Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In 2014, Michelle O’Connor-Ratcliff and T.J. Zane created public Facebook pages to promote their campaigns for election to the Poway Unified School District Board of Trustees. While O’Connor-Ratcliff and Zane both had personal Facebook pages they shared with friends and family, they used their public pages for campaigning and issues related to PUSD. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as government officials and noted their official positions. O’Connor-Ratcliff also created a public Twitter page, which she used in much of the same way.
Christopher Garnier and Kimberly Garnier, who have children attending PUSD schools, often criticized the board of trustees. The trustees initially deleted the Garniers’ comments before blocking them from commenting altogether. The Garniers sued the trustees under 42 U.S. Code 1983, seeking damages and declaratory and injunctive relief for the alleged violation of their First Amendment rights. At summary judgment, the district court granted the trustees qualified immunity to the damages claims but allowed the case to proceed on the merits on the ground the trustees acted under color of state law when they blocked the Garniers.
The 9th Circuit Court of Appeals affirmed. It held Section 1983’s state-action requirement was satisfied because there was a “close nexus between the trustees’ use of their social media pages and their official positions.” Applying that framework, the court found state action based largely on the official appearance and content of the trustees’ pages.
The U.S. Supreme Court granted certiorari to resolve a circuit split about how to identify state action in the context of public officials using social media. The U.S. Supreme Court vacated the judgment and remanded the case to the 9th Circuit for further proceedings.
James Freed created a private Facebook profile sometime before 2008. He eventually converted his profile to a public page. In 2014, Freed updated his Facebook page to reflect he was appointed city manager of Port Huron, Michigan. Freed continued to operate his Facebook page himself and continued to post about his personal life. Freed also posted information related to his job. Freed often responded to comments on his posts, including those left by city residents. He occasionally deleted comments that he considered derogatory.
After the COVID–19 pandemic began, Freed posted about it. Facebook user Kevin Lindke commented on some of Freed’s posts, unequivocally expressing his displeasure with the city’s approach to the pandemic. Initially, Freed deleted Lindke’s comments; ultimately, he blocked him from commenting at all.
Lindke sued Freed under 42 U.S. Code 1983, alleging Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page because it was a public forum. The district court determined because Freed managed his Facebook page in his private capacity and because only state action can give rise to liability under Section 1983, Lindke’s claim failed. The 6th Circuit Court of Appeals affirmed.
Freed’s status as a state employee is not determinative. The distinction between private conduct and state action turns on substance, not labels: private parties can act with the authority of the state, and state officials have private lives and their own constitutional rights, including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms. Here, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he didn’t violate Lindke’s First Amendment rights, instead, he exercised his own, according to the opinion.
After evaluation, the U.S. Supreme Court vacated the 6th Circuit’s judgment and remanded the case for further proceedings.
After pleading guilty to distributing at least 50 grams of methamphetamine Mark Pulsifer faced a mandatory minimum sentence of 15 years in prison. According to the opinion, at sentencing, he sought to take advantage of the safety valve provision of federal sentencing law, which allows a sentencing court to disregard the statutory minimum if a defendant meets five criteria. Among those is the requirement the sentencing court find the defendant doesn’t have more than four criminal history points, excluding any criminal history points resulting from a one-point offense, a prior three-point offense and a prior two-point violent offense.
The government argued Pulsifer couldn’t satisfy that requirement because he had two prior three-point offenses totaling six criminal-history points. In the government’s view, each of those prior offenses disqualified him under subparagraph B and the six total points disqualified him under subparagraph A. But Pulsifer claimed he remained eligible. He argued his criminal record lacked a two-point violent offense, as specified in subparagraph C. And in his view, only the combination of the items listed in the subparagraphs could prevent him from getting safety-valve relief. The district court agreed with the government, and the 8th Circuit Court of Appeals affirmed.
A defendant is eligible for safety-valve relief only if they satisfy each of the paragraph’s three conditions. They can’t have more than four criminal-history points, a prior three-point offense, or a prior two-point violent offense. Because Pulsifer has two prior three-point offenses totaling six points, he isn’t eligible. It makes no difference he doesn’t also have a prior two-point violent offense, the opinion noted.
The U.S. Supreme Court affirmed the judgment of the 8th Circuit.
