Recent Guidance From Bankruptcy Court: Lien Avoidance Calculation Under § 552(f)(1) of the Bankruptcy Code Cannot Include Previously Avoided Liens

Photo by Melinda Gimpel on Unsplash

Marcus Hughes, Associate Member, University of Cincinnati Law Review

I. The Bankruptcy Code

Article I, Section 8, of the United States Constitution authorizes Congress to enact “uniform Laws on the subject of Bankruptcies.”[1] Under this grant of authority, Congress enacted the “Bankruptcy Code” in 1978.[2] The Bankruptcy Code, which is codified as Title 11 of the United States Code, has been amended several times since its enactment.[3] It is the uniform federal law that governs all bankruptcy cases.[4]

Bankruptcy helps people who can no longer pay their debts get a fresh start by liquidating assets to pay their debts or by creating a repayment plan.[5] Bankruptcy laws also protect financially troubled businesses.[6] In a recent decision, the United States Bankruptcy Court for the Southern District of Ohio provided valuable insight into one of the many provisions meant to help provide this fresh start.[7] While only covering a very small piece of bankruptcy law, the following analysis illustrates how the smallest details create the biggest features of the Bankruptcy Code. 

II. The Avoidance Provision

A key feature of bankruptcy proceedings is the avoidance of liens on a debtor’s property.[8] While this is commonly done by a trustee[9] under 11 U.S.C.A. § 547,[10] in certain instances it is also accomplished by a debtor.[11] One type of such debtor’s avoidance is the avoidance, under the provisions of 11 U.S.C.A. § 522(f)(1)(A), of a judicial lien on exempt[12] personal property.[13] In cases involving avoidance of judicial liens on personal property, courts have expressly stated the purpose of the provisions: to allow the debtor a fresh start through the preservation of bankruptcy exemptions even in instances where creditors have obtained pre–petition liens on property which would otherwise be exempt.[14]

III. The Formula 

Section 522(f) of the Bankruptcy Code allows a debtor to “avoid the fixing of a [judicial] lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled[.]”[15] The formula to calculate whether a lien impairs a debtor’s exemption is set forth in the statute:

[A] lien shall be considered to impair an exemption to the extent that the sum of—

(i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim if there were no liens on the property;

exceeds the value that the debtor’s interest in the property would have in the absence of any liens.[16]

Put another way, lien avoidance can be calculated by: (1) determining the value of the debtor’s interest in property; (2) deducting the value of those liens that are not being avoided; and (3) deducting the value of the debtor’s exemption.[17] If this results in a positive figure, the judicial liens cannot be avoided to the extent of that positive figure because there exists non-exempt equity in that amount to which the liens could attach; if the resulting figure is negative, the judicial liens may be avoided in their entirety.[18] For example, suppose a debtor files a motion to avoid a certain judicial lien encumbering his property under § 522(f)(1) of the Bankruptcy Code. Moreover, assume in that motion the debtor alleges that: the value of (and the value of the debtor’s interest in) the property is $300,000; the debtor is entitled to an exemption in the property of $100,000; and the property is subject to a mortgage in the amount of $250,000 and a judgment lien in the amount of $5,000. The following table would represent the debtor’s impairment calculation:

 Motion #1
Debtor’s Interest  $300,000
Other Liens – $250,000
Debtor’s Exemption – $100,000

In the above instance, the judgment lien could be avoided in its entirety because the result of the calculation is negative.

IV. The Fundamental Flaw

When a debtor desires to avoid more than one judgement lien, the proposed calculations may suffer from a fundamental flaw: the calculations might conflict with § 522(f)(2)(B), which provides that, “[i]n the case of a property subject to more than 1 lien, a lien that has been avoided shall not be considered in making the calculation under subparagraph (A) with respect to other liens.”[19] As many courts have noted, this means that a debtor must perform a separate calculation under § 522(f)(2)(A) for each judicial lien that the debtor seeks to avoid.[20] It is insufficient to attempt to avoid all liens in one calculation or to use the identical calculation in separate motions seeking to avoid other judicial liens against the same property.[21] Accordingly, where there are pending motions to avoid particular liens, or a lien has already been avoided, such liens are excluded from the calculation.[22] For example, suppose a second debtor files four motions to avoid certain judicial liens encumbering his property under § 522(f)(1) of the Bankruptcy Code. Moreover, assume that in those motions the debtor alleges that: the value of (and the value of the debtor’s interest in) the property is $300,000; the debtor is entitled to an exemption in the property of $89,000; and the property is subject to a mortgage in the amount of $200,000 and four judgment liens in the amounts of $5,000 each. The following table might represent the debtor’s proposed impairment calculation:

 Motion #1Motion #2Motion #3Motion #4
Debtor’s Interest  $300,000  $300,000  $300,000  $300,000
Other Liens – $215,000– $215,000– $215,000– $215,000
Debtor’s Exemption – $89,000– $89,000– $89,000– $89,000
   ($4,000)  ($4,000)  ($4,000)  ($4,000)

In each of the motions, the debtor includes in his § 522(f)(2)(A) calculation the three judgment liens that are not the subject of that particular motion. The calculations appear to show that each judgment lien could be avoided because each result is negative. However, when a debtor factors in the value of all of the other judgment liens in each motion, the calculation method disregards the plain language of § 522(f)(2)(B) and impermissibly shields non-exempt equity from lien attachment.[23]

V. The Correct Calculation

In order to comply with § 522(f)(2)(B), a debtor must omit one of the judgment liens with each new impairment calculation, even if the debtor seeks to avoid each lien contemporaneously.[24] For instance, avoiding one of three liens on a property will require including the two other liens in the § 522(b)(2)(A)(ii) portion of the formula in order to successfully avoid the first lien.[25] If the debtor seeks to then avoid the second lien (having already sought to avoid the first lien, whether pending or granted), the formula would only include the third lien as the first must be deemed already avoided for purposes of the analysis and excluded from the calculation assuming the first is avoidable in its entirety.[26] For example, the following table would represent the above discussed second debtor’s correct impairment calculation:

 Motion #1Motion #2Motion #3Motion #4
Debtor’s Interest  $300,000  $300,000  $300,000$300,000
Other Liens – $215,000– $210,000– $205,000– $200,000
Debtor’s Exemption – $89,000– $89,000– $89,000– $89,000
   ($4,000)  $1,000  $6,000$11,000

Here, only the first motion results a negative figure. Therefore, only the first judgment lien is entirely avoidable. The second, third and fourth liens are not avoidable to the extent of their respective positive result because that number represents the non-exempt equity to which the lien could attach.[27]

As another example, consider a third debtor who also files four motions to avoid certain judicial liens encumbering his property under § 522(f)(1) of the Bankruptcy Code. Moreover, assume that in the motions the debtor alleges that: the value of (and the value of the debtor’s interest in) the property is $350,000; the debtor is entitled to an exemption in the property of $130,000; and the property is subject to a mortgage in the amount of $200,00 and four judgment liens in the amounts of $35,000, $5,000, $5,000, and $5,000 respectively. The following table might represent the debtor’s proposed impairment calculation:

 Motion #1Motion #2Motion #3Motion #4
Debtor’s Interest  $350,000  $350,000  $350,000$350,000
Other Liens – $245,000– $240,000– $235,000– $200,000
Debtor’s Exemption – $130,000– $130,000– $130,000– $130,000
   ($25,000) ($20,000) ($15,000)  $20,000

Here, the table represents the correct calculation. Avoiding the first of four liens on the property required including the three other liens in the § 522(b)(2)(A)(ii) portion of the formula in order to successfully avoid the first lien. When the debtor sought to then avoid the second lien (having already sought to avoid the first lien), the formula only included the third and fourth lien as the first is deemed already avoided for purposes of the analysis and excluded from the calculation assuming the first is avoidable in its entirety. Similarly, when the debtor sought to then avoid the third lien (having already sought to avoid the first and second liens), the formula only included the fourth lien as the first and second are deemed already avoided for purposes of the analysis and excluded from the calculation assuming the first and second are avoidable in their entirety. Finally, when the debtor sought to then avoid the fourth lien (having already sought to avoid the first, second and third liens), the formula included none of the judicial liens as the first, second and third are deemed already avoided for purposes of the analysis and excluded from the calculation assuming the first, second and third are avoidable in their entirety. Consequently, in each of the first, second and third motions, the result is negative. Therefore, the first, second and third judgment liens could be avoided in their entirety. Only in the last motion is the result positive. Therefore, the fourth lien could not be avoided to the extent of $20,000 because that represents the non-exempt equity to which it could attach.[28]

When a debtor’s impairment calculations do not comply with § 522(f)(2)(B), the motions containing those calculations will be denied as disregarding the plain language of the statute and impermissibly shielding non-exempt equity from lien attachment.[29] A debtor wishing to seek avoidance of the liens will then have to file new motions, excluding in each motion’s calculation any lien(s) that the debtor is deemed to have already avoided under § 522(f)(2)(B).[30]  

VI. Conclusion

Providing debtors a “fresh start” is an essential principle of the bankruptcy laws. One way the Bankruptcy Code effectuates this principle is through the avoidance of liens on a debtor’s property. Particularly, section 522(f) of the Bankruptcy Code allows a debtor to avoid judicial liens to the extent that such liens impair an exemption to which the debtor would otherwise be entitled. When used correctly, these judicial lien avoidance provisions provide a valuable opportunity for an individual debtor to obtain relief from indebtedness and begin anew as a productive member of society. 

[1] Process – Bankruptcy Basics (Feb. 14, 2020),

[2] Id.

[3] Id.

[4] Id.

[5] Bankruptcy (Feb. 14, 2020),

[6] Id

[7] In re Johnson, 609 B.R. 728 (Bankr. S.D. Ohio 2019) (holding that a debtor’s calculation of extent of impairment under 11 U.S.C.A. § 522(f)(1)(A) improperly factored in the value of all three of the other judgment liens that debtor sought to avoid).

[8] 124 A.L.R. Fed. 465 (Originally published in 1995). 

[9] Elizabeth Warren, Jay Lawrence Westbrook, Katherine Porter & John Pottow, The Law of Debtors and Creditors: Text, Cases, and Problems 58 (7th ed. 2014). The trustee administers the debtor’s estate by gathering all the estate assets. In a liquidation case, the trustee sells the assets; in a reorganization case, the trustee administers the bankruptcy case. The trustee has a special obligation (by custom and common law) to unsecured, general creditors and therefore is especially charged with scrutinizing the debtor’s reports to locate any concealed property or to discover any wrongdoing that might result is a failure to get a discharge. The trustee is also careful to be sure that no one creditor tries to take more than its share and thus challenges security interests or claims to special priority treatment.

[10] 11 U.S.C.A. § 547(b) provides that “the trustee may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property—(1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made—(A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if—(A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title.”

[11] 124 A.L.R. Fed. 465. 

[12] Elizabeth Warren, Jay Lawrence Westbrook, Katherine Porter & John Pottow, The Law of Debtors and Creditors: Text, Cases, and Problems 79 (7th ed. 2014). The law in every state makes at least some property exempt from execution and other legal process so that no debtor can be reduced to absolute destitution. “Exempt” property under state law means exempt from seizure by writ through the formal collection law. When the debtor waives that exemption, by granting a voluntary security interest with a home mortgage or car lien, the exemption protection falls by the wayside. In bankruptcy, all property not listed as exempt is denominated nonexempt and will be sold by the trustee so that the proceeds can be distributed to the creditors.

[13] 124 A.L.R. Fed. 465.

[14] Id.

[15] In re Johnson, 609 B.R. 728, 729 (Bankr. S.D. Ohio 2019) (quoting 11 U.S.C. § 522(f)(1)). 

[16] Id. 

[17] Id.

[18] Id.

[19] Id. at 730 (quoting 11 U.S.C. § 522(f)(2)(B)). 

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Here, $4,000 of the second lien could be avoided whereas the third and fourth liens are entirely unavoidable. 

[28] Here, $15,000 of the fourth lien could be avoided which would still leave $20,000 to which the lien would attach. 

[29] 01-15-20 West’s Bankr. Newsl; In re Johnson, 2019 WL 6903972 (Bkrtcy. S.D.Ohio, Judge Hoffman).

[30] In re Johnson, 609 B.R. at 731. 

Premature Petition for Review of Immigration Court Ruling: Departure From Precedent or Necessary Relief?

Legal Gavel” by Blogtrepreneur is licensed under CC BY 2.0.

Blythe McGregor, Associate Member, University of Cincinnati Law Review

I. Introduction

Imagine receiving notification that an immigration judge has ordered your removal to a country where you have not resided for over two decades. The government amended the factual allegations against you, and you were never given notice. The judgment for removal was made in your absence. You have five children depending on you in America, two of whom have medical issues. This was the plight facing Celia Diaz Martinez after her Notice to Appear (“NTA”) was amended by the government and an immigration judge issued an order for her removal.[1]

Martinez appealed to the Board of Immigration Appeals (“BIA”) after an immigration judge denied Martinez’s motion to reopen her case (“MTR”).[2] Prior to the BIA’s decision, Martinez filed a petition pro se for review of the immigration judge’s decision in the Ninth Circuit Court of Appeals.[3] The BIA dismissed the order two months after Martinez filed in the Ninth Circuit.[4] The Attorney General filed a motion to dismiss for lack of subject matter jurisdiction because Martinez filed the appeal before the BIA had issued a decision on the merits.[5] The Ninth Circuit denied the Attorney General’s motion and considered this issue on appeal of the denial of this MTR, as well as the appeal of the denial of a second MTR.[6]

The Ninth Circuit determined that it had subject matter jurisdiction over the appeal of the first MTR and, in doing so, broadened an existing circuit split. Previously, the Second, Third, and Eleventh circuits determined that a circuit court has jurisdiction to consider an appeal even when a lower court issues a decision regarding the same subject matter after the appeal petition has been filed. The Fifth and Sixth circuits disagree. 

