Introduction
"Is everything sad going to come untrue? What's happened to the world?"1 So asked the hobbit Sam Gamgee of the wizard Gandalf in J.R.R. Tolkien's The Lord of the Rings, upon awakening in Ithilien to find that his quest had not been a dream and that the One Ring was destroyed.
Those attuned to what Chief Justice John Roberts has called "the danger posed by the growing power of the administrative state"2 may now be asking similar questions. Following a dramatic Term in which the Supreme Court "unmade" Chevron deference and several other administrative law doctrines along with it, some may hope (or fear) that the world is changing.
The upcoming Term may provide clarity. Already, the Court has granted several cases that involve federal administrative agency interpretations across a wide array of federal statutory schemes covering topics including guns, health care, and the environment. These and other grants still to come could elaborate on passages in Loper Bright Enterprises v. Raimondo,3 where the Court appeared to temper Chevron's end with nods toward statute-by-statute grants of discretion and "respect" for administrative interpretations.
The Court will of course also take up many other issues. In the two grants that so far appear most likely to generate headlines, the Court will consider an equal protection challenge to a Tennessee statute that limits sex-transition treatments for minors and a First Amendment challenge to a Texas statute that restricts minors' access to commercial pornographic websites by requiring these websites to verify the age of their visitors.
Throughout these and other cases, the Court will confront several persistent issues. The Texas and Tennessee cases, for example, each implicate the Court's often stated, but seemingly seldom followed, preference for as-applied constitutional challenges. And in its agency cases, the Court may again confront issues about the scope of available remedies that have troubled lower courts and spurred separate writings from several Justices.
Suits against State Officials
The Court kicks off its Term with a pair of cases involving 42 U.S.C. §§ 1983 and 1988. Sections 1983 and 1988 are the most important statutes authorizing suits against state officials for violations of the federal Constitution and other laws of the United States. Enacted in 1871 to combat the influence of the Ku Klux Klan in state governments across the South, Section 1983 provides a remedy against any person who, acting under color of state law, subjects any other person "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."4 Section 1988, enacted later, allows federal courts to award attorney's fees to the "prevailing party" in these and certain other cases.5
In Williams v. Washington, the Supreme Court will decide whether exhaustion of state administrative remedies is required to bring claims under Section 1983 in state court. All agree that Section 1983 lacks a textual exhaustion requirement. And 40 years ago, in Patsy v. Board of Regents, the Supreme Court rejected a lower federal court's attempt to imply one.6 Nevertheless, the Alabama Supreme Court held last year that it could not compel the Alabama Department of Labor to adjudicate applications for unemployment benefits within the time frame mandated by a federal statute because the plaintiffs in that case had not exhausted mandatory administrative remedies.
The Alabama Supreme Court said that although Patsy had held that Section 1983 lacked an exhaustion requirement, that did not prevent state law from adding one. The court added that "even if" independent exhaustion requirements found in state law were preempted by Section 1983, "that preemption would at most allow the plaintiffs to bring their unexhausted claims in federal court."7
It seems unlikely that the Supreme Court will allow the Alabama decision to stand. The Alabama court did not discuss (and as the state's brief in opposition complains, the plaintiffs' state-court briefing did not cite) the Supreme Court's decision in Felder v. Casey. That decision, contrary to what the state court said, applied Patsy to find that Wisconsin's exhaustion requirement was preempted as to a suit in that state's courts.8 To be sure, Felder's reasoning could be characterized as purposivist: It said that because "Congress enacted § 1983 in response to the widespread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers," Congress could not also have "contemplated that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries."9 But that reasoning also accords with the absence of any exhaustion requirement in the text of Section 1983. And as the Court stated recently, "[t]he fact that multiple grounds support a result is usually regarded as a strength, not a weakness."10
Turning from the ability to bring a Section 1983 case to the incentive to do so, the Court in Lackey v. Stinnie will decide whether a plaintiff who obtains a preliminary injunction is a "prevailing party" entitled to attorney's fees under Section 1988 when there is no final ruling on the merits. In that case, the Virginia General Assembly repealed a state statute after a federal district judge held that it was likely unconstitutional. Virginia then tried to avoid paying attorney's fees by arguing that the preliminary injunction was not a final decision.
