The Relist Watch Before Christmas

The Relist Watch Before ChristmasJohn Elwood previews 2018’s last relists. Here at Relist Watch, we have a long and distinguished tradition of doing lighthearted, holiday-themed posts to commemorate the last installment of the year. It’s a great way of getting into the spirit of wearing novelty clothing while making awkward small talk in overcrowded rooms. But this year, we’re […]

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The Relist Watch Before Christmas

John Elwood previews 2018’s last relists.

Here at Relist Watch, we have a long and distinguished tradition of doing lighthearted, holiday-themed posts to commemorate the last installment of the year. It’s a great way of getting into the spirit of wearing novelty clothing while making awkward small talk in overcrowded rooms. But this year, we’re inaugurating a new tradition inspired by my family’s recent holiday card practice: doing nothing. Nothing: It’s like a lump of coal, but carbon neutral.

We’re going to skip right past the fates of last week’s relists with nary a word about the Friday grant or the opinion dissenting from denial, or the one relist denied without comment, which was outperformed by a case that hadn’t been relisted at all. Looking ahead, the Supreme Court typically relists cases on its docket on the Monday before the conference at which they are to be considered. Because the next conference isn’t until January 4, 2019, we won’t know for weeks which cases were relisted after the December 7 conference. What follows is our informed speculation based on our review of the dockets.

First up is a case whose arrival we anticipated in an earlier edition, Yovino v. Rizo, 18-272. The case involves salaries for the Fresno County, California, school system, which sets employees’ current salaries by considering their prior salaries. A recently hired female “math consultant” brought suit under the Equal Pay Act when she learned that a male colleague had been brought on at a higher pay grade. Fresno explained the difference based on the employees’ salaries at their previous jobs. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit held that prior salary is a “factor other than sex” that the Equal Pay Act explicitly allows employers to consider in setting wages. But an en banc panel changed course, holding that as “a general rule” prior pay cannot be a “factor other than sex.” The court reasoned that the Equal Pay Act’s factor-other-than-sex exception follows three narrower exceptions, all of which “relate to job qualifications, performance, and/or experience.” The majority concluded that this exception must be similarly limited, and determined that prior salary is “not a legitimate measure of work experience, ability, performance, or any other job-related quality.” The Fresno School System seeks to challenge that determination. It also raises a second question: whether a deceased judge may continue to participate in the determination of cases. The en banc decision was authored by Judge Stephen Reinhardt, who died more than a week before the decision issued. If granted, the case will overtake Lamps Plus Inc v. Varela as the last Reinhardt opinion the Supreme Court reviews.

Our next case is a sequel: Moore v. Texas, 18-443. During the case’s first trip, the Supreme Court held that the Texas Court of Criminal Appeals had violated petitioner Bobby James Moore’s Eighth Amendment rights by considering outdated medical standards for determining whether he was so intellectually disabled that he was not eligible for the death penalty. On remand, the Court of Criminal Appeals again held that Moore had failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. In his current petition, Moore contends that the Texas court essentially considered the very same factors the Supreme Court had rejected, and again contradicted current medical standards in rejecting his intellectual-disability claim. Moore further contends that even the prosecutor in his case now agrees that Moore is intellectually disabled.

The last likely relist is Zappos.com, Inc., v. Stevens, 18-225. The case concerns the January 2012 data breach at the company, during which hackers gained access to servers that contained the personal identifying information of 24 million customers. Zappos contends that there is a circuit split about what allegations of injury suffice to maintain a lawsuit alleging a data breach. It argues that in four circuits, bare allegations that a database containing the plaintiff’s nonpublic personal information has been breached are insufficient to create standing, without specific allegations of resulting data misuse and concrete harm, while in five circuits, such allegations are sufficient. The case would give the Supreme Court another opportunity to clarify the standing rule of Spokeo, Inc. v. Robins, in a regrettably common context: the data breach, which appears to affect approximately 100 percent of the websites I give my credit-card information to. Comforted by the knowledge that I can probably hack into SCOTUSblog and delete this, let me say: This strikes me as a pretty likely grant.

That leaves just one case languishing unexplained on the Supreme Court’s docket, City of Pensacola, Florida v. Kondrat’yev, 18-351. This case raises the same issue as the Bladensburg Cross cases, American Legion v. American Humanist Association, 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, 18-18, granted on November 2, namely whether the establishment clause requires removal of longstanding memorials because they take the shape of religious symbols. But the case also raises the issue of whether feeling offense about a passive religious display suffices to establish standing. The city asks the Supreme Court to consider this case in tandem with the Bladensburg cases. But you have to imagine that if the court were interested in doing that, it would have granted cert in the case this week, rather than waiting almost another month to possibly grant in early January. And although this fact isn’t dispositive, the city still has an en banc petition pending in the U.S. Court of Appeals for the 11th Circuit that is being held in abeyance for the Bladensburg cases, so Pensacola might get relief yet from the court of appeals. At bottom, I think this case is probably a hold. We report, you decide.

