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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