FAPE) requirement. This case asks the Supreme Court to resolve this circuit confl ict and decide whether the benefi t to a child with disabilities must be “merely … more than de minimis,” “meaningful,” or satisfy some other standard for an education and services to comply with the IDEA.

FACTSThe present case was brought on behalf of Endrew F. (Drew) by his parents Joseph and Jennifer F. (collectively, petitioner) seeking reimbursement from the Douglas County School District (the District) for the expenses of private schooling. Petitioner claims

that private schooling was necessary to provide Drew an appropriate education, in light of both Drew’s disabilities and the District’s failure to adequately address them. The critical issue presented is what level of benefi t a special education program must provide to satisfy the FAPE requirement imposed by the IDEA.

The StatuteInitially enacted in 1975 as the Education for All Handicapped Children Act (EHA), the IDEA provides federal grants to the states “to assist them to provide special education and related services to children with disabilities.” 20 U.S.C. § 1411(a)(1). In exchange for accepting IDEA funds, states are required to provide every eligible child with a disability residing in the state a FAPE. The statute defi nes FAPE as follows:

The term “free appropriate public education” means special education and related services that—

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

Endrew F. v. Douglas County School District RE-1Docket No. 15-827

Argument Date: January 11, 2017From: The Tenth Circuit

by Kimberly A. JansenHinshaw & Culbertson LLP, Chicago, IL

CASE AT A GLANCE After Endrew F. (Drew) experienced several increasingly unsuccessful years attending school within the Douglas County School District (the District), Drew’s parents removed him from the public school and enrolled him at Firefl y Autism House. Firefl y specializes in educating students such as Drew who have been diagnosed with autism. Drew’s parents then initiated a due process hearing under the Individuals with Disabilities Education Act (IDEA) to seek reimbursement from the District for the expense of Drew’s private schooling. The hearing offi cer denied the claim for reimbursement, fi nding that the Individualized Education Program (IEP) prepared by the public school was reasonably calculated to allow Drew to receive an educational benefi t. The United States District Court for the District of Colorado affi rmed the hearing offi cer’s determination when Drew’s parents sought judicial review. The United States Court of Appeals for the Tenth Circuit affi rmed both the district court and the hearing offi cer, fi nding that a free and appropriate education under the IDEA requires merely that the education and services provided to a child with disabilities be suffi cient to provide more than a de minimis benefi t.

I N D I V I D U A L S W I T H D I S A B I L I T I E S E D U C AT I O N A C T

What Degree of Benefi t Must a Special Education Program Provide to Satisfy a “Free and Appropriate Public Education”?


(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9).

The individualized education program (IEP) required under section 1414(d) has been described as the “centerpiece” of the IDEA. Created collaboratively by an “IEP team” made up of the child’s parents, the child’s teachers, and other qualified personnel, each IEP must include, inter alia: (1) an assessment of the child’s current educational performance; (2) measurable educational goals; and (3) specification of the services that will be provided to address the child’s individual needs. The IEP should also strive to ensure that the child is “educated with children who are not disabled,” to the maximum extent appropriate. 20 U.S.C. § 1412(a)(5)(A).

In 1997 and 2004, Congress expanded the requirements for IEPs considerably. The 1997 amendments, for example, added a requirement that an IEP include goals that are measurable along with the description of how a student’s progress toward those goals should be evaluated. The amendments require an annual reevaluation of the student’s progress and, once a student reaches age 16, the IEP must include a plan for transitioning the student to life after high school. The 1997 amendments preface these heightened requirements with a finding that “the implementation of [the IDEA] ha[d] been impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.”

The 2004 amendments required states to establish “goals for the performance of children with disabilities” that are “the same as the state’s long-term goals” under the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001. Not only must IEPs now include transition services to prepare students for life after high school but must also include “appropriate measurable postsecondary goals.”

The IDEA provides opportunities for resolving the disputes that will inevitably arise between parents and schools regarding the appropriate content of an IEP or the sufficiency of the FAPE. If the parents and the school are unable to resolve their differences through mediation, either the parents or the school district may file a due process complaint with the state educational agency, to be decided by a hearing officer following a full administrative hearing. Parties not satisfied by the administrative decision may seek judicial review before a state or federal court.

Drew’s EducationDrew attended public schools within the District from preschool through fourth grade. Because Drew has been diagnosed with autism and attention deficit/hyperactivity disorder, he received special education services from the District.

The parties appear to agree that Drew made progress in school through at least first grade. Beginning in second grade, however, increasing behavioral and adaptive issues interfered with Drew’s educational progress. According to petitioner, the District’s special education teacher “claimed to be ‘unable to discern’ any way to

prevent [Drew’s] disability-related challenges from impeding his educational progress.”

As a result, the majority of the goals set for Drew in his fourth grade IEP were “continued” to the following year because they had not been achieved. Further, petitioner claims that Drew regressed in several areas that year, including learning basic division. Drew was “unable to express the cause of his feelings to others,” could not learn his peers’ names, and was unable to put on a coat. A goal of being able to “retell[ ] a passage” was deemed “no longer appropriate.”

Drew’s parents met with his IEP team in April 2010 to develop an IEP for Drew’s fifth grade year. According to petitioner, the fifth grade IEP contained “fewer goals than in previous years,” with those goals being “the same or similar” to goals from previous years’ IEPs. According to the District, “‘[e]veryone’ at the meeting agreed ‘that a new [behavioral intervention plan (BIP)] was needed and that an autism specialist should be part of the team.’”

Before the IEP team reconvened on May 10, 2010, Drew’s parents notified the District that they were rejecting the fifth grade IEP and instead enrolling Drew at Firefly Autism House, a private school that specializes in educating children who have been diagnosed with autism. According to petitioner, Firefly implemented a BIP that identified Drew’s “target” behavior issues and established a specific strategy to address each. Drew received services such as “applied behavior analysis,” and speech therapy. Firefly established more ambitious academic goals for Drew, and Drew quickly “made significant ‘academic, social and behavioral progress.’”

Legal ProceedingsPetitioner then filed a due process complaint under the IDEA with the Colorado Department of Education, claiming that the District’s fifth grade IEP denied Drew a FAPE. Petitioner sought reimbursement for Drew’s private school tuition. The administrative hearing officer rejected the petitioner’s claim, finding that because Drew had received “some” educational benefit while enrolled within the District, the District had satisfied its obligation to provide a FAPE.

Petitioner then filed suit in the district court challenging the administrative decision. The district court found that the intent of the IDEA was “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Accordingly, because the District had enrolled Drew in classes and he was able to make “minimal progress” on some of his IEP goals, the district court affirmed the administrative ruling that the District had met its obligation to provide a FAPE.

Petitioner appealed that decision to the Tenth Circuit, arguing that the administrative hearing officer and the district court both erred in holding that the determination of whether the District satisfied its obligation to provide a FAPE turns on whether the child received “some educational benefit.” Instead, petitioner suggested that the Tenth Circuit had already departed from this standard in favor of a “meaningful educational benefit standard” applied in the Third, Fifth, and Sixth Circuits.


