This Week’s Brief: May 13

(Heads up: It’s a long one.) While Tuesday through Friday were quiet days at the Court, Monday landed with a bang. The Court released decisions in three argued cases: First, freshman Justice Brett Kavanaugh sided with the Court’s four more-liberal Justices and affirmed a Ninth Circuit ruling that a federal antitrust lawsuit against tech giant Apple may proceed. Next, Justice Clarence Thomas wrote for a 5:4 majority that a 1979 Supreme Court decision was wrongly decided, and was therefore overruled. Finally, Justice Thomas wrote another opinion, this time a unanimous one concerning a statute-of-limitations question for “whistleblower” suits under the False Claims Act. In addition, while the Court did not add any new cases for next term, many of the Justices felt the need to concur in, or dissent from remands or denials of certiorari. So, after a marked change from a tranquil past few weeks, here is your brief for the week of May 13.


Opinions: 3
Cert. Grants: 0
Opinions Relating to Orders: 6


Monday’s list compiled the Orders from the Court’s private conferences from both last week and the week prior. While the Court did not grant certiorari for any new cases, four orders on pending cases elicited responses from some of the Justices.

The first came in Price v. Dunn, in which the Court denied certiorari for Christopher Lee Price, an Alabama death row inmate who claimed that Alabama’s three-drug lethal injection protocol would cause him excruciating pain that is impermissible under the Eighth Amendment’s Cruel and Unusual Punishment Clause. Justice Thomas, who was joined by Justices Samuel Alito and Neil Gorsuch, concurred in the denial of certiorari in order to “set the record straight” after Justice Stephen Breyer dissented from an earlier Order in the case. Price wanted to be executed via nitrogen hypoxia—a method of execution that Alabama has begun developing recently—instead of lethal injection because he felt it would be less painful. During the pendency of the litigation on this issue, the district court stayed his execution and the Eleventh Circuit Court of Appeals affirmed. However, on April 12, 2019, the Supreme Court vacated the stay. Justice Breyer (along with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) dissented from the Order, calling the Court’s decision “unfortunate” because it happened in the middle of the night and before the Court’s private conference scheduled the next morning. Ironically, however, since the Court did not release its Order until after midnight, Alabama’s death warrant for Price expired, giving Price another 30-day reprieve while Alabama had to seek another one.

On Monday, the Court denied Price’s petition for a writ of certiorari after Alabama obtained a new death warrant. Justice Thomas in his concurrence wrote that two of Justice Breyer’s earlier assertions (that Price’s death sentence was being “carried out in an arbitrary way” and that, in vacating the stay, the Court strayed from “basic principles of fairness”) were unfounded. Thomas asserted that the issue in the Court’s earlier order was not “the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment,” as Justice Breyer saw it, but rather was “whether the lower courts abused their discretion in staying the execution.” Finally, Thomas pointed out that Justice Breyer ended up “g[etting] his way by default,” since the Court’s action on the previous petition in the wee hours of the morning forced Alabama to obtain a new death warrant.

The second opinion relating to the Court’s Orders list came from Justice Alito (joined by Justices Thomas and Kavanaugh) in Dahne v. Richey, a case I included last week in my list of high-profile petitions awaiting action by the Court. The case concerned whether prison inmates have a First Amendment Free Speech right to include threatening and insulting language in a grievance against a prison guard. Thomas Richey, an inmate in a Washington state prison, used disparaging and threatening language in a complaint against a prison guard. When a prison employee ordered Richey to remove the language, Richey instead filed suit. The district court dismissed Richey’s claim, but the Ninth Circuit Court of Appeals reversed and eventually ruled for Richey. The Ninth Circuit held that “no legitimate penological interest is served by prison rules prohibiting disrespectful language in grievances.”

The prison employee appealed to the Supreme Court, but the Court on Monday denied the petition. Justice Alito dissented from the denial, urging the Justices to instead review the Ninth Circuit’s ruling for Richey. Alito highlighted the “veiled threats” in Richey’s grievance and pondered about whether prison inmates—who “do not retain all of the free speech rights enjoyed by persons who are not incarcerated”—are protected in their speech when they use implicit threats against prison workers. If the Court is at all uncertain about the answer to that question, Alito writes, it should take up the case. Otherwise, the Ninth Circuit’s decision for Richey “defies both our precedents and common sense.”

