SUPREME COURT OF THE UNITED STATES
_________________
No. 22–1238
_________________
OFFICE OF THE UNITED STATES TRUSTEE,
PETITIONER
v. JOHN Q. HAMMONS FALL 2006, LLC, et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 14, 2024]
Justice Gorsuch, with whom Justice Thomas and
Justice Barrett join, dissenting.
What’s a constitutional wrong worth these days?
The Court’s answer today seems to be: not much. Between 2018 and
2020, the government charged fees to bankruptcy debtors that varied
arbitrarily from region to region, leaving some debtors millions of
dollars worse off than others. Two years ago, we held that this
geographically discriminatory treatment violated the Constitution’s
Bankruptcy Clause—a provision that, we stressed, was not
“toothless.”
Siegel v.
Fitzgerald, 596 U.S. 464, 468
(2022). Today, however, the Court performs a remedial root canal,
permitting the government to keep the cash it extracted from its
unconstitutional fee regime.
The path the Court follows is as striking as its
destination. Never mind that a refund is the traditional remedy for
unlawfully imposed fees. Never mind that the government promised to
supply precisely that relief if the debtors in this case prevailed,
as they have, in their constitutional challenge. Never mind that
backtracking on that promise raises separate due process concerns.
As the majority sees it, supplying meaningful relief is simply not
worth the effort. Respectfully, that alien approach to remedies has
no place in our jurisprudence.
I
A
Certainty is the lifeblood of bankruptcy. For
the system to function, a debtor must be certain that putting all
his assets on the table for creditors will afford him a fresh
start. So too must a creditor have certainty about what priority
his loan may or may not enjoy in the event of a borrower’s
bankruptcy. Recognizing as much, our Constitution grants Congress
power to establish “uniform Laws on the subject of Bankruptcies
throughout the United States.” Art. I, §8, cl. 4; see 3 J.
Story, Commentaries on the Constitution of the United States
§§1101–1103, pp. 4–8 (1833). That provision affords Congress some
“flexibility” in drafting bankruptcy laws, but it does not tolerate
laws that treat parties in bankruptcy differently based on the
“arbitrary” happenstance of their “geograph[y].”
Siegel, 596
U. S., at 476. Laws like those, this Court has held, do not
apply “uniform[ly] . . . throughout the United
States.”
Our case arises from a violation of that
uniformity requirement. In much of the country, the United States
Trustee Program, housed in the Department of Justice, handles
administrative tasks once handled by bankruptcy courts.
Id.,
at 468. The Trustee Program is funded by quarterly fees paid
principally “by debtors who file cases under Chapter 11 of the
Bankruptcy Code.”
Id., at 469; see 28 U. S. C.
§1930(a)(6)(A). Thanks to a quirk of history, however, six federal
judicial districts are not in the Trustee Program. Instead, they
are part of the so-called Administrator Program, overseen by the
Judicial Conference of the United States and “funded by the
Judiciary’s general budget.”
Siegel, 596 U. S., at 469.
In those districts, Congress did not require debtors to pay fees
“at all.”
Ibid. That is, until a lower court highlighted the
disparity and held it violated the Bankruptcy Clause.
St.
Angelo v.
Victoria Farms, Inc.,
38 F.3d 1525, 1529–1532 (CA9 1994).
In 2000, Congress implemented a fix. It provided
that “the Judicial Conference of the United States may require”
debtors in Administrator Program districts “to pay fees equal to
those” debtors pay in Trustee Program districts. 114Stat. 2412
(enacting §1930(a)(7)). Although the statutory language (“may
require”) was permissive, the Judicial Conference took the hint and
began charging the same fees as those levied in Trustee Program
districts, thus putting all debtors on equal footing.
Siegel, 596 U. S., at 470.
The solution didn’t last. Come 2017, Congress
enacted temporary measures to boost Trustee Program funding. There,
Congress directed that, whenever Trustee Program funds dropped
below $200 million, certain bankruptcy estates had to pay new and
much higher quarterly fees (where some once paid $30,000, for
example, the law now required them to pay up to $250,000). §1004,
131Stat. 1232; see
Siegel, 596 U. S., at 470. The 2017
Act “applied to all pending cases” in Trustee Program districts.
