Muslim, was arrested on criminal charges and detained by federal officials under restrictive conditions. Iqbal filed a Bivens action against numerous federal officials, including petitioner Ashcroft, the former Attorney General, and petitioner Mueller, the Director of the Federal Bureau of Investigation (FBI). See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. The complaint alleged, inter alia, that petitioners designated Iqbal a person “of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments; that the FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September–11th investigation; that petitioners knew of, condoned, and willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the prohibited factors and for no legitimate penological interest; and that Ashcroft was the policy’s “principal architect” and Mueller was “instrumental” in its adoption and

United States v. Booker

The question presented in each of these cases is whether an application of the Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited the severity of the sentence that the judge could lawfully impose on the defendant based on the facts found by the jury at his trial. In both cases the courts rejected, on the basis of our decision in Blakely v. Washington, 542 U.S. 296 (2004), the Government’s recommended application of the Sentencing Guidelines because the proposed sentences were based on additional facts that the sentencing judge found by a preponderance of the evidence. We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

Respondent Booker was charged with possession with intent to distribute at least 50 grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his duffel bag, the jury found him guilty of violating 21 U.S.C. § 841(a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for that offense. § 841(b)(1)(A)(iii).

Based upon Booker’s criminal history and the quantity of drugs found by the jury, the Sentencing Guidelines required the District Court Judge to select a “base” sentence of not less than 210 nor more than 262 months in prison. See United States Sentencing Commission, Guidelines Manual §§ 2D1.1(c)(4), 4A1.1 (Nov. 2003) (USSG). The judge, however, held a post-trial sentencing proceeding and concluded by a preponderance of the evidence that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings mandated that the judge select a sentence between 360 months and life imprisonment; the judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence.

Over the dissent of Judge Easterbrook, the Court of Appeals for the Seventh Circuit held that this application of the Sentencing Guidelines conflicted with our holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 375 F. 3d 508, 510 (2004). The majority relied on our holding in Blakely, 542 U.S. 296, that “the `statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id., at 303. The court held that the sentence violated the Sixth Amendment, and remanded with instructions to the District Court either to sentence respondent within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury.

Respondent Fanfan was charged with conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii). He was convicted by the jury after it answered “Yes” to the question “Was the amount of cocaine 500 or more grams?” App. C to Pet. for Cert. in No. 04-105, p. 15a. Under the Guidelines, without additional findings of fact, the maximum sentence authorized by the jury verdict was imprisonment for 78 months.

A few days after our decision in Blakely, the trial judge conducted a sentencing hearing at which he found additional facts that, under the Guidelines, would have authorized a sentence in the 188-to-235-month range. Specifically, he found that respondent Fanfan was responsible for 2.5 kilograms of cocaine powder, and 261.6 grams of crack. He also concluded that respondent had been an organizer, leader, manager, or supervisor in the criminal activity. Both findings were made by a preponderance of the evidence. Under the Guidelines, these additional findings would have required an enhanced sentence of 15 or 16 years instead of the 5 or 6 years authorized by the jury verdict alone. Relying not only on the majority opinion in Blakely, but also on the categorical statements in the dissenting opinions and in the Solicitor General’s brief in Blakely, see App. A to Pet. for Cert. in No. 04-105, pp. 6a-7a, the judge concluded that he could not follow the particular provisions of the Sentencing Guidelines “which involve drug quantity and role enhancement,” id., at 11a. Expressly refusing to make “any blanket decision about the federal guidelines,” he followed the provisions of the Guidelines that did not implicate the Sixth Amendment by imposing a sentence on respondent “based solely upon the jury verdict in this case.” Ibid.

Following the denial of its motion to correct the sentence in Fanfan’s case, the Government filed a notice of appeal in the Court of Appeals for the First Circuit, and a petition in this Court for a writ of certiorari before judgment. Because of the importance of the questions presented, we granted that petition, 542 U.S. 956 (2004), as well as a similar petition filed by the Government in Booker’s case, ibid. In both petitions, the Government asks us to determine whether our Apprendi line of cases applies to the Sentencing Guidelines, and if so, what portions of the Guidelines remain in effect.

