This Week’s Brief: June 3

This week, the Supreme Court published decisions in four argued cases and added three cases to its docket for next term. But despite this high number of actions on cases, the Court barely grabbed a headline all week. This is because those four decisions and three certiorari grants all concern more-technical matters: administrative law, bankruptcy, civil procedure, among others. So, for Court nuts like myself and for those looking to take a deep dive into a jargon-filled legal discussion, here’s your brief for the week of June 3 (I’ll try to use as little legalese as possible; key word: “try“).


This Week:
Opinions: 4
Cert. Grants: 3
CVSG’s: 1

O.T. 2018:
Cases Decided: 42
Cases Remaining: 27
Weeks Left in Term: 3



First on Monday morning, the Court released orders from last Thursday’s private conference. Compared to last week, this week’s list was far more routine. The Court denied a host of cases, but none concerned incredibly hot-button issues and none elicited opinions from any of the Justices. The Court issued a CVSG (“call for the views of the Solicitor General”) in Texas v. New Mexico. That case involves a long-running water rights dispute between Texas and New Mexico over the Pecos River.

The Court did add three cases to next term’s docket. First, in Allen v. Cooper, the Court will hear a case arising from the discovery of the pirate Blackbeard’s ship, the “Queen Anne’s Revenge.” The company who found Blackbeard’s ship and copyrighted the footage sued the State of North Carolina in federal court for copyright infringement. North Carolina responded by arguing the company could not sue in federal court under the Copyright Remedy Clarification Act (CRCA). This is the principal issue before the Supreme Court—whether Congress validly abrogated state sovereign immunity via the CRCA in providing remedies for authors of original expression whose federal copyrights are infringed by states. Next, in Retirement Plans Committee of IBM v. Jander, the Court will confront a case concerning the Employee Income Retirement Security Act (ERISA) and will decide whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time. Finally, the Court granted Holguin-Hernandez v. United States. That case will determine whether an immediate, formal objection after the pronouncement of a criminal sentence is necessary to invoke appellate reasonableness review of the length of the sentence.

More on the Court’s orders list is available in Amy Howe’s coverage for SCOTUS Blog.


The Court released four decisions in argued cases this week, but none on “blockbuster”-par with the some of last week’s opinions. As the term nears the finish line, it is possible the Court is clearing away the more-technical cases still on its docket before deciding its sweeping, hot-button cases.

Azar v. Allina Health Services
The first decision of the week comes in Azar v. Allina Health Services, which derives from a discrepancy regarding how the Administrative Procedure Act (APA) applies to changes in Medicare policy. In a 7:1 majority opinion, Justice Gorsuch held that the Department of Health and Human Services neglected its statutory notice-and-comment obligations when it amended its Medicare policy.

Under “Medicare Part A,” the federal government pays hospitals so that they can care for Medicare-covered patients, and Part A provides for additional payments to certain hospitals who see a “disproportionate number” of low-income patients. These payments are calculated using what’s called the “Medicare fraction,” a ratio between the total number of a hospital’s Medicare-covered patients and the total number of a hospital’s low income Medicare-covered patients. Switching gears to “Medicare Part C,” Medicare-covered patients may choose to have the federal government pay their private insurance premiums, as opposed to their hospital care under Part A. Since 1997, there has been disagreement as to whether Part C patients should be counted in the Medicare fraction along with Part A patients, and the Centers for Medicare and Medicaid Services (the federal agency responsible for overseeing Medicare) has flip-flopped on whether to do so. For example: At first, the agency declined to include them. In 2004, it “abrupt[ly]” changed its mind, but this decision was met with a firestorm of legal challenges, and the agency then retreated from its push to include Part C patients.

In 2013, the agency in a newly-promulgated rule “readopted [its] policy” of counting Part C patients in the Medicare fraction. In doing so, however, the agency encountered a problem: It could not rely on its ’04 stance since that had been nixed by the lawsuits, but it also could not rely on its newly-promulgated 2013 rule since that “bore only prospective effect.” “The agency’s solution,” Gorsuch asked in his opinion? Post on its website a massive spreadsheet containing the new Medicare fractions, and, as an aside, simply declare that the fractions included Part C patients.