The Tenth Circuit disagreed, adhering to the “some educational benefit” standard of its earlier decisions. The Tenth Circuit elaborated that the “some educational benefit” standard means that “the educational benefit mandated by the IDEA must merely be ‘more than de minimis.’”

After inviting the Solicitor General to file a brief expressing the views of the United States, the Supreme Court granted certiorari.

CASE ANALYSISThe United States Supreme Court first addressed the contours of the FAPE requirement in Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The parties’ markedly different readings of Rowley inform the markedly different standards they believe that the Supreme Court should apply in determining whether a school has met its FAPE obligation.

In Rowley, the Supreme Court addressed the scope of a school’s FAPE obligations in the context of “the education of Amy Rowley, a deaf student … [with] minimal residual hearing [who was] an excellent lipreader.” Amy successfully completed kindergarten with the assistance of “an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities.” As Amy prepared to begin first grade, her new IEP provided that she would continue to use the FM hearing aid and would receive supplemental services from a tutor for the deaf and a speech therapist. Though agreeing with parts of the IEP, Amy’s parents insisted that she also be provided “a qualified sign-language interpreter in all her academic classes.”

When their request for a sign-language interpreter was denied, Amy’s parents sought a due process hearing. The independent examiner at that hearing agreed that an interpreter was unnecessary “because ‘Amy was achieving educationally, academically, and socially’ without such assistance.” That determination was affirmed by the New York Commissioner of Education.

The United States District Court for the Southern District of New York, however, disagreed. Though acknowledging that Amy’s academic performance was above average for her grade, the district court found that Amy understood “considerably less of what goes on in class than she could if she were not deaf,” and concluded that the disparity between Amy’s achievement and her potential meant she was not receiving a FAPE. That conclusion was affirmed by a divided panel of the United States Court of Appeals for the Second Circuit.

The Supreme Court reversed. “[L]oath to conclude that Congress failed to offer any assistance in defining the meaning” of the phrase “appropriate education,” the Court looked to the statutory definition of “free appropriate public education” and found that definition provided more guidance than the parties seemed willing to admit. Describing that definition as “[a]lmost … a checklist,” the Court held that, to satisfy the FAPE requirement, the instruction and services provided to a child with disabilities must: (1) “be provided at public expense and under public supervision;” (2) “meet the state’s educational standards;” (3) “approximate the grade levels used in the State’s regular education;” and (4) “comport with the child’s IEP.” “Thus,” the Court held, “if personalized instruction is being provided with sufficient supportive services to permit the

child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a ‘free appropriate public education’ as defined by the Act.”

The Court did not believe that the Act requires “strict equality of opportunity or services.” But the Court did believe that “implicit in the congressional purpose of providing access to a ‘free appropriate public education’ is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.” Thus, the “basic floor of opportunity” guaranteed by the IDEA requires “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.”

The Rowley Court noted that the “determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the act presents a more difficult problem.” Declining to adopt “any one test” for evaluating the adequacy of educational benefits and confining its analysis to the Amy Rowley situation—“a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of the public school system”—the Court concluded that the FAPE standard is met if the IEP and personalized instruction “enable the child to achieve passing marks and advance from grade to grade.”

The District first argues that Rowley requires only “some” “nontrivial” educational benefit. The District believes that Rowley decisively answered the sole question presented to the Court in this case, reading Rowley as rejecting the imposition of any substantive standard governing the level of educational benefit to which children with disabilities are entitled under the IDEA. Instead, the District believes that the IDEA imposes primarily procedural obligations. According to the District, assuming a school complies with the statutory procedures when crafting an IEP, the FAPE obligation is satisfied so long as the resulting IEP is “reasonably calculated to enable the child to receive educational benefits.” The District emphasizes that the IEP need not guarantee “any particular level of benefit” so long as it provides “some benefit, as opposed to none.” The District notes that decisions from the Court of Appeals in several circuits “have equated some benefit with a ‘more than de minimis’ or ‘nontrivial’ benefit.”

In response, petitioner argues a “merely more than de minimis” standard is contrary to both Rowley and the statute.

Petitioner argues that Rowley “imposes not just procedural demands but also a substantive obligation.” According to petitioner, the District’s suggestion that the IDEA imposes only procedural obligations is contrary to the Supreme Court’s repeated recognition that the IDEA “establishes an enforceable substantive right to a free appropriate public education.” See Smith v. Robinson, 468 U.S. 992 (1984), Honig v. Doe, 484 U.S. 305 (1988), and Winkelman v. Parma City School District, 550 U.S. 516 (2007).

Petitioner further challenges the suggestion that the Rowley Court’s use of the word “some” was meant to “pinpoint the level of [a school's] substantive obligation.” Petitioner acknowledges that the Rowley Court emphasized that “it was not attempting ‘to establish any one test for determining the adequacy of educational


benefits.’” The Rowley Court did, however, specify that the services provided by a school must be sufficient “to make access to public education ‘meaningful’ and to ‘enable the child to achieve passing marks and advance from grade to grade.’” This language, according to petitioner, suggests a considerably higher standard than what the “merely more than de minimis” standard followed by the Tenth Circuit would permit.

In challenging the “merely more than de minimis” standard, petitioner looks beyond Rowley as well. Applying a textual analysis, petitioner notes that the term “free appropriate public education” itself, as well as the statutory definition of that term, both embrace the requirement that states must provide children with disabilities an “appropriate” education. Pointing to definitions of “appropriate” as “specially suitable: fit, proper,” or “well fitted for the purpose,” petitioner argues that an IEP which strives to achieve a “merely more than de minimis” benefit would not be “well fitted” for the purposes of the IDEA as expressly spelled out within that statute, including “ensur[ing] the effectiveness of efforts to educate children with disabilities,” and “preparing [children with disabilities] for further education, employment, and independent living.”

Petitioner notes that the IDEA is built upon congressional findings that the educational needs of children with disabilities were not being fully met and that “many children with disabilities were not ‘receiv[ing] appropriate educational services which would enable them to have full equality of opportunity.’” (Alteration in Pet. Br., quoting Pub. L. No. 94-142, § 3(a), 89 Stat. 773, 774 (1975).) According to petitioner, construing the IDEA to require “just-above-trivial educational advancement for children with disabilities” would undermine the statute’s core purpose of promoting equal opportunity and effectiveness in a state’s special educational efforts.

Petitioner also argues that a “merely more than de minimis” standard does not comport with the recognized role of public education within American society. According to petitioner, public education has long been considered “an essential building block for democratic citizenship and for socialization as well as a key determinant of a child’s future economic well-being and independence.” The Supreme Court itself has referred to public education as “‘the principal instrument [of state and local government] in awakening the child’s cultural values, preparing him for later professional training, and helping him to adjust normally to his environment.’” (Alteration in Pet. Br., quoting Brown v. Bd. of Educ., 347 U.S. 483 (1954).) Petitioner argues that, because the word “appropriate” modifies “public education” in the statute, the recognized importance of public education should inform the Court’s understanding of what sort of education is “appropriate.” Requiring “merely more than de minimis” educational benefit would not be “appropriate,” given the recognized importance of public education.