The questions presented are:
“1. Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
“2. If the answer to the first question is `yes,’ the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” E. g., Pet. for Cert. in No. 04-104, p. (I).

In this opinion, we explain why we agree with the lower courts’ answer to the first question. In a separate opinion for the Court, JUSTICE BREYER explains the Court’s answer to the second question.

It has been settled throughout our history that the Constitution protects every criminal defendant “against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). It is equally clear that the “Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 511 (1995). These basic precepts, firmly rooted in the common law, have provided the basis for recent decisions interpreting modern criminal statutes and sentencing procedures.

Matsushita Elec. Industrial Co. v. Zenith Radio

JUSTICE POWELL delivered the opinion of the Court.

This case requires that we again consider the standard district courts must apply when deciding whether to grant summary judgment in an antitrust conspiracy case.


Stating the facts of this case is a daunting task. The opinion of the Court of Appeals for the Third Circuit runs to 69 pages; the primary opinion of the District Court is more than three times as long. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (CA3 1983)513 F. Supp. 1100 (ED Pa. 1981). Two respected District Judges each have authored a number of opinions in this case; the published ones alone would fill an entire volume of the Federal Supplement. In addition, the parties have filed a 40-volume appendix in this Court that is said to contain the essence of the evidence on which the District Court and the Court of Appeals based their respective decisions.

We will not repeat what these many opinions have stated and restated, or summarize the mass of documents that constitute the record on appeal. Since we review only the standard applied by the Court of Appeals in deciding this case, and not the weight assigned to particular pieces of evidence, we find it unnecessary to state the facts in great detail. What follows is a summary of this case’s long history.


Petitioners, defendants below, are 21 corporations that manufacture or sell “consumer electronic products” (CEPs) — for the most part, television sets. Petitioners include both Japanese manufacturers of CEPs and American firms, controlled by Japanese parents, that sell the Japanese-manufactured products. Respondents, plaintiffs below, are Zenith Radio Corporation (Zenith) and National Union Electric Corporation (NUE). Zenith is an American firm that manufactures and sells television sets. NUE is the corporate successor to Emerson Radio Company, an American firm that manufactured and sold television sets until 1970, when it withdrew from the market after sustaining substantial losses. Zenith and NUE began this lawsuit in 1974, claiming that petitioners had illegally conspired to drive  American firms from the American CEP market. According to respondents, the gist of this conspiracy was a “`scheme to raise, fix and maintain artificially high prices for television receivers sold by [petitioners] in Japan and, at the same time, to fix and maintain low prices for television receivers exported to and sold in the United States.'” 723 F.2d, at 251 (quoting respondents’ preliminary pretrial memorandum). These “low prices” were allegedly at levels that produced substantial losses for petitioners. 513 F. Supp., at 1125. The conspiracy allegedly began as early as 1953, and according to respondents was in full operation by sometime in the late 1960’s. Respondents claimed that various portions of this scheme violated §§ 1 and 2 of the Sherman Act, § 2(a) of the Robinson-Patman Act, § 73 of the Wilson Tariff Act, and the Antidumping Act of 1916.

NUE had filed its complaint four years earlier, in the District Court for the District of New Jersey. Zenith’s complaint was filed separately in 1974, in the Eastern District of Pennsylvania. The two cases were consolidated in the Eastern District of Pennsylvania in 1974.

After several years of detailed discovery, petitioners filed motions for summary judgment on all claims against them. The District Court directed the parties to file, with preclusive effect, “Final Pretrial Statements” listing all the documentary evidence that would be offered if the case proceeded to trial. Respondents filed such a statement, and petitioners responded with a series of motions challenging the admissibility of respondents’ evidence. In three detailed opinions, the District Court found the bulk of the evidence on which Zenith and NUE relied inadmissible.

 The inadmissible evidence included various government records and reports, Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1125 (ED Pa. 1980), business documents offered pursuant to various hearsay exceptions, Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1190 (ED Pa. 1980), and a large portion of the expert testimony that respondents proposed to introduce. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1313 (ED Pa. 1981).