Cue the present case. A group of hospitals sued the agency, arguing that it had violated its statutory obligations, which state that whenever an agency seeks to amend a policy rule, it must notify the public of its intentions and allow the public to comment on the proposal (the “notice-and-comment” requirement). The sole question before the Court, then, was whether the agency violated the Medicare Act by bypassing the Act’s notice-and-comment provisions.

Justice Gorsuch, writing for a 7:1 majority, answered yes. Allina Health hinges on the interpretation of 42 U.S.C. § 1395hh(a)(2): notice-and-comment must be given on “any rule, requirement, or other statement of policy” that “establishes or changes a substantive legal standard governing . . . the payment for services.” Both parties agree the agency’s use of the Medicare fraction (inclusive of Part C patients or not) “govern[s] . . . payment for services.” Both parties agree too that the agency’s decision to include Part C patients in the fraction in 2013 was a “statement of policy.” Thus, the only question is whether that decision “establish[ed] or change[d] a substantive legal standard” governing the agency’s payments to hospitals under the Medicare fraction.

The answer, to Gorsuch, is “yes.” “Everyone agrees,” Gorsuch writes, “that a policy of counting Part C patients in the Medicare fraction is substantive in this sense, because it affects a hospital’s right to payment.” Hence, the “statement of policy”—the updated spreadsheet including the way in which Medicare fractions were calculated—”change[d] the substantive legal standard”—whether or not Part C patients are included in the fraction—that “govern[s]” the agency’s “payment” to hospitals for their “services.” Thus, the Medicare agency violated the Medicare Act by failing to give the public notice and a chance to comment on the proposed change. Chief Justice Roberts and Justices Thomas, Ginsburg, Alito, Sotomayor, and Kagan made up the rest of the majority. Justice Kavanaugh took no part in the case, as he had not yet been confirmed to the bench when Allina Health was argued.

Justice Breyer filed a lone dissent, in which he argues the Court should have devoted more attention to the legislative history of the Medicare Act. He gives more thought to the federal government’s position—that the Medicare agency promulgated an interpretive rule when it posted its new Medicare fractions, rather than a substantive rule subject to the notice-and-comment provision of the APA. Breyer would have remanded Allina Health for further proceedings to determine whether the agency’s decision was “substantive” or “interpretive” in nature.

Taggart v. Lorenzen
The second decision of the week is a unanimous one in a bankruptcy case. In bankruptcy proceedings, a “discharge order” is a decree from the Federal Bankruptcy Court absolving a debtor of all pre-bankruptcy debts. Here, Bradley Taggart, an Oregon resident who filed for bankruptcy, received such a discharge order after he declared bankruptcy. But an Oregon state court found against Taggart in a civil suit, which was initiated by an Oregon company, and awarded attorney’s fees after the imposition of the discharge order. If the company brought the suit against Taggart before his bankruptcy proceedings, does his discharge order preclude the state court from awarding the company attorney’s fees and bestowing more debt upon Taggart? And if so, can Taggart seek civil contempt sanctions against the company for collecting those attorney’s fees?

Those were the questions the Court considered here in Taggart, and the Court held that a creditor may be found in civil contempt if there is “no fair ground of doubt” as to whether a discharge order precluded the creditor from taking the action at issue. Justice Breyer, writing for a unanimous court, rooted this conclusion in a longstanding statutory principle. Bankruptcy statutes provide that a discharge order “operates as an injunction,” and that a court may issue any “judgment” that is “necessary or appropriate” to “carry out” the discharge order or other bankruptcy provisions. Now, this usage of “injunction” and its attendant effects has been “transplanted” from an “injunction” as the term is used outside the bankruptcy context. As the Court recognized in Hall v. Hall (2018), when a statutory term is “obviously transplanted from another legal source,” it “brings the old soil with it.” Therefore, if the Court has held in non-bankruptcy cases that civil contempt “should not be resorted to where there is [a] fair ground of doubt as to the wrongfulness of the defendant’s conduct,” it must bring that soil with it in bankruptcy cases and construe an injunction in the same way.