II. Background

A. Overview of American Immigration Courts

A brief overview of the structure of United States immigration courts is appropriate before discussing circuit court appellate jurisdiction.  The immigration court system is part of the U.S. Department of Justice’s Executive Office of Immigration Review (“EOIR”).[7] Under the EOIR, there are fifty-eight immigration courts and a Board of Immigration Appeals (“BIA”).[8] Unless a federal court overturns the immigration judge and BIA decisions, the Attorney General has controlling oversight over the immigration courts and BIA as to questions of law.[9]  Immigration court decisions can be appealed to the BIA, and BIA decisions can be appealed to federal appeals courts.[10]  The charging document[11] used to initiate removal proceedings in Martinez is the notice to appear (“NTA”).[12]  This document states the charges and factual allegations surrounding the case.[13] It was this document that was amended without notice in Martinez, thus creating the substantive basis for Martinez’s MTR.[14] Additional controversy lies with the procedural issue of premature appeal. 

B. Support for Ripening Pending Appeal

In Martinez, the Ninth Circuit recognized that previously the court had made it clear that relevant statutes limited jurisdiction to review “final orders of removal from the BIA.”[15] This precluded review of decisions that the BIA remands to the immigration judge, but the Ninth Circuit had never before addressed whether cases can ripen while an appeal is pending in the circuit court.[16] Thus, the issue was not whether the circuit court could review the case when first filed, before the BIA made a decision, but whether the case could ripen while when there was an issuance of a final order and the circuit court appeal was still pending.

The Ninth Circuit identified two factors that weigh in favor of allowing an appeal to ripen: an existence of substantive rights and a lack of experience by the appellant. First, the court provided that there is a prioritization of substantive rights of parties, rather than allowing procedural defects to preclude appellate review.[17] This “pragmatic approach” allowed an assumption of jurisdiction when “subsequent events can validate the prematurely filed appeal.”[18]The court recalled allowing premature notices of appeal in a variety of circumstances, such as when notice of appeal was filed before an order was amended.[19] The Ninth Circuit also discussed the importance of being lenient when dealing with pro se parties, such as Martinez.[20] Thus, when an appellant lacks legal experience and expertise, allowing an appeal to ripen may only be fair.

The Second Circuit came to the same conclusion.[21] In Herrera-Molina, an immigration judge denied Herrera-Molina’s application for withholding of removal. Herrera-Molina filed an appeal with the BIA and a petition for review with the Second Circuit.[22] After the BIA dismissed the appeal, the Attorney General contested the Second Circuit’s jurisdiction.[23] The Second Circuit rejected the Attorney General’s contention and held that, so long as there is no prejudice to the Attorney General, an appeal can become ripe for review after filing when the lower court adjudicated the remaining issues.[24]

The Third Circuit agreed.[25] In Khan, the petitioners filed a motion for emergency stay of removal and MTR with the BIA.[26] Before the BIA issued a decision, the petitioners prematurely filed a petition for review of the BIA’s denial almost two weeks before the motion was actually denied.[27] The Third Circuit adhered to the Herrera-Molina reasoning and held that because the Attorney General had been shown no prejudice, the premature petition had ripened.[28]

Finally, the Eleventh Circuit agreed that the ripening approach to premature petitions is consistent with the court’s precedent.[29] In Jimenez-Morales, an appellant was in the midst of immigration court proceedings surrounding the reinstatement of a previous removal order when the appellant petitioned for review in the Eleventh Circuit.[30] The BIA decided against the appellant in the form of a finding of no reasonable fear of persecution or torture and a reinstatement of the appellant’s order for removal.[31] The Eleventh Circuit had to determine whether the lower court’s decision made the petition ripe for review.[32] They determined that it did, so long as no action had been taken on the merits and there was no prejudice to the government.[33] The Eleventh Circuit placed premature appeals in two categories: those that are filed from an order dismissing a claim or party and those that are filed from interlocutory order that are not immediately appealable.[34] The court placed this situation in the former category, because once the proceedings came to a close, the reinstatement of the appellant’s removal order was final.[35]

Even though the nature of the appealed order differed in each case, the Ninth Circuit in Martinez found the type of order was irrelevant. [36] In each case the appellant filed a petition for circuit court review of a non-final immigration judgement or BIA order that became final while the appeal in the circuit court was pending.[37]

C. Fifth and Sixth Circuits: A Premature Petition is Nonreviewable

In Martinez, the Attorney General advanced the positions of the Fifth[38] and Sixth[39] circuits in support of the contention that the Ninth Circuit could not review a premature petition. In Jaber, the Sixth Circuit found that it did not have subject matter jurisdiction to review a not yet final BIA decision.[40] The court reasoned that the appellant could have filed a petition after the BIA did issue a final decision.[41] Importantly, this case differs because neither the appellant nor the appellant’s counsel filed the petition in the circuit court.  Instead, after the immigration judge denied Jaber’s motion, Jaber filed a habeas corpus petition in federal district court and the district court transferred the case to the Sixth Circuit, finding that the petition was actually challenging a “final administrative order of deportation.”[42] The implications of this distinction will be discussed in the next section. 

In Moreira, the Fifth Circuit determined that review of an undecided BIA case was outside the court’s jurisdiction when a district court transferred the case following the appellant’s filing of a habeas petition. The Fifth Circuit reasoned that because it did not have jurisdiction to review the immigration judge’s decision independently, it could not consider a petition filed before the BIA makes a final order.[43] Notably, the Fifth Circuit relied on Jaber and a 2002 Ninth Circuit case[44] in making this determination. In the Ninth Circuit case, the court held that it did not have jurisdiction to consider a petition that had been filed before the case had been remanded to the immigration judge and before the BIA issued a final deportation order, and that a BIA order issued when the appeal was pending did not “cure” a premature petition.[45]

III. Analysis

Each side of the circuit split presents distinct procedural posture and factual distinctions. Also, at least one circuit has changed its position on this issue.[46] This raises the question of whether those factual differences should affect the outcome of this matter and whether changes in the courts’ view of immigration have an impact.

A. Structure of Immigration Courts

The structure of the immigration courts, a largely administrative system where all rulings are subject to the Attorney General’s oversight, may support allowing petitions to ripen for review after they are filed. Although the BIA does act as a separate appellate body and is able to review orders issued by the immigration courts, both the immigration courts and the BIA operate under the Attorney General’s control. Thus, the two courts have a sort of unity under this control. Depending on the political regime in power at a particular time, legal experts have theorized that the system is stacked against “asylum seekers and immigrants of color.”[47]

If litigants are unable to obtain favorable decisions in immigration courts or in the BIA, their next option is to appeal to federal circuit courts. Because of the apparent unity of the immigration courts and BIA, it may seem obvious to the litigant, even before the BIA issues a ruling, that an appeal to a federal court of appeals is imminent. It is important to note that, while an automatic stay of removal is in place while an appeal is pending with the BIA,[48] filing a petition for review in a circuit court does not stay the petitioner’s deportation from the United States.[49] Although the petitioner could file a stay motion with the court of appeals, a pro se litigant, like Martinez, may not have the legal acumen to take advantage of this option. In the immigration context, there is a time limit which likely prompts petitioners to file in the Court of Appeals before a final BIA ruling. 

Although the above cases describe this filing as “premature,” it is unlikely that a petition filed pre-BIA-ruling feels premature to these parties. Adhering to the intricacies of civil procedure is likely not a priority for those whose way of living is on the line. This urgency is exemplified in Khan. There, the petitioners “prematurely” filed in the Third Circuit within hours of petitioners’ scheduled removal from the United States.[50] A clerk at the BIA allegedly informed the petitioners that the BIA would not be considering the motion for an emergency stay of removal prior to the BIA issuing a final ruling.[51] It is not difficult to understand why these petitioners felt like the odds were stacked against them and wanted to appeal to the Third Circuit before adverse actions were taken.  The nature of the immigration court structure and the urgency involved in immigration cases weighs in favor of the “premature” petition ripening for review upon an unfavorable BIA ruling.

B. Postural Differences 

As discussed above, the Fifth and Sixth Circuit cases that rejected the ripening approach have procedural differences from cases on the other side of the circuit split. Most importantly, neither the appellants nor the appellants’ counsel filed a petition in the circuit court: a federal district court transferred the cases after the appellant filed a habeas corpus petition. Deciding to transfer the case to the circuit court requires a determination of what the petitioner is intending to challenge when filing the habeas petition.[52]  For example, in Jaber, the district court had to determine whether the petitioner wished to challenge the immigration judge’s final order or the pending BIA case. This lack of clarity stemmed from the fact that the petitioner did not specify which decision he was seeking to have the court review. Courts may reject an ambiguous petition and this ambiguity might be the reason the petitions were rejected in Jaber and Moreira.  

C. Social and Political Attitudes

Circuit court attitudes have changed, and will change, as political and social attitudes change. As explained in the previous section, the court in Moreira relied on a Ninth Circuit case from 2002 to support a holding that prematurely filed petitions are nonreviewable. Seventeen years later the same circuit exercised a pragmatic approach and leniency toward pro se parties in adjudicating the Martinez case and reached an opposite conclusion.

Notably, the cases that condemn the ripening approach were decided in the mid to late 2000s, while the cases supporting the approach were decided in the 2010s. The change in decade and a major shift in political ideology affecting immigration courts after the 2016 election, may have impacted circuit courts’ outlook on this issue. [53] If this trend continues, the circuit split may be narrowed in years to come.

IV. Conclusion

Martinez perpetuated a circuit court trend for procedural leniency toward BIA appellants and established a similar permissiveness towards pro se litigants in this context. This approach is essential to ensure fair outcomes in removal proceedings, especially against the backdrop of an apparent ideologically unified immigration court structure. It would be helpful if the Supreme Court could shed some light, but perhaps circuit courts will continue to decide this issue according to the social and political environment. At least in the current era, circuit courts should allow petitions to ripen for review post-filing when the BIA issues an unfavorable decision for a petitioner while the appeal is pending because of the urgent nature of immigration appeals and the postural differences in Jaber and Moreira.

[1] Martinez v. Barr, 941 F.3d 907 (9th Cir. 2019).

[2] Id. at 914.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] U.S. Immigration Law Research Guide: Structure of U.S. Immigration Law, Loyola Law School,

[8] See EOIR Immigration Court Listing, The United States Department of Justice,

[9] See 8 U.S.C.A. § 1103 (a)(1). 

[10] See Zhou Hua Zhu v. U.S. Attorney General, 703 F.3d 1303, 1307 (11th Cir. 2013). 

[11] Charging documents in general commence criminal charges against someone. See United States v. Cortez, 930 F.3d 350, 359 (4th Cir. 2019). 

[12] Martinez, 941 F.3d at 911. 

[13] Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).

[14] Id. at 921. 

[15] Id. at 915.

[16] Id.

[17] Id. at 916.

[18] Id.

[19] Id.

[20] Id.

[21] Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010).

[22] Id. at 131.

[23] Id.

[24] Id. at 132.

[25] Khan v. Attorney General of the U.S., 691 F.3d 488 (3d Cir. 2012).

[26] Id. at 492.

[27] Id. 

[28] Id. at 493.

[29] Jimenez-Morales v. U.S. Attorney General, 821 F.3d 1307 (11th Cir. 2016).

[30] Id. at 1308.

[31] Id.

[32] Id. 

[33] Id. at 1309.

[34] Id.

[35] Id. 

[36] Martinez v. Barr, 941 F.3d 907, 919 (9th Cir. 2019).

[37] Id. at 920.

[38] Moreira v. Mukasey, 509 F.3d 709 (5th Cir. 2007).

[39] Jaber v. Gonzales, 486 F.3d 223 (6th Cir. 2007).

[40] Id. at 228.

[41] Id. at 230.

[42] Id. at 227.

[43] Moreira, 509 F.3d at 713.

[44] Brion v. I.N.S., 51 App’x 732 (9th Cir. 2002).

[45] Id. 

[46] See id. at 732.

[47] See The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, Southern Poverty Law Center,

[48] See Merritt v. United States Immigration & Customs Enforcement, 737 F. App’x 66 (3d Cir. 2018).

[49] Seeking a Judicial Stay of Removal in the Court of Appeals: Standard, Implications of ICE’s Return Policy and the OSG’s Misrepresentation to the Supreme Court, and Sample Stay Motion, National Immigration Project,

[50] Khan v. Attorney General of the U.S., 691 F.3d 488, 492 (3d Cir. 2012).

[51] Id. at 495.

[52] See Jaber v. Gonzales, 486 F.3d 223, 227 (6th Cir. 2007).

[53] See The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, Southern Poverty Law Center,

State Constitutions: What’s the Point?

We the People” by Steven Nichols is licensed under CC BY-NC-SA 2.0.

Katie Basalla, Associate Member, University of Cincinnati Law Review

I. Introduction 

The United States Constitution[1] is the “Supreme Law of the Land” and may not be contradicted by state law.[2] Each state has its own constitution with its own set of rights, separate and apart from the Constitution. While states cannot infringe rights protected the Constitution, state courts are the ultimate interpreters of their own constitutions. When a plaintiff asserts a violation of his constitutional rights, the rights at issue could be contained in a state’s constitution, the Constitution, or both. Even with the supremacy of the Constitution, an individual state’s interpretation of its constitution may be more favorable than an equivalent right’s interpretation under federal law. Despite the fact that state constitutions may protect broader rights, the Constitution remains at the forefront of many discussions surrounding constitutional rights. 