Id., at 471. But for reasons not entirely clear from the
record before us, the Judicial Conference didn’t immediately follow
suit. It waited until October 2018 to implement those changes in
Administrator Program districts—and even then applied them “only to
newly filed cases.”
Ibid.
Ultimately, Congress had to intercede again. At
the close of 2020, Congress withdrew its direction to the Judicial
Conference providing that it “may require” debtors in Administrator
Program districts to pay the same fees as debtors in Trustee
Program districts. In its place, Congress issued a more emphatic
instruction, telling the Judicial Conference that it “shall” ensure
that quarterly fees remain “consistent across all Federal judicial
districts.” §§2–3, 134Stat. 5086, 5088.
But if that solved the problem going forward, it
left another question unanswered: what to do about Trustee Program
debtors who had paid more in fees between 2018 and 2020 than did
their similarly situated Administrator Program counterparts. Many
Trustee Program debtors brought challenges alleging that the fees
they had paid violated the uniformity requirement of the Bankruptcy
Clause. And in 2022, we agreed with them, holding that the debtors
before us had been subject to “arbitrary geographically disparate”
fees in violation of the Constitution.
Siegel, 596
U. S., at 476. After reaching that conclusion, we remanded the
case then before us for a lower court to determine “the appropriate
remedy . . . in the first instance.”
Id., at
480–481.
B
John Q. Hammons Hotels & Resorts found
itself in the middle of this mess. In 2016, various entities
affiliated with Hammons filed Chapter 11 bankruptcy petitions in
the District of Kansas, a Trustee Program district.
In re
John Q. Hammons Fall 2006, LLC, 15 F. 4th 1011, 1018 (CA10
2021). The cases remained pending after the 2017 Act kicked in and
before the 2020 Act mandated fee uniformity across the Nation. So
Hammons was charged higher quarterly fees than debtors in
Administrator Program districts.
Hammons did not challenge the fee disparity
immediately. That would have come at a heavy cost: Until Hammons
paid its fees in full, the bankruptcy court could not confirm
Hammons’s plan of reorganization, a vital step in the Chapter 11
process. See 11 U. S. C. §1129(a)(12). Worse, as a debtor
defaulting on its fees, Hammons would also have run the risk of
being kicked out of the Chapter 11 process entirely. §§1112(b)(1),
(b)(4)(K).
So Hammons waited until early 2020. By that time
the bankruptcy court had confirmed its plan. See Debtors’ Motion To
Determine Extent of Liability for Quarterly Fees in No. 16–21142
(Bkrtcy. Ct. Kan., Mar. 3, 2020), ECF Doc. 2823, p. 5. But by that
time Hammons had also “paid over $2.5 million more in quarterly
fees than [it] would have paid had [it] filed in” an Administrator
Program district. 15 F. 4th, at 1018. Arguing that this
discriminatory treatment was unconstitutional under the Bankruptcy
Clause, Hammons sought a refund of those excess payments. ECF Doc.
2823, at 8.
The U. S. Trustee opposed the request. But
he promised that “[i]f [Hammons] prevail[ed] after all levels of
review on [its] claim that [the fee disparity] is unconstitutional,
the government [would] refund fees to the extent they were
overpaid.” Objection of the United States to Debtor’s Motion to
Determine Extent of Liability for Quarterly Fees in No. 16–21142
(Bkrtcy. Ct. Kan., Apr. 27, 2020), ECF Doc. 2868, p. 59. As
reassurance, the U. S. Trustee stressed that Congress had
“authorized payments of refunds . . . in its most recent
annual appropriation law.”
Id., at 59–60 (citing 133Stat.
2398).
This long-promised payment eventually came due.
Anticipating our decision in
Siegel by a year, in 2021 the
Tenth Circuit held that Hammons had been subjected to an arbitrary
and geographically disparate fee forbidden by the Bankruptcy
Clause. 15 F. 4th, at 1023. By way of remedy, that court held
the Trustee to its promise, ordering him to pay Hammons a refund of
the fees it had paid in excess of those it would have owed in an
Administrator Program district during the same period.
