Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address the preclusion of legal damages if the equitable defense of unclean hands is asserted; the constitutionality of the Florida Department of Corrections’ ban on Prison Legal News; and the eligibility of a criminal defendant convicted of violated the Maritime Drug Law Enforcement Act […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address the preclusion of legal damages if the equitable defense of unclean hands is asserted; the constitutionality of the Florida Department of Corrections’ ban on Prison Legal News; and the eligibility of a criminal defendant convicted of violated the Maritime Drug Law Enforcement Act for relief, under the “safety valve” of 18 U.S.C. § 3553(f), from a mandatory minimum sentence.

The petitions of the week are:

18-355
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issue: Whether the Florida Department of Corrections’ blanket ban of Prison Legal News violates a petitioner’s First Amendment right to free speech and a free press.

18-374

Issue: Whether a criminal defendant convicted of violating the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501, et seq., and subject to a mandatory minimum sentence under 21 U.S.C. § 960, is eligible for relief from that mandatory minimum under the statutory “safety valve” of 18 U.S.C. § 3553(f).

18-378

Issue: Whether the equitable defense of unclean hands precludes legal relief in the form of damages.

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Masterpiece Cakeshop question returns to the Supreme Court

<em>Masterpiece Cakeshop</em> question returns to the Supreme CourtThe Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs. Less than five months ago, the justices issued a narrow ruling in the case of Jack Phillips, a […]

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<em>Masterpiece Cakeshop</em> question returns to the Supreme Court

The Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs.

Less than five months ago, the justices issued a narrow ruling in the case of Jack Phillips, a devout Christian and Colorado baker who told a gay couple that he would not design a cake for their upcoming festivities. The decision, authored by now-retired Justice Anthony Kennedy, emphasized that the Colorado administrative agency that had ruled against Phillips had treated him unfairly by being too hostile to Phillips’ religious convictions. However, the Supreme Court did not resolve a key question in the case: When can sincerely held religious beliefs like Phillips’ trump neutral laws that apply to everyone?

In a petition for review filed today, an Oregon couple has asked the Supreme Court to return to that question. The couple, Melissa and Aaron Klein, owned a bakery in the Portland suburbs that they called Sweetcakes by Melissa.

In 2013, Rachel Bowman-Cryer and her mother, Cheryl, visited Sweetcakes to order a wedding cake for Rachel’s upcoming marriage to her fiancée, Laurel. When Aaron Klein learned that two women would be getting married, he told Rachel and Cheryl that the bakery did not make cakes for same-sex ceremonies because the Kleins believe that a marriage is limited to the union between a man and a woman.

Rachel and Laurel filed a complaint with a state administrative agency, arguing that the Kleins had refused to serve them because of their sexual orientation. The agency concluded that the Kleins had violated state laws barring businesses that serve the public from discriminating based on sexual orientation, and it awarded the Bowman-Cryers $135,000. A state appeals court upheld that ruling, rebuffing the Kleins’ argument that applying the state’s anti-discrimination laws to them violates the First Amendment by compelling them to “express a message—a celebration of same-sex marriage—with which they disagree.”

The Kleins have now asked the Supreme Court to take up their case. Invoking language from the majority’s decision in Obergefell v. Hodges, finding a constitutional right to same-sex marriage, they urge the justices to grant review “to ensure that the constitutionally guaranteed rights to exercise one’s religious beliefs and to express those beliefs are not subordinated to a new majoritarian effort to” attack the convictions of individuals who oppose same-sex marriage “based on decent and honorable religious or philosophical premises.”

The Kleins – whose lawyers report that they were forced to close their bakery in 2013 because business had declined – add that their case is an even better candidate for review than Masterpiece Cakeshop’s was because some of the “uncertainties about the record” in Masterpiece Cakeshop are not present here – for example, the Kleins only sell custom cakes, so there is no question about whether the Kleins refused to sell the Bowman-Cryers a custom cake or instead refused to sell them any cake at all.

