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Greetings, Court Fans!

As we’ve been harping on for the last few weeks, the Court’s OT21 term has crept along at a snail’s pace, with a nearly unprecedented number of cases yet to be decided this late in the term. But this week, the Court took a huge leap forward, issuing 11 (well, maybe 10.5) decisions in some of the Court’s less less-heralded cases, clearing some space for the looming blockbusters in the coming weeks. First, on Monday, the Court issued five decisions:

• In ZF Automotive US, Inc. v. Luxshare, Ltd. (No. 20-401), a unanimous Court held that district courts cannot authorize the production of evidence under 28 U.S.C. 1782(a) for use in foreign or international proceedings before private arbitration bodies;

• A slightly unusual 6-3 majority held in Denezpi v. United States (No. 20-7622) that the Double Jeopardy Clause does not bar the same sovereign from successively prosecuting distinct offenses arising from the same act;

• In Johnson v. Arteaga-Martinez (No. 19-896), a nearly unanimous Court held that the Immigration and Nationality Act (INA) does not require the government to provide a bond hearing to noncitizens detained for six months or more under Section 1231 of the INA;

• In Garland v. Gonzalez (No. 20-322), a companion case to Arteaga-Martinez, a more-standard 6-3 majority held that INA strips district courts of jurisdiction to issue class-wide injunctive relief restraining the operation of certain provisions of the INA;

• And in Kemp v. United States (No. 21-5726), the Court held 8-1 that a Rule 60(b)(1) motion to reopen a judgment based on a “mistake” includes a district court’s mistake about the law.

Then this morning, the Court issued even more:

• Viking River Cruises, Inc. v. Moriana (No. 20-1573), a fractured 8-1 decision holding that the Federal Arbitration Act partially preempts a rule of California law that invalidates contractual waivers of representative claims under California’s Private Attorneys General Act;

• Ysleta del Sur Pubelo v. Texas (No. 20-493), an oddly divided 5-4 decision (with Justice Gorsuch writing for a majority of Justice Barrett and the Court’s three liberals) holding that the federal Restoration Act bans only those gaming activities on tribal land that are also banned by the law of the state in which the tribal lands sit; it does not ban gaming activities that state law allows subject to state-law regulations;

• American Hospital Association v. Becerra (No. 20-1114) unanimously holds that the Department of Health and Human Services acted arbitrarily and capriciously by reducing Medicare reimbursement rates for a group of hospitals that serve low-income and rural populations;

• Golan v. Saada (No. 20-1034), a decision unanimously holding that the Hague Convention on the Civil Aspects of International Child Abduction does not require district courts to consider every possible measure for ameliorating a grave risk of harm to a child before denying a Hague Convention petition seeking the return of the child to a foreign country;

• George v. McDonough (No. 21-234), another unusual 6-3 split case, this time holding that a federal statute authorizing reconsideration of Veterans Affairs’ benefits decisions based on “clear and unmistakable error” does not allow for reconsideration of long-final decisions that were based on a since-invalidated VA regulation;

• And Arizona v. City and County of San Francisco (No. 20-1775), a case we thought was going to decide whether a coalition of 13 states could intervene to defend the legality of the Public Charge Rule promulgated by the Department of Homeland Security after the federal government decided not to defend the rule. But the Court decided that issues of standing, mootness, and vacatur might complicate the analysis, so the Court dismissed the petition as improvidently granted.

That’s far too much for just one Update. So today, we bring you four of the five decisions from Monday: ZF Automotive, Denezpi, Arteaga-Martinez, and Gonzalez. Then we’ll be back later this week to summarize Kemp and today’s cases.

First up, ZF Automotive US, Inc. v. Luxshare, Ltd. (No. 20-401). A federal statute, 28 U.S.C. 1782, gives district courts the authority to ”order [a person] to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” In ZF Automotive,consolidated with AlixPartners, LLP v. Fund for Protection of Investors’ Rights in Foreign States (No. 21-518), the Court addressed a question about the scope of Section 1782 that has greatly divided federal courts in recent years: Does the statute allow district courts to order discovery in aid of foreign arbitration proceedings before private arbitral bodies? A unanimous Court held it does not, paring back a tool that has been used more and more frequently by foreign litigants in recent years (often to the detriment of U.S. entities, who may be unable to get reciprocal discovery from their foreign adversaries).