In 1977, United States Supreme Court Justice William Brennan authored a law review article that focused on the interplay of state and constitutional law.[3] He focused on the power of state courts to construe their own state constitutional provisions more broadly than their federal counterparts, even when the provisions are phrased identically.[4] The article stressed that “state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution” and must go beyond the reach of the Constitution.[5] States were at risk of the power of federal law inhibiting the independent power of state law.[6] While his article could have been a turning point in how lawyers present constitutional issues, many states still do not treat their constitutions as separate, but equal sources of rights.[7]  

Same sex marriage is an example of state constitutional law preceding federal constitutional law. In 2015, the Supreme Court of the United States held that the right to marry was protected by the Constitution, making same-sex marriage a legal right throughout the country.[8] But the story did not start there. In 1972, the Supreme Court shut the door on hearing cases where states refused to recognize same-sex marriages for lack of a “substantial federal question.”[9] This did not stop states from legalizing same-sex marriage, however; it merely forced them to do so through their state constitutions.  By the time the Supreme Court heard a same-sex marriage case, 37 states had already established that their constitutions protected the right of same-sex couples to marry.[10]

States began to interpret the right to same-sex marriage from their own constitutions because the Supreme Court of the United States determined the Constitution did not govern the issue. However, state courts did not have to wait for this. They had the power to decide the issue of same-sex marriage rights under their own constitutions before the Supreme Court ever addressed the issue under the Constitution.[11]

On the other hand, in areas where the Supreme Court of the United States has heard a matter and made a ruling, states typically adhere to that ruling, despite their own constitutional language and history being distinct.[12] In Tinker v. Des Moines, the Supreme Court interpreted freedom of speech as applied to school children.[13] As Supreme Court precedent, this case has been widely cited when interpreting the First Amendment to the United States Constitution.[14] While all courts are bound by the Supreme Court’s interpretation of the First Amendment, state courts have also relied on Tinker when interpreting speech protections in their state constitutions.[15]

State courts have the authority to decide cases independently under their own constitutions.[16] Where state and federal constitutional guarantees overlap, state courts have the power to align their interpretations of state constitutional guarantees with the state’s judicial and political history within the bounds of the Constitution.[17] They do not need to rely on how the Supreme Court interpreted the federal counterpart. However, they often do.[18] This post will argue that there are two reasons state courts follow federal constitutional precedent when they could differ: (1) the failure of attorneys to bring claims under both documents and (2) when they do, judges evaluate both claims under federal law. 

II. Discussion 

Lawyers can and should be making both federal and state constitutional claims on behalf of their clients. The Supremacy Clause establishes that rights under the Constitution are the same in every state, but those rights are not coextensive with state constitutional rights. A party’s claim can fail under the Constitution but prevail under a state constitution. Many states have failed to heed Justice Brennan’s call to treat their foundational documents as separate but equally powerful sources of rights. The system of federalism in the United States exists to allow for the variations on a common set of values.[19] When state courts concede interpretive supremacy to federal courts, they elect not to engage in the project of American federalism.

States establishing rights beyond the protections provided by the Constitution may also influence federal rights. While state courts’ interpretations of constitutional law do not bind the Supreme Court, the timeline of the same-sex marriage narrative illustrates how a strong foundation at the state level can bolster the argument for a federal right. When the Court rendered its decision in favor of the existence of a right to marriage regardless of sex in Obergefell, it noted the changes in public attitudes towards same-sex marriage, especially focusing on the trend in state courts at the time.[20]

States’ constitutional interpretations played a role in the Supreme Court case deciding same-sex marriage. This happened because states interpreted the right from their own constitutions when the Supreme Court refused to hear the issue in 1972. States do not have to wait for federal courts to shut the door on rights before interpreting the rights themselves. State courts can and should consider state constitutional claims under a separate body of state law insofar as that body of law is consistent with the Constitution.   

III. Conclusion 

State and federal constitutional law are separate bodies with separate authority to decide cases. Advocates must consider whether their clients are best served by appealing to both when they have claims cognizable under both. Lawyers should be making both of these claims when presented with the opportunity.[21] State and federal constitutional law are not entirely independent, but the Constitution should be a floor on which states can build additional rights. 

[1] For purposes of this post, “Constitution” always means United States Constitution. 

[2] U.S. Const. art. VI, cl. 2. 

[3] William Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). 

[4] Id. at 5. 

[5] Id. at 2. 

[6] Id.

[7] See Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (The Supreme Court of Ohio interpreted the Ohio Establishment Clause by adopting the three-part Lemon test created by the Supreme Court of the United States).

[8] Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 

[9] Baker v. Nelson, 409 U.S. 810 (1972). 

[10] Julia Zorthian, These are the States Where SCOTUS Just Legalized Same-Sex Marriage, Time, (June 26, 2015), “While 37 states had already fully legalized same-sex marriage, the Obergefell v. Hodges decision means the remaining 13 states will have to hand out marriage licenses to LGBT couples.” Id. 

[11] Michigan v. Long, 463 U.S. 1032 (1983). 

[12] Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 325 (2011). 

[13] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). 

[14] See, Defabio v. E. Hampton Union Free Sch. Dist., 623 F.3d 71 (2d Cir. 2010). 

[15] See, Solmitz v. Me. Sch. Admin. Dist., 495 A.2d 812 (Me. 1985) (evaluating a violation of freedom of speech under the first amendment of the United States Constitution and under article I, § 4 of the Maine Constitution, both under the Tinker standard).

[16] Michigan v. Long, 463 U.S. 1032 (1983). 

[17]See Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J., concurring) (focusing on the “unique vantage point” the state had when interpreting the Fourth Amendment).

[18] See Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (The Supreme Court of Ohio interpreted the Ohio Establishment Clause by adopting the three-part Lemon test created by the Supreme Court of the United States).

[19] Alison Grey Anderson, The Meaning of Federalism: Interpreting the Securities Act of 1934, 70 Va. L. Rev. 813, 854 (1984).

[20] Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015). 

[21] Attorneys should evaluate claims under both and present their client the option; other considerations, such as cost, time, and likelihood of success can and do enter the equation. 

The Impact of Food Marketing Institute v. Argus Leader Media on Trade Secret Litigation in Government Contracting

Photo by Philip Strong on Unsplash

Sam Berten, Associate Member, University of Cincinnati Law Review

I. Introduction

On June 24, 2019, the Supreme Court held in Food Marketing Institute v. Argus Leader Media that “commercial or financial information that is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy is ‘confidential’ under exemption 4 to the Freedom of Information Act (FOIA) and is therefore shielded from disclosure.”[1] FOIA allows citizens to request the government to disclose unreleased information and documents in the government’s possession, with a few crucial exceptions. 

One of the key exemptions to FOIA requests is exemption 4. Exemption 4 of FOIA protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”[2] This exemption serves dual purposes: (1) it encourages submitters to voluntarily provide information to the government that will be reliable; and (2) it gives submitters protection from the competitive harm that could result from disclosure of the submitter’s protected information.[3]

II. Background

From 1974-2019, National Parks and Conservation Association v. Morton was the controlling test for Exemption 4 cases.[4] In National Parks, the D.C. Circuit created the “competitive harm” test, which said that “commercial or financial matter is ‘confidential’ [only] if disclosure of the information is likely . . . (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.”[5] The D.C. Circuit created this test because of the lower court’s conclusion that the FOIA statute was not clear on its face, so it needed interpretative aid. 

The Supreme Court criticized the D.C. Circuit’s approach in 2019 in Argus Leader. The Supreme Court held that the statutory text of Exemption 4 was clear on its face, and the circuit court overstepped its authority when it created the “competitive harm” test.[6] Thus, the Supreme Court rejected the “competitive harm” test. Therefore, after Argus Leader, the government does not have to prove that the disclosure of information would result in financial harm to the submitter.[7] The Court further held that “at least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.”[8]

III. Discussion

Argus Leader significantly changed the trade secret landscape because it alleviated the need for contractors to prove competitive harm in the event of a public disclosure.[9] Additionally, contractors must take measures to ensure that their trade secrets, as well as any other competitively-sensitive information they hold, are kept secret.[10] These measures will often include restrictions, even within the corporation, to ensure the safety of this protected information.[11] Thus, when bidding on a government contract, contractors should be careful to ask whether their competitively-sensitive information will receive an “assurance of privacy” from the government. 

However, this explanation leaves an open door for further trade secret litigation where the commercial or financial information is both customarily and actually treated as private by its owner, but the government provides no assurance of privacy. The lower courts will have to grapple with this residual issue in the coming years. Argus Leader has already been interpreted by the 9th Circuit, which held in Center for Investigative Reporting v. United States DOL that publishing data in an annual report would demonstrate that the information was not confidential.[12] Additionally, the 9th Circuit has followed Argus Leader in Animal Legal Defense Fund v. United States FDA. In Animal Legal Defense, the 9th Circuit Court of Appeals remanded the case to the district court to determine whether the information was “customarily and actually treated” as private, and, “if necessary, the court shall decide whether the term ‘confidential’ requires a governmental ‘assurance of privacy’ and, if so, whether the FDA provided the necessary assurance.”[13]

Thus, Animal Legal Defense may present an answer to the remaining question of whether both prongs are necessary under the Argus Leader test. This decision will be a critical tool for future courts to determine whether simply keeping information confidential within your organization, and from the public, is enough to ensure an exemption under Exemption 4, or whether the government must also assure that the disclosed information will be kept private. If Animal Legal Defense states that both prongs must be satisfied, government contractors must heighten their contractual terms to ensure that any confidential information given to the government during requests for proposals (RFPs) or in furtherance of the government contract, is adequately protected from disclosure under Exemption 4.

IV. Conclusion 

The United States District Court for the Northern District of California is also currently deciding American Small Business League v. United States Department of Defense. This case will test the strength and application of Argus Leader. This is particularly true because the presiding judge, Judge Alsup, has described the Pentagon’s efforts to exempt information under Exemption 4 as “trying to suppress the evidence,” and further said “the purpose of the Freedom of Information Act is so the public can see how our government works. Congress passed this law to make small businesses have access to some of these projects, and here is the United States covering it up.”[14]

Judge Alsup has called the case a battle of “David vs. Goliath.”[15] Thus, while Judge Alsup will surely be bound by the Supreme Court’s interpretation of “confidential” under Exemption 4, government contractors should watch this case closely for Judge Alsup’s interpretation and application of Argus Leader.

[1] Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019). See Peter J. Toren, Trade Secrets Review: Key 2019 Decisions and Trends (Part I), IP Watchdog (Jan. 21, 2020),

[2] 5 U.S.C. §552(b)(4)(2000). 

[3] Freedom of Information Act Guide, United States Department of Justice (May 2004), Attorney General’s Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (recognizing fundamental societal value of “protecting sensitive business information”).

[4] National Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). See Andrew Howard, Food Marketing Institute v. Argus Leader Media: Enhanced FOIA Protection for Contractors’ “Confidential” Commercial or Financial Information, Alston & Bird (Jan. 6, 2020),  

[5] National Parks, 498 F.2d at 770.

[6] Howard, supra note 4.

[7] Argus Leader, 139 S. Ct. at 2364.

[8] Id. at 2366.

[9] Howard, supra note 4.

[10] Id.

[11] Id.

[12] Ctr. for Investigative Reporting v. United States DOL, No. 4:19-cv-01843-KAW, 2019 U.S. Dist. LEXIS 213793, at *17 (N.D. Cal. Dec. 10, 2019).

[13] Animal Legal Def. Fund v. United States FDA, No. 19-15528, 2020 U.S. App. LEXIS 1633, at *3 (9th Cir. Jan. 16, 2020). 

[14] American Small Business League Provides Update on “David vs. Goliath” Department Of Defense Lawsuit, PR Newswire (Feb. 13, 2019),  

[15] Id. and Not-So-Generic Internet Based Trademarks

“ Corporate Identity” by German Kopytkov is licensed under CC BY-NC-ND 4.0 

Mike Chernoff, Associate Member, University of Cincinnati Law Review

I. Introduction

Words, symbols, and phrases (hereinafter referred to as “marks”) can receive trademark protection in the United States when the mark is used to identify and distinguish products.[1] This protection does not extend to words that are deemed “generic,” that is, when the mark describes the category underlying the product.[2] However, the prevalence of internet based business has raised the question of whether adding “.com” to the end of a generic term could remove the generic label attached to the mark, and thus, become eligible for trademark protection. The Supreme Court will soon decide this issue in the upcoming case United States Patent and Trademark Office v. B.V.[3] This article will analyze’s trademark application and potential applicable law that will guide the Supreme Court’s decision.

