John Elwood reviews Monday’s relists.

Greetings and welcome to the last Relist Watch of the year.  It’s been a time of great excitement for the Supreme Court bar. If it were not enough that the court is reconsidering basic doctrine, there have been exciting moves among the bar itself.

Let me get one non-relisted matter out of the way right at the beginning: The Supreme Court is set to consider at conference tomorrow a motion for a limited remand respondents in the census case filed to permit the lower courts to consider evidence that the Department of Commerce added the citizenship question for the very purpose of suppressing Hispanic participation. [Disclosure: Arnold & Porter is among the counsel to the plaintiffs in this case.] But we also have relists a-plenty: 19 of them. There’s something for everyone: abortion restrictions, the Lanham Act, jurisdiction over foreign states, antidiscrimination law, ERISA, a surprisingly basic Armed Career Criminal Act question and even something called the “Bob Richards” rule. Mind you, there are some relists that seem destined just to be “GVRd” — to have the petition granted, the judgment vacated and the case remanded for further consideration in light of some recently decided case. And, worse yet, some seem destined to have cert denied outright.

That’s all for October Term 2018.  Thanks to Sam Callahan, Andrew Tutt and Graham White for helping me sort the wheat from the chaff before the dockets had been updated.

 

New Relists

Republic of Sudan v. Owens, 17-1236

Issues: (1) Whether plaintiffs suing a foreign state bear a “lighter burden” in establishing the facts necessary for jurisdiction than in proving a case on the merits despite the Supreme Court’s holding to the contrary — at the urging of the solicitor general and the Department of State — in Venezuela v. Helmerich & Payne International Drilling Co.; (2) whether plaintiffs suing a foreign state can establish facts necessary for jurisdiction “based solely upon” the opinion testimony of so-called “terrorism experts,” when the record lacks admissible factual evidence sufficient to establish jurisdiction; and (3) whether the plaintiffs’ failure to prove a foreign state “either specifically intended or directly advanced” a terrorist attack is “irrelevant to proximate cause and jurisdictional causation,” when (i) the Foreign Sovereign Immunities Act’s “terrorism exception” establishes jurisdiction over a foreign state only when the foreign state provided material support “for” a specified act of terrorism, and (ii) proximate causation requires a “direct relationship” between the defendant’s conduct and the resultant injury. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Opati v. Republic of Sudan, 17-1268

Issues: (1) Whether a party who knowingly and intentionally twice defaults; acts to delay, and not in good faith; and affirmatively elects not to contest a nonjurisdictional legal issue before judgment may nevertheless demonstrate “extraordinary” and “exceptional” circumstances warranting appellate review of the forfeited nonjurisdictional legal issue post-judgment; and (2) whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Republic of Sudan v. Opati, 17-1406

Issues: (1) Whether the term “extrajudicial killing” means a summary execution by state actors, as is consistent with international law and the statutory text, context and purpose of 28 U.S.C. § 1605A(a); (2) whether foreign sovereign immunity may be withdrawn for emotional-distress claims brought by family members of victims under 28 U.S.C. § 1605A(a)(2)(A)(ii); (3) whether 28 U.S.C. § 1605A(c) provides the exclusive remedy for actions brought under 28 U.S.C. § 1605A(a), and forecloses state substantive causes of action previously asserted through the “pass-through” provision of 28 U.S.C. § 1606; (4) whether the statute of limitations contained in 28 U.S.C. § 1605A(b) is jurisdictional in nature and, if it is not, whether the U.S. Court of Appeals for the District of Columbia Circuit should nonetheless have heard Sudan’s limitations defense asserted through its timely, direct appeal; and (5) whether the undisputed fact of civil war, internal strife and partitioning of Sudan into two counties constitutes excusable neglect or extraordinary circumstances for vacatur under Rule 60(b) of the Federal Rules of Civil Procedure. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Thole v. U.S. Bank, N.A., 17-1712

Issue: (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Hall v. United States, 17-9221

Issue: Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for the same conduct.

