U.S. Supreme Court, Amina Bouarfa v. Alejandro Mayorkas, Secretary of Homeland Security, Docket No. 23-583

Judicial Review

 

Discretionary Agency Decisions

 

After Chevron Deference

 

Circuit Split

 

 

 

 

 

8 U.S.C. §1252(a)(2)(B)(ii) bars judicial review of decisions “made discretionary by legislation.” Kucana v. Holder, 558 U. S. 233, 246–247.

 

 

 

(…) Nor is it unreasonable to suggest that Congress created a system in which a sham-marriage determination is subject to judicial review when an agency denies a visa petition but not when the agency revokes a prior approval. That distinction “reflects Congress’ choice to provide reduced procedural protection for discretionary relief.” Patel v. Garland, 596 U. S. 328, 345.

 

 

(…) Because the presumption that administrative action is subject to judicial review may be overcome by “‘clear and convincing evidence’ of congressional intent to preclude judicial review,” Guerrero-Lasprilla v. Barr, 589 U. S. 221, 229, there is no need to resort to the presumption of reviewability where, as here, “the statute is clear,” Patel, 596 U. S., at 347.

 

 

The Secretary points to 8 U. S. C. §1155 as the source of the agency’s revocation authority; that provision states that the Secretary “may, at any time,” revoke approval of a visa petition “for what he deems to be good and sufficient cause.” The issue we address today is whether revocation under §1155 qualifies as a decision “in the discretion of” the Secretary such that it falls within the purview of a separate statute §1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. We hold that it does.

 

 

Through §1252(a)(2)(B), Congress stripped federal courts of jurisdiction to review two categories of discretionary agency decisions. First, Congress precluded review of “any judgment regarding the granting of relief under” five listed statutory provisions that empower the Attorney General to grant certain relief to noncitizens. §1252(a)(2)(B)(i). Second, in the provision at issue here, Congress barred review of “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary.” §1252(a)(2)(B)(ii).

 

 

We granted certiorari to resolve a question that has split the courts of appeals: Whether federal courts have jurisdiction to review the Secretary’s revocation of the agency’s prior approval of a visa petition.

 

 

It is clear on the face of §1155 that the revocation provision is a quintessential grant of discretion to the Secretary. Once again, that provision provides that the Secretary “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any visa petition.” §1155. As “this Court has ‘repeatedly observed,’” “‘the word “may” clearly connotes discretion.’” Biden v. Texas, 597 U. S. 785, 802 (2022) (quoting Opati v. Republic of Sudan, 590 U. S. 418, 428 (2020)). Moreover, here, Congress has in no way prescribed how that discretion must be exercised. There are no conditions that the Secretary must satisfy before he can revoke the agency’s approval; he may do so “at any time,” for whatever reason “he deems to be good and sufficient cause.” That broad grant of authority “fairly exudes deference” to the Secretary and is similar to other statutes that we have held “‘commit’” a decision “‘to agency discretion.’” Webster v. Doe, 486 U. S. 592, 600 (1988) (holding that a statute permitting the agency to terminate an employee whenever it “‘deems such termination necessary or advisable in the interests of the United States’” was discretionary).

 

 

That discretion is a two-way street. By granting the Secretary discretion to revoke the agency’s approval of visa petitions, Congress has also vested the Secretary with discretion to decline to revoke an approval the agency previously gave. So, if the Secretary determines that the agency’s approval of a visa petition was erroneous, he can revoke that approval—or he can let the error stand. As a general matter, then, this discretion may work to the benefit of visa-petition beneficiaries, since rather than tying the agency’s hands by forcing revocation, Congress created “room for mercy.” Patel v. Garland, 596 U. S. 328, 331 (2022).

 

 

Nor is it unreasonable, as Bouarfa protests, to suppose that Congress created a system in which a sham-marriage determination is reviewable if it is the reason for the agency’s denial of a petition, but not if it is the reason for the agency’s revocation. That distinction “reflects Congress’ choice to provide reduced procedural protection for discretionary relief.” Patel, 596 U. S., at 345. In the interest of finality, Congress vested the Secretary with the discretion to allow the agency’s mistakes to inure to the benefit of the noncitizen. At the same time, Congress did not want this discretion to open up a new source of litigation. Cf. Guerrero-Lasprilla v. Barr, 589 U. S. 221, 230 (2020) (observing Congress’s goal of “‘consolidating judicial review of immigration proceedings into one action’” (quoting INS v. St. Cyr, 533 U. S. 289, 313 (2001)). “The context in which” the agency makes the sham-marriage determination thus “explains the difference in protection afforded.” Patel, 596 U. S., at 345.

 

 

 

 

 

(U.S. Supreme Court, Dec. 10, 2024, Amina Bouarfa v. Alejandro Mayorkas, Secretary of Homeland Security, Docket No. 23-583, J. Jackson, Unanimous)

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Patent (reexamination): Inter partes review: Art. III Court: Seventh Amendment:

The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.