The third opinion came from Chief Justice Roberts in Myers v. United States. Joined by Justices Thomas, Alito, and Kavanaugh, Chief Justice Roberts dissented from the Court’s order to grant the petition, vacate the appeals court’s judgment, and remand the case. Myers v. United States is a highly technical case, concerning a specific statutory-interpretation question under the Armed Career Criminal Act. At the Eighth Circuit Court of Appeals, Myers argued that an Eighth Circuit case (which stood opposed to the merits of his argument) was superseded by Supreme Court caselaw and needed reconsideration. The Eighth Circuit disagreed, holding that the Supreme Court case did not require reconsideration of Eighth Circuit precedent and that even if it did, Myers still would have lost. When Myers petitioned for the Supreme Court’s review, the U.S. Solicitor General (SG) filed a brief expressing his views on the merits of Myers’ argument. The SG advised the Court to grant Myers’ petition, vacate the Eighth Circuit’s judgment, and remand the case for further proceedings in light of the SG’s assessment of the case. This, in fact, is exactly what the Court did.

The problem, according to Chief Justice Roberts, however, is that all the SG wants the Eighth Circuit to do is revise the way in which it conducted its legal analysis of Myers’ case—not reverse its decision and rule for Myers. This, in Roberts’ view, is piling unnecessary work on the Eighth Circuit. For, if the court of appeals correctly decided the case, why should it revise the way in which it did so? Yet this is exactly what the SG’s brief wanted. For this reason, Chief Justice Roberts simply would have denied the petition and let the Eighth Circuit’s ruling stand as is.

The fourth opinion relating to the Court’s Orders list was filed by Justice Sonia Sotomayor in another capital case, Abdur’rahman v. ParkerAbdur’rahman, a death row inmate in Tennessee, argued that Tennessee’s three-drug lethal injection protocol would cause him needless pain and suffering in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause (an argument mirroring that of Christopher Lee Price as I discussed above in Price v. Dunn). Under the Supreme Court’s 2015 decision in Glossip v. Gross (and affirmed by the Court’s decision this term in Bucklew v. Precythe), a capital offender who believes a state’s preferred method of execution would impose unnecessary suffering must present a readily-available and easily-implemented alternative means of carrying out the execution. After Abur’rahman attempted to do so and the Tennessee state courts ruled against him, he appealed to the Supreme Court on due process grounds. On Monday, the Court denied his petition.

Justice Sotomayor dissented from the Court’s denial. She stressed her “opposition to the perverse requirement that inmates offer alternative methods for their own executions” (internal citation and quotation marks omitted) as well as the “added perversity of the secrecy laws that Tennessee imposes on death-row prisoners seeking to meet this requirement.”

Amy Howe at SCOTUSBlog has more on Monday’s Orders list.

1. The first of the Court’s three decisions on Monday came from Justice Kavanaugh in Apple, Inc. v. Pepper. Siding with his more-liberal colleagues, Kavanaugh held for a 5:4 majority that consumers who buy iPhone apps off the AppStore are purchasing those apps directly from Apple. Kavanaugh’s holding dismissed a principal defense Apple had sought to use in the case, allowing the antitrust suit against the tech giant to move forward.

Suppose you buy an app for your iPhone off of Apple’s AppStore. The developer of the app has a contract with Apple which states that, for the developer to put the app on the AppStore, the developer must pay Apple an annual $99 membership fee and Apple gets a 30% commission each time someone buys the app. Four iPhone users (Respondents) filed an antitrust suit, claiming that Apple has a monopoly over the app market and has used that power to charge consumers too much for apps. Apple countered that consumers who buy apps are purchasing them not from Apple, but from the independent developer who created the app and contracted with Apple to put it on the AppStore. Apple therefore argued that under the Supreme Court’s 1977 decision in Illinois Brick, Co. v. Illinois, Respondents were “indirect purchasers” and hence had no standing to sue. (Illinois Brick held that “direct purchases” may sue corporations that violate federal antitrust laws, but “indirect purchasers” may not.) The District Court agreed with Apple’s “indirect purchaser” argument under Illinois Brick and dismissed the suit. But the U.S. Court of Appeals for the Ninth Circuit reversed on the polar opposite reasoning, holding that app consumers purchased the apps directly from Apple and had standing to sue. Apple appealed to the Supreme Court, who on Monday affirmed the Ninth Circuit’s holding.

Justice Kavanaugh began his majority opinion by making clear that the only question at this stage of the case was whether Respondents were direct or indirect purchasers under Illinois Brick. If iPhone owners who buy apps from Apple’s AppStore are direct purchasers, the antitrust suit against Apple may proceed; if they are indirect purchasers, the suit is dismissed as filed. To Kavanaugh (and the majority of the Court), the answer is direct purchasers. This “straightforward conclusion” follows from two sources: the plain text of federal antitrust laws and Supreme Court precedents.

