Thryv, Inc., fka DEX MEDIA, INC. v. Click-To-Call Technologies, LP, et al.

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

No. 18-916. Argued December 9, 2019--Decided April 20, 2020

Inter partes review is an administrative process that permits a patent challenger to ask the U. S. Patent and Trademark Office to reconsider the validity of earlier granted patent claims. For inter partes review to proceed, the agency must agree to institute review. See 35 U. S. C. §314. Among other conditions set by statute, if a request comes more than a year after suit against the requesting party for patent infringement, “[a]n inter partes review may not be instituted.” §315(b). The agency’s “determination . . . whether to institute an inter partes review under this section shall be final and nonappealable.” §314(d).

   Entities associated with petitioner Thryv, Inc. sought inter partes review of a patent owned by respondent Click-to-Call Technologies, LP. Click-to-Call countered that the petition was untimely under §315(b). The Patent Trial and Appeal Board (Board) disagreed and instituted review. After proceedings on the merits, the Board issued a final written decision reiterating its §315(b) decision and canceling 13 of the patent’s claims as obvious or lacking novelty. Click-to-Call appealed the Board’s §315(b) determination. Treating the Board’s application of §315(b) as judicially reviewable, the Court of Appeals concluded that the petition was untimely, vacated the Board’s decision, and remanded with instructions to dismiss.

Held: Section 314(d) precludes judicial review of the agency’s application of §315(b)’s time prescription. Pp. 6–14.

  (a) A party generally cannot contend on appeal that the agency should have refused “to institute an inter partes review.” §314(d). That follows from §314(d)’s text and Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___. In Cuozzo, this Court explained that §314(d) “preclud[es] review of the Patent Office’s institution decisions”—at least “where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Id., at ___. Pp. 6–7.

  (b) The question here is whether a challenge based on §315(b) ranks as an appeal of the agency’s decision “to institute an inter partes review.” §314(d). There is no need to venture beyond Cuozzo’s holding that §314(d) bars review at least of matters “closely tied to the application and interpretation of statutes related to” the institution decision, 579 U. S., at ___. A §315(b) challenge easily meets that measurement. Section 315(b), setting forth a circumstance in which “[a]n inter partes review may not be instituted,” expressly governs institution and nothing more. Pp. 7–8.

  (c) This conclusion is strongly reinforced by the statute’s purpose and design. Congress designed inter partes review to weed out bad patent claims efficiently. Allowing §315(b) appeals, however, would unwind agency proceedings determining patentability and leave bad patents enforceable. Pp. 8–10.

  (d) In Click-to-Call’s view, §314(d)’s bar on judicial review is limited to the agency’s threshold determination under §314(a) of the question whether the petitioner has a reasonable likelihood of prevailing. Cuozzo is fatal to that interpretation, for the Court in that case held unreviewable the agency’s application of a provision other than §314(a). Contrary to Click-to-Call’s contention, §314(d)’s text does not limit the review bar to §314(a). Rather than borrowing language from related provisions that would have achieved Click-to-Call’s preferred meaning, Congress used broader language in §314(d). Click-to-Call also insists that Congress intended judicial supervision of the agency’s application of §315(b), but the statute instead reflects a choice to entrust that issue to the agency. Finally, SAS Institute Inc. v. Iancu, 584 U. S. ___, offers Click-to-Call no assistance. Unlike the appeal held reviewable in SAS Institute, Click-to-Call’s appeal challenges not the manner in which the agency’s review proceeds once instituted, but whether the agency should have instituted review at all. Pp. 10–13.

  (e) Click-to-Call argues in the alternative that its §315(b) objection is authorized as an appeal from the Board’s final written decision, which addressed the §315(b) issue. Even labeled that way, Click-to-Call’s appeal is still barred by §314(d) because Click-to-Call’s contention remains, essentially, that the agency should have refused to institute inter partes review. P. 14.

899 F. 3d 1321, vacated and remanded.

 Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined, and in which Thomas and Alito, JJ., joined except as to Part III–C. Gorsuch, J., filed a dissenting opinion, in which Sotomayor, J., joined as to Parts I, II, III, and IV.

Atlantic Richfield Co. v. Christian et al.

Certiorari To The Supreme Court Of Montana

No. 17-1498. Argued December 3, 2019--Decided April 20, 2020

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U. S. C. §9601 et seq., also known as the Superfund statute, promotes “the timely cleanup of hazardous waste sites and [ensures] that the costs of such cleanup efforts [are] borne by those responsible for the contamination,” CTS Corp. v. Waldburger, 573 U. S. 1, 4 (internal quotation marks omitted). The Act directs the Environmental Protection Agency to compile and annually revise a prioritized list of contaminated sites for cleanup, known as Superfund sites, and makes responsible parties liable for the cost of the cleanup. Before a cleanup plan is selected, a remedial investigation and feasibility study is conducted to assess the contamination and evaluate cleanup options. Once that study begins, §122(e)(6) of the Act provides, “no potentially responsible party may undertake any remedial action” at the site without EPA approval. To insulate cleanup plans from collateral attack, §113(b) provides federal district courts with “exclusive original jurisdiction over all controversies arising under” the Act, and §113(h) then strips those courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances.