According to petitioner, requiring a “merely more than de minimis” educational benefit would also be inconsistent with the provisions of the IDEA implementing the FAPE obligation, particularly the provisions governing the creation of an IEP. The importance of the provisions governing the IEP in defining a FAPE is inherent in the definition of a FAPE, which explicitly dictates that a FAPE must be “provided in conformity with the” IEP.

The statutory requirements for IEPs are extensive. The IEP must, inter alia: identify the child’s current level of achievement; provide a statement of annual goals, both academic and functional, designed to enable a child’s involvement and progress in the general education curriculum; describe how the child’s progress toward meeting the annual goals will be measured; and specify the special education and related services to be provided to the child “based on peer-reviewed research to the extent practicable.” According to petitioner, the significant effort necessary to comply with these requirements would be unjustified “if minimal educational attainment was all that the IDEA demanded.”

The District agrees that these IEP requirements are “exacting.” But rather than read these comprehensive and detailed requirements as giving shape to a substantive standard for the type of education considered to be “appropriate” in applying the FAPE requirement, the District instead contends that the expansive IEP requirements reflect the comprehensive procedural protections that make a substantive standard unnecessary. The District argues that the care Congress took to design this comprehensive scheme militates against finding an implicit substantive standard beyond the requirements expressly detailed by the Act.

Petitioner next advocates a standard requiring “substantial equal opportunities” for children with disabilities. Petitioner urges the Court to hold that a FAPE requires that schools “provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Acknowledging that the petition for writ of certiorari advocated a standard based on “substantial educational benefit,” petitioner explains that this new formulation was adopted in recognition of prior statements by the Court that education is not “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Plyler v. Doe, 457 U.S. 202 (1982).

Petitioner grounds the emphasis on equality in this new proposed standard in the statutory provisions requiring schools to align their academic achievement standards for students with disabilities with the academic standards applicable to all children under the ESEA, reading these as a reflection of congressional intent that an “appropriate education” is one which strives to improve educational results “on par with a school’s student body as a whole.” Petitioner also emphasizes the congressional finding prefacing IDEA that improving educational outcomes for students with disabilities “is an essential element of our national policy of ensuring equality of opportunity.” According to petitioner, the qualifier “substantially” reflects the Supreme Court’s holding in Rowley that the IDEA does not demand “strict equality of opportunity or services.”

Petitioner argues that this proposed standard is “eminently workable,” noting that with appropriate support services children with disabilities are able to thrive academically and achieve at levels on par with their nondisabled peers. This standard would generally require schools to aim for grade-level achievement for students with disabilities, a requirement already implicit in the IDEA’s requirement that children with disabilities be integrated into the general education curriculum.


Petitioner further argues that this proposed standard is consistent with existing regulations promulgated by the Department of Education that require schools to adapt instruction to ensure that children with disabilities are able to meet the educational standard applicable to all children.

Finally, petitioner argues that this standard does not usurp the role of educators or parents in tailoring an IEP to an individual student's particular needs.

The United States, as amicus, advocates a standard that guarantees children with disabilities the opportunity to make “significant educational progress.” Having initially been invited to file a brief in response to the petition for certiorari, the United States also filed a brief as amicus curiae in support of petitioner. Like petitioner, the United States strongly opposed the “merely more than de minimis” standard applied by the Tenth Circuit: “No parent or educator in America would say that a child has received an ‘appropriate’ or a ‘specially suitable’ or ‘proper’ education ‘in the circumstances’ when all the child has received are benefits that are barely more than trivial.”

In place of the Tenth Circuit’s standard, the United States advocates a standard that would require children with disabilities be provided “an opportunity … to make significant educational progress.” This standard, the United States argues, is consistent with the Rowley Court’s holding that the IDEA promises children with disabilities “access” to education that is “meaningful” in light of that child’s unique circumstances. Rowley, the United States contends, set out three markers which shed light on the substantive FAPE standard under the IDEA: (1) requiring “strict equality of opportunity” would be an unworkable standard because it requires impossible measurements and comparisons of different children with different needs; (2) recognizing that a substantive educational standard embodied in the FAPE obligation ensures “meaningful” “access” to public education; and (3) compliance with the FAPE obligation requires a case-specific, individualized analysis, tailored to each child’s unique needs.

Reading the requirement of “meaningful access” set out in Rowley to require an “opportunity to make significant educational progress,” the United States argues, is consistent with the Court’s conclusion that, for a child educated in the regular classrooms of a school, an IEP should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Although Rowley did not address what the IDEA requires with respect to a child who cannot be “fully integrated into the general education classroom,” the United States argues that Rowley guarantees such children “meaningful”—significant—educational progress.

The District counters that the IDEA does not provide “clear notice” of the proposed substantive standards suggested by petitioner or the United States. The differences between the standards imposed by the petitioner and the United States, according to the District, reinforces its conclusion that the IDEA imposes no substantive standard. The District argues before the Supreme Court (though it raised no such challenge in the lower courts) that no substantive standard may be crafted judicially because the statute itself does not provide clear notice of any such standard.

The IDEA was enacted pursuant to the Spending Clause of the U.S. Constitution (Art. I, § 8, cl. 1), which not only permits Congress to spend funds on particular state or private programs but also authorizes Congress to impose limits on the use of such funds to ensure that they are used in the manner Congress intends. The District notes that Spending Clause statutes are contractual in nature: “In exchange for receiving federal funds, States must agree to be bound by the statute’s conditions.” The District argues that such conditions are subject to a clear notice requirement: the conditions must be sent out clearly and unambiguously within the statute in order to be enforceable.

According to the District, the clear notice requirement precludes the imposition of any substantive standard governing the level of educational benefit required by the IDEA beyond the requirement that the child receives “some educational benefit.” The District argues that the definition of “special education and related services” as “specially designed instruction” and such “supportive services … as may be required to assist the child … to benefit from that instruction” provides clear notice that a FAPE must provide a benefit to a child with disabilities. Because the statute does not purport to quantify the extent to which a child must benefit from instruction and because all legislation is subject to the principal “de minimis non curat lex [“The law does not concern itself with trifles.”],” the District argues that states have clear notice only that a FAPE must provide a benefit that is more than de minimis.

The parties agree that Congress intended from the initial adoption of the IDEA (then, the EHA) to provide children with disabilities meaningful access to public education. They likewise agree that Congress intended, through the 1997 and 2004 amendments, to heighten the expectations for special education. Petitioner and the United States believe that recognizing a rigorous substantive component to the IDEA’s requirements is necessary to prevent low expectations from defeating the purpose of the Act. The District, in contrast, believes that the procedural components of the IDEA are sufficient to effectuate the purpose of the Act and the substantive implementation of those procedural components should be left to the discretion of educators rather than dictated by courts lacking educational expertise. The ten briefs filed by the amici in this case—eleven in support of petitioner, one in support of the District, and one in support of neither party—reflect these competing concerns.

