Supreme Court Update: Life Technologies Corp. v. Promega Corp. (14-1538), Fry v. Napoleon Community Schools (15-497), Buck v. Davis (15-8049) and Order List

February 27, 2017 Supreme Court Update

Greetings, Court Fans!

Last time we hit your inboxes, Barack Obama was President. To call the ensuing month eventful is something of an understatement. We've seen a primetime Supreme Court nomination, a flood of litigation challenging hastily conceived Executive Orders, and most recently the rescinding of a Department of Education policy on transgender rights that's at the heart of a case pending before the Court this term. And that's only (a fraction of) the Article III news. But despite all that's transpired in the last month, we here at the Update are single-mindedly focused on one thing—decisions—and we've finally got some new ones to report, after a long mid-winter's lull. Stay tuned for summaries of Life Technologies Corp. v. Promega (14-1538), on infringement of multicomponent patents, Fry v. Napoleon Community Schools (15-497), on the intersection between, and administrative exhaustion requirements of, federal statutes concerning the disability rights of schoolchildren, and Buck v. Davis (No. 15-8049), a decision that's technically about the standard for granting a certificate of appealability in a habeas case, but which touches on much more, including the impact of racial stereotyping in capital sentencing proceedings.

First up, in Life Technologies Corp. v. Promega Corp. (14-1538), the Court considered the standard for finding infringement of multi-component patents that are manufactured abroad. Under 35 U.S.C. § 271(f), a party infringes a U.S. patent if it supplies "all or a substantial portion of the components of a patented invention" from the United States so as to induce the combination of the components abroad in a way that would infringe the US patent if the combination occurred in the United States. But how many components are a "substantial portion"? The Federal Circuit concluded that it could be just one, at least if that one component was sufficiently important. In Promega, however a unanimous Supreme Court concluded that a "substantial portion" has to be at least . . . two.

Promega was the exclusive licensee of the Tautz patent, a toolkit for genetic testing used by law enforcement organizations and clinical and research institutions. It sublicensed the patent to Life Technologies to manufacture and sell kits to certain law enforcement fields. The kits consisted of five components, four of which Life Technologies manufactured in the United Kingdom. But the fifth component, a special enzyme, was manufactured in the US and shipped to the UK, where it combined the five parts to produce the kits. After Life Technologies allegedly began selling the kits to markets outside the scope of its license, Promega sued for infringement and won a jury verdict. But the District Court set aside the verdict, concluding that one is not a "substantial portion" of five. The Federal Circuit reversed, however, and reinstated the jury's verdict, concluding that a single component could be a "substantial portion" of the components if it were "important" or "essential."

Justice Sotomayor, writing for a unanimous Court of seven (with the Chief Justice recused), reversed. The first question for the Court was whether "substantial" in Section 271(f)(1) had a qualitative meaning, as the Federal Circuit thought, or a quantitative one. While everyone acknowledged that "substantial" could have either meaning, in the context of the statute, the Court found little doubt that it must be quantitative. Among other things, its neighboring words—"all" and "portion"—were both quantitative, and the phrase "substantial portion" modified "components of the patented invention" rather than just "the patented invention," suggesting that the focus was on the percentage of components supplied from the US, not their importance in the assembled product.

Having decided that Section 271(f)(1) required a quantitative analysis, the only question was whether a single component could ever be a "substantial portion" of a multi-component invention. The Court just as easily concluded it could not for two main reasons. First, Section 271(f)(1) consistently refers to "components" in the plural, suggesting that a substantial portion of those components also has to be plural. And second, 271(f)(2) provides that a party supplying "any component" of a patented invention from the United States is liable for infringement if that component is "especially made or especially adapted for use in the invention." If 271(f)(1) could be satisfied by a single component, then 271(f)(2) would be largely superfluous. The Court found it unnecessary to define "a substantial portion" beyond "more than one"—a point Justice Alito, joined by Justice Thomas, emphasized in a short concurrence—since this was enough to reverse the Federal Circuit and dismiss the case.