The state will now have approximately a month to respond to the Kleins’ petition, although it could seek a 30-day extension. Depending on the precise timing of the briefing, if the justices opt to grant review, they could potentially hear oral argument in the case and issue a ruling before the end of June.

This post was originally published at Howe on the Court.

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Relist Watch

Relist WatchJohn Elwood (barely) reviews Monday’s likely relists. I’m preparing for an argument, so this week’s update will be brief. There’s been a lot of movement on last week’s relists. On Friday, the Supreme Court granted review in the twice-relisted Manhattan Community Access Corporation v. Halleck, 17-1702, which asks whether the private operator of a public access […]

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Relist Watch

John Elwood (barely) reviews Monday’s likely relists.

I’m preparing for an argument, so this week’s update will be brief. There’s been a lot of movement on last week’s relists. On Friday, the Supreme Court granted review in the twice-relisted Manhattan Community Access Corporation v. Halleck17-1702, which asks whether the private operator of a public access TV channel is a “state actor” for constitutional purposes. And on Monday, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) dissented from the denial of certiorari in that big group of cases addressing the validity of criminal sentences imposed under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence.” Those actions knocked about 11 cases off the relist rolls.

The court’s next conference isn’t until next Friday, October 26. So the court won’t actually relist the cases on the dockets until Monday, October 22. But it looks to us like they’re likely to relist five new cases. Below, we’ve indicated the questions presented. The court has also rescheduled a few noteworthy cases, but I don’t want to say more about that for fear of mission creep.

That’s all for this week. Thanks to the newly arrived Ben Moss for his willingness to performing the thankless task of compiling the relists.

 

New Relists

Return Mail Inc. v. United States Postal Service, 17-1594

Issues: (1) Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act; and (2) whether an action under 28 U.S.C. § 1498(a) for the eminent domain taking of a patent license by the government is a suit for patent “infringement” under the Leahy-Smith America Invents Act.

(relisted after the October 12 conference)

 

Mission Product Holdings Inc. v. Tempnology, LLC, 17-1657

Issues: (1) Whether, under Section 365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. § 365(g) — terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law; and (2) whether an exclusive right to sell certain products practicing a patent in a particular geographic territory is a “right to intellectual property” within the meaning of Section 365(n) of the Bankruptcy Code.

(relisted after the October 12 conference)

 

United States v. Haymond, 17-1672

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

(relisted after the October 12 conference)

 

Gray v. O’Rourke, 17-1679

Issue: Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veteran Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual.

(relisted after the October 12 conference)

 

Blue Water Navy Vietnam Veterans Association, Inc. v. O’Rourke, 17-1693

Issues: (1) Whether judicial review of an interpretative Department of Veteran Affairs’ regulation under the Administrative Procedures Act should be foreclosed under 38 U.S.C. § 502 when the Veterans Judicial Reform Act provides the sole avenue for review of the Secretary’s decisions; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s decision creates a conflict with the U.S. Court of Appeals for the District of Columbia’s decision in Blue Water Navy Vietnam Veterans Association Inc. and Military-Veterans Advocacy Inc. v. McDonald.

(relisted after the October 12 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 and October 12 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 and October 12 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 and October 12 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 and October 12 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 and October 12 conferences)

 

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. KurtzmanVan Orden v. PerryTown of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(relisted after the September 24, October 5 and October 12 conferences)

 

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(relisted after the September 24, October 5 and October 12 conferences)

 

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

(relisted after the October 5 and October 12 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 and October 12 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 classification under the Armed Career Criminal Act of a criminal offense that requires a defendant to have acted recklessly; the constitutionality of a categorical exclusion of houses of worship from qualifying for a government historic preservation grant; and the extent […]

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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 under the Armed Career Criminal Act of a criminal offense that requires a defendant to have acted recklessly; the constitutionality of a categorical exclusion of houses of worship from qualifying for a government historic preservation grant; and the extent to which an accommodation must eliminate a conflict between work and religious practice to be “reasonable.”