The National Education Association (NEA), for example, emphasizes that the “Tenth Circuit’s minimal educational standard is a proclamation to aim low, when best practices dictate that students with disabilities best learn when they aim high.” The NEA argues that a heightened standard is compelled both by legislative history and by educational best practices. An appropriate education, according to the NEA, requires high expectations and differentiation between students. Noting that the more recent amendments to the IDEA emphasize research-based methods, the NEA calls upon the Supreme Court to do so as well and to adopt the standard consistent not only with “the purpose and structure of the IDEA,” but also with “evolving practice as to the most effective manner to reach the IDEA’s stated goal.”

Several former United States Department of Education officials likewise target the problem of low expectations: “When expectations


for children with disabilities are set too low, they often receive less challenging instruction that reflects below-grade-level content standards, preventing them from learning what they need to learn to succeed at grade-level work.” The increasing implementation of evidence-based teaching methods, these former officials argue, has proven effective in narrowing the achievement gap between students with disabilities and those without. The changes to the IDEA since Rowley reflect these advancements in educational practice. By directing states to align their academic content standards for students with disabilities with the standards applicable to students without disabilities, the amendments demonstrate Congress’s intent to require schools to aim high.

The Council of Parent Attorneys and Advocates, et al. (Parent Council), argues that the federal courts’ attempts to quantify the required level of educational benefit using words such as “some,” “minimal,” “meaningful,” and the phrase “more than de minimis” failed to account for changes in the law and federal educational policy. These adjectives, the Parent Council further argues, reinforce a misconception that the IDEA “requires a set, quantifiable amount of educational benefits for all children with disabilities” when, in fact, the benefit required by the IDEA will necessarily vary because the required programs and services must be individually tailored. The Parent Council advocates for a standard that would hold “an IEP confers educational benefit when the school district complies with the IDEA’s substantive obligations in order to target all areas of the student’s educational needs to ensure achievement in the general educational curriculum consistent with his or her peers without disabilities.”

The Coalition of Texans with Disabilities, et al. (Coalition), similarly emphasizes the need for the Court to clarify “that any substantive standard must be consistent with today’s IDEA and must dovetail with its procedural requirements.” The Coalition argues that lower standards lead to school systems choosing the educational options that will reduce the school system’s costs without regard to the increased cost to society as a whole, noting as one example that students with disabilities “represent a quarter of students arrested and referred to law enforcement, even though they are only 12% of the overall student population.”

The Coalition additionally addresses a four-factor test applied in the Fifth Circuit, which requires that a special education program be (1) individualized, (2) administered in the least restrictive environment, (3) provide services in a coordinated and collaborative manner, and (4) demonstrate positive academic and nonacademic benefits. The Coalition argues that this test, which variously describes the required benefits as “some educational benefit,” “more than minimal educational benefits,” and “meaningful academic progress,” fails to account for the 1997 and 2004 amendments which evidence Congress’s intent to impose heightened standards.

Three states that have weighed in—Delaware, Massachusetts, and New Mexico—to emphasize the expected significance of the Court’s decision, observing that how the Supreme Court defines the appropriate standard will “filter down to the training every special education diagnostician receives, affecting every student who receives special education and related services.” These states

argue that “Congress has never stated that merely more than de minimis educational benefit is the goal, and the court should not superimpose such a low standard in direct contradiction to congressional intent.”

To “[a]ggrandiz[e] the word ‘some’” as used in Rowley—a case involving a child with above-average academic performance—misses the mark, according to the States. Academically gifted children such as Amy Rowley, as well as disabled children without such cognitive advantages, all deserve a “meaningful” educational benefit, according to the states. Acknowledging the significant cost of tuition reimbursement, the states emphasize that the issue is not a question before the Court. They urge the Court to “view skeptically any contention that adopting the ‘meaningful benefit’ standard will result in an overwhelming onslaught of tuition reimbursement demands on the public school system.” A wide array of services can be provided within the public school system and only “1.4% of students ages 6 through 21 served under the IDEA were enrolled by their parents in private schools” in 2014.

The Advocates for Children of New York, et al. (Children’s Advocates), urged the Court to articulate as detailed a standard as possible. “Parents and school administrators,” Children’s Advocates contend, “require as much clarity as possible in making the difficult choices involved in educating students with disabilities.” The better parents are able to understand the applicable standard, the better they will be able to advocate for their children. When parents make the financially significant decision to transfer their child to a private school, some predictability as to whether the education provided by the public school will be found to have been appropriate is crucial. Likewise, school administrators need to understand the standard that they must satisfy in order to deliver appropriate services.

A group of 118 Members of Congress contend that the Tenth Circuit’s “more than de minimis” standard “would render the IDEA a hollow procedural formality.” They protest that “Congress did not expend the time and effort to create a legislative scheme—and then repeatedly refine that scheme over a thirty-year period—to accomplish next to nothing.” The members of Congress acknowledge that the statute does not guarantee “any specific outcome for children with disabilities.” Nevertheless, the statute was intended “to provide full opportunities and benefits for students with disabilities, and not merely borderline de minimis ones.”

The Council of the Great City Schools (Great City), in contrast, argues that maintaining a workable interpretation of a FAPE should be the Court’s central focus. Attempts “to define a particular level of educational benefit required for all students with disabilities,” Great City argues, “is unnecessary and ill-advised, particularly in the face of the statutory changes that have been made by Congress.” Great City concedes that the 1997 and 2004 amendments reflect an intent to heighten the expectations for special education. But that goal is achieved, according to Great City, through compliance with the enhanced IEP requirements. Rather than adopt a heightened substantive standard, Great City urges that “courts should continue to guarantee that the increasingly demanding components of IEP’s are in place and otherwise defer to professional educators’ determinations of the level of educational benefits that one should anticipate for any particular child.”


SIGNIFICANCEIn determining whether the IDEA requires any particular level of educational benefit and, if so, what level of benefit is required, the Supreme Court will in many ways be deciding what degree of deference courts must give to the decisions made by educators and school districts regarding the appropriate instruction and support services to be provided to a student with disabilities.

If the District’s interpretation is adopted, educators and school districts will enjoy virtually unfettered discretion to determine what instruction and services to implement—so long as the District follows the procedural steps dictated by the statute and the resulting education is not completely devoid of any benefit, the substantive content of an IEP would be beyond a court’s scrutiny. From the District’s perspective, this approach ensures that complex decisions regarding educational strategies and policy would be left in the hands of conscientious parents and experts rather than in the hands of judges with no pedagogical expertise. The procedural demands alone are sufficient to ensure that educators will “aim high.”

In contrast, the standards proposed by petitioner and the United States would give courts a more significant role in evaluating whether a child with disabilities is receiving sufficient benefit from the instruction and services provided. From the perspectives of petitioner and the United States, the IDEA—particularly as expanded in 1997 and 2004—does not merely obligate schools to follow specified procedural steps in crafting an IEP but also requires that the substance of the IEP meet prescribed standards. Failure to enforce substantive standards, they contend, will send the message to schools and school districts that it is acceptable to “aim low.”

