Supreme Court Update: Rodriguez v. United States (13-9972); United States v. Wong (13-1074 and 13-7075); Oneok, Inc. v. Learjet, Inc. (13-271); Armstrong v. Exceptional Child Center, Inc. (14-15) and Order List
Greetings, Court fans!
First, congratulations to my co-author Tadhg on the birth of his child last week! Second, I want to thank both David Roth and Ivana Greco for their contributions to this Update, which is a lengthy one. We will cover the Court's recent decisions in: Rodriguez v. United States (13-9972), holding that, absent reasonable suspicion, a traffic stop may not be extended for the purpose of conducting a dog sniff; United States v. Wong (13-1074 and 13-7075), holding that the Federal Tort Claims Act's limitations periods are subject to equitable tolling; Oneok, Inc. v. Learjet, Inc. (13-271), on the scope of preemption under the Natural Gas Act; and Armstrong v. Exceptional Child Center, Inc. (14-15), holding that health care providers cannot bring suit under the Supremacy Clause to enjoin state laws that conflict with 42 U.S.C. § 1396a(a)(30)(A).
When is a sniff not up to snuff (as far as the Fourth Amendment is concerned)? Ten years ago, in Illinois v. Caballes (2005), the Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. But last week, in Rodriguez v. United States (13-9972), the Court held that a dog sniff conducted after completion of a traffic stop violates the Fourth Amendment because it occurs "beyond the time reasonably required to complete the mission of issuing a ticket" for the underlying traffic violation.
Denys Rodriguez was pulled over at precisely 12:06 a.m. on March 27, 2012, after a K-9 officer, Struble, observed him driving on the shoulder for one or two seconds. Struble found something fishy about Rodriguez, so he called for back-up and took his time conducting a records check on both Rodriguez and his passenger and writing up a warning for driving on the shoulder. By 12:27, Struble had returned to Rodriguez's car and issued the warning. There was nothing left to attend to with respect to the initial traffic stop, so Struble asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez demurred, Struble ordered him out of the car and waited another few minutes for backup to arrive. At around 12:33, backup arrived, and Struble conducted the dog-sniff, which turned up a large bag of amphetamines. Although there was no probable cause to search the vehicle and no reasonable suspicion to detain Rodriguez after the warning was issued, a magistrate judge denied his motion to suppress, concluding that the extension of the stop by "seven to eight minutes" for the dog sniff was only a de minimis intrusion on Rodriguez's Fourth Amendment rights and was therefore permissible. The District Court adopted this ruling and the Eighth Circuit affirmed.
The Supreme Court reversed, 6-3. Justice Ginsburg wrote for the majority, which included Roberts and Scalia along with the usual suspects. "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission'—to address the traffic violation that warranted the stop and attend to relevant safety concerns." Accordingly, the seizure associated with a traffic stop may last no longer than is necessary to effectuate the purpose of the stop—i.e. the length of time it takes to issue a warning or a ticket for the traffic offense and address safety concerns. Traffic stops ordinarily include a check of the driver's license for outstanding warrants and a check of vehicle registration and insurance, all of which relate to the "same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly" and ensuring officer safety during the stop. Authority for the stop, however, ends when the tasks tied to the traffic infraction are completed. Although the Court in Caballes held that police may conduct an unrelated investigation during the course of a traffic stop (including by use of a dog-sniff), here the unrelated investigation took place after the initial traffic-stop investigation had been completed, at a time when there remained no justification for keeping Rodriguez detained. But Struble could not necessarily have avoided this rule simply by conducting the dog sniff first. "The critical question . . . is not whether the dog sniff occurs before or after the officer issues the ticket, but whether conducting the sniff ‘prolongs'—i.e. adds time to—the stop." Accordingly, while an officer "may conduct certain unrelated checks during an otherwise lawful traffic stop," "he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual."
Addressing the de minimis exception applied by the Eighth Circuit, Justice Ginsburg concluded that it was an improper extension of the Court's holding in Pennsylvania v. Mimms (1977), which held that the Government's interest in officer safety outweighed the de minimis Fourth Amendment intrusion of requiring a driver to exit his vehicle during a stop. The interest in officer safety "stems from the mission of the [traffic] stop itself." In contrast, "on-scene investigation into other crimes . . . detours from that mission." The majority also rejected the Government's proposal that "by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation." As RBG pointed out, if an officer is able to complete the traffic-related tasks expeditiously, "then that is the amount of ‘time reasonably required to complete the stop's mission." (emphasis added). Accordingly, the Court vacated Rodriguez's conviction. He's not in the clear however, for the Court remanded the case for consideration of whether there was, in fact, reasonable suspicion for the unrelated drug investigation.