The consolidated cases arose from different factual scenarios. In ZF Automotive, Luxshare, a Hong Kong-based company, claimed that it had overpaid for business units sold by ZF Automotive, a Michigan-based automotive parts manufacturer. Before Luxshare initiated contractually required arbitration proceedings before a private dispute-resolution organization in Berlin, it filed an ex parte Section 1782 application to obtain information from ZF Automotive and two of its senior officers. ZF Automotive opposed, arguing that the arbitration panel was not a “foreign or international tribunal.” Binding Sixth Circuit precedent had already rejected ZF Automotive’s argument, so the lower courts predictably allowed discovery. In AlixPartners, a Russian corporation initiated proceedings against Lithuania under a bilateral treaty in order to adjudicate the corporation’s claims that Lithuania unlawfully expropriated certain investments from a Lithuanian bank. The corporation elected to resolve the dispute via ad hoc arbitration in accordance with Arbitration Rules of the United Nations Commission on International Trade law, with each party selecting one arbitrator and those two choosing a third. The Russian corporation subsequently filed a Section 1782 application seeking information from AlixPartners about its CEO’s role as the bank’s temporary administrator. AlixPartners objected, arguing that the ad hoc arbitration panel was not a “foreign or international tribunal.” Unlike the Sixth Circuit, the Second Circuit had previously held that private arbitration panels are not a “foreign or international tribunal” under Section 1782. But the Second Circuit nonetheless allowed discovery to go ahead, concluding that the specific arbitration panel at issue was governmental. Because the Second and Sixth Circuit’s decisions conflicted with each other and with cases from other circuits, the Court granted certiorari and consolidated the cases.

A unanimous Court reversed both decisions in an opinion by Justice Barrett. Her analysis focused on the phrase “foreign or international tribunal,” noting that while “tribunal” was unilluminating on its own, the term as modified by “foreign or international” was best understood as an adjudicative body exercising governmental authority. More specifically, the word “foreign” takes on a governmental meaning “when modifying a word with potential governmental or sovereign connotations.” Because “tribunal” has potential governmental/sovereign connotations, “foreign tribunal” more naturally referred to a tribunal “belonging to” a foreign nation rather than one “simply located in” a foreign nation. This reading was bolstered by Section 1782’s default procedures for discovery, which reference the procedure of “the foreign country or the international tribunal”—a reference that makes sense if we’re talking about a governmental adjudicatory body but not much sense for a private one. Barrett then turned to the word “international,” which could mean either “involving or of two or more ‘nations’” or “involving or of two or more ‘nationalities.’” As applied to Section 1782, the first made more sense, because “it would be strange for the availability of discovery to turn on the national origin of the adjudicators.” As a result, an “international tribunal” is naturally understood as a tribunal imbued with governmental authority by multiple nations.

The Court reinforced this interpretation by turning to Section 1782’s history. Acknowledging that the animating purpose of the statute is comity and the respect for foreign nations, Barrett reasoned that interpreting Section 1782 to reach only those adjudicatory bodies exercising governmental authority would be consistent with Congress’s intent. Section 1782 was broadened in the 1960s to cover an expanded range of foreign governmental bodies, but nothing in its amendment suggested that the statute was expanded to cover private bodies. Allowing U.S. federal courts to assist private bodies would not, in the Court’s view, further comity between the U.S. and other nations. And the alternative reading of Section 1782 “would open district court doors to any interested person seeking assistance for proceedings before any private adjudicative body—a category broad enough to include everything from a commercial arbitration panel to a university’s student disciplinary tribunal.” Finally, reading Section 1782 as extending to foreign private arbitration would create friction with the Federal Arbitration Act, because the latter provides for a narrower scope of discovery in aid of arbitration, meaning that foreign arbitrations would have access to broader discovery than domestic ones. 

But the Court’s conclusion that Section 1782 is limited to governmental or intergovernmental adjudicatory bodies is not the end of the case. Questions remained about the particular bodies at issue in ZF Automotive and AlixPartners. ZF Automotive was “straightforward”; it was clearly private because no government was involved in creating the panel or prescribing its procedures. But the ad hoc arbitration panel in AlixPartners was a closer call, given Lithuania’s involvement in the dispute and the fact that the option to arbitrate was contained in an international treaty (in contrast to a private contract). The Court ultimately concluded that none of these factors were dispositive. Instead, the determinative question is whether the “nations intended to confer governmental authority on an ad hoc panel formed pursuant to the treaty.” The treaty at issue in AlixPartners did not create the arbitration panel; instead, the ad hoc panel functions independently of both Russia and Lithuania and consists of arbitrators chosen by the parties and lacking any affiliation with any governmental or intergovernmental entity. Thus, while the Court recognized that nations could imbue an ad hoc arbitration panel with governmental authority, Russia and Lithuania had not done so here. As a result, the Court rejected both respondents’ efforts to seek discovery under Section 1782.