   For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, EPA has worked with the current owner of the now-closed smelter, Atlantic Richfield Company, to implement a cleanup plan for a remediation expected to continue through 2025. A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on property rehabilitation. The landowners’ proposed plan exceeds the measures found necessary to protect human health and the environment by EPA. The trial court granted summary judgment to the landowners on the issue of whether the Act precluded their restoration damages claim and allowed the lawsuit to continue. After granting a writ of supervisory control, the Montana Supreme Court affirmed, rejecting Atlantic Richfield’s argument that §113 stripped the Montana courts of jurisdiction over the landowners’ claim and concluding that the landowners were not potentially responsible parties (or PRPs) prohibited from taking remedial action without EPA approval under §122(e)(6).


  1. This Court has jurisdiction to review the Montana Supreme Court’s decision. To qualify as a final judgment subject to review under 28 U. S. C. §1257(a), a state court judgment must be “an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.” Jefferson v. City of Tarrant, 522 U. S. 75, 81. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal. Mont. Const., Art. VII, §§2(1)–(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3). Thus, the writ issued in this case is a “final judgment” within this Court’s jurisdiction. Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 385, n. 7. P. 8.

  2. The Act does not strip the Montana courts of jurisdiction over this lawsuit. Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260. The landowners’ common law nuisance, trespass, and strict liability claims arise under Montana law and not under the Act.

  Atlantic Richfield mistakenly argues that §113(h)—which states that “[n]o Federal court shall have jurisdiction under Federal law . . . to review any challenges to removal or remedial action” selected under the Act—implicitly broadens the scope of actions precluded from state court jurisdiction under §113(b). But §113(h) speaks of “Federal court[s],” not state courts. There is no textual basis for Atlantic Richfield’s argument that Congress precluded state courts from hearing a category of cases in §113(b) by stripping federal courts of jurisdiction over those cases in §113(h). Often the simplest explanation is the best: Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act—just as it says—while §113(h) deprives federal courts of jurisdiction over certain “challenges” to Superfund remedial actions—just as it says. Pp. 8–13.

  3. The Montana Supreme Court erred by holding that the landowners were not potentially responsible parties under the Act and thus did not need EPA approval to take remedial action. To determine who is a potentially responsible party, the Court looks to the list of “covered persons” in §107, the Act’s liability section, which includes any “owner” of “a facility.” “Facility” in turn is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U. S. C. §9601(9)(B). Because arsenic and lead are hazardous substances that have “come to be located” on the landowners’ properties, the landowners are potentially responsible parties.

  The landowners argue they are no longer potentially responsible parties because the Act’s six-year limitations period for recovery of remedial costs has run, and thus they could not be held liable in a hypothetical lawsuit. But even “ ‘innocent’ . . . landowner[s] whose land has been contaminated by another,” and who are thus shielded from liability by §107(b)(3)’s so-called “innocent landowner” or “third party” defense, “may fall within the broad definitions of PRPs in §§107(a)(1)–(4).” United States v. Atlantic Research Corp., 551 U. S. 128, 136. The same principle holds true for parties facing no liability because of the Act’s limitations period.

  Interpreting “potentially responsible parties” to include owners of polluted property reflects the Act’s objective to develop a “Comprehensive Environmental Response” to hazardous waste pollution. Section 122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.

  Yet under the landowners’ interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA, so long as they have not been sued within six years of commencement of the cleanup. Congress did not provide such a fragile remedy for such a serious problem.

  The landowners alternatively argue that they are not potentially responsible parties because they did not receive the notice of settlement negotiations required by §122(e)(1). EPA has a policy of not suing innocent homeowners for pollution they did not cause, so it did not include the landowners in settlement negotiations. But EPA’s nonenforcement policy does not alter the landowners’ status as potentially responsible parties. Section 107(a) unambiguously defines potentially responsible parties, and EPA does not have authority to alter that definition.

  The landowners also argue that §122(e)(6) cannot carry the weight ascribed to it because it is located in the section on settlement negotiations. Settlements, however, are the heart of the Superfund statute. Section 122(a) of the Act commands EPA to proceed by settlement “[w]henever practicable and in the public interest . . . in order to expedite effective remedial actions and minimize litigation.” And EPA’s efforts to negotiate settlement agreements and issue orders for cleanups account for approximately 69% of all cleanup work currently underway. Pp. 13–21.

390 Mont. 76, 408 P. 3d 515, affirmed in part, vacated in part, and remanded.

 Roberts, C. J., delivered the opinion of the Court, Parts I and II–A of which were unanimous, Part II–B of which was joined by Thomas, Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., and Part III of which was joined by Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh, JJ. Alito, J., filed an opinion concurring in part and dissenting in part. Gorsuch, J., filed an opinion concurring part and dissenting in part, in which Thomas, J., joined.

