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Greetings, Court Fans!

We’re back with summaries of three more of this week’s cases: Ysleta del Sur Pueblo v. Texas (No. 20-493), holding that Texas’s gaming regulations did not apply to an Indian Tribe’s gaming activities on Tribal land; Kemp v. United States (No. 21-5726), which holds that a district judge’s legal error is a “mistake” for purposes of relief from the judgment under Rule 60(b); and Arizona v. City and County of San Francisco, California (No. 20-1775), where the Court dismissed without deciding a case asking whether states could intervene to defend a federal policy the Biden Administration choose not to defend. Let’s get to it.

First up is Ysleta del Sur Pueblo v. Texas (No. 20-493), where a 5-4 majority concluded that a federal statute restoring the trust relationship between the United States and a Texas Indian Tribe did not subject the Tribe to all of Texas’s state gaming laws and regulations. As in other recent Indian law cases, this one saw Justice Gorsuch joining with the Court’s liberal justices to rule in favor of a Tribe. But perhaps more notable is that the decisive fifth vote came from Justice Barrett, perhaps suggesting that Tribes may continue their recent run of favorable results at the Court notwithstanding Barrett replacing the late Justice Bader Ginsburg. The true test, of course, will come with the Court’s decision later this month in Oklahoma v. Castro-Huerta (No. 21-429), the sequel to OT19’s Indian law blockbuster, McGirt v. Oklahoma (2020).

The Ysleta del Sur Pueblo is one of three federally recognized Indian Tribes in Texas. In 1968, Congress assigned the United States’ trust responsibilities for the Tribe to Texas. But in 1983, Texas renounced its trust responsibilities, concluding they were inconsistent with the state constitution. The Tribe responded by seeking to reestablish its trust relationship with the federal government through congressional legislation. After years of negotiation, Congress enacted the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act. Among other things, the Restoration Act “prohibited” as a matter of federal law “all gaming activities which are prohibited by the laws of the State of Texas.” But at the same time, the Restoration Act stated it should not be “construed as a grant or civil or criminal regulatory jurisdiction” to the state.

Just a few years later, Congress enacted the Indian Gaming Regulatory Act (IGRA), which established a framework for gaming on Tribal lands, like those of the Ysleta del Sur Pueblo. Broadly speaking, IGRA establishes three separate classes of games. Tribes can offer class II games—a category that includes bingo—so long as the state in which tribal lands sit permits that same gaming activity “for any purpose by any person, organization or entity.” Class III games—things such as blackjack—are allowed only if the Tribe and State enter into a tribal/state compact. Following IGRA’s enactment, the Tribe sought to negotiate a compact with Texas for class III games. But Texas contended it had no obligation to negotiate, because the Restoration Act required the Tribe to follow all of Texas’s gaming laws, even on tribal lands. The Tribe sued under IGRA, but in a 1994 decision, the Fifth Circuit agreed with Texas’s interpretation of the Restoration Act. That decision spawned decades of litigation between the Tribe and Texas over just what sort of gaming activities the Tribe could conduct on its land and under what circumstances.

The current case is the latest episode in this long-standing dispute. In 2016, the Tribe began offering bingo (though Texas—and the dissent—thought this “bingo” was better described as slot machine games). IGRA empowered it to do so, because bingo is a class II game and Texas law authorizes bingo to be played in church halls and the like for charitable purposes. Texas sought to enjoin the Tribe’s new bingo gaming, arguing that under the Fifth Circuit’s 1994 decision, the Tribe was bound by Texas gaming law, and Texas gaming law authorized bingo only for charity and subjected it to various regulations. Bound by the Fifth Circuit’s decision, the district court agreed, though it stayed its opinion because it doubted whether the Fifth Circuit’s construction of the Restoration Act was correct. The Fifth Circuit did think its interpretation was correct and reaffirmed that under the Restoration Act all of Texas’s gaming laws and regulations operate as surrogate federal law on the Tribe’s reservation. At the United States’ urging, the Supreme Court granted certiorari.

The Court reversed in a 5-4 decision authored by Justice Gorsuch and joined by Justices Breyer, Sotomayor, Kagan, and Barrett. The nub of the case was what the Restoration Act meant when it said that all gaming activities “prohibited” by Texas law are “hereby prohibited” on the Tribe’s reservation: Did this mean, as Texas argued, that the Tribe must follow all of Texas gaming laws and regulations because any gaming activity that did not comply with those rules was necessarily “prohibited”? Or, as the Tribe argued, that the Tribe was precluded from offering only those games that were fully prohibited under Texas law and permitted to offer games that Texas law merely regulates, like bingo.

