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

No. 19–1039. Argued April 28, 2021—Decided June 29, 2021

Congress passed the Natural Gas Act in 1938 to regulate the transportation and sale of natural gas in interstate commerce. To build an interstate pipeline, a natural gas company must obtain from the Federal Energy Regulatory Commission a certificate reflecting that such construction “is or will be required by the present or future public convenience and necessity.” 15 U. S. C. §717f(e). As originally enacted, the NGA did not provide a mechanism for certificate holders to secure property rights necessary to build pipelines, often leaving certificate holders with only an illusory right to build. Congress remedied this defect in 1947 by amending the NGA to authorize certificate holders to exercise the federal eminent domain power, thereby ensuring that certificates of public convenience and necessity could be given effect. See §717f(h).

   FERC granted petitioner PennEast Pipeline Co. a certificate of public convenience and necessity authorizing construction of a 116-mile pipeline from Pennsylvania to New Jersey. Several parties, including respondent New Jersey, petitioned for review of FERC’s order in the D. C. Circuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case. PennEast filed various complaints in Federal District Court in New Jersey seeking to exercise the federal eminent domain power under §717f(h) to obtain rights-of-way along the pipeline route approved by FERC. As relevant here, PennEast sought to condemn parcels of land in which either New Jersey or the New Jersey Conservation Foundation asserts a property interest. New Jersey moved to dismiss PennEast’s complaints on sovereign immunity grounds. The District Court denied the motion, and it granted PennEast’s requests for a condemnation order and preliminary injunctive relief. The Third Circuit vacated the District Court’s order insofar as it awarded PennEast relief with respect to New Jersey’s property interests. The Third Circuit concluded that because §717f(h) did not clearly delegate to certificate holders the Federal Government’s ability to sue nonconsenting States, PennEast was not authorized to condemn New Jersey’s property.

Held: Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States. Pp. 6–23.

  (a) The United States raises a threshold challenge to the Third Circuit’s jurisdiction below on the grounds that §717r(b) grants the court of appeals reviewing FERC’s certificate order (here, the D. C. Circuit) “exclusive” jurisdiction to “affirm, modify, or set aside such order.” The Court rejects this challenge. New Jersey does not seek to modify FERC’s order; it asserts a defense against the condemnation proceedings initiated by PennEast. The Third Circuit’s decision that §717f(h) does not grant natural gas companies the right to bring condemnation suits against States did not “modify” or “set aside” FERC’s order, which neither purports to grant PennEast the right to file a condemnation suit against States nor addresses whether §717f(h) grants that right. Contrary to the argument of the United States, New Jersey’s appeal is not a collateral attack on the FERC order. Pp. 6–7.

 (b) The Federal Government has exercised its eminent domain authority since the founding, connecting our country through turnpikes, bridges, and railroads—and more recently through pipelines, telecommunications infrastructure, and electric transmission facilities. The Court has upheld these exercises of the federal eminent domain power—whether by the Government or a private corporation, whether through the upfront taking of property or a condemnation action, and whether against private property or state-owned land. Section 717f(h) falls within this established practice. Pp. 7–12.

   (1) Governments have long taken property for public use without the owner’s consent. The United States is no different. While the Constitution and Bill of Rights did not use the term “eminent domain,” the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”) presupposed the existence of such a power. Initially, the Federal Government exercised its eminent domain authority in areas subject to exclusive federal jurisdiction. The Court later confirmed that federal eminent domain extended to property within a State. Kohl v. United States, 91 U. S. 367. The Court’s decision in Kohl—which upheld the power of the United States to condemn land in Ohio to construct a federal building—observed that eminent domain was a “means well known when the Constitution was adopted” and that “[t]he powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States.” Id., at 371–372. Kohl involved the condemnation of private land, but the Court subsequently made clear that “[t]he fact that land is owned by a state is no barrier to its condemnation by the United States.” Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 534. Pp. 7–9.

