IMPRESSION PRODUCTS, INC. v. LEXMARK INTERNATIONAL, INC.
Certiorari To The United States Court Of Appeals For The Federal Circuit
No. 15-1189. Argued March 21, 2017--Decided May 30, 2017
A United States patent entitles the patent holder to “exclude others from making, using, offering for sale, or selling [its] invention throughout the United States or importing the invention into the United States.” 35 U. S. C. §154(a). Whoever engages in one of these acts “without authority” from the patentee may face liability for patent infringement. §271(a). When a patentee sells one of its products, however, the patentee can no longer control that item through the patent laws—its patent rights are said to “exhaust.”
Respondent Lexmark International, Inc. designs, manufactures, and sells toner cartridges to consumers in the United States and abroad. It owns a number of patents that cover components of those cartridges and the manner in which they are used. When Lexmark sells toner cartridges, it gives consumers two options: One option is to buy a toner cartridge at full price, with no restrictions. The other option is to buy a cartridge at a discount through Lexmark’s “Return Program.” In exchange for the lower price, customers who buy through the Return Program must sign a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark.
Companies known as remanufacturers acquire empty Lexmark toner cartridges—including Return Program cartridges—from purchasers in the United States, refill them with toner, and then resell them. They do the same with Lexmark cartridges that they acquire from purchasers overseas and import into the United States. Lexmark sued a number of these remanufacturers, including petitioner Impression Products, Inc., for patent infringement with respect to two groups of cartridges. The first group consists of Return Program cartridges that Lexmark had sold within the United States. Lexmark argued that, because it expressly prohibited reuse and resale of these cartridges, Impression Products infringed the Lexmark patents when it refurbished and resold them. The second group consists of all toner cartridges that Lexmark had sold abroad and that Impression Products imported into the country. Lexmark claimed that it never gave anyone authority to import these cartridges, so Impression Products infringed its patent rights by doing just that.
Impression Products moved to dismiss on the grounds that Lexmark’s sales, both in the United States and abroad, exhausted its patent rights in the cartridges, so Impression Products was free to refurbish and resell them, and to import them if acquired overseas. The District Court granted the motion to dismiss as to the domestic Return Program cartridges, but denied the motion as to the cartridges sold abroad. The Federal Circuit then ruled for Lexmark with respect to both groups of cartridges. Beginning with the Return Program cartridges that Lexmark sold domestically, the Federal Circuit held that a patentee may sell an item and retain the right to enforce, through patent infringement lawsuits, clearly communicated, lawful restrictions on post-sale use or resale. Because Impression Products knew about Lexmark’s restrictions and those restrictions did not violate any laws, Lexmark’s sales did not exhaust its patent rights, and it could sue Impression Products for infringement. As for the cartridges that Lexmark sold abroad, the Federal Circuit held that, when a patentee sells a product overseas, it does not exhaust its patent rights over that item. Lexmark was therefore free to sue for infringement when Impression Products imported cartridges that Lexmark had sold abroad. Judge Dyk, joined by Judge Hughes, dissented.
1. Lexmark exhausted its patent rights in the Return Program cartridges that it sold in the United States. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. Pp. 5–13.
(a) The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser. Bloomer v. McQuewan, 14 How. 539, 549–550. If the patentee negotiates a contract restricting the purchaser’s right to use or resell the item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit.
The exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act promotes innovation by allowing inventors to secure the financial rewards for their inventions. Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product. Allowing further restrictions would run afoul of the “common law’s refusal to permit restraints on the alienation of chattels.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519. As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628). Congress enacted and has repeatedly revised the Patent Act against the backdrop of this hostility toward restraints on alienation, which is reflected in the exhaustion doctrine.
This Court accordingly has long held that, even when a patentee sells an item under an express, otherwise lawful restriction, the patentee does not retain patent rights in that product. See, e.g., Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617. And that well-settled line of precedent allows for only one answer in this case: Lexmark cannot bring a patent infringement suit against Impression Products with respect to the Return Program cartridges sold in the United States because, once Lexmark sold those cartridges, it exhausted its right to control them through the patent laws. Pp. 5–9.
(b) The Federal Circuit reached a different result because it started from the premise that the exhaustion doctrine is an interpretation of the patent infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee. According to the Federal Circuit, exhaustion reflects a default rule that selling an item “presumptively grant[s] ‘authority’ for the purchaser to use it and resell it.” 816 F. 3d 721, 742. But if a patentee withholds some authority by expressly limiting the purchaser’s rights, the patentee may enforce that restriction through patent infringement lawsuits. See id., at 741.