That’s all for this week. Thanks again to Tom Mitsch for combing the docket to find these cases. Safe travels to our entire readership and best wishes for happy holidays, no matter what rituals you observe.

 

New Relists

Zappos.com, Inc., v. Stevens, 18-225

Issue: Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.

(likely relisted after the December 7, 2018, conference)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(likely relisted after the December 7, 2018, conference)

 

Moore v. Texas, 18-443

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(likely relisted after the December 7, 2018, conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Hester v. United States, 17-9082

Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

(relisted after the November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

 

Rehair v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

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Government files invitation briefs, recommends just one grant

Government files invitation briefs, recommends just one grantIn the past few days, the federal government has filed a bevy of briefs expressing the views of the United States on issues ranging from the interpretation of the Foreign Sovereign Immunities Act to California’s ban on foie gras. The justices often pay close attention to the government’s recommendations; if they follow that practice here, […]

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Government files invitation briefs, recommends just one grant

In the past few days, the federal government has filed a bevy of briefs expressing the views of the United States on issues ranging from the interpretation of the Foreign Sovereign Immunities Act to California’s ban on foie gras. The justices often pay close attention to the government’s recommendations; if they follow that practice here, they are not likely to add many new cases from this batch to their docket, because the government recommended that the Supreme Court grant review in just one case, involving the sweep of federal immigration law.

In Kansas v. Garcia, the state asked the justices to review a decision by the Kansas Supreme Court that reversed Ramiro Garcia’s conviction for identity theft after he used someone else’s Social Security number. The Kansas Supreme Court ruled that the state’s prosecution was superseded by the Immigration Reform and Control Act, a federal law that bars employers from knowingly employing undocumented immigrants.

The Supreme Court called for the government’s views in April, and yesterday the solicitor general filed a brief agreeing with Kansas that the court should take up the case. The federal law at issue prevents states from using information on or attached to a Form I-9, the form used to verify eligibility to work in the United States, in a criminal prosecution, the government told the justices, but it does not prohibit states from prosecuting someone using “information drawn from documents other than the I-9.” Even if there is no clear conflict between the Kansas Supreme Court’s decision and those of other federal courts of appeals and state supreme courts, the government explained, the Kansas Supreme Court’s ruling “is nevertheless an outlier” because it is so “expansive.” The government urged the justices not to take up a broad second question presented in the state’s petition involving the state’s police powers, but it suggested that the justices also consider whether, even if Congress did not say so specifically, Kansas’ prosecution of Garcia is nonetheless pre-empted, under a doctrine known as implied pre-emption.

The solicitor general urged the justices to sit out a trio of cases challenging state laws that seek to regulate the treatment of farm animals. Two of those are original actions – that is, lawsuits filed first in the Supreme Court. In Missouri v. California, Missouri has asked the court to strike down a California law that requires farms raising egg-laying hens to ensure that the hens can move around freely. Telling the court that California’s regulation of eggs has “inflated egg prices for every egg consumer in the Nation,” 13 states argue that the law is trumped by federal laws and violates the Constitution’s commerce clause, which prohibits states from enacting laws that are intended to discriminate against citizens of other states or that place an unnecessary burden on interstate commerce. And in Indiana v. Massachusetts, another group of states (which closely resembles, but is not identical to, the group of state plaintiffs in the Missouri case) contests a ban in Massachusetts on the sale of eggs, pork and veal from animals that were “confined in a cruel manner.”

In the third case, Association des Éleveurs de Canard et d’Oies du Québec v. Becerra, the justices have been asked to intervene in a challenge by a group of Canadian duck and goose farmers to California’s ban on foie gras (which the farmers describe as “perhaps the most maligned (and misunderstood) food in the world”). The farmers argue that the ban is superseded by federal laws governing the sale of poultry products in the United States; California’s attorney general counters that the state’s law is intended to prevent animal cruelty – a subject not addressed by the federal laws at issue.

The federal government urged the justices to stay out of all three cases. It argued that Missouri v. California and Indiana v. Massachusetts were not suitable cases for the court to exercise its original jurisdiction, “which the Court has repeatedly stated should be exercised only sparingly.” And it told the justices that the California law on foie gras was not trumped by federal agricultural laws; moreover, the lower court’s decision did not conflict with any ruling by either the Supreme Court or the federal courts of appeals.