Kavanaugh cites Section 2 of the 1890 Sherman Antitrust Act and Section 4 of the 1914 Clayton Antitrust Act as sweeping declarations that no person may monopolize and that any person harmed by monopolization may sue, respectively. Kavanaugh then illustrates how the Supreme Court has applied § 4 of the Clayton Act to individuals seeking to sue—namely, the Supreme Court’s decision in Illinois Brick. In that case, the Illinois Brick Company sold concrete blocks to masonry contractors, who turned them into masonry structures. The masonry contractors then sold those masonry structures to general contractors, who then sold their services to the State of Illinois when it sought to undertake construction projects. Illinois filed an antitrust suit against the original manufacturer, the Illinois Brick Company. But the Supreme Court ruled that Illinois could not sue the Illinois Brick Company because Illinois was three steps removed from the alleged violator (that is, was an “indirect purchaser”). Had Illinois been only one step removed (that is, was a “direct purchaser”) from the Illinois Brick Company, then it could bring its suit.

Here, however, Kavanaugh held that app purchasers are only one step removed from Apple and thus are “direct purchasers” under Illinois Brick and hence have standing to sue.

Apple argues that Illinois Brick permits consumers to sue only the party who sets the retail price—here, the independent app developers—not the party that sells the commodity at that price to the consumer. Thus, Apple’s theory goes, Apple sells the apps at the independent developers’ prices, so consumers must sue the app developers rather than Apple.

But Kavanaugh disagreed on three grounds. First, Kavanaugh asserts Illinois Brick was not “based on an economic theory about who set the price,” but rather is based on either the direct or indirect relationship between a consumer and an antitrust violator. Second, Apple’s proposed “who-sets-the-price” rule would “draw an arbitrary and unprincipled line among retailers based on retailers’ financial arrangements with their manufacturers or suppliers.” And third, Apple’s theory would open the door for a supplier (like Apple) to game the system with a retailer (the app developers) whereby the retailer could collect the commission directly from the consumer and give a fraction of it to the supplier, instead of the traditional “retailer buys product from supplier and sells product to consumer at a marked-up price.” Here, the retailer sets the prices, but the supplier is insulated from monopolized lawsuits. For these reasons, Kavanaugh holds that Apple’s proposed reading of Illinois Brick would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws.”

The Ninth Circuit’s judgment was affirmed, setting the stage for a significant class-action antitrust lawsuit against one of the largest technology companies worldwide. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Kavanaugh in the majority.

Justice Gorsuch, joined by Chief Justice Roberts and Justices Thomas and Alito, dissented from the Court’s decision. Gorsuch first called attention to Hanover Shoe, Inc. v. United Shoe Machinery Corp., a 1968 Supreme Court decision that predated Illinois Brick. In Hanover Shoe, the Hanover Shoe Company (“the company”) filed an antitrust suit against the United Shoe Machinery Corporation (“the manufacturer”), alleging the manufacturer had a monopoly over the shoemaking-machinery market and had overcharged the company for its machines. The manufacturer responded that the company had “passed on” the manufacturer’s overly high prices to its customers and thus was not injured by the manufacturer’s overcharge. The Court, however, disagreed with the manufacturer, holding that a defendant in an antitrust case cannot rely on a “pass-on” theory to avoid damages.

To Gorsuch, the later Illinois Brick was simply “the other side of the coin.” Illinois Brick concerned whether a plaintiff in an antitrust case could rely on a “pass-on” theory to recover damages. Recognizing its earlier decision in Hanover Shoe that an antitrust defendant could not use the “pass-on” theory defensively, the Court in Illinois Brick similarly ruled that an antitrust plaintiff could not use the “pass-on” theory offensively.

Applying this interpretation of Hanover Shoe and Illinois Brick to the case at bar, Gorsuch sees Apple v. Pepper as simply another straightforward, offensive “pass-on” case. Gorsuch posits that people who buy apps off of Apple’s AppStore purchase them from the third-party app developers—not from Apple, contra the majority opinion. Respondents argue that Apple’s 30% commission it charges on the app developers is monopolistic. But, Gorsuch argues, to claim that the people who buy the apps are the ones hurt by the monopoly is exactly the offensive “pass-on” argument the Court forbid in Illinois Brick. If anyone, it would be the app developers who are harmed by Apple’s “monopolistic” 30% commission—not the purchasers of the apps at the next step down the line. For this reason, Gorsuch would have instead held that Respondents are using a forbidden offensive “pass-on” antitrust argument, and would have sided with Apple.