Justice Thomas penned a dissent joined by Alito in full and Kennedy in part. In their view, a twenty-nine minute traffic stop is hardly unreasonable for a single-officer stop of a multi-occupant car. The fact that Struble waited until after he gave Rodriguez the traffic warning to conduct the dog sniff should not alter the analysis. Thomas accused the majority of drawing an "artificial line between dog sniffs and other common police practices," like the warrant-check that Struble performed, with which the majority had no quarrel, despite the fact that it prolonged the stop. The majority also ignored the distinction between traffic stops based on probable cause (like this one) and those based on a reasonable suspicion. Where a stop is made based on the lower reasonable suspicion standard, additional limitations on the search may be justified. "By contrast, a stop based on probable cause affords an officer considerably more leeway," including the ability to make a warrantless arrest. Because Struble had probable cause (having seen Rodriguez drive in the shoulder), he could have arrested him then and there for the traffic infraction without offending the Fourth Amendment. But because he waited for back-up, thereby extending the time of the initial traffic stop, he committed a constitutional violation, according to the majority. "Such a view of the Fourth Amendment makes little sense."
Justice Thomas—and Alito in his separate dissent (but not Kennedy)—also contended that the majority's opinion was entirely academic because Struble did have reasonable suspicion to continue to detain Rodriguez. The car reeked of air freshener and the passenger seemed extremely nervous and agitated. Thomas and Alito therefore argued that the entire stop was reasonable: Struble had probable cause to pull Rodriguez over for the traffic violation, and once he observed the behavior of the occupants, he had a reasonable suspicion of a drug crime that justified the continuing detention. Notably, Justice Kennedy refused to join this portion of the dissents, believing instead (along with the majority) that the question of reasonable suspicion should be taken up on remand.
Next, in United States v. Wong (13-1074 and 13-7075), the Court addressed the limitations periods established by the Federal Tort Claims Act ("FTCA"). To bring a claim against the United States under the FTCA, a claimant must meet two deadlines: The claim must be presented to the appropriate federal agency within two years after it accrues, and it must be brought to federal court within six months of agency action on the claim. If those time limits are not met, the claim "shall be forever barred." In a 5-4 opinion, the Court found that both limitations periods are subject to equitable tolling.
The decision addressed two cases. In the first, Kwai Fun Wong claimed she had been falsely imprisoned by the Immigration and Naturalization Services ("INS"). She brought a timely claim before the INS, and also filed suit in federal court. Wong moved to amend her federal suit to include her FTCA claim within six months of the agency's denial, but the district court did not grant her motion until after the FTCA's six-month deadline expired. In the second case, Andrew Booth died during a car accident after crashing through a highway median and into oncoming traffic. His estate filed a lawsuit against Arizona and the contractor that built the highway median. Several years later, the estate attempted to add a claim against the Federal Highway Administration, alleging newly discovered evidence that the Federal Highway Administration approved the barrier even though it knew it was not tested correctly. In both cases, the Ninth Circuit held that the limitations period could be equitably tolled in light of the circumstances.
Leading the majority, Justice Kagan began with an analysis of Irwin v. Department of Veterans Affairs (1990), where the Court held that suits against the United States are subject to a rebuttable presumption of equitable tolling. The Government argued that Congress had rebutted the presumption here by using language making the FTCA's statute of limitations jurisdictional. The Court disagreed, finding nothing in the statute's text, context or legislative history showing that Congress intended the FTCA's limitations periods to be jurisdictional. Although the FTCA provides that suits "shall be forever barred" if its deadlines are not met, the Court found this phrase "utterly unremarkable." Many contemporaneous statues use the same language, and the Court had previously interpreted some (but not all) of those statute as subject to equitable tolling. In view of its holding, the Court also declined the Government's request to hold that all statutes governing claims against the United States passed around the same time as the FTCA have jurisdictional statutes of limitations. That, she wrote, was directly contrary to Irwin.