II. United States Trademark Law Background

Trademark law protects the goodwill represented by particular marks and prevents consumers confusion between products and their sources.[4] Four categories of marks determine the amount of protection offered to a particular mark.[5] These categories include: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, and (4) generic.[6] Arbitrary, fanciful, and suggestive marks are considered inherently distinctive and are entitled to trademark protection as they are able to identify the particular source of a product.[7] Descriptive terms require certain showings to receive protection, while generic marks can never receive protection.[8] A descriptive mark describes a characteristic of the product and must acquire secondary meaning to receive trademark protection.[9] Secondary meaning is acquired by the mark when the term establishes a mental association in the public’s mind between the mark and the product or service.[10] A mark is generic if the mark is the “common name” of the underlying product.[11] When a mark is assessed for the proper category of protection, the entire mark must be considered, as the subsequent decision is dependent on the public’s understanding of the entire mark.[12]

Terms that include a generic term and end with a “top-level domain,” such as “.com,” have been found to be generic due to other longer domain names including the same generic term.[13] For example, the Federal Circuit found “” to be a generic term due to other domain names such as “” and “”[14] However, some courts have have allowed consumer surveys to be introduced to prove that a “.com” site deserves descriptive mark status based on the results of a consumer survey.[15] A consumer survey is a common method for proving whether a term is generic in the eyes of the public and can help guide a fact-finder in determining the appropriate level of protection for a term.[16]

III. “” Trademark Dispute

In 2011 and 2012,, a travel booking website, filed four trademark applications with two seeking protection for the name “” and two seeking protection for stylized logos featuring the company’s name.[17] These applications referenced services offered under the mark which included hotel reservation services for others, providing information about hotels, and similar hotel related booking related services.[18]

All four applications were initially rejected by the United States Patent and Trademark Office (“USPTO”) on the grounds of “” merely being descriptive of the services that are provided by[19] After argued that the mark had acquired distinctiveness, the USPTO issued a new refusal claiming the mark as generic because the mark was the same as the services provided and that the mark had failed to establish acquired distinctiveness.[20] sought an appeal before the Trademark Trial and Appeals Board (“TTAB”). TTAB affirmed the registration refusals stating that “” was a generic term for the services offered and “.com” did not negate the generic character of “booking.”[21] Alternatively, TTAB concluded that “” is descriptive of the services provided and “failed to demonstrate that the term has acquired distinctiveness.”[22] appealed TTAB’s decision arguing that “” was a descriptive or suggestive mark that was eligible for trademark protection.[23] In support of this argument, submitted a survey indicating that 74.8% of consumers recognized “” as a brand and not a generic service.[24] The United States District Court for the Eastern District of Virginia ruled that as a whole, “” was a descriptive, rather than generic, mark.[25] The District Court also held that demonstrated that the mark had acquired secondary meaning and the term “” was, therefore, eligible for trademark protection.[26]

The USPTO appealed this decision and argued that “” was generic, but conceded that if the term was found to be descriptive, then the mark had acquired secondary meaning.[27] The Fourth Circuit  upheld the District Court’s ruling and agreed that the mark “” must be viewed as a whole in a generic analysis.[28] The USPTO petitioned the Supreme Court of the United States for an appeal and was granted a writ of certiorari on November 8, 2019.[29]

IV. Discussion

When the Supreme Court decides the result of this case, the Justices will be deciding whether the addition of a generic top-level domain, such as “.com”, to a generic term transforms the entire phrase into protectable mark. This decision should result in an affirmation of the Circuit Court ruling because of the nature of website domain names and the mindset of the consuming public.

The nature of internet domain names supports the notion that including a top-level domain in a website-based mark should receive a “descriptive” level of trademark protection. Every domain name on the internet can only lead to a single website. This specific and distinct website that is found by the associated domain name will inherently form a strong association in the mind of the consuming public with the associated domain name. When a consumer has typed in the entire domain of a website, the consumer is expecting to be brought to a specific website. This would be analogous to a consumer looking for a specific brand of a product in a store. When a consumer seeks a specific brand in this fashion, the mark is descriptive of the ultimate product and has acquired secondary meaning. Due to the increased differentiation in the marketplace by the addition of a top-level domain, this top-level domain should provide an opportunity for trademark protection.

A central purpose of a trademark is to distinguish one’s product or services from those of others.[30] provided evidence that their company name had formed a connection in the minds of the consuming public by showing 74.8% of consumers recognized “” as a brand rather than a generic service. The USPTO did not provide evidence that the consuming public would refer to an online travel booking service as a “” Had this been the case, then “” would be a generic term for the service of online booking. However, this has not been shown to be the outlook of the public and “” should not be declared generic as a result.

V. Conclusion

The Supreme Court has the opportunity to expand trademark protection for some marks incorporating domain names by holding that “” is not generic. This decision would be in agreement with the purposes of trademark law and continue to protect consumers from confusion.

[1] 15 U.S.C. § 1127 (2019).

[2] Abercrombie & Fitch Co. v. Hunting World, Inc. 537 F.2d 4, 9 (2nd Cir. 1976).

[3] B.V. v. U.S. Patent and Trademark Office, 915 F.3d 171 (4th Cir. 2019), cert. granted, 2019 U.S. LEXIS 6782 (U.S. Nov. 8, 2019) (No. 19-46).

[4] OBX-Stock, Inc. v. Bicast, Inc. 558 F.3d 334, 339-340 (4th Cir. 2009).

[5] Abercrombie & Fitch Co., 537 F.2d at 9.

[6] Id.

[7] B.V., 915 F.3d at 177.

[8] Id.

[9] Abercrombie & Fitch Co., 537 F.2d at 9.

[10] George & Co. v. Imagination Entm’t Ltd., 575 F.3d 383, 394 (4th Cir. 2009).

[11] OBX-Stock, Inc. v. Bicast, Inc. 558 F.3d 334, 340 (4th Cir. 2009).

[12] Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 545-46 (1920).

[13] B.V. v. U.S. Patent and Trademark Office, 915 F.3d 171, 182 (4th Cir. 2019).

[14] In re, L.P., 573 F.3d 1300, 1303 (Fed. Cir. 2009).

[15] Id.

[16] Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 970 (Fed. Cir. 2015).

[17] v. Matal, 278 F. Supp. 3d 891, 896-897 (E.D. Va. 2017).

[18] Id.

[19] Id. at 897.

[20] Id.

[21] Id. at 898.

[22] Id.

[23] B.V. v. U.S. Patent and Trademark Office, 915 F.3d 171, 178 (4th Cir. 2019).

[24] v. Matal, 278 F. Supp. 3d at 915.

[25] Id. at 924.

[26] Id. 

[27] B.V., 915 F.3d at 179.

[28] Id. at 181

[29] B.V. v. U.S. Patent and Trademark Office, 915 F.3d 171 (4th Cir. 2019), cert. granted, 2019 U.S. LEXIS 6782 (U.S. Nov. 8, 2019) (No. 19-46).

[30] Trademark, Black’s Law Dictionary (11th ed. 2019).

Smartphones and the Fourth Amendment: When is Access to Password-Protected Information Permitted?

iPhone Unlock” by Eliane Smith is licensed under CC0 1.0.

Katie Basalla, Associate Member, University of Cincinnati Law Review 

I. Introduction

Like all areas of the law, Fourth Amendment doctrine must adapt to ever-changing technologies. This becomes increasingly difficult in an era of social media and smartphones. One device can hold thousands of pieces of information, ranging from finances to intimate conversations. Traditionally, the Supreme Court has held that an individual does not have a privacy interest in information divulged to third parties.[1] In Riley v. California, the Court held that due to the fast amount of information stored on a cell phone and its unique character, people have privacy interests in information stored on their cell phones, despite the fact that it was exposed to third parties. [2] The implication of this ruling is that officers may seize a cell phone from a person as a search incident to arrest, but may not search the cell phone’s contents without a warrant.

Post-Riley, many questions remain about how an officer may proceed with a search warrant for a cell phone. Many smartphones are equipped with password-protected capabilities, such as a numerical password, fingerprint reader, facial recognition, and other security features. May the officer force the phone’s owner to turn over the password? May the owner unlock the phone without giving up the password? May officer call him down to the station to use his thumbprint or face to unlock the phone? While there is no specific case on point, a series of cases, taken together, suggest that when the warrant requirement is properly fulfilled, officers may direct an individual to unlock the phone, but may not force an individual to reveal the password to law enforcement.

II. Background

As technology advances and more information becomes password protected, the question of how law enforcement may access protected data becomes increasingly important. Riley makes it clear that information on a cell phone is not immune from all searches, but that a warrant is generally required before a search.[3] What is unclear post-Riley is how law enforcement may proceed with a valid search warrant for a phone that is password protected.

The Supreme Court has not addressed the issue of whether a person must reveal a password to a law enforcement officer. A series of Circuit Court and District Court decisions may shed light on how the Supreme Court would rule in this area. The Fifth Circuit held that if a person voluntary provides the password to law enforcement, the officers may use it to search the phone.[4] The District Court for the District of the Virgin Islands, St. Croix Division held that officers were incorrect in telling a phone owner that if he did not unlock the phone, “the phone would be seized, unlocked by a ‘lab,’ and examined whether or not [he] unlocked it.”[5] Nonetheless, that search was ruled constitutional because the officers were operating in a good faith reliance on an exception to the warrant requirement.[6] While there have been multiple cases where an individual refused to give over a password following an officer’s demand, these cases do not address whether it is permissible for the officer to demand the password in the first place.[7]

Courts seem reluctant to address the question of whether an officer may require an individual to reveal a password so that an officer may search the phone. In both Thomas-Okeke and Poccia, officers demanded that the individual give over the password, rather than merely unlock the phone themselves. The courts decided each case on separate grounds and left the question of forcing an individual to give up a password untouched.

Many smartphones can also be unlocked by means other than typing in a password.  Before the age of smartphones, the Supreme Court left open the possibility that detentions for the sole purpose of fingerprinting may be permissible under the Fourth Amendment. In Davis v. Mississippi, the Court mentioned that under specific circumstances, detentions for the purpose of fingerprinting may “be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense.”[8]

III. Analysis

Although information on a smartphone is highly sensitive and deserves heightened protections, if an officer has a valid search warrant for the phone specifically, that warrant should carry with it inherent ability to unlock the phone. Looking at the policy reasons behind Riley and the dicta in Davis help settle the question of whether an individual must turn over a phone’s password. While an officer may not require an individual to reveal the password, if the standard set out in Riley is to have any significance, a warrant for a cellphone should carry inherent authority to access the phone. This may be by the individual unlocking the phone for law enforcement, or, as Davis suggests, it may be permissible for law enforcement to use an individual’s fingerprints to unlock a phone.

To carry out a search warrant for a cellphone, law enforcement may ask the individual to unlock the phone or may ask for him to voluntarily give over the password. As the Fifth Circuit held in Venegas, voluntarily giving up a password is equivalent to consenting to the search.[9] The main issue focuses on whether law enforcement may force an individual to reveal a password when he refuses to do so voluntarily.

The importance of privacy interests in cellular data was made clear in Riley. Since the Riley decision in 2014, the storage capacities and abilities of smartphones has increased. As more things become password-protected, privacy interests in one’s password becomes increasingly important. Many individuals use the same password across various accounts, including their cell phones, banking pins, or social media accounts. However, this should not mean that officers are not able to carry out the warrant or have to hack into the phone merely because it is locked. Just as law enforcement does not obtain the right to possess the keys to a house with a search warrant, officers do not gain the right to possess the password to a locked phone, but may nonetheless be given temporary access to the phone.

An individual should be required to unlock the phone if an officer has a valid search warrant. As Davis stated, detaining an individual to use his thumbprint may not violate the Fourth Amendment in certain circumstances. Although non-existent at the time of Davis, one of these narrowly defined circumstances could be using a fingerprint to unlock a phone to fulfill a legitimate search warrant. Not only would using a fingerprint in this circumstance be necessary to carry out a valid search warrant, it is even less of an intrusion than physically being fingerprinted because the individual has the choice of unlocking the phone for law enforcement through other means, whether it be voluntarily giving up the password or merely typing in the password himself.

While courts have not addressed how an officer may carry out a warrant for a cell phone, the Court’s reliance in Riley on the ability of a phone to be searched with a warrant suggests that Riley was meant to create a workable standard.[10] This standard would be frustrated if officers could not access a locked phone, even with a warrant. Having a legitimate search warrant for a locked smartphone could be compared to having a valid search warrant for a locked home. Even though the Supreme Court has continuously granted the greatest protections to one’s privacy in his own home,[11] the officer is not simply out of luck if the door is locked.

IV. Conclusion

Turning over a password to law enforcement is an invasion of privacy that goes beyond a warrant to search the phone. If officers obtain a valid search warrant for an individual’s cell phone, that warrant should include the authority to direct the individual to unlock the phone. However, an officer may not force an individual to reveal the password. If an individual refuses to type in the password, officers may require him to use his thumbprint or facial recognition (if applicable) to unlock the phone.

[1] See, United States v. Miller, 425 U.S. 435, 443 (1976).

[2] 573 U.S. 373 (2014).

[3] Riley v. California, 573 U.S. 373, 386, (2014). By using “generally” the Court left open the possibility that officers may search a phone without a warrant in exigent circumstances. Id. at 402. This Article will refer to instances where there are no exigent circumstances, and therefore a warrant is required before searching a phone.

[4] United States v. Venegas, 594 F. App’x 822, 826 (5th Cir. 2014).

[5] United States v. Thomas-Okeke, No. 2018-0008, 2019 U.S. Dist. LEXIS 92345, at *22 (D.V.I. June 3, 2019).

[6] Id. This case focused on whether or not the officers needed a warrant to search the phone. It still left open the question of whether or not the officers had the authority to direct the individual to unlock it.

[7] See, Gold v. Poccia, No. 17-104WES, 2018 U.S. Dist. LEXIS 161933, at *9 (D.R.I. June 29, 2018).

[8] 394 U.S. 721, 727 (1969). Although mainly dicta, the Court focused on the lack of personal intrusion giving a fingerprint involves. Id.

[9] United States v. Venegas, 594 F. App’x 822, 827 (5th Cir. 2014).

[10] Riley v. California, 573 U.S. 373, 403 (2014). “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id.

[11] See, Silverman v. United States, 365 U.S. 505 (1961). “At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Id. at 511 (emphasis added); see also Florida v. Jardines, 569 U.S. 1 (2013). “But when it comes to the Fourth Amendment, the home is first among equals.” Id. at 6.

Can State Governments Claim Sovereign Immunity in Takings Cases?

Photo by Jon Geng on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

What happens when two provisions of the Constitution conflict? For example, the “Takings” clause of the Fifth Amendment prohibits “private property be[ing] taken for public use, without just compensation.”[1] But the Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”[2] On one hand, the Fifth Amendment guarantees that when a government takes a person’s private property, the government owes the person what the property is worth.[3] But courts have interpreted the Eleventh Amendment to bar citizens from suing state governments under the doctrine of “sovereign immunity.”[4] What if a state government takes a person’s property but refuses to pay, or pays too little? If the person sues the government to obtain just compensation, should the government be able to assert sovereign immunity as a defense?  This article analyzes this tension between the Fifth and Eleventh Amendments.

