November 27, 2021

Volume XI, Number 331


November 24, 2021

Subscribe to Latest Legal News and Analysis

Supreme Court Update: Tanzin v. Tanvir (No. 19-71); Carney v. Adams (No. 19-309); United States v. Briggs (No. 19-108); Rutledge v. Pharmaceutical Care Management Association (No. 18-540)

Yesterday The Nine released their first opinions in argued cases this term—a whopping four of them, all unanimous (meaning 8-0, with Justice Barrett on the sidelines).

First up, in Tanzin v. Tanvir (No. 19-71), the Court held that the Religious Freedom Restoration Act of 1993 (RFRA) permits plaintiffs to obtain money damages from federal officials in their individual capacities. RFRA, of course, is the statute enacted to undo the Supreme Court’s decision in Employment Division v. Smith (1990), which held that the First Amendment permits neutral, generally applicable laws that burden or prohibit free exercise even without a compelling governmental interest. RFRA essentially restored the pre-Smith strict-scrutiny test for claims that a person’s religious exercise has been substantially burdened by the government. Of note here, RFRA provides that such a person may “obtain appropriate relief against a government,” which is defined to include an “official (or other person acting under color of law) of the United States.” The question in Tanzin was whether “appropriate relief” includes money damages.

Respondent Muhammad Tanvir, a practicing Muslim, alleged that FBI agents (including Petitioner Tanzin) placed him on the Government’s No Fly List in retaliation for his refusal to act as an informant against his religious community. He sued the agents in their official capacities, seeking removal from the No Fly List, but also sought money damages from the agents in their individual capacities. After the Department of Homeland Security removed Tanvir from the No Fly List (thus mooting his claims for injunctive relief), the District Court dismissed his damages claims, holding that RFRA does not permit monetary relief. The Second Circuit reversed, holding that RFRA’s remedies provision, combined with its broad definition of “Government,” authorizes monetary relief against federal officials in their individual capacities.

The Supreme Court unanimously affirmed (with Justice Barrett on the sideline). Writing for the Court, Justice Thomas began with the observation that RFRA plainly permits suits against federal officials in their individual capacities. The statutory definition of “a government” supplants the ordinary meaning of “government” with a different definition that includes any “official . . . of the United States.” Turning to the phrase “appropriate relief,” Justice Thomas concluded that the term is “context dependent.” In the context of suits against government officials, damages have long been awarded as appropriate relief and—though money damages are often limited today—they nevertheless remain a form of “appropriate relief.” Most notably, money damages have always been available against state officials under 42 U.S.C. 1983, which includes language (“under color of law”) similar to RFRA’s. While the Government appeared to argue for a policy-based presumption against damages in individual-capacity suits, Justice Thomas stressed that the appropriate venue for such an argument was Congress. Accordingly, the Court held that RFRA permits litigants to seek and obtain money damages against federal officials in their individual capacities, and therefore affirmed. (It noted, however, that such officials would be entitled to assert qualified immunity as a defense to claims for money damages, just as they can in the 1983 context.)

Next up is Carney v. Adams (No. 19-309), a case challenging two provisions of the Delaware constitution dealing with the composition of its major courts. As the litigators out there probably know, Delaware’s court system is perhaps the most well-respected in the country. That stems (at least according to Delaware) in part from the partisan-balance provisions of the Delaware constitution. One of those provisions mandates that the members of one political party cannot comprise more than a “bare majority” of the members of any one court. And a related provision requires that the remaining members of each court come from “the other major political party.” These provisions ensure partisan balance and (at least according to Delaware) avoid the highly politicized courts found in many other states.

James Adams, a lawyer, was a (recently) registered political independent. The two constitutional provisions discussed above combined to prevent him from ever being nominated or confirmed to one of Delaware’s major courts without joining one of the two major parties. He sued, alleging this violated his First Amendment right to freedom of association by essentially requiring him to register (and associate) with a party he did not want to join. The lower courts concluded he had standing, and they then proceeded to find these constitutional provisions in violation of the federal constitution (at least as applied to some courts for complicated reasons we don’t need to explain). The Court granted certiorari.