The District Court then turned to petitioners’ motions for summary judgment. In an opinion spanning 217 pages, the court found that the admissible evidence did not raise a genuine issue of material fact as to the existence of the alleged conspiracy. At bottom, the court found, respondents’ claims rested on the inferences that could be drawn from petitioners’ parallel conduct in the Japanese and American markets, and from the effects of that conduct on petitioners’ American competitors. 513 F. Supp., at 1125-1127. After reviewing the evidence both by category and in toto, the court found that any inference of conspiracy was unreasonable, because (i) some portions of the evidence suggested that petitioners conspired in ways that did not injure respondents, and (ii) the evidence that bore directly on the alleged price-cutting conspiracy did not rebut the more plausible inference that petitioners were cutting prices to compete in the American market and not to monopolize it. Summary judgment therefore was granted on respondents’ claims under § 1 of the Sherman Act and the Wilson Tariff Act. Because the Sherman Act § 2 claims, which alleged that petitioners had combined to monopolize the American CEP market, were functionally indistinguishable from the § 1 claims, the court dismissed them also. Finally, the court found that the Robinson-Patman Act claims depended on the same supposed conspiracy as the Sherman Act claims. Since the court had found no genuine issue of fact as to the conspiracy, it entered judgment in petitioners’ favor on those claims as well.

 The District Court ruled separately that petitioners were entitled to summary judgment on respondents’ claims under the Antidumping Act of 1916. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F. Supp. 1190 (ED Pa. 1980). Respondents appealed this ruling, and the Court of Appeals reversed in a separate opinion issued the same day as the opinion concerning respondents’ other claims. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 319 (CA3 1983)
Petitioners ask us to review the Court of Appeals’ Antidumping Act decision along with its decision on the rest of this mammoth case. The Antidumping Act claims were not, however, mentioned in the questions presented in the petition for certiorari, and they have not been independently argued by the parties. See this Court’s Rule 21.1(a). We therefore decline the invitation to review the Court of Appeals’ decision on those claims.


The Court of Appeals for the Third Circuit reversed. The court began by examining the District Court’s evidentiary rulings, and determined that much of the evidence excluded by the District Court was in fact admissible. 723 F.2d, at 260-303. These evidentiary rulings are not before us. See 471 U.S. 1002 (1985) (limiting grant of certiorari).

As to 3 of the 24 defendants, the Court of Appeals affirmed the entry of summary judgment. Petitioners are the 21 defendants who remain in the case.

On the merits, and based on the newly enlarged record, the court found that the District Court’s summary judgment decision was improper. The court acknowledged that “there are legal limitations upon the inferences which may be drawn from circumstantial evidence,” 723 F.2d, at 304, but it found that “the legal problem . . . is different” when “there is direct evidence of concert of action.” Ibid. Here, the court concluded, “there is both direct evidence of certain kinds of concert of action and circumstantial evidence having some tendency to suggest that other kinds of concert of action may have occurred.” Id., at 304-305. Thus, the court reasoned, cases concerning the limitations on inferring conspiracy from ambiguous evidence were not dispositive. Id., at 305. Turning to the evidence, the court determined that a factfinder reasonably could draw the following conclusions:

Bird law


WILLIAM C. CONNER, District Judge.

Plaintiffs, Cresenzi Bird Importers, Inc. (“Cresenzi”), Novak’s Tropical Aviary, Inc. (“Novak”) and Supreme Exotic Birds, Inc. (“Supreme”) (collectively, the “Importers”) brought this action against defendants, the State of New York, the New York State of Department of Environmental Conservation (“DEC”), and Henry Williams, as Commissioner of DEC (collectively, the “State”), challenging the validity of New York’s Wild Bird Law, New York Environmental Conservation Law § 11-1728 (1. 1984, ch. 981), and the regulations promulgated thereunder, 6 N.Y.C.R.R. § 174.1-174.10. The Importers allege that the Wild Bird Law (1) is preempted under the supremacy clause, U.S. Const. art. VI, cl. 2, by the Endangered Species Act, 16 U.S.C. § 1531-1543 and 50 C.F.R. Parts 17 and 23, and the federal quarantine laws, 21 U.S.C. § 102-105, 111, 114, and 134, and 9 C.F.R. Part 92; (2) places an unconstitutional burden on interstate commerce, U.S. Const. art. I, § 8; (3) hampers commercial speech in violation of U.S. Const. amend. I; (4) deprives Cresenzi and Novak of their property without due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6, by rendering unrecoverable the funds which they expended to obtain their quarantine facilities; (5) is so vague as to deprive plaintiffs of due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6; (6) delegates legislative authority to DEC, a cabinet-level agency of the State of New York, in violation of N.Y. Const. art. III, § 1; (7) has been incorrectly interpreted by DEC to exclude Cresenzi and Novak as exempt “State, Federal, or local agencies”; and (8) if interpreted to exempt Cresenzi and Novak, violates Supreme’s right to equal protection of the law, U.S. Const. amend. XIV.

