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

No. 19–896. Argued January 11, 2022—Decided June 13, 2022

Respondent Antonio Arteaga-Martinez is a citizen of Mexico who was removed in July 2012 and reentered the United States in September 2012. U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest in 2018. ICE reinstated Arteaga-Martinez’s earlier removal order and detained him pursuant to its authority under the Immigration and Nationality Act. See 8 U. S. C. §1231(a). Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Convention Against Torture, based on his fear that he would be persecuted or tortured if he returned to Mexico. An asylum officer determined he had established a reasonable fear of persecution or torture, and the Department of Homeland Security referred him for withholding-only proceedings before an immigration judge.

  After being detained for four months, Arteaga-Martinez filed a petition for a writ of habeas corpus in District Court challenging, on both statutory and constitutional grounds, his continued detention without a bond hearing. The Government conceded that Arteaga-Martinez would be entitled to a bond hearing after six months of detention based on circuit precedent holding that a noncitizen facing prolonged detention under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. The District Court granted relief on Arteaga-Martinez’s statutory claim and ordered the Government to provide Arteaga-Martinez a bond hearing. The Third Circuit summarily affirmed. At the bond hearing, the Immigration Judge considered Arteaga-Martinez’s flight risk and dangerousness and ultimately authorized his release pending resolution of his application for withholding of removal.

Held: Section 1231(a)(6) does not require the Government to provide noncitizens detained for six months with bond hearings in which the Government bears the burden of proving, by clear and convincing evidence, that a noncitizen poses a flight risk or a danger to the community. Pp. 4–10.

 (a) Section 1231(a)(6) cannot be read to require the hearing procedures imposed below. After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain the noncitizen. 8 U. S. C. §§1231(a)(1), (2). Beyond the removal period, §1231(a)(6) defines four categories of noncitizens who “may be detained . . . and, if released, shall be subject to [certain] terms of supervision.” There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings with the procedures mandated by the Third Circuit. The statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying precedent, the Court cannot discern the bond hearing procedures required below from §1231(a)(6)’s text. Pp. 4–6.

 (b) Arteaga-Martinez argues that §1231(a)(6)’s references to flight risk, dangerousness, and terms of supervision, support the relief ordered below. Similarly, respondents in the companion case, see Garland v. Gonzalez, 594 U. S. ___, analogize the text of §1231(a)(6) to that of 8 U. S. C. §1226(a), noting that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Assuming without deciding that an express statutory reference to “bond” (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference, and §1231(a)(6)’s oblique reference to terms of supervision does not suffice. The parties agree that the Government possesses discretion to provide bond hearings under §1231(a)(6) or otherwise, but this Court cannot say the statute requires them.

 Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S. 678, which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures imposed by the Court of Appeals. In Zadvydas, this Court construed §1231(a)(6) “in light of the Constitution’s demands” and determined that §1231(a)(6) “does not permit indefinite detention” but instead “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” 533 U. S., at 689. The bond hearing requirements articulated by the Third Circuit, however, reach substantially beyond the limitation on detention authority Zadvydas recognized. Zadvydas does not require, and Jennings v. Rodriguez, 583 U. S. ___, does not permit, the Third Circuit’s application of the canon of constitutional avoidance. Pp. 6–8.

 (c) Constitutional challenges to prolonged detention under §1231(a)(6) were not addressed below, in part because those courts read §1231(a)(6) to require a bond hearing. Arteaga-Martinez’s alternative theory that he is presumptively entitled to release under Zadvydas also was not addressed below. The Court leaves these arguments for the lower courts to consider in the first instance. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. Pp. 8–10.

Reversed and remanded.

 Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined as to Part I. Breyer, J., filed an opinion concurring in part and dissenting in part.