Next up is Denezpi v. United States (No. 20-7622), in which a divided Court held that the Double Jeopardy Clause does not prohibit successive prosecutions of discrete offenses based on the same act even if the same sovereign prosecutes both crimes.

Federally recognized Indian tribes are, like the states, separate sovereigns from the United States. As such, most tribes (like the states) have their own judicial systems. But some tribes rely instead on courts established by the United States. These courts, which derive from the Code of Federal Regulations and are therefore often known as “CFR courts,” have jurisdiction over two sets of crimes: those set forth by federal regulations and those set forth by ordinances enacted by a tribe’s governing body and approved by the Department of the Interior.

Denezpi, as you have likely gathered by now, concerns a CFR court. Merle Denezpi and V.Y., both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation. While they were at a house belonging to Denezpi’s friend, Denezpi trapped V.Y. inside, threatened her, and forced her to have sex with him. After V.Y. later escaped and reported Denezpi to tribal authorities, Denezpi was charged by the United States with, and pleaded guilty to, assault and battery, in violation of the Ute Mountain Ute Code. He was sentenced to time served. Six months later, he was indicted by a federal grand jury in the District of Colorado on one count of aggravated sexual abuse in Indian country, a crime set forth by the federal Major Crimes Act. Denezpi moved to dismiss the indictment under the Double Jeopardy Clause, but the district court denied his motion. After Denezpi was convicted and sentenced to 30 years in prison, the Tenth Circuit affirmed, concluding that there was no double jeopardy problem because the Ute Mountain Ute Tribe’s inherent sovereignty was the source of Denezpi’s first prosecution.

The Supreme Court affirmed. Justice Barrett again took the pend for the majority, writing for the Chief Justice and Justices Thomas, Breyer, Alito, and Kavanaugh. She began with a primer on the Double Jeopardy Clause. It provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” “Offense” has long been understood to mean a transgression “defined by a law,” and a law is defined by the sovereign that makes it. Because the source of a law is a crucial feature of the law itself, an offense defined by one sovereign is necessarily different from an offense defined by another sovereign, no matter how similar the two laws may be in substance. Thus, under the “dual sovereignty” doctrine, two offenses can be separately prosecuted even if they have identical elements, as long as the offenses derive from separate sovereigns’ laws. To the majority, Denezpi’s case was a straightforward application of these principles. The assault and battery ordinance Denezpi was first prosecuted under was enacted by one sovereign (the Ute Mountain Ute Tribe) and the aggravated sexual abuse statute he was later prosecuted under was enacted by another (the United States). Two separate sovereigns; two separate offenses, so no double jeopardy.

But wait, wasn’t Denezpi prosecuted by the same sovereign twice—first by the United States in the CFR court and then by the United States in federal district court? Think nothing of it, Barrett reasoned, because the Double Jeopardy Clause concerns not successive prosecutions by the same sovereign but successive prosecutions “for the same offence.” Barrett quickly cast aside several of Denezpi’s arguments to the contrary. First, the dual sovereignty doctrine is not an exception to the Double Jeopardy Clause; rather it flows from the text itself, which focuses on the identity of the offense not of the prosecutor. Second, none of the cases Denezpi cited involved a single sovereign successively prosecuting its own law and that of a different sovereign, so they were of no help to him. Third, it doesn’t matter that violations of the Major Crimes Act can’t be prosecuted in CFR courts (in part due to the double jeopardy concerns such prosecutions might entail) because successive prosecutions for federal regulatory and statutory crimes weren’t at issue in this case. Fourth, applying the Double Jeopardy clause as the Tenth Circuit did furthers the Ute Mountain Ute Tribe’s sovereign interest in enforcing its own ordinances, which is consistent with the point of the dual sovereignty doctrine. And finally, even if the Court’s holding may lead to sovereigns trying to double dip by assuming the authority to enforce another sovereign’s criminal laws, that problem (if a problem at all) is not the concern of the Double Jeopardy Clause.

Justice Gorsuch, joined in part by Justices Sotomayor and Kagan, dissented. Writing for the whole trio, Gorsuch agreed that the sovereign source of an offense matters but argued the majority erred by looking at nothing more than the criminal codes of the Ute Mountain Ute Tribe and the United States. Looking deeper, he concluded that the United States is the source of both the Major Crimes Act and the tribal ordinance, because the CFR court’s authority derives from the United States. Indeed, the CFR court was created by federal regulators, who have the power to define and approve offenses that may be prosecuted therein without any reference to tribal law. (Writing on his own, Gorsuch then went further, casting doubt on the constitutionality of both CFR courts and the dual sovereignty doctrine itself.) Finally, again with the voice of all three dissenters, he contended that Denezpi had actually been prosecuted in the CFR court for a federal crime, not a tribal one. Drawing upon CFR regulations, he reasoned that because one particular regulation makes a violation of a tribal ordinance an offense, Denezpi’s assault and battery prosecution concerned a federal offense. And drawing upon historical context, he noted that federal authorities have incorporated certain tribal offenses approved by the Department of the Interior into federal law. Since both prosecutions arose from federal law and were prosecuted by the federal government, the second prosecution was foreclosed by the Double Jeopardy Clause.