The False Claims Act allows both the government and private individuals to bring lawsuits (to recover up to three times the damages incurred by the government) alleging fraud in government contracting. If the lawsuit is successful, a private party can receive part of the funds recovered by the government. In Gilead Sciences Inc. v. United States ex rel. Campie, the justices have been asked to decide whether an FCA lawsuit can go forward when the government continues to pay for a product – here, drugs used to treat HIV – even after it learns about allegations that manufacturers had made false statements to the Food and Drug Administration about where it would produce the active ingredients in the drugs.

The justices asked the solicitor general for his views in April, and last week the solicitor general recommended that review be denied. He suggested that there is no real disagreement among the courts of appeals on the issue presented in the case because all of them would approach the question “holistically,” looking at the specific facts of each case. But in any event, the solicitor general continued, this case would not be a good candidate to consider the question presented, because there is a dispute about “exactly what the government knew and when.”

City of Cibolo v. Green Valley Special Utility District arises from a dispute over efforts to provide sewer services in an area between Austin and San Antonio. In 2003, the utility district received a federal loan to fund its water service; it has certificates giving it the exclusive rights under state law to provide water and sewer services. Under federal law, when a rural utility receives such a loan, it is protected against competition for the “service provided or made available through” the utility while the loan is outstanding.

The questions presented in the case are whether the law applies only to the service funded by the loan – here, water but not sewer – and whether a duty to provide the service is enough to establish that the service has been provided. The U.S. Court of Appeals for the 5th Circuit ruled for the utility, and the city (which also seeks to provide the services) asked the Supreme Court to weigh in.

The solicitor general agreed with the city that the 5th Circuit’s ruling is “incorrect,” but he nonetheless urged the Supreme Court to deny review, telling the justices that the case could soon be moot because the utility has applied for a loan for its sewer system. The justices should not review the second question presented in the city’s petition, the solicitor general added, because the city did not raise it in the lower court.

de Csepel v. Republic of Hungary is yet another chapter in the battles over art seized by the Nazis and their allies during World War II. The art collection at the heart of this case was confiscated from the family of Baron Mor Lipot Herzog, who filed a lawsuit against Hungary and its museums in federal district court in Washington, D.C., to try to recover the art, arguing that the art had been taken in violation of international law.

Hungary countered that it cannot be sued in U.S. courts because a federal law, the Foreign Sovereign Immunities Act, gives it immunity. The FSIA contains an exception that would allow lawsuits when “rights in property taken in violation of international law are in issue”; the question that the court has been asked to review is whether the exception applies to the family’s case. After the U.S. Court of Appeals for the District of Columbia Circuit ruled that it did not, the family went to the Supreme Court, which asked the federal government to weigh in.

The federal government concluded that the Supreme Court should deny review. It made clear that it “deplores the acts of oppression committed against the family,” but it argued that the D.C. Circuit’s “decision is correct”: The museums that have the artwork could be sued in the United States because they sell books here, but those commercial activities don’t provide a basis to sue Hungary in U.S. courts. “The expropriation exception,” the government explained, “permits courts to exercise jurisdiction over a foreign state for expropriating property only when the property is in the United States in connection with the foreign state’s own commercial activities in the United States.”

In Osage Wind v. Osage Minerals Council, the justices have been asked to take up a dispute arising from the development of a wind-energy project on land in Oklahoma established as a reservation for the Osage Nation. There are two questions at issue in the case: whether the minerals council could appeal a decision against the United States in a lawsuit that the government had filed; and whether Osage Wind engaged in “mining” – for which it needed a mineral lease – when it removed soil, sand and rock to build cement foundations for wind turbines. The U.S. Court of Appeals for the 10th Circuit answered both questions in the affirmative, prompting Osage Wind to seek Supreme Court review.

The solicitor general urged the justices to deny review, telling them that although only parties to a case may normally appeal a judgment against them, there is a “narrow exception” to that rule that the minerals council satisfies. And the “interpretation of the word ‘mining’ in [the Department of the] Interior’s regulations governing mineral leases on Indian lands” also does not warrant Supreme Court review, the government wrote.

Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation has its roots in a business dispute between a Utah man, Ryan Harvey, and the tribe. The Utah Supreme Court ruled that Harvey should have gone to tribal courts first, and it ordered the state district court to either dismiss the case or put it on hold until tribal courts have weighed in. Harvey went to the Supreme Court, which called for the views of the solicitor general. The solicitor general told the justices not to grant review; he acknowledged that “state supreme courts have taken somewhat different approaches in cases involving claims that implicate tribal jurisdiction,” but he added that those “decisions have largely rested on multiple case-specific factors, and no clear-cut conflict exists.”