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

No. 20–322. Argued January 11, 2022—Decided June 13, 2022 1

Respondents are aliens who were detained by the Federal Government pursuant to 8 U. S. C. §1231(a)(6) of the Immigration and Nationality Act (INA). Respondents Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez—the named plaintiffs in the case that bears Aleman Gonzalez’s name—are natives and citizens of Mexico who were detained under §1231(a)(6) after reentering the United States illegally. They filed a putative class action in the United States District Court for the Northern District of California, alleging that aliens detained under §1231(a)(6) are entitled to bond hearings after six months’ detention. The District Court certified a class of similarly situated plaintiffs and “enjoined [the Government] from detaining [respondents] and the class members pursuant to section 1231(a)(6) for more than 180 days without providing each a bond hearing.” Gonzalez v. Sessions, 325 F. R. D. 616, 629. A divided panel of the Ninth Circuit affirmed. Aleman Gonzalez v. Barr, 955 F. 3d 762, 766. Respondent Edwin Flores Tejada—the named plaintiff in the case that bears his name—is a native and citizen of El Salvador. He likewise reentered the country illegally and was detained under §1231(a)(6). He filed suit in the Western District of Washington, alleging that §1231(a)(6) entitled him to a bond hearing. The District Court certified a class, granted partial summary judgment against the Government, and entered class-wide injunctive relief. A divided panel of the Ninth Circuit affirmed. Flores Tejada v. Godfrey, 954 F. 3d 1245, 1247. This Court granted certiorari and instructed the parties to brief the threshold question whether the District Courts had jurisdiction to entertain respondents’ requests for class-wide injunctive relief under the INA.

Held: Section 1252(f )(1) of the INA deprived the District Courts of jurisdiction to entertain respondents’ requests for class-wide injunctive relief. Pp. 3–10.

 (a) Section 1252(f )(1) generally strips lower courts of “jurisdiction or authority” to “enjoin or restrain the operation of ” certain provisions of the INA. The ordinary meaning of the terms “enjoin” and “restrain” bars the class-wide relief awarded by the two District Courts here. When a court “enjoins” conduct, it issues an “injunction,” which is a judicial order that “tells someone what to do or not to do.” Nken v. Holder, 556 U. S. 418, 428. The Court has suggested that “restrain” sometimes has a “broad meaning” that refers to judicial orders that “inhibit” particular actions, and at other times it has a “narrower meaning” that includes “orders that stop (or perhaps compel)” such acts. Direct Marketing Assn. v. Brohl, 575 U. S. 1, 12–13. In §1252(f )(1), the object of the verbs “enjoin or restrain” is the “operation of ” certain provisions of the INA—provisions that charge the Federal Government with the implementation and enforcement of the immigration laws governing the inspection, apprehension, examination, and removal of aliens. See §§ 1221–1232. Putting these terms together, §1252(f )(1) generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the referenced INA statutory provisions.

 Section 1252(f )(1) includes one exception to this general prohibition: The lower courts retain the authority to “enjoin or restrain the operation of ” the relevant statutory provisions “with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” In Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 481–482, the Court stated that §1252(f )(1) “prohibits federal courts from granting classwide injunctive relief ” but “does not extend to individual cases.” Here, both District Courts entered injunctions requiring the Government to provide bond hearings, not only for respondents, but also for all other class members. Those orders “enjoin or restrain the operation” of §1231(a)(6) because they require officials to take actions that (in the Government’s view) are not required by §1231(a)(6) and to refrain from actions that (again in the Government’s view) are allowed by §1231(a)(6). Those injunctions thus interfere with the Government’s efforts to operate §1231(a)(6), and the injunctions do not fall within the exception for individualized relief because the injunctions were entered on behalf of entire classes of aliens. Pp. 3–7.

 (b) Respondents’ two counter-arguments fail. First, respondents contend that “the operation” of the covered immigration provisions means the operation of those provisions “as properly interpreted” and that what §1252(f )(1) bars are class-wide injunctions that prohibit the Government from doing what the statute allows or commands. Brief for Respondents 49 (emphasis added). The ordinary meaning of the language of §1252(f )(1) weighs against respondents’ interpretation. It is very common to refer to the “unlawful” or “improper” operation of something, and it is not apparent why the same cannot be said of a statute. The statutory context provides additional reasons to reject respondents’ reading.