(relisted after the June 20 conference)

 

Harris v. West Alabama Women’s Center, 18-837

Issue: Whether a state ban on dismemberment abortions is unconstitutional where there is a reasonable medical debate that alternatives to the banned procedure are safe.

(rescheduled before the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences; relisted after the June 20 conference)

 

Babb v. Wilkie, 18-882

Issues: (1) Whether the statement in 42 U.S.C. § 2000e-16(a) that “all personnel actions effecting employees or applicants for employment … in executive agencies as defined in Title 5 … shall be made free from any discrimination” permits federal-sector personnel actions that are not made free from any discrimination or retaliation, as long as discrimination or retaliation is not the but-for cause of the personnel action, or rather prohibits personnel actions where discrimination and retaliation is a factor; (2) whether Title VII bans retaliation in federal employment.

(relisted after the June 20 conference)

 

GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, 18-1048

Issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

(relisted after the June 20 conference)

 

Lucky Brand Dungarees v. Marcel Fashions Group Inc., 18-1086

Issue: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.

(relisted after the June 20 conference)

 

Espinoza v. Montana Department of Revenue, 18-1195

Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

(relisted after the June 20 conference)

 

Romag Fasteners Inc. v. Fossil Inc., 18-1233

Issue: Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).

(relisted after the June 20 conference)

 

Rodriguez v. Federal Deposit Insurance Corporation, 18-1269

Issue: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common-law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.

(relisted after the June 20 conference)

 

Shular v. United States, 18-6662

Issue: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

(relisted after the June 20 conference)

 

Hunter v. United States, 18-7105

Issue: Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell.

(relisted after the June 20 conference)

 

Patrick v. United States, 18-7797

Issue: Whether, in determining if a prior offense is a qualifying predicate conviction under the Armed Career Criminal Act, courts should employ a categorical approach or a conduct-based approach.

(relisted after the June 20 conference)

 

Hayes v. United States, 18-7833

Issues: (1) Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell; (2) whether the U.S. Court of Appeals for the 11th Circuit erred in denying petitioner a certificate of appealability because the issue above is debatable among reasonable jurists.

(relisted after the June 20 conference)

 

Pressey v. United States, 18-8380

Issues:  (1) Whether prior convictions under Fla. Stat. §893.13 qualify as “serious drug offenses” for purposes of the ACCA, §924(e)(2)(A)(ii); (2) whether Florida’s resisting-with-violence offense qualifies as an ACCA predicate, where that offense can be committed by only a minimal degree of force.

(relisted after the June 20 conference)

 

Wilson v. United States, 18-8447

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred in holding that the petitioner’s drug offense qualifies as a “serious drug offense” under the Armed Career Criminal Act where mens rea is not even an implied element of the definition of a “serious drug offense” in § 924(e).

(relisted after the June 20 conference)

 

Moody v. United States, 18-9071

Issue: Whether 18 U.S.C. §924(a) provides for criminal penalties to felons who possess firearms in interstate commerce absent proof that they knew of their felon status, or of the firearm’s movement in interstate commerce.

(relisted after the June 20 conference)

 

Returning Relists

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18, June 13 and June 20 conferences)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18, June 13 and June 20 conferences)

 

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18, June 13 and June 20 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6, June 13 and June 20 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences; now held)

 

Kelly v. United States, 18-1059

Issue: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

(relisted after the June 13 and June 20 conferences)

The post Relist Watch appeared first on SCOTUSblog.

SCOTUSblog

John Elwood reviews Monday’s relists.

There will not even be a gesture at writing a full post with comical hyperlinks this week. Too many deadlines. So this week, you just get the questions presented for each of the dozen new relists. There are three related Affordable Care Act cases whose questions presented are a study in contrasts; three cases involving inter partes review of patents; a couple of immigration cases involving equitable tolling; two cases involving motions for reconsideration on habeas corpus review; a case involving allegations of fraud by public officials; and case raising the question whether a state can get copyright for annotations to its official code.

The court will issue grants on Monday. And if the past is any guide, the justices also will hold an as-yet-unscheduled conference on Monday. There, they will consider all the cases relisted for the first time after today’s conference before deciding which cases warrant further review and then clearing out of town for the summer later next week.

