Publications

Greetings, Court Fans!

The Nine have managed to outpace us over the last two weeks, but now that they’re on April Break, it’s time for us to catch up. In this installment, we’ll cover Nielsen v. Preap (No. 16-1363), on discretionary bond for certain “criminal aliens”; Obduskey v. McCarthy & Holthus LP (No. 17-1307), on who or what counts as a “debt collector” under the Fair Debt Collection Practices Act; and Republic of Sudan v. Harrison (No. 16-1094), on service of process under the Foreign Sovereign Immunities Act. We’ll also cover recent orders, including the Court’s attention-grabbing death-penalty stay in Murphy v. Collier (No. 18A985), and the latest cert grants. Later in the week, we’ll be back with summaries of and Lorenzo v. SEC (No. 17-1077), on second-hand dissemination of false and misleading statements under the Securities Exchange Act; Biestek v. Berryhill (No. 17-1184), on vocational expert testimony in Social Security disability cases; Sturgeon v. Frost (No. 19-749), on what constitutes “public land” under the Alaska National Interest Lands Conservation Act; and Bucklew v. Precythe (No. 17-8151), on the standard for as-applied challenges to lethal injection under the Eighth Amendment. That’s plenty to cover, so without (still) further ado…

In Nielsen v. Preap (No. 16-1363), the Court delivered one of its first truly divisive decisions of the term, holding 5-4 (mostly) that a provision of the Immigration and Nationality Act prohibits certain “criminal aliens” from being released on bond from immigration custody during their removal proceedings, even if they had been released from criminal custody years ago and moved on with their lives.

The INA empowers the Secretary of Homeland Security to arrest and hold deportable an alien pending a removal decision, but generally gives the Secretary the discretion to release the alien on bond or parole. However, section 1226(c) of the INA limits the Secretary’s discretion with respect to four categories of criminal aliens who are deportable for committing specific crimes or having connections to terrorism. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from criminal custody, and section 1226(c)(2) forbids the Secretary from releasing any “alien described in paragraph (1)” while his or her removal proceedings are pending.

Respondent Mony Preap was convicted of two drug offenses that qualified him for mandatory detention under section 1226(c). But when he was released from criminal custody in 2006, immigration officials did not immediately detain him. In fact, he was not detained until 2013, when he was released from jail after an arrest for another offense. Along with several other immigrants who’d also been detained by ICE several years after being released from criminal custody, Preap filed a habeas petition and class-action complaint alleging that because he was not arrested “immediately” after release from  criminal custody, he was exempt from mandatory detention under section1226(c) and entitled to a bond hearing. The District Court certified the class and granted a preliminary injunction, holding that criminal aliens are exempt from mandatory detention under section 1226(c) (and therefore entitled to a bond hearing) unless they are arrested “when [they are] released, and no later.” The Ninth Circuit affirmed, creating a split with four other circuits.

The Supreme Court reversed, in a fractured 5-4 decision. Writing for the majority (for the most part), Justice Alito concluded that the plain language of the statute mandated detention for the four categories of aliens described in 1226(c)(1), whether or not they were immediately detained upon release from criminal custody. To explain, he dusted off the grammar primer : “Paragraph (1) provides that the Secretary ‘shall take’ into custody any ‘alien’ having certain characteristics and that the Secretary must do this ‘when the alien is released’ from criminal custody. The critical parts of the provision consist of a verb (‘shall take’), an adverbial clause (‘when . . . released’), a noun (‘alien’), and a series of adjectival clauses (‘who . . . is inadmissible, ‘who . . . is deportable,’ etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense ‘describ[e]’) the noun ‘alien’ or that the adverbial clause ‘when . . . released’ modifies the verb ‘shall take.’ And since an adverb cannot modify a noun, the ‘when released’ clause cannot modify ‘alien.’” Alito rebuffed Preap’s arguments that an adverb can “describe” a person even though it can’t modify the noun used to denote the person. To “describe” is to communicate salient identifying features, he noted. “The ‘when . . . released’ clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest.” “It would be ridiculous,” Alito argued, “to read paragraph (1) as saying: ‘The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.” Accordingly, the majority held that the scope of “the alien” is fixed by the predicate offenses described in subparagraphs (A)-(D), and anyone who fits within subparagraphs (A)-(D) is “described in paragraph (1),” regardless of whether they were arrested immediately upon release.