 Respondents next argue that §1252(f )(1) allows class-wide relief so long as all the class members are “individuals who already face enforcement action.” Brief for Respondents 55 (emphasis added). But §1252(f )(1) refers to “an individual,” not “individuals,” and the Court has repeatedly stated that it bars class-wide injunctive relief. See, e.g., American-Arab Anti-Discrimination Comm., 525 U. S., at 481. Respondents argue that the absence of any express reference to class actions in §1252(f )(1)—unlike the express reference in §1252(e)(1)—suggests that no preclusion of class-wide relief was intended The Court is reluctant to give much weight to this negative inference; it is possible that §1252(f )(1) simply uses different language to bar class-wide injunctive relief. But a literal reading of the provision could also rule out efforts to obtain any injunctive relief that applies to multiple named plaintiffs. The Court has no occasion to adopt such an interpretation here. It is sufficient to hold that the class-wide injunctive relief awarded in these cases was unlawful. Pp. 7–10.

955 F. 3d 762 and 954 F. 3d 1245, reversed and remanded.

 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kagan, J., joined, and in which Breyer, J., joined as to Parts II–A–2, II–B–2, and III.

1 Together with Garland, Attorney General, et al. v. Flores Tejada et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

Kemp v. United States

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

No. 21–5726. Argued April 19, 2022—Decided June 13, 2022

Petitioner Dexter Kemp and seven codefendants were convicted of various drug and gun crimes. The Eleventh Circuit consolidated their appeals and, in November 2013, affirmed their convictions and sentences. In April 2015, Kemp moved the District Court to vacate his sentence under 28 U. S. C. §2255. The District Court dismissed Kemp’s motion as untimely because it was not filed within one year of “the date on which [his] judgment of conviction [became] final.” §2255(f)(1). Kemp did not appeal. Then, in June 2018, Kemp sought to reopen his §2255 proceedings under Federal Rule of Civil Procedure 60(b), which authorizes a court to reopen a final judgment under certain enumerated circumstances. As relevant here, a party may seek relief within one year under Rule 60(b)(1) based on “mistake, inadvertence, surprise, or excusable neglect.” A party may also seek relief “within a reasonable time” under Rule 60(b)(6) for “any other reason that justifies relief,” but relief under Rule 60(b)(6) is available only when the other grounds for relief specified in Rules 60(b)(1)–(5) are inapplicable. Kemp’s motion to reopen his §2255 proceedings invoked Rule 60(b)(6), but his motion sought reopening based on a “mistake” covered by Rule 60(b)(1). Specifically, Kemp argued that the 1-year limitations period on his §2255 motion did not begin to run until his codefendants’ rehearing petitions were denied in May 2014, making his April 2015 motion timely. The Eleventh Circuit agreed with Kemp that his §2255 motion was timely but concluded that because Kemp alleged judicial mistake, his Rule 60(b) motion fell under Rule 60(b)(1), was subject to Rule 60(c)’s 1-year limitations period, and was therefore untimely.

Held: The term “mistake” in Rule 60(b)(1) includes a judge’s errors of law. Because Kemp’s motion alleged such a legal error, it was cognizable under Rule 60(b)(1) and untimely under Rule 60(c)’s 1-year limitations period. Pp. 3–10.

 (a) As a matter of text, structure, and history, a “mistake” under Rule 60(b)(1) includes a judge’s errors of law. When the Rule was adopted in 1938 and revised in 1946, the word “mistake” applied to any “misconception,” “misunderstanding,” or “fault in opinion or judgment.” Webster’s New International Dictionary 1383. Likewise, in its legal usage, “mistake” included errors “of law or fact.” Black’s Law Dictionary 1195. Thus, regardless whether “mistake” in Rule 60(b)(1) carries its ordinary meaning or legal meaning, it includes a judge’s mistakes of law. Rule 60(b)(1)’s drafters could have used language to connote a narrower understanding of “mistake,” yet they chose not to qualify that term. Similarly, the Rule’s drafters could have excluded mistakes by judges from the Rule’s reach. In fact, the Rule used to read that way. When adopted in 1938, Rule 60(b) initially referred to “his”—i.e., a party’s—“mistake,” so judicial errors were not covered. The 1946 revision to the Rule deleted the word “his,” thereby removing any limitation on whose mistakes could qualify. Pp. 4–6.