Justice Neil Gorsuch joined by Justice Sonia Sotomayor and Justice Ketanji Jackson dissented.
Yonas Fikre brought suit alleging the government placed him on the no-fly list unlawfully. In his complaint, Fikre alleged he traveled from his home in Portland, Oregon to Sudan in 2009 to pursue business opportunities there. At a visit to the U.S. embassy, two FBI agents informed Fikre he couldn’t return to the U.S. because the government had placed him on the no-fly list. The agents questioned him extensively about the Portland mosque he attended, and they offered to take steps to remove him from the no-fly list if he agreed to become an FBI informant and to report on other members of his religious community. Fikre refused.
He then traveled to the United Arab Emirates. He alleged authorities there interrogated and detained him for 106 days at the behest of the FBI. Unable to fly back to the U.S., he ended up in Sweden, where he remained until February 2015. While there, he filed this suit, alleging the government had violated his rights to procedural due process by failing to provide either meaningful notice of his addition to the no-fly list or any appropriate way to secure redress.
He further alleged the government had placed him on the list for constitutionally impermissible reasons related to his race, national origin and religious beliefs. Fikre sought an injunction prohibiting the government from keeping him on the no-fly list and a declaratory judgment confirming the government had violated his rights. In May 2016, the government notified Fikre he had been removed from the no-fly list and sought dismissal of his suit in district court, arguing its administrative action had rendered the case moot.
The district court agreed with the government, but the 9th Circuit Court of Appeals reversed, holding a party seeking to moot a case based on its own voluntary cessation of challenged conduct must show the conduct can’t “reasonably be expected to recur.” On remand, the government submitted a declaration asserting based on the currently available information, Fikre wouldn’t be placed on the no-fly list in the future, and the district court again dismissed Fikre’s claim as moot. The 9th Circuit once again reversed, holding the government had failed to meet its burden because the declaration didn’t disclose the conduct that landed Fikre on the no-fly list and didn’t ensure he wouldn’t be placed back on the list for engaging in the same or similar conduct in the future.
The government contended because Fikre had been delisted since 2016 and had presumably interacted freely with his co-religionists during that time, it is unlikely he will face relisting in the future. According to the opinion, this too was insufficient to warrant dismissal. A defendant’s speculation about a plaintiff’s actions can’t make up for a lack of assurance about its own. The burden here is on the defendant to establish it can’t reasonably be expected to resume its challenged conduct, and nothing the government offers here satisfies that formidable standard.
The government claimed the 9th Circuit erred by requiring it to repudiate its past conduct to prove mootness. But what matters isn’t whether a defendant repudiates its past actions, but what the defendant can prove about its future conduct, the opinion noted.
The U.S. Supreme Court affirmed the 9th Circuit’s judgment.
According to the opinion, to be eligible for cancellation of removal and adjustment to lawful permanent resident status, a noncitizen must meet four statutory criteria. The last requires showing the noncitizen’s removal would result in “exceptional and extremely unusual hardship” to a U.S. citizen or permanent-resident family member. Petitioner Situ Wilkinson argued his removal would cause exceptional and extremely unusual hardship to his U.S. citizen son, who suffers from a serious medical condition and relies on Wilkinson for emotional and financial support.
An immigration judge held this hardship didn’t rise to the level required by statute and the Board of Immigration Appeals affirmed. The 3rd Circuit Court of Appeals dismissed Wilkinson’s petition for review, holding it lacked jurisdiction to review the immigration judge’s hardship determination.
The question in this case was whether the immigration judge’s hardship determination is reviewable under 8 U.S. Code 1252(a)(2)(D), which gives courts of appeals jurisdiction to review questions of law. The U.S. Supreme Court held it is. The application of a statutory legal standard to an established set of facts is a quintessential mixed question of law and fact. Guerrero-Lasprilla v. Barr held such questions are reviewable under 1252(a)(2)(D).
The U.S. Supreme Court reversed the 3rd Circuit’s jurisdictional decision, vacated its judgment and remanded the case for further proceedings.
Chief Justice John G. Roberts Jr. dissented.
Justice Samuel Alito Jr. joined by Roberts and Justice Clarence Thomas also dissented.