That’s all for this week. Thanks again to Tom Mitsch for compiling the relists, and thanks to him and Ben Moss for compiling the relists throughout October Term 2018. The old man will probably be compiling the cases alone on Monday. Be very afraid.

 

New Relists

Guerrero-Lasprilla v. Barr, 18-776

Issue: Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

(relisted after the June 13 conference)

 

Dex Media Inc. v. Click-To-Call Technologies, LP, 18-916

Issues: (1) Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply; and (2) whether 35 U.S.C. § 315(b) bars institution of an inter partes review when the previously served patent infringement complaint, filed more than one year before the inter partes review petition, had been dismissed without prejudice.

(relisted after the June 13 conference)

 

Atlanta Gas Co. v. Bennett Regulator Guards Inc., 18-999

Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.

(relisted after the June 13 conference)

 

Ovalles v. Barr, 18-1015

Issues: (1) Whether the application of a legal standard to an undisputed set of facts is a question of law or a pure question of fact that may be barred from judicial review; or, more specifically, (2) whether the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable-tolling purposes, notwithstanding the lack of a factual dispute.

(relisted after the June 13 conference)

 

Maine Community Health Options v. United States, 18-1023

Issues: (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.

(relisted after the June 13 conference)

 

Superior Communications Inc. v. Voltstar Technologies Inc. , 18-1027

Issues: (1) Whether, under 35 U.S.C. § 314(d), a party may appeal the Patent Trial and Appeal Board’s application of 35 U.S.C. § 315(b)’s time-bar provision made during its decision to institute inter partes review; and (2) whether 35 U.S.C. § 315(b) precludes the Patent Trial and Appeal Board from instituting inter partes review when the petitioner sought inter partes review more than a year after it was served with a patent infringement complaint that was voluntarily dismissed without prejudice.

(relisted after the June 13 conference)

 

Moda Health Plan Inc. v. United States, 18-1028

Issue: Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.

(relisted after the June 13 conference)

 

Land of Lincoln Mutual Health Insurance Company v. United States, 18-1038

Issue: Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.

(relisted after the June 13 conference)

 

Kelly v. United States, 18-1059

Issue: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

(relisted after the June 13 conference)

 

Georgia v. Public.Resource.Org Inc., 18-1150

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.

Issue: Whether the government-edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

(relisted after the June 13 conference)

 

Banister v. Davis, 18-6943

Issues: (1) Whether Gonzalez v. Crosby extends to post-judgment motions filed under Federal Rule of Civil Procedure 59(e); (2) whether, if Gonzalez does apply, a timely filed Rule 59(e) motion should toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv); and (3) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has be recharacterized as a successive habeas petition if that recharacterization will affect his ability to file a timely notice of appeal.

(relisted after the June 13 conference)

 

Patton v. United States, 18-7449

Issues: (1) Whether a district court has the authority to reconsider the merits of a 28 U.S.C. § 2255 action in response to a prisoner’s timely post-judgment motion under Federal Rule of Civil Procedure 59(e); and (2) whether, assuming that a prisoner’s notice of appeal would otherwise be timely under Federal Rule of Appellate Procedure 4(a)(4)(A), the court of appeals’ subsequent decision that the post-judgment motion was, in substance, a successive “claim” for relief renders the appeal of the original judgment untimely and deprives that court of jurisdiction over the appeal.

(relisted after the June 13 conference)

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18 and June 13 conferences)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18 and June 13 conferences)

 

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11, January 18 and June 13 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 amd June 13 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences; now held)

The post Relist Watch appeared first on SCOTUSblog.

SCOTUSblog

John Elwood reviews Monday’s relists.

I’ve got to be extremely summary this week because of the press of urgent work. First, we’ll dispatch the old business: Last week’s relists yielded five new grants (with the justices picking Comcast Corporation v. National Association of African American-Owned Media, 18-1171, over its companion Charter Communications Inc. v. National Association of African American-Owned Media, 18-1185, to resolve an issue about the showing of causation required for a claim of discrimination in cable-carriage decisions). And we got a statement respecting denial from Justice Stephen Breyer in four-time relist al-Alwi v. Trump, 18-740, concerning the indefinite detention of enemy combatants at Guantanamo.