2. The second of the Court’s three decisions this week came in Franchise Tax Board of California v. Hyatt from Justice Thomas. The only question presented before the Court in Hyatt was whether Nevada v. Hall, a 1979 Supreme Court decision regarding state sovereign immunity, should be overruled. The Court abides by the longstanding legal principle of stare decisis. In Latin, this literally means to “stand by what is decided.” In plain English and in the legal world, this principle advises that the Court hold its previous decisions in high regard, and that the Court be especially wary of reversing one of its earlier decisions. Indeed, the Court has recognized that it should only reverse one of its earlier rulings if it later determines the case was decided in a “gravely wrong” manner. But on Monday, five of the Court’s nine justices decided in Hyatt that Nevada v. Hall should be overruled. You can find more on Justice Thomas’ majority opinion and Justice Breyer’s dissent in my “Blockbuster Review No. 3.

3. The third and final decision of the week was a unanimous one in Cochise Consultancy, Inc. v. United States, ex rel. Hunt, and again came from Justice Thomas. Cochise Consultancy concerns a statute-of-limitations question for the False Claims Act, 31 U.S.C. §§ 3729–3731.

The False Claims Act (“the Act”) is the principal statute under which the United States may prosecute any person making false or fraudulent claims against the federal government. There are two methods by which such suits may be initiated: First, the U.S. Attorney General may bring a civil suit against the alleged false claimant; or second, a private citizen aware of the false claim (the “relator”) may bring a qui tam civil suit against the alleged false claimant. (A qui tam suit refers to a suit “for oneself and for the government.” This means that when the citizen files suit, he is not only suing on behalf of himself but on behalf of the federal government as well.) If the suit arises from the relator, the federal government may choose to intervene and assume responsibility of prosecuting the case, or it may elect not to intervene and instead allow the relator to litigate it on his own.

The Act uses a bifurcated statute of limitations system. First, the civil suit must be brought within six years of the alleged false claim (§ 3731(b)(1)); second, if a relator makes a government official aware of the alleged false claim, then the civil suit must be brought within three years of the government official’s knowledge of the alleged false claim. However, the suit cannot be brought if over ten years have elapsed since the alleged false claim (§ 3731(b)(2)). Whichever date falls later is the deadline to file suit.

Cochise Consultancy arises out of a situation in which a relator, Billy Joe Hunt, discovered a false claim from two contractors (collectively, Cochise Consultancy, LLC) in 2006. After Hunt made a government official aware of Cochise Consultancy’s alleged false claim, the federal government declined to intervene in the suit. Therefore, Hunt pursued the case on his own. Though he missed the deadline under § 3731(b)(1) (since over six years had elapsed since he knew about the alleged false claim), he argued his suit was timely under § 3731(b)(2) since he filed suit within three years of the government official‘s knowledge of the alleged false claim and within ten years of the alleged false claim itself.

The district court, however, disagreed and dismissed his suit. It considered three interpretations of § 3731(b)(2): first, § 3731(b)(2)’s three- and ten-year windows do not apply to a relator-brought suit when the federal government declines to intervene (and, thus, § 3731(b)(1)’s six-year window applies only); second, § 3731(b)(2)’s three- and ten-year windows do apply to a relator-brought suit, but the three-year window begins running when the relator discovers the alleged false claim (not when the relator makes a government official aware of the false claim); and third, § 3731(b)(2)’s three- and ten-year windows do apply to a relator-brought suit, and the three-year window begins running when the relator makes the government official aware of the false claim. The district court threw out the third interpretation as incorrect and dismissed Hunt’s suit on the ground that the clock had expired under either the first or second interpretation. The Eleventh Circuit Court of Appeals reversed, holding the third interpretation as valid. The Supreme Court granted certiorari and unanimously affirmed.

First, Thomas addresses the question of whether both limitations periods are available if the government declines to intervene. Those two limitations periods (§ 3731(b)(1) and (b)(2)) apply to “civil action[s] under section 3730.” Both Attorney General-brought suits under § 3730(a) and relator-brought suits § 3730(b) are “civil action[s] under section 3730.” Therefore, Thomas answers, “the plain text of the statute makes the two limitations periods applicable in both types of suits.” This removes the first interpretation of § 3731(b)(2) from the list, since that interpretation relied on the inapplicability of § 3731(b)(2) to relator-brought suits.