The State has moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, and Fed.R.Civ.P. 12(b)(1), on the ground that the Court lacks jurisdiction over the subject matter, since plaintiffs’ claims are barred by the eleventh amendment, U.S. Const., and the doctrine of abstention.


Each of the three plaintiffs is engaged in the business of importing and selling live wild birds within the State of New York. Each plaintiff is licensed by the Department of the Interior “to engage in business as an importer or exporter of wildlife.” 50 C.F.R. § 14.91. Cresenzi and Novak operate three of the five wildlife quarantine stations in the State of New York. These stations are approved and monitored by the federal government as part of a federal statutory and regulatory scheme to control the introduction and spread of contagious disease among the poultry and animal populations of the the United States. 21 U.S.C. § 102-105, 111, 114, and 134, and 9 C.F.R. Part 92.



“Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 971 (10th Cir. 2002) (citing Fed. R. Civ. P. 56(c)). “An issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The initial burden is on the moving party to show that “there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has met its initial burden of demonstrating the absence of a genuine issue of material fact, “the burden shifts to the nonmoving party to go beyond the pleadings and set forth specificfacts showing that there is a genuine issue for trial.” Sally Beauty Co., 304 F.3d at 971 (citing Anderson, 477 U.S. at 248). The Court must “construe the evidence and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant,” id. at 972 (citation omitted), but conclusory statements and attorney arguments submitted by the nonmoving party do not create a genuine issue of material fact, see Adler v. Wal-mart Stores, Inc., 144 F.3d 664, 671-72 (10th Cir. 1998)

Patent Law and the Supreme Court: Patent Certiorari Petitions Denied in 2018

Section 101 of the Patent Act, 35 U.S.C. § 101, establishes the broad categories of subject matter that are patent-eligible and has been construed to exclude abstract ideas. Section 101 is directed to the patent as a whole and does not impose substantive requirements beyond delineating the patent-eligible subject matters—requirements such as specificity and enablement are dealt with in other provisions of the Patent Act. In this case, the district court and court of appeals agreed that the patents-in-suit are directed to an innovative technological architecture that improves the functionality of online media streaming. But both courts nevertheless concluded that the patents’ claims are directed to an abstract idea—and are therefore ineligible under Section 101—because the asserted claims, read in isolation, do not describe with sufficient specificity how to achieve the innovation. In reaching that conclusion, the courts expressly ignored the detailed description of the inventions in the rest of the specification and refused to consider proffered evidence demonstrating how the inventions solved existing technical problems and added significant innovative concepts to the prior art. The questions presented are: In order to clear the threshold eligibility determination under 35 U.S.C. § 101, must a patent include in its claims a sufficient level of specificity such that the claims, read in isolation, fully describe the nature of the innovation and the means of achieving it? Does a court’s determination that a claim is ineligible under 35 U.S.C. § 101 because it is not directed to an inventive concept that was previously unknown in the art require resolution of underlying factual questions that, when disputed, cannot be resolved on a motion to dismiss? Cert. petition filed 7/27/18 (full docket here). Petition denied 10/15/18. CAFC Opinion, CAFC Argument
Oleksy v. General Electric Co., No. 18-303 Questions Presented: The date on which a district court judgment becomes final is critical to the federal appellate process. A number of critical deadlines for filings and submissions are computed from the date a district court’s judgment is final. Recognizing the importance of defining whether a judgment is a final judgment, this Court set forth specific criteria for making this determination. In United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227 (1958), this Court held that the use of specific words is not required for a judgment to be final. The circumstances must show that the district court had an intention to terminate the case. Following this precedent, the Court of Appeals for the Federal Circuit held that in patent cases for a judgment to be final a dismissal of an invalidity counterclaim need not be express. A district court can effectively dismiss a counterclaim. However, in the present case, a judgment was held not be final because an invalidity counterclaim was not expressly dismissed. It is therefore important that this Court grant the petition to review the following questions: Whether this Court should exercise its supervisory power to assure that precedents are followed and reverse a decision that the district court judgment was not final because a counterclaim was not EXPRESSLY dismissed even though this counterclaim was effectively and necessarily dismissed by the district court? Whether Due Process Rights of the Petitioner Were Violated When the Federal Circuit Court of Appeals affirmed Without Opinion District Court’s Decision That Was Clearly Inconsistent with Precedents? Cert. petition filed 9/5/18 (full docket here). Petition denied 10/12/18. CAFC Opinion, CAFC Argument
Advanced Audio Devices, LLC v. HTC Corp., No. 18-183

