Publications

Greetings, Court Fans!

In a week that saw some of the most significant arguments of the term (including Trump v. United States, on the former president’s potential immunity from criminal prosecution), we’re back to summarize three outstanding decisions from last week:

• Rudisill v. McDonough (No. 22-888), holding that veterans who qualify for benefits under two overlapping “GI Bills”—in this case the Montgomery GI Bill Act of 1984 (covering service between 1985 and 2030) and the more generous Post-9/11 Veterans Educational Assistance Act (covering service on or after September 11, 2001)—can use either bill, in any order, up to the statutory 48-month benefits gap;
• Muldrow v. City of St. Louis (No. 22-193), holding that, while an employee challenging a job transfer under Title VII must show that the transfer caused some harm with respect to an identifiable term or condition of employment, the harm need not be significant; and
• McIntosh v. United States (No. 22-7386), holding that a district judge’s failure to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B)’s requirement to enter a preliminary order of forfeiture in advance of sentencing does not bar the judge from ordering forfeiture at sentencing, subject to harmless-error principles on appeal.

But before you click, a pitch: Please, if you’re interested in hearing more about OT23 in person (and enjoying some cocktails and CLE credits), join us on May 9th at the Hotel Marcel in New Haven for our annual “Home Stretch” panel, with Professor Stephen Gilles of Quinnipiac Law. To register, click here.

In Rudisill v. McDonough (No. 22-888), the Court addressed how educational benefits are allocated under two overlapping GI bills. Though the first GI bill was enacted in response to World War II, Congress has enacted numerous others since. As the Court explained, these bills typically share two features: First, they “entitle” veterans to educational benefits in the form of a stipend or tuition payments, which the VA must provide once the veteran enrolls in an eligible educational program. Second, they provide these benefits for a fixed duration: 35 months of benefits per GI bill, up to a total of 48 months (the statutory cap) for service members who become eligible for benefits under multiple bills.

James Rudisill’s post-service experience shows how multiple GI bills can overlap. Rudisill served in the U.S. Army for eight years, reenlisting twice and completing three tours of duty. His initial tour entitled him to 36 months of educational benefits under the Montgomery GI Bill Act of 1984 (covering service between 1985 and 2030). His subsequent tours separately entitled him to 36 months of educational benefits under the more generous Post-9/11 Veterans Educational Assistance Act (covering service on or after September 11, 2001). Rudisill initially used 25 months of Montgomery benefits to fund his undergraduate education, leaving 11 months unexhausted. (It was actually 25 months and 14 days, but we’ll stick with round numbers.) After his third tour, he sought to use the more generous Post-9/11 benefits to attend graduate school. He knew that he’d be limited to 23 months of benefits before reaching the 48-month cap, but the Department of Veterans Affairs (VA) informed him that he would only be eligible for 11 months, because he had “elected” to use his Post-9/11 benefits before exhausting the Montgomery benefits. This was based on the VA’s interpretation of § 3327, a provision of the Post-9/11 GI bill, which limits a veteran’s entitlement to Post-9/11 benefits to the number of unused months of Montgomery benefits when the veteran elects to switch to the superior benefits available under the Post-9/11 Bill.

Rudisill argued that he wasn’t actually electing to switch benefits. Rather, he had earned an additional entitlement to 36 months of Post-9/11 benefits based on his second and third periods of service. In his view, that meant that he was entitled to 23 months of benefits pursuant to § 3695, the statute imposing the 48-month cap on aggregate benefits. Both the VA and the Board of Veterans’ Appeals rejected this argument, but the Court of Appeals for Veterans Claims reversed, holding that § 3327 does not apply to veterans with multiple periods of service. The VA then appealed to the Federal Circuit, which ultimately reversed in an en banc decision, holding that the plain language of § 3372 applies to veterans, like Rudisill, with multiple periods of service.

The Supreme Court reversed. Writing for a 7-2 majority, Justice Jackson concluded that Rudisill had “earned two separate entitlements to educational benefits, one per the Montgomery GI Bill and the other per the Post-9/11 GI Bill, by serving in the military for nearly eight years over three separate periods.” While the Post-9/11 bill contains a provision, § 3322, that expressly bars individuals with entitlements to both Montgomery and Post-9/11 benefits from receiving benefits under both bills concurrently and requires such veterans to “elect” under which bill they wish to receive benefits, Justice Jackson concluded that this “mandatory coordination clause” applies only to servicemembers who are eligible for both programs from a single period of service that could qualify them for both. Rudisill, by contrast, earned his entitlement to Montgomery GI benefits based on his first period of service, and separately earned Post-9/11 benefits from his second and third periods. He thus was not seeking “concurrent” coverage for the same period of service or to convert. In Jackson’s view, the statutory text, established a baseline rule that the VA “shall pay” benefits up to the 48-month aggregate-benefits cap. Section 3222’s doesn’t limit a veteran’s “entitlement” to benefits; it simply requires servicemembers who are entitled to benefits under two different bills for the same service to “coordinate” the entitlements. “[W]hen a person already has two separate entitlements and simply uses one after the other, he is not coordinating anything.” Thus, § 3222 (and the related election provision, § 3327) simply “does not speak to” Rudisill’s case.