 (b) Neither the Government nor Kemp offers a reason to depart from this reading of Rule 60(b)(1). Pp. 6–10.

  (1) The Government contends that the term “mistake” encompasses only so-called “obvious” legal errors. This contention—also held by several Courts of Appeals—is unconvincing. None of the dictionaries from the time the Rule was adopted and revised suggests this “obviousness” gloss. Nor does the text or history of Rule 60(b)(1) limit its reach only to flagrant cases that would have historically been corrected by courts sitting in equity. Finally, requiring courts to decide not only whether there was a mistake but also whether that mistake was sufficiently “obvious” raises questions of administrability. P. 6.

  (2) Kemp’s arguments for limiting Rule 60(b)(1) to non-judicial, non-legal errors are also unconvincing. He claims that Rule 60(b)(1)’s other grounds for relief—“inadvertence,” “surprise,” and “excusable neglect”—involve exclusively non-legal, non-judicial errors, and thus “mistake” should be similarly limited. But courts have found that excusable neglect may involve legal error, see, e.g., Lenaghan v. Pepsico, Inc., 961 F. 2d 1250, 1254–1255, and they have a similar history of granting relief based on “judicial inadvertence,” Larson v. Heritage Square Assocs., 952 F. 2d 1533, 1536. Kemp argues that Rule 60’s structure favors interpreting the term “mistake” narrowly to include only non-legal errors, and the Court’s contrary interpretation would create confusing overlap between Rule 60(b)(1) and relief available under other parts of Rule 60 not subject to Rule 60(c)’s 1-year limitations period. But the overlap Kemp suggests would exist even if “mistake” reached only factual errors. Courts of Appeals have well-established tests for distinguishing between these Rules. And should such overlap ever create an irreconcilable conflict, courts may then resort to ordinary interpretive rules to determine which Rule to apply. As for Kemp’s worry that the Court’s interpretation would allow parties to evade other time limits by, for example, repackaging a tardy motion under Rule 59(e), the risk Kemp identifies would exist even under his own interpretation. And, in any event, the alleged specter of litigation gamesmanship and strategic delay is overstated because a Rule 60(b)(1) motion, like all Rule 60(b) motions, must be made “within a reasonable time.” Finally, Kemp protests that this Court’s reading is inconsistent with the history of Rule 60(b). But his argument is based on the mistaken notions that Rule 60(b)(1)’s list of grounds for reopening was understood to be a “term of art” when adopted, and that Rule 60(b)(6) alone was intended to afford relief for judicial legal errors that had previously been remedied by bills of review. Pp. 6–10.

857 Fed. Appx. 573, affirmed.

 Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Sotomayor, J., filed a concurring opinion. Gorsuch, J., filed a dissenting opinion.

ZF Automotive US, Inc., et al. v. Luxshare, Ltd.

Certiorari Before Judgment To The United States Court Of Appeals For The Sixth Circuit

No. 21–401. Argued March 23, 2022—Decided June 13, 2022 1

These consolidated cases involve arbitration proceedings abroad for which a party sought discovery in the United States pursuant to 28 U. S. C. §1782(a)—a provision authorizing a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal.” In the first case, Luxshare, Ltd., a Hong Kong-based company, alleges fraud in a sales transaction with ZF Automotive US, Inc., a Michigan-based automotive parts manufacturer and subsidiary of a German corporation. The sales contract signed by the parties provided that all disputes would be resolved by three arbitrators under the Arbitration Rules of the German Institution of Arbitration e.V. (DIS), a private dispute-resolution organization based in Berlin. To prepare for a DIS arbitration against ZF, Luxshare filed an application under §1782 in federal court, seeking information from ZF and its officers. The District Court granted the request, and ZF moved to quash, arguing that the DIS panel was not a “foreign or international tribunal” under §1782. The District Court denied ZF’s motion. The Sixth Circuit denied a stay.

