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Supreme Court to rule on threats, administrative rule interpretations

[JURIST] The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in two cases. In Elonis v. United States [docket; cert. petition, PDF] the question presented is: "Whether, consistent with the First Amendment and Virginia v. Black [opinion], ... conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a 'reasonable person' would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort." In addition to the question presented, the court asked the parties to brief the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 USC § 875(c) [text] requires proof of the defendant's subjective intent to threaten." Anthony Elonis posted threatening statements on his Facebook page and was convicted by a federal jury. The US Court of Appeals for the Third Circuit upheld his conviction [opinion] under the "reasonable person" standard.

The court also combined two cases and consolidated them for oral argument. In Perez v. Mortgage Bankers Association [docket; cert. petition, PDF] and Nickols v. Mortgage Bankers Association [docket; cert. petition, PDF] the court will consider "[w]hether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation." The Administrative Procedure Act (APA) [text] generally provides that "notice of proposed rule making shall be published in the Federal Register," and, if such notice is required, the rulemaking agency must give interested persons an opportunity to submit written comments. The APA further provides that its notice-and-comment requirement "does not apply ... to interpretative rules," unless notice is otherwise required by statute. In these cases the US Court of Appeals for the District of Columbia Circuit invalidated [opinion] a Department of Labor [official website] interpretation concluding that mortgage loan officers do not qualify for the administrative exemption under the Fair Labor Standards Act [DOL materials], finding that notice is required to change an interpretation of a regulation.

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