Kimberly A. Jansen is a partner at Hinshaw & Culbertson LLP, where she focuses her practice on appellate litigation. She additionally serves on the Board of Directors for the Appellate Lawyers Association and holds a Masters of Education from the University of Illinois at Urbana-Champaign. She can be reached at [email protected] or 312.704.3821.


ATTORNEYS FOR THE PARTIES For Petitioner Endrew F., a Minor, By and Through His Parents and Next Friends, Joseph F. and Jennifer F. (Jack D. Robinson, 303.830.7090)

For Respondent Douglas County School District RE-1 (Neal Kumar Katyal, 202.637.5600)

AMICUS BRIEFSIn Support of Petitioner Endrew F., a Minor, By and Through His Parents and Next Friends, Joseph F. and Jennifer F.

118 Members of Congress (Matthew S. Hellman, 202.639.6861)

Advocates for Children of New York, Children’s Law Center, Inc., Connecticut Parent Advocacy Center, Equip for Equality, the Legal Aid Society, Legal Services NYC, National Center for Youth Law, New York Lawyers for the Public Interest, New York Legal Assistance Group, Partnership for Children’s Rights, and Statewide Parent Advocacy Network (Alan E. Schoenfeld, 212.937.7518)

Coalition of Texans with Disabilities, Decoding Dyslexia and Don’t Dismyabilities, Inc. (Andrew K. Cuddy, 315.370.4020)

Council of Parent Attorneys and Advocates, Children and Adults with Attention Deficit/Hyperactivity Disorder, and the California Association for Parent-Child Advocacy (Selene Almazan-Altobelli, 844.426.7224)

Delaware, Massachusetts, and New Mexico (Patricia Davis, 302.577.8400)

Disability Rights Organizations and Public Interest Centers (Gregory J. Wallance, 212.836.8000)

Former Officials of the U.S. Department of Education (Aaron M. Panner, 202.326.7900)

National Disability Rights Network (Marc A. Hearron, 202.778.1663)

National Education Association (Alice M. O’Brien, 202.822.7035)

United States (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)

In Support of Respondent Douglas County School District RE-1AASA, The School Superintendents Association (Ruthanne M. Deutsch, 202.868.6915)

Council of the Great City Schools (John W. Borkowski, 312.655.1500)

In Support of Neither PartyNational Association of State Directors of Special Education (Stephen A. Miller, 215.665.4736)


F A I R D E B T C O L L E C T I O N P R A C T I C E S A C T

Does a Debt Collector Violate the Fair Debt Collection Practices Act by Filing, in a Bankruptcy Proceeding, a Proof of Claim for a Time-Barred Debt?

CASE AT A GLANCE Federal courts have held, and the petitioner debt collector in this case does not dispute, that a debt collector violates the Fair Debt Collection Practices Act (FDCPA) by fi ling a state court lawsuit to collect a debt where the applicable statute of limitations has expired. This case addresses whether a debt collector may fi le a proof of claim in bankruptcy with respect to such a time-barred debt without running afoul of the FDCPA. Those circuit courts that have previously addressed this issue are split, with the Second and Eighth Circuits holding that such conduct does not violate the FDCPA and the Seventh and Eleventh Circuits holding that it does.

Midland Funding, LLC v. JohnsonDocket No. 16-348

Argument Date: January 17, 2017From: The Eleventh Circuit

by Kimberly A. JansenHinshaw & Culbertson LLP, Chicago, IL

ISSUESDoes fi ling an accurate proof of claim for a time-barred debt in a bankruptcy proceeding violate the Fair Debt Collection Practices Act (FDCPA)?

Does the Bankruptcy Code preclude the application of the Fair Debt Collection Practices Act to the fi ling of an accurate proof of claim for an unextinguished time-barred debt?

FACTSIn 2014, respondent Aleida Johnson fi led a petition for bankruptcy under chapter 13 of the Bankruptcy Code. Petitioner Midland Funding, LLC fi led a proof of claim in that proceeding for a credit card debt Johnson had incurred years earlier: the last transaction on the account was in May 2003. (Midland, a debt purchaser, had acquired the credit card debt after Johnson had defaulted.) The parties agree that the applicable statute of limitations under Alabama law expired in 2009.

Johnson’s bankruptcy counsel objected to Midland’s proof of claim based on the lack of supporting documentation and the bankruptcy court disallowed claim. Three days later, Johnson fi led a putative nationwide class action against Midland in the United States District Court for the Southern District of Alabama. Johnson alleged that fi ling a proof of claim with respect to a time-barred debt violated (1) section 1692e of the FDCPA, which prohibits the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt”; and (2) section 1692f of the FDCPA which prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt.”

The district court dismissed Johnson’s complaint for failure to state a claim. In the district court’s view, the Bankruptcy Code affi rmatively authorized Midland to fi le a proof of claim even though the debt was time barred. The district court additionally concluded, however, that the FDCPA makes it unlawful to fi le a proof of claim as to a time-barred debt. Finding the confl ict between these two provisions “irreconcilable,” the district court applied the doctrine of implied repeal to conclude that the Bankruptcy Code precludes the FDCPA claim in this context.

The Eleventh Circuit disagreed. First, the Eleventh Circuit reaffi rmed its holding in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), that “a debt collector violates the FDCPA when it fi les proof of claim in a bankruptcy case on a debt that it knows to be time-barred.” The Eleventh Circuit then turned to the question that it had left open in Crawford: whether the Bankruptcy Code precludes an FDCPA claim when a debt collector fi les a proof of claim it knows to be time barred.

First, the Eleventh Circuit noted that a claim under the Bankruptcy Code is defi ned as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fi xed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” The court further noted that the Supreme Court has described a right to payment under the Bankruptcy Code as “nothing more nor less than an enforceable obligation.” Penn. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552 (1990). Reasoning that “having a claim is not the same as being entitled to a remedy,” the court concluded that the time-barred debt was still a “claim” under the bankruptcy code because, under Alabama law, the statute


of limitations does not extinguish the cause of action, but merely makes the remedy unavailable.

Nevertheless, the Eleventh Circuit held that even though the Bankruptcy Code may permit creditors to file proofs of claim as to debts they know to be time barred, “those creditors are not free from all consequences of filing these claims”—such as the consequences flowing from the holding in Crawford that “a debt collector violates the FDCPA by filing a knowingly time-barred proof of claim in a Chapter 13 bankruptcy proceeding.”

The Eleventh Circuit held that this created no irreconcilable conflict between the FDCPA in the bankruptcy code. The two statutes can be reconciled, the court explained, “because they provide different protections and reach different actors.” The Bankruptcy Code permits all “creditors” to file proofs of claim while the FDCPA restricts the behavior only of “debt collectors.” Thus, a creditor can file a proof of claim in a chapter 13 bankruptcy even where it knows that the claim is time-barred; however, if that creditor is a “debt collector” as defined by the FDCPA, the creditor faces potential liability under the FDCPA for misleading or unfair practices.