The en banc Fourth Circuit rejected Virginia's position. In a decision that joined "[e]very other circuit to consider the issue," the Fourth Circuit overturned its own prior precedent to hold that "a preliminary injunction may confer prevailing party status in appropriate circumstances."11 "Although many preliminary injunctions represent only 'a transient victory at the threshold of an action,'" the court said that "some provide enduring, merits-based relief" that entitles a plaintiff to status as a "prevailing party" under Section 1988.12
Virginia, obviously, has a different view. So does the United States. (Although the federal government cannot be sued under Section 1983, it is subject to fee shifting under the Equal Access to Justice Act and other statutes that employ the "prevailing party" language.13) In an amicus brief supporting Virginia, the Solicitor General argued that the lower threshold required to obtain preliminary relief and the potential for later reversal both indicate that a party who has obtained preliminary relief has not "prevailed" in the sense of the statute.14
Both sides cite a 2007 decision by the Supreme Court. In Sole v. Wyner, the Court held that a "plaintiff who secures a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against her" is not a "prevailing party" because she "has won a battle but lost the war."15 However, the Sole Court was careful to "express no view on" the issue that is now presented in Lackey: "[W]hether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees."16
Both views have something to recommend them. After all, a plaintiff who succeeds in obtaining a merits-based preliminary injunction seems to be a "prevailing party" as a practical matter. To be sure, where such relief is later reversed—as in Sole, where the district court eventually ruled against the plaintiffs after initially granting them preliminary relief—the plaintiff has not prevailed. But where such relief is not reversed and a further ruling can never happen because the case was mooted after the plaintiff obtained initial relief, the plaintiff appears to have accomplished what it intended. That is the situation in Lackey, where a district court held Virginia's law likely unconstitutional and Virginia mooted the case by removing the statute from the books.17
Against this interpretation, the Fourth Circuit dissenters argued that "prevailing party" is a term of art with a more limited meaning.18 The case will likely turn on how well that argument is developed in the merits briefs—the fact that states or the federal government would prefer not to pay attorney's fees after losing is certainly no reason to supplant the statutory text.
Suits against Federal Agencies
For its first post-Chevron Term, the Supreme Court has granted several cases that involve an agency's interpretation of a statute that it administers. In addition to providing an initial look at the course correction that the Court signaled in Loper Bright, 19 each case is important for the regulated community it affects. Also lurking behind some of these cases are cross-cutting issues affecting the scope of permissible remedies under the Administrative Procedure Act (APA) and other agency review statutes.
Start with Garland v. VanDerStok,20 which joins Lackey on the second day of argument and is otherwise known as the "ghost guns" case.21 Fresh off the Supreme Court's rejection of its bump stock rule,22 the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is defending a regulation that would require homemade guns to bear serial numbers. In the Fifth Circuit's estimation, the new regulation "flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority" in service of the agency's "public policy" goal.23
The statutory dispute appears straightforward. The Gun Control Act of 1968 imposes restrictions on a "firearm," a term it defines to include the "frame or receiver" of a weapon.24 ATF was concerned that some hobbyists were not subject to the Act's restrictions because they had purchased unfinished weapons parts kits and later made a frame or receiver themselves from the materials included in these kits. So ATF issued what it called "an updated, more comprehensive definition" of the terms "firearm" and "frame or receiver" that includes within those definition "unfinished" frames or receivers.25 The problem, as the Fifth Circuit saw it, was that the revised definition "states that the phrase 'frame or receiver' includes things that are admittedly not yet frames or receivers."26 "This confusion highlights ATF's attempt to stretch the [Gun Control Act's] language to fit modern understandings of firearms without the support of statutory text."27
The case has already been before the Supreme Court once via the emergency docket. Last August, the Court voted 5–4 to stay the district court's vacatur pending appellate review.28 In addition to defending its statutory interpretation, the government argued that the APA's instruction to "set aside" unlawful rules does not authorize what it (somewhat redundantly) called "nationwide vacatur."29
Justice Neil Gorsuch made a similar point in a different case,30 sparking a thoughtful response from Justice Brett Kavanaugh at the end of last Term that persuasively defended the practice.31 Now more muted, the anti-vacatur argument is still present in ATF's merits brief.32 VanDerStok may thus become a catalyst for more thinking from the Justices on the subject.
Next consider City and County of San Francisco v. EPA,33 also scheduled for the October sitting. There, the Court will decide whether the Clean Water Act authorizes the EPA to impose narrative limitations in National Pollutant Discharge Elimination System permits that subject permit holders to enforcement for violating water quality standards without identifying specific numeric limits to which their discharges must conform.34
The Ninth Circuit upheld the EPA's practice as consistent with the statute, pointing specifically to a 1994 agency policy that interprets the Clean Water Act not only to authorize but in fact to "require . . . narrative limitations when necessary to satisfy applicable" water quality standards.35 San Francisco, which holds a federal permit to discharge wastewater into the Pacific Ocean, argues that the EPA's narrative limitations are in conflict with the statute because they are indeterminate and because they premise liability on receiving water quality rather than on the nature or content of its own point source discharges.36
Footnotes
1. J.R.R. Tolkien, The Lord of the Rings 692 (Reset ed., HarperCollins 2021) (1954).
2. City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting).
3. 144 S. Ct. 2244, 2262 (2024).
4. 42 U.S.C. § 1983.
5. 42 U.S.C. § 1988(b).