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in de Csepel and Osage Wind and to the respondent in Gilead Sciences. However, the author of this post is not affiliated with the firm.]

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. With just one conference left in 2018, all is quiet on the Supreme Court’s shadow docket. Scarcely a creature has been stirring among the returning relists, which – with one exception – have been nestled snug in their beds for at least five relists each and thus are past the […]

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Relist Watch

John Elwood reviews Monday’s relists.

With just one conference left in 2018, all is quiet on the Supreme Court’s shadow docket. Scarcely a creature has been stirring among the returning relists, which – with one exception – have been nestled snug in their beds for at least five relists each and thus are past the point where the statistics would say they’re prime candidates for a grant. (Sure, there are exceptions. But they are just that – exceptions.) And the serial rescheduled cases also appear to have settled their brains for a long winter’s nap. If the Supreme Court doesn’t act on these cases Monday, we won’t be hearing anything about them for almost a month. We will have to try to be patient.

We’ve made a list, and checked it twice – after emptying the cache and refreshing the page to make sure the docket pages we’re staring at aren’t out of date. Four new cases join the relist rolls. But what they make up for in quantity, they lack in interest. I kid! These cases are each interesting, but they’re not the kinds of cases that make for a blockbuster term, unless you have a very different idea than me about what a “blockbuster” is.

The first of the four is White v. Kentucky, 17-9467, a capital case out of the Bluegrass State, involving a defendant convicted of a decades-old murder. The case presents two issues: First, whether Kentucky violated petitioner Larry White’s rights when it denied him the opportunity to present evidence of his low IQ. The second question involves the validity of a traffic stop that yielded critical evidence. White argues that police pretextually pulled over for speeding a car in which he was a passenger so that they could frisk him to investigate the decades-earlier murder they suspected him of committing. While being frisked, White put down the cigar he was smoking, and it rolled off the car onto the street. Police later collected the cigar, and found DNA that linked White to the murder.

Next up is Thomas v. Williams, 17-1641. Police had a search warrant for 5818 Hirsch Street in Houston, Texas, and it turns out there is no residence with that address. They allegedly searched 5816 Hirsch Street instead. Petitioners Barbara Ann and John Thomas, who live at that address, filed suit, alleging that the officer who swore out the warrant deliberately or recklessly made material false statements. The U.S. Court of Appeals for the 5th Circuit held that Officer J.J. Williams was entitled to qualified immunity. The Thomases seek to challenge that determination.

Rehaif v. United States, 17-9560, involves a defendant who came to the U.S. from the United Arab Emirates on a student visa. Nearly a year after his school informed him that he was being dismissed on academic grounds, Hamid Rehaif visited a shooting range, where he purchased a box of ammunition and fired two rented guns. Rehaif was charged for knowingly violating a statutory provision that bars aliens “illegally or unlawfully in the United States” from possessing a firearm or ammunition that has traveled in interstate commerce. Rehaif argues that for him to be convicted of that offense, the government not only must show that he knowingly possessed firearms and ammunition – it also must show that he was aware of his unlawful immigration status. Rehaif cites two opinions written by then-Judge Neil Gorsuch involving another subsection of the same statute and arguing that the government must establish not only that the defendant knowingly possessed firearms, but also that the defendant knew of the fact that made it illegal for him to possess firearms. Rehaif likely got a boost from Gorsuch’s forceful dissent from denial of rehearing en banc, which began, “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.”

That brings us to the last of the cases. The Dutra Group v. Batterton, 18-266, involves a hot-button question that made many readers of this column want to go to law school in the first place: whether a seaman in a personal injury suit can obtain punitive damages under general maritime law for a claim that his employer failed to provide a seaworthy vessel. Most people feel so strongly about the issue that they can’t unwind their views of the law from their personal beliefs. But I’m confident that the justices will do their level best to put aside their feelings and decide the case based only on what they believe is the best understanding of the law. Kidding aside, this strikes me as a pretty likely grant.

That’s all for this week. Thanks again to Ben Moss for combing the docket to find these cases.

 

New Relists

Thomas v. Williams, 17-1641

Issue: Whether the court of appeals erred by affirming the district court’s grant of summary judgment and failing to adhere to “the axiom” that, at the summary-judgment stage, “the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor,” Tolan v. Cotton.

(relisted after the November 30 conference)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30 conference)

 

Rehair v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30 conference)

 

The Dutra Group v. Batterton, 18-266

Issue: Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.