Id.,
at 1026. This Court granted certiorari to address what remedy is
due debtors, like Hammons, who were charged unconstitutional fees
between 2018 and 2020—the question we left open in
Siegel.
600 U. S. ___ (2023).
II
A
Where does that leave us? Before this Court,
the U. S. Trustee does not question Hammons suffered a
constitutional injury in having to pay nonuniform fees. That much
was settled by
Siegel. Nor does the U. S. Trustee
dispute he promised to refund Hammons its overpayments should it
prevail—as it has now prevailed—on the merits of its constitutional
claim. Everyone agrees those fees total approximately $2.5 million.
Even more than that, it is undisputed Congress has already taken
the affirmative step of appropriating funds for refunds in cases
just like this one. With all that beyond dispute, the next step
should be too: Just as the Tenth Circuit held, the U. S.
Trustee should be ordered to make Hammons whole for its injury and
pay the promised refund.
Traditional remedial principles command that
result. No one argues, for example, that sovereign immunity bars
this suit or others like it. Nor is there a question Hammons sought
a refund in a timely fashion. As the U. S. Trustee puts it,
Congress has allowed “[t]he amounts of the payments [to] be
litigated at the time of the budget submission; by filing an
adversary proceeding to challenge fees at any time while the
bankruptcy case is ongoing; or by filing a district court action
after the case has terminated.” Brief for Petitioner 5–6. And
Hammons brought its fee challenge while its bankruptcy case was
still ongoing. It is long since settled, too, that where (as here)
Congress has provided “a general right to sue” for the invasion of
a legal right but has not specified any particular form of relief,
“federal courts may use any available remedy to make good the wrong
done.”
Barnes v.
Gorman,
536
U.S. 181, 189 (2002) (internal quotation marks omitted). And
where (as here), someone pays money—or has money withheld from
him—because of invalid government action, the most appropriate
remedy is monetary relief.
Centuries of judicial practice confirm as much.
This Court has long said that the “[a]ppropriate remedy” for
“duties or taxes erroneously or illegally assessed . . .
is an action of assumpsit for money had and received.”
Philadelphia v.
Collector, 5 Wall. 720, 731 (1867).
We have held that “the law . . . will compel restitution
or compensation” “if a county obtains the money or property of
others without authority.”
City of Louisiana v.
Wood,
102 U.S.
294, 299 (1880) (internal quotation marks omitted). And on the
theory that “the appropriate remedy” for unconstitutional
discrimination “is a mandate of equal treatment,”
Heckler v.
Mathews,
465 U.S.
728, 740 (1984) (emphasis deleted), we have “regularly
. . . affirmed District Court judgments ordering that
welfare benefits be paid to members of an unconstitutionally
excluded class,”
Califano v.
Westcott,
443 U.S.
76, 90 (1979).
Our longstanding precedents should make short
work of this case. Hammons remitted to the U. S. Trustee more
than $2.5 million in “overpayments.”
Siegel, 596 U. S.,
at 472 (internal quotation marks omitted). Those overpayments were
exacted in violation of the Bankruptcy Clause. To remedy the
violation, Hammons is entitled to a refund—the relief the
U. S. Trustee promised from the start.
B
Despite all this, the government now tries to
backtrack. Yes, it promised to pay should Hammons prove a
constitutional injury. Yes, Hammons has now done exactly that,
consistent with
Siegel. Yes, Congress has appropriated sums
to make Hammons and others like it whole. And, yes, traditional
remedial principles would seem to dictate just that form of relief.
Still, the government insists, it should not be forced to pay. It’s
an astonishing claim, made all the more astonishing by the fact a
majority of the Court goes along with it.
How do they get there? To determine the
appropriate remedy for Hammons’s constitutional injury, the
government and majority reason, we “must adopt the remedial course
Congress likely would have chosen had it been apprised of the
constitutional infirmity.” Brief for Petitioner 14 (internal
quotation marks omitted). And, they continue, had Congress known in
2017 that the disparate fee arrangement was unconstitutional, it
would have responded by imposing higher fees on debtors in the
Administrator Program districts.