The second question Thomas addressed was whether the relator himself was the “government official” who is made aware of the alleged false claim. If so, then the second interpretation of § 3731(b)(2) carries the day. If not, and instead the relator is the private citizen who makes someone else (i.e., the government official) aware of the alleged false claim, then the third interpretation of § 3731(b)(2) is correct. Thomas, for two reasons, answers that the relator is not the government official, but instead is the private citizen who makes the government official aware of the alleged false claim. First, “[a] relator is neither appointed as an officer of the United States . . . nor employed by the United States.” And second, “private relators are not ‘charged with responsibility to act’ in the sense contemplated by §3731(b),” for they “are not required to investigate or prosecute a False Claims Act action.” That responsibility falls instead on the U.S. Attorney General, as indicated in § 3730(a).

Thus, the Court in Cochise Consultancy used the third interpretation of § 3731(b)(2) and affirmed the Eleventh Circuit’s holding.


The Court held no proceedings on either Tuesday or Wednesday.


The Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this conference in the Court’s Orders list on Monday, May 20. Some high profile petitions awaiting action on Court’s docket include:

  • A challenge to an Indiana state abortion law, which (1) requires healthcare facilities to dispose of fetal remains in the same manner as human remains (i.e., burial or cremation), (2) prohibits abortions when the abortion is sought due to the race, sex, or disability of the fetus, and (3) requires abortion doctors to inform patients of that prohibition. The case is Box v. Planned Parenthood of Indiana & Kentucky, Inc.
  • A trio of cases concerning the Department of Homeland Security (DHS)’s push to whittle away at the Deferred Action for Childhood Arrivals (DACA) policy. The cases ask whether DHS’ decision to bring DACA to an end is judicially reviewable, and if so, whether it is lawful. The cases are DHS v. Regents of the University of CaliforniaTrump v. NAACP, and Nielsen v. Vidal.
  • A First Amendment religious objection to designing and creating a custom wedding cake for a same-sex wedding, a case akin to last term’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. The case is Klein v. Oregon Bureau of Labor & Industries.
  • A Fourth Amendment search and seizure case asking (1) whether a dog-sniff in the common area of an apartment constitutes a search, and (2) if not, whether the good-faith exception to the exclusionary rule (which holds that evidence obtained illegally is inadmissible) applies. The case is Illinois v. Bonilla.

The Court held no proceedings on Friday.

Next Week’s Preview

On Monday, the Court at 9:30am EDT will release Orders from this Thursday’s private conference. At 10:00am, there is a possibility of opinions. The Court will meet for its next weekly private conference next Thursday, May 23.

Further Reading
  • For Apple v. Pepper: Amy Howe reviews the Court’s decision for SCOTUS Blog; Andrew Chung for Reuters; Brent Kendall and Tripp Mickle for the Wall Street Journal; Eric Posner for The Atlantic; and David G. Savage and Suhauna Hussain for the Los Angeles Times.
  • For Franchise Tax Bd. of California v. Hyatt: Richard M. Re reviews the Court’s decision for SCOTUS Blog; Robert Barnes for the Washington Post; and Adam Liptak for the New York Times.
  • For Cochise Consultancy, Inc. v. United States, ex rel. Hunt: Mark Walsh reviews the Court’s decision for SCOTUS Blog; and Daniel Seiden for Bloomberg Law.
  • For Reuters, Lawrence Hurley writes that the Court’s “death penalty tensions [are] flar[ing] again” after this week’s Orders in capital cases.
  • In TheAtlantic, now-retired Supreme Court Justice John Paul Stevens published an op-ed reflecting on what he calls the Court’s “worst decision of [his] tenure”: District of Columbia v. Heller, in which the Court held that the Second Amendment grants citizens the right to own a gun in one’s home for the purpose of self-defense.
  • For the New York Times, Adam Liptak looks in depth at the similarities and differences between President Trump’s two appointees to the bench, Neil Gorsuch and Brett Kavanaugh. It’s a prescient article in that Liptak published it last Sunday, one day before the Court’s decision in Apple v. Pepper, in which Justice Kavanaugh wrote the majority opinion and Justice Gorsuch dissented.
  • For TheHill, Jacqueline Thomsen lists and discusses “[f]ive big Supreme Court decisions to watch” for the remainder of the term.
  • For USA Today, Richard Wolf surveys the Court’s 2018 term thus far, looking at its decisions and its cases still awaiting decisions.
  • And in response to the recent, stringent Alabama state abortion law, The Economist looks at the motives behind Alabama’s lawmakers (as well as lawmakers from other states attempting to pass similar anti-abortion statutes), arguing that an “uncompromising attack on Roe [v. Wade] has been launched” and that the “purpose of extreme abortion laws [is] to prompt legal cases in the hope that one might come before the new conservative majority at the Supreme Court.”

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