Following argument, court watchers were eager to see how the Court might resolve the novel and difficult First Amendment questions raised by the case. Among other pickles, Adams seemed to have a much better argument for attacking the “major party” provision, because only that provision really prevented him from being appointed to a court. But that provision only existed to give teeth to the “bare majority” provision, because the bare majority provision alone could easily be thwarted by governors appointing independents more closely allied with one party than the other (a category that likely described Adams himself).

Answering those questions must wait for another day, however, because Justice Breyer, writing for a unanimous Court, concluded that Adams lacked standing. If you remember your basic standing principles, you probably recall that standing requires an “injury in fact’” that must be “concrete and particularized” as well as “actual or imminent.” What was Adams’s injury here? Well, he said he wanted to be a judge. But just how bad did he want that? Surveying the summary judgment record, the only evidence that Adams had ever taken any real steps to try to become a judge were statements in his deposition, where he pledged he “would seriously consider for and apply for any judicial position for which he feels he is qualified.” That might be enough in some cases. But here, those statements had to be taken with more than a grain of salt. For years, Adams had been a registered Democrat, but despite being eligible to apply for a judgeship, he had never done so. Moreover, there was pretty strong evidence that Adams was basically retired from the practice of law and that he had only switched his party registration to independent when a law review article suggested it might be fun to be a plaintiff in a suit challenging the constitutionality of these two provisions.

These and other facts showed that Adams had just a “generalized grievance” rather than a “concrete and particularized” injury in fact. He thought some provisions of the Delaware constitution were unconstitutional. And though they didn’t really affect him, the stench of unconstitutionality annoyed him. But standing requires a bit more evidence that a plaintiff was really being foreclosed from something they truly wanted. Thus until a plaintiff comes along with a bit more of a concrete interest in being a judge, Delaware’s constitution remains in force. 

Next, in United States v. Briggs (No. 19-108), the Court reversed a Court of Appeals for the Armed Forces (CAAF) judgment striking down the rape convictions of three military service members on statute of limitations grounds.

Article 43(a) of the Uniform Code of Military Justice (UCMJ) provides that any offense “punishable by death” can be tried and punished “at any time without limitation.” From 1986 to 2006 (including in 1998, when Respondent Michael Riggs was convicted of rape), the UCMJ provided that rape could be “punished by death.” But the Supreme Court had already held, in Coker v. Georgia (1977), that the Eighth Amendment forbids capital punishment for the rape of an adult woman. Because the Eighth Amendment precluded his rape conviction from being “punishable by death,” Briggs argued that Article 43(a)’s open-ended statute of limitations should not apply. The CAAF agreed, concluding that the phrase “punishable by death” in Article 43(a) meant “capable of punishment by death when all applicable law is taken into account.” And since Coker was an “applicable law,” the CAAF held that the statute of limitations for rape of an adult woman was not governed by Article 43(a), and was instead subject to the five-year statute of limitations for non-capital offenses.

The Supreme Court unanimously reversed. Though he recognized that “there are reasonable arguments on both sides,” Justice Alito concluded that the phrase “punishable by death” is a term of art that is defined by the penalty provisions of the UCMJ. Justice Alito looked to the context of the larger statutory scheme of the UCMJ, finding that “for at least three reasons,” the context of the phrase “punishable by death” weighs heavily in favor of an unlimited statute of limitations. First, the UCMJ itself—and not external bodies of law—are the most natural reference point for defining “punishable by law.” And, under the UCMJ, offenses “punishable by death” include rape. Justice Alito looked next to the purpose of statutes of limitations more generally: to provide clarity. Justice Alito concluded that adopting an interpretation of “punishable by death” that turns on “all applicable law” would mean that Congress enacted a statute of limitations that “no one could have understood with any real confidence until important and novel legal question,” like whether Coker applies in the military context, “were resolved by this Court.” In Alito’s view, Congress was not likely to have chosen such a convoluted limitations provision. Finally, he noted that Congress’s considerations in setting a limitations period differ significantly from the Court’s in an Eighth Amendment analysis. Thus, the Court held, it is unlikely that Congress intended to tie the UCMJ’s statute of limitations to judicial interpretations of the Eighth Amendment. In short, the Court was convinced that “punishable by death is a term of art” defined by provisions of the UCMJ under which respondents’ prosecutions were timely.