The petitions of the week are:

18-349

Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable,” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled.

18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

18-370

Issue: Whether a criminal offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

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Relist statistics OT 2017: The relist rest stop offers a golden ticket to some, becomes a holding pen and dead end to others

Relist statistics OT 2017: The relist rest stop offers a golden ticket to some, becomes a holding pen and dead end to othersFor four years running, we have pored over the prior term’s relists to give the readers of this blog a clearer idea of just what a relist means. When we began with this mind-numbing task after October Term 2014, a first relist meant that the ultimate odds of a grant were better than 50/50 — […]

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Relist statistics OT 2017: The relist rest stop offers a golden ticket to some, becomes a holding pen and dead end to others

For four years running, we have pored over the prior term’s relists to give the readers of this blog a clearer idea of just what a relist means. When we began with this mind-numbing task after October Term 2014, a first relist meant that the ultimate odds of a grant were better than 50/50 — not bad when the average chance of a grant hovers around three percent. Being relisted continued to serve as a harbinger during the 2017 term, often signaling when the Supreme Court was interested enough in a petition to seriously consider granting it. But for all that relists still told court-watchers last term, the noise-to-signal ratio increased noticeably compared with previous terms. The increased noise appears to result from three related shifts in the court’s relist practice:

First, the number of relisted petitions increased to 159 in the 2017 term — up significantly from the 129 relisted petitions resolved in the 2016 term. (If you thought that nothing in the Supreme Court changes by 30 percent in a single year, you’d be wrong.) And that figure includes only those petitions that were disposed of during October Term 2017, omitting at least 26 petitions that were relisted during the 2017 term but remained pending as of the term’s end. So the justices appear to be a bit freer about relisting cases.

Second, once relisted, petitions were more likely than before to be relisted a second time. During OT 2015 and OT 2016, only 40 percent of first-time relists were relisted a second time (or more). In OT 2017, by contrast, 64 percent of relisted petitions were relisted at least twice. But most weren’t allowed to settle in and get comfortable: The court only relisted a third of the twice-relisted petitions for a third time, denying or summarily reversing 55 percent and granting 10 percent of the remaining twice-relisted petitions. That’s another big change from 2016, when 75 percent of twice-relisted petitions were relisted a third time, and from 2015, when 55 percent of twice-relisted petitions were relisted again. The few petitions surviving the two-relist purge, however, tended to make it to five or more relists in OT 2017 — which is a higher rate than in previous years but not dramatically so.

Third, the grant rate on relists was lower in OT 2017 than in previous years. A petition relisted once had a 32 percent chance of ultimately being granted in the 2017 term compared to a 43 percent chance in 2016 and a 49 percent chance in 2015. Interestingly, the inverse wasn’t true: While the chance of denial for relisted petitions climbed from 35 percent in 2015 to 45 percent in 2016, it fell slightly in 2017, to 42 percent. That’s due to an increase in the number of summary opinions. Indeed, if there is any good news here for relisted petitions, it is that for petitions that are relisted two, three or four times, the grant rate remained static from 2016 to 2017, but the rate of denial decreased as the court more often summarily reversed.

What does all of this mean? On the whole, the number of petitions relisted has increased, and the number of times that a petition is relisted twice has increased — so at any given time, there were many more relisted petitions on the docket in OT 2017 than in prior terms. At the same time, the overall number of cases granted has not increased commensurately. Sadly (for us more than anyone) that means that relists — while still effectively a prerequisite to a grant — have become a less reliable indicator that a case will ultimately be granted. So maybe the Relist Watch columns of yore got it about right in saying:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

So why is the court relisting more petitions? One possibility is that it is relisting multiple cases that raise the same or related issues. For example, the court relisted at least four different cases — Allen, Gates, James and Robinson — each raising the identical question of whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision are unconstitutional. Those petitions were relisted repeatedly (some of them 10 times) before the court denied them all. Another example is Bormuth and Lund, cases on either side of a circuit split involving legislative prayer, and which the court either relisted or rescheduled 13 and 15 times respectively. (We are told by those who would know that rescheduling and relisting now serve similar purposes.)