That brings us to this week’s new business. There are no cases that have been relisted for the first time this week. But there’s a trio of closely watched cases that have been relisted for a second time … sort of. The federal government has three pending petitions involving the Trump administration’s decision to end the Deferred Action for Childhood Arrivals policy: Department of Homeland Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588, and McAleenan v. Vidal, 18-589. The court relisted all three after the January 11 conference, and there they sat for five months. Court-watchers have speculated about what was going on; to me, it looked like the court was holding the cases for something on its merits docket, perhaps the census case, perhaps Azar v. Allina Health Services – both administrative law cases addressing steps the government must take to justify certain actions. Neither is clearly related to DACA, but the court has a pretty low threshold for holding a case if it might be affected. Because these cases have been set for conference after a long period of stasis, I would normally classify them as “released holds” rather than relists.

Recently, the court rejected the government’s request to expedite consideration of a fourth DACA petition, in which the government argued that there was an “urgent need for the[] prompt consideration” of the DACA petitions “before the Court’s summer recess.” By releasing the apparent hold on the first three DACA petitions and setting them for consideration this Thursday, the court has set the stage for the government to get what it sought in its motion – a decision before the summer recess on whether the court will hear the DACA cases, and, if cert is granted, briefing over the summer in preparation for a fall argument.

That’s all for this week. Thanks again to Ben Moss for compiling the relists.

 

New Relists

See above.

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

 

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences; now held)

 

Jordan v. City of Darien, Georgia, 17-1455

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.

(relisted after the May 30 and June 6 conferences)

The post Relist Watch appeared first on SCOTUSblog.

SCOTUSblog

John Elwood reviews Monday’s relists.

We’re now in a countdown to October Term 2018’s final conference, which I expect to be held June 24, just as the justices issue their last opinions and are about to leave town for the summer. There, they’ll consider all the cases relisted after the last scheduled conference of the term on June 20. Thus, we likely have just three installments after this one until we’re all finished. We’re not numerologists or anything but that number just keeps coming up.  Three new relists were granted this week. And a thrice-relisted petition was granted and the judgment below vacated to consider the effect of intervening legislation. So this really is a thing — we’re not weird or anything.

And the streak continues, because this week there are precisely three new relists. Plus, I suppose, if you want to be super-technical, one more than three: Jordan v. City of Darien, Georgia, 17-1455. But that one doesn’t quite count. It raises a question the court recently resolved – whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law. (Answer: yes). Because petitioner Dwight Jordan would appear to lose under that rule, the court may be determining whether there are complicating factors that might require remand or whether it should simply deny review.

With that, we move on to the three main relists. First: A group of Montana landowners own property within a site designated for cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), because of pollution caused by a now defunct copper smelter. They sued Atlantic Richfield Company in state court, seeking state-law “restoration damages” for cleanup activities beyond those that the Environmental Protection Agency had ordered in its CERCLA response plan. Atlantic Richfield said federal law pre-empted those claims, but the Montana Supreme Court disagreed. When Atlantic Richfield sought review in Atlantic Richfield Company v. Christian, 17-1498, the Supreme Court called for the views of the solicitor general. Turns out that the solicitor general agrees with Atlantic Richfield that the Montana Supreme Court erred in holding those claims were not pre-empted. But he says “review would be premature at the present time” because the case is in an interlocutory posture and Atlantic Richfield might prevail on the merits, and he claims that deferring review “would have limited practical consequences” because EPA wasn’t a party to the litigation and isn’t bound by the Montana Supreme Court’s judgment. You will not be surprised to learn that Atlantic Richfield sees things slightly differently.

