The Court issued three opinions this morning. Thanks to Aaron Tang for the details on today’s first and third opinions.

Justice Alito delivered the day’s first opinion in FAA v. Cooper.  In a five-to-three vote (with Justice Kagan recused), the Court held that the authorization of suits against the government for “actual damages” in the Privacy Act of 1974 is not sufficiently clear to constitute a waiver of sovereign immunity from suits for mental and emotional distress.  Cooper brought suit against the federal government under the Privacy Act, which allows an aggrieved individual to sue the government for “actual damages” stemming from the government’s failure to properly manage private records.  Although Cooper alleged that the government had caused him emotional and mental distress through its misuse of his private medical records, he did not allege any pecuniary harm.  The district court held that although the government had violated the Privacy Act, the term “actual damages” was not sufficiently clear to satisfy the sovereign immunity canon, which requires that waivers of sovereign immunity must be strictly construed in the government’s favor.  The district court thus held that the Privacy Act does not authorize recovery of non-pecuniary damages.  The Ninth Circuit reversed, holding that the term “actual damages” is not ambiguous and clearly encompasses damages for mental and emotional injury.  The Supreme Court reversed, ruling that “actual damages” is indeed ambiguous and could mean either pecuniary loss or all compensatory damages.  As a result, the Court held that the sovereign immunity canon requires adopting the narrower view under which the Act does not waive the government’s immunity from liability for mental and emotional harms.

Justice Ginsburg delivered today’s second opinion, in Vartelas v. Holder.  The Court applied the presumption against retroactive legislation to hold that certain aspects of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) do not have retroactive effect.  The IIRIRA provides that a lawful permanent resident who has been convicted of a crime of moral turpitude can be permanently removed from the United States when he attempts to return from travel abroad.  Prior to the IIRIRA, lawful permanent residents who made brief journeys abroad were not subject to removal.  The question was whether the IIRIRA regime applies to a lawful permanent resident who pleaded to a crime before Congress enacted the IIRIRA, and then traveled after the statute came into effect.  In holding that the IIRIRA does not apply to such an individual, the Court reasoned that statutes should not be presumed to retroactively impose “a new disability,” and that the loss of the ability to travel abroad qualifies as such.  The Court rejected the argument that the IIRIRA was not retroactive because it did not punish past conduct, but rather penalized future conduct in light of a pre-enactment event – a scheme that courts have previously upheld.  The Court distinguished those cases by noting that while some statutes look to pre-enactment conduct to determine the penalty for future criminal activity, the travel in this case was lawful.  The Court held that because the IIRIRA burdens lawful activity on the basis of nothing more than past criminal activity, it was retroactive within the meaning of the Court’s precedents.  Justice Scalia, joined by Justices Thomas and Alito, dissented, so that the final vote was six to three.

Justice Scalia announced the third opinion of the day in Setser v. United States.  In a six-to-three vote, the Court held that a federal district court has the discretion to order a federal criminal sentence to run after a state criminal sentence that is anticipated but has not yet been imposed.  Petitioner Setser had been indicted in a Texas state court on drug charges, which violated his probation.  Around the same time, petitioner also pleaded guilty to federal drug charges.  The federal district court imposed a 151-month sentence, ordering it to run consecutively to (and not concurrently with) any state sentence imposed for the probation violation.  The Fifth Circuit upheld the sentence against petitioner’s charge that the district court lacked the power to order the consecutive sentence under the Sentencing Reform Act.  The Court affirmed, ruling that although the Act does not directly address the situation in petitioner’s case, where the state sentence had yet to be imposed at the time the federal court decided the consecutive vs. concurrent question, the Act should be read to leave that choice in the hands of the district courts.  The Court thus rejected the alternative suggested by petitioner (and supported by the Government), that the Bureau of Prisons has the power to later decide whether the federal and state sentences should be served consecutively or concurrently.  The Court based its reading of the Sentencing Reform Act largely on the fact that judges have traditionally had the discretion to make determinations regarding the timing of parallel sentences.  Justice Breyer, joined by Justices Kennedy and Ginsburg, dissented.

Posted in Merits Cases

Recommended Citation: Tejinder Singh, Details on today’s opinions (FINAL UPDATE 10:54), SCOTUSblog (Mar. 28, 2012, 10:38 AM),