In any event, now that the Supreme Court once again has a full complement of justices, we expect that there may be a brief flurry of grants from the ranks of the relists, at least once Justice Brett Kavanaugh has had a chance to settle in and review them. After that, it is possible the relist trends will continue to zigzag as another justice’s preferences affect relist practices. Relist Watch will keep monitoring, and we will report back next year.

Click graph to enlarge.

Thanks to Andrew Quinn for undertaking for a second year the daunting task of reading every Relist Watch to gather the data used in this article.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address the statute of limitations that applies to relators in a qui tam action, the cause requirement to force entry into a home to arrest a suspect, and the question of whether the transformative use of a copyrighted work can be a cognizable market […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address the statute of limitations that applies to relators in a qui tam action, the cause requirement to force entry into a home to arrest a suspect, and the question of whether the transformative use of a copyrighted work can be a cognizable market harm.

The petitions of the week are:

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).

18-321

Issue: Whether the transformative use of a copyrighted work can cause a cognizable market harm under 17 U.S.C. § 107(4) if it is used in connection with a commercially successful business that the author is unlikely to enter or authorize.

18-339

Issue: Whether the Fourth Amendment requires police officers to have probable cause to believe that a suspect is present in a home before forcing entry into that home to execute an arrest warrant for the suspect.

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Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relisted cases. We have a new justice and so of course, everything’s back to normal at the Supreme Court. Maybe because it’s a time of change, we had a fairly status quo conference this week. Perhaps Chief Justice John Roberts decided to hang on to all of the long-conference relists so […]

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Relist Watch

John Elwood reviews Tuesday’s relisted cases.

We have a new justice and so of course, everything’s back to normal at the Supreme Court. Maybe because it’s a time of change, we had a fairly status quo conference this week. Perhaps Chief Justice John Roberts decided to hang on to all of the long-conference relists so the new guy would have a chance to weigh in on them. Only one of last week’s 17 new relists was denied this week: Kindred Nursing Centers Limited Partnership v. Wellner, 17-1318, addressing whether the Federal Arbitration Act pre-empts a Kentucky common-law power-of-attorney rule. That denial is something of a watershed, because it marks the first time in the 21st century that the court has denied cert on an arbitration-pre-emption question.

There wasn’t much change this week in the other direction, either – we only have two new relists. The justices plainly need another week to consider the weighty issues at stake in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705. Either that, or they just haven’t finished reading the questions presented yet. While it’s not uncommon in cert petitions to include a little background information before stating the questions presented, this is the first one I can recall seeing in which that information spans three pages. The case presents a question about litigants’ ability to challenge in district court Federal Communications Commission orders construing the Telephone Consumer Protection Act, because of a provision known as the Hobbs Act – this one, not the one you’re thinking about. That law gives federal courts of appeals exclusive jurisdiction to determine the validity of certain agency orders. In this case, respondent Carlton & Harris Chiropractic sued PDR for an unsolicited fax that it sent them offering a free copy of a physicians’ reference book, relying on a 2006 FCC rule interpreting the TCPA term “unsolicited advertisement” to include “facsimile messages that promote goods or services even at no cost.” PDR moved to dismiss, arguing that the FCC order and the interpretation it embodied were invalid, and the U.S. Court of Appeals for the 4th Circuit held that the district court lacked jurisdiction to consider the validity of the FCC order. PDR seeks to revisit that determination.