   (2) For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties. The Colonies, the States, and the Federal Government have commonly authorized the private condemnation of land for public works. And in the years following Kohl, the Court confirmed that private delegatees, like the United States, can exercise the federal eminent domain power within the States. In Luxton v. North River Bridge Co., 153 U. S. 525, for example, the Court rejected a landowner’s claim that Congress could not delegate its authority to condemn property necessary to construct a bridge between New York and New Jersey. Congress had the sovereign power to construct bridges for interstate commerce, and the Court confirmed Congress could choose to do so through a corporation. Id., at 530. These powers, the Court noted, could be exercised “with or without a concurrent act of the State in which the lands lie.” Ibid. Early cases also reflected the understanding that state property was not immune from the exercise of delegated federal eminent domain power. See Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (Bradley, Cir. J.). The contrary position—that a federal delegatee could not condemn a State’s land without the State’s consent—would give rise to the “dilemma of requiring the consent of the state” in virtually every infrastructure project authorized by the Federal Government. Id., at 17. The Court in Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, echoed Stockton’s explanation of the superior eminent domain power of the Federal Government when it rejected a challenge to a private railroad company’s exercise of the federal eminent domain power against land owned by the Cherokees. In reaching that result, the Court acknowledged that “the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States,” and the Court labeled as “strange” the notion that the Federal Government “could not exercise the same power in a Territory occupied by an Indian nation or tribe.” 135 U. S., at 656–657. Pp. 9–11.

   (3) Section 717f(h) delegates to certificate holders the power to condemn any necessary rights-of-way, including land in which a State holds an interest. This delegation of the federal eminent domain authority is consistent with the Nation’s history and this Court’s precedents. FERC’s issuance to a company of a certificate of public convenience and necessity to build a pipeline carries with it the power—if the company cannot acquire the necessary rights-of-way by contract at an agreed compensation—to “acquire the same by the exercise of the right of eminent domain.” §717f(h). This delegation is categorical; by its terms, §717f(h) delegates to certificate holders the power to condemn any necessary rights-of-way, including land in which a State holds an interest. Pp. 11–12.

  (c) Respondents contend that sovereign immunity bars condemnation actions against a nonconsenting State. Alternatively, respondents contend that §717f(h) does not speak with sufficient clarity to authorize such actions. The Court rejects each argument, for reasons stated below. Pp. 13–22.

   (1) “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.” Alden v. Maine, 527 U. S. 706, 713. A State may be sued only in limited circumstances, including where the State expressly consents or where Congress clearly abrogates the State’s immunity under the Fourteenth Amendment. A State may also be sued if it has implicitly agreed to suit in the “plan of the Convention,” which is shorthand for “the structure of the original Constitution itself.” Id., at 728. The Court has looked to the plan of the Convention to permit actions against nonconsenting States in the context of bankruptcy proceedings, suits by other States, and suits by the Federal Government. Pp. 13–14.

   (2) Respondents do not dispute that the NGA empowers certificate holders to condemn private property, but they contend that the same certificate holders have no power to condemn state-owned property under §717f(h). It is argued that the NGA cannot authorize such condemnation actions under the Court’s decision in Seminole Tribe of Fla. v. Florida, 517 U. S. 44, which generally prohibits Congress from using its Article I powers to abrogate state sovereign immunity. But congressional abrogation is not the only means of subjecting States to suit. The States implicitly consented to private condemnation suits when they ratified the Constitution, and respondents’ arguments to the contrary cannot be squared with the Court’s precedents.

 Respondents do not dispute that the Federal Government enjoys a power of eminent domain superior to that of the States, or that the Federal Government can delegate that power to private parties. Respondents instead point to the absence of founding-era evidence of private condemnation suits against nonconsenting States to maintain that States did not consent to such suits when they entered the federal system. Respondents would divorce the federal eminent domain power from the power to bring condemnation actions—and then argue that the latter cannot be delegated to private parties with respect to state-owned lands. But the eminent domain power is inextricably inter twined with condemnation authority. Separating the two would diminish the eminent domain power of the federal sovereign, which the State may not do. See Kohl, 91 U. S., at 374. Absent the power to condemn States’ property interests, the only constitutionally permissible way of exercising the federal eminent domain power would be to take property up front and require States to sue for compensation later. State sovereign immunity would not be served by favoring private or Government-supported invasions of state-owned lands over judicial proceedings.

  The Court held in United States v. Texas, 143 U. S. 621, that it “does no violence to the inherent nature of sovereignty” for a State to be sued by “the government established for the common and equal benefit of the people of all the States.” Id., at 646. In so holding, the Court did not insist upon examples from the founding era of federal suits against States. Similar structural considerations support the conclusion that States consented to the federal eminent domain power, whether that power is exercised by the Government or its delegatees. The absence of a perfect historical analogue to the proceedings PennEast initiated below does not suggest otherwise. Pp. 14–21.