CASE ANALYSISUnder the Bankruptcy Code, once a debtor declares bankruptcy, creditors are entitled to file a proof of claim against the bankruptcy estate. The parties in this case dispute whether this includes a right to file a proof of claim with respect to a debt that is time barred under the applicable statute of limitations. All three circuit courts to have considered this question thus far—the Fourth Circuit, the Seventh Circuit, and the Eleventh Circuit—have all concluded that the Bankruptcy Code does indeed provide such a right.

Midland contends that these courts have reached the correct result. The Bankruptcy Code defines the term “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Whether a right to payment exists depends on whether such a right exists under state law.

According to Midland, the expiration of the statute of limitations does not extinguish the underlying right to payment under Alabama law but merely eliminates a creditor’s judicial remedy. Because the expiration of the statute of limitations is an affirmative defense, this defense can be waived if not timely raised by the debtor. Furthermore, an otherwise time barred claim can be revived—that is, the limitations period can be reset—where a debtor makes a partial payment on the debt or provides a written promise to pay. Thus, Midland argues, even though the expiration of the statute of limitations may prevent a creditor from seeking to enforce a time-barred debt in a civil action, the creditor nevertheless retains a right to repayment of the debt.

Johnson disagrees. Quoting the Supreme Court’s decision in Davenport, Johnson argues that a “right to repayment” is “nothing more nor less than an enforceable obligation.” Although state law (such as Alabama’s) may preserve the underlying obligation, by extinguishing the creditor’s judicial remedy, a statute of limitation renders that obligation unenforceable. If a debtor’s obligation

to repay a debt may no longer be enforced, Johnson argues, the creditor no longer enjoys a right to repayment.

Midland contends that Johnson’s reading of Davenport is not in fact consistent with that decision. In Davenport, the Supreme Court considered whether a right to restitution payments for criminal offenders constituted a “claim” under the Bankruptcy Code. The Supreme Court held that it did, even though neither the probation department nor the victim could bring a civil cause of action to recover the unpaid sums. Thus, Midland reasons, a right to enforcement through a civil action is not necessary to establish a “claim” under the Bankruptcy Code.

But the real question, according to Johnson, is not whether the creditor can obtain a monetary judgment through a civil action, but whether a legal enforcement mechanism exists. In Davenport, the probation department could enforce the restitution obligation by revoking probation if the debtor failed to meet that obligation. Here, in contrast, no mechanism remained for Midland to enforce its time-barred claim. For this reason, according to Johnson, the fact that the code expressly includes contingent and unmatured claims does not support Midland’s position. While such claims do not give rise to an immediate right to sue in court, according to Johnson, the underlying obligation remains enforceable.

According to Midland, the structure of the Bankruptcy Code also demonstrates the right to file a proof of claim with respect to a time-barred debt. For one, Bankruptcy Rule 3001 requires a creditor to include information in its proof of claim necessary to enable a debtor to assess the timeliness of the claim, such as the date of the last transaction, the date of the last payment, and the date that the account was charged to profit and loss. In adopting this requirement, the Advisory Committee on Rules of Bankruptcy Procedure considered but rejected a requirement that creditors affirmatively “state whether the claim is timely under the relevant statute of limitations.”

But the Advisory Committee, according to Johnson, “was concerned about good-faith claims where creditors where genuinely unsure about the timeliness of a claim; they were not giving a pass to creditors who knowingly file invalid claims.” In rejecting an obligation to certify the timeliness of the claim, according to Johnson, the Advisory Committee noted the creditor’s obligation under Bankruptcy Rule 9011 to “undertake a reasonable pre-filing inquiry” to determine whether the “claim is warranted by existing law and that factual contentions have evidentiary support.” In other words, in choosing not to adopt an affirmative requirement to certify the timeliness of a claim, the Advisory Committee was not indicating approval for the filing of time-barred proofs of claim; rather, the Advisory Committee was indicating its belief that the existing rules already preclude a creditor from filing a proof of claim that it does not in good faith believe to be timely.

Finally, Midland contends that including claims for time-barred debts within the code's broad definition of “claim” is necessary to give effect to the policies served by the bankruptcy process. First, Midland points to the automatic-stay provision under the Bankruptcy Code. This provision bars creditors from taking any action to “collect, assess, or recover a claim against the debtor” that arose prior to the filing of the bankruptcy proceeding. 11


U.S.C. § 362(a)(6). According to Midland, if a time-barred debt is not considered a “claim” under the Bankruptcy Code, then the automatic stay would not apply and debt collectors would be free to continue contacting the debtor during the bankruptcy to seek repayment of the debt. Similarly, if a time-barred debt is not a “claim” under the Bankruptcy Code, then those debts would also not be discharged under the eventual bankruptcy discharge.

But, according to Johnson, the bankruptcy discharge is unnecessary to protect a debtor with respect to a time-barred debt, because the time bar itself already provides the debtor ample protection. Midland argues that without the bankruptcy discharge, a debt collector will be free to continue contacting a debtor to seek voluntary repayment of the debt. (The FDCPA permits a debt collector to continue seeking repayment of a time-barred debt so long as the debt collector informs the debtor that the debt is time barred and the debt collector can no longer pursue a civil action.) Johnson counters that “any debtor concerned about cutting off requests for voluntary repayment can always invoke 15 U.S.C. § 1692c(c), which requires a debt collector to cease further communication with the consumer if the consumer notifies the debt collector in writing that the consumer refuses to pay the debt or wishes the debt collector to cease further communications.

The parties next turn to the question of whether filing a proof of claim with respect to a time-barred debt violates the FDCPA. The Eleventh Circuit held that it does. The Fourth, Seventh, and Eighth Circuits have all held that it does not.

Section 1692e of the FDCPA prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” This prohibition includes falsely representing “the character, amount, or legal status of any debt.” According to Midland, a proof of claim with respect to a time-barred debt is not false, deceptive, or misleading so long as it accurately includes all of the information required by Bankruptcy Rule 3001. Midland notes that its proof of claim accurately and completely meet all of the required disclosures.

Midland also argues that its proof of claim “made no affirmative representation concerning the legal status of the debt.” According to Midland, proof of claim that it filed (using a standard form) represented only Midland’s “good-faith belief that it had a claim—that is, right to payment—regardless of whether the right was ultimately enforceable.” Midland did not, and argues it was not required to, affirmatively state whether its claim was timely.

Johnson, in contrast, argues that the filing of a proof of claim “amounts to an assertion that the underlying claim is enforceable and that the claimant is entitled to be paid out of bankruptcy estate.” Johnson notes that under the Bankruptcy Code, a proof of claim constitutes “prima facie evidence of the validity and amount of the claim.” A time-barred claim, however, is not entitled to a presumption of validity, according to Johnson. By filing a proof of claim with respect to a debt that is time barred, a debtor leverages the misleading impression that it can legally enforce an indisputably unenforceable debt.