Next up, in Fry v. Napoleon Community Schools (15-497), the Court considered whether and when a disabled student is required to bring a claim under the IDEA, rather than other civil rights laws. The IDEA requires states to furnish disabled children with a "free appropriate public education" and establishes administrative procedures for resolving disputes between parents and schools concerning the provision of a FAPE. Other statutes like Title II of the ADA and § 504 of the Rehabilitation Act also protect the interests of children with disabilities. Although these statutes overlap in many ways, one key difference is that damages, available under the ADA and § 504, are not available under the IDEA. In 1986, Congress passed the Handicapped Children's Protection Act, which (in § 1415(l)) requires students bringing suit under the ADA or Rehabilitation Act to first exhaust the IDEA's administrative procedures if the relief they are seeking is also available under the IDEA.

When the Frys—Stacy and Brent and their disabled daughter, E.F.—sought permission for E.F. to bring her service dog, Wonder, to school, the school refused on the ground that E.F.'s human aide (provided as part of E.F.'s individualized education program) rendered the dog superfluous. The Frys responded by removing E.F. from the school and homeschooling her. They also filed a complaint with the Education Department's Office of Civil Rights, claiming that the refusal to accommodate Wonder violated E.F.'s rights under Title II and § 504. The school then permitted E.F. to return with Wonder, but the Frys instead enrolled E.F. in a different school that they believed was more welcoming. They then filed suit in federal court against the school district and principal, alleging violation of Title II and § 504 and seeking declaratory relief and damages. The District Court dismissed the suit, holding that, pursuant to § 1415(l), the Frys were required to exhaust the administrative procedures provided by the IDEA before they could bring suit under Title II or § 504. The Sixth Circuit affirmed, concluding that the exhaustion requirement applied any time a plaintiff's alleged harm is "educational" in nature.

The Court reversed, in a (nearly) unanimous opinion by Justice Kagan, who noted that § 1415(l) only requires a plaintiff to exhaust the IDEA's administrative procedures when the suit "seek[s] relief that is also available" under the IDEA. Justice Kagan reasoned that, because the IDEA centers on the provision of a free appropriate public education (FAPE), the principal relief available under the IDEA is redress for the denial of a FAPE. Therefore, if a plaintiff is essentially challenging the denial of a FAPE, then § 1415(l) requires the plaintiff to first exhaust the administrative procedures established under the IDEA before bringing a lawsuit under Title II or § 504. But if the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required.

The question, then, is how a court can determine whether a lawsuit brought under Title II or § 504 is really seeking redress for the denial of a FAPE. In this regard, Justice Kagan emphasized that § 1415(l) requires exhaustion when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if it is not phrased or framed in precisely that way. Courts should consider the differing means and ends of the applicable statutes—while the IDEA is focused on individually tailored educational services for children with disabilities. Title II and § 504 promote nondiscriminatory access to public institutions and accommodations for people with disabilities of all ages. Justice Kagan then listed several "clues" that courts can look for when making this determination. Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Could an adult at the school have pressed essentially the same grievance? If the answer to those questions is yes, the complaint is likely not seeking redress for denial of a FAPE, and the administrative procedures of the IDEA would not need to be exhausted. (Justice Alito, joined by Justice Thomas, filed a separate concurring opinion joining the judgment but refusing to sign on to the "clues" portion of the opinion, which he felt could lead to unnecessary confusion.)

Having established a test for discerning when § 1415(l)'s exhaustion requirements are triggered, the Court remanded E.F.'s case to the Sixth Circuit to apply it. Justice Kagan noted that E.F.'s complaint appeared on the surface to allege only general disability-based discrimination and not denial of a FAPE, but that the history of the proceedings (beyond the record on appeal) could potentially reveal that the Frys had earlier invoked the IDEA's dispute resolution process before filing suit. If they started down that road, it could be that the gravamen of their complaint is indeed the denial of a FAPE, in which case they would need to complete the exhaustion of the IDEA's administrative procedures before proceeding with their suit under Title II and § 504.