(relisted after the November 30 conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16 and November 30 conferences)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences)

 

Hester v. United States, 17-9082

Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

(relisted after the November 16 and November 30 conferences)

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Two new CVSGs – on a deadline

Two new CVSGs – on a deadlineThis morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their docket for the term, but they did ask the U.S. solicitor general to weigh in on a pair of cases involving the Clean Water Act – and in doing so took […]

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Two new CVSGs – on a deadline

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their docket for the term, but they did ask the U.S. solicitor general to weigh in on a pair of cases involving the Clean Water Act – and in doing so took the unusual step of imposing a deadline on the federal government.

The calls for the views of the federal government came in County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy v. Upstate Forever. The Maui case centers on wells at a county-owned wastewater reclamation plant that discharges treated wastewater underground to dispose of it; the pollutants in the wastewater enter the groundwater, which eventually reaches the ocean. The U.S. Court of Appeals for the 9th Circuit ruled that such pollutants qualify as “point source” pollution, for which a Clean Water Act permit is required. The county has asked the justices to weigh in, complaining that the lower court’s decision could impose burdens on “millions of other sources, including the roughly” 6,000 similar wells and 21,000 septic systems in Hawaii.

The Kinder Morgan case arose after a crack in the company’s pipeline leaked nearly 400,000 gallons of gasoline and diesel into the surrounding soil and groundwater. Kinder Morgan fixed the leak and worked to clean up the damage, but the U.S. Court of Appeals for the 4th Circuit ruled that the Clean Water Act applied to the leak because there was a “direct hydrological connection” between the leak of the pollutants into the groundwater and navigable waters covered by the CWA.

Today the justices asked the federal government to file a brief expressing the views of the United States on the issues presented by the two cases – a fairly common move, especially in cases, like this one, that involve the interpretation of an important federal statute. What was less common, however, was the justices’ order that the solicitor general’s brief be filed by the afternoon of January 4, 2019: Normally, there is no deadline for the federal government to respond to this kind of request from the court, known as a CVSG. Although there is no way to know for sure, the deadline was likely intended to ensure that the justices could, if they decide to grant review, hear oral arguments and decide the cases by the end of the current term.

Last term, in Janus v. American Federation of State, County, and Municipal Employees, the justices held that government employees who are not members of the union that represents them cannot be required to pay a fee to cover the costs of collective bargaining. That decision overruled a case dating back to 1977. Today the justices sent a case challenging the requirement that lawyers who wish to practice in a particular state become members of (and pay dues to) that state’s bar association back to the lower court for reconsideration in light of their decision in Janus.

The case was filed by Arnold Fleck, a lawyer in North Dakota who belongs to the state’s bar association and objected to the bar association’s support for a parental-rights law that appeared on the ballot in November 2014. As Fleck’s case came to the Supreme Court, he had two arguments. First, he contended that the bar association’s requirement that he “opt out” of paying the portion of his dues that finances the association’s political speech violates the Constitution. Instead, Fleck argued, he should only have to pay those dues if he affirmatively “opts in.” The Supreme Court had already agreed to review this question once, in Friedrichs v. California Teachers Association, but it deadlocked in that case after the death of Justice Antonin Scalia in February 2016.

The second question presented by Fleck’s case was a broader one – the idea that mandatory bar dues themselves are unconstitutional. Fleck urged the court to overrule its decisions (dating back to 1961 and 1990) holding that a state can require its attorneys to join a state bar association and pay bar dues. Those decisions, Fleck contended, rested on the need to regulate the legal profession and improve legal services in the state. But that can easily be accomplished, Fleck continued, without making bar membership mandatory. Both of the questions presented in Fleck’s case, however, will apparently have to wait for another day at the Supreme Court.

Finally, the justices denied review in Animal Legal Defense Fund v. Department of Homeland Security, a challenge to decisions by the Secretary of Homeland Security waiving environmental and animal protection laws (among others) in connection with the construction of a wall along the U.S.-Mexico border. As the case came to the Supreme Court, the ALDF had asked the justices to weigh in on the constitutionality of a federal immigration law that gives the secretary power to waive those requirements when they would hinder “expeditious construction” of barriers.

The justices will meet again for another conference – the last regularly scheduled one of 2018 – on Friday, December 7.

This post was originally published at Howe on the Court.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address, among other things, the classification of Title VII’s administrative-exhaustion requirement as a jurisdictional prerequisite or a waivable claim-processing rule; the meaning of the statutory term “confidential” in the Freedom of Information Act’s Exemption 4; the derivation of the religious-autonomy doctrine; and whether a state can […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, the classification of Title VII’s administrative-exhaustion requirement as a jurisdictional prerequisite or a waivable claim-processing rule; the meaning of the statutory term “confidential” in the Freedom of Information Act’s Exemption 4; the derivation of the religious-autonomy doctrine; and whether a state can require health-care facilities to dispose of fetal remains in the same manner as other human remains.