II. Background

The Eleventh Amendment prohibits citizens from suing the federal and state governments.[5] Known as sovereign immunity, this is the idea that citizens cannot drag their own governments into court.[6] Sovereign immunity applies to nearly every suit a citizen brings against a government, but does have certain exceptions.[7] First, this does not protect local governments like cities and towns.[8] Second, a government can waive sovereign immunity by consenting to a particular lawsuit.[9] Third, Congress can repeal sovereign immunity in certain contexts under the enforcement power of the Fourteenth Amendment.[10] The Tucker Act, for example, waived the federal government’s sovereign immunity for all constitutional claims and all suits for monetary relief.[11] Fourth, under Ex Parte Young, if a government is actively violating the Constitution, citizens can sue the government for equitable relief—a court order to stop the violation.[12]

Although the Tucker Act permits citizens to sue the federal government over a Takings violation, no such exception applies for state governments.[13] Governments rarely consent to being sued, and Congress has not repealed sovereign immunity for Takings cases against state governments.[14] Further, most Takings cases do not fall under the Ex Parte Young exception: they often are only about “just compensation”—money damages—because governments can take any private property as long as the Taking is for public use.[15]

The majority of federal courts of appeals have allowed state governments to mount sovereign immunity defenses to Takings claims.[16] Most of these courts have allowed the defense specifically because relief was still available in state court.[17] The Fourth Circuit Court of Appeals, for example, barred a Takings claim against South Carolina but declined to decide “whether the Eleventh Amendment would ban a takings claim in federal court if the State courts were to refuse to hear such a claim.”[18] However, some state courts also allow the sovereign immunity defense.[19] Thus, in Tennessee within the Sixth Circuit, and in Arkansas within the Eighth Circuit, property owners seeking just compensation for Takings find themselves completely shut out of the justice system.[20]

However, the Supreme Court has never applied sovereign immunity in a Takings case against a state government and has questioned whether “sovereign immunity retains its vitality” in that context.[21] In First English Evangelical Lutheran Church v. County of Los Angeles, the Court clarified that the Fifth Amendment requires damages for a Taking; that opinion expressly disregarded California’s argument that “principles of sovereign immunity” suggested otherwise.[22] In Palazzolo v. Rhode Island, the state of Rhode Island asserted sovereign immunity as a defense against a Taking claim[23] but the Court ignored that argument in its final decision against the state.[24] Although sovereign immunity can be raised at any time,[25] the Court has decided other Takings claims against state governments without addressing the issue.[26]

A 2019 Supreme Court case, Knick v. Township of Scott, Pennsylvania made clear that federal courts are always open to victims of Takings.[27] In Knick, the Court overruled a previous decision that required property owners to seek compensation under state law before suing in federal court.[28] The decision stated, “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it . . . And the property owner may sue the government at that time in federal court for the deprivation of a right secured by the Constitution.”[29] Although that case dealt with a Taking by a township, not a state, property owners have used Knick to argue that they should be able to sue their state governments in federal court over Takings claims.[30] Two circuits have rejected this argument so far,[31] with the Fifth Circuit stating, “[t]hat determination . . . is one for the Supreme Court—not this panel.”[32] Attorneys on the Fifth Circuit case, Bay Point Props. v. Miss Transp. Comm’n, have appealed to the Supreme Court.[33]

III. Analysis

Takings claims are unique. Most other constitutional violations can be solved through an injunction, and the Ex Parte Young exception allows citizens to seek this relief from the government. But when a government takes private property, the violation is usually not the Taking itself. Most often in Takings disputes, the issue is whether the government paid just compensation; the alleged violation is that the government owes the property owner money. The Fifth Amendment guarantees this payment; but this monetary relief is exactly the kind barred by the Eleventh Amendment. These provisions conflict, and one must yield. Sovereign immunity already has exceptions, and in the interest of protecting property rights, the Supreme Court should clarify one more exception: in claims against state governments for just compensation under the Fifth Amendment, the Eleventh Amendment should not apply.

The decisions barring Takings claims in federal court through the Eleventh Amendment were premised on an understanding that Takings claims were fundamentally the province of state courts. Land use is thought of as a local problem that should be handled by state courts, not federal courts. As long as state courts remained available, federal courts were comfortable allowing the sovereign immunity defense. Knick undermined this principle by making clear that property owners can sue in either state or federal court for the just compensation of taken property.  Although Knick dealt with a local government, the decision’s language is sweeping in its guarantee that “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” The decision contained no hint that state governments would be immune from such a claim.

Further, if sovereign immunity applies to Takings cases in federal courts, state courts are free to apply it as well. That could lead to Takings litigants being left without a judicial remedy entirely. As explained above, that is exactly what has happened in Tennessee and Arkansas, and nothing prevents other states from doing the same. Uniform application of sovereign immunity would make the constitutional guarantee of just compensation meaningless. Even if state courts do not allow the sovereign immunity defense, state procedures might still not deliver just compensation; if that happens, property owners deserve federal protection of their federal constitutional right. Keeping “local” issues in “local” courts is no excuse then for federal courts to allow sovereign immunity in Takings claims.

Clarifying this exception to sovereign immunity would be consistent with Supreme Court precedent. The Supreme Court has dealt repeatedly with Takings claims against state governments, siding with property owners despite states raising sovereign immunity defenses. The Court has never applied sovereign immunity in a Takings case, suggesting the Court does not view the defense as legitimate. This is for good reason: if sovereign immunity truly applies in Takings cases, then states could seize property without paying for it and face no legal consequences. Supreme Court precedent, respect for property rights, and common sense all weigh in favor of limiting sovereign immunity in Takings cases.

IV. Conclusion

The Supreme Court should take up Bay Point and use that opportunity to clarify its Takings jurisprudence. The Fifth Amendment guarantee of just compensation for taken property is meaningless if citizens cannot sue to enforce it. Eleventh Amendment sovereign immunity must yield in this context to protect property rights. Handling this dilemma appropriately will help ensure that property remains an inalienable American right.

[1] U.S. Const. amend. V.

[2] U.S. Const. amend. XI.

[3] First English Evangelical Lutheran, 482 U.S. 304, 314 (1987).

[4] Bay Point Props. v. Miss. Transp. Comm’n, 937 F.3d 454, 456-57 (5th Cir. 2019).

[5] Garrett v. Illinois, 612 F.2d 1038, 1040 n.1 (7th Cir. 1980).

[6] Hans v. Louisiana, 134 U.S. 1, 12-13 (1890).

[7] Bay Point, 937 F.3d at 456.

[8] Jinks v. Richland County, 538 U.S. 456, 466 (2003).

[9] Bay Point, 937 F.3d at 456.

[10] Id.

[11] Doe v. United States, 372 F.3d 1308, 1312 (Fed. Cl. 2004).

[12] Ex Parte Young, 209 U.S. 123, 159-60 (1908).

[13] Bay Point, 937 F.3d at 456-57.

[14] Hutto v. S.C. Ret. Sys., 773 F.3d 536, 551-52 (4th Cir. 2014).

[15] Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2176-77 (5th Cir. 2019).

[16] Hutto, 773 F.3d at 552; Bay Point, 937 F.3d at 457; DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004); Garrett, 612 F.2d at 1040; Jachetta v. United States, 653 F.3d 898, 912 (9th Cir. 2011); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019); Robinson v. Georgia Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992).

[17] Williams, 928 F.3d at 1213.

[18] Hutto, 773 F.3d at 552.

[19] Hise v. State, 968 S.W.2d 852, 853-855 (Tenn. Ct. App. 1997); Bryant v. Ark. State Highway Comm’n, 342 S.W.2d 415 (Ark. 1961).

[20] Id.

[21] City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999).

[22] 482 U.S. 304, 316 n.9 (1987).

[23] Amicus Brief for the Board of County Commissioners of the County of La Plata, et al., in Support of Respondents, No. 99-2047, 2001 WL 15620, at *20-21 (U.S. Jan. 3, 2001).

[24] 533 U.S. 606 (2001).

[25] Edelman v. Jordan, 415 U.S. 652, 677-78 (1974).

[26] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning  Agency, 535 U.S. 302 (2002).

[27] 139 S. Ct. 2162, 2170 (2019).

[28] Knick, 139 S. Ct. at 2167-68.

[29] Id. at 2170, citing 42 U.S.C. §1983.

[30] Bay Point, 937 F.3d at 456; William v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019).

[31] Id.

[32] Bay Point, 937 F.3d at 456 n.1.

[33] Id. at 454 (5th Cir. 2019), petition for cert. filed, (U.S. Dec. 19, 2019) (No. 19-798).

Mathena v. Malvo: Must Judges Take Youth into Account When Sentencing Juveniles?

Photo by Bill Oxford on Unsplash

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

In October, the United States Supreme Court held arguments in Mathena v. Malvo.[1] Mathena is premised around an infamous string of shootings which occurred in the Washington, D.C. area in 2002. At issue in Mathena is whether the Court’s decisions in Miller v. Alabama[2] and Montgomery v. Louisiana[3] apply only to prohibit mandatory life without parole (“LWOP”) sentencing schemes for juveniles, or whether the decisions more broadly require a judge to take into account a defendant’s youth when considering a LWOP sentence. This blog will first discuss the Court’s precedent in both Miller and Montgomery. The article next analyzes the background of Mathena, as well as the arguments made by each party. Finally, this post will explain the implications the Court’s decision in Mathena could have on past and future youth offenders.

II. Background

A. Miller v. Alabama

In Miller, the Court was tasked with determining whether statutorily-mandated sentences of LWOP may be imposed on juveniles.[4] The petitioners, Evan Miller and Kuntrell Jackson, had both been sentenced to LWOP in Alabama and Arkansas, respectively.[5] At age fourteen, Miller killed his neighbor after hitting him in the head with a baseball bat and setting his home on fire.[6] The District Attorney tried Miller as an adult and charged him with murder in the course of arson, and Miller was subsequently convicted.[7] At the time of Miller’s conviction, Alabama imposed a mandatory minimum LWOP sentence for the crime, and therefore, the trial judge sentenced Miller to LWOP.[8] In the Arkansas case, Jackson was involved in a robbery in which one of Jackson’s friends shot and killed a video store clerk.[9] Even though Jackson did not pull the trigger, the Arkansas prosecutor tried him as an adult.[10] Jackson was ultimately convicted of capital felony murder and aggravated robbery.[11] Like Alabama, Arkansas’s mandatory sentencing scheme required the imposition of a minimum sentence of LWOP.[12]

Both petitioners in Miller argued that mandatory LWOP sentences for juveniles violate the Eighth Amendment’s ban on cruel and unusual punishment.[13] In its opinion, the Court discussed at-length prior precedent explaining how juvenile offenders must be treated differently in the sentencing phase.[14] Specifically, the Court focused its analysis on the decisions in Graham v. Florida[15] and Roper v. Simmons,[16] both of which provided substantive rules on how youths may be sentenced.[17]

The Miller court ultimately concluded “that the Eighth Amendment forbids a mandatory sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”[18] Notably, the Court also stated that its decision “require[s] [a sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[19]

B. Montgomery v. Louisiana

In Montgomery, the Court considered the question of whether Miller applied retroactively.[20] The petitioner in Montgomery was seventeen-years-old when he killed a deputy sheriff in Baton Rouge, Louisiana in 1963.[21] The petitioner was initially convicted of murder and sentenced to death, but the Louisiana Supreme Court overturned his conviction.[22] At his second trial, the jury returned a verdict of “‘guilty without capital punishment.’”[23] Louisiana law mandated a sentence of LWOP against the petitioner.[24] The petitioner contended that the Miller decision should apply retroactively, and therefore, petitioner would subsequently have to be re-sentenced.[25]

The Court first determined whether it had the authority to apply Miller retroactively under its prior precedent.[26] In Teague v. Lane,[27] the Court held that new constitutional rules of criminal procedure do not apply retroactively to convictions that were final when the rule was decided.[28] However, Teague does allow for two exceptions which must apply retroactively: (1) substantive rules of constitutional law; and (2) “watershed rules of criminal procedure” implicating fundamental fairness.[29] Substantive rules are those which “forbid[] ‘criminal punishment of certain primary conduct’ or prohibit[] ‘a certain category of punishment for a class of defendants because of their status or offense.’”[30]

The Court held that Miller indeed announced a substantive rule because it “rendered life without parole an unconstitutional penalty for a ‘class of defendants because of their status’ – that is, juvenile offenders whose crimes reflect the transient immaturity of youth.”[31] It is important to note that the Montgomery court also stated that “Miller determined that sentencing a child to life without parole is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’ . . .” [32]

C. Mathena v. Malvo

In October, the Court held arguments in Mathena. The facts surrounding Mathena are somewhat notorious. In 2002, forty-one-year-old John Muhammed and seventeen-year-old Lee Boyd Malvo shot and killed ten people in the Washington D.C. area.[33] The shootings became commonly referred to as the “D.C. sniper attacks.”[34] For his role in the shootings, Malvo was charged with capital murder in the commission of an act of terrorism, as well as capital murder of more than one person within a three-year-period.[35] Under Virginia law, defendants over the age of sixteen and convicted of capital murder only had two possible sentences: life in prison or the death penalty.[36] Virginia had previously done away with parole for felony crimes, and therefore a sentence of life would be LWOP.[37] Malvo was subsequently given four sentences of LWOP.[38]