Fort Bend County, Texas v. Davis
The third, and arguably most notable case of the week comes in Fort Bend Cnty. v. DavisDavis is a civil procedure case that concerns the filing of employment discrimination claims under Title VII of the 1964 Civil Rights Act. Justice Ginsburg delivered the succinct, eleven-page opinion for another unanimous court.

Title VII bars workplace discrimination on account of race, color, religion, sex, or national origin, and prohibits any retaliation for alleged claims as well. But before a complainant may bring a discrimination claim to federal court, the complainant must file a “charge” with the Equal Employment Opportunity Commission (EEOC). The EEOC then notifies the employer of the complaint and investigates the matter. Once it does so, the EEOC has a number of options: It can attempt to resolve the dispute in a non-legal setting, e.g., alternative dispute resolution, conciliation, and the like; it can file a civil suit against the employer in federal court; or it can do nothing. It cannot, however, issue any decision for or against the employer—that is, the EEOC plays no adjudicatory role in employment discrimination claims. At any rate, irrespective of what the EEOC chooses to do, the original claimant may proceed to federal court only after 180 days have elapsed since the filing of the charge with the EEOC.

In short, Fort Bend County, Texas, allegedly subjected Lois M. Davis (Respondent here in Davis) to workplace discrimination. When Davis first filed her charge with the EEOC, she alleged sexual harassment and retaliation for reporting the harassment. A short while after, the County fired her when she elected to attend church on a Sunday instead of going to work. After 180 days since filing the charge, Davis filed a civil suit against the County and added discrimination on account of her religious beliefs to the original two allegations. During the pendency of the proceedings, her claims of sexual harassment and retaliation fell out of the case, leaving only her claim of religious discrimination. This gave rise to the central issue in this case: Davis, when she filed her charge with the EEOC, did not include religious discrimination. The County now argued that she had not met all of her Title VII obligations, since Davis had not yet filed a charge with the EEOC specifically regarding religious discrimination. (This interpretation of the charge-filing requirement is known as the “jurisdictional” interpretation.) Thus, the question for the Court was whether Title VII’s charge-filing requirement was jurisdictional.

Justice Ginsburg answers “no.” “Jurisdiction” means two things in law: First, it covers the classes of cases courts can and cannot hear (subject-matter jurisdiction); and second, it covers the kinds of parties over whom a court can and cannot assert its adjudicatory authority (personal jurisdiction). The County’s argument focuses on subject-matter jurisdiction: Can a federal court hear a case concerning a claim of employment discrimination when the specific subject matter of the claim was not contained in the prior charge filed with the EEOC? Ginsburg notes that “challenges to subject-matter jurisdiction,” like the County’s here in Davis, “may be raised . . . at any point in the litigation, and courts must consider them sua sponte” (internal quotation marks and citation omitted). However, such challenges must be filed timely, for “tardy jurisdictional objections occasion wasted court resources and disturbingly disarm litigants” (internal quotation marks and citation omitted). Turning to the County’s argument here in Davis, Ginsburg finds its assertion untimely. The County, before raising its jurisdictional challenge, waited for months into the litigation process and until Davis’ religious-based discrimination claim was her only remaining claim. This is not a timely challenge. The County should have raised its jurisdictional question with respect to Davis’ claim of religious discrimination at the inception of her civil suit in federal court, not months later when her religious claim became advantageous to the County as the only point left on which she could stand.

Second, Ginsburg explains why she does not find Title VII’s charge-filing requirement to be jurisdictional. First, the text of Title VII “d[oes] not speak to a court’s authority,” or “refer in any way to the jurisdiction of the district courts” (internal citation omitted). “Instead, Title VII’s charge-filing provisions speak to . . . a party’s procedural obligations” (internal quotation marks and citation omitted). They explain what a claimant must do before commencing a civil action: alert the EEOC and wait six months, give or take. To Ginsburg, “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”

Thus, the Court unanimously holds that (1) the County waited too long to raise the issue of jurisdiction with regard to Davis’ claim of religious discrimination, and (2) Title VII’s charge-filing requirement is a mandatory, but non-jurisdictional claim-processing rule.