The problem with the Federal Circuit’s logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is a limit on the scope of the patentee’s rights. The Patent Act gives patentees a limited exclusionary power, and exhaustion extinguishes that power. A purchaser has the right to use, sell, or import an item because those are the rights that come along with ownership, not because it purchased authority to engage in those practices from the patentee. Pp. 9–13.
2. Lexmark also sold toner cartridges abroad, which Impression Products acquired from purchasers and imported into the United States. Lexmark cannot sue Impression Products for infringement with respect to these cartridges. An authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act.
The question about international exhaustion of intellectual property rights has arisen in the context of copyright law. Under the first sale doctrine, when a copyright owner sells a lawfully made copy of its work, it loses the power to restrict the purchaser’s right “to sell or otherwise dispose of . . . that copy.” 17 U. S. C. §109(a). In Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, this Court held that the first sale doctrine applies to copies of works made and sold abroad. Central to that decision was the fact that the first sale doctrine has its roots in the common law principle against restraints on alienation. Because that principle makes no geographical distinctions and the text of the Copyright Act did not provide such a distinction, a straightforward application of the first sale doctrine required concluding that it applies overseas.
Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation, and nothing in the Patent Act shows that Congress intended to confine that principle to domestic sales. Differentiating between the patent exhaustion and copyright first sale doctrines would also make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” Bauer & Cie v. O’Donnell, 229 U. S. 1, and many everyday products are subject to both patent and copyright protections.
Lexmark contends that a foreign sale does not exhaust patent rights because the Patent Act limits a patentee’s power to exclude others from making, using, selling, or importing its products to acts that occur in the United States. Because those exclusionary powers do not apply abroad, the patentee may not be able to sell its products overseas for the same price as it could in the United States, and therefore is not sure to receive the reward guaranteed by American patent laws. Without that reward, says Lexmark, there should be no exhaustion.
The territorial limit on patent rights is no basis for distinguishing copyright protections; those do not have extraterritorial effect either. Nor does the territorial limit support Lexmark’s argument. Exhaustion is a distinct limit on the patent grant, which is triggered by the patentee’s decision to give a patented item up for whatever fee it decides is appropriate. The patentee may not be able to command the same amount for its products abroad as it does in the United States. But the Patent Act does not guarantee a particular price. Instead, the Patent Act just ensures that the patentee receives one reward—of whatever it deems to be satisfactory compensation—for every item that passes outside the scope of its patent monopoly.
This Court’s decision in Boesch v. Gräff, 133 U. S. 697, is not to the contrary. That decision did not, as Lexmark contends, exempt all foreign sales from patent exhaustion. Instead, it held that a sale abroad does not exhaust a patentee’s rights when the patentee had nothing to do with the transaction. That just reaffirms the basic premise that only the patentee can decide whether to make a sale that exhausts its patent rights in an item.
Finally, the United States advocates what it views as a middle-ground position: that a foreign sale exhausts patent rights unless the patentee expressly reserves those rights. This express-reservation rule is based on the idea that overseas buyers expect to be able to use and resell items freely, so exhaustion should be the presumption. But, at the same time, lower courts have long allowed patentees to expressly reserve their rights, so that option should remain open to patentees. The sparse and inconsistent decisions the Government cites, however, provide no basis for any expectation, let alone a settled one, that patentees can reserve rights when they sell abroad. The theory behind the express-reservation rule also wrongly focuses on the expectations of the patentee and purchaser during a sale. More is at stake when it comes to patent exhaustion than the dealings between the parties, which can be addressed through contracts. Instead, exhaustion occurs because allowing patent rights to stick to an already-sold item as it travels through the market would violate the principle against restraints on alienation. As a result, restrictions and location are irrelevant for patent exhaustion; what matters is the patentee’s decision to make a sale. Pp. 13–18.
816 F. 3d 721, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part. Gorsuch, J., took no part in the consideration or decision of the case.
COUNTY OF LOS ANGELES, CALIFORNIA, et al. v. MENDEZ et al.
Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 16-369. Argued March 22, 2017--Decided May 30, 2017
The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived. Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times. Officers did not find the parolee in the shack or elsewhere on the property.