The petitions of the week are:

18-481
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issues: (1) Whether the statutory term “confidential” in the Freedom of Information Act’s Exemption 4 bears its ordinary meaning, thus requiring the government to withhold all “commercial or financial information” that is confidentially held and not publicly disseminated—regardless of whether a party establishes substantial competitive harm from disclosure—which would resolve at least five circuit splits; and (2) whether, in the alternative, if the Supreme Court retains the substantial-competitive-harm test, that test is satisfied when the requested information could be potentially useful to a competitor, as the U.S. Courts of Appeals for the 1st and 10th Circuits have held, or whether the party opposing disclosure must establish with near certainty a defined competitive harm like lost market share, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 8th Circuit required here.

18-483

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.

18-500

Issues: (1) Whether the religious-autonomy doctrine derives from the First Amendment or rather is a consent-based doctrine applicable only to disputes between a church and one of its own members; and (2) whether the religious-autonomy doctrine is a threshold jurisdictional issue or an affirmative defense.

18-525

Issue: Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.

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Reschedule Watch

Reschedule WatchJohn Elwood reviews next Monday’s likely relists. One of the great things about being paid absolutely nothing for writing is that your take-home pay is the same whatever you wind up producing. That is comforting indeed when, having staked out one absurdly specialized subject area to write about weekly, you wake up one morning and […]

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Reschedule Watch

John Elwood reviews next Monday’s likely relists.

One of the great things about being paid absolutely nothing for writing is that your take-home pay is the same whatever you wind up producing. That is comforting indeed when, having staked out one absurdly specialized subject area to write about weekly, you wake up one morning and decide that this week, you really need to write about something even more obscure.

That’s what happened today. No point writing about the new relists this week: There aren’t any. Or, rather, I should say, it appears there won’t be any: The Supreme Court’s next conference isn’t until Friday of next week, so the court won’t actually relist cases on the docket until Monday, November 26. What follows is our best guess based on the information we have now. Rather than observe again how relists are disproportionately associated with grants and dissents from denial of cert, I thought we should discuss where the action seems to be this week on the Supreme Court’s shadow docket. And this week, it seems to be among the cases the court has rescheduled.

Leading the leagues this week is McKee v. Cosby, 17-1542, which has been rescheduled seven times. As framed by the petition, that case presents the question whether an alleged victim of sexual misconduct whose only public act has been simply to state that she was victimized by a well-known alleged abuser (yes, that Cosby), thereby becomes a limited-purpose public figure. Under current First Amendment doctrine, that status makes it much harder for plaintiffs to recover for defamation, and requires them to make a showing by clear and convincing evidence that the defendant acted with “actual malice.” Kathrine McKee says she was defamed by a letter Bill Cosby and his lawyer sent to the New York Daily News after McKee told the paper that Cosby had assaulted her. Although McKee argues that she has kept a low profile and has not sought the spotlight on sexual-abuse issues, the Cosby brief in opposition argues she has kept a much higher profile and used her “longstanding celebrity status” to gain media access for her allegations. The case is also interesting for two other reasons; (1) McKee is represented by Charles Harder, who helped take on Gawker for Hulk Hogan and has had a number of high-profile clients since; and (2) the petition’s question presented is the first one I’m aware of to use a hashtag (“#metoo”). Obviously, this case has the attention of at least one of the justices; perhaps he or she is wondering whether it’s time to revisit the court’s complex defamation jurisprudence.

Next up is Zimmerman v. City of Austin, Texas, 18-93, which has been rescheduled four times. Petitioner Don Zimmerman was a one-term city councilman in the Texas capital who in 2015 was seeking to raise campaign funds to use in responding to political attacks heading into the 2016 election. But his ability to raise money was limited by Austin’s campaign-finance restrictions, which include a $350 base limit on campaign contributions and an aggregate limit on the total a candidate can accept from contributors who are not eligible to vote in Austin zip codes. Zimmerman says he wanted to solicit contributions from “like-minded conservative donors without respect to whether they qualified as registered voters within Austin[],” but suspended his efforts because it appeared the upfront investment needed to undertake solicitations would do him no good. Zimmerman lost his re-election bid. The U.S. Court of Appeals for the 5th Circuit later upheld the $350 restriction and said that Zimmerman’s decision to suspend his fundraising plans outside Austin was not an injury sufficient to confer standing. Zimmerman challenges that decision. And it appears that he has the attention of at least one of the justices. It could also be that the court is trying to get Zimmerman on the same schedule as Lair v. Mangan, 18-149, involving similar challenges to Montana campaign finance limits.