For several reasons, Gorsuch concluded the Tribe had the better of the argument. First, the Restoration Act drew a dichotomy between prohibition and regulation. Gaming activities “prohibited” by state law are also “prohibited” by federal law. But outside that context, the Act insisted that it did not grant Texas civil or criminal “regulatory” jurisdiction. What of Texas’s argument that bingo is “prohibited” by Texas law unless it is conducted in compliance with Texas’s regulatory restrictions? In ordinary speech, perhaps that interpretation of “prohibited” would make sense, but Gorsuch found it unpersuasive when the statute implicitly distinguished between mere regulation and prohibition. That distinction had to mean something, so Texas’s interpretation didn’t work. Second, Gorsuch found that the history of the Restoration Act (which was enacted just months after another Supreme Court decision, California v. Cabazon (1987) that drew the distinction between prohibition and regulation in a similar context) clinched the case and dispelled any ambiguity that might exist in the text. Congress was presumptively aware of the distinction when it used nearly identical statutory language in the Restoration Act.

The Chief Justice, joined in dissent by Justices Thomas, Alito, and Kavanaugh, wasn’t so sure. For one, if Congress really intended the Restoration Act to reflect the prohibitory/regulatory dichotomy of Cabazon, you’d expect it to be a bit more explicit, such as by prohibiting “types of gaming” that Texas “categorically” banned. But the dissent relied on a different piece of history it found more relevant than Cabazon: a Tribal Resolution enacted by the Ysleta del Sur Pueblo Tribe in the run-up to the Restoration Act. That resolution sought to avoid a potential fight with Texas over gaming—a fight that was impairing the Tribe’s ability to get Congress to reauthorize federal trust status—by asking Congress to provide that “all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas, shall be prohibited” on the Tribe’s land. The Restoration Act specifically stated that its provisions regarding gaming were “enacted in accordance” with this resolution. Taken together, then, this resolution established that Congress understood the Restoration Act to be codifying as a matter of federal law all of Texas’s gaming regulations. No matter what one might say about Cabazon in general, its prohibitory/regulatory distinction made no sense here. For these reasons, the dissenters would’ve affirmed the Fifth Circuit’s approach to the Act.

Our next case, Kemp v. United States (No. 21-5726), shows why it was a good idea to pay attention in Civil Procedure class, even if you practice criminal law. It explores one of the (many) finer points of Federal Rule of Civil Procedure Rule 60(b), which empowers courts to grant relief from a final judgment for several reasons, including “mistake, inadvertence, surprise, or excusable neglect.” A nearly unanimous Court concluded that “mistake” includes not only factual errors, but also legal ones, including mistakes of law made by the district court.

Dexter Kemp was convicted of federal drug and gun crimes and sentenced to 420 months in prison. After losing his direct appeal, he petitioned the district court to vacate his sentence under 28 U.S.C. 2255, but the District Court denied the petition as untimely. Nearly two years later, Kemp sought to reopen the Section 2255 proceedings under Rule 60(b), arguing that the district court had miscalculated when Section 2255’s one-year time limit began to run. The problem for Kemp was that his Rule 60(b) motion to reopen the denial of his Section 2255 petition was itself untimely. That’s because Rule 60(b) allows for the reopening of a judgment for “mistake, inadvertence, surprise, or excusable neglect” within a reasonable time but, at most, one year after entry of the challenged judgment. To avoid this conclusion, Kemp argued that the erroneous denial of his Section 2255 petition was not a “mistake” subject to the one-year time limit of Rule 60(b)(1), but instead fell under Rule 60(b)(6)’s catch-all for “any other reason that justifies relief.” A motion under Rule 60(b)(6) is not subject to the one-year limitation, but simply must be filed “within a reasonable time.” The Supreme Court granted certiorari to resolve a circuit split over whether a legal error by the district court is a “mistake” for purposes of Rule 60(b).