  The second case involves AB bankas SNORAS (Snoras), a failed Lithuanian bank declared insolvent and nationalized by Lithuanian authorities. The Fund for Protection of Investors’ Rights in Foreign States—a Russian corporation assigned the rights of a Russian investor in Snoras—initiated a proceeding against Lithuania under a bilateral investment treaty between Lithuania and Russia, claiming that Lithuania expropriated investments. Relevant here, the treaty establishes a procedure for resolving “any dispute between one Contracting Party and [an] investor of the other Contracting Party concerning” investments in the first Contracting Party’s territory, and offers parties four options for dispute resolution. App. to Pet. for Cert. in No. 21–518, pp. 64a–65a. The Fund chose an ad hoc arbitration in accordance with Arbitration Rules of the United Nations Commission on International Trade Law, with each party selecting one arbitrator and those two choosing a third. After initiating arbitration, the Fund filed a §1782 application in federal court, seeking information from Simon Freakley, who was appointed as a temporary administrator of Snoras, and AlixPartners, LLP, a New York-based consulting firm where Freakley serves as CEO. AlixPartners resisted discovery, arguing that the ad hoc arbitration panel was not a “foreign or international tribunal” under §1782 but instead a private adjudicative body. The District Court rejected that argument and granted the Fund’s discovery request. The Second Circuit affirmed.

Held: Only a governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under 28 U. S. C. §1782, and the bodies at issue in these cases do not qualify. Pp. 5–17.

 (a) Section 1782(a) provides that a district court may order discovery “for use in a proceeding in a foreign or international tribunal.” Standing alone, the word “tribunal” can be used either as a synonym for “court,” in which case it carries a distinctively governmental flavor, or more broadly to refer to any adjudicatory body. While a prior version of §1782 covered “any judicial proceeding” in “any court in a foreign country,” §1782 (1958 ed.), Congress later expanded the provision to cover proceedings in a “foreign or international tribunal.” That shift created “ ‘the possibility of U. S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.’ ” Intel Corp. v. Advanced Micro Devices, Inc., 542 U. S. 241, 258 (alterations omitted). But while a “tribunal” thus need not be a formal “court,” read in context—with “tribunal” attached to the modifiers “foreign or international”—§1782’s phrase is best understood to refer to an adjudicative body that exercises governmental authority.

 “Foreign tribunal” more naturally refers to a tribunal belonging to a foreign nation than to a tribunal that is simply located in a foreign nation. And for a tribunal to belong to a foreign nation, the tribunal must possess sovereign authority conferred by that nation. This reading of “foreign tribunal” is reinforced by the statutory defaults for discovery procedure under §1782, which permit district courts to prescribe the practice and procedure, “which may be in whole or part the practice and procedure of the foreign country or the international tribunal.” §1782(a) (emphasis added). The statute thus presumes that a “foreign tribunal” follows “the practice and procedure of the foreign country.” That the default discovery procedures for a “foreign tribunal” are governmental suggests that the body is governmental too.

 Similarly, an “international tribunal” is best understood as one that involves or is of two or more nations, meaning that those nations have imbued the tribunal with official power to adjudicate disputes. So understood, a “foreign tribunal” is a tribunal imbued with governmental authority by one nation, and an “international tribunal” is a tribunal imbued with governmental authority by multiple nations. Pp. 5–9.

 (b) Section 1782’s focus on governmental and intergovernmental tribunals is confirmed by both the statute’s history and a comparison to the Federal Arbitration Act. From 1855 until 1964, §1782 and its antecedents covered assistance only to foreign “courts.” Congress established the Commission on International Rules of Judicial Procedure, see §§1–2, 72 Stat. 1743, and charged the Commission with improving the process of judicial assistance, specifying that the “assistance and cooperation” was “between the United States and foreign countries” and that “the rendering of assistance to foreign courts and quasi-judicial agencies” should be improved. Ibid. (emphasis added). In 1964, Congress adopted the Commission’s proposed legislation, which became the modern version of §1782. Interpreting §1782 to reach only bodies exercising governmental authority is consistent with Congress’ charge to the Commission. The animating purpose of §1782 is comity: Permitting federal courts to assist foreign and international governmental bodies promotes respect for foreign governments and encourages reciprocal assistance. It is difficult to see how enlisting district courts to help private bodies adjudicating purely private disputes abroad would serve that end.