Id., at 14–15. And, the
government and majority say, “[t]he most appropriate way to
effectuate that remedy is on a purely prospective basis”—ensuring
that fees are “uniform going forward.”
Id., at 20. Of
course, Congress already provided just this prospective relief in
the 2020 Act. So really, the government and majority conclude, that
means “no further relief is required.”
Ibid.; see
ante, at 7–11. Presto: No refund for Hammons. It is a line
of reasoning as bold as it is untenable.[
1]
1
Start with the government and majority’s major
premise: the notion that our only proper role is to speculate
about—and then give effect to—the course of action Congress would
have taken to address the constitutional injury its fee regime
imposed had it been warned in advance. Consider what that would
mean in a more familiar context. Suppose you suffered some form of
arbitrary and unlawful discrimination in the workplace and sued
your employer for damages. In response, suppose your employer
reassured you that, had it known beforehand what the incident would
mean for its wallet, it would have taken steps to avoid the
incident—and it promises to do better in the future. In what world
does your employer’s promise of a
prospective-only remedy do
anything to redress your
past injuries? And why would it
matter what the employer might have done differently?
None of that comports with traditional remedial
principles. A promise of fee uniformity going forward may prevent
future discrimination between debtors. But it does nothing to
remedy fees unlawfully exacted in the past. Far from an
“appropriate remedy,” the majority’s
prospective remedy for
a
past injury is no remedy at all. By overlooking the
(obvious) distinction between prospective and retrospective relief,
the majority defies this Court’s teaching that, in cases like this
one, “effective relief consists of damages, not an injunction.”
Tanzin v.
Tanvir, 592 U.S. 43, 51 (2020).
Nor is it sensible to ask what remedy the
government might prefer. This Court has long held that, in our
legal system, it is the plaintiff, not the defendant, who “has a
right to choose” what form of legally permissible relief he will
seek.
Twist v.
Prairie Oil & Gas Co.,
274 U.S.
684, 689 (1927). And for just as long we have considered
irrelevant a defendant’s plea that, if he had known what he was
doing was wrong, “he would have pursued a different course of
action within the law.”
Corsicana Nat. Bank of Corsicana v.
Johnson,
251 U.S.
68, 88 (1919). Entertaining that kind of “hypothesis,” we have
explained, “would be an unwarranted resort to fiction in aid of a
wrongdoer, and at the expense of the party injured.”
Ibid.
Seeking a way around these problems and
following the government’s lead, the majority points to cases in
which plaintiffs sought prospective equitable relief from an
unconstitutional law. See Brief for Petitioner 14–15.[
2] And in
that posture, those cases
indicate, the Court has sometimes thought it appropriate to ask how
much of the challenged statute it should declare inoperative going
forward: Should the whole statute, or only parts of it, be held
unenforceable in the future?
That question, the Court has sometimes said,
poses one of “severability.”
Barr v.
American Assn. of
Political Consultants, Inc., 591 U.S. 610, 614 (2020) (opinion
of Kavanaugh, J.); see
Ayotte v.
Planned Parenthood of
Northern New Eng.,
546 U.S.
320, 331–332 (2006). Sometimes, Congress will include an
express severability clause providing that the unconstitutionality
of any one provision will not preclude the enforcement of others
going forward.
Barr, 591 U. S., at 623. But what
happens when a statute contains no such provision? In cases like
that, this Court has, from time to time, resorted to asking the
hypothetical question: What would Congress “have willed” about the
law’s future application had it foreseen its constitutional defect?
Levin v.
Commerce Energy, Inc.,
560 U.S.
413, 427 (2010).
So, for example, in
Sessions v.
Morales-Santana, 582 U.S. 47 (2017), the Court faced a
statute that supplied a faster path to citizenship for children
born abroad to American mothers than for those born abroad to
American fathers.
Id., at 51. The Court held that law
violated the Equal Protection Clause.
