McINTOSH v. UNITED STATES

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 22–7386. Argued February 27, 2024—Decided April 17, 2024

Petitioner Louis McIntosh was indicted on multiple counts of Hobbs Act robbery and firearm offenses. The indictment set forth the demand that McIntosh “shall forfeit . . . all property . . . derived from proceeds traceable to the commission of the [Hobbs Act] offenses.” The Government also later provided McIntosh with a pretrial bill of particulars that included as property subject to forfeiture $75,000 in cash and a BMW that McIntosh purchased just five days after one of the robberies. After a jury convicted McIntosh, the District Court imposed a forfeiture of $75,000 and the BMW at the sentencing hearing. Although the District Court also ordered the Government to submit an order of forfeiture for the court’s signature within a week from the hearing, the Government failed to do so. On appeal, the Government moved for a limited remand to supplement the record with a written order of forfeiture. The Second Circuit granted the unopposed motion. Back in District Court, McIntosh argued that the failure to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B)—which provides that “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant”—meant that the District Court could not proceed with forfeiture at all. The District Court overruled McIntosh’s objections, finding that the Rule is a time-related directive, and that the failure to enter a preliminary order of forfeiture before sentencing did not prevent the court from ordering forfeiture because the missed deadline did not prejudice McIntosh. The Second Circuit affirmed in relevant part.

Held: A district court’s failure to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review. Pp. 5–14.

 (a) Although the District Court did not comply with Rule 32.2(b)(2)(B) when it failed to enter a preliminary order of forfeiture before McIntosh’s initial sentencing, the District Court retained its power to order forfeiture against McIntosh. Pp. 5–11.

  (1) This Court has identified three types of time limits: (i) jurisdictional deadlines; (ii) mandatory claim-processing rules, and (iii) time-related directives. See Dolan v. United States, 560 U. S. 605, 610–611. McIntosh claims that Rule 32.2(b)(2)(B) is a claim-processing rule—a mandatory deadline that regulates the timing of motions or claims before the court and that, unlike jurisdictional deadlines, is subject to waiver and forfeiture by the litigant. Id., at 610. The Government, on the other hand, argues that Rule 32.2(b)(2)(B) is a flexible time-related directive—a deadline that seeks speed by directing a public official to act by a certain time and that, if missed, does not deprive the official of “the power to take the action to which the deadline applies.” Id., at 611. Noncompliance with a mandatory claim-processing rule is presumed to be prejudicial, Manrique v. United States, 581 U. S. 116, 125 (2017), but noncompliance with a time-related directive is, in this context, subject to harmless-error principles on appellate review, Fed. Rule Crim. Proc. 52(a). The Court agrees with the Second Circuit and the Government that Rule 32.2(b)(2)(B) establishes a time-related directive. Pp. 5–7.

  (2) The Court in Dolan addressed the proper remedy when a district court misses a statutory deadline to take action related to criminal sentencing imposed by a statute that “ ‘d[id] not specify a consequence for noncompliance.’ ” 560 U. S., at 611. The Court held that the provision at issue was a time-related directive, such that, if “a sentencing court misses the . . . deadline,” it retains the power to act in that circumstance. Ibid. Other cases similarly have recognized that certain deadlines, if missed, do not deprive a public official of the power to take the action to which the deadline applies. See, e.g., Barnhart v. Peabody Coal Co., 537 U. S. 149, 171–172; Regions Hospital v. Shalala, 522 U. S. 448, 459, n. 3; United States v. James Daniel Good Real Property, 510 U. S. 43, 63–65. These cases involved timing provisions that did not specify a consequence for the public officials’ noncompliance with the prescribed deadlines. Pp. 7–8.

  (3) Several features of Rule 32.2(b)(2)(B) lead to the conclusion that the Rule is best understood as a time-related directive. First, its plain language contemplates flexibility regarding the timing of a preliminary order’s entry, providing the indeterminate command that a preliminary order be entered “sufficiently in advance of sentencing” “[u]nless doing so is impractical.” This flexibility takes the Rule further away from the category of “rigid” and “ ‘inflexible claim-processing rule[s].’ ” Eberhart v. United States, 546 U. S. 12, 13 (per curiam). Second, Rule 32.2(b)(2)(B) does not impose a specific consequence for noncompliance, in contrast to other parts of Rule 32.2. See, e.g., 32.2(a). In the absence of such specification, courts typically “will not in the ordinary course impose their own coercive sanction” for noncompliance with a timing directive. James Daniel Good, 510 U. S., at 63. Third, Rule 32.2(b)(2)(B) governs the conduct of the district court, not the litigants. Mandatory claim-processing rules ordinarily “requir[e] that the parties take certain procedural steps at certain specified times,” Henderson v. Shinseki, 562 U. S. 428, 435 (emphasis added), and time-related directives typically spur public officials to act within a specified time. That distinction holds even in the examples that McIntosh identifies, and he has not identified a mandatory claim-processing rule that is analogous to Rule 32.2(b)(2)(B). Pp. 8–11.

