Legal Docket: The letters of the law

MARY REICHARD, HOST: It’s Monday, June 5th. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. Today we cover three opinions handed down last week plus one oral argument from April.

First, the opinions.

One is a win—for now—for two pharmacists in a case we covered just last week. They sued the SuperValu and Safeway pharmacies under a federal law called the False Claims Act. Here, the false claim had to do with both chains’ pharmacies allegedly seeking improper reimbursement from government programs such as Medicaid. The pharmacies submitted retail prices and not the discount prices customers paid under a coupon program.

REICHARD: The case is remanded to lower court to get into the state of mind of the operators of the pharmacies: Did they subjectively believe they’d submitted false claims? That’s a different standard than proving what an objectively reasonable person might have thought. The Supreme Court ruling simply clears up disagreement over what standard of knowledge is required under the FCA.

Now for the second opinion, again unanimous.

A man named Fiyyaz Pirani bought 250,000 shares of a company that made a messaging app for business. Pirani sued the company Slack after the stock price dropped 35 percent. He accused the company of filing a misleading registration statement that led him to buy the shares.

But only some of Pirani’s shares required a registration statement. Others did not: Namely, those listed for sale directly to the public. The case will now go back to a trial court and Pirani will have to prove which of the shares he bought he can trace to misleading info in registration statements.

EICHER: Okay, final opinion today, this one 8-1. It’s a blow to organized labor.

This ruling says employers can sue a union in state court … when the union carries out a strike in such a way that causes intentional damage to the employer’s property.

You can hear the winning argument from the lawyer representing a concrete company. Attorney Noel Francisco:

NOEL FRANCISCO: It's really no different than the riverboat crew that drives out into the middle of the river and then abandons ship. That is not merely a stoppage of work.

EICHER: The strike tactic involved the company’s big concrete-mixer trucks, the ones with rotating drums to keep the concrete from hardening so it can be poured. When collective bargaining talks stalled, the union would order a work stoppage but only after the trucks were full of concrete.

The company would scramble to save the concrete from ruin, but they couldn’t. That’s why the analogy of abandoning ship in the middle of the river worked.

The union tried to argue that federal law preempts state court claims for damages.

But the high court found the union wouldn’t find refuge in federal court. The union failed to take reasonable precautions to mitigate risk of damage to the employer’s property, so federal law would not “arguably” protect that conduct.

The court ordered the case remanded.

REICHARD: Those are the three opinions and now on to our one oral argument today dealing with a pair of cases brought under the INA, the Immigration and Nationality Act.

On the one side, two men subject to deportation. On the other, the federal government, with Attorney General Merrick Garland named.

These disputes revolve around the meaning of a phrase in the I-N-A: “offense related to the obstruction of justice.” Early on in the case, Justice Clarence Thomas got to the heart of the matter:

JUSTICE THOMAS: Mr. Gannon, could you give us a straightforward definition of ‘obstruction of justice’?

Here are the facts: two noncitizens entered the United States decades ago—one of them in 1965, the other in 1985. The two men eventually received green cards that allowed them to live and work in the U.S.

Along the way, each was convicted of a crime. One for dissuading a witness from reporting a crime. The other for being an accessory to a crime.

Immigration judges ordered the men removed from the country under that phrase in the I-NA: “offenses related to the obstruction of justice.”

So Justice Thomas’s question seems reasonable enough. Here’s the government’s answer, provided by Deputy Solicitor General Curtis Gannon:

CURTIS GANNON: An affirmative act that includes a specific intent to interfere with the process of justice and law.

EICHER: The Board of Immigration Appeals upheld the removal orders but further appeals in separate circuits resulted in split decisions. They clashed over the meaning of “offenses related to the obstruction of justice.”

So the legal question before the high court is what lawyers call statutory construction. It has to decide the meaning of that phrase and whether the offenses these men committed fit that meaning.

Gannon, for the government, advocated for a broad definition using a variety of sources.

GANNON: The question is just whether, as a category, as a family of offenses, obstruction-of-justice offenses need to have a pending proceeding. And we think the answer to that is clearly not.

The wheels of justice can be obstructed even before they begin to move. Indeed, one of the best ways to obstruct an investigation or a proceeding is to ensure that it never starts in the first place.

Some of the justices took issue with the sources the government used for its definition, including Justice Sonia Sotomayor.

JUSTICE SOTOMAYOR: Mr. Gannon, let me start with, what other aggravated felony is defined merely by dictionary --by the dictionary? Because that seems to be what you're doing. Tell me what other identified aggravated felony do we approach that way.

REICHARD: Justice Ketanji Brown Jackson suggested looking to other statutes in the United States Code where Congress had defined obstruction of justice. She refers to it as Chapter 73.

JUSTICE JACKSON: And so, if Congress says an offense relating to obstruction of justice, and then, in Chapter 73, they list a number of offenses under the heading "obstruction of justice," I guess I don't understand why we are being directed to some sort of a generic categorical approach about a particular offense called obstruction of justice when that's really not a thing. Here's a list of all of the things, some of which require a proceeding, some of which don't. Why isn't that what Congress intended "obstruction of justice" to mean?

On the part of the men, their lawyers maintain that the offense needs to be linked to a pending proceeding.

Lawyer Mark Fleming argued that requiring a time element gives clarity to the definition.

MARK FLEMING: I think our position does solve all the workability problems, because it's easy to tell when an investigation or a proceeding are pending.

Justice Samuel Alito pressed him further:

JUSTICE ALITO: How is it easy to determine whether an investigation is in progress?

FLEMING: Well, if the --if the police have opened a case file and they're asking questions and they're interviewing witness --potential witnesses and they're trying to figure out, you know, whether a crime has been committed, that's an investigation. If the grand jury's going to meet on Monday, there's been an investigation to -- to prep them and get them going. I think that's much easier to identify than what the government has --has put forward, which is completely amorphous.

EICHER: Even in a technical debate about definitions, sometimes humor breaks out, or maybe it is nervous laughter on the attorney’s part.

When Justice Gorsuch offered Fleming an opportunity to make any remaining points, Justice Kavanaugh laughed.

JUSTICE KAVANAUGH: Yeah, I thought we spent the whole argument talking about your two points, but maybe --maybe I'm wrong about that.

FLEMING: I --I --I hope I haven't worn out my welcome, Your Honor.

REICHARD: Justice Thomas made reference to a famous treacherous journey by Greek hero Odysseus.

JUSTICE THOMAS: I think the problem that we're having is that the government wants to broaden the definition. It's like we're navigating between Scylla and Charybdis, and no one is giving us a way to get between the two extremes.

Finding a middle ground won’t be easy. But that’s why it’s at the Supreme Court.

And that’s this week’s Legal Docket.

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