   (3) Finally, respondents argue that even if States agreed in the plan of the Convention to condemnation suits by Federal Government delegatees, the NGA does not authorize such suits with the clarity required by the Court’s precedents. There is no requirement, however, that the Federal Government speak with “unmistakable clarity” when authorizing a private party to exercise its eminent domain power. Pp. 21–22.

938 F. 3d 96, reversed and remanded.

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

Johnson, Acting Director of U. S. Immigration and Customs Enforcement, et al. v. Guzman Chavez et al.

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

No. 19–897. Argued January 11, 2021—Decided June 29, 2021

Federal immigration law establishes procedures for removing aliens living unlawfully in the United States as well as for determining whether such persons are detained during removal proceedings. The Department of Homeland Security (DHS) may arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” 8 U. S. C. §1226(a). An alien detained under §1226(a) may generally apply for release on bond or conditional parole. §1226(a)(2). If an alien is ordered removed and the order becomes “administratively final,” detention becomes mandatory. §§1231(a)(1)(A)–(B), (a)(2). If an alien removed under this process reenters the country without authorization, that person faces reinstatement of “the prior order of removal from its original date.” §1231(a)(5). That order “is not subject to being reopened or reviewed,” and the alien “shall be removed under the prior order at any time after reentry.” Ibid.

  Respondents are aliens who were removed from the United States and later reentered without authorization. When DHS reinstated their prior removal orders, each respondent sought withholding-only relief to prevent DHS from executing those orders based on fear of returning to their home country as designated in the removal orders. While respondents’ withholding-only proceedings were pending, DHS detained respondents, and respondents sought release on bond, which was initially denied. The Government opposed their release, maintaining that because respondents were detained under §1231, not §1226, they were not entitled to bond hearings. Respondents filed habeas proceedings in District Court, seeking a declaration that §1226 governs their detention, as well as an injunction ordering the Government to grant them individualized bond hearings consistent with §1226. The District Court entered summary judgment for respondents, and the Fourth Circuit affirmed.

Held: Section §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal. Pp. 8–22.

 (a) Section 1231 authorizes detention “when an alien is ordered removed” and enters the “removal period,” which begins, as relevant here, on “[t]he date the order of removal becomes administratively final.” It is undisputed that each respondent was previously “ordered removed” pursuant to a valid order of removal and that those orders were “reinstated from [their] original date[s]” under §1231(a)(5). Those reinstated removal orders were also “administratively final.” By inserting the word “administratively,” Congress made clear that DHS need not wait for the alien to seek or exhaust judicial review of that order. Respondents contend that even if §1231 normally governs in such cases, it ceases to apply when the alien pursues withholding-only relief. Respondents’ arguments cannot overcome the statute’s plain text. Pp. 8–18.

  (1) Respondents misunderstand the nature of withholding-only proceedings when they argue that because an immigration judge or the Board of Immigration Appeals (BIA) might determine that DHS cannot remove an alien to the specific country designated in the removal order, the question whether the alien is “to be removed” remains “pending” and is therefore governed by §1226. If an immigration judge grants an application for withholding of removal, DHS is prohibited from removing the alien to that particular country, not from the United States. The removal order remains in full force, and DHS retains the authority to remove the alien to any other authorized country. This Court and the BIA have long understood the nature of withholding-only relief this way. See, e.g., INS v. Aguirre-Aguirre, 526 U. S. 415, 419. Pp. 11–14.

   (2) Respondents next argue that a removal order does not become “administratively final” until the withholding-only proceedings conclude. A reinstated removal order, they contend, loses its prior finality when the alien initiates withholding-only proceedings. This argument ignores that removal orders and withholding-only proceedings address two distinct questions and end in two separate orders. See Nasrallah v. Barr, 590 U. S. ___, ___. Because the validity of removal orders is not affected by the grant of withholding-only relief, an alien’s initiation of withholding-only proceedings does not render non-final an otherwise “administratively final” reinstated order of removal. Pp. 14–16.

  (3) Respondents submit that the “except as otherwise provided in this section” language in the opening clause of §1231(a)(1)(A)—which sets the default for the length of the removal period at 90 days—places a limit on when the removal period is triggered. The most natural reading of that phrase, however, is that the Government must remove an alien within 90 days unless another section of §1231 specifically contemplates that the removal period can exceed 90 days. The presence of specific statutory provisions in §1231 that relate to the length of the removal period leads to the conclusion that the opening clause of §1231(a)(1)(A) refers to them and not the withholding-only provision, which does not mention the length of the removal period and does not stand in the way of removal to a third country. Pp. 16–17.