Mont v. United States
The final—and most divided—decision of the week comes in Mont v. United States, a case about what happens to a federal prisoner on supervised release when he/she is convicted of a state crime. Does pretrial detention for a state crime “toll”—that is, put on hold, stay—the prisoner’s supervised release program, or does the supervised release continue unimpeded?

The Court, split 5:4, sided with the former: Pretrial detention, served during the time in which a prisoner is on supervised release, delays the end date of the supervised release program. Justice Thomas, writing for the majority, looks to the principal statute at issue, 18 U.S.C. § 3624(e). As relevant, §3624(e) provides: “A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days” (emphasis added). Under § 3624(e) and its context, Thomas holds that a prisoner’s pretrial detention, which a court later credits as time served for a new criminal conviction, “‘is imprison[ment] in connection with a conviction'” and thus tolls the supervised-release term under §3624(e). For one, “imprison”—both today and when Congress created supervised release before—”may very well encompass pretrial detention.” Moreover, §3624(e)’s phrase “imprisonment in connection with a conviction” plainly denotes a link between a criminal conviction and prior or subsequent time spent in prison. Pretrial detention fits the bill here as prior imprisonment that is later credited as time served in prison, which results from (is “in connection with”) a succeeding criminal conviction.

Chief Justice Roberts and Justices Ginsburg, Alito, and Kavanaugh joined Thomas in his majority opinion. An interesting lineup, to say the least, with Justice Ginsburg siding with the more “restraintist” Justices.

Justice Sotomayor—joined by Justices Breyer, Kagan, and (surprisingly) Gorsuch—penned a dissent. The focal point of her opinion focuses on the fact that §3624(e) says nothing of prior “imprisonment in connection with a conviction.” Rather, §3624(e) is phrase in the present tense. Thus, in her view, pretrial detention—time served before a criminal conviction—does not count as true imprisonment as it is used in the statute. For example, suppose a prisoner on supervised release is charged with another crime but is eventually acquitted. Any pretrial detention time served for that acquitted charge is not “imprisonment in connection with a conviction,” for there was no conviction.


The Court held no proceedings on Tuesday and 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, June 10. Some high profile petitions awaiting action on Court’s docket include:


The Court held no proceedings Friday.

The Week Ahead

On Monday, the Court at 9:30am EDT will release orders from this past Thursday’s private conference. There is a possibility of opinions at 10:00am EDT. The Court will meet for its next weekly private conference next Thursday, June 13.

In addition, as we near the end of the term with a good many cases still outstanding, the Court likely will release decisions on more days during the week, in addition to Mondays. This usually begins with Thursdays prior to the Court’s weekly private conferences, before adding Wednesdays, Tuesdays, and Fridays. Thus, it is ever more likely we will see multiple decision-days (and two, three times as many decisions) in the next three weeks.

Further Reading
  • For more on Azar v. Allina Health Services: Abbe R. Gluck and Anne Joseph O’Connell review the Court’s decision for SCOTUS Blog; Jacqueline Thomsen and Peter Sullivan for The Hill; and Thomas S. Crane, Laurence J. Freedman, and Daryl M. Berke for the National Law Review.
  • For Taggart v. Lorenzen: Ronald Mann for SCOTUS Blog; Jonathan Randles for the Wall Street Journal; and Diane Davis for BloombergLaw.
  • For Fort Bend Cnty., Texas v. Davis: Charlotte Garden for SCOTUS Blog; Jess Bravin for the Wall Street Journal; Robert Iafolla for BloombergLaw; and Nadine C. Abrahams, et al., for the National Law Review.
  • For Mont v. United States: Fiona Doherty for SCOTUS Blog; Jacqueline Thomsen for The Hill; and Jordan S. Rubin for BloombergLaw.
  • For The Atlantic, Garrett Epps reports on the Court’s decision last week in Nieves v. Bartlett, arguing that Chief Justice Roberts appeared to favor the duties of police officers over the “free speech rights of ordinary people.”
  • And for the Washington Post, Robert Barnes reports on Justice Ginsburg’s prepared remarks before the judicial conference of the Second Circuit Court of Appeals, noting that, among other things, Ginsburg warned of “deep divisions on the way” as the Court begins to wrap up its term by the end of the month.

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