Second: Section 413(2) of the Employee Retirement Income Security Act (ERISA) prohibits actions commenced more than three years after “the earliest date on which the plaintiff had actual knowledge of the breach or violation.” Intel Corporation Investment Policy Committee v. Sulyma, 18-1116, concerns what showing must be made to start the clock on that three-year period. Christopher Sulyma, a former Intel employee, invested in the company retirement plan. Although the plan posted relevant documents online and told him they were there, he did not actually look at them, and he argues that he wouldn’t have understood the information they conveyed if he had. The petitioners, two Intel Corporation retirement plans, argue that it is enough that all of the information relevant to an alleged violation was disclosed to the plaintiff more than three years before the plaintiff filed the complaint, even if the plaintiff chose not to read the material or does not recall whether he read it or not. Sulyma argues that because he did not have actual knowledge of events, or actual knowledge that the investments were imprudent, the three-year period did not begin running. The district court agreed with Intel, but the U.S. Court of Appeals for the 9th Circuit agreed with Sulyma. Intel seeks further review.

That brings us to new relist number three. McKinney v. Arizona, 18-1109, asks whether a court must apply current law when deciding, for the first time but long after the flawed original sentencing, whether the mitigating and aggravating evidence in a capital case warrants the death sentence. In 1993, James Erin McKinney was convicted of murder and sentenced to death by a judge in Arizona. More than 20 years later, the 9th Circuit granted McKinney a conditional writ of habeas corpus, holding that Arizona courts had erred by failing to consider nonstatutory mitigating evidence in violation of Eddings v. Oklahoma (namely, that McKinney suffered from post-traumatic stress disorder caused by a traumatic childhood).

The case presents two questions. The first is whether a court must apply the law as it exists today, rather than as it existed at the time a defendant’s conviction first became final, when correcting a defendant’s sentence or conducting a resentencing. When McKinney was originally sentenced, a judge made factual findings that increased the maximum sentence. Now, after Ring v. Arizona, juries must find those facts. So McKinney argues that a jury must make the relevant findings now. The second question is whether the Arizona Supreme Court violated the Supreme Court’s decision in Eddings, and McKinney’s Sixth, Eighth, and 14th Amendment rights, by declining to remand his case for resentencing in the trial court rather than having an appellate court determine whether the sentence is correct.

That’s all for this week. Thanks again to Tom Mitsch for compiling the relists.

 

New Relists

Jordan v. City of Darien, Georgia, 17-1455

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.

(relisted after the May 30 conference)

 

Atlantic Richfield Company v. Christian, 17-1498

Issues: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies. CVSG: 04/30/2019.

(relisted after the May 30 conference)

 

McKinney v. Arizona, 18-1109

Issues: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

(relisted after the May 30 conference)

 

Intel Corporation Investment Policy Committee v. Sulyma, 18-1116

Issue: Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, which runs from “the earliest date on which the plaintiff had actual knowledge of the breach or violation,” bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.

(relisted after the May 30 conference)

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23 and May 30 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9, May 16, May 23 and May 30 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16, May 23 and May 30 conferences)

 

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9, May 16, May 23 and May 30 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences; now held)

 

Monasky v. Taglieri, 18-935

Issues: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.

(relisted after the May 23 and May 30 conferences)

 

Comcast Corporation v. National Association of African American-Owned Media, 18-1171

Issues: (1) Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation; (2) whether a plaintiff can state a plausible claim for relief if the complaint does not allege facts tending to exclude obvious alternative explanations for the challenged conduct and does not allege facts to support all elements of the claim.

(relisted after the May 23 and May 30 conferences)

 

Charter Communications, Inc. v. National Association of African American-Owned Media, 18-1185

Issues: (1) Whether, in accordance with the Supreme Court’s directive that “but-for” causation is the default rule for federal anti-discrimination statutes, the implied cause of action under 42 U.S.C. § 1981 enacted in the Civil Rights Act of 1866 imposes a but-for standard of causation or instead incorporates the “motivating factor” standard first created in the late 20th century for Title VII claims; (2) whether a cable operator has a First Amendment right to include racial considerations among the factors it evaluates in making editorial determinations as to what programming to carry on its limited bandwidth.

(relisted after the May 23 and May 30 conferences)

The post Relist Watch appeared first on SCOTUSblog.