Ramos v. Louisiana

Certiorari To The Court Of Appeal Of Louisiana, Fourth Circuit

No. 18-5924. Argued October 7, 2019--Decided April 20, 2020

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts. In this case, petitioner Evangelisto Ramos was convicted of a serious crime in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He contests his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

Held: The judgment is reversed.

2016–1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d 44, reversed.

 Justice Gorsuch delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, concluding that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense. Pp. 3–9, 11–15, 20–23.

 (a) The Constitution’s text and structure clearly indicate that the Sixth Amendment term “trial by an impartial jury” carries with it some meaning about the content and requirements of a jury trial. One such requirement is that a jury must reach a unanimous verdict in order to convict. Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified. Postadoption treatises and 19th-century American legal treatises confirm this understanding. This Court has commented on the Sixth Amendment’s unanimity requirement no fewer than 13 times over more than 120 years, see, e.g., Thompson v. Utah, 170 U. S. 343, 351; Patton v. United States, 281 U. S. 276, 288, and has also explained that the Sixth Amendment right to a jury trial is incorporated against the States under the Fourteenth Amendment, Duncan v. Louisiana, 391 U. S. 145, 148–150. Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court. Pp. 3–7.

 (b) Louisiana’s and Oregon’s unconventional schemes were first confronted in Apodaca v. Oregon, 406 U. S. 404, and Johnson v. Louisiana, 406 U. S. 356, in a badly fractured set of opinions. A four-Justice plurality, questioning whether unanimity serves an important “function” in “contemporary society,” concluded that unanimity’s costs outweighed its benefits. Apodaca, 406 U. S., at 410. Four dissenting Justices recognized that the Sixth Amendment requires unanimity, and that the guarantee is fully applicable against the States under the Fourteenth Amendment. The remaining Justice, Justice Powell, adopted a “dual-track” incorporation approach. He agreed that the Sixth Amendment requires unanimity but believed that the Fourteenth Amendment does not render this guarantee fully applicable against the States—even though the dual-track incorporation approach had been rejected by the Court nearly a decade earlier, see Malloy v. Hogan, 378 U. S. 1, 10–11. Pp. 7–9.

 (c) The best Louisiana can suggest is that all of the Court’s prior statements that the Sixth Amendment does require unanimity are dicta. But the State offers no hint as to why the Court would walk away from those statements now and does not dispute the fact that the common law required unanimity. Instead, it argues that the Sixth Amendment’s drafting history—in particular, that the original House version’s explicit unanimity references were removed in the Senate version—reveals the framer’s intent to leave this particular feature of the common law behind. But that piece of drafting history could just as easily support the inference that the language was removed as surplusage because the right was so plainly understood to be included in the right to trial by jury. Finally, the State invites the Court to perform a cost-benefit analysis on the historic features of common law jury trials and to conclude that unanimity does not make the cut. The dangers of that approach, however, can be seen in Apodaca, where the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment. Pp. 11–15.

 (d) Factors traditionally considered by the Court when determining whether to preserve precedent on stare decisis grounds do not favor upholding Apodaca. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___. Starting with the quality of Apodaca’s reasoning, the plurality opinion and separate concurring opinion were gravely mistaken. And Apodaca sits uneasily with 120 years of preceding case law. When it comes to reliance interests, neither Louisiana nor Oregon claims anything like the prospective economic, regulatory, or social disruption litigants seeking to preserve precedent usually invoke. The fact that Louisiana and Oregon may need to retry defendants convicted of felonies by nonunanimous verdicts whose cases are still pending on direct appeal will surely impose a cost, but new rules of criminal procedure usually do, see, e.g., United States v. Booker, 543 U. S. 220, and prior convictions in only two States are potentially affected here. Pp. 20–23.

 Justice Gorsuch, joined by Justice Ginsburg and Justice Breyer, concluded in Part IV–A that Apodaca lacks precedential force. Treating that case as precedential would require embracing the dubious proposition that a single Justice writing only for himself has the authority to bind this Court to already rejected propositions. No prior case has made such a suggestion. Pp. 16–20.

 Justice Gorsuch, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts IV–B–2 and V that Louisiana’s and Oregon’s reliance interests in the security of their final criminal judgments do not favor upholding Apodaca. Worries that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral review are overstated. Cf. Teague v. Lane, 489 U. S. 288. Apodaca’s reliance interests are not boosted by Louisiana’s recent decision to bar the use of nonunanimous jury verdicts. A ruling for Louisiana would invite other States to relax their own unanimity requirements, and Louisiana continues to allow nonunanimous verdicts for crimes committed before 2019. Pp. 23–26.

 Justice Thomas concluded that Ramos’ felony conviction by a nonunanimous jury is unconstitutional because the Sixth Amendment’s protection against nonunanimous felony guilty verdicts applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause. Pp. 1–9.

Gorsuch, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Part IV–A, in which Ginsburg and Breyer, JJ., joined. Sotomayor, J., filed an opinion concurring as to all but Part IV–A. Kavanaugh, J., filed an opinion concurring in part. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., joined, and in which Kagan, J., joined as to all but Part III–D.