Georgia et al. v. Public.Resource.Org, Inc.

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

No. 18-1150. Argued December 2, 2019--Decided April 27, 2020

The Copyright Act grants monopoly protection for “original works of authorship.” 17 U. S. C. §102(a). Under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties.

The State of Georgia has one official code—the Official Code of Georgia Annotated (OCGA). That Code includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations that appear beneath each statutory provision. The annotations typically include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials. The OCGA is assembled by the Code Revision Commission, a state entity composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel.

The annotations in the current OCGA were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.

Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records and legal materials, posted the OCGA online and distributed copies to various organizations and Georgia officials. After sending PRO several cease-and-desist letters, the Commission sued PRO for infringing its copyright in the OCGA annotations. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain. The District Court sided with the Commission, holding that the annotations were eligible for copyright protection because they had not been enacted into law. The Eleventh Circuit reversed, rejecting the Commission’s copyright assertion under the government edicts doctrine.

Held: The OCGA annotations are ineligible for copyright protection. Pp. 5–18.

(a) The government edicts doctrine developed from a trio of 19th-century cases. In Wheaton v. Peters, 8 Pet. 591, the Court held that no reporter can have a copyright in the Court’s opinions and that the Justices cannot confer such a right on any reporter. In Banks v. Manchester, 128 U. S. 244, the Court held that judges could not assert copyright in “whatever work they perform in their capacity as judges”—be it “the opinion or decision, the statement of the case and the syllabus or the head note.” Id., at 253. Finally, in Callaghan v. Myers, 128 U. S. 617, the Court reiterated that an official reporter cannot hold a copyright interest in opinions created by judges. But, confronting an issue not addressed in Wheaton or Banks, the Court upheld the reporter’s copyright interest in several explanatory materials that the reporter had created himself because they came from an author who had no authority to speak with the force of law.

The animating principle behind the government edicts doctrine is that no one can own the law. The doctrine gives effect to that principle in the copyright context through construction of the statutory term “author.” For purposes of the Copyright Act, judges cannot be the “author[s]” of “whatever work they perform in their capacity” as lawmakers. Banks, 128 U. S., at 253. Because legislators, like judges, have the authority to make law, it follows that they, too, cannot be “authors.” And, as with judges, the doctrine applies to whatever work legislators perform in their capacity as legislators, including explanatory and procedural materials they create in the discharge of their legislative duties. Pp. 5–9.

(b) Applying that framework, Georgia’s annotations are not copyrightable. First, the author of the annotations qualifies as a legislator. Under the Copyright Act, the sole “author” of the annotations is the Commission, 17 U. S. C. §201(b), which functions as an arm of the Georgia Legislature in producing the annotations. Second, the Commission creates the annotations in the discharge of its legislative duties. Pp. 9–11.

(c) Georgia argues that excluding the OCGA annotations from copyright protection conflicts with the text of the Copyright Act. First, it notes that §101 lists “annotations” among the kinds of works eligible for copyright protection. That provision, however, refers only to “annotations . . . which . . . represent an original work of authorship.” (Emphasis added.) Georgia’s annotations do not fit that description because they are prepared by a legislative body that cannot be deemed the “author” of the works it creates in its official capacity. Second, Georgia draws a negative inference from the fact that the Act excludes from copyright protection works prepared by Federal Government officials, without establishing a similar rule for State officials. §§101, 105. That rule, however, applies to all federal officials, regardless of the nature and scope of their duties. It does not suggest an intent to displace the much narrower government edits doctrine with respect to the States.

Moving on from the text, Georgia invokes what it views as the official position of the Copyright Office, as reflected in the Compendium of U. S. Copyright Office Practices. The Compendium, however, is a non-binding administrative manual and is largely consistent with this Court’s position. Georgia also appeals to copyright policy, but such requests should be addressed to Congress, not the courts.

Georgia attempts to frame the government edicts doctrine to focus exclusively on whether a particular work has the force of law. But that understanding cannot be squared with precedent—especially Banks. Moreover, Georgia’s conception of the doctrine as distinguishing between different categories of content with different effects has less of a textual footing than the traditional formulation, which focuses on the identity of the author. Georgia’s characterization of the OCGA annotations as non-binding and non-authoritative undersells the practical significance of the annotations to litigants and citizens. And its approach would logically permit States to hide all non-binding judicial and legislative work product—including dissents and legislative history—behind a paywall. Pp. 11–18.