SCOTUSblog

John Elwood reviews Tuesday’s relists.

I’m going to be very summary because of the press of professional obligations this week.

As predicted, the Supreme Court agreed with the solicitor general’s recommendation and granted review in Hernandez v. Mesa, 17-1678, involving the liability of American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. Looks like Swartz v. Rodriguez, 18-309, presenting the same question, will be held pending its decision.

After a whopping 14 relists, the court acted summarily in Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483. By a 7-2 margin (meaning it won the support of Justices Stephen Breyer and Elena Kagan), the court summarily reversed the U.S. Court of Appeals for the 7th Circuit’s decision invalidating an Indiana statute requiring that fetal remains resulting from abortions not be treated as “infectious and pathological waste” and incinerated, but instead be cremated or buried. The court noted that it had previously held that a state has a legitimate interest in proper disposal of fetal remains. Justice Sonia Sotomayor noted her vote to deny cert. Justice Clarence Thomas wrote a lengthy concurrence, and Justice Ruth Bader Ginsburg a brief dissent. The court unanimously denied review on the second issue the case raised, involving the validity of a prohibition barring the knowing provision of sex-, race- or disability-selective abortions. Because of what it may portend for various states’ new restrictions on abortion, this is the most carefully analyzed summary reversal (and cert denial) in years. And court watchers will continue to read these particular tea leaves for months to come.

Now we really have to speed up, because we have six new relists this week. Allen v. Cooper, 18-877, involves whether Congress has the constitutional authority to abrogate state sovereign immunity for copyright infringement. That issue comes up more often than you’d think. Monasky v. Taglieri, 18-935, involves the Hague Convention on the Civil Aspects of International Child Abduction, and the circumstances under which a court will determine that a child has established its “habitual residence” under the convention for purposes of determining where that child should reside. The en banc U.S. Court of Appeals for the 6th Circuit divided 10-8 below, so obviously, there’s room for disagreement.

Retirement Plans Committee of IBM v. Jander, 18-1165, involves the pleading standard necessary for making out a claim under the Employee Retirement Income Security Act of 1974 for breach of a fiduciary duty of prudence. The subject matter is sufficiently dense and difficult that the relist may have been necessary just so the justices could plow through the page-long question presented. But because the case would require the court to revisit Fifth Third Bancorp v. Dudenhoeffer, which established it, the case allows us to enjoy once again Breyer’s excellent framing of the goal of the pleading standard: to “readily divide the plausible sheep from the meritless goats.” Which, as an aside, was the name of Breyer’s college band.

That brings us to two related petitions: Comcast Corporation v. National Association of African American-Owned Media, 18-1171, and Charter Communications, Inc. v. National Association of African American-Owned Media, 18-1185. Entertainment Studios Networks owns several television networks that it sought unsuccessfully to have carried on Comcast’s and Charter Communications’ cable systems. ESN then sued, claiming that the cable operators’ denial was based on a racist effort to disadvantage African-American-owned networks in violation of 42 U.S.C. § 1981. The district court dismissed ESN’s complaint, but the U.S. Court of Appeals for the 9th Circuit reversed. The court ruled that Section 1981 does not require but-for causation, deepening an acknowledged conflict with other courts of appeals. It also held that ESN’s claim was plausible despite alternative explanations for Comcast’s conduct and the complaint’s failure to allege facts showing that the other companies with which the cable operators contracted were situated similarly to ESN. The cable operators seek to revisit the 9th Circuit’s decision.

That brings us to this week’s last relist: Holguin-Hernandez v. United States, 18-7739. It involves an issue that the justices have considered repeatedly: whether a criminal defendant must formally object after his sentence is pronounced to preserve an objection to the reasonableness of the length of his sentence. The government admits there is a circuit split on the issue, with only the U.S. Court of Appeals for the 5th Circuit requiring a contemporaneous objection. And the government believes that rule is wrong: “When a defendant argues for a given sentence and the district court imposes a different sentence, the defendant has already put the court on notice of his objection to the length of the sentence and so — in accord with [Federal Rule of Criminal Procedure] Rule 51(a), which provides that ‘[e]xceptions to rulings’ are unnecessary — need not repeat that objection after the court announces the sentence.” But the government nonetheless believes the court should deny review in this case because it says the error did not affect the outcome in Gonzalo Holguin-Hernandez’s case. Evidently, the court needs another week to weigh its options. We should have a better idea Monday what will happen.