Justice Jackson reached this conclusion without invoking the so-called “veterans canon,” which the Court of Appeals for Veterans Claims had invoked to resolve what it regarded as an ambiguity in the statutes. Under the veterans canon, statutes that provide benefits to veterans are to be construed “in the veteran’s favor.” In a concurring opinion, Justice Kavanaugh (joined by Justice Barrett) agreed with the majority’s interpretation of the statutes at issue, but wrote separately to “note some practical and constitutional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others.” As Kavanaugh noted, the veterans canon is a “substantive canon”—that is, a “judicial presumption in favor of or against a particular substantive outcome.” Substantive canons typically derive from “background constitutional principles or long-settled judicial understandings of congressional practice.” By contrast, the veterans canon “seems to stem from a loose judicial assumption about congressional intent—in particular, an assumption that Congress intends for courts to read ambiguous veterans-benefits statues more broadly than the courts otherwise would read such statutes.” Kavanaugh questioned the basis for that assumption, and warned that “any canon that construes benefits statutes in favor of a particular group—rather than just construing the statutes as written—appears to be inconsistent both with actual congressional practice on spending laws and with the Judiciary’s proper constitutional role in the federal spending process.”

Justice Thomas dissented, joined by Justice Alito. In his view, the plain text of the statutes showed that Congress intended to prevent veterans from using overlapping benefits in a manner that would exceed each individual program’s scope. Congress created an election mechanism that allows veterans like Rudisill to switch from Montgomery benefits to Post-9/11 benefits, but it specifically provided that doing so (when Montgomery benefits remain) limits the veteran to the number of months that remained under the Montgomery benefits had he not switched. Thomas saw no indication in the statutes that would exempt a veteran like Rudisill, who had “earned” benefits on separate occasions, from the mandatory coordination and election clauses of the statutes. In his view, the majority had simply “ignore[d] the statutory mechanism Congress created in favor of an interpretation that reaches a desired outcome.”

Next up, in Muldrow v. City of St. Louis (No. 22-193), the Court addressed the degree of harm an employee challenging a job transfer must show to state a claim under Title VII.

Sergeant Jatonya Muldrow was employed as a plain-clothes officer in the St. Louis Police Department’s Intelligence Division from 2008 until 2017. In 2017, the Intelligence Division’s new commander asked that she be transferred so that she could be replaced with a male officer. The Department approved his request and transferred Muldrow. Her new responsibilities involved supervising neighborhood patrol officers, rather than interfacing with high-ranking officers on sensitive matters, as she had been doing in her previous role. Muldrow sued, alleging that she’d been discriminated against on the basis of sex, in violation of Title VII. But the District Court granted summary judgment (and the Eighth Circuit affirmed) to St. Louis, reasoning that Muldrow had not shown that the transfer was a “materially significant disadvantage” in the terms or conditions of her employment.

The Supreme Court unanimously reversed, albeit with only 6 justices joining the majority opinion. Writing for the Court, Justice Kagan stated that an employee challenging a job transfer under Title VII “must show some harm from [the] forced transfer to prevail … [but] she need not show that the injury satisfies a significance test,” as apparently required by the courts below. Title VII prohibits “discriminat[ing] against” an individual on the basis of sex “with respect to” the “terms [or] conditions” of employment.” As Justice Kagan observed, that language (particularly the phrase “discriminate against”) requires a plaintiff like Muldrow to show that a transfer brought about some disadvantageous change in an employment term or condition. But the statute does not require that the disadvantage be “sufficient” or otherwise exceed some heightened bar. Kagan rejected the City’s argument that, because the other types of discrimination prohibited by Title VII (discharging or refusing to hire) cause significant disadvantages to the party discriminated against, that necessarily means a transfer must also cause significant disadvantage to be actionable. What the listed types of discrimination have in common is that they are all employment actions, not that they all cause the same degree of harm. She further rebuffed the City’s argument that a heightened “significance” requirement is necessary to prevent a flood of litigation. There are plenty of ways to dispose of meritless Title VII claims, Kagan noted, but even if the floodgates opened, that would simply be a result of the statute Congress drafted. Because the Eighth Circuit improperly applied a heightened standard, the Court remanded the case for further considerations. In so doing, Justice Kagan noted that Muldrow’s allegations “if properly preserved and supported” would certainly meet Title VII’s threshold. However, she recognized that “the decisions below may have rested in part on issues of forfeiture and proof,” and invited the courts to consider those matters on remand.