The second new relist is Shoop v. Hill, 18-56. In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment bars the execution of the intellectually disabled, but did not define that term. After Atkins, the Ohio Supreme Court adopted a clinical definition that included three elements: (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care and self-direction, and (3) onset before the age of 18. Relying on expert testimony applying that standard, the Ohio state courts rejected respondent Danny Hill’s Atkins claim because he lacked adaptive-skills deficits. Years later, the U.S. Court of Appeals for the 6th Circuit held that the state appellate court unreasonably applied Atkins within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996, invoking Moore v. Texas, which the Supreme Court decided years after the Ohio appellate decision and which criticized a state court for allowing lay perceptions to trump clinical judgments. The state of Ohio argues that the 6th Circuit was insufficiently deferential to the state courts’ determinations. Although the Supreme Court has not infrequently summarily reversed the 6th Circuit for being insufficiently deferential on habeas review, the state has not requested summary action here.

That’s all for this week. Next week’s installment will be even more summary because I will be preparing for an argument next Friday.

Thanks to Kent Piacenti for re-upping to do a few more installments.

 

New Relists

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

(relisted after the October 5 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 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 and October 5 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 and October 5 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 and October 5 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 and October 5 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 and October 5 conferences)

 

Manhattan Community Access Corporation v. Halleck, 17-1702

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit erred in rejecting the Supreme Court’s state-actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public-access television stations are state actors for constitutional purposes when the state has no control over the private entity’s board or operations.

(relisted after the September 24 and October 5 conferences)

 

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. KurtzmanVan Orden v. PerryTown of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(relisted after the September 24 and October 5 conferences)

 

Molette v. United States, 17-8368

Issue: Whether, under Johnson v. United States, the U.S. Court of Appeals for the 4th Circuit erred when it denied a certificate of appealability on a 28 U.S.C. § 2255 motion regarding the application of Johnson to the Federal Sentencing Guidelines with regard to a defendant sentenced under the pre-Booker, then-mandatory guidelines.

(relisted after the September 24 and October 5 conferences)

 

Gipson v. United States, 17-8637

Issue: Whether defendants sentenced under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence”—prior to the Supreme Court’s decision in United States v. Booker, when judges were given no discretion—have a retroactive right to be resentenced because they were sentenced under the equivalent of a vague statute.

(relisted after the September 24 and October 5 conferences)

 

Wilson v. United States, 17-8746

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(relisted after the September 24 and October 5 conferences)

 

Greer v. United States, 17-8775

Issues: (1) Whether a vagueness challenge to the residual clause of the Federal Sentencing Guidelines asserts a violation of Johnson v. United States, such that it is timely under 28 U.S.C. § 2255(f)(3), when the residual clause was applied in a mandatory, rather than advisory, manner; and (2) whether the residual clause of the Federal Sentencing Guidelines is unconstitutionally vague when it was applied in a mandatory, rather than advisory, manner.

(relisted after the September 24 and October 5 conferences)

 

Homrich v. United States, 17-9045

Issue: Whether petitioners who were sentenced as career offenders in accordance with the mandatory guidelines filed timely 28 U.S.C. § 2255 motions if they filed their motions within one year of Johnson v. United States.

(relisted after the September 24 and October 5 conferences)

 

Brown v. United States, 17-9276

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether the residual clause of the pre-Booker career offender guideline is unconstitutionally vague.

(relisted after the September 24 and October 5 conferences)

 

Chubb v. United States, 17-9379

Issue: Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3) .

(relisted after the September 24 and October 5 conferences)

 

Smith v. United States, 17-9400

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the mandatory career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether, in light of Johnson, the residual clause of the mandatory career offender guideline is unconstitutionally vague.

(relisted after the September 24 and October 5 conferences)

 

John Elwood Buckner v. United States, 17-9411

Issue: Whether the U.S. Court of Appeals for the 4th Circuit incorrectly denied a certificate of appealability on the petitioner’s claim when he argued that the residual clause of the mandatory career offender guideline was void for vagueness after Johnson v. United States.