That’s all for this week. Thanks again to Ben Moss for compiling the relists.

 

New Relists

Allen v. Cooper, 18-877

Issue: Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.

(relisted after the May 23 conference)

 

Monasky v. Taglieri, 18-935

Issues: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.

(relisted after the May 23 conference)

 

Retirement Plans Committee of IBM v. Jander, 18-1165

Issue: whether the “more harm than good” pleading standard of Fifth Third Bancorp v. Dudenhoeffer can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

(relisted after the May 23 conference)

 

Comcast Corporation v. National Association of African American-Owned Media, 18-1171

Issues: (1) Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation; (2) whether a plaintiff can state a plausible claim for relief if the complaint does not allege facts tending to exclude obvious alternative explanations for the challenged conduct and does not allege facts to support all elements of the claim.

(relisted after the May 23 conference)

 

Charter Communications, Inc. v. National Association of African American-Owned Media, 18-1185

Issues: (1) Whether, in accordance with the Supreme Court’s directive that “but-for” causation is the default rule for federal anti-discrimination statutes, the implied cause of action under 42 U.S.C. § 1981 enacted in the Civil Rights Act of 1866 imposes a but-for standard of causation or instead incorporates the “motivating factor” standard first created in the late 20th century for Title VII claims; (2) whether a cable operator has a First Amendment right to include racial considerations among the factors it evaluates in making editorial determinations as to what programming to carry on its limited bandwidth.

(relisted after the May 23 conference)

 

Holguin-Hernandez v. United States, 18-7739

Issue: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

(relisted after the May 23 conference)

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16 and May 23 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9, May 16 and May 23 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16 and May 23 conferences)

 

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9 and May 16 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9, May 16 and May 23 conferences; now held)

 

Wheeler v. United States, 18-7187

Issues: (1) Whether a law enforcement officer’s warrantless insertion of keys into a locked apartment door, within a secured multi-unit dwelling, to gain information that was unavailable to the naked eye is an unreasonable search; (2) whether the rule of the U.S. Court of Appeals for the 3rd Circuit, which limits parties to the precise arguments raised in the district court, directly conflicts with the Supreme Court’s traditional rule that parties are not limited to the precise arguments made below but can make any argument in support of a claim that was properly presented.

(relisted after the May 9, May 16 and May 23 conferences)

The post Relist Watch appeared first on SCOTUSblog.

SCOTUSblog

John Elwood reviews Monday’s relists.

Congress is fighting with the executive branch to try to obtain information this week. But here at Relist Watch, we’re just giving the stuff away.

A lot of throughput this week, as the Supreme Court disposed of five relists.

Most puzzling is City of Newport Beach, California v. Vos, 18-672, which asked whether the Americans with Disabilities Act requires law-enforcement officers to provide accommodations to armed, violent and mentally ill suspects as they bring them into custody. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted, and many thought the court was looking to finally resolve the question. Newport Beach had been relisted four times, suggesting that one of the justices at least had been exploring a dissent; perhaps he or she was talked out of it.

The Court decided that one-time relist Shabo v. Barr, 18-827, was not the vehicle it was looking for to decide an acknowledged circuit split on an important and recurring question: Whether courts of appeals have jurisdiction to review factual findings underlying denials of withholding (and deferral) of deportation in immigration cases.

Santos v. United States, 18-7096, is the Armed Career Criminal Act case in which the government confessed error. The court did as the government recommended and granted the petition, vacated the judgment below and remanded for reconsideration of the government’s position. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, saying that although the court might have had its doubts about the correctness of the judgment, they “share[d] no such doubt” about the validity of the defendant’s conviction.