 (b) McIntosh’s contrary arguments are unpersuasive. He points to the Rule’s use of the word “must” to highlight its mandatory character, but such language standing “alone has not always led this Court to interpret statutes to bar judges . . . from taking action to which a missed statutory deadline refers.” Dolan, 560 U. S., at 611–612. Construed in context, the Rule contemplates some flexibility with its impracticality exception and indeterminate command that a preliminary order be entered “sufficiently in advance of sentencing.” Nor does it “mak[e] sense,” as McIntosh claims, to classify Rule 32.2(b)(2)(B) as a mandatory claim-processing rule because the Government must move the process forward. Although the Government plays an indispensable role in the criminal-forfeiture process, the Rule is directed exclusively to the sentencing court. McIntosh also contends that an affirmance here would deprive the Rule of any effect, but a timely objection likely will prompt the district court to enter the preliminary order and, if appropriate, postpone sentencing. A timely objection would, at the very least, result in harmless-error review of the Rule’s violation. Finally, because McIntosh has not shown that reading the requirement as a time-related directive would frustrate significantly Rule 32.2’s effectiveness, McIntosh’s invocation of the Rule’s purpose—to ensure due process and promote judicial economy—falls flat. Pp. 11–13.

 (c) Noncompliance with Rule 32.2(b)(2)(B) is a procedural error subject to harmlessness review. Because McIntosh did not challenge the lower courts’ harmlessness analysis in either his certiorari petition or his opening brief, this Court need not revisit it. P. 13.

58 F. 4th 606, affirmed.

 Sotomayor, J., delivered the opinion for a unanimous Court.


MULDROW v. CITY OF ST. LOUIS, MISSOURI, et al.

Certiorari To The United States Court Of Appeals For The Eighth Circuit

No. 22–193. Argued December 6, 2023—Decided April 17, 2024

Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman. From 2008 through 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit so he could replace her with a male police officer. Against Muldrow’s wishes, the Department approved the request and reassigned Muldrow to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.

  Muldrow brought this Title VII suit to challenge the transfer. She alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. 42 U. S. C. §2000e–2(a)(1). The District Court granted the City summary judgment. The Eighth Circuit affirmed, holding that Muldrow had to—but could not—show that the transfer caused her a “materially significant disadvantage.” 30 F. 4th 680, 688. Muldrow’s lawsuit could not proceed, the court said, because the transfer “did not result in a diminution to her title, salary, or benefits” and had caused “only minor changes in working conditions.”

Held: An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Pp. 5–11.

 (a) Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1). Both parties agree that Muldrow’s transfer implicated “terms” and “conditions” of Muldrow’s employment. The applicable statutory language thus prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex.

 That language requires Muldrow to show that her transfer brought about some “disadvantageous” change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80. The words “discriminate against,” the Court has explained, refer to “differences in treatment that injure” employees. Bostock v. Clayton County, 590 U. S. 644, 681. In the typical transfer case, that worse treatment must be “with respect to” employment “terms [or] conditions.” §2000e–2(a)(1). The “terms [or] conditions” phrase is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64. Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.

 What the transferee does not have to show is that the harm incurred was “significant” or otherwise exceeded some heightened bar. “Discriminate against” means treat worse, here based on sex. See, e.g., Bostock, 590 U. S., at 657. Neither that phrase nor any other establishes an elevated threshold of harm. To demand “significance” is to add words to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more than the law as written. That difference can make a real difference for complaining transferees. By asking whether the harm to the transferee is significant, appellate courts have disregarded varied kinds of disadvantage. Pp. 5–7.

 (b) The City’s three main arguments—based on statutory text, precedent, and policy—do not justify the use of a “significance” standard.

 The Court rejects the City’s textual claim, which invokes the ejusdem generis canon—the idea that a general phrase following an enumeration of things should be read to encompass only things of the same basic kind. Applying that canon to the text of Title VII’s anti-discrimination provision, the City claims that because refusing to hire or discharging a person causes a significant disadvantage, the “otherwise to discriminate against” phrase can apply only to things causing an equal level of harm. But the statutory text itself provides a different shared trait: Each kind of prohibited discrimination occurs by way of an employment action—whether pertaining to hiring, or firing, or compensating, or (as here) altering terms or conditions through a transfer. That is a more than sufficient basis to unite the provision’s several parts and avoid ejusdem generis problems.

 Contrary to the City’s view, there is also no reason to import a significant-harm requirement from this Court’s decision in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. The Court there held that Title VII’s anti-retaliation provision—which prohibits an employer from taking action against an employee for bringing or aiding a Title VII charge—applies only when the retaliatory action is “materially adverse,” meaning that it causes “significant” harm. Id., at 68. White adopted that standard for reasons peculiar to the retaliation context. The test was meant to capture those employer actions serious enough to “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Ibid. An action causing less serious harm will not deter Title VII enforcement and so falls outside the purposes of the ban on retaliation. But that reasoning does not apply to the anti-discrimination provision, which flatly “prevent[s] injury to individuals based on” protected status, id., at 63, without distinguishing between significant and less significant harms.

 Finally, there is reason to doubt the City’s prediction that employees will flood courts with litigation in the absence of a significant-injury requirement. Courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted. This Court will not add words to the statute to achieve what the City thinks a desirable result. Pp. 8–10.

 (c) The courts below applied the wrong standard to Muldrow’s suit. Muldrow need show only some injury respecting her employment terms or conditions. Her allegations, if properly preserved and supported, meet that test with room to spare. The Court recognizes, however, that the decisions below may have rested in part on issues of forfeiture and proof. The Court leaves such matters for the courts below to address on remand under the proper Title VII standard. Pp. 10–11.

30 F. 4th 680, vacated and remanded.

 Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Gorsuch, Barrett, and Jackson, JJ., joined. Thomas, J., Alito, J., and Kavanaugh, J., each filed an opinion concurring in the judgment.