Supreme Court Update: Robers v. United States (12-9012), Tolan v. Cotton (13-551) and Order List

May 13, 2014 Supreme Court Update

Greetings, Court fans!

As promised, we're back today with Robers v. United States (12-9012), on what counts as a return of property under the Mandatory Victims Restitution Act of 1996; Tolan v. Cotton (13-551), a summary opinion reiterating the summary-judgment standard – and perhaps sending a message to lower courts that cops aren't always entitled to qualified immunity; and recent orders.

In Robers v. United States (12-9012), Benjamin Robers' submission of fraudulent loan applications led to a wire fraud conviction for him, and foreclosures on the homes securing the loans for the banks. The Mandatory Victims Restitution Act of 1996 provides that when it is not possible to return the property lost by the victim, the offender must pay the victim "an amount equal to . . . the value of the property" less "the value (as of the date the property is returned) of any part of the property that is returned." Robers was ordered to return what the banks had loaned him, minus what the banks received when they sold the foreclosed properties. Robers argued that his restitution should have been reduced by the (higher) value of the homes at the time the banks foreclosed, not what they received upon sale.

The Court unanimously rejected Robers' position, in a short decision penned by Justice Breyer. The phrase "any part of the property . . . returned" refers to the property the banks lost – i.e., the money they lent – and not the collateral they received. Thus, the banks' property is not returned until money is returned after a sale. While the statute does contain a proximate cause requirement, fluctuation in property values is common and losses are fairly attributable to the offender. An unexpected natural disaster, or the victim's donation or sale of the collateral at a nominal price could break the causal chain, but the Court did not find such factors to be present in this case. Likewise, the restitution statute contains separate provisions for taking in-kind payments into account where a victim receives collateral but does not intend to sell it. Justice Sotomayor, joined by Ginsburg, wrote a separate concurrence to stress that, in their view, the Court's holding only applies where a victim intends to sell collateral but encounters a reasonable delay in doing so.

Next, we turn to Tolan v. Cotton (13-551), where the Court vacated a summary judgment ruling because the lower courts failed to adhere to the rule that the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Notably, the Court GVR'd the case—granting cert, vacating, and remanding in one fell swoop—which may have something to do with the striking factual background.

On New Year's Eve 2008, Robert Tolan and his cousin—both black males—got out of an SUV in front of Tolan's house and walked toward the front porch. This piqued the suspicion of a police officer nearby, who punched in the license plate number of the car in his computer. It came back as a stolen vehicle—but only because the cop had entered the wrong number. The officer then confronted the two young men, who tried to explain that it was their car, and their house. The officer wasn't having it, and ordered them to lie down on the ground. When Tolan's mother came out to intercede, she was forcibly pinned against the garage door. Tolan then stood up and yelled at the officer to "[g]et your f***ing hands off my mom." At that moment, Sgt. Jeffrey Cotton, who had arrived as back-up just 32 seconds earlier, shot Tolan three times.

That's Tolan's story anyway, which he told in a federal lawsuit against Cotton alleging excessive force in violation of the Fourth Amendment. But the district court granted Cotton summary judgment, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established law. At the time of the incident, the Fifth Circuit held, an officer had a legal right to use deadly force if he harbored an objectively reasonable belief that a suspect presented an "immediate threat" to the officer's safety. Under the circumstances here, the lower courts held that no reasonable juror could conclude that Cotton's professed fear was unreasonable.

The Court could not let that judgment stand. It granted cert and vacated in a per curiam opinion holding that the lower courts had failed to adhere to the summary-judgment standard—namely, that all evidence is to be viewed in the light most favorable to the nonmoving party. Here, there were genuine issues of fact precluding entry of judgment in Cotton's favor, including questions about the actions of Cotton, Tolan, and his mother. In the Court's view, the Fifth Circuit had erroneously credited Cotton's version of events, in what the Court described as a "clear misapprehension" of the summary judgment standard. The Court therefore remanded to the Fifth Circuit to "determine whether, when Tolan's evidence is properly credited and factual inferences are reasonably drawn in his favor, Cotton's actions violated clearly established law."

Justice Alito, joined by Justice Scalia, concurred in the judgment, but expressed concern over the precedent set by taking on the case, given that there is no confusion among the courts of appeal regarding the summary-judgment standard, and the Fifth Circuit articulated the correct standard, even if it misapplied it. In the end, it appears that at least four Justices felt a clear error needed to be corrected in this case, while at least a majority wished to limit its precedential value through a GVR.

Now, to round out this Update, the orders:

The Communications Act of 1934, as amended by the Telecommunications Act of 1996, provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless service facility "shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332 (c)(7)(B)(iii). The Court granted cert in T-Mobile South v. Roswell (13-975), which asks "whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory ‘in writing' requirement."

The Court also agreed to hear M&G Polymers USA v. Tackett (13-1010), which asks "Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely) …; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement …; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely."

Finally, the Court asked the SG for his views on the petition in Federal National Mortgage Assoc. v. Sundquist (13-852), which would ask "Whether a state can restrict a national bank's exercise of its fiduciary powers in connection with real property in that state if the bank is authorized to act as a fiduciary by the Comptroller of the Currency and not prohibited from doing so by the (different) state in which the bank is ‘located' under 12 U.S.C. § 92a and 12 C.F.R. § 9.7."

That's all for now. The Court is taking a short break – as are we – to gear up for the remainder of the Term!

Kim, Jenny & Tadhg