Justice Alito, joined by the Chief, Scalia, and Alito, wrote a lengthy dissent based on the FTCA's context and legislative history. Justice Alito focused on four words from the FTCA: "shall be forever barred." This phrase, according to Alito "is not generally understood to mean ‘should be allowed sometimes.'" Prior to the FTCA's enactment in 1946, courts had repeatedly held that these terms were jurisdictional. Indeed, Congress had rejected numerous bills proposed prior to the FTCA with explicit equitable tolling provisions. At the very least, even if Congress had not meant for the FTCA's limitations periods to be jurisdictional, it surely meant for them to be exempt from equitable tolling. Justice Alito was unpersuaded by the majority's references to Irwin, writing "it is beyond me how Irwin's judge-made presumption announced in 1990 can trump the obvious meaning of a statute enacted many decades earlier." The pot-shots at Irwin did not end there—Justice Alito would have dispensed with addressing that case in the first place, on the grounds that Irwin's presumption in favor of equitable tolling should only come into play if the statute's limitations periods are not jurisdictional. Having found that they are, Justice Alito wrote, the analysis should end: The equitable tolling doctrine dos not apply to the FTCA.
Turning from equitable tolling to preemption, in Oneok, Inc. v. Learjet, Inc. (13-271), the Court considered when the federal Natural Gas Act preempts state antitrust suits directed at behavior that affects both federally regulated wholesale natural gas prices and non-federally regulated retail natural gas prices. The natural gas industry has traditionally been divided into three categories: producers, interstate wholesalers that transport natural gas through pipelines, and local distributors that deliver the gas to retail customers. The Natural Gas Act ("NGA") gives the Federal Energy Regulatory Commission ("FERC") the power to regulate this middle link in the chain, with the first and last phases left to the states. But through deregulation, large-volume consumers of gas, such as manufacturers and hospitals, have increasingly purchased gas directly from the interstate pipelines, cutting out the local distributors. In 2003, FERC discovered that some pipeline companies had engaged in market manipulation to affect the price of gas listed on natural-gas indices, which had an obvious effect on wholesale prices, so FERC adopted regulations to bar these practices. But these same indices were used by large-volume consumers to fix the price of gas in their contracts with the pipelines. Several of these consumers brought suit under their states' antitrust laws, and their actions were consolidated in the District of Nevada. The District Court granted summary judgment to the pipelines, concluding that the anticompetitive behavior targeted by the suits (namely, market manipulation of the indices) affected not only the non-federally regulated direct sales at issue in the suits, but also federally regulated wholesale rates, which fall within FERC's exclusive jurisdiction. But the Ninth Circuit reversed, because the suits sought damages only for excessively high retail natural-gas prices; any effect these suits might have on wholesale rates could not preempt their suits.
Justice Breyer, writing for seven, affirmed. Importantly, both the pipelines and the United States, which filed an amicus brief in support of the pipelines, relied only on field preemption, contending that because FERC had the legal authority under the NGA to regulate this anticompetitive activity (since it affected wholesale prices), state law claims were preempted, regardless of whether these claims targeted retail or wholesale sales. The Court therefore focused on the field preempted by the NGA, which the majority saw as carefully limited so as not to invade the states' traditional authority to regulate the retail sale of natural gas. Where a state law could affect sales both within FERC's jurisdiction (i.e., wholesale sales) and those outside of it (i.e., retail sales), a court should only find the law preempted where the law, regulation, or claim targeted wholesale sales; where, as here, it was targeted only at retail sales, the suit could proceed. The Court recognized that the application of state antitrust laws to the market manipulation at issue could possibly conflict with FERC's own regulations directed at this manipulation, but that issue was better resolved through a conflict preemption analysis as the suit unfolded. Justice Thomas joined most of the majority opinion but wrote separately to ponder whether the Court's preemption case law was constitutionally sound—an issue he did not reach because neither party raised it.
Justice Scalia, joined by the Chief, dissented. In their view, the NGA preempted the regulation of certain activity. If that activity fell within FERC's jurisdiction to regulate, then states were preempted from regulating it as well. Since the NGA empowered FERC to regulate practices affecting wholesale rates—and the market manipulation at issue was clearly an example of such a practice—FERC alone had the authority to regulate, preempting the plaintiffs' state-law claims. Thus, for the dissent, it was irrelevant that the plaintiffs' suits only targeted retail sales, since the market manipulation on which their claims were based was within FERC's authority to regulate.
The case could have implications for field preemption generally, particularly where state laws of general applicability (such as blue sky laws) affect industries that are partially federally regulated. At the same time, the NGA and the industry regulated by it are idiosyncratic, and the Court's opinion was based almost entirely on prior NGA preemption cases. Time will tell, then, whether the case affects field preemption analysis more generally.