 (b) Statutory structure confirms this Court’s textual reading. Every provision applicable to respondents is located in §1231. It would thus be odd if the provision governing their detention was located in §1226, rather than §1231, which contains its own detention provision. Moreover, the inclusion of the statutory withholding provision in §1231, grouped with other provisions that relate to where DHS may remove an alien, illustrates how withholding-only relief fits within the removal process generally. The order of the applicable Immigration and Nationality Act provisions provides further context for interpreting the proper application of §1226 and §1231. Section 1226 applies before an alien proceeds through the removal proceedings and obtains a decision; §1231 applies after. Pp. 18–19.

 (c) Respondents’ contrary reading would also undermine Congress’s judgment regarding the detention of different groups of aliens who posed different flight risks. Aliens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible, while aliens who have already been ordered removed are generally inadmissible, see §1182(a)(9)(C)(ii), and have already demonstrated a willingness to violate the terms of a removal order, see §1231(a)(6). Congress had obvious reasons to treat these two groups differently. P. 20.

 (d) Respondents remaining arguments are that withholding-only proceedings are a legal impediment that, like the three triggers to the start of the removal period listed in §1231(a)(1)(B), must be eliminated before the removal period begins and that Congress could not have intended §1231 to apply to an alien in withholding-only proceedings because withholding-only proceedings often take longer than 90 days. Neither argument is persuasive. Pp. 20–22.

940 F. 3d 867, reversed.

 Alito, J., delivered the opinion of the Court, except as to footnote 4. Roberts, C. J., and Kavanaugh and Barrett, JJ., joined that opinion in full. Thomas, J., filed an opinion concurring except for footnote 4 and concurring in the judgment, in which Gorsuch, J., joined. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.


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

No. 20–440. Argued April 21, 2021—Decided June 29, 2021

In the late 1990s, Csaba Truckai invented a device to treat abnormal uterine bleeding. The device, known as the NovaSure System, uses a moisture-permeable applicator head to destroy targeted cells in the uterine lining. Truckai filed a patent application and later assigned the application, along with any future continuation applications, to his company, Novacept, Inc. The PTO issued a patent for the device. Novacept, along with its portfolio of patents and patent applications, was eventually acquired by respondent Hologic, Inc. In 2008, Truckai founded petitioner Minerva Surgical, Inc. There, he developed a supposedly improved device to treat abnormal uterine bleeding. Called the Minerva Endometrial Ablation System, the new device uses a moisture-impermeable applicator head to remove cells in the uterine lining. The PTO issued a patent, and the FDA approved the device for commercial sale. Meanwhile, Hologic filed a continuation application with the PTO, seeking to add claims to its patent for the NovaSure System. Hologic drafted one of its claims to encompass applicator heads generally, without regard to whether they are moisture permeable. The PTO issued the altered patent in 2015.

  Hologic then sued Minerva for patent infringement. As relevant here, Minerva rejoined that Hologic’s patent was invalid because the newly added claim did not match the invention’s written description, which addresses applicator heads that are water permeable. In response, Hologic invoked the doctrine of assignor estoppel. Because Truckai had assigned the original patent application, Hologic argued, he and Minerva could not impeach the patent’s validity. The District Court agreed that assignor estoppel barred Minerva’s invalidity defense. The Court of Appeals for the Federal Circuit affirmed in relevant part. Minerva now asks this Court to abandon or narrow assignor estoppel.

Held: Assignor estoppel is well grounded in centuries-old fairness principles, and the Federal Circuit was right to uphold it. But assignor estoppel applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent. Pp. 5–17.

 (a) Courts have long applied the doctrine of assignor estoppel to deal with inconsistent representations about a patent’s validity. The doctrine got its start in late 18th-century England and crossed the Atlantic about a hundred years later. This Court first considered and approved the doctrine in Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342. The Court grounded the doctrine in a principle of fairness: “If one lawfully conveys to another a patented right,” Westinghouse reasoned, “fair dealing should prevent him from derogating from the title he has assigned.” Id., at 350. The Court made clear, however, that the doctrine has limits. Although the assignor cannot assert invalidity in an infringement suit, he can argue about how to construe the patent’s claims. Id., at 350–351. The Court left for another day other questions about the doctrine’s scope, including how it would apply to the assignment of patent applications. Id., at 352–353. Pp. 5–9.