Justice Gorsuch concurred in the judgment, but wrote separately to express his continuing belief that the Court lacks jurisdiction to hear appeals directly from the CAAF.

Finally, Rutledge v. Pharmaceutical Care Management Association (No. 18-540) answered the question on everybody’s minds: Does ERISA preempt state laws regulating the price at which pharmacy benefit managers reimburse pharmacies for drugs covered by prescription-drug plans? Writing for a unanimous Court, Justice Sotomayor said no. For most people, that’s probably all you need to know. But if you want to delve into the details of ERISA preemption, we aim to bore.

All kidding to ERISA-heads aside, the Arkansas provisions at issue in Rutledge are actually fairly important and common. Pharmacy benefit managers (PBMs) serve as intermediaries between prescription-drug plans and the pharmacies that beneficiaries use. Basically, when you visit a pharmacy to purchase a drug, the pharmacy verifies with your PBM whether the drug is covered and handles the behind-the-scenes details of reimbursing the pharmacy. But PBMs negotiate with both pharmacies and insurers regarding the amounts paid for each drug, often negotiating higher prices from insurers than they pay to pharmacies (a difference that covers their cost and hopefully provides a profit). Concerned that PBMs had too much market power, which harmed small (particularly rural and independent) pharmacies, Arkansas enacted legislation to regulate PBMs’ reimbursement rates in various ways. Though the details differ, quite a few states have enacted similar schemes. A PBM trade association sued, arguing Arkansas’s law was preempted by ERISA. The lower courts agreed. The Court soon thereafter granted cert.

Writing for the Court, Justice Sotomayor began with the basics of ERISA preemption. It preempts “any and all state laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). Because ERISA was enacted to ensure that employee benefits plans would be subject to a uniform body of benefits law, the Court has traditionally viewed it as concerned with preempting laws that require plan providers to structure their benefit plans in particular ways, like mandating payment of specific benefits, or that bind plan administrators to specific rules for determining beneficiary status. State laws may also be preempted if they effectively force an ERISA plan to adopt a certain scheme of substantive coverage. Taking all this together, a state law is preempted if it “governs a central matter of plan administration or interferes with nationally uniform plan administration.” By contrast, ERISA does not preempt state laws that simply increase costs or alter the incentive for ERISA plans without forcing them to adopt a particular coverage scheme.

So which of these buckets did Arkansas’s law fall into? That question was all but answered by the Court’s prior decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. (1995), where the Court upheld a New York law that imposed a surcharge on hospital rates for patients insured by companies other than Blue Cross/Blue Shield. While that law gave ERISA plans a strong incentive to choose Blue Cross/Blue Shield plans, that sort of indirect economic influence did not require plan administrators to adopt a particular coverage scheme or prevent them from providing a uniform interstate benefit package.

Like the law in Travelers, the Arkansas PBM statute was simply a form of cost regulation. Sure, it might increase the costs for PBMs, which might pass those costs on to ERISA plans, which might result in prescription-drug benefits costing more in Arkansas than elsewhere. But the point of ERISA was not to ensure that costs were uniform. Nor was the economic effect of the law so strong that it effectively dictated what coverage plans must provide. The Court thus reversed the lower courts’ judgment, allowing Arkansas’s statute (and presumably other states’ similar laws) to remain in effect. (Justice Thomas, as he is fond of doing, separately concurred, agreeing that the majority correctly applied the Court’s pre-emption precedents while calling for the Court to revisit those decisions.)

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume X, Number 347

About this Author

Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

David Roth Litigation lawyer Wiggin Dana

David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...