Id., at 72. To resolve
how the law should operate going forward consistent with the
Constitution, the Court asked whether Congress would have preferred
the “ ‘withdrawal of benefits’ ” from children of
American mothers or the “ ‘extension of benefits’ ” to
children of American fathers, and chose the former option.
Id., at 73.[
3]
None of that, however, has anything to do with
our case. Hammons seeks damages to remedy a past violation. The
company does not seek from us any form of prospective relief. As a
result, we have no occasion to take a scalpel to Congress’s work.
We do not face anything like the question whether to extend or
withdraw benefits to ensure a statute’s constitutional operation
going forward. Indeed, attempting to do so in this case would be
utterly pointless, for in 2020 Congress
already modified the
challenged provision to remove its constitutional infirmity going
forward. And just because
future parties will not be injured
does nothing to erase the fact that parties injured by
past
misconduct are entitled to relief.
The decisions the majority relies upon only
confirm the point. Take
Morales-Santana. While the Court
consulted hypothetical legislative intent to resolve a question
about the scope of prospective relief, it also acknowledged limits
on the propriety of that course. It observed, for example, that
legislative intent is “irrelevant” when “a defendant [is] convicted
under a law classifying on an impermissible basis”; for that past
harm, he is entitled to relief “without regard to the manner in
which” Congress might have wanted to “cure the infirmity.”
Id., at 74, n. 24. The Court stressed, too, that we
“loo[k] to Justice Harlan’s concurring opinion in
Welsh v.
United States,”
398 U.S.
333 (1970), when considering remedies for discriminatory
treatment. 582 U. S., at 75. And that opinion is wholly
inconsistent with the majority’s approach today. Guessing how the
legislature would have fixed a statute had it known of a
constitutional defect might be appropriate “in an action for a
declaratory judgment or an action in equity,” Justice Harlan wrote.
Welsh, 398 U. S., at 363–364 (opinion concurring in
result) (internal quotation marks omitted). But, he added, that
course is
not “appropriate” in cases, like the one before
him, where the plaintiff sought relief for a past harm and the
result of guesswork about legislative intentions could leave him
“remediless.”
Id., at 362.
The few decisions the majority cites addressing
requests for retrospective relief make a similar point. Consider
Los Angeles Dept. of Water and Power v.
Manhart,
435 U.S.
702 (1978), a case alleging unlawful discrimination under Title
VII of the Civil Rights Act of 1964. See
ante, at 7. That
statute, the Court observed, provides that “retroactive relief
‘may’ be awarded if it is ‘appropriate.’ ” 435 U. S., at
719. Despite the permissive statutory language, the Court
recognized the traditional “presumption in favor of ” money
damages to remedy past discrimination.
Ibid. This
presumption,
Manhart continued, was so strong it “can seldom
be overcome.”
Ibid. Exactly so.[
4]
2
Turn now to the minor premise of the
majority’s argument and a second, independent problem emerges.
Relying on severability precedents, the majority reasons that
Congress would not have wanted to issue refunds in cases like this
one. But even assuming speculation about Congress’s wishes has
anything to do with the scope of retrospective relief, it would
still require a refund here.
When searching for congressional intent, we have
said, there is no better place to look than “existing statutory
text.”
Lamie v.
United States Trustee,
540 U.S.
526, 534 (2004). Even in severability cases, we have taken
pains to stress that courts may not elevate judicial guesswork
about “Congress’s hypothetical intent” over “statutory text,” which
is “the definitive expression of Congress’s will.”
Barr, 591
U. S., at 624–625 (opinion of Kavanaugh, J.).
Follow those directions here and we end up at a
refund. As the government has admitted, existing statutory text
reveals that “Congress [has] authorized payments of refunds” from
appropriated funds. ECF Doc. 2868, at 59–60; see 133Stat. 2398.
This fact is as sure a sign as any that Congress didn’t believe
refunds would cause the sort of “ ‘disruption of the statutory
scheme’ ” the majority worries over.
Ante, at 7. The
law gives us our answer—refunds—no guesswork necessary.
How does the majority respond? It points to
Congress’s decision in the 2020 Act to “ ‘mandat[e] equal fees
prospectively.’ ”
Ante, at 10. And that
decision, the majority asserts, is “[t]he best evidence that
Congress did not intend” for us to permit refunds.