 (b) The Court rejects Minerva’s contention that assignor estoppel should be abandoned. Minerva’s first argument on that score—that Congress abrogated the doctrine in the Patent Act of 1952—is unpersuasive. Minerva relies on statutory language providing that “[i]nvalidity” of the patent “shall be [a] defense[ ] in any action involving” infringement. 35 U. S. C. §282(b). According to Minerva, that language “instructs that invalidity must be available as a defense in every action,” thus leaving no room for assignor estoppel. Brief for Petitioner 17–18. But similar language appeared in the patent statute when the Court decided Westinghouse. Anyway, Minerva’s view is untenable because it would foreclose applying in patent cases a whole host of common-law preclusion doctrines—a broad result that would conflict with this Court’s precedents. See, e.g., SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U. S. ___, ___. And it would subvert congressional design, for Congress in 1952 “legislate[d] against a background of common-law adjudicatory principles,” including assignor estoppel. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108.

 The Court also rejects Minerva’s view that two post-Westinghouse decisions have already interred assignor estoppel. In Scott Paper Co. v. Marcalus Mfg. Co., 326 U. S. 249, the Court did nothing more than decline to apply assignor estoppel in a novel and extreme circumstance. The Court did not question—indeed, it restated—the “basic principle” of fairness on which the doctrine rests. Id., at 251. In Lear, Inc. v. Adkins, 395 U. S. 653, the Court considered and toppled a different patent estoppel doctrine—licensee estoppel—but did not purport to decide the fate of assignor estoppel. To the contrary, the Court stated that the patent holder’s “equities” in the assignment context “were far more compelling than those presented in the typical licensing arrangement.” Id., at 664. Together, Scott Paper and Lear maintained assignor estoppel, but suggested that the doctrine needed to stay attached to its equitable moorings.

 Finally, the Court rejects Minerva’s claim that contemporary patent policy—specifically, the need to weed out bad patents—supports overthrowing assignor estoppel. Assignor estoppel reflects a demand for consistency in dealing with others. When a person sells his patent rights, he makes an (at least) implicit representation to the buyer that the patent at issue is valid. In later raising an invalidity defense, the assignor disavows that implied warranty. By saying one thing and then saying another, the assignor wants to profit doubly—by gaining both the price of assigning the patent and the continued right to use the invention it covers. That course of conduct by the assignor is unfair dealing. And the need to prevent such unfairness outweighs any loss to the public from leaving an invalidity defense to someone other than the assignor. Pp. 9–14.

 (c) Assignor estoppel comes with limits: it applies only when its underlying principle of fair dealing comes into play. That principle demands consistency in representations about a patent’s validity. When an assignor warrants that a patent claim is valid, his later denial of validity breaches norms of equitable dealing. But when the assignor has made neither explicit nor implicit representations in conflict with an invalidity defense, then there is no unfairness in its assertion—and so there is no ground for applying assignor estoppel. One example of non-contradiction is when an assignment occurs before an inventor can possibly make a warranty of validity as to specific patent claims. That situation arises in certain employment arrangements, when an employee assigns to his employer patent rights in any future inventions he may develop during his employment. A second example is when a later legal development renders irrelevant the warranty given at the time of assignment. Third, and most relevant here, a post-assignment change in patent claims can remove the rationale for applying assignor estoppel. The last situation arises most often when an inventor assigns a patent application, rather than an issued patent. There, the assignee may return to the PTO to enlarge the patent’s claims. Assuming that the new claims are materially broader than the old ones, the assignor did not warrant to the new claims’ validity. And if he made no such representation, then he can challenge the new claims in litigation: Because there is no inconsistency in his positions, there is no estoppel.

 The Federal Circuit failed to recognize these boundaries. Minerva argued that estoppel should not apply because it was challenging a claim that was materially broader than the ones Truckai had assigned. The Federal Circuit declined to consider the alleged disparity, deeming “irrelevant” the question whether Hologic had expanded the assigned claims. But if Hologic’s new claim is materially broader than the ones Truckai assigned, then Truckai could not have warranted its validity in making the assignment. And without such a prior inconsistent representation, there is no basis for estoppel. The judgment of the Federal Circuit is therefore vacated, and the case is remanded for the Court of Appeals to address whether Hologic’s new claim is materially broader than the ones Truckai assigned. Pp. 14–17.

957 F. 3d 1256, vacated and remanded.

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