Over the last several decades, Congress has created administrative processes that authorize the PTO to reconsider and cancel patent claims that were wrongly issued. In 1980, Congress established “ex parte reexamination,” which still exists today. See Act To Amend the Patent and Trademark Laws, 35 U. S. C. §301 et seq. Ex parte re- examination permits “any person at any time” to “file a request for reexamination.” §302. If the Director determines that there is “a substantial new question of patent-ability” for “any claim of the patent,” the PTO can reexamine the patent. §§303(a), 304. The reexamination process follows the same procedures as the initial exami-nation. §305.

In 1999, Congress added a procedure called “inter partes reexamination.” See American Inventors Protection Act, §§4601–4608, 113 Stat. 1501A–567 to 1501A–572. Under this procedure, any person could file a request for reexamination. 35 U. S. C. §311(a) (2006 ed.). The Director would determine if the request raised “a substantial new question of patentability affecting any claim of the patent” and, if so, commence a reexamination. §§312(a), 313 (2006 ed.). The reexamination would follow the general procedures for initial examination, but would allow the third-party requester and the patent owner to participate in a limited manner by filing responses and replies. §§314(a), (b) (2006 ed.). Inter partes reexamination was phased out when the America Invents Act went into effect in 2012. See §6, 125 Stat. 299–305.

The America Invents Act replaced inter partes reexamination with inter partes review, the procedure at issue here. See id., at 299. Any person other than the patent owner can file a petition for inter partes review. 35 U. S. C. §311(a) (2012 ed.). The petition can request cancellation of “1 or more claims of a patent” on the grounds that the claim fails the novelty or nonobviousness standards for patentability. §311(b). The challenges must be made “only on the basis of prior art consisting of patents or printed publications.” Ibid. If a petition is filed, the patent owner has the right to file a preliminary response explaining why inter partes review should not be instituted. §313.

Once inter partes review is instituted, the Patent Trial and Appeal Board—an adjudicatory body within the PTO created to conduct inter partes review—examines the patent’s validity. See 35 U. S. C. §§6, 316(c).

A party dissatisfied with the Board’s decision can seek judicial review in the Court of Appeals for the Federal Circuit. §319.

Secondary authorities: Lemley, Why Do Juries Decide If Patents Are Valid? 99 Va. L. Rev. 1673, 1682, 1685–1686, and n. 52 (2013).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

La procédure dite "inter partes review" permet à un tiers, à des conditions limitées, de saisir le PTO d'une requête en reconsidération des revendications et en annulation partielle ou complète d'un brevet (35 U. S. C. §311(a) (2012 ed.)). Cette procédure n'est contraire ni à l'Art. III ni au Septième Amendement de la Constitution fédérale. Le tiers requérant peut invoquer que la solution technique n'est pas nouvelle, ou qu'elle est évidente. La décision rendue par le PTO peut être déférée devant la Cour d'appel pour le Circuit fédéral.

Une autre procédure, dite "ex parte reexamination" (35 U. S. C. §301 et seq.), permet également à un tiers de saisir le PTO d'une requête en reconsidération des revendications et en annulation partielle ou complète d'un brevet. La reconsidération suit les mêmes règles de procédure que celles applicables à l'examen initial.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Art. III Courts: Public-rights doctrine:

Article III vests the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” §1. Consequently, Congress cannot “confer the Government’s ‘judicial Power’ on entities outside Article III.” Stern v. Marshall, 564 U. S. 462, 484 (2011). When determining whether a proceeding involves an exercise of Article III judicial power, this Court’s precedents have distinguished between “public rights” and “private rights.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 6). Those precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts. See ibid.; Stern, supra, at 488–492.

This Court has not “definitively explained” the distinction between public and private rights, Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 69 (1982), and its precedents applying the public-rights doctrine have “not been entirely consistent,” Stern, 564 U. S., at 488. But this case does not require us to add to the “various formulations” of the public-rights doctrine. Ibid. Our precedents have recognized that the doctrine covers matters “which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U. S. 22, 50 (1932). In other words, the public-rights doctrine applies to matters “ ‘arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.’ ” Ibid. (quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 (1929)).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

Le Congrès peut attribuer compétence de décision à d'autres autorités que les cours de justice si des "droits publics" sont en jeu, en application de la "public-rights doctrine". Cette notion n'est pas clairement définie par la jurisprudence, mais on peut déduire de celle-ci qu'elle s'applique à des affaires qui surviennent entre le gouvernement et des tiers dans l'exécution de fonctions législatives ou exécutives, affaires qui, par leur nature, n'exigent pas une décision de justice.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Seventh Amendment: Jury trial: Art. III Court:
 

The Seventh Amendment preserves the “right of trial by jury” in “Suits at common law, where the value in controversy shall exceed twenty dollars.” This Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 53–54 (1989); accord, Atlas Roofing Co., at 450–455. No party challenges or attempts to distinguish those precedents. Thus, our rejection of Oil States’ Article III challenge also resolves its Seventh Amendment challenge. Because inter partes review is a matter that Congress can properly assign to the PTO, a jury is not necessary in these proceedings.