(relisted after the September 24 and October 5 conferences)

 

Lewis v. United States, 17-9490

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(relisted after the September 24 and October 5 conferences)

 

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(relisted after the September 24 and October 5 conferences)

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Petitions of the Week

Petitions of the WeekThis week we highlight petitions pending before the Supreme Court that address the constitutionality of the Lanham Act’s prohibition on registering “immoral” or “scandalous” marks, standing requirements for a consumer seeking injunctive relief with regard to allegedly misleading consumer products, and the law that governs common-fund fee awards. The petitions of the week are: Chieftain Royalty Co. […]

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Petitions of the Week

This week we highlight petitions pending before the Supreme Court that address the constitutionality of the Lanham Act’s prohibition on registering “immoral” or “scandalous” marks, standing requirements for a consumer seeking injunctive relief with regard to allegedly misleading consumer products, and the law that governs common-fund fee awards.

The petitions of the week are:

18-301

Issue: Whether common-fund fee awards are governed in diversity cases by state or federal law.

18-302

Issue: Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

18-304

Issue: Whether a consumer, after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by that same representation in the future so as to establish standing to seek an injunction.

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Relist Watch

Relist WatchJohn Elwood reviews the cases the Supreme Court relisted after the long conference. I don’t find much to be amused about recently, so let’s just do this. The Supreme Court relisted 17 cases after the long conference held on September 24. That’s a big increase in raw numbers from last term, but the numbers are […]

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Relist Watch

John Elwood reviews the cases the Supreme Court relisted after the long conference.

I don’t find much to be amused about recently, so let’s just do this. The Supreme Court relisted 17 cases after the long conference held on September 24. That’s a big increase in raw numbers from last term, but the numbers are inflated because there are a few groups of cases presenting the same issues.

 This week’s cases include:

The new relists are below. For each of them, I’ve indicated the dates that the court distributed papers to the justices’ chambers for consideration as part of my pet project to see if distribution dates affect the likelihood of a grant.

In addition, two serially rescheduled (and once-relisted) capital cases are back again this term. I can’t wait to see what the court does with those. And we have one serial relist on hold waiting for a settlement to be approved.

We’ll be back next week, hopefully with a more mirthful installment. Thanks to Kevin Brooks for wading through the largest docket of the term to identify these cases.

 

New Relists

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.

(distributed June 27, 2018; relisted after the September 24 conference)

 

Kindred Nursing Centers Limited Partnership v. Wellner, 17-1318

Issue: Whether Section 2 of the Federal Arbitration Act pre-empts the Kentucky Supreme Court’s newly announced rule holding that a power of attorney authorizing the holder to enter into “contracts of every nature in relation to both real and personal property” does not encompass arbitration agreements because those agreements instead relate to rights to trial by jury and access to court.

(distributed June 13, 2018; relisted after the September 24 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.

(distributed July 18, 2018; relisted after the September 24 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.

(distributed July 18, 2018; relisted after the September 24 conference)

 

 

Manhattan Community Access Corporation v. Halleck, 17-1702

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit erred in rejecting the Supreme Court’s state-actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public-access television stations are state actors for constitutional purposes when the state has no control over the private entity’s board or operations.

(distributed September 5, 2018; relisted after the September 24 conference)

 

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. KurtzmanVan Orden v. PerryTown of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(distributed August 22, 2018; relisted after the September 24 conference)

 

Molette v. United States, 17-8368

Issue: Whether, under Johnson v. United States, the U.S. Court of Appeals for the 4th Circuit erred when it denied a certificate of appealability on a 28 U.S.C. § 2255 motion regarding the application of Johnson to the Federal Sentencing Guidelines with regard to a defendant sentenced under the pre-Booker, then-mandatory guidelines.