6. Patsy v. Bd. of Regents, 457 U.S. 496 (1982).
7. Johnson v. Washington, No. SC-2022-0897, 2023 WL 4281620, at *4 (Ala. June 30, 2023), cert. granted sub. nom Williams v. Washington, 144 S. Ct. 679 (2024).
8. Felder v. Casey, 487 U.S. 131, 147 (1988).
9. Id. at 147.
10. Biden v. Nebraska, 143 S. Ct. 2355, 2375 n.9 (2023).
11. Stinnie v. Holcomb, 77 F.4th 200, 203 (4th Cir. 2023) (en banc); see id. at 209 (collecting cases); id. at 209 n.6 (explaining that among the courts of appeals, only "[t]he First Circuit has not yet opined on the issue"), cert. granted sub nom. Lackey v. Stinnie, 144 S. Ct. 1390 (2024).
12. Id. at 203.
13. See 28 U.S.C. § 2412(d); 5 U.S.C. § 504 et seq.
14. 42 U.S.C. § 1988(b). See also Brief of the United States as Amicus Curiae Supporting Petitioner at 8–10, Lackey v. Stinnie, No. 23-621 (U.S. June 27, 2024).
15. Sole v. Wyner, 551 U.S. 74, 86 (2007) (cleaned up).
16. Id.
17. Lest one conclude that this is a one-off situation, Georgia, the only other sovereign to file an amicus brief, similarly repealed a state law and tried to resist paying attorney's fees after a plaintiff obtained a preliminary injunction on constitutional grounds. See Common Cause/Georgia v. Billups, 554 F.3d 1340, 1355 (11th Cir. 2009).
18. See Stinnie, 77 F.4th at 220 (Quattlebaum, J., dissenting).
19. 144 S. Ct. at 2262. Loper Bright, as the readers of this article surely know, overturned Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).
20. 144 S. Ct. 1390 (2024) (order granting petition for certiorari).
21. See, e.g., Mark Sherman, Supreme Court Will Take Up Legal Fight over Ghost Guns, Firearms without Serial Numbers, Associated Press (Apr. 22, 2024), https://apnews.com/ article/supreme-court-ghost-guns-regulation-1a29729cf1bee46590d82ac46ab7b8f4.
22. See Garland v. Cargill, 602 U.S. 406 (2024).
23. VanDerStok v. Garland, 86 F.4th 179, 182 (5th Cir. 2023).
24. 18 U.S.C. § 921(a)(3)(C).
25. VanDerStok, 86 F.4th at 182–83 (quoting Definition of "Frame or Receiver" and Identification of Firearms, 87 Fed. Reg. 24652 (Apr. 26, 2022) (to be codified at 27 C.F.R. pts. 447, 478–79)).
26. Id. at 189–90.
27. Id. at 190.
28. Garland v. VanDerStok, 144 S. Ct. 44 (2023) (staying district court order).
29. Application for a Stay of the Judgment Entered by the United States District Court for the Northern District of Texas at 31–32, Garland v. VanDerStok, 144 S. Ct. 44 (2023) (No. 23A83) (July 5, 2023).
30. See United States v. Texas, 599 U.S. 670, 695 (2023) (Gorsuch, J., concurring) ("[The APA] does not say anything about 'vacating' agency action[.]").
31. See Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2462 (2024) (Kavanaugh, J., concurring) ("[T]he text and history of the APA, the longstanding and settled precedent adhering to that text and history, and the radical consequences for administrative law and individual liberty that would ensue if vacatur were suddenly no longer available" each show that "the APA authorizes vacatur of unlawful agency actions, including agency rules[.]"); see also United States v. Texas, 599 U.S. at 721 (Alito, J., dissenting) ("[T]he . . . argument . . . that the APA's 'set aside' language may not permit vacatur . . . would be a sea change in administrative law[.]").
32. Cf. Brief for the Petitioners at 27, Garland v. VanDerStok, No. 23-825 (U.S. June 25, 2024) ("If ATF ever sought to apply the Rule to a parts kit that could not readily be converted into a functional firearm, the affected parties would be free to challenge that action as beyond ATF's statutory authority. But the hypothetical possibility of such invalid applications does not justify relief in this facial, pre-enforcement challenge.").
33. No. 23-753 (U.S. May 28, 2024), 2024 U.S. LEXIS 2342 (granting petition for certiorari).
34. See Petition for Writ of Certiorari at i, City & Cnty. of San Franciso v. EPA (U.S. Jan. 8, 2024) (No. 23-753).
35. City & Cnty. of San Francisco v. EPA, 75 F.4th 1074, 1090 (9th Cir. 2023).
36. See Brief for Petitioner at 21, City & Cnty. of San Francisco v. EPA, No. 23-753 (U.S. July 19, 2024) (describing permit obligations as "hopelessly indeterminate") (quoting Sackett v. EPA, 598 U.S. 651, 681 (2023)); id. at 24–37 (arguing that "[t]he CWA does not authorize EPA to impose permit conditions that hold permitholders directly liable for the quality of receiving waters").
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