Finally, it’s worth remarking on the composition of this 6-3 split. Unlike many 6-3 cases from the current Court, this one did not break down on purely ideological lines, with Justice Breyer joining five conservative justices, while Gorsuch agreed with Justices Sotomayor and Kagan. But that split is hardly unprecedented: Gorsuch has frequently taken positions in favor of criminal defendants, evincing a somewhat libertarian view of constitutional criminal procedure similar to that of the late Justice Scalia. Meanwhile, Justice Breyer has long distinguished himself from his liberal peers by taking pro-government positions in such cases. Time will tell whether Justice Brown Jackson’s elevation will shift the Court’s center of gravity more toward criminal defendants.

Our next two cases, Johnson v. Arteaga-Martinez (No. 19-896)and Garland v. Gonzalez (No. 20-322), arise out of last year’s decision in Johnson v. Guzman Chavez. If you don’t recall the details of that one, a six-Justice majority held that the expedited removal process of INA Section 1231 applies to noncitizens who are removed from the United States and then re-enter without authorization. As a result, such noncitizens are not entitled to the bond hearings provided by a separate provision of the INA, Section 1226, while the government decides whether to grant the alien relief from the prior (administratively final) order of removal.

Like the alien in Guzman Chavez,Antonio Arteaga-Martinez (a citizen of Mexico) entered the United States without authorization and was then removed. He soon reentered the country, but six years later he was arrested, detained, and his earlier removal proceedings were reinstated under Section 1231. A DHS asylum officer found that Arteaga-Martinez raised a credible claim he would be subject to persecution or torture if he were returned to Mexico, so the officer referred him to an immigration judge, who would decide whether to withhold removal. In the meantime, the government continued to detain him without a bond hearing. He soon filed a petition for habeas corpus in the Middle District of Pennsylvania. While that petition was pending, the Third Circuit held in a similar case that noncitizens who had been detained under Section 1231 for six months or more were entitled to a bond hearing and that it was the government’s burden to show by clear and convincing evidence that the noncitizen posed a risk of flight or was a danger to the community. Because Arteaga-Martinez had by then been detained for six months, the district court ordered a bond hearing, and Arteaga-Martinez was released while he awaited a decision from the immigration judge. In the meantime, the Court granted certiorari to review the Third Circuit’s conclusion that Section 1231 required such hearings for individuals detained for extended periods and that the burden of proof in such hearings was on the government.

Justice Sotomayor, writing for all but Justice Breyer, reversed. She began by summarizing the rather arcane provisions of Section 1231. When a final order of removal is entered against a noncitizen, the government generally must secure the noncitizen’s removal within 90 days. During that time, the government is required to detain the noncitizen. But after that time, the government “may” detain only those who are inadmissible or removable on certain grounds (grounds that weren’t relevant here), were “a risk to the community,” or who were “unlikely to comply with the order of removal.” Nothing in the text of this provision hinted at (let alone established) the regime imposed by the Third Circuit, where noncitizens detained for more than six months were entitled to a bond hearing at which the government bore the burden of proving by clear and convincing evidence that the noncitizen was a risk of flight or a danger to the community. As a result, there was no statutory support for the Third Circuit’s approach.

That is not to say that Arteaga-Martinez necessarily has no right to a bond hearing. He pointed out several prior decisions, which suggested that prolonged detention without an individualized bond hearing may violate due process. But Sotomayor found it unnecessary to reach that issue, because the lower courts had never addressed Arteaga-Martinez’s constitutional claims, instead concluding only that the statute required a hearing. The Court thus remanded to the lower courts to address Arteaga-Martinez’s constitutional claims in the first instance.

Justice Thomas, joined in part by Justice Gorsuch, concurred. They agreed that nothing in Section 1231 required bond hearings for noncitizens detained for more than six months. But they also reiterated their view, expressed in Guzman Chavez, that federal courts lack jurisdiction to hear claims like Arteaga-Martinez’s, because those claims don’t call into question a final order of removal. Writing only for himself, Thomas doubted that the due process clause even protects noncitizens subject to removal proceedings, and he called on the Court to overrule a prior case suggesting that noncitizens may have a due process right to bond hearings after prolonged periods of detention.