906 F. 3d 1229, affirmed.

Roberts, C. J., delivered the opinion of the Court, in which Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined, and in which Breyer, J., joined as to all but Part II–A and footnote 6. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

Maine Community Health Options v. United States

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

No. 18-1023. Argued December 10, 2019--Decided April 27, 2020 1

The Patient Protection and Affordable Care Act established online exchanges where insurers could sell their healthcare plans. The now-expired “Risk Corridors” program aimed to limit the plans’ profits and losses during the exchanges’ first three years (2014 through 2016). See §1342, 124 Stat. 211. Section 1342 set out a formula for computing a plan’s gains or losses at the end of each year, providing that eligible profitable plans “shall pay” the Secretary of the Department of Health and Human Services (HHS), while the Secretary “shall pay” eligible unprofitable plans. The Act neither appropriated funds for these yearly payments nor limited the amounts that the Government might pay. Nor was the program required to be budget neutral. Each year, the Government owed more money to unprofitable insurers than profitable insurers owed to the Government, resulting in a total deficit of more than $12 billion. And at the end of each year, the appropriations bills for the Centers for Medicare and Medicaid Services (CMS) included a rider preventing CMS from using the funds for Risk Corridors payments. Petitioners—four health-insurance companies that claim losses under the program—sued the Federal Government for damages in the Court of Federal Claims. Invoking the Tucker Act, they alleged that §1342 obligated the Government to pay the full amount of their losses as calculated by the statutory formula and sought a money judgment for the unpaid sums owed. Only one petitioner prevailed in the trial courts, and the Federal Circuit ruled for the Government in each appeal, holding that §1342 had initially created a Government obligation to pay the full amounts, but that the subsequent appropriations riders impliedly “repealed or suspended” that obligation.


1. The Risk Corridors statute created a Government obligation to pay insurers the full amount set out in §1342’s formula. Pp. 9–16.

(a) The Government may incur an obligation directly through statutory language, without also providing details about how the obligation must be satisfied. See United States v. Langston, 118 U. S. 389. Pp. 9–11.

(b) Section 1342 imposed a legal duty of the United States that could mature into a legal liability through the insurers’ participation in the exchanges. This conclusion flows from the express terms and context of §1342, which imposed an obligation by using the mandatory term “shall.” The section’s mandatory nature is underscored by the adjacent provisions, which differentiate between when the HHS Secretary “shall” take certain actions and when she “may” exercise discretion. See §§1341(b)(2), 1343(b). Section 1342 neither requires the Risk Corridors program to be budget-neutral nor suggests that the Secretary’s payments to unprofitable plans pivoted on profitable plans’ payments to the Secretary or that a partial payment would satisfy the Government’s whole obligation. It thus must be given its plain meaning: The Government “shall pay” the sum prescribed by §1342. Pp. 11–13.

(c) Contrary to the Government’s contention, neither the Appropriations Clause nor the Anti-Deficiency Act addresses whether Congress itself can create or incur an obligation directly by statute. Nor does §1342’s obligation-creating language turn on whether Congress expressly provided budget authority before appropriating funds. The Government’s arguments also conflict with well-settled principles of statutory interpretation. That §1342 contains no language limiting the obligation to the availability of appropriations, while Congress expressly used such limiting language in other Affordable Care Act provisions, indicates that Congress intended a different meaning in §1342. Pp. 13–16.

2. Congress did not impliedly repeal the obligation through its appropriations riders. Pp. 16–23.

(a) Because “ ‘repeals by implication are not favored,’ ” Morton v. Mancari, 417 U. S. 535, 549, this Court will regard each of two statutes effective unless Congress’ intention to repeal is “ ‘clear and manifest,’ ” or the laws are “irreconcilable,” id., at 550–551. In the appropriations context, this requires the Government to show “something more than the mere omission to appropriate a sufficient sum.” United States v. Vulte, 233 U. S. 509, 515. As Langston and Vulte confirm, the appropriations riders here did not manifestly repeal or discharge the Government’s uncapped obligation, see Langston, 118 U. S., at 394, and do not indicate “any other purpose than the disbursement of a sum of money for the particular fiscal years,” Vulte, 233 U. S., at 514. Nor is there any indication that HHS and CMS thought that the riders clearly expressed an intent to repeal. Pp. 16–19.