Finally, in Buck v. Davis (No. 15-8049), the Court (eventually) considered whether it is ineffective assistance of counsel for a capital defense lawyer to elicit expert testimony that his client will be more likely to act violently in the future because he's black. It is, but the Court took a circuitous route to answering the question, thanks to the steeplechase of procedural hurdles that is federal habeas law under AEDPA and related rules. Fair warning: there's a lot to unravel below, so if you don't have an interest in capital sentencing, AEDPA, and the rules governing post-verdict motions, you might want to skip ahead to the cert grants….

Duane Buck was convicted of capital murder in Texas. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck's attorney called a psychologist, Dr. Walter Quijano, who testified that Buck probably would not engage in violent conduct in the future, but also that he was statistically more likely to act violently because he is black. The prosecution relied upon this testimony in summation and the jury returned the death sentence. Buck did not raise ineffective assistance in his direct appeal or in his initial state habeas petition. Had he done so, it would have been an easy win, for while Buck's state habeas proceeding was pending, the Supreme Court vacated a death sentence in another case where Dr. Quijano testified (albeit for the prosecution, not the defense) that a defendant's race weighed in favor of a finding of future dangerousness. In response to that case, the Texas Attorney General (now Sen. John Cornyn) conceded error in five other cases involving Quijano, but not Buck's. Buck then filed a second state habeas petition raising the issue, but it was dismissed as an abuse of the writ because Buck had failed to raise the IAC claim the first time around.

Buck then filed a federal habeas petition, but the District Court found it was procedurally barred because the state court's decision rested on an independent and adequate state procedural ground and because the District Court felt the introduction of race into the sentencing proceeding had been de minimis. At the time of the District Court's decision, the fact that a postconviction lawyer was himself ineffective in failing to bring an IAC claim in an initial habeas petition was not a recognized basis for avoiding the procedural default rule. But the Supreme Court subsequently softened the rule and permitted a petitioner to show that his default was caused by ineffective assistance of postconviction counsel if he shows both constitutional ineffectiveness and that the substantive IAC claim had merit.

Following this change in the law, Buck attempted to reopen his habeas case under Federal Rule of Civil Procedure 60(b)(6), which permits a court to relieve a party from a final judgment under "extraordinary circumstances." Among other factors, Buck pointed to the fact the law on procedural default had changed and that the State had confessed constitutional error with respect to the other defendants sentenced to death after a jury heard from Dr. Quijano. (The State refused to confess error in Buck's case because his was the only one in which the defense had called Dr. Quijano as a witness.) The District Court denied relief for want of extraordinary circumstances, finding that the use of race in the sentencing proceeding was de minimis. State prisoners do not have an automatic right of appeal from decisions denying their federal habeas petitions. Buck therefore sought a certificate of appealability (COA) in the Fifth Circuit, but that court denied his application, concluding that he had not shown extraordinary circumstances justifying relief.

The case then reached the Supreme Court, which technically only decided the question whether the Fifth Circuit had erred in denying the COA. In a 5-3 decision authored by Chief Justice Roberts, the Court held that the Fifth Circuit had exceeded the proper scope of review of a COA application. In so doing, the majority effectively also held that the District Court abused its discretion in denying Buck's Rule 60(b) motion and that Buck received constitutionally ineffective assistance of counsel at sentencing.

The Chief spent fully half of his opinion unraveling the procedural knots that ultimately led Buck to the Supreme Court. Shorn of all those tangles, the actual holding of the Court was relatively simple: The Fifth Circuit exceeded the proper standard in considering Buck's COA application because it engaged in a review of the merits rather than merely a threshold analysis of "whether the applicant has shown that jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." The Chief proceeded to apply the proper standard to the two questions raised in Buck's COA application, but himself waded pretty far into the merits weeds.

The first question for COA purposes was the substantive question—whether reasonable jurists could debate the District Court's conclusion that Buck was not denied his right to effective assistance of counsel. There was little doubt that Buck's trial counsel's performance was deficient. "It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. No competent defense attorney would introduce such evidence about his own client." But the District Court held that Buck had not shown that he could satisfy the prejudice prong of the IAC test, because the introduction of race into the proceedings was de minimis. The Chief strongly disagreed. While there were only two references to race during the sentencing proceeding, the Chief maintained that "when a jury hears expert testimony that expressly makes a defendant's race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small amounts."