That Midland accurately disclosed all of the information required under Bankruptcy Rule 3001 does not, according to Johnson,

insulate Midland from a claim under the FDCPA. Johnson notes that “even a true statement may [violate the FDCPA by] creating a misleading impression.” Even if all of Midland’s filings were literally true, Johnson argues that Midland violated the FDCPA by “wrongly includ[ing] stale debts in a process reserved for enforceable claims.”

According to Johnson, filing a proof of claim with respect to a debt that the creditor knows to be time barred is not only deceptive, but also unfair and unconscionable because it is part of the business model that “critically relies on claims slipping through the process without any educated review.” According to Johnson, the practice of filing proofs of claim with respect to time-barred debts inappropriately to take advantage of the automatic-allowance procedure under the Bankruptcy Code pursuant to which all proofs of claim are automatically allowed, absent an objection.

But Midland argues that “objecting to a proof of claim is a simple step that imposes only a minimal burden” because the bankruptcy debtor “does not have to assemble the key facts and supporting documentation relating to the depths timeliness,” given the creditor’s obligation to include those facts with its proof of claim. Furthermore, Midland argues, a proof of claim is directed at the bankruptcy estate rather than at the debtor. This will often insulate the debtor from the proof of claim process—particularly where the debtor is represented by counsel—reducing or eliminating any risk of intimidation or coercion.

Furthermore, Midland argues, a trustee is assigned to every case in bankruptcy, and the trustee has a duty to “examine proofs of claim and object to the allowance of any claim that is improper.” In determining whether communications to an individual consumer are false or misleading under the FDCPA, courts generally apply an unsophisticated consumer standard. In contrast, when communications are made directly to a debtor’s attorney, courts evaluate those communications from the perspective of a competent attorney. Because the “overwhelming majority of debtors—such as Johnson here—are represented by counsel” and where all debtors have the added protection of the bankruptcy trustee, Midland argues that the court should apply a competent attorney standard in determining whether the filing of a proof of claim with respect to a time-barred debt is false or misleading.

Johnson counters that the filing of a proof of claim is “not directed at counsel; [it is] submitted to the court, in the hope that no one (most of all any competent lawyer) would ever review” the proof of claim. Johnson emphasizes that “[i]f these communications always reached competent professionals [with time to review them], [Midland’s] claims would be rejected 100% of the time, and [Midland] would stop misusing the claims process.” Further, Johnson argues that even where a proof of claim with respect to a time-barred debt deceives no one, competent attorneys and trustees may “simply acquiesce to avoid the cost of an objection.” Filing proofs of claim in the hopes that it will be cheaper to pay the claim then to object is, according to Johnson, unconscionable even if it is not considered deceptive.

Midland argues that it “would be especially odd” to apply the FDCPA to the filing of a proof of claim for a time-barred debt because a proof of claim “has little if any effect on the consumers the FDCPA


is meant to protect.” According to Midland, the claims-allowance process exists primarily to ensure fairness to other creditors. In a typical bankruptcy plan under chapter 13, the amount the debtor will be required to pay typically depends on the debtor’s projected income. Thus, when a claim for a time-barred debt is allowed, the additional allowed claim will decrease the amount available to pay other creditors but will not increase the amount paid by the debtor. The FDCPA exists, Midland notes, to “protect the interests of consumers, not creditors.”

Johnson disagrees. For one, according to Johnson, if the debtor’s chapter 13 bankruptcy case is dismissed or converted to chapter 7, “debtors would owe more on outstanding debts due to the amounts wrongly diverted to stale claims.” Further, Johnson notes, “[e]very dollar devoted to a time-barred claim leaves an extra dollar unpaid on” the balance of nondischargeable debts such as child support, alimony, certain unpaid educational loans, and taxes.

Finally, Midland argues (as the district court held) that even if the Court were to find that the FDCPA prohibits the filing of a proof of claim for a time-barred debt, the Court should find that prohibition irreconcilably conflicts with the Bankruptcy Code’s authorization of the filing of such proofs of claim. Where an irreconcilable conflict exists, Midland notes, “the later-enacted statute”—here, the Bankruptcy Code—“supersedes the earlier.” Midland argues that the FDCPA should be read as governing “a debt collector’s conduct outside the four corners of a bankruptcy proceeding,” not to “conduct within such a proceeding.”

Johnson, however, argues that “[t]here is no ‘irreconcilable conflict’ when one scheme allows what the other forbids; one must compel what the other forbids.” Even if the Court concludes that the Bankruptcy Code permits a creditor to file a proof of claim with respect to a time-barred debt, the Bankruptcy Code does not compel a creditor to do so. Accordingly, Johnson urges the Court to find no conflict between the two statutes and to affirm the Eleventh Circuit’s holding that the deliberate filing of a proof of claim as to a time-barred debt violates the FDCPA.

SIGNIFICANCEThe parties and their amici frame this case as a battle between unscrupulous debt collectors and an opportunistic plaintiff’s bar.

From the perspective of Midland, finding an FDCPA claim under the circumstances presented in this case will serve only to reinforce the “pernicious practice” of a small group of “rapacious attorneys” “looking for technical violations of the statute in the hope of obtaining attorney’s fees.”

The United States Chamber of Commerce, an amicus supporting Midland, echoes this sentiment, asserting that a “cottage industry” has formed of debtors’ attorneys “suing debt collectors, often for good faith, technical violations of the FDCPA.” The Chamber argues that determining whether a debt is time barred is often more complex than the Eleventh Circuit recognized and worries that creditors will unfairly be subject to “FDCPA liability for good faith yet erroneous interpretations of state law.” The Eleventh Circuit’s belief that its decision would only affect a “narrow subset” of creditors defined as “debt collectors,” the Chamber argues,

overlooks how broadly “[s]ome courts and administrative agencies have … interpreted the term ‘debt collector.’”

DBA International, Inc., a trade association representing debt purchasers, argues that the right of creditors to participate in chapter 13 bankruptcies by filing proofs of claim even as to time-barred debts is a matter of due process. The right to pursue collection of time-barred debts (subject to the restrictions imposed by the FDCPA) is a property right which will be extinguished by a bankruptcy discharge, DBA International argues, and so due process requires that creditors have the opportunity to participate in the bankruptcy proceedings.

NARCA—the National Creditors Bar Association, a trade association of attorneys representing creditors in debt collection matters, expresses its concern for such attorneys. Such attorneys, NARCA urges, must be able to “discharge their ethical duty to advance their clients’ legitimate interests … without constantly exposing themselves to substantial personal liability.

Resurgent Capital Services, L.P., argues that even if the Court finds that the FDCPA gives rise to a cause of action under the FDCPA, that cause of action would belong to the bankruptcy estate rather than to the debtor. (Resurgent’s affiliate is the Johnson for the pending petition for certiorari in Owens v. LVNV Funding, LLC, a similar case in which a divided panel of the Seventh Circuit found no FDCPA claim.)