bens test post

Cole v. Jersey City Medical Center, 215 N.J. 165 (2013).  In Cole v. Jersey City Medical Center, 425 N.J. Super. 48 (App. Div. 2012), discussed here, the Appellate Division ruled that defendant, who had litigated this employment discrimination case for 21 months and then, three days before trial, sought to invoke an arbitration clause, was equitably estopped from doing so.  Today, in an opinion by Judge Cuff, the Supreme Court affirmed that decision, but ruled based on waiver, finding it unnecessary to address equitable estoppel.

“[W]hether a party has waived its arbitration right is a legal determination subject to de novo review.”  Though arbitration “is a favored means of dispute resolution,” the right to arbitrate can be waived.  Judge Cuff cited the familiar definition of waiver as “the intentional relinquishment of a known right,” and observed that waiver can occur either explicitly or implicitly.  Regardless, the waiver inquiry is “a fact-sensitive analysis,” a standard that has also been recognized by both the Appellate Division and by federal Circuit Courts of Appeal in the context of the Federal Arbitration Act.  Judge Cuff also cited cases from many other states that, similarly, employ a “totality of the circumstances” test, a standard that the Court’s opinion here adopted as well.

Judge Cuff offered a non-exclusive list of factors that are to be considered in evaluating whether a party has waived its right to arbitration.  These included: “(1) the delay in making the arbitration request; (2) the filing of any motions, particularly dispositive motions, and their outcome; (3) whether the delay in seeking arbitration was part of the party’s litigation strategy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense, or provided other notification of its intent to seek arbitration; (6) the proximity of the date on which the party sought arbitration to the date of trial; and (7) the resulting prejudice suffered by the other party, if any.  No one factor is dispositive.  A court will consider an agreement to arbitrate waived, however, if arbitration is simply asserted in the answer and no other measures are taken to preserve the affirmative defense.”

Applying those factors here, it was an easy decision to find waiver.  Defendant had asserted 35 affirmative defenses, but had not listed arbitration as one of those defenses.  Defendant intensely litigated the case for 21 months, until three days before trial, including filing a motion for summary judgment.  Waiver was evident.

At least since Hudik-Ross, Inc. v. 1530 Palisade Ave. Corp., 131 N.J. Super. 159 (App. Div. 1974), cited in this opinion, the Appellate Division has recognized that unreasonable delay in asserting a right to arbitration can constitute a waiver.  The federal courts, in the cases cited by Judge Cuff and, more recently, in Bellevue Drug Corp. v. Caremark SPCS, 700 F.3d 109 (3d Cir. 2012), discussed here, followed suit.  Now the Supreme Court has defintively and correctly stated the law in this area, removing any lingering uncertainty.  Anyone who has the right to arbitrate and wishes to invoke that right now knows exactly what to do and, almost more importantly, what not to do.