Finally, Justice Breyer, writing alone, concurred in part and dissented in part. He agreed with the Third Circuit that noncitizens detained for more than six months were entitled to a bond hearing by statute. That was so because the Court had previously read that six-month time limit into Section 1231 in Zabvydas v. Davis (2001). True, Zabvydas involved individuals who had been ordered removed for different reasons that Arteaga-Martinez, but Breyer saw no reason why that distinction should make a difference. (The majority, for its part, did not necessarily disagree; they simply viewed this issue as encompassed by Arteaga-Martinez’s constitutional claim, not his statutory one.) But even though Breyer thought a bond hearing was required, he agreed with the majority that there was no statutory basis for the Third Circuit’s rule that the government bore the burden of proof (with clear and convincing evidence no less) at any bond hearing.

Gonzalez likewise asks whether noncitizens detained pursuant to Section 1231 of the INA for a prolonged period are entitled to a bond hearing. But in Gonzalez, the lower courts issued class-wide injunctions, prohibiting the government from detaining people for more than six months anyone who had not received such a hearing. The Court’s six conservative justices concluded that the INA deprives district courts of jurisdiction to grant such class-wide injunctive relief, over a vigorous dissent from the Court’s three liberal justices.

Gonzalez is technically a consolidation of two cases, both from the Ninth Circuit. The respondents are citizens of Mexico and El Salvador. Like Arteaga-Martinez, each of them was removed from the United States, reentered it illegally, and were then detained under INA Section 1231. They sought relief from district courts in California and Washington on behalf of classes of similarly situated individuals, asking for class-wide injunctive relief requiring bond hearings for all individuals detained pursuant under Section 1231 for more than six months. Both district courts issued the requested class-wide relief, and a divided panel of the Ninth Circuit affirmed both rulings. The Court granted cert, and when it did so, it instructed the parties to address whether district courts have jurisdiction under the INA to issue this sort of class-wide injunctive relief.

Writing for the Court’s six conservative justices, Justice Alito concluded that they do not. He started with Section 1252(f)(1), which provides that no court other than the Supreme Court has jurisdiction “to enjoin or restrain the operation of” the relevant provisions of the INA. While “enjoin” and “restrain” are self-explanatory, he interpreted “operation of” broadly to mean anything the government does to “enforce” or “implement” the relevant laws. Respondents contended that “operation” should be understood to mean only the operation of those provisions “as properly interpreted,” so as to allow district courts to issue class-wide injunctions when the government violates the relevant statutes. But Alito quickly disposed of this approach, reasoning that it would make Section 1252(f)(1)’s general prohibition meaninglessly narrow. And it would make the jurisdictional question turn on the merits (namely whether the government was actually misapplying the law).

Now, Section 1252(f)(1) contains one exception to this general rule, allowing district courts to enjoin the provisions of the INA at issue “with respect to the[ir] application . . . to an individual alien against whom proceedings” have been commenced. Going back to Reno v. American-Arab Anti-Discrimination Commission (1999), the Court has interpreted this exception to “prohibit federal courts from granting class-wide injunctive relief,” while still allowing such relief in “individual cases.” Respondents contended that this exception should apply so long as all members of the class were facing enforcement actions as the INA, as was the case here. But with little analysis, Alito disposed of this by pointing out the quote from Reno: the exception does not allow class-wide injunctive relief. Because the INA deprived district courts of jurisdiction to issue the class-wide injunctions at issue here, the Court vacated and remanded for further proceedings.

Justice Sotomayor, joined mostly by Justices Breyer and Kagan, dissented. On behalf of all three, she quickly disposed of the Court’s reliance on Reno, pointing out that the quotation the majority made much of was really just dicta in a case that did not decide the scope of Section 1252(f)(1)’s bar on injunctive relief. Nothing in the exception’s text suggested that class-wide injunctive relief should be unavailable for a class of individuals all of whom fall within the scope of the exception. Writing only for herself, Sotomayor also disagreed with the majority’s interpretation of “operation of,” concluding that a court does not “enjoin” the “operation of” a statute when it orders the government to act in exactly the way the statute (properly understood) requires the government to act. Finally, on behalf of all three dissenters, she noted the ramifications of the Court’s decision: Precluding class-wide injunctive relief would make it difficult (if not impossible) for noncitizens who are detained while facing removal proceedings to vindicate their statutory rights.

That’s enough for today. We’ll be back again later this week to run down everything else from this busy week.

Dave and Tadhg