Our last entry illustrates what is perhaps the most traditional use of rescheduling — to get cases that raise related issues onto the same schedule so the justices can consider them together at conference. Bostock v. Clayton County, Georgia, 17-1618, and Altitude Express, Inc. v. Zarda, 17-1623, both present the question whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of … sex,” encompasses discrimination based on an individual’s sexual orientation. The court has rescheduled both once, apparently so they can be considered at the November 30 conference along with R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 18-107, which presents the related question of whether Title VII applies to gender identity and transgender status. These are some of the most closely watched cases the court is now considering, so perhaps they’ll be back soon as relists.

That’s all for this week. Thanks again to Tom Mitsch for compiling these cases, however they are classified. And best wishes for a happy and safe Thanksgiving to our entire readership!

 

New Relists

As noted above, there appear to be no new relists this week.

 

Returning Relists

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2 and November 9 conferences; likely to be relisted after the November 16 conference)

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address, among other things, the meaning of the phrase “law-abiding, responsible citizens” in District of Columbia v. Heller when determining whether a felon is entitled to lodge an as-applied challenge to the constitutionality of a felon disarmament law, whether a state law regulating pharmacy benefit managers’ drug-reimbursement rates […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, the meaning of the phrase “law-abiding, responsible citizens” in District of Columbia v. Heller when determining whether a felon is entitled to lodge an as-applied challenge to the constitutionality of a felon disarmament law, whether a state law regulating pharmacy benefit managers’ drug-reimbursement rates is pre-empted by the Employee Retirement Income Security Act, the proper standard of review for a lower court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19, and the effect of the commerce clause on a state’s ability to protect consumer access to prescription drugs by regulating the pricing of those drugs.

The petitions of the week are:

18-528

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it applied an “abuse of discretion” standard of review to a district court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19, and, if so, which standard of review is applicable to a lower court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19.

18-540

Issue: Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that Arkansas’ statute regulating pharmacy benefit managers’ drug-reimbursement rates, which is similar to laws enacted by a substantial majority of states, is pre-empted by the Employee Retirement Income Security Act of 1974, in contravention of the Supreme Court’s precedent that ERISA does not pre-empt rate regulation.

18-546

Issue: Whether the commerce clause prohibits a state from protecting consumer access to essential off-patent and generic prescription drugs by requiring manufacturers to refrain from unconscionably raising the price of those drugs sold in the state.

18-496
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issues: In determining whether a felon is entitled to lodge an as-applied challenge to the constitutionality of a felon disarmament law such as 18 U.S.C. §922(g)(1), (1) what does the phrase “law-abiding, responsible citizens” in District of Columbia v. Heller mean; and (2) what does it mean that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful regulatory measures” under Heller.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address whether plaintiffs may obtain certification of issue classes for a cause of action under Rule 23(c)(4) without having demonstrated that common issues predominate under Rule 23(b)(3), the creation of a particular inferred private right of action via Section 14(e) of the Securities Exchange […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address whether plaintiffs may obtain certification of issue classes for a cause of action under Rule 23(c)(4) without having demonstrated that common issues predominate under Rule 23(b)(3), the creation of a particular inferred private right of action via Section 14(e) of the Securities Exchange Act of 1934, and the constitutionality of the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B).

The petitions of the week are:

18-459

Issue: Whether the U.S. Court of Appeals for the 9th Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer.

18-472

Issue: Whether plaintiffs, having failed to demonstrate that common issues predominate over individual issues as to their cause of action under Federal Rule of Civil Procedure 23(b)(3), may nevertheless obtain certification of issue classes for that cause of action under Rule 23(c)(4).

18-428

Issue: Whether the subsection-specific definition of ”crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.

18-431

Issue: Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.

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Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relists, er, relist. For the longest time, to be called “national,” a thing had to be either really good or really bad. A trip through the alphabet reminds us of such noteworthy things as the national anthem, the National Book Award, National Car Rental, a national disgrace, the National Enquirer, the […]

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Relist Watch

John Elwood reviews Tuesday’s relists, er, relist.

For the longest time, to be called “national,” a thing had to be either really good or really bad. A trip through the alphabet reminds us of such noteworthy things as the national anthem, the National Book Award, National Car Rental, a national disgrace, the National Enquirer, the National Football League, National Geographic, a national holiday, the NIH, the National Journal, the National Mall, national news, NPR, the National Review, national security, the NTSB, national university, National Velvet, the National Weather Service and the National Zoo. Even the hard letters yield things you can get behind: national kissing day, National O-style guitars, the national quiz bowl, the national youth leadership forum and perhaps the best of all – the national xenopus resource.