Mendez and Garcia sued Deputies Conley and Pederson and the County under 42 U. S. C. §1983, pressing three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable under Graham v. Connor, 490 U. S. 386, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,” Billington v. Smith, 292 F. 3d 1177, 1189. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.
Held: The Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule.” Pp. 5–10.
(a) The provocation rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. See Graham, supra, at 395. The operative question in such cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Tennessee v. Garner, 471 U. S. 1–9. When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The provocation rule, however, instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims. The proper framework is set out in Graham. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.
The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. 815 F. 3d 1178, 1193. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham. In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure.
There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. See, e.g., Heck v. Humphrey, 512 U. S. 477. Here, if respondents cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. Pp. 5–10.
(b) The Ninth Circuit’s proximate-cause holding is similarly tainted. Its analysis appears to focus solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry. On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for their injuries based on the deputies’ failure to secure a warrant at the outset. Pp. 10–11.
815 F. 3d 1178, vacated and remanded.
Alito, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.
BNSF RAILWAY CO. v. TYRRELL, special administrator for the ESTATE OF TYRRELL, DECEASED, et al.
Certiorari To The Supreme Court Of Montana
No. 16-405. Argued April 25, 2017--Decided May 30, 2017
The Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq., makes railroads liable in money damages to their employees for on-the-job injuries. Respondent Robert Nelson, a North Dakota resident, brought a FELA suit against petitioner BNSF Railway Company (BNSF) in a Montana state court, alleging that he had sustained injuries while working for BNSF. Respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, also sued BNSF under FELA in a Montana state court, alleging that Brent had developed a fatal cancer from his exposure to carcinogenic chemicals while working for BNSF. Neither worker was injured in Montana. Neither incorporated nor headquartered there, BNSF maintains less than 5% of its work force and about 6% of its total track mileage in the State. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. ___, ___, BNSF moved to dismiss both suits. Its motion was granted in Nelson’s case and denied in Tyrrell’s. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF because the railroad both “d[id] business” in the State within the meaning of 45 U. S. C. §56 and was “found within” the State within the compass of Mont. Rule Civ. Proc. 4(b)(1). The due process limits articulated in Daimler, the court added, did not control because Daimler did not involve a FELA claim or a railroad defendant.
1. Section 56 does not address personal jurisdiction over railroads. Pp. 4–9.
(a) Section 56’s first relevant sentence provides that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” This Court has comprehended that sentence as a venue prescription, not as one governing personal jurisdiction. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44. Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper, see, e.g., 28 U. S. C. §1391(b), while it typically provides for the exercise of personal jurisdiction by authorizing service of process, see, e.g., 15 U. S. C. §22. Nelson and Tyrrell contend that the 1888 Judiciary Act provision that prompted §56’s enactment concerned both personal jurisdiction and venue, but this Court has long read that Judiciary Act provision to concern venue only, see, e.g., Green v. Chicago, B. & Q. R. Co., 205 U. S. 530–533. Pp. 5–7.
(b) The second relevant sentence of §56—that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States”—refers to concurrent subject-matter jurisdiction of state and federal courts over FELA actions. See Second Employers’ Liability Cases, 223 U. S. 1–56. Congress added this clarification after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. Pp. 7–8.
(c) None of the cases featured by the Montana Supreme Court in reaching its contrary conclusion resolved a question of personal jurisdiction. Pope v. Atlantic Coast Line R. Co., 345 U. S. 379; Miles v. Illinois Central R. Co., 315 U. S. 698; Kepner, 314 U. S. 44; and Denver & Rio Grande Western R. Co. v. Terte, 284 U. S. 284, distinguished. Moreover, all these cases, save Pope, were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U. S. 310. Pp. 8–9.
2. The Montana courts’ exercise of personal jurisdiction under Montana law does not comport with the Fourteenth Amendment’s Due Process Clause. Only the propriety of general personal jurisdiction is at issue here because neither Nelson nor Tyrrell alleges injury from work in or related to Montana.
A state court may exercise general jurisdiction over out-of-state corporations when their “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler, 571 U. S., at ___. The “paradigm” forums in which a corporate defendant is “at home” are the corporation’s place of incorporation and its principal place of business, e.g., id., at ___, but in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State,” id., at ___, n. 19. Daimler involved no FELA claim or railroad defendant, but the due process constraint described there applies to all state-court assertions of general jurisdiction over nonresident defendants; that constraint does not vary with the type of claim asserted or business enterprise sued.