(b) Appropriations measures have been found irreconcilable with statutory obligations to pay, but the riders here did not use the kind of “shall not take effect” language decisive in United States v. Will, 449 U. S. 200, 222–223, or purport to “suspen[d]” §1342 prospectively or to foreclose funds from “any other Act” “notwithstanding” §1342’s money-mandating text, United States v. Dickerson, 310 U. S. 554, 556–557. They also did not reference §1342’s payment formula, let alone “irreconcilabl[y]” change it, United States v. Mitchell, 109 U. S. 146, 150, or provide that payments from profitable plans would be “ ‘in full compensation’ ” of the Government’s obligation to unprofitable plans, United States v. Fisher, 109 U. S. 143, 150. Pp. 19–21.

(c) The legislative history cited by the Federal Circuit is also unpersuasive. Pp. 22–23.

3. Petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims. Pp. 23–30.

(a) The United States has waived its immunity for certain damages suits in the Court of Federal Claims through the Tucker Act. Because that Act does not create “substantive rights,” United States v. Navajo Nation, 556 U. S. 287, 290, a plaintiff must premise her damages action on “other sources of law,” like “statutes or contracts,” ibid., provided those statutes “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,’ ” United States v. White Mountain Apache Tribe, 537 U. S. 465, 472. The Act does, however, yield when the obligation-creating statute provides its own detailed remedies or when the Administrative Procedure Act provides an avenue for relief. Pp. 23–26.

(b) Petitioners clear each hurdle: The Risk Corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies. Section 1342’s mandatory “ ‘shall pay’ language” falls comfortably within the class of statutes that permit recovery of money damages in the Court of Federal Claims. This finding is bolstered by §1342’s focus on compensating insurers for past conduct. And there is no separate remedial scheme supplanting the Court of Federal Claims’ power to adjudicate petitioners’ claims. See United States v. Bormes, 568 U. S. 6, 12. Nor does the Administrative Procedure Act bar petitioners’ Tucker Act suit. In contrast to Bowen v. Massachusetts, 487 U. S. 879, a Medicaid case where the State sued the HHS Secretary under the Administrative Procedure Act in district court, petitioners here seek not prospective, nonmonetary relief to clarify future obligations but specific sums already calculated, past due, and designed to compensate for completed labors. The Risk Corridors statute and Tucker Act allow them that remedy. And because the Risk Corridors program expired years ago, this litigation presents no special concern, as Bowen did, about managing a complex ongoing relationship or tracking ever-changing accounting sheets. Pp. 26–30.

No. 18–1023 and No. 18–1028 (second judgment), 729 Fed. Appx. 939; No. 18–1028 (first judgment), 892 F. 3d 1311; No. 18–1038, 892 F. 3d 1184, reversed and remanded.

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


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

[April 27, 2020]

Per Curiam.

In the District Court, petitioners challenged a New York City rule regarding the transport of firearms. Petitioners claimed that the rule violated the Second Amendment. Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim. See 883 F. 3d 45 (CA2 2018). We granted certiorari. 586 U. S. ___ (2019). After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. App. 48. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot. Petitioners now argue, however, that the new rule may still infringe their rights. In particular, petitioners claim that they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City responds that those routine stops are entirely permissible under the new rule. We do not here decide that dispute about the new rule; as we stated in Lewis v. Continental Bank Corp., 494 U. S. 472, 482–483 (1990):

“Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. See, e.g., Deakins v. Monaghan, 484 U. S., at 204; United States v. Munsingwear, Inc., 340 U. S. 36, 39–40 (1950). However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 415 (1972).”

Petitioners also argue that, even though they have not previously asked for damages with respect to the City’s old rule, they still could do so in this lawsuit. Petitioners did not seek damages in their complaint; indeed, the possibility of a damages claim was not raised until well into the litigation in this Court. The City argues that it is too late for petitioners to now add a claim for damages. On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City’s old rule. The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.

It is so ordered.