After the Montgomery decision, the Virginia Supreme Court held in Jones v. Commonwealth[39] (“Jones II”) that Miller did not apply to Virginia because the “capital-murder sentencing scheme was not ‘mandatory.’”[40] Notably, the court in Jones II deemed Miller only to mean “that a sentencer ‘must have the opportunity to consider mitigating circumstances’” when sentencing a juvenile to LWOP.[41] While trial judges only had the opportunity to sentence an individual convicted of capital-murder to LWOP, prior precedent from the Virginia Supreme Court acknowledged that the judges may nonetheless suspend a LWOP sentence.[42] Therefore, the Jones II court held that a trial judge may consider factors such as youth when determining whether the court should suspend the sentence, and thus the sentencing scheme was not mandatory.[43]

Upon petition of habeus corpus, a federal district court vacated Malvo’s sentences.[44] The district court concluded that Miller held that a LWOP sentence may only be given to those juveniles “whose crimes reflect ‘transient immaturity’ rather than ‘irreparable corruption.’”[45] The Court of Appeals for the Fourth Circuit affirmed the district court, holding that “the sentencer must actually ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’”[46]

On appeal to the Supreme Court, petitioner Randall Mathena, the prison warden, argued that Miller stands for the premise that the Eighth Amendment only prohibits sentencing schemes which mandate LWOP sentences for juveniles.[47] Alternatively, respondent Malvo argued that Miller held more broadly that sentencers must “‘consider[] youth and attendant characteristics’” when determining whether to mete a LWOP sentence to a juvenile.[48]

III. Discussion

While the Court will not likely rule on Mathena until 2020, the oral arguments appeared to lean somewhat in favor of respondent Malvo. When questioning Mathena’s counsel, Justice Kagan acknowledged that she read Miller to stand more broadly for the premise that “youth matters.”[49] Furthermore, Justice Kagan stated that the “lesson of Miller” is that a “judge or jury . . . has to take . . .  youth into account.”[50] Justice Kagan’s comments are particularly interesting and insightful in the context of Miller, as Justice Kagan drafted its majority opinion. In addition to Justice Kagan, Justice Kavanaugh also appeared to show some support for Malvo’s position. Notably, Justice Kavanaugh asked Mathena’s counsel whether a discretionary scheme would be enough to satisfy Miller if the Court held Miller to mean that only juveniles who are “incorrigible” may be sentenced to LWOP.[51] With this line of questioning, Justice Kavanaugh implied some understanding and support for Malvo’s position.[52]

Should the Court rule in Malvo’s favor, Mathena has the potential to create significant changes in the way youth offenders are sentenced. Moreover, Mathena would likely impact other inmates who were sentenced to LWOP as juveniles, even if those inmates were sentenced under non-mandatory schemes. In its narrowest sense, Miller prohibits sentencing schemes that impose mandatory LWOP sentences on youth. Applied retroactively under Montgomery, this narrow interpretation gave over 2,000 inmates the opportunity to be resentenced.[53] Under a broader interpretation – that sentencers must always take into account a juvenile offender’s youth – the implications could range far beyond those created under the narrower interpretation. If the Court holds that Miller and Montgomery require judges to always take into account an offender’s youth before meting a LWOP sentence, some inmates might be able to challenge their sentence on the grounds that the sentencer did not adequately take their youth into account. With this implication in mind, Mathena could create procedural issues in courts. As Justices Sotomayor and Kavanaugh noted in oral argument, judges often take into account sentencing factors for defendants without stating on the record that they have considered each individual factor.[54] There are likely offenders who were sentenced as juveniles to non-mandatory LWOP whose judges did not specifically state at sentencing that the offender’s youth was considered. The consequence of which would potentially create a cascade of requests for resentencing, even if the judge took youth into account without expressly acknowledging it on the record.

Even considering this implication, a broad reading of Mathena is in-line with much of the Court’s recent decisions on juvenile offenders. Over the past fifteen years, the Court has taken a rather sympathetic stance on juvenile offenders, generally finding juveniles to be more immature and vulnerable than adult offenders.[55] While prohibiting mandatory LWOPs provides protections for juveniles, requiring a system in which a juvenile’s age must be taken into account would help ensure that juveniles who acted out of “transient immaturity” would not be “irrevocably sentence[ed]” to prison for the rest of their lives.[56]

IV. Conclusion

With its decisions in Miller and Montgomery, the Supreme Court protected juveniles from being sentenced to LWOP under mandatory sentencing schemes. However, the Court now has the opportunity to significantly expand these protections by requiring judges to take a juvenile offender’s youth into account whenever they consider a LWOP sentence. While the Justices appeared to lean toward Malvo’s position during oral arguments, accepting this broad interpretation could open the door for a flood of resentencing requests by youth offenders sentenced to LWOP prior to Mathena. Nonetheless, the Court in recent years has taken a number of steps to protect juveniles in the criminal justice system, and finding for Malvo would provide even greater protection for youth offenders.

[1] No. 18-217 (2019).

[2] 567 U.S. 460 (2012).

[3] 136 S. Ct. 718 (2016).

[4] 567 U.S. at 465.

[5] Id. at 466-69.

[6] Id. at 467-68

[7] Id. at 468-69.

[8] Id. at 469.

[9] Id. at 465-66.

[10] Id. at 466

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 470-78.

[15] 560 U.S. 48 (2010) (holding that youth offenders may not be sentenced to LWOP for nonhomicide crimes).

[16] 543 U.S. 551 (2005) (holding that the Eighth Amendment prohibits death sentences for youth offenders).

[17] Miller, 567 U.S. 470-78.

[18] Id. at 479.

[19] Id. at 480.

[20] 136 S. Ct. at 725.

[21] Id.

[22] Id.

[23] Id. at 725-26 (citing State v. Montgomery, 242 So. 2d 818 (La. 1970)).

[24] Id. at 726.

[25] Id. at 727.

[26] Id. at 728.

[27] 489 U.S. 288 (1989).

[28] Montgomery, 136 S. Ct. at 728.

[29] Id. (citing Penry v. Lynaugh, 492 U.S. 302, 330).

[30] Id. (citing Penry, 492 330).

[31] Id. at 734 (citing Penry, 492 U.S. at 330).

[32] Id. (citing Miller, 567 U.S. at 479-80).

[33] Tucker Higgins, DC sniper Lee Boyd Malvo to ask Supreme Court for resentencing in case over youth punishment, CNBC (October 16, 2019),

[34] Id.

[35] Brief for Respondent at 8, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019).

[36] Id.

[37] Id. at 9.

[38] Id. at 10.

[39] 795 S.E.2d 705 (Va. 2017).

[40] Brief for Respondent at 14, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019) (citing Jones II, 795 S.E.2d at 713).

[41] Id. (citing Jones II, 795 S.E.2d at 708).

[42] Id. at 14-15.

[43] Id. at 15 (citing Jones II, 795 S.E.2d at 711-13).

[44] Id. at 16.

[45] Id.

[46] Id. (citing Pet. App. 14a)

[47] Brief for Petitioner at 9, Mathena v. Malvo, No. 18-217 (Jun. 11, 2019).

[48] Brief for Respondent at 19, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019) (citing Miller, 567 U.S. at 483).

[49] Oral Argument at 7:44, Mathena v. Malvo, No. 18-217 (2019),

[50] Id.

[51] Id. at 13:37.

[52] See Id.

[53] Matt Ford, A Retroactive Break for Juvenile Offenders, The Atlantic (January 26, 2016),

[54] Oral Argument at 33:54, 36:38, Mathena v. Malvo, No. 18-217 (2019),

[55] See Miller, 567 U.S. 460, Montgomery, 136 S. Ct. 718, Roper, 543 U.S. 551, Graham, 560 U.S. 48.

[56] Miller, 567 U.S. at 480-81.

Is Google’s Ad Policy Anti-Competitive?

Photo by Benjamin Dada on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

Google has been under fire this year for alleged antitrust violations.  In March, the European Commission fined Google 1.49 billion euros for breaking EU antitrust rules, the third such fine in two years.[1] The House Judiciary Committee began investigating Google and other large tech companies in June for possibly breaches of American antitrust law.[2] The Department of Justice announced in July that it would conduct a sweeping antitrust review of “market leading online platforms,”[3] and in September requested information from Google about previous antitrust investigations.[4] The attorneys general of forty-eight states, Puerto Rico, and Washington, D.C. have announced a joint probe into potential antitrust violations by Google’s advertising business.[5] And just days ago, a competitor digital advertising company sued Google in federal court, alleging that Google unlawfully forced it out of business.[6]

Google makes most of its money on digital advertising.[7] Acting as a broker for online ads, Google buys ad space on websites through AdSense and sells that space to third parties through Google Ads.[8] Much of the recent conversation has centered on the ways Google has bought ads to create a monopoly in the market for online ads generally. For example, for over ten years Google prohibited websites selling space to Google from working with competing advertising brokers.[9] However, this article will explore whether Google is using its dominance in the sale of online ads to unlawfully decrease competition in other areas. Specifically, does Google’s Ad Policy—the rules which buyers must follow in order to purchase advertising space from Google—bear out the allegations of monopolistic practices? 

II. Factual Background 

Nearly 90% of internet searches are conducted on Google.[10] But that service is free; Google’s revenues come almost entirely from the sale of online advertising.[11] Advertising on the internet has become a premier method of marketing, and in 2018 sales of online ads generated revenues over $100 billion.[12] Google is the largest single player in that market, bringing in roughly a third of all online ad sales revenue.[13]

Google is like an agent of online real estate for ads.[14] First Google obtains the space for online ads.[15] Some of those spaces are on Google’s own web pages—Google search results, YouTube, Gmail, Google Maps, and more.[16] But many of those spaces are also on third party websites.[17] A third party can sell space on its website to Google through AdSense.[18] Google then sells these spaces to advertisers through Google Ads.[19] Advertisers compete against each other in Google-run auctions.[20] The advertiser who offers the most money per click receives the coveted ad spot, until another advertiser outbids.[21] Not just anyone can participate in Google’s advertising business, however.

Google will only sell ad space to buyers that follow the Google Ads Policy.[22]

The stated goal of the policy is to “support a healthy digital advertising ecosystem—one that is trustworthy and transparent, and works for [everyone using it].”[23] The policies restrict the content and conduct of ads in many situations, ranging from how election ads target voters to whether an ad contains sexually explicit content.[24] These policies also regulate the ad’s destination—the website an ad links to.[25]

Although Google’s main business is digital advertising, Google’s parent entity, Alphabet, owns eight other subsidiaries operating in a range of industries.[26] In at least two situations, Google’s Ad Policy restricts markets in which a branch of the Alphabet family participates. 

For example, in September of this year Google changed its Ad Policy[27] to state that “[p]romotion of speculative or experimental medical treatments/technology is prohibited.”[28] In a non-exhaustive list of prohibited products and services, Google lists “platelet rich plasma.”[29] Platelet rich plasma (PRP) is a method of isolating platelets, a solid part of the blood that helps clot blood and heal injuries in the body.[30] In recent years, some doctors have used PRP to gather a patient’s platelets and re-inject them at various locations in the body to treat conditions such as muscles injuries, arthritis, and tendonitis.[31] The medical community does not yet have a consensus on the efficacy of PRP treatment generally, but the American Academy of Orthopaedic Surgeons says PRP is effective in treating chronic tendon injuries in the elbow.[32] The medical company Eclipse produces the FDA-approved[33] Eclipse PRP system, which allows medical providers to isolate platelets from patients’ blood.[34] A Google search on December 4, 2019 for “Eclipse PRP” returned with no ads. 

Alphabet also competes in the healthcare technology market through its subsidiary Verily Life Sciences.[35]Verily blends data analysis with medical technology to create devices like personal monitors for atrial fibrillation and diabetes patients.[36] One of Verily’s projects is Lumi, a partnership with Pampers to create a system for parents to monitor newborn children’s biometrics by attaching a sensor to an infant’s diaper.[37] This device is not regulated by the FDA, which has sparked concern among parents over the device’s safety.[38] A team of doctors at Children’s Hospital of Philadelphia published a study in the Journal of the American Medical Association warning that baby monitors exempt from FDA regulation were less accurate than similar devices with FDA approval.[39] However, a Google search on December 4, 2019 for “Lumi by Pampers” reveals two paid advertisements: one at the top of the search results, and one on the right hand side bar, both leading to the Pampers website.

In another example, Google has restricted ads related to cryptocurrency. In early 2018, cryptocurrency advertisers reported that Google was denying their ads and suspending their accounts, without any official reason or policy.[40] Later that year, Google announced a total ban on all ads for “cryptocurrencies and related content (including but not limited to initial coin offerings, cryptocurrency exchanges, cryptocurrency wallets, and cryptocurrency trading advice).”[41] Google has since relented on this total ban and carved out two exceptions: cryptocurrency mining products and services are permitted, and cryptocurrency exchanges can advertise if Google certifies them.[42] All other cryptocurrency related ads are banned.[43] However, Google also participates in the market for digital currency.[44] First, Google has developed resources in its paid Google Cloud service for users of Ethereum, a popular cryptocurrency.[45] Second, Google has launched its own digital wallet called Google Pay, which allows users to exchange money online and in stores through an app.[46]

III. Legal Background

The Sherman Antitrust Act protects competition and efficiency in the market.[47] There are two key provisions: §1 bans any contract, combination or conspiracy in restraint of trade, and §2 forbids any person or combination from monopolizing or attempting to monopolize interstate commerce.[48]

Parties violate §1 when they agree to unreasonably restrain trade.[49] Certain agreements are per se unreasonable, such as setting prices at a fixed level.[50] In all other cases, courts make a “rule of reason” inquiry into whether the challenged agreement promotes or suppresses competition.[51] Illegal monopolization occurs under §2 when a firm has monopoly power in the relevant market and purposefully acquires or maintains that power.[52] In analyzing a possible §2 violation, courts first define the relevant market: the smallest product and geographic market which, if one party controlled the entire market, that party could arbitrarily raise prices and consumers would simply pay them. [53] Courts then examine whether the defendant has monopoly power in that market; 75% or more of market share routinely constitutes monopoly power, and 90% almost always qualifies.[54] The last step is to establish whether the defendant exercised that power to exclude competition.[55]

A violation of either provision requires intent. In criminal prosecutions of the Sherman Act the government must prove monopolistic purpose,[56] but a civil plaintiff can satisfy intent merely by demonstrating the challenged action’s anticompetitive effects.[57] Conduct is anticompetitive if it forecloses competition in any market.[58] This could occur when a monopoly shuts out competitors in its own market, or when it uses “monopoly power attained in one market to gain a competitive advantage in another.”[59]

A refusal to deal can constitute anticompetitive conduct in certain circumstances. The Colgate doctrine famously states: “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell.”[60] Thus the default rule is that businesses can choose the parties, prices, terms, and conditions, of their dealings.[61] However, that right is qualified: no right of refusal exists where the refusal violates antitrust law.[62] Courts are hesitant to impose a duty to deal if doing so would require unreasonable judicial supervision of private business. [63]Nevertheless, courts have recognized a duty to deal in two relevant contexts.  