Finally, in Armstrong v. Exceptional Child Center, Inc. (14-15), the Court took one more arrow out of the quiver of health care providers attempting to challenge the reasonableness of Medicaid rates. Medicaid is a partnership between federal and state governments. It is jointly funded, but each state administers its own state plan and sets the rates paid for Medicaid services. Providers often complain that the rates established by the states are inadequate and, indeed, often well below providers' costs. Section (30)(A) of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), requires that states set Medicaid rates sufficient to "assure that payments are consistent with . . . quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." Section 30(A) has been a key weapon for providers attempting to challenge inadequate Medicaid rates.
In Armstrong, a group of supported living service providers argued that Idaho violated Section 30(A) by reimbursing them at artificially low rates for purely budgetary reasons. Idaho had developed a new reimbursement system that would have substantially increased rates to these providers, but did not implement the system because Idaho's legislature failed to allocate sufficient funds. The District Court granted summary judgment in favor of the providers, ruling that the rates were unlawful because they bore no relationship to the providers' costs. The Ninth Circuit affirmed, holding that the providers could sue for injunctive relief under the Supremacy Clause to bar Idaho's payment system because it conflicted with the federal mandate set out in Section 30(A). A deeply divided Supreme Court reversed.
Led by Justice Scalia, the majority explained that the Supremacy Clause only "instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so." While the majority acknowledged that the Court has sometimes enjoined enforcement of state laws that conflict with federal law, those cases do not demonstrate that the Supremacy Clause creates a cause of action for its violation. Rather, those cases were decided under the Court's equitable power to "enjoin illegal executive action." This power, however, can be cabined by Congress explicitly or implicitly. And, in the majority's view, Section 30(A) "implicitly precludes private enforcement," for two reasons. First, the Medicaid Act provides a specific enforcement mechanism: it vests the Centers for Medicare and Medicaid Services ("CMS") with the authority to withhold funds if a state fails to comply with the requirements of the Medicaid Act. While the express provision of one method of enforcement may not end the matter, the statute also vests broad discretion in the states to set rates subject only to the supervision of CMS. Section 30(A)'s language also is broad and vague. This kind of broad discretion is well-suited to agency action, requiring experience, uniformity, consultation and expertise. It is ill-suited to judicial intervention. For the majority, the statute's "judgment-laden standard" made sense if Congress intended CMS alone to enforce it.
Justice Sotomayor penned a vigorous dissent, joined by Justices Kennedy, Ginsburg and Kagan. While the dissent agreed with the majority that there is no such thing as a Supremacy Clause cause of action, they saw no intent by Congress to restrict the Court's equitable authority to enforce federal law by enjoining state plans that conflict with Section 30(A). The Court has generally found such an intent only where Congress expressly forbids enforcement or provides a detailed alternative remedial scheme. Here, there is no language forbidding enforcement and Congress's provision of a blunt enforcement mechanism to CMS—which even CMS indicated was inadequate—did not establish an intent to foreclose equitable judicial relief.
Justice Breyer concurred in most of the majority's opinion but wrote separately, primarily to point out that all hope is not lost for providers. Ever the pragmatist, Justice Breyer explained that there remain federal enforcement mechanisms available to providers. First, providers can point out the problems with proposed state plans to CMS and CMS can use its authority to deny such plans or withhold funds. If CMS refuses to enforce the law, providers can ask CMS to promulgate or modify its rules, thus imposing stricter guidance on the states. If CMS refuses, a provider can challenge the agency's action as arbitrary and capricious. A provider may also be able to challenge CMS's approval of a state plan containing unacceptable rates as arbitrary and capricious under the Administrative Procedure Act ("APA"). While providers may face an uphill fight in light of the deferential standard of review, Justice Breyer believed that "if that is so, it is because Congress decided to vest broad discretion in [CMS] to interpret and enforce § 30(A)."
For those of you who've made it this far, we've got one more treat: new cert grants!
Spokeo, Inc. v. Robins (13-1339) asks whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
Green v. Donahoe (14-613) asks the Court to settle a circuit split over whether the filing period for a constructive discharge claim under federal employment discrimination law begins to run when an employee resigns, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation.
It's the last week of argument at the Court—and a big one—with arguments tomorrow in Obergefell v. Hodges (14-556), the consolidated gay-marriage cases. We'll bring you that update in late June, presumably, but we'll be checking in frequently in the interim, as we enter the frenetic last weeks of the term.
Thanks, as always, for reading.
Kim & Tadhg