From Johnson’s perspective, failure to find an FDCPA claim under the circumstances presented in this case will encourage unscrupulous debt collectors to continue flooding the bankruptcy system with patently time-barred proofs of claim in the hopes that they will be able to collect on the few that slip through the cracks.

This point is echoed by the National Association of Chapter Thirteen Trustees, an amicus supporting Johnson. The Trustees argue that, where the creditor knows that a debt is time barred, the only purpose of filing a proof of claim is to “exploit weaknesses in the claims-review process.” Contrary to Midland’s contention, the Trustees argue that the disclosures under Bankruptcy Rule 3001 do not always provide all of the information necessary to assess the timeliness of a claim—both because those disclosures “only apply to proofs of claims based on open-end or revolving credit agreements,” and because Rule 3001 does not require disclosure of the original agreement between debtor and lender (that may affect which state’s statute of limitations applies) or other information that may affect whether a limitations period has been tolled or claims revived. The Trustees further argue that the fiduciary duties a trustee owes to the estate itself and to creditors collectively may affect whether a trustee decides to object to a time-barred claim. The Trustees emphasize the “unnecessary cost on the system” imposed by the filing of time-barred claims.

Noting the role of the “Consumer Financial Protection Bureau, the Federal Trade Commission, and other federal agencies” in enforcing the FDCPA and the role of the United States Trustees in the bankruptcy process, the United States also argues as an amicus supporting Johnson. Outside the bankruptcy process, the United States notes, a plaintiff may be subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 11) for filing


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Funding for this issue has been provided by the American Bar Association Fund for Justice and Education; we are grateful for its support. The views expressed in this document are those of the authors and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association, the Fund for Justice and Education, or the Standing Committee on Public Education.ISSN 0363-0048

suit if the plaintiff “has all the information necessary to identify a clearly meritorious affirmative defense.” The same standards should be applied under Bankruptcy Rule 9011, according to the United States. Because Bankruptcy Rule 9011 and Fed. R. Civ. P. 11 both contain a “safe harbor” provision that allows a party to avoid sanctions by withdrawing the improper claim within twenty-one days after a motion for sanctions is filed, the United States argues, the availability of sanctions is not sufficient to deter the type of misconduct the FDCPA prohibits.

Where the applicable statute of limitations precludes a civil action to enforce a debt, the FDCPA leaves a debt collector only limited lawful opportunities to seek collection of the time-barred debt. In this case, the Supreme Court will determine whether the bankruptcy process is included among those remaining opportunities.

Kimberly A. Jansen is a partner at Hinshaw & Culbertson LLP, where she focuses her practice on appellate litigation. She additionally serves on the Board of Directors for the Appellate Lawyers Association. She can be reached at [email protected] or 312.704.3821.


ATTORNEYS FOR THE PARTIESFor Petitioner Midland Funding (Kannon K. Shanmugam, 202.434.5000)

For Respondent Aleida Johnson (Daniel L. Geyser, 213.995.6811)

AMICUS BRIEFSIn Support of Petitioner Midland Funding

ACA International (Brian Ross Melendez, 612.486.1589)

Chamber of Commerce of the United States of America (Helgi C. Walker, 202.955.8500)

DBA International, Inc. (Donald S. Maurice Jr., 908.237.4570)

NARCA—The National Creditors Bar Association and Maryland/DC Creditors Bar Association, Inc., Missouri Creditors Bar, Inc., Kentucky Creditors Rights Bar Association, Inc., Ohio Creditor’s Attorneys Association, New York’s Creditors’ Bar Association, Florida Creditors Bar Association, Pennsylvania Creditors’ Bar Association, Illinois Creditors Bar Association, Arizona Creditors Bar Association, Inc. (Manuel H. Newburger, 512.476.9103)

Resurgent Capital Services, L.P. (Craig Goldblatt, 202.663.6000)

In Support of Respondent Aleida JohnsonG. Eric Brunstad Jr. (G. Eric Brunstad Jr., 860.524.3999)

National Association of Chapter Thirteen Trustees (Henry E. Hildebrand III, 615.244.1101)

National Association of Consumer Bankruptcy Attorneys (Whitman L. Holt, 310.407.4000)

Public Citizen, Inc. (Julie A. Murray, 202.588.1000)

United States (Ian Heath Gershengorn, Acting Solicitor General, 202.514.2217)

AMERICAN BAR ASSOCIATIONMail Station 20.2321 N. Clark StreetChicago, IL 60654-7598www. americanbar.org/publiced312.988.5773Email: [email protected]

In This IssueCIVIL RIGHTSZiglar v. Abbasi, Ashcroft v. Abbasi, and Hasty v. AbbasiSteven D. Schwinn is a professor of law at The John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at [email protected] or 312.386.2865.

DUE PROCESS Nelson v. ColoradoDavid L. Hudson Jr. is a Nashville-based author and legal educator. The author, coauthor, or coeditor of more than 40 books, Hudson teaches classes at the Nashville School of Law and Vanderbilt Law School. He can be reached at 615.780.2279.

FAIR DEBT COLLECTION PRACTICES ACTMidland Funding, LLC v. JohnsonKimberly A. Jansen is a partner at Hinshaw & Culbertson LLP, where she focuses her practice on appellate litigation. She additionally serves on the Board of Directors for the Appellate Lawyers Association. She can be reached at [email protected] or 312.704.3821.

FIRST AMENDMENTLee v. TamSteven D. Schwinn is a professor of law at The John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at [email protected] or 312.386.2865.

FREE SPEECHExpressions Hair Design v. SchneidermanSteven D. Schwinn is a professor of law at The John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at [email protected] or 312.386.2865.

IMMIGRATION LAWLynch v. Dimaya David L. Hudson Jr. is a Nashville-based author and legal educator. The author, coauthor, or coeditor of more than 40 books, Hudson teaches classes at the Nashville School of Law and Vanderbilt Law School. He can be reached at 615.780.2279.

INDIAN LAW Lewis v. Clarke Barbara Jones is an attorney and editor of Minnesota Lawyer newspaper. She can be reached at [email protected] or 651.587.7803.

INDIVIDUALS WITH DISABILITIES EDUCATION ACTEndrew F. v. Douglas County School District RE-1Kimberly A. Jansen is a partner at Hinshaw & Culbertson LLP, where she focuses her practice on appellate litigation. She additionally serves on the Board of Directors for the Appellate Lawyers Association and holds a Masters of Education from the University of Illinois at Urbana-Champaign. She can be reached at [email protected] or 312.704.3821.

REMEDIESGoodyear Tire v. HaegerDoug Rendleman is Huntley Professor at Washington and Lee Law School. He has written about the inherent power and compensatory contempt in Complex Litigation: Injunctions, Structural Remedies, and Contempt (2010) and Compensatory Contempt: Plaintiff’s Remedy When Defendant Violates an Injunction, 1980 U.Ill.L.F. 971. He can be reached at [email protected] or 540.458.8934.

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