Justice Thomas and Justice Alito each filed solo concurrences, essentially raising the same objection to the majority opinion: It invents a conflict among the circuits regarding the standard for showing a discriminatory transfer under Title VII and then provides little useful guidance to resolve it. While Justice Alito agreed that if the facts presented in the majority opinion were properly presented below, Muldrow’s transfer certainly altered the “terms” or “conditions” of her employment. But he expressed doubt that there is in fact a split among the lower courts regarding the standard for assessing transfers and maintained that the majority’s “unhelpful opinion” provides little additional guidance. Justice Thomas agreed that the lower courts appeared to all apply the same standard “with slightly varying verbal formulations,” and that the standard was more or less the same as the majority’s “some harm” formulation. In his view, the Eighth Circuit had not applied a more stringent test, though he acknowledged that some of the words it used (e.g., “material” and “significant”) could be taken that way, and so he agreed that remand was appropriate to ensure the correct standard was applied.

Justice Kavanaugh, meanwhile, believed that even the majority’s “some harm” standard imposes a greater burden than Title VII requires. As he put it, “the text of Title VII does not require a separate showing of harm. The discrimination is the harm.” Therefore, the only question is whether an employment action changes the “compensation, terms, conditions, or privileges of employment.” Because a transfer necessarily changes the terms or conditions of employment, Justice Kavanaugh would find any discriminatory transfer actionable under Title VII. He noted, however, that the “some harm” formulation advanced by the majority “appears to be a relatively low bar,” and so predicted that “the Court’s approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100.”

Finally, in McIntosh v. United States (No. 22-7386), the Court addressed the forfeiture provision of the Federal Rules of Criminal Procedure, which generally requires a district court to enter a preliminary order of forfeiture “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications” before it becomes final at sentencing. The question in McIntosh was whether the failure to enter a preliminary order in advance of sentencing means the court can never enter a final forfeiture order. And the answer was no.

Petitioner Louis McIntosh was indicted on multiple counts of Hobbs Act robbery. The indictment demanded that McIntosh “forfeit … all property … derived from proceeds traceable to” the offenses, and the Governor later presented a bill of particulars identifying a $75,000 in cash and a BMW that McIntosh purchased five days after one of the robberies as property subject to forfeiture. After McIntosh was convicted, the District Court ordered the Government to submit an order of forfeiture at least a week prior to the sentencing hearing. The Government failed to do so, and the District Court nevertheless imposed a forfeiture of $75,000 and the BMW as part of McIntosh’s sentence. When McIntosh appealed, the Government sought, and was granted, a limited remand so that it could supplement the record with a written order of forfeiture. On remand, McIntosh argued that it was too late for the Government to supplement the record because Federal Rule of Criminal Procedure 32.2(b)(2)(B) states that “[u]nless doing so is impractical,” a sentencing judge “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final.” The District Court was unmoved. It concluded that Rule 32.2(b)(2)(B) is a “time-related directive,” as opposed to a jurisdictional deadline or mandatory claims-processing rule, so the missed deadline did not bar the court from ordering forfeiture so long as it did not prejudice McIntosh. The Second Circuit affirmed.

The Supreme Court affirmed, as well, holding that a district court’s failure to enter a preliminary forfeiture order before sentencing does not bar it from ordering forfeiture at sentencing, subject to harmless-error review on appeal. Writing for a unanimous court, Justice Sotomayor explained that there are three types of time limits: (1) jurisdictional deadlines; (2) mandatory claim-processing rules; and (3) time-related directives. Here, McIntosh argued that Rule 32.2(b)(2)(B) is a mandatory claims-processing rule—i.e., a mandatory deadline that cannot be excused, though it can be subject to waiver of forfeiture—and the government argued that it is a flexible time-related directive—i.e., a deadline that requires a public official to move with speed but that, if missed, does not deprive the official of the power to take the action to which the deadline applies. Among other differences, noncompliance with a claims-processing rule is presumed to be prejudicial, while noncompliance with a time-related directive is subject to harmless-error principles.

In Sotomayor’s view, Rule 32.2(b)(2)(B) is properly understood as a time-related directive. Its plain language contemplates flexibility insofar as it recognizes that a preliminary forfeiture order need be entered in advance “unless doing so is impractical.” Moreover, unlike other aspects of Rule 32.2, it does not provide any specific consequence for noncompliance. Finally, it governs the conduct of the district court, not the litigants. Mandatory claims-processing rules, by contrast, typically require parties to take certain procedural steps at specified times. That the rule uses the word “must” does not make it mandatory, Sotomayor noted, particularly given that the mandatory nature of that “must” is conditioned upon compliance not being “impractical.”

In short, the Court held that noncompliance with Rule 32.2(b)(2)(B) is a procedural error that is subject to harmless-error review. Because McIntosh did not challenge the lower courts’ conclusion that the noncompliance in his case was harmless, the Court affirmed the judgment in its entirety.