(distributed June 21, 2018; relisted after the September 24 conference)

 

Gipson v. United States, 17-8637

Issue: Whether defendants sentenced under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence”—prior to the Supreme Court’s decision in United States v. Booker, when judges were given no discretion—have a retroactive right to be resentenced because they were sentenced under the equivalent of a vague statute.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Wilson v. United States, 17-8746

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Greer v. United States, 17-8775

Issues: (1) Whether a vagueness challenge to the residual clause of the Federal Sentencing Guidelines asserts a violation of Johnson v. United States, such that it is timely under 28 U.S.C. § 2255(f)(3), when the residual clause was applied in a mandatory, rather than advisory, manner; and (2) whether the residual clause of the Federal Sentencing Guidelines is unconstitutionally vague when it was applied in a mandatory, rather than advisory, manner.

(distributed August 23, 2018; relisted after the September 24 conference)

 

Homrich v. United States, 17-9045

Issue: Whether petitioners who were sentenced as career offenders in accordance with the mandatory guidelines filed timely 28 U.S.C. § 2255 motions if they filed their motions within one year of Johnson v. United States.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Brown v. United States, 17-9276

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether the residual clause of the pre-Booker career offender guideline is unconstitutionally vague.

(distributed August 23, 2018; relisted after the September 24 conference)

 

Chubb v. United States, 17-9379

Issue: Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3) .

(distributed August 30, 2018; relisted after the September 24 conference)

 

Smith v. United States, 17-9400

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the mandatory career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether, in light of Johnson, the residual clause of the mandatory career offender guideline is unconstitutionally vague.

(distributed August 30, 2018; relisted after the September 24 conference)

 

John Elwood Buckner v. United States, 17-9411

Issue: Whether the U.S. Court of Appeals for the 4th Circuit incorrectly denied a certificate of appealability on the petitioner’s claim when he argued that the residual clause of the mandatory career offender guideline was void for vagueness after Johnson v. United States.

(distributed August 30, 2018; relisted after the September 24 conference)

 

Lewis v. United States, 17-9490

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(distributed September 6, 2018; relisted after the September 24 conference)

 

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(distributed August 22, 2018; relisted after the September 24 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 and October 5 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 and October 5 conferences)

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Justices officially return from summer recess, issue orders from long conference

Justices officially return from summer recess, issue orders from long conferenceThe eight justices of the Supreme Court returned to the bench today to hear oral arguments in the first cases of their new term. But before they did so, they issued an extensive (75 pages) list of orders from last Monday’s “long conference” – their first conference since their summer recess began in late June. […]

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Justices officially return from summer recess, issue orders from long conference

The eight justices of the Supreme Court returned to the bench today to hear oral arguments in the first cases of their new term. But before they did so, they issued an extensive (75 pages) list of orders from last Monday’s “long conference” – their first conference since their summer recess began in late June. The justices issued grants from the conference last Thursday. Today’s orders consisted primarily of denials of review and requests for the U.S. solicitor general to weigh in on several cases.

The justices apparently did not act on two of the highest-profile cases on the list for last week’s conference, which involve a challenge to a Latin cross, located on public land in the Washington, D.C. suburbs, commemorating soldiers who died in World War I. The U.S. Court of Appeals for the 4th Circuit ruled that the cross violates the Constitution’s establishment clause; the justices have been asked to review that ruling.

The justices asked the U.S. solicitor general to file briefs giving them the federal government’s views in eight cases, three of which involve the same issue. In Hernandez v. Mesa, the government will weigh in once again on a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the death of their 15-year-old son, Sergio Hernandez, who was shot to death while he was on the Mexican side of the border and the agent, Jesus Mesa, was on the U.S. side. The dispute has already been to the Supreme Court once: In 2017, the justices sent the case back to the lower court for it to take a new look. On remand, the U.S. Court of Appeals for the 5th Circuit ruled that the family cannot rely on a 1971 Supreme Court decision allowing a lawsuit seeking damages from federal officials for violating the Constitution to go forward.