Here, BNSF is not incorporated or headquartered in Montana and its activity there is not “so substantial and of such a nature as to render the corporation at home in that State.” Ibid. Pp. 9–12.
383 Mont. 417, 373 P. 3d 1, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed an opinion concurring in part and dissenting in part.
ESQUIVEL-QUINTANA v. SESSIONS, ATTORNEY GENERAL
Certiorari To The United States Court Of Appeals For The Sixth Circuit
No. 16-54. Argued February 27, 2017--Decided May 30, 2017
Petitioner, a citizen of Mexico and lawful permanent resident of the United States, pleaded no contest in a California court to a statutory rape offense criminalizing “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator.” Cal. Penal Code Ann. §261.5(c). For purposes of that offense, California defines “minor” as “a person under the age of 18.” §261.5(a). Based on this conviction, the Department of Homeland Security initiated removal proceedings under the Immigration and Nationality Act (INA), which makes removable “[a]ny alien who is convicted of an aggravated felony,” 8 U. S. C. §1227(a)(2)(A)(iii), including “sexual abuse of a minor,” §1101(a)(43)(A). An Immigration Judge ordered petitioner removed to Mexico. The Board of Immigration Appeals agreed that petitioner’s crime constituted sexual abuse of a minor and dismissed his appeal. A divided Court of Appeals denied his petition for review.
Held: In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16. Pp. 2–12.
(a) Under the categorical approach employed to determine whether an alien’s conviction qualifies as an aggravated felony, the Court asks whether “ ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U. S. 184. Petitioner’s state conviction is thus an “aggravated felony” only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor. Johnson v. United States, 559 U. S. 133. Pp. 2–3.
(b) The least of the acts criminalized by Cal. Penal Code §261.5(c) would be consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. Regardless of the actual facts of the case, this Court presumes that petitioner’s conviction was based on those acts. Pp. 3–4.
(c) In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires that the victim be younger than 16. The Court begins, as always, with the text. Pp. 4–7.
(1) Congress added sexual abuse of a minor to the INA in 1996. At that time, the ordinary meaning of “sexual abuse” included “the engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam-Webster’s Dictionary of Law 454. By providing that the abuse must be “of a minor,” the INA focuses on age, rather than mental or physical incapacity. Accordingly, to qualify as sexual abuse of a minor, the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim. Statutory rape laws, which are one example of this category of crimes, generally provide that an older person may not engage in sexual intercourse with a younger person under the “age of consent.” Reliable dictionaries indicate that the “generic” age of consent in 1996 was 16, and it remains so today. Pp. 4–6.
(2) The Government argues that sexual abuse of a minor includes any conduct that is illegal, involves sexual activity, and is directed at a person younger than 18. For support, it points to the 1990 Black’s Law Dictionary, which defined sexual abuse of a minor as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” But the generic federal offense does not correspond to the Government’s definition, for three reasons. First, the Government’s definition is inconsistent with its own dictionary’s requirement that a special relationship of trust exist between the victim and offender. Second, in the statutory rape context, “of a minor” refers to the age of consent, not the age of legal competence. Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense as whatever is illegal under the law of the State of conviction. Pp. 6–7.
(d) The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense based solely on the age of the participants to qualify as sexual abuse of a minor under the INA, the victim must be younger than 16. The INA lists sexual abuse of a minor as an “aggravated” felony, §1227(a)(2)(A)(iii), and lists it in the same subparagraph as “murder” and “rape,” §1101(a)(43)(A), suggesting that it encompasses only especially egregious felonies. A different statute, 18 U. S. C. §2243, criminalizes “[s]exual abuse of a minor or ward.” Section 2243 was amended to protect anyone under age 16 in the same omnibus law that added sexual abuse of a minor to the INA, suggesting that Congress understood that phrase to cover victims under (but not over) age 16. Finally, a significant majority of state criminal codes set the age of consent at 16 for statutory rape offenses predicated exclusively on the age of the participants. Pp. 7–11.
(e) This Court does not decide whether the generic crime of sexual abuse of a minor requires a particular age differential between the victim and the perpetrator or whether it encompasses sexual intercourse involving victims over 16 that is abusive because of the nature of the relationship between the participants. P. 11.
(f) Because the statute, read in context, unambiguously forecloses the Board’s interpretation of sexual abuse of a minor, neither the rule of lenity nor Chevron deference applies. Pp. 11–12.
810 F. 3d 1019, reversed.
Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.