In an opinion written by Justice Thomas, a majority of eight concluded that a judge’s legal error is a “mistake” under Rule 60(b)(1), meaning Rule 60 motions based on such errors are subject to the one-year time limit. Here, the legal error was the district court starting Kemp’s clock to file his Section 2255 petition 90 days after his appeal of his conviction failed and not after his co-appellants’ rehearing petitions in the joint appeal were later denied. Kemp argued that “mistake” refers only to factual errors by someone other than the judge, while the government contended that “mistake” can cover a judge’s obvious legal errors. But Thomas went even further than the government, holding that “mistake” includes “all mistakes of law made by a judge.” He based that result on ordinary dictionary definitions of “mistake.” Nothing in Rule 60’s text suggested it should be limited to some subset of mistakes—factual ones—or that it applied only to mistakes by particular people—i.e., parties, not judges. If the Rule’s current text weren’t clear enough, Thomas pointed out that the original version of the rule referred to “his” mistake, meaning a party’s. That “his” was long ago taken out, suggesting that the Rule’s drafters wanted to eliminate the Rule’s limitation to mistakes made by a litigant as opposed to mistakes by the court. Finally, Thomas batted away several of Kemp’s arguments as to why “the text, structure, or history of Rule 60(b)” requires interpreting “mistake” narrowly, affirming the lower courts’ denial of his Rule 60(b) motion as untimely.

Justice Sotomayor concurred, joining the Court’s opinion but noting that one type of legal error—a subsequent change in controlling law—might not be a “mistake” subject to the one-year limit. The majority opinion addressed that scenario in a footnote, stating the issue wasn’t before it and so it’s left for another day.

Justice Gorsuch was the lone dissenter. But he didn’t directly say that the majority was wrong. He thought that Kemp’s scenario was so unusual as not to warrant the Court’s time, and rather than granting certiorari, the Court should have left any lack of clarity to be resolved through the appropriate rules committee, where public policy on collateral attacks of judgments could be better addressed. He would not, as he asserts the majority did, resolve the issue “through a doubtful interpretive project focused on a pronoun dropped in 1946.”

Our last case for today, Arizona v. City and County of San Francisco, California (No. 20-1775), was on many Court watchers’ lists of the most eagerly awaited decisions of the term. It asked whether a group of Republican-led states could intervene to defend the lawfulness of a Trump-era federal regulation that the Biden Administration declined to defend. But as sometimes happens, the case turned out to be a dud, with the Court dismissing the writ of certiorari as improvidently granted. While the Court provided no explanation for this action, during oral argument the Justices probed a host of issues relating to standing, mootness, and the like.

At issue was a Trump Administration immigration policy embodied in the “public charge” rule, which would have made applicants for a green card ineligible if the government concluded the applicant would be too dependent on government aid. Several courts around the country invalidated the rule as unlawful. The Trump Administration defended the rule at first, but when Biden was elected his administration changed the federal government’s position. It withdrew the government’s appeal pending in the Supreme Court and four appellate courts, leaving in place an Illinois district court ruling that invalidated the rule. On the basis of that district court ruling, the government then rescinded the public charge rule, without going through the APA notice-and-comment process that would normally be required to eliminate an existing rule. (The government did subsequently initiate that process.)

The attorneys general for Arizona and 12 other states sought to intervene in one of the pending appeals (in the Ninth Circuit) to defend the rule. They claimed the rule would save the states over a billion dollars. The Ninth Circuit denied intervention, and the Supreme Court granted cert to review that decision. This was the second case this Term raising an issue of the right of a state official to intervene to defend the legality of a statute or regulation: As you no doubt recall, in Cameron v. EMW Women’s Surgical Center, P.S.C. the Court held that the newly elected Republican attorney general of Kentucky had a right to intervene to defend Kentucky’s restrictive abortion statute after the state’s Secretary of Health and Family Services, the defendant in the suit and a Democrat, had stopped defending the law. The difference here is that Arizona wanted to intervene to defend a federal regulation that the federal government itself chose not to defend.

At oral argument in the Arizona case, several Justices made clear that they respected the right of a new administration to change its position in litigation. But they expressed serious concern about the Biden administration’s decision not only to stop defending the rule but to immediately rescind it before going through the rulemaking process.

That concern clearly weighed on the Chief Justice. In an opinion concurring in the decision to DIG the case (joined by Justices Thomas, Alito, and Gorsuch), he said the government had strategically circumvented the important APA notice-and-comment process and then, as part of its “tactic of rulemaking-by-collective-acquiescence” went on to successfully block interested parties from intervening to defend the rule. Ultimately, however, the concurring Justices concluded that the states’ right to intervene was bound up in a host of other issues, including mootness, standing, vacatur, and even whether the APA provides courts with authority to vacate a federal regulation on a nationwide basis. Recognizing that “this mare’s nest could stand in the way of our reaching the question presented . . . or at the very least complicate our resolution of that question,” he agreed with the Court’s decision to dismiss the writ as improvidently granted.

We’re now more than halfway through the week’s decisions, but we’ve still got four more to come. Stay tuned for those tomorrow.

Dave and Tadhg