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

Le droit à voir sa cause jugée par un Jury, tel que prévu par le Septième Amendement de la Constitution fédérale, ne peut pas être invoqué dans les affaires dont le Congrès a valablement attribué la compétence à une autorité autre qu'une cour au sens de l'Art. III.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Gorsuch, dissenting

Judicial independence: Declaration of Independence: Art. III Court: Common law:

We sometimes take it for granted today that independent judges will hear our cases and controversies. But it wasn’t always so. Before the Revolution, colonial judges depended on the crown for their tenure and salary and often enough their decisions followed their interests. The problem was so serious that the founders cited it in their Declaration of Independence. Once free, the framers went to great lengths to guarantee a degree of judicial independence for future generations that they themselves had not experienced. Under the Constitution, judges “hold their Offices during good Behaviour” and their “Compensation . . . shall not be diminished during their Continuance in Office.” Art. III, §1. The framers knew that “a fixed provision” for judges’ financial support would help secure “the independence of the judges,” be-cause “a power over a man’s subsistence amounts to a power over his will.” The Federalist No. 79, p. 472 (C. Rossiter ed. 1961) (A. Hamilton). They were convinced, too, that “periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to the courts’ necessary independence.” The Federalist No. 78, at 471 (A. Hamilton).

“When a suit is made of the stuff of the traditional actions at common law tried by the courts at Westminster in 1789 . . . and is brought within the bounds of federal jurisdiction, the responsibility for deciding that suit rests with” Article III judges endowed with the protections for their independence the framers thought so important. Stern v. Marshall, 564 U. S. 462, 484 (2011).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Gorsuch, dissenting)

Les sources de l'indépendance de la justice, Art. III, §1 de la Constitution fédérale (The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office).

Stern v. Marshall

Bankruptcy: exercise of judicial power by bankruptcy courts: in Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, the most recent case considering the public rights exception, the Court rejected a bankruptcy trustee’s argument that a fraudulent conveyance action filed on behalf of a bankruptcy estate against a noncreditor in a bankruptcy proceeding fell within the exception. Vickie’s counterclaim is similar. It is not a matter that can be pursued only by grace of the other branches, as in Murray’s Lessee, 18 How., at 284; it does not flow from a federal statutory scheme, as in Thomas, 473 U. S., at 584–585; and it is not “completely dependent upon” adjudication of a claim created by federal law, as in Schor, 478 U. S., at 856. This case involves the most prototypical exercise of judicial power: the entry of a final, binding judgment by a court with broad substantive jurisdiction, on a common law cause of action, when the action neither derives from nor depends upon any agency regulatory regime. If such an exercise of judicial power may nonetheless be taken from the Article III Judiciary simply by deeming it part of some amorphous “public right,” then Article III would be transformed from the guardian of individual liberty and separation of powers the Court has long recognized into mere wishful thinking; the fact that Pierce filed a proof of claim in the bankruptcy proceedings did not give the Bankruptcy Court the authority to adjudicate Vickie’s counterclaim. Initially, Pierce’s defamation claim does not affect the nature of Vickie’s tortious interference counterclaim as one at common law that simply attempts to augment the bankruptcy estate—the type of claim that, under Northern Pipeline and Granfinanciera, must be decided by an Article III court; in this case, by contrast, the Bankruptcy Court—in order to resolve Vickie’s counterclaim—was required to and did make several factual and legal determinations that were not “disposed of in passing on objections” to Pierce’s proof of claim. In both Katchen and Langenkamp, moreover, the trustee bringing the preference action was asserting a right of recovery created by federal bankruptcy law. Vickie’s claim is instead a state tort action that exists without regard to any bankruptcy proceeding; the bankruptcy courts under the 1984 Act are not “adjuncts” of the district courts. The new bankruptcy courts, like the courts considered in Northern Pipeline, do not “ma[k]e only specialized, narrowly confined factual determinations regarding a particularized area of law” or engage in “statutorily channeled factfinding functions.” 458 U. S., at 85 (plurality opinion). Whereas the adjunct agency in Crowell v. Benson “possessed only a limited power to issue compensation orders . . . [that] could be enforced only by order of the district court,” ibid., a bankruptcy court resolving a counterclaim under §157(b)(2)(C) has the power to enter “appropriate orders and judgments”—including final judgments—subject to review only if a party chooses to appeal, see §§157(b)(1), 158(a)–(b). Such a court is an adjunct of no one (U.S. S. Ct., 23.06.11, Stern v. Marshall, C.J. Roberts).

Faillite : exercice de son pouvoir juridictionnel par le Tribunal des faillites : ce Tribunal est une cour de justice au sens plein du terme.