First, courts have held that some dominant newspapers must sell ad space to advertisers.[64] In the landmark case Lorain Journal Co. v. United States, the Supreme Court affirmed that a newspaper serving 99% of Lorain could not refuse to sell ads to advertisers who also bought ads from a local radio station.[65] This refusal forced advertisers in the newspaper to boycott a competing source of news and advertising.[66] Because the paper had used its market power in advertising to exclude competition, the court found the paper violated §2.[67] Similarly, the Sixth Circuit in Home Placement Service, Inc. v. Providence Journal found that a dominant newspaper violated the Sherman Act by refusing to sell ads to for a home rental referral service.[68] The court found that the newspaper competed with the referral service for housing ads.[69] Because the newspaper had market power over daily newspaper ads in the Providence area, refusing to sell ads to a competitor was anticompetitive conduct of a monopoly in violation of §2.[70] Further, the referral service eventually agreed to stop charging for its service in order to advertise in the paper; that coerced deal violated §1 as an agreement in restraint of trade.[71]

Courts have also found that some providers of “essential facilities” must deal with others.[72] For instance, in Otter Tail Power Co. v. United States, the Supreme Court affirmed that an electric utility company had a duty to deal with municipalities who wanted to buy power.[73] Because the company also operated power distributors in competition with the municipalities, the company’s refusal to deal with the municipalities excluded competition in violation of §2.[74] The Supreme Court has since limited the essential facilities doctrine to contexts where the defendant fully owns and sells something that rivals cannot supply to themselves, where selling to rivals would be profitable, and there is no regulatory agency requiring the sharing of the facility.[75]

IV. Analysis

The restrictions Google’s Ad Policy imposes on advertisers might violate the Sherman Act under a refusal to deal theory. Under the case law concerning refusal to sell ads and refusal to provide essential facilities, a court might find that Google unlawfully excludes competition by only selling ads to parties who satisfy Google’s Ad Policy. 

The ban on ads for speculative and experimental medical technology and treatment might be a §2 violation. The relevant market would be the narrowest possible to maintain a monopoly: the market for healthcare technology search ads in the United States. In a world where “Just Google it” is an everyday phrase, search engines are the first place people go to research new products and services. Searching the name of a person, company, product, or services does not guarantee it will be the first result; thus, competitive firms place ads on search result pages to catch consumers’ attention. There is no substitute. Because Google maintains 90% of the entire search engine market, Google likely has substantial market power in the market for healthcare technology search ads in the United States. 

Acting to exclude competition is necessarily a fact-specific analysis. Google may well have acted for legitimate business reasons to prohibit ads for experimental healthcare technology. Protecting consumers from deceptive advertising, particularly in an area as important as health, is surely reasonable for a broker of ads. But the nature of the healthcare technology industry, Google’s monopoly power in that industry’s search advertising, and Google’s relationship with Verily are important considerations. 

“Speculative” and “experimental” are meaningless terms in this context. Healthcare technology is inherently experimental because it is driven by innovation. New medical devices are untried at first until they gradually gain acceptance by the scientific and medical community; the entire process is “experimental.” Rather than protecting consumers, this restriction presents an additional hoop that healthcare technology producers must jump through to bring their goods to market. This policy gives Google the power to deny ads for competing technologies it deems to be too speculative—an arbitrary standard in a market where successful products necessarily do what has never been done. Because Google is a monopoly in search ads, its decision as to what is too speculative has ripple effects down the supply chain. If Google labels a certain company as peddling speculative or experimental healthcare technology, that company will be essentially shut out of the search ad market. Further, suppliers of that technology will have to purge their websites of all references to that technology in order to maintain their own Google ads. 

This is problematic because Alphabet’s Verily is in direct competition with other healthcare technology companies. Although Google and Verily are separate entities, §2 applies to both unilateral and joint actions. Google might employ its Ad Policy to advantage Verily and disadvantage competing healthcare technology companies. Google has already permitted an ad for the Lumi baby monitor, a product that consumers might reasonably regard as experimental. Any Verily ad that Google approves in the future would further the argument that Google is not using its standard fairly. Particularly, a plaintiff who could show an ad denied for a similar product to Verily’s would have a strong case under §2. Precisely because Google and Verily are not the same company, such a scenario also might violate §1 as an agreement in restraint of trade. 

Google’s restriction on cryptocurrency ads might present a §2 violation. The relevant market would be search ads for digital currency in the United States. Google likely has a monopoly in this market for the same reasons discussed above. Reasonable justifications for restricting cryptocurrency ads might include shielding consumers from an unpredictable, unregulated industry. Although paternalistic, this might be within Google’s right under the Colgate doctrine. The problem is that again, there are anticompetitive effects because Google itself competes with the very entities this rule touches. Google is actively trying to gain business on its Google Cloud service from cryptocurrency users. At the same time, Google is placing a bet that cryptocurrency is not the digital currency of the future; Google’s alternative to cryptocurrency is the Google Wallet. That service offers the perks of exchanging money digitally coupled with the reliability of government-backed traditional currency. Google has created a win-win situation: profit on cryptocurrency while it lasts, and capture cryptocurrency’s users when it fails. By restricting ads for cryptocurrency, Google inhibits cryptocurrency platforms from fully reaching consumers, thus furthering cryptocurrency’s demise. Google is thus using its monopoly power in the market for search ads for digital currency to foreclose competition in the market for digital currency. 

Courts might also view Google’s search engine as an essential facility. Public opinion increasingly treats the internet—and searching things on the internet—as a public utility that should be open to all. A progressive court might find that Google has a duty to deal non-arbitrarily with advertisers because the service it provides is only available through Google. Although other search engines exist, Google maintains a near total monopoly, with no strong competitor in sight. Searching the internet might be an essential facility for consumers, and advertising on search results might be an essential facility for providers of goods and services. If that is the case, then Google would have a heightened duty to deal with advertisers. 

V. Conclusion

Google’s Ad Policy might violate the Sherman Act under a refusal to deal theory. Following cases imposing a duty to deal on newspapers selling ads and on providers of essential facilities, a court could find that Google is using its market dominance to exclude competition in healthcare technology and in cryptocurrency. Further developments might reveal anticompetitive restrictions in Google’s Ad Policy beyond those discussed here. As a major player in digital advertising, and as the dominant player in digital search advertising, Google should be careful not to create rules which violate antitrust law.  

[1] Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising, European Commission (Mar. 19, 2019)

[2] Adi Robertson, Congress just asked big tech companies for private emails about their biggest controversies, The Verge (Sep. 13, 2019)

[3] Tony Romm, Elizabeth Dwoskin, & Craig Timberg, Justice Department announces broad antitrust review of big tech, The Washington Post (Jul. 23 2019, 7:34 PM)

[4] Brian Fung, Google hit by DOJ demand for antitrust records, CNN Business (Sep. 6, 2019, 7:14 PM)

[5] Steve Lohr, Google Antitrust Investigation Outlined by State Attorneys General, The New York Times (Sep. 9, 2019)

[6] David McLaughlin, Google Accused of Antitrust Violations in Digital Advertising Market, Fortune (Nov. 26, 2019)

[7] J. Clement, Google: ad revenue 2001-2018, Statista (Aug. 9, 2019)

[8] Eric Rosenberg, How Google Makes Money (GOOG), Investopedia (Dec. 5, 2018)

[9] Id. 

[10] J. Clement, Global market share of search engines 2010-2019, Statista (Dec. 3, 2019)

[11] J. Clement, Google: ad revenue 2001-2018, supra. 

[12] IAB internet advertising revenue report, PricewaterhouseCoopers (May 2019)

[13] J. Clement, Google’s market share of global digital ad revenues 2016-2019, Statista (Jul. 23, 2019)

[14] Rosenberg, supra note 8. 

[15] Id. 

[16] Id. 

[17] Id. 

[18] Id. 

[19] Id.

[20] Id. 

[21] Id. 

[22] Google Ads policies, Google 

[23] Id. 

[24] Id. 

[25] Google Ads Policies, Google

[26] Rakesh Sharma, Why Google Became Alphabet, Investopedia (Oct. 24, 2019)

[27] A new policy on advertising for speculative and experimental medical treatments, Google (Sep. 6 2019) 

[28] Healthcare and medicines, Google 

[29] Id. 

[30] Frank B. Kelly, Platelet-Rich Plasma (PRP), American Academy of Orthopaedic Surgeons (Sep. 2011)

[31] Id. 

[32] Id. 

[33] 510(k) Premarket Notification, U.S. Food and Drug Administration,

[34] Eclipse PRP, Eclipse

[35] How Google Plans To Use AI To Reinvent The $3 Trillion US Healthcare Industry, CB Information Services

[36] Verily Projects, Verily

[37] Lumi by Pampers, Verily

[38] Patrick Coleman, The Big Problem with Baby Trackers, Fatherly (Aug. 12, 2019 5:03 PM)

[39] Two Consumer Baby Monitors Show Worrisome Results in Measuring Vital Signs, Children’s Hospital of Philadelphia

[40] Molly Jane Zuckerman, Crypto Advertisers On Google Report Ad Suspensions and Account Terminations, Cointelegraph (Mar. 11, 2018)

[41] Google Support Policies, Google

[42] Financial products and services, Google (

[43] Id. 

[44] Allen Day, Building hybrid blockchain/cloud applications with Ethereum and Google Cloud, Google (Jun. 13, 2019)

[45] Id. 

[46] Start using Google Pay today, Google 

[47] The Antitrust Laws, Federal Trade Commission

[48] Klor’s v. Broadway-Hale Stores, 358 U.S. 207, 210-211 (1959); 15 U.S.C. §§1-2. 

[49] Nynex Corp. v. Discon, 525 U.S. 128, 133 (1998). 

[50] Id. 

[51] National Soc. Of Professional Engineers v. U.S., 435 U.S. 679, 691 (1978). 

[52] United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). 

[53] Herbert Hovenkamp, Principles of Antitrust 65 (West Academic 2017).

[54] Id. 

[55] Id. at 250. 

[56] U.S. v. U.S. Gypsum Co, 438 U.S. 422, 435 (1978). 

[57] McLain v. Real Estate Bd., 444 U.S. 232, 243 (1980). 

[58] U.S. v. Griffith, 334 U.S. 100, 107 (1948). 

[59] Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 276 (2d Cir. 1979). 

[60] United States v. Colgate & Co., 250 U.S. 300, 307 (1919). 

[61] Pac. Bell Tel. Co. v. linkLine Communs., Inc., 555 U.S. 438, 439 (2009). 

[62] Official Airlines Guides, Inc. v. FTC, 630 F.2d 920, 927-28 (1980); Aspen Skiing Co. v. Aspen Highlands Skiing Corp, 472 U.S. 585, 601 (1985).

[63] Byars v. Bluff City News Co., 609 F.2d 843, 864 (6th Cir. 1979); Verizon Communs., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 415 (2004). 

[64] 342 U.S. 143, 155 (1951).

[65] Id. at 152-53. 

[66] Id. at 153.

[67] Id

[68] 682 F.2d 274, 279 (1st Cir. 1982). 

[69] Id. 

[70] Id. 

[71] Id. 

[72] Hovenkamp, supra, at 282. 

[73] Otter Tail Power Co. v. United States, 410 U.S. 366, 380 (1973).

[74] Id. at 368. 

[75] Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U.S. 398, 410-11 (2004). 

Compared To What? Interpreting RLUIPA’s Equal Terms Provision

Photo by Akira Hojo on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

Imagine attending church in a small rental space. The landlord announces he will develop the space into a retail store next year, so the church will need to move elsewhere. The church’s leadership resolves to build a permanent home for its ministry. After months of fundraising, the church secures a loan and buys the perfect piece of land. Before the church can break ground, however, the city passes a regulation requiring all non-profits to apply for a conditional use permit. The city denies the church’s application but grants one for a nonreligious non-profit just next door to the church’s plot. Fortunately, federal law may provide a remedy. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects religious liberty in the context of land use regulations,[1] such as the one described above. The Equal Terms provision of RLUIPA states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”[2] A person may assert a violation of this provision in court as a claim or defense against a government.[3] While this might appear to address the very situation described, there is one problem: federal courts do not agree what constitutes unequal treatment under this provision.[4]  That means that the fate of this hypothetical church might depend on its judicial jurisdiction.