Ibid. But
the majority never explains why that inference is a good, let alone
the best, inference to draw from the 2020 Act’s silence about
retroactive relief. Given that Congress had already legislated to
provide for refunds, why would it need to repeat itself in the 2020
Act? Cf.
Bowen v.
Michigan Academy of Family
Physicians,
476 U.S.
667, 681 (1986) (“We ordinarily presume that Congress intends
the executive to obey its statutory commands”). And, particularly
in those circumstances, why wouldn’t the better inference be that
Congress assumed courts would apply their ordinary rules and
recognize that refunds are the appropriate remedy for illegal fees
already exacted? [
5]
III
A
Traditional remedial principles guarantee
Hammons a refund. Nothing the majority offers begins to suggest
otherwise. Still, even if we could somehow put all that aside, this
Court’s due process precedents would demand the same result.
Those precedents contemplate cases like this
one. We have held that, if an individual “reasonably relie[s] on
the apparent availability of a postpayment refund when paying” a
contested fee, the government may not later “declare, only after
the disputed [fees] have been paid, that no such remedy exists.”
Newsweek, Inc. v.
Florida Dept. of Revenue, 522 U.S.
442, 444–445 (1998) (
per curiam) (internal quotation
marks omitted). This due process rule holds true even when the
individual had the option of pursuing a “prepayment remedy” but
chose instead to take the “apparent[ly] availab[le]” postpayment
route.
Id., at 443, 445. It does because due process
prevents the government from engaging in a “ ‘bait and
switch’ ” by later refusing to honor any remedial path it
previously held open to the plaintiff.
Reich v.
Collins,
513 U.S.
106, 111 (1994).
The majority’s failure to supply a refund
violates that rule. Start with the bait the government offered. As
constitutional challenges like Hammons’s began trickling in,
U. S. Trustees across the country urged courts against
awarding injunctive relief or setoffs to parties contesting their
disparate fee assessments. That kind of relief was unnecessary, the
government contended, precisely “because the statute appropriating
funds to the United States Trustee Program . . . permits
refunds from the U. S. Trustee System Fund . . .
according to standard procedures.” Memorandum of Law in Support of
Defendants’ Motion for Summary Judgment in
In re MF Global
Holdings Ltd., No. 19–01379 (Bkrtcy. Ct. SDNY, Nov. 21, 2019),
ECF Doc. 13, pp. 48–49. With representations like
these—representations the government would repeat in Hammons’s own
bankruptcy proceeding, see Part I–B,
supra—who could doubt
that the opportunity to seek a postpayment refund was anything less
than “ ‘clear and certain’ ”?
Reich, 513
U. S., at 111. Or that Hammons’s decision to choose this route
rather than delay its plan confirmation to pursue a prepayment
challenge was anything other than “reasonabl[e]”?
Newsweek,
522 U. S., at 445.
Now the impermissible switch. Even as it
continues to maintain that “[t]he amounts of the payments can be
litigated . . . at any time,” Brief for Petitioner 5–6,
the U. S. Trustee asks us to “declare, only after the disputed
[fees] have been paid, that no such remedy exists,”
Reich,
513 U. S., at 108. Try as litigants might, the government now
insists, they cannot in fact secure “refunds from the U. S.
Trustee System Fund” under
any “procedures.” ECF Doc. 13, at
49.
That bait and switch violates due process, plain
and simple. We should not be in the business of tolerating such
“contrived and self-serving” changes in position.
McKesson
Corp. v.
Division of Alcoholic Beverages and Tobacco, Fla.
Dept. of Business Regulation,
496 U.S.
18, 42 (1990). Rather, our precedents “requir[e] the
[government] to provide the remedy it has promised.”
Alden
v.
Maine,
527 U.S.
706, 740 (1999); accord,
Newsweek, 522 U. S., at
445; see
McKesson, 496 U. S., at 31 (government
“obligate[d]” to supply “meaningful backward-looking
relief ”).