In a separate section joined only by the Chief and Justice Kavanaugh, Alito went on to argue that, even if “when . . . released” really meant immediately upon release, it still wouldn’t meant that those (A)-(D) aliens who are arrested later would be entitled to a bond hearing. “That is because, as we have held time and gain, an official’s crucial duties are better carried out late than never.” A statutory rule that officials “shall act within a specified time” does not by itself “preclude action later.” Even if read in this way, Justice Alito insisted that the “when . . . released” language still had meaning. At a minimum, it “exhorts the Secretary to act quickly” to detain an immigrant upon release from criminal custody.

Justices Thomas and Gorsuch joined in the judgment insofar as it vacated the Ninth Circuit’s judgment. But they would have vacated it for lack of jurisdiction. Writing for the pair, Justice Thomas reiterated his belief that “no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered.” Justice Kavanaugh, as he has been wont to do lately, wrote a brief concurrence emphasizing the “narrow[ness]” of the Court’s holding. As he pointed out, the case is not about whether a noncitizen can be detained pending removal from the United States, or for how long that detention can last, or even whether Congress can mandate detention. All those issues have already been decided in other cases, including Jennings v. Rodriguez (2018) last term. The narrow question at issue in this case, Kavanaugh insisted, is whether the Secretary’s mandatory duty to detain a criminal alien upon release from custody remains mandatory even if the Secretary fails to detain the alien immediately upon release.

Leading the charge for the dissenters, Justice Breyer vigorously contested the notion that the Court’s holding was “narrow.” “Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community . . . Thus, in terms of potential consequences and basic American legal traditions, the question before us is not a ‘narrow’ one.” Breyer attempted to answer the question before the Court with a textual analysis, arguing that “[t]he statute’s language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is ‘take[n] into custody . . . when the alien is released’ from criminal custody.” In Breyer’s view, the words “take into custody . . . when the alien is released” in section 1226(c)(1) “form part of the description of the ‘alien’: An ‘alien described in paragraph (1)’ is an ABCD alien whom the Secretary has ‘take[n] into custody . . . when the alien is released’ from prison.” He bolstered this argument by looking to the statute’s legislative history, but really hit his stride in describing the practical effects of the majority’s construction. The majority’s reading, he noted, “would give the Secretary authority to arrest and detain aliens years after they have committed a minor crime and then hold them without a bail hearing for months or years.” This, Breyer argued, raised grave constitutional concerns. Therefore, under the canon of constitutional avoidance, the statute should be read more narrowly to avoid doubts about its constitutionality. (For their part, the majority rebuffed this argument by insisting that the avoidance canon only applies when there is ambiguity in the statute, and here there is none.)

Turning to a slightly less fraught statutory question, in Obduskey v. McCarthy & Holthus LLP (No. 17-1307), a unanimous Court resolved a circuit split over the Fair Debt Collection Practices Act (“FDCPA”) by holding that businesses engaged in no more than nonjudicial foreclosure proceedings are not, by virtue of that alone, “debt collectors” under the FDCPA. But the key here is that “no more”: The Court left for another day whether business that engage in other types of foreclosure proceedings, or in nonjudicial foreclosure proceedings with more aggressive efforts to collect past-due debts thrown in on the side, qualify as debt collectors subject to the FDCPA. The decision thus may not have a big effect on FDCPA litigation over nonjudicial foreclosures.

The facts here are straightforward. Dennis Obduskey defaulted on his mortgage after two years of payments. McCarthy & Holthus LLP, on behalf of its client Wells Fargo, sent him a notice initiating a nonjudicial foreclosure. This notice, which is mandatory under Colorado nonjudicial foreclosure law, listed various details about the underlying mortgage. Obduskey understood the notice to be an effort to collect a debt—namely his delinquent mortgage—so he responded by following the FDCPA’s procedures for disputing a debt. That process would have required McCarthy & Holthus to stop collection proceedings until it verified the amount of the debt. It didn’t, instead initiating a nonjudicial foreclosure action. Obduskey sued, arguing that McCarthy & Holthus had violated the FDCPA by ignoring its verification procedures. But the district court dismissed, and the Tenth Circuit then affirmed, holding that McCarthy & Holthus was not a “debt collector” for general FDCPA purposes and therefore was not subject to this part of the Act.

Justice Breyer’s brief opinion begins with the relevant FDCPA framework. The Act regulates “debt collectors.” And the “primary definition” of debt collector is “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due another.” But another, “limited-purpose” definition of debt collectors includes “any person . . . in any business the principal purpose of which is the enforcement of security interests.” Everyone agreed that McCarthy & Holthus met this limited-purpose definition. But limited-purpose debt collectors are subject to only a handful of the FDCPA’s requirements (requirements that McCarthy & Holthus weren’t alleged to have violated). Instead, the question was whether McCarthy & Holthus met the primary definition, subjecting it to the Act wholesale.