In a trio of cases – Clearstream Banking v. Peterson, Banca UBAE v. Peterson and Bank Markazi v. Peterson – the government will provide the court with its opinion on whether the justices should once again intervene in the long-running efforts to obtain money to pay judgments against Iran for its support of terrorism. The respondents in this case are the victims (and their families) of the 1983 bombing of the U.S. Marine barracks in Beirut. A federal court awarded the victims nearly $4 billion in damages, part of which they are now trying to recover by seizing assets owed to Bank Markazi – Iran’s central bank – but held by Clearstream in Luxembourg. A federal district court ruled that the Foreign Sovereign Immunities Act, the federal law governing immunity for foreign governments and their property, barred the victims from attaching the assets. But the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the FSIA does not prohibit federal courts from ordering Clearstream to bring the assets to New York. Bank Markazi and Clearstream asked the Supreme Court to weigh in, as did Banca UBAE, an Italian bank embroiled in the dispute, which argues that the 2nd Circuit should have considered its contention that U.S. courts do not even have jurisdiction over it.

The justices asked the government to file briefs in four other cases:

  • Poarch Bank of Creek Indians v. Wilkes: Whether someone who is not a member of an Indian tribe can sue the tribe to recover for an accident or injury – here, a car accident caused by an employee of a casino owned by the tribe.
  • Atlantic Richfield Co. v. Christian: Issues arising from the Montana Supreme Court’s ruling that landowners can bring claims under state law to require companies to pay to clean up hazardous-waste sites even though the companies are already working with the federal Environmental Protection Agency to remediate the sites.
  • RPX Corp. v. ChanBond: Whether a party that asks for review of a patent has standing to appeal the U.S. Patent and Trademark Office’s final ruling on that review to the U.S. Court of Appeals for the Federal Circuit.
  • Thole v. U.S. Bank: Whether a participant in a pension plan can bring a lawsuit against the managers of the fund when the participant has not yet suffered any individual financial injury.

There is no deadline for the U.S. solicitor general to file the government’s briefs, but such briefs are often not filed for several months after the justices request them. If that holds true in these cases, it would mean that the justices likely would not ultimately decide whether to grant review until next year – at which point the court is more likely to have all nine justices.

The list of cases in which the justices denied review today spanned over 60 pages. Among the cases that the justices turned down today were:

  • Martins Beach 1 v. Surfrider Foundation: A property-rights battle involving the 89-acre private beach owned by Silicon Valley billionaire Vinod Khosla, who wants to cut off public access to the beach. A nonprofit has argued that Khosla’s efforts violate California laws regulating coastal development. A California appeals court ruled against Khosla, holding that requiring Khosla to allow public access to the beach was not an unconstitutional “taking” of Khosla’s property, for which he should be compensated, because the access requirement was not necessarily permanent.
  • Davis v. Mississippi: A follow-up to the Supreme Court’s 2012 ruling that a mandatory sentence of life without parole for juveniles convicted of murder violates the Eighth Amendment’s ban on cruel and unusual punishment and its 2016 ruling that life without parole is appropriate only “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” In this case, a Mississippi inmate who was convicted of a murder that he committed at the age of 16 had asked the justices to rule on two issues relating to the constitutionality of life without parole: first, whether the Constitution allows a sentence of life without parole without a finding that the juvenile is permanently incorrigible; and, second and more broadly, whether the Eighth Amendment bars a sentence of life without parole for juvenile offenders.
  • Garvin v. New York: In a case stemming from an arrest and conviction for a series of bank robberies, the defendant had asked the justices to consider two questions: (1) whether police officers violated the Fourth Amendment when they arrested him inside his apartment without either a warrant or an emergency; and (2) whether New York’s persistent-felony-offender scheme is unconstitutional under the Supreme Court’s ruling in Apprendi v. New Jersey, which held that juries – rather than judges – must find, beyond a reasonable doubt, any facts that increase a sentence beyond the statutory maximum.

The justices will meet again for their next conference on Friday, October 5.

This post was originally published at Howe on the Court. Some of the content in this post also appeared in earlier posts, in slightly different forms, at Howe on the Court.

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