B
How does the majority answer this latest
problem? On its telling, the only bait and switch our due process
precedents guard against arises when the government holds open the
possibility of a postpayment refund and then removes that option by
statute or regulation after a party has paid the fee it wishes to
contest.
Ante, at 15–16. So, yes, the Trustee promised that
litigants could pay now and litigate for a refund later. But, the
majority insists, Hammons should have disregarded those
representations and seized “the opportunity” always provided by
statute to seek injunctive relief “before [it] paid” the challenged
fees.
Ante, at 15.[
6]
This argument, too, misreads our precedents. The
availability of “predeprivation remedies,” we have explained, is
“beside the point” when a party reasonably relies on the apparent
availability of a postpayment remedy.
Reich, 513 U. S.,
at 113. Nor is it the case that an impermissible bait and switch
can be accomplished only through statutory or regulatory changes.
In
Newsweek and
Reich, for example, this Court held
that a state-court decision violated due process by robbing the
taxpayer of a postpayment remedy that appeared available until the
court ruled otherwise.
Newsweek, 522 U. S., at 443–445;
Reich, 513 U. S., at 111–113. Indeed,
Newsweek
summarily reversed a lower court for “fail[ing] to consider” this
point. 522 U. S., at 443. The case before us is therefore no
different from those we’ve considered before, except in one
respect: In
Newsweek and
Reich, this Court cured the
lower courts’ due process violation; here, the Court itself creates
one by robbing Hammons of a postpayment remedy that until this
moment appeared available.
With nowhere left to go, the majority tries to
suggest that our due process precedents are limited to the tax
context.
Ante, at 14. It’s the “[g]overnment’s exceedingly
strong interest in” prompt tax payments, the majority reasons, that
brings with it the “postdeprivation protections” discussed in our
tax cases.
Ibid. (internal quotation marks omitted). But the
majority does not explain why, as a matter of due process, the
government’s promises about the availability of postdeprivation
procedures must be honored only in the tax context. Nor could it.
If there’s anything unique about our tax decisions, it’s our
treatment of “the field of taxation” as an area where we’ve
“afforded [governments] great flexibility in satisfying the
requirements of due process.”
National Private Truck Council,
Inc. v.
Oklahoma Tax Comm’n,
515
U.S. 582, 587 (1995). In other words, we have long treated the
procedural protections described in our tax cases as some of the
most government-friendly due process will tolerate. See
Londoner v.
City and County of Denver,
210 U.S.
373, 385–386 (1908). And if a bait and switch is impermissible
in the tax context, surely it must be in others.
This is hardly a new message. Reprimanding the
Georgia Supreme Court for announcing there was no postpayment
remedy only after the plaintiffs had paid a contested tax in
reliance on that remedy, this Court in
Reich explained that
the case before it bore “a remarkable resemblance to
NAACP
v.
Alabama ex rel. Patterson,
357 U.S.
449 (1958).” 513 U. S., at 112. And
Patterson
concerned a challenge to a state court’s contempt holding, not
anything having to do with a tax. There, the Court held that, if
“nothing ‘suggest[s]’ ” a particular procedural route
“ ‘is the
exclusive remedy,’ ” due process
prohibits a government from later penalizing an individual for
pursuing one available route rather than another. 513 U. S.,
at 113. Precisely the same reasoning and rule apply here—another
inconvenient fact the majority prefers to ignore. See
ante,
at 15 (asserting there’s no “dispute” that
McKesson and its
progeny apply only to taxes). In choosing this path, however, the
majority sends a clear message to lower courts and litigants: Next
time the government asks you to hold off on pursuing a remedy on
the promise you can always pursue it later, its representations are
worth no more than the relief the Court awards Hammons
today.[
7]
IV
The government’s final salvo has to do with an
appeal to public policy. Because there are fewer Administrator
Program debtors who paid lower fees between 2018 and 2020 than
there are Trustee Program debtors who paid arbitrarily higher fees
during that period, the government reasons it is preferable either
to try to recoup money from Administrator Program debtors or to do
nothing at all. Brief for Petitioner 37–40. A refund to Trustee
Program debtors, the government warns, would “transfe[r] to
taxpayers substantial costs.” Reply Brief 2; see Brief for
Petitioner 35. The majority echoes these concerns. Providing a
refund, it says, would be “enormous[ly]” “disrupti[ve],” in part
because reimbursing debtors in Trustee Program districts “would be
expensive.”