The second COA question was whether reasonable jurists could debate the District Court's procedural holding that Buck had not made the necessary showing to reopen his case under Rule 60(b)(6). Here, the majority held that, based on the extraordinary nature of the case, a reasonable jurist could conclude that the District Court abused its discretion in declining to reopen the judgment and permit Buck to raise his substantive IAC claim. "Buck may have been sentenced to death in part because of his race," something the State itself conceded was unconstitutional in the five other cases in which Dr. Quijano had testified about race as a predictor of future violence. Therefore, reasonable jurists could conclude that the District Court abused its discretion in denying the Rule 60(b)(6) motion.

Even so, Buck's case could only be reopened if the Court's later rulings permitting ineffectiveness of habeas counsel to satisfy the cause requirement for avoiding the procedural bar applied retroactively to Buck, whose petition was defaulted before those cases were decided. The Court sidestepped that sticky question, however, finding that the State had waived any argument that the new rule should not be applied retroactively.

In sum, the Court held that Buck had demonstrated both ineffective assistance of counsel under Strickland and entitlement to relief under Rule 60(b)(6). "It follows that the Fifth Circuit erred in denying Buck the COA required to pursue these claims on appeal." In other words, after faulting the Fifth Circuit for engaging in a merits review of a COA application, the Court held that the COA should have granted based on the merits. Once the procedural knots of remand are unwound, it appears Buck will ultimately be resentenced, presumably with the assistance of a different expert.

Justice Thomas dissented, joined by Justice Alito. In the dissenters' view, the majority had "settled on a desired outcome" and then "bulldoze[d] procedural obstacles and misapplie[d] settled law to justify it." Justice Thomas called out the majority for "criticiz[ing] the Fifth Circuit for undertaking a merits inquiry to deny a COA (when such an inquiry is required) and then . . . conduct[ing] a merits inquiry to decide that the petitioner's claim is debatable (when such an inquiry is inappropriate)." On the substantive IAC claim, the dissenters criticized the majority for ignoring the actual standard for establishing future dangerousness under Texas law (which can be inferred from the facts of the offense alone) and "relying instead on rhetoric and speculation to craft a finding of prejudice." And on the 60(b)(6) question, the dissenters faulted the majority for conducting a de novo review when district court denials of 60(b)(6) motions are only subject to review for abuse of discretion. The dissenters took heart, however, in the fact that the majority's "single-minded focus on according relief to this petitioner on these facts naturally limits the reach of its decision."

It's hard to escape the conclusion that the majority stretched a bit to reach, and effectively grant, Buck's substantive IAC claim. But few are likely to take issue with the Chief Justice of the United States for ensuring that a defendant sentenced to death in part on the basis of testimony that the color of his skin made him more likely to act violently in the future has an opportunity to have his substantive constitutional claims heard in federal court.

That'll do it for recent opinions, but we do have four new cert grants to report:

Class v. United States (16-424) asks whether a guilty plea inherently waives a defendant's right to challenge the constitutionally of his statute of conviction.

Hamer v. Neighborhood Housing Services of Chicago (No. 16-658) asks whether Federal Rule of Appellate Procedure 4(a)(5)(C), deprives a court of appeals of jurisdiction over an appeal that is filed beyond thirty days after the judgment, but within the amount of time permitted by the district court, or if it is instead subject to equitable considerations, such as forfeiture, waiver, and the unique-circumstances doctrine.

Artis v. District of Columbia (No. 16-460) asks whether the statute that provides that the limitations period for a state-law claim "shall be tolled while the claim is pending" in federal court under the federal court's supplemental jurisdiction suspends the limitations period for the claim while it is pending and for thirty days after it is dismissed by the federal court, or whether instead it does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile in state court.

Wilson v. Sellers (No. 16-6855) asks whether the presumption that a federal court sitting in habeas proceedings should "look through" a summary state court ruling to review the last reasoned decision was abrogated by the Court's decision in Harrington v. Richter (2011).

And that, at long last, is a wrap. We're expecting more decisions this week, so stay tuned . . . .