 Extending §1782 to include private bodies would also be in significant tension with the FAA, which governs domestic arbitration, because §1782 permits much broader discovery than the FAA allows. Interpreting §1782 to reach private arbitration would therefore create a notable mismatch between foreign and domestic arbitration. Pp. 9–11.

 (c) The adjudicative bodies in these cases are not governmental or intergovernmental tribunals that fall within §1782. The dispute between Luxshare and ZF involves private parties that agreed in a private contract that DIS, a private dispute-resolution organization, would arbitrate any disputes between them. No government is involved in creating the DIS panel or prescribing its procedures. Contrary to Luxshare’s suggestion, a commercial arbitral panel like the DIS panel does not qualify as governmental simply because the law of the country in which it would sit (here, Germany) governs some aspects of arbitration and courts play a role in enforcing arbitration agreements.

 The ad hoc arbitration panel at issue in the Fund’s dispute with Lithuania presents a harder question. A sovereign is on one side of the dispute, and the option to arbitrate is contained in an international treaty rather than a private contract. Yet neither Lithuania’s presence nor the treaty’s existence is dispositive, because Russia and Lithuania are free to structure investor-state dispute resolution as they see fit. What matters is whether the two nations intended to confer governmental authority on an ad hoc panel formed pursuant to the treaty. See BG Group plc v. Republic of Argentina, 572 U. S. 25, 37. The treaty offers a choice of four forums to resolve disputes. The inclusion of courts as one option for dispute resolution reflects Russia and Lithuania’s intent to give investors the choice of bringing their disputes before a pre-existing governmental body. By contrast, the ad hoc arbitration panel is not a pre-existing body, but one formed for the purpose of adjudicating investor-state disputes. Nothing in the treaty reflects Russia and Lithuania’s intent that an ad hoc panel exercise governmental authority. The ad hoc panel has authority because Lithuania and the Fund consented to the arbitration, not because Russia and Lithuania clothed the panel with governmental authority. Any similarities between the ad hoc arbitration panel and other adjudicatory bodies from the past are not dispositive. For purposes of §1782, the inquiry is whether the features of the adjudicatory body and other evidence establish the intent of the relevant nations to imbue the body in question with governmental authority. Pp. 11–16.

No. 21–401, reversed; No. 21–518, 5 F. 4th 216, reversed.

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

1 Together with No. 21–518, AlixPartners, LLP, et al. v. Fund for Protection of Investors’ Rights in Foreign States, on certiorari to the United States Court of Appeals for the Second Circuit.

Denezpi v. United States

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

No. 20–7622. Argued February 22, 2022—Decided June 13, 2022

No. 20–7622. Argued February 22, 2022—Decided June 13, 2022 An officer with the federal Bureau of Indian Affairs filed a criminal complaint against Merle Denezpi, a member of the Navajo Nation, charging Denezpi with three crimes alleged to have occurred at a house located within the Ute Mountain Ute Reservation: assault and battery, in violation of 6 Ute Mountain Ute Code §2; terroristic threats, in violation of 25 CFR §11.402; and false imprisonment, in violation of 25 CFR §11.404. The complaint was filed in a CFR court, a court which administers justice for Indian tribes in certain parts of Indian country “where tribal courts have not been established.” §11.102. Denezpi pleaded guilty to the assault and battery charge and was sentenced to time served—140 days’ imprisonment. Six months later, a federal grand jury in the District of Colorado indicted Denezpi on one count of aggravated sexual abuse in Indian country, an offense covered by the federal Major Crimes Act. Denezpi moved to dismiss the indictment, arguing that the Double Jeopardy Clause barred the consecutive prosecution. The District Court denied Denezpi’s motion. Denezpi was convicted and sentenced to 360 months’ imprisonment. The Tenth Circuit affirmed.

Held: The Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them. Pp. 4–13.