Ante, at 9.[
8]
These concerns may be animated by prudent fiscal
policy, but that is not how remedies work. Declining to pay an
injured plaintiff will
always be the cheapest option for the
defendant. But when a refund is “otherwise available” as a matter
of law, “the cost of [the] refund” cannot “justify a decision to
withhold it.”
McKesson, 496 U. S., at 51, n. 35.
Consider how different, for example, our equality jurisprudence
would look were it any other way. In the 1970s, pointing to the
price tag associated with extending equal benefits to men and women
was a favorite tactic of the federal government. See,
e.
g., Brief for Appellant in
Weinberger v.
Wiesenfeld, O. T. 1974, No. 73–1892, p. 22 (extending
“ ‘mother’s benefits’ to fathers” might lead to “over $300
million” in costs, equivalent to many times more than that amount
today). Should this Court have balked at the sticker price for
remedying this “monetary disparity”?
Ante, at 7. More
recently, the government argued that a “damages remedy against
federal employees” for religious discrimination was too costly to
count as “ ‘appropriate relief,’ ” Brief for Petitioners
in
Tanzin v.
Tanvir, O. T. 2020, No. 19–71,
p. 30, even though damages were “the
only form of
relief that [could] remedy some . . . violations,”
Tanzin, 592 U. S., at 51. Should we have stopped to
perform a cost-benefit analysis there, too?[
9]
V
I struggle to understand why today the
majority so readily dismisses any remedy in this case—all to save
the government from the trouble of issuing funds the Legislature
has appropriated and the Executive has promised to pay. As I see
it, two possible lines of thinking may explain this unusual
outcome, neither reassuring.
One possibility is that the majority views
Bankruptcy Clause violations as less worthy of relief than other
constitutional violations. The majority nods in that direction when
it compares today’s decision to others involving what it calls “far
more serious dignitary harms.”
Ante, at 11. But if that’s
the reason, it is hardly a convincing one. After all, the majority
describes its “What would Congress have done?” approach to remedies
as universally applicable—governing questions of retrospective
relief in sex discrimination and free exercise cases no less than
those arising under the Bankruptcy Clause. See
ante, at 7.
Nor do we as judges have any warrant to play favorites among the
Constitution’s provisions, exalting some while relegating others to
the status of “a second-class right.”
New York State Rifle &
Pistol Assn., Inc. v.
Bruen, 597 U.S. 1, 70 (2022)
(internal quotation marks omitted).
The other possibility is no better. Perhaps the
majority thinks supplying relief isn’t worth the trouble because
the constitutional violation at issue here was, as the majority
puts it, “short-lived and small.”
Ante, at 12. After all,
the violation began in 2018 and ended in 2020. But on what account
does a multiyear violation of the Constitution count as
“short-lived”? And how does that violation count as “small” when it
cost Hammons $2.5 million and, as the majority itself emphasizes,
cost others millions more? Cf.
Culley v.
Marshall,
601 U.S. 377, 411–412 (2024) (Sotomayor, J., joined by Kagan and
Jackson, JJ., dissenting) (months-long deprivation of a car is a
harm of constitutional proportions);
Wellness Int’l Network,
Ltd. v.
Sharif,
575 U.S.
665, 703 (2015) (Roberts, C. J., dissenting) (insisting
there is no “ ‘
de minimis’ ” exception for
constitutional “incursion[s]”). Consider, too, what that kind of
thinking could mean for those seeking retrospective relief for
other constitutional violations. It’s not hard to imagine today’s
decision receiving a warm welcome from those who seek to engage in
only a dash of discrimination or only a brief denial of some other
constitutionally protected right. The rest of us can only hope that
the Court corrects its mistake before it metastasizes too far
beyond the bankruptcy context.[
10]
Respectfully, I dissent.