For three reasons, the Court concluded McCarthy & Holthus was not a debt collector under the primary definition. The first, and most decisive, was that the limited-purpose definition existed at all. Just reading the primary definition on its own, one might think a business whose principal purpose was enforcing security interests would fall within its scope. But if that were so, then Congress would not have needed to say that those meeting the limited-purpose definition “also” qualified as debt collectors, but only for limited purposes. In other words, a broad reading of the primary definition would have made the limited-purpose one surplusage. The inclusion of the limited-purpose definition suggests Congress did not intend businesses like McCarthy & Holthus, whose main purpose is enforcing security interests, to be subject to the Act under the primary definition. Second, Congress could have reasonably decided to treat security-interest enforcement differently from ordinary debt collection to avoid conflicts with states’ nonjudicial foreclosure regimes. Finally, the legislative history shows that Congress rejected broader proposals for the FDCPA that would have applied to those who enforce security interests in real or personal property. Justice Breyer then turned to Obduskey’s various arguments that exempting business engaged in nonjudicial foreclosure proceedings from the FDPCA’s main provisions would give rise to abuse. The Court was not, he clarified, holding that business primarily engaged in the business of nonjudicial foreclosure proceedings can never be debt collectors under the FDCPA. Instead, those activities standing alone do not make them primary-definition debt collectors. But if they engage in other sorts of efforts to collect on debts, say judicial foreclosures too, they may well become subject to all of the Act’s provisions under the primary definition. Those issues remain for future cases.

In a brief solo concurrence, Justice Sotomayor emphasized the limited scope of the majority opinion. The Court was only considering whether an entity that takes only the steps required by state law for a nonjudicial foreclosure is subject to the Act’s primary definition. Going beyond that, she warned, such as by making harassing phone calls, might bring a person or entity within the scope of the Act. She also pointed out that Congress is free to amend the FDCPA if it disagrees with the Court’s narrow interpretation.

Next up for today is Republic of Sudan v. Harrison (No. 16-1094), in which a nearly unanimous Court vacated a $314 million default judgment against the Republic of Sudan over the bombing of the USS Cole. Sounds like a pretty significant opinion, but in fact it only concerns the technicalities of service of process against foreign states under the Foreign Sovereign Immunities Act.

In 2000, al Qaeda militants orchestrated an attack on the USS Cole, killing seventeen crewmembers and injuring dozens more. Ten years later, some of the survivors and their families sued Sudan, alleging that it had provided material support to al Qaeda. But foreign states like Sudan are generally immune from suit in U.S. court. And apart from immunity, the FSIA provides unique rules for serving process on foreign states. The operative provision, 28 U.S.C. § 1608(a), creates a four-step approach to service. The third of these steps (we won’t summarize the other three) calls for the clerk of court to send the service packet “by any form of mail requiring a signed receipt, to be addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” When the Cole plaintiffs sued, they used this method, asking the clerk to send the service packet to Sudan’s minister of foreign affairs. But they addressed this packet not to the minister’s office in Sudan, but to Sudan’s embassy in Washington. The clerk did so, receiving a return receipt. When Sudan failed to appear, the district court entered the default judgment, which the plaintiffs then tried to collect by attaching Sudan’s assets at various U.S. banks. Sudan finally objected, arguing that the default judgment was invalid because Section 1608(a)(3) required service to be sent to the ministry of foreign affairs in Sudan, not to the minister via Sudan’s U.S. embassy. In separate attachment actions, the Second and Fourth Circuits reached conflicting results (the former upholding the judgment, the latter not). To resolve this split, the Court granted certiorari.