 (a) The Double Jeopardy Clause of the Fifth Amendment provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” By its terms, the Clause does not prohibit twice placing a person in jeopardy “ ‘for the same conduct or actions,’ ” Gamble v. United States, 587 U. S. ___, ___, but focuses on whether successive prosecutions are for the same “offence.” In 1791, “offence” meant the violation of a law. See ibid. Because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense from that of another sovereign. See id., at ___. The two offenses can therefore be separately prosecuted without offending the Double Jeopardy Clause—even if they have identical elements and could not be separately prosecuted if enacted by a single sovereign. See id., at ___, n. 1, ___. This dual-sovereignty principle applies where “two entities derive their power to punish from wholly independent sources.” Puerto Rico v. Sánchez Valle, 579 U. S. 59, 68.

 Denezpi’s single act transgressed two laws: the Ute Mountain Ute Code’s assault and battery ordinance and the United States Code’s proscription of aggravated sexual abuse in Indian country. The Ute Mountain Ute Tribe exercised its “unique” sovereign authority in adopting the tribal ordinance. See United States v. Wheeler, 435 U. S. 313, 323. Likewise, Congress exercised the United States’ sovereign power in enacting the federal criminal statute. See United States v. Lanza, 260 U. S. 377, 382. The two laws—defined by separate sovereigns—proscribe separate offenses, so Denezpi’s second prosecution did not place him in jeopardy again “for the same offence.” Pp. 4–6.

 (b) Denezpi argues that the dual-sovereignty doctrine applies only when offenses are enacted and enforced by separate sovereigns. He insists that his second prosecution violated double jeopardy, then, because prosecutors in CFR courts exercise federal authority, which means that he was prosecuted twice by the United States. The Court need not decide whether prosecutors in CFR courts exercise tribal or federal authority because the Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign; rather, it prohibits successive prosecutions “for the same offence.” Thus, even if Denezpi is right that the Federal Government prosecuted his tribal offense, the Clause did not bar the Federal Government from prosecuting him under the Major Crimes Act too. The Double Jeopardy Clause does not ask who puts a person in jeopardy. It zeroes in on what the person is put in jeopardy for: the “offence.” The Court has seen no evidence that “offence” was originally understood to encompass both the violation of the law and the identity of the prosecutor.

 Denezpi stitches together loose language from the Court’s precedent to support his position that the identity of the prosecuting sovereign matters under the dual-sovereignty doctrine. No precedent cited by Denezpi involves or even mentions the unusual situation of a single sovereign successively prosecuting its own law and that of a different sovereign. In any event, imprecise statements cannot overcome the holdings of the Court’s cases, not to mention the text of the Clause. Those authorities make clear that enactment is what counts in deter mining whether the dual-sovereignty doctrine applies. Denezpi’s reliance on Bartkus v. Illinois, 359 U. S. 121, is misplaced. At most, Bartkus acknowledged that successive federal prosecutions for the same conduct would raise a double jeopardy question, but Bartkus did not begin to analyze, much less answer, that question.

 Denezpi’s remaining arguments are unavailing. Denezpi first points to the Government’s exclusion of Major Crimes Act felonies from the federal regulatory offenses enforceable in CFR court in order to avoid double jeopardy concerns. He asserts that this “limitation borders on a concession that the Double Jeopardy Clause bars [his] second prosecution.” Brief for Petitioner 29. Not so. Federal regulatory crimes are defined by the Federal Government, so successive prosecutions for a federal regulatory crime and a federal statutory crime present a different double jeopardy question from the one here.

 Next, Denezpi argues that permitting successive prosecutions like his “does not further the purposes underlying the dual-sovereignty doctrine,” namely, advancing sovereigns’ independent interests. Id., at 28–29. Purposes aside, the doctrine “follows from” the Clause’s text, which controls. Gamble, 587 U. S., at ___–___. In any event, the Tribe’s sovereign interest is furthered when its assault and battery ordinance—duly enacted by its governing body as an expression of the Tribe’s condemnation of that crime—is enforced, regardless of who enforces it.

 Finally, Denezpi asserts that the Court’s conclusion might lead sovereigns to assume more broadly the authority to enforce other sovereigns’ criminal laws in order to get two bites at the apple. If a constitutional barrier to such cross-enforcement exists, it does not derive from the Double Jeopardy Clause. Pp. 6–13.

979 F. 3d 777, affirmed.

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