II. Background

Courts have said that RLUIPA and its Equal Terms provision should be understood in the broader context of Congress’ efforts to protect the “free exercise of religion” guaranteed by the First Amendment.[9] Until the late twentieth century, courts reviewed government action that substantially burdened sincere religious belief with a standard called “strict scrutiny”: the government needed to pursue a compelling state interest through the method least burdensome to religious exercise.[10] A person who believed some government action infringed on his or her religious exercise could sue for an exemption, which a court would grant if the government action did not pass strict scrutiny.[11] The Supreme Court limited this practice in Employment Division v. Smith.[12] Wary of judges balancing religious belief against government interests, the Court held that strict scrutiny should only apply to government action that on its face intentionally discriminates against religion.[13] The Court added that exemptions to neutral, generally applicable laws would have to come from legislatures.[14]

Smith sparked concern that courts would be powerless to address burdens on religious liberty masked by facially neutral reasons.[15] Many people also feared that making religious exemptions an entirely legislative process would hurt minority religions.[16] In response to Smith, Congress passed the Religious Freedom and Restoration Act of 1993 (RFRA) with unanimous support in the House and only three objectors in the Senate; President Bush swiftly signed it into law.[17] RFRA required courts to re-adopt strict scrutiny in religious exercise claims.[18] The Supreme Court struck down RFRA as applied to state governments in City of Boerne v. Flores, citing concerns that Congress was intruding on the role of courts and state governments.[19]

Although the Supreme Court had rejected a broad attempt to re-impose strict scrutiny in all free exercise claims, Congress persisted in extending that protection in a narrower context.[20] After Boerne, Congress passed RLUIPA unanimously and President Clinton signed it into law in 2000.[21] RLUIPA re-imposed the strict scrutiny test for religious exercise claims in two contexts: land use regulations[22] and the prison system.[23] RLUIPA also contains the Equal Terms provision that states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”[24] Congress included rules of construction to aid courts in interpreting the various provisions, stating: “This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”[25]

The Equal Terms provision of RLUIPA presents four elements that a plaintiff must show to state a claim: 1) the plaintiff is a religious assembly or institution 2) subject to a land use regulation 3) that treats the plaintiff on less than equal terms 4) compared with a nonreligious entity.[26] “Less than equal” treatment can occur in one of three ways.[27] A regulation might discriminate against religious entities on its face, for example by banning churches altogether.[28] A regulation could apply so disproportionately against religious entities that it is “gerrymandered inequality,” as with a statute that bans steeples in an area where the only buildings with steeples are churches.[29] Last, a government might enforce a regulation unequally, for example by requiring non-profits to apply for a special permit and approving all applications except those from churches.[30] The heart of the split between circuits is the fourth element: to what sort of nonreligious entity does a religious entity need to compare in order to show unequal treatment?[31]

The Eleventh Circuit, the first to address this issue, uses the plain meaning approach.[32] Under this view, the religious entity must identify merely “a nonreligious assembly or institution”—that is to say, any nonreligious assembly or institution also subject to the regulation. For instance, a city might declare that no structure in its limits may be higher than forty feet, barring construction of a proposed church of forty-five feet. The congregation could assert a violation of the Equal Terms provision as long as it could identify a nonreligious entity also in the city limits. This does not mean that the church automatically wins, but rather that a court can then proceed to analyze whether the treatment was unequal. This plain meaning approach relies on the history[33] and text[34] of RLUIPA as evidence that Congress clearly intended to give religious entities broad protection in land use regulations. 

However, the Third, Sixth, Seventh, and Ninth circuits require that the nonreligious entity also be similarly situated to the religious entity seeking relief.[35] These circuits define “similarly situated” in slightly varying but closely related ways.[36] Each requires the religious entity to show that a nonreligious entity is subject to the same regulation and is sufficiently similar before the court will even analyze unequal treatment.[37] In the example above, that same church could not proceed without identifying a nonreligious assembly of a similar height—and a judge would decide what height is sufficiently similar. The similarly situated approach fears the plain meaning would give too much preference to religious entities and violate the First Amendment as a law “respecting an establishment of religion.”[38]

In May of 2019, the Supreme Court denied review of the most recent case to address this conflict, Tree of Life Christian Sch. v. City of Upper Arlington, leaving this circuit split unsettled.[39]

This issue can make or break a case for Equal Terms plaintiffs struggling to identify a nonreligious entity for comparison. Consider Tree of Life for instance. In that case, the City of Upper Arlington had enacted a zoning regulation to create a business district to maximize revenue for the city.[40] The plan restricted properties within the district to commercial uses and prohibited non-profits generally, including schools.[41] A select few non-profits were automatically exempted from the ban, including hospitals and daycares which the city deemed would promote business.[42] However, places of worship and churches needed conditional use permits from the city.[43] Tree of Life Christian School bought a large office building to create a unified campus for its students, who attended school in multiple locations.[44] Upper Arlington denied Tree of Life’s application for a conditional use permit as a place of worship.[45] In response, Tree of Life sued the city under the Equal Terms provision of RLUIPA.[46] After Tree of Life’s defeat at trial, the major issue on appeal was what nonreligious entity Tree of Life could identify for comparison.[47]

Judge Thapar’s dissent followed the plain meaning approach and argued that Tree of Life could compare treatment using any nonreligious entity in the city.[48] Because hospitals and daycares satisfied this comparison, Judge Thapar proceeded to analyze unequal treatment. He concluded that Upper Arlington’s regulation discriminated on its face against Tree of Life by requiring (and denying) a conditional use permit which those hospitals and daycares did not need.[49] However, Judge Gilman’s opinion for the court held that since Upper Arlington’s zoning plan aimed at raising money for the city, Tree of Life needed to identify a nonreligious institution with similar potential for tax revenue.[50] Although Tree of Life demonstrated it would provide more total taxable income than an approved daycare center, Upper Arlington countered that the daycare would bring in more tax dollars per square foot.[51] Siding with the city, the court refused to analyze unequal treatment because no nonreligious entity was similarly situated.[52] Thus the interpretation of which nonreligious entity to compare controlled the outcome of the case.

III. Analysis

On one hand, the similarly situated approach makes intuitive sense. Consider Tree of Life: the regulation was about raising money for the government, and Upper Arlington merely denied a conditional use for something it believed would not make much money. The problem with this approach is that it controverts the plain meaning of the Equal Terms provision. As Judge Thapar explained in his dissent, the statute clearly tells courts what to use to compare treatment. He went on to say that the only work for the court to do is identify a nonreligious entity, and then analyze whether the treatment was unequal. The similarly situated requirement makes it harder for religious people to assert violations of the Equal Terms provision, as Tree of Life shows. Without a nonreligious entity to compare, the court could not even analyze unequal treatment. Further, the city held all the cards, because it defined the criteria of its regulations. Upper Arlington twisted the standard for revenue generation to prevent Tree of Life from identifying a comparable nonreligious entity. Even though the regulation discriminated on its face by requiring a special permit for religious entities, Tree of Life could not show an Equal Terms violation. 

The Tree of Life decision took the teeth out of the Equal Terms provision and gave governments an easy way to exclude unwanted religious entities. Religious entities will almost always create less tax dollars than for-profit businesses, so any government seeking to push out a religious entity need only cite economic growth as justification. Allowing governments to exclude religious entities by casting their land use schemes in monetary terms controverts RLUIPA’s purpose. 

A. Legislative History and Plain Language 

RLUIPA and its Equal Terms provision were meant to give religious entities a major tool to protect their free exercise: a government cannot use land use regulations to allow nonreligious entities but exclude religious ones. The similarly situated approach is not based on the actual text or history of RLUIPA. Instead, courts have created the similarly situated requirement on their own. They reasoned that Congress could not have meant to exempt religious entities from land use regulations that everyone else must follow—so the text must mean something else. Finding the statute ambiguous, they created new terms that made asserting an Equal Terms violation harder for religious entities. But the history of RLUIPA does not support such a reading, and the statute is not ambiguous. 

Congress’ tug of war with the Supreme Court demonstrates Congress’ commitment to protect religious exercise to the greatest degree permitted by law. Congress absolutely intended to allow religious exemptions from generally applicable laws; that was what RFRA and RLUIPA were all about. Even Smith itself, which limited the capacity of judges to provide religious exemptions, explicitly stated that legislatures may provide these exemptions if they so desire. Smith all but encouraged legislatures to provide religious exemptions by statute so that judges would not have to. RLUIPA does just that. 

If a court doubts legislative history, the statute itself removes any confusion; it instructs courts to construe the terms to protect religious entities to the maximum possible extent. Consider the text once more: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” The text is clear, and the words “similarly situated” are not there. The words that are present do not suggest that courts should first inquire as to whether a nonreligious entity is similarly situated enough, and only then proceed to the question of unequal treatment. The court’s job is simply to compare “a religious assembly or institution” with “a nonreligious assembly or institution.”

B. Establishment Clause 

Courts have recognized the constitutionality of religious exemptions for decades. RLUIPA’s Equal Terms provision continues that tradition. The Supreme Court’s logic in Cutter, which dealt with the strict scrutiny provision in the prison context, is directly applicable to the Equal Terms provision in the land use context. The Court emphasized that protecting free exercise and remedying discrimination can require giving special accommodation to religious entities. Because religious exercise involves actions, not just abstract thought, those accommodations might mean permitting a specific activity, such as inmates gathering for prayer or a congregation building a new church. Those accommodations are permissible as long as they do not promote religion. 

Applying the plain meaning of the Equal Terms provision does not promote any specific religion, nor does it promote religion over nonreligion. Regardless of belief, any religious institution or assembly can sue under the Equal Terms provision. Most importantly, even if a religious entity shows a comparable nonreligious entity, victory is not automatic. Another element of an Equal Terms violation is unequal treatment; the court must still decide that the government is actually treating the religious entity unequally compared to a nonreligious entity. Showing such treatment will be hard if only the government knows the true reason for the regulation. Courts should not make that process any harder by barring religious entities who cannot demonstrate a sufficiently similar nonreligious entity. 

IV. Conclusion

Congress wrote the Equal Terms provision of RLUIPA to ensure that governments do not use land use regulations to exclude religious entities. Unfortunately, some courts have deviated from Congress’ intention and imposed an added requirement which makes it more difficult to assert an Equal Terms violation. Neither the text and history of RLUIPA nor the Establishment Clause justify this added obstacle. Future courts should follow the Eleventh Circuit’s lead and enforce the plain meaning of the Equal Terms provision: governments cannot use land use regulations to treat religious entities worse than nonreligious entities.

[1] Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat. 803 (2000). 

[2] 42 U.S.C. §2000cc(b)(1). 

[3] Id. at §2000cc-2(a). 

[4] Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 387 (6th Cir. 2018) (“[C]ircuits split on the issue.”). 

[5] Id. at 366. (“The key disagreement among the circuits is what constitutes a proper comparator for the purpose of analyzing these elements.”) 

[6] Id. 

[7] Id. at 379 (Thapar, J., dissenting). 

[8] Lighthouse Inst. For Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 267 (3rd Cir. 2007); Tree of Life, 905 F.3d at 367; River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 372 (7th Cir. 2010); Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011).

[9] River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 378 (7th Cir. 2010). 

[10] Sherbert v. Verner, 374 U.S. 398, 403-06 (1963) (holding that South Carolina’s Employment Security Commission could not exclude a Seventh Day Adventist from unemployment benefits when she was fired for refusing to work on Saturdays);  Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (holding that Wisonsin’s compulsory education statute unduly  burdened the Amish community’s religious belief that higher education exposes develops influences which alienate man from God) 

[11] See generally Sherbert, 374 U.S. 398; Yoder, 406 U.S. 205. 

[12] 494 U.S. 872 (1989).

[13] Id. at 884-85. 

[14] Id. at 890. 

[15]Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L Rev. 153, 159 (1997) 

[16] Id. 

[17] H.R. 1308 – Religious Freedom Restoration Act of 1993,,

[18] 42 U.S.C. §2000bb. 

[19] 521 U.S. 507, 536 (1997). 

[20] Michael Paisner, Boerne Supremacy: Congressional Responses to City of Boerne v. Flores and the Scope of Congress’s Article I Power, 105 Colum. L. Rev. 537, 542-43 (2005).

[21] S.2869 – Religious Land Use and Institutionalize Persons Act of 2000,,

[22] 42 U.S.C. §2000cc(a). 

[23] Id. at §2000cc-1(a). 

[24] Id. at §2000cc(b)(1). 

[25] Id. at §2000cc-3(g). 

[26] Tree of Life, 905 F.3d at 367 (Gilman, J., for the court); Id. at 378 (Thapar, J., dissenting).  

[27] Id. at 380. 

[28] Id. 

[29] Id. at 381. 

[30] Id. at 381-82. 

[31] Tree of Life, 905 F.3d at 367. 

[32] Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1231 (11th Cir. 2004). 

[33] River of Life, 611 F.3d at 378-80 (Sykes, J., dissenting). 

[34] Tree of Life, 906 F.3d 357 at 379 (Thapar, J., dissenting). 

[35] Id. at 369. 

[36] Id. 

[37] Id. 

[38] Id. at 368.

[39] 905 F.3d 357 (6th Cir. 2018) (Cert. denied in Tree of Life Christian Sch. v. City of Upper Arlington, 139 S. Ct. 2011 (2019)). 

[40] Tree of Life, 905 F.3d at 361-62.

[41] Id. 

[42] Id. 

[43] Id. 

[44] Id. at 362. 

[45] Id. at 362.

[46] Id. at 363. 

[47] Id. at 363-67. 

[48] Id. at 384. 

[49] Id. at 385.  

[50] Id. at 371.

[51] Id. at 375-76.

[52] Id. at 376. 

[53] Id. at 368. 

[54] Employment Div. v. Smith, 494 U.S. 872, 890 (1990); Cutter v. Wilkinson, 544 U.S. 709. 

[55] 544 U.S. 709 (2005). 

[56] Id. at 720-22.

[57] Id. at 723-24. 

[58] Id. at 724. 

[59] Freedom Baptist Church v. Twp. Of Middletown, 204 F. Supp. 2d 857, 869-70 (E.D. Penn. 2002); Midrash Sephardi 366 F.3d at 1239-40.