Justice Alito, writing for all but Justice Thomas, began with the statute. The most natural reading of Section 1608(a)(3)’s requirement that service be “addressed and dispatched . . . to the head of the ministry of foreign affairs” is that it must be mailed directly to the foreign minister’s office in the foreign state. After all, to “address” mail to someone normally means to send it to a place where that person can be found. Since foreign ministers do not reside or work at their nation’s embassy in Washington, it is inconsistent with Section 1608(a)(3) to “address” service of process to the minister there. Apart from the plain text, this narrow reading of Section 1608 better fits the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. Rule 4(i) of the former, governing service of process on parties in foreign countries, requires that service by mail be delivered to the addressee at its own address; service to some associated entity in the U.S. is not good enough. It would odd, Justice Alito noted, if the FSIA made it easier to serve a foreign state than it was to serve a regular person in the foreign state. The latter, an international treaty that makes foreign embassies “inviolable” (among other things), has been interpreted by many countries, including the United States, to prohibit service of process delivered by mail to a foreign state’s embassy. Indeed, based on the Vienna Convention, the U.S. government refuses to accept or acknowledge service of process delivered by foreign courts to its embassies abroad. U.S. courts should accord Sudan the same respect the U.S. demands of other nations’ courts, the Court reasoned. Last, this approach avoids difficult line drawing. While this case involved service mailed to a foreign state’s embassy, future cases would no doubt require courts to decide just where else a foreign minister could be served. A consulate? The foreign ambassador’s personal residence? The foreign state’s mission to the U.N.? A tourism office? The Court’s bright-line rule, requiring service to be delivered to the foreign minister at the foreign state’s foreign ministry, avoids this whole line of inquiry. 

What about fairness? If you heard anything in the news about this case around the time of argument, it was probably something about this. Was the Court really going to throw out a ten-year old judgment in favor of U.S. servicemembers seeking compensation for a terrorist attack aided by a foreign state that didn’t even bother to show up and defend itself? Why should the plaintiffs have to start all over again based on a technicality like where the service packet was delivered? Because service of process isn’t horseshoes, the Court noted, so close isn’t good enough. And the strict application of those rules is all the more appropriate here, where a case involves diplomatically sensitive issues likes suing a foreign state.  

Justice Thomas dissented alone, but unlike many CT solo dissents, this one was narrow. He agreed with the majority’s basic approach to Section 1608(a)(3): It requires service to be mailed to an address where the foreign minister can typically be reached. But a foreign state’s embassy in the United States is just such a place. After all, the whole purpose of foreign embassies is to serve as a conduit between a foreign state’s ministry of foreign affairs and the host country, a function they perform in large part by transmitting mail and other official documents between the two countries. Given that function, an embassy is an appropriate place to reach the foreign minister by mail. If, like the U.S., a foreign state wishes to refuse to accept service by mail at its embassies, it is free to do so by rejecting delivery. But Sudan had done no such thing here. Thus, in the circumstances of this case, where a foreign state did not refuse delivery of service of process by mail addressed to its foreign minister at the state’s U.S. embassy, he would find Section 1608(a)(3) satisfied. 

Finally (for today), you may have heard about the Court’s order last week in Murphy v. Collier (No. 18A985), where it stayed the execution of a Buddhist inmate to give him time to file (and the Court to act on) a petition for certiorari challenging a Texas prison policy that arguably discriminates against religion. That policy allows Christian or Muslim inmates to have a state-employed Christian or Muslim religious adviser present in the execution room, while inmates of all other religions are limited to having a spiritual adviser present in an adjoining viewing room. If that sounds familiar, you’re probably recalling the Court’s decision a month ago in Dunn v. Ray. In that case, the Eleventh Circuit stayed an Alabama inmate’s execution, so he could challenge a similar Alabama policy that allows only Christian chaplains (not, in Ray’s case, Muslim imams) to be present in the execution chamber. But the Supreme Court, by a 5-4 vote, lifted the stay, allowing his execution to go forward, concluding that Ray waited too long to seek relief. That prompted a heated dissent from Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, arguing that this was a clear-cut case of religious discrimination, and that Ray had raised his claim as soon as he learned that Alabama planned to ban his chosen spiritual adviser.

So what was different this time? Views may differ. There was no opinion accompanying the order. Justice Kavanaugh wrote a solo concurrence, explaining why Murphy’s claim of religious discrimination had substantial merit. In a footnote, he emphasized that Murphy raised his claim “in a sufficiently timely manner, one month before the scheduled execution.” But neither he, nor anyone else, made any reference to Dunn. Perhaps a few weeks really made all the difference. Or perhaps some of the conservative members of the Court had second thoughts about Dunn. Justice Kagan’s dissent in Dunn got a lot of favorable media attention, including from more than a few conservative commentators who criticized the Court’s decision as permitting Alabama to trample religious liberty. Not all were persuaded the result should be different this time around, though. Justices Thomas and Gorsuch noted, without explanation, that they would have denied the stay.

Before we sign off for the day, we’ve got one additional cert grant to report: In Kansas v. Glover (No. 18-556), the Court will determine whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

That’s all for now, but you’ll be hearing from us again soon. Until then,

Tadhg and Dave