Speaking of dissents: The court denied review in five-time relist Daniel v. United States, 18-460, the case seeking to revisit the oft-criticized Feres doctrine that bars servicemembers, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act. Thomas dissented. He argued that “Feres was wrongly decided.” And he claimed that Feres was having a distorting effect on the law because the desire to allow relief to members of the military has led the court in other cases to “twist[] traditional tort principles to afford them the possibility of relief.” He was referring, of course, to Air & Liquid Systems Corp v. DeVries, which held that an equipment manufacturer could be sued for liability for illness caused by asbestos the Navy had added to the equipment, and in which Thomas dissented.

And that is to say nothing of the grant in Ritzen Group Inc. v. Jackson Masonry, LLC, 18-938. No, really – we’re going to say nothing about it. You can click on the hyperlink if you want to be reminded that the case involves whether an order denying a motion for relief from the automatic stay in bankruptcy is a final order subject to appeal. You aren’t going to hear it from me.

That brings us to this week’s new relists. Both Hernandez v. Mesa, 17-1678, and Swartz v. Rodriguez, 18-309, involve questions of liability for American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. The court first took Hernandez in 2016 to resolve whether a cross-border shooting violated the victim’s Fourth Amendment rights, and whether the agent would be entitled to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights. Four months after argument, the court basically punted; it vacated the decision below and remanded for further consideration in light of the recently decided Ziglar v. Abbasi, which tightened the standards for recognizing a federal cause of action under Bivens v. Six Unknown Named Agents.

Now Hernandez is back, accompanied by another case that raises the same issue – Swartz. The en banc U.S. Court of Appeals for the 5th Circuit held in Hernandez that a Bivens remedy should not be extended to a claim arising from an injury to a foreign citizen in foreign territory. But a divided panel of the U.S. Court of Appeals for the 9th Circuit held in Swartz that it should. The court called for the views of the solicitor general, who argues that certiorari “is warranted to resolve the conflict on that important question and to provide the lower courts additional guidance after this Court’s decision in Ziglar v. Abbasi.” The government says that Hernandez is the better vehicle, because it addressed whether a Bivens remedy is available for both Fourth and Fifth Amendment claims, and Swartz only addressed Fourth Amendment claims. The odds of a grant are quite high after the solicitor general as amicus recommends review.

That’s all for this week. Thanks to Tom Mitsch for compiling the relists.

 

New Relists

Hernandez v. Mesa, 17-1678

Issues: (1) Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law tort suits for damages against rogue federal law-enforcement officers acting within the scope of their employment for which there is no alternative legal remedy. CVSG: 04/11/2019.

(relisted after the May 16 conference)

 

Swartz v. Rodriguez, 18-309

Issues: (1) Whether the panel’s decision to create an implied remedy for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics in the new context of a cross-border shooting misapplies Supreme Court precedent and violates separation-of-powers principles, when foreign relations, border security and the extraterritorial application of the Fourth Amendment are some of the special factors that counsel hesitation against such an extension; and (2) whether, if the above “antecedent” question is answered in the negative, Agent Swartz is entitled to qualified immunity because there is no clearly established law applying the Fourth Amendment to protect a Mexican citizen, with no significant connection to the United States, who is injured in Mexico by a federal agent’s cross-border shooting. CVSG: 04/11/2019.

(relisted after the May 16 conference)

 

Returning Relists

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4, January 11, January 18, February 15, February 22, March 1, March 15, March 22, March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

 

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Nielsen v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9 and May 16 conferences)

 

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9 and May 16 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences)

 

Wheeler v. United States, 18-7187

Issues: (1) Whether a law enforcement officer’s warrantless insertion of keys into a locked apartment door, within a secured multi-unit dwelling, to gain information that was unavailable to the naked eye is an unreasonable search; (2) whether the rule of the U.S. Court of Appeals for the 3rd Circuit, which limits parties to the precise arguments raised in the district court, directly conflicts with the Supreme Court’s traditional rule that parties are not limited to the precise arguments made below but can make any argument in support of a claim that was properly presented.

(relisted after the May 9 and May 16 conferences)

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