Mission Creep Watch

John Elwood reviews Monday’s relists, as well as some released holds.

Because of the demands of my day job, I’m a little late with this installment. But what this post lacks in timeliness it more than makes up for in sheer tediousness.

There were no new relists last week, so I hope you didn’t come here looking for success stories about last week’s bunch. And the two serial relists, Andrus v. Texas, 18-9674, and United States v. California, 19-532, seem to be returning on an endless loop. But that means we can jump right in with this week’s new relists. There were five, but only two of them appear to be serious contenders for plenary review.

First up is CIC Services, LLC v. Internal Revenue Service, 19-930. All the eyes that are already at half-mast with the first mention of the IRS will snap completely shut when I say that this case involves the Anti-Injunction Act. But as the eight (!) amicus briefs supporting the petition here will attest, this is actually a pretty juicy case involving how far people can go with pre-enforcement review of administrative action (and how far the government can go with invoking the Anti-Injunction Act to avoid it).

The Anti-Injunction Act provides that, generally speaking, “no suit for the purpose of restraining the assessment or collection of any [federal] tax shall be maintained in any court by any person.” Essentially, the AIA prohibits challenges to a tax before the tax has been collected, so usually, a person challenging an assessment must pay the tax before proceeding. In 2016, the IRS issued a notice that required taxpayers to report certain transactions that purported to be insurance, but that the IRS contended did not actually actually involve insurance. The notice provided that noncompliance with the reporting and recordkeeping requirements could subject taxpayers to penalties, which it deemed “taxes.” CIC Services, an adviser to taxpayers engaging in such transactions, brought suit challenging the IRS notice, arguing it was a legislative rule that could only be issued through notice-and-comment rulemaking, which had not occurred.

The IRS successfully moved to dismiss the suit, arguing it was barred by the Anti-Injunction Act. The district court concluded that it “necessarily operate[d] as a challenge to both the reporting requirement and the penalty or tax imposed for failure to comply with the reporting requirement.” By a 2-1 vote, the U.S. Court of Appeals for the 6th Circuit affirmed. The court then denied rehearing en banc. Judge Amul Thapar dissented, joined by Judges Raymond Kethledge, John Bush, Joan Larsen, John Nalbandian, Chad Readler and Eric Murphy. Judge Jeffrey Sutton issued an opinion concurring in the denial of rehearing to note that the dissent seemed correct as an original matter and that “[t]he key complexity in this case — how to interpret Supreme Court decisions interpreting the [Anti-Injunction Act] — poses fewer difficulties for the Supreme Court than it does for us.” There are enough skeptics of the administrative state on the Supreme Court that it reveals nothing to say that this case is getting a close look. It may be for the IRS what Sackett v. Environmental Protection Agency was for the EPA.

The second new relist is Wexford Health v. Garrett, 19-867. The Prison Litigation Reform Act provides: “No action shall be brought with respect to prison conditions … by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Kareem Garrett, then a prisoner, sued prison officials and medical staff for allegedly violating his civil rights. He was later released. The U.S. Court of Appeals for the 3rd Circuit held that prisoners who are released from custody while the suit is pending and then file an amended complaint need not exhaust administrative remedies. In that court’s view, the prisoner’s “change in status” during the lawsuit from prisoner to nonprisoner “operates to cure the original … failure to exhaust administrative remedies.” Wexford Health, the correctional health care provider to the prison in which Garrett had been held, seeks to revisit that conclusion. 

The court also relisted three other cases. All appear to be cases involving the constitutionality of nonunanimous criminal juries. The court decided last week in Ramos v. Louisiana that the Constitution requires state criminal juries to be unanimous. The court disposed of most of the cases raising such claims on Monday. My best guess is that these three cases involve record questions that the court needs more time to study. We should know on Monday.

That’s all the relists for this week. At the risk of mission creep, I’ll point out that the most intriguing cases this week may not be among the relists, but among a little-discussed category of cases we call “released holds” — petitions held for cases the Supreme Court has granted for plenary review until the merits case has been decided. This week, the court denied as moot the closely watched Second Amendment case New York State Rifle & Pistol Association v. City of New York, New York. Justice Brett Kavanaugh wrote a brief opinion concurring in the dismissal to note that he shared the concerns of dissenting justices that the lower courts were misapplying the court’s Second Amendment precedents. He wrote that “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” The court has released 10 Second Amendment cases it has been holding for the New York case. It will consider all of the former holds at this week’s conference. They’re described here. Happy reading!

New Relists 

Le v. Louisiana, 18-8776
Issues: (1) Whether reasonable jurists would determine that Tam Le was convicted by a nonunanimous jury in violation of his rights under the Fifth, Sixth and 14th Amendments; and (2) whether reasonable jurists would debate that Le was denied a fair and impartial trial because of the submission of testimony from expert witnesses that failed to meet the Daubert standard, in violation of the Sixth and 14th Amendments.
(relisted after the April 24 conference) 

Hall v. Myrick, 18-9297
Issue: Whether a court can disregard record evidence of the prevailing professional norms in assessing the reasonableness of counsel’s action or inaction under the Sixth Amendment.
(relisted after the April 24 conference)

Wexford Health v. Garrett, 19-867
Issue: Whether, if a prisoner fails to exhaust administrative remedies before filing a lawsuit, Section 1997e(a) of the Prison Litigation Reform Act mandates dismissal of the unexhausted claims, or the prisoner may cure his failure to exhaust by filing an amended complaint after his release from prison.
(relisted after the April 24 conference)

CIC Services, LLC v. Internal Revenue Service, 19-930
Issue: Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.
(relisted after the April 24 conference)

Edwards v. Vannoy, 19-5807
Whether Louisiana’s nonunanimous jury requirement for crimes requiring life sentences violates the Sixth and 14th Amendments.
(relisted after the April 24 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17 and April 24 conferences)

United States v. California, 19-532
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17 and April 24 conferences)