Egbert v. Boule

Issues

Does a plaintiff have a Bivens implied right of action against a federal officer under either the First Amendment or under the Fourth Amendment when the officer is engaged in immigration enforcement functions?


This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations.

Questions as Framed for the Court by the Parties

1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

Robert Boule is the owner of a bed and breakfast in Blaine, Washington. Boule v. Egbert at 1312. Boule’s property directly adjoins the United States-Canada border. Id. In March 2014, Boule encountered Erik Egbert, a Customs and Border Protection (“CBP”) agent. Id. Egbert asked Boule about guests staying at Boule’s inn.

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Arizona v. City and County of San Francisco, California

Issues

May an interested state permissibly intervene to defend an immigration rule in court after the United States ceases to defend it and announces that a court ruling vacating the immigration rule will become effective nationwide?

 

This case asks the Supreme Court to consider whether states should be permitted to intervene to defend a rule when the United States ceases to defend it. Petitioner Arizona argues that the States fulfilled all the requirements for intervention of right and permissive intervention, and, therefore, should be permitted to intervene. Respondent San Francisco counters that the circumstances in this case do not justify intervention of right, and that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. The outcome of this case will impact government rulemaking as well as governmental and judicial resources.

Questions as Framed for the Court by the Parties

Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.

Under federal immigration law, 8 U.S.C.

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Ysleta del Sur Pueblo v. Texas

Issues

Did the Fifth Circuit correctly interpret the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act to subject the Ysleta del Sur Pueblo to all Texas gaming regulations?

 

This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court's precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty.

Questions as Framed for the Court by the Parties

Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on their lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the Fifth Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.

The Ysleta del Sur Pueblo (“the Pueblo” or “the Tribe”) are a federally recognized Indian nation in Texas, with its 100-acre reservation near El Paso, Texas. Brief for Petitioners, Ysleta del Sur Pueblo at 5. In the 1980s, the Pueblo sought to obtain federal trust status from the federal government.

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Denezpi v. United States

Issues

Does the Double Jeopardy Clause bar the prosecution of a crime in a federal district court when the defendant was previously convicted for the same incident in a Court of Indian Offenses?

This case asks the Supreme Court to decide whether prosecution of the same conduct, first in a Court of Indian Offenses (“CFR court”), a federally-constituted Article I trial court with jurisdiction over cases arising on Indian reservations, and then in a federal court, is permissible under the dual sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment. Petitioner Merle Denezpi argues that his prosecution in a federal district court following his conviction in the Ute Mountain Ute CFR court violates the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive prosecutions of the same offense, because the CFR court derives some of its judicial power from the federal sovereignty of the United States government. Respondent the United States counters that Denezpi’s crime falls within the dual sovereignty exception to the Double Jeopardy Clause because the Ute Mountain Ute CFR court is an extension of tribal, not federal, sovereignty and, as Denezpi’s conduct violated both tribal and federal law, he can be prosecuted successively under each law by the two separate sovereigns. The outcome of this case has implications for tribal sovereignty and public safety in tribal communities.

Questions as Framed for the Court by the Parties

Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.

In the 19th century, in response to the growing federal policy of assimilating Native American tribes into Anglo-American society, Congress created special Article I courts across the country known as Courts of Indian Offenses. United States v. Denezpi, at 782.

Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

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Cassirer v. Thyssen-Bornemisza Collection Foundation

Issues

Must a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act apply the forum state’s choice-of-law rules or federal common law to determine what substantive law governs the claims at issue?

This case asks the Supreme Court to consider whether a federal court should apply the forum state's choice-of-law rules or federal common law in cases brought against a foreign state under the Foreign Sovereign Immunities Act (“FSIA”). Petitioner David Cassirer contends that the forum state's choice-of-law rules should apply, arguing that Congress intends state law to apply so that results in cases against a foreign national and against a foreign state are the same. Thus, Cassirer argues that, in this case, California substantive law should apply. In response, Respondent Thyssen-Bornemisza Collection Foundation (“TBCF”) contends that federal common law should apply because jurisdiction under FSIA is more analogous to federal question jurisdiction rather than diversity jurisdiction. In this case, TBCF argues that Spanish law should govern. This case has important policy implications for foreign relations, international justice, and the separation of powers.

Questions as Framed for the Court by the Parties

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice of law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

In Nazi Germany, in 1939, Lilly Neubauer—David Cassirer’s great-grandmother—was forced to “sell” a Pissarro painting to a Berlin art dealer. Cassirer v. Thyssen-Bornemisza Collection Foundation  at 6. The Nazi government demanded that Lilly sell the painting under threat of imprisoning her in Germany. Id. Both parties and the district court have concluded that the painting was forcibly taken from Lilly.

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Concepcion v. United States

Issues

Whether drug offenders that are eligible for a sentencing reduction based on Section 404(b) of the First Step Act are entitled to have intervening legal factors and developments considered at their resentencing?

This case asks the Supreme Court to determine whether the First Step Act requires or merely allows courts to consider post-sentencing developments during First Step Act sentence modifications. Petitioner Carlos Concepcion argues that the First Step Act requires courts to consider post-sentencing legal and factual developments during sentence modifications. Respondent United States counters that the First Step Act grants courts the discretion to consider post-sentencing developments during sentence modifications. The outcome of this case will impact the sentencing of many low-level drug offenders as well as a court’s authority over resentencing under Section 404 of the First Step Act.

Questions as Framed for the Court by the Parties

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments?