But beginning this week, the newly invented name for an unloved neighborhood of a gently mocked suburb of a widely despised city will, for the foreseeable future, be the top Google result you will find when you search for “national l” – National Landing.

Hard as it is to believe, the arrival of Amazon on the outskirts of the national capital has overshadowed the second-biggest story in the national headlines about D.C. this week: the disposition of last week’s seven relists. As suspected, Justice Sonia Sotomayor was unable to persuade the court to grant review in the cases, involving application of harmless error to Florida’s since-invalidated capital-sentencing scheme, which used advisory juries to make a recommendation to the trial judges who would actually decide whether to impose a sentence of death. Instead, Sotomayor filed her fifth opinion dissenting from denial of certiorari on the issue.

This week, the Supreme Court added just one new relisted case, Cochise Consultancy v. United States, ex rel. Hunt, 18-315, involving that font of litigation, the False Claims Act. Under the FCA, a private citizen, known as a “relator,” can bring an action in the name of the United States to recover funds a party allegedly has fraudulently obtained from the government. Such suits are called “qui tam” actions, Latin for “I don’t know what I’m saying.” OK, I’ve consulted my notes and it appears that technically, that is completely false. Turns out it’s short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur” – roughly, “who sues in this matter for the king as well as for himself.” The government has a right to intervene, but if it chooses not to, the relator can continue to prosecute the case alone (unless the government takes the relatively rare step of terminating the suit).

The FCA provides that a civil action ordinarily “may not be brought more than 6 years after the date” of the alleged violation. But the statute also provides for a “discovery” exception that is coupled with a statute of repose: An FCA civil action “may not be brought more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by an official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date” of the alleged violation. Cochise Consultancy presents the question whether a relator can take advantage of that “discovery” exception in a case in which the government has not intervened. The odds of a grant seem pretty high because the relator agrees that there is a circuit split and the issue is important. I suppose that alternatively, the justices could call for the views of the U.S. solicitor general, but they’ve already CVSGd in one other FCA case this year. So perhaps we’ll get an outright grant.

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

 

New Relist

Cochise Consultancy v. United States, ex rel. Hunt, 18-315

Issue: Whether a relator in a False Claims Act qui tam action may rely on the statute of limitations in 31 U.S.C. § 3731(b)(2) in a suit in which the United States has declined to intervene and, if so, whether the relator constitutes an “official of the United States” for purposes of Section 3731(b)(2).

(relisted after the November 9 conference)

 

Returning Relists

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5, October 12, October 26, November 2 and November 9 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2 and November 9 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2 and November 9 conferences)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2 and November 9 conferences)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2 and November 9 conferences)

 

Stuart v. Alabama, 17-1676

Issue: Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood-alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.

(relisted after the October 26, November 2 and November 9 conferences)

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After federal government filing, 9th Circuit rules in DACA dispute

After federal government filing, 9th Circuit rules in DACA disputeThree days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th […]

The post After federal government filing, 9th Circuit rules in DACA dispute appeared first on SCOTUSblog.

After federal government filing, 9th Circuit rules in DACA dispute

Three days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th Circuit – could review the government’s appeal from district court rulings against it. Today the 9th Circuit issued its ruling in the challenge to the termination of the program, known as DACA, which allows some undocumented immigrants who came to the United States as children to apply for protection from deportation. The ruling means not only that the Supreme Court is now more likely to take up the DACA dispute, but that it could do so this term.

In its filing on Monday, the federal government complained that the 9th Circuit had heard oral argument in the dispute in mid-May but had not yet issued its ruling. Arguing that the Supreme Court would inevitably have to weigh in on the DACA dispute, the government urged the justices to go ahead and do so now, without waiting for the courts of appeals to rule. Otherwise, the government contended, the Supreme Court might not decide the question until next term, which would require the government to keep DACA in place even though it believes the program is not legal.

In an opinion issued today, a three-judge panel of the 9th Circuit upheld a federal district court’s order requiring the government to keep the DACA program in place. Although the 9th Circuit’s ruling went against the government, the decision likely helped the government’s cause at the Supreme Court, because the justices rarely grant petitions for review before the courts of appeals have ruled; the justices prefer to have the benefit of those courts’ opinions, even if they often do not follow them.

The challengers’ response to the government’s petition is currently due on December 5. Assuming that the court does not extend that deadline, the justices could announce as soon as mid-January whether they will take up the dispute.

This post was originally published at Howe on the Court.

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