In 2006, Petitioner Carlos Concepcion (“Concepcion”) was arrested on felony drug charges. Concepcion v. United States at 283. Federal investigators alleged Concepcion was involved in the illegal sale of at least 27.5 grams of crack cocaine and 186.34 grams of powdered cocaine. Id. In 2008, Petitioner Carlos Concepcion pled guilty to one count of possessing with intent to distribute or distributing at least 5 grams of crack cocaine. Id.

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Federal Election Commission v. Ted Cruz for Senate

Issues

Does Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which imposes a $250,000 cap on the amount of post-election funds a campaign can use to reimburse a candidate’s personal loans, impermissibly burden a candidate’s First Amendment right to free speech; and does a party seeking to invalidate a regulation implemented pursuant to that statutory provision have standing to challenge the statute?

This case asks the Supreme Court to decide whether Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which bars a campaign from disbursing more than $250,000 in post-election contributions to refund a candidate’s personal loans, violates the First Amendment. The Federal Election Commission (“the FEC”) contends that Senator Cruz’s current inability to obtain full reimbursement for his loan was not caused by Section 304, and that Cruz therefore lacks standing to challenge Section 304. Senator Ted Cruz and Ted Cruz for Senate (collectively, “Ted Cruz”) counter that Section 304 directly injures them, and that the statute should be held unconstitutional under the First Amendment for unjustifiably deterring candidates from exercising their free speech right to contribute to their own campaigns. The outcome of this case has implications for litigants who must establish standing to challenge allegedly unconstitutional government action in the courts, and the constitutionality of limits on the use of post-election funds for loan-repayment.

Questions as Framed for the Court by the Parties

Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.

In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions through the Federal Election Campaign Act of 1971 (“FECA”). Ted Cruz for Senate v. Fed.

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Shurtleff v. City of Boston

Issues

Whether the City of Boston violated the First Amendment by denying a private party’s application to fly a Christian flag on a flagpole in front of Boston City Hall when the City had approved all 284 previous flag-raising applications; whether the flagpole is a designated public forum for the purposes of the First Amendment; and whether designating a private party’s flag in a public forum government speech inappropriately expands the definition of government speech.

In this case, the Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties.

Questions as Framed for the Court by the Parties

(1) Whether the United States Court of Appeals for the First Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers;

(2) whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and

(3) whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.

The City of Boston (“Boston”) owns and operates three flagpoles in City Hall Plaza, all of which stand conspicuously in front of the seat of its municipal government. Shurtleff v. City of Boston, at 82. The first flagpole flies the United States and POW/MIA flags, the second flies the Commonwealth of Massachusetts flag, and the third typically flies Boston’s flag. Id.

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Boechler, P.C. v. Commissioner of Internal Revenue

Issues

Is the 30-day deadline to file a petition for the Tax Court to review its prior determination classified as a jurisdictional requirement that adheres to the exact amount of days prescribed and is not subject to certain fair exceptions or as a claim-processing rule subject to pausing the running time period for just considerations?

This case asks the Supreme Court to determine whether a 30-day filing deadline serves as a flexible procedural rule or a limitation on the Tax Court’s jurisdiction. Petitioner Boechler argues that the filing deadline is a procedural rule that is subject to the remedy of equitable tolling to effectively grant extensions in appropriate circumstances. Respondent Commissioner of Internal Revenue counters that the 30-day filing deadline proscribes a jurisdictional prerequisite, limiting the Tax Court’s jurisdiction to only those petitions that were timely filed within the 30-day period. The outcome of this case has important implications for the treatment of tax law, interpretation of filing deadlines within interconnected statutory schemes, and disparate outcomes for low-income taxpayers.

Questions as Framed for the Court by the Parties

Whether the deadline established by 26 U.S.C. 6330(d)(1) for seeking Tax Court review of a determination of the Internal Revenue Service Independent Office of Appeals following a collection due process hearing is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

In June 2015, the Internal Revenue Service (IRS) notified a small North Dakota law firm, Boechler, P.C. (“Boechler”), about missing tax document submissions. Boechler, P.C. v. Commissioner of Internal Revenue, at 762.

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Gallardo v. Marstiller

Issues

Under the federal Medicaid Act, does a Medicaid program have authority to recover reimbursement for its payment of a beneficiary’s medical expenses by taking funds from a legal recovery which compensates for future medical expenses for that beneficiary?

This case asks the Supreme Court to determine whether, pursuant to the federal Medicaid Act, a state Medicaid program may recover reimbursement for its payment of a beneficiary’s past medical expenses by allocating funds from a portion of the participant’s settlement that compensates for future medical expenses. Florida law requires Medicaid beneficiaries to assign any rights to reimbursement for medical care from third parties to the state. In this case, Gianinna Gallardo contends that a state cannot collect reimbursement for future medical expenses from a Medicaid beneficiary’s settlement against a third party. In response, Simone Marstiller, Secretary of the Florida Agency for Health Care Administration, counters that the state may recover reimbursement for both past and future medical expenses because the Florida statute does not explicitly bar recovery for future medical care. The outcome of this case will affect how the burden of Medicaid costs is allocated between individuals and the state and federal governments.

Questions as Framed for the Court by the Parties

Whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical expenses.

In 2008, Gianinna Gallardo, a 13-year-old student, was hit by a truck after exiting her school bus. Brief for Petitioner, Gianinna Gallardo, at 16. She sustained severe physical injuries and remains in a continual vegetative state. Id. Since Ms.

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