RELIST WATCH

Vaccine requirements, cancer claims, and circuit splits

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. 

As October Term 2021 winds to a close, the Supreme Court is holding its penultimate scheduled conference this week. The justices are taking an especially close look at four cases — this week’s newly relisted cases.

First up is Dr. A v. Hochul, involving New York State’s mandate that health care workers must have received a COVID-19 vaccination to remain on the job. The mandate does not contain a religious exemption, but the state does allow health care employees to keep working if they are unvaccinated for medical reasons. A group of anonymous health care workers argue that the differential treatment of the two groups violates the free exercise clause of the First Amendment. The petitioners also ask the court to overrule Employment Division v. Smith, which holds that laws of general applicability that burden religious exercise are not subject to strict scrutiny. (The court faced but did not decide the issue of whether to overrule Smith in Fulton v. City of Philadelphia, Pennsylvania; a similar question was presented in 303 Creative LLC v. Elenis, but when the court granted review in that case, it revised the question presented to avoid that issue.) In December, the court denied the petitioners’ request for an emergency order to block the mandate from taking effect, over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. The court has rescheduled this case six times since April; it now seems poised to finally decide whether to take the case before going into recess for the summer.

If the number of calls I’ve received from hedge fund managers is any indication, Monsanto Company v. Hardeman is being closely watched by the financial markets because of its potential effect on Monsanto’s popular herbicide, “Roundup.” Petitioner Edwin Hardeman was diagnosed with cancer in 2015. He had used Roundup for over 30 years, and argued it caused his cancer. A federal district court awarded Hardeman $25 million after a jury concluded that Monsanto had violated California law by not warning him that Roundup could cause cancer. Both the district court and the U.S. Court of Appeals for the 9th Circuit rejected Monsanto’s argument that it could not have violated California’s duty to warn because the Environmental Protection Agency had concluded under the labeling provisions of the Federal Insecticide, Fungicide and Rodenticide Act that the herbicide did not pose “any unreasonable risk to man or the environment.” Monsanto had argued that FIFRA labeling provisions preempted state tort causes of action for failure to warn. In its cert petition, Monsanto seeks to revisit that determination; it also presents an evidentiary question.

Before the 9th Circuit, the Trump administration’s Justice Department submitted an amicus brief arguing that FIFRA preempts all health-related state pesticide labeling requirements that differ from EPA-approved labeling. The Supreme Court called for the views of the solicitor general. In its brief, the government said that “the United States has reexamined the arguments it made below” “[i]n light of the court of appeals’ decision below and the change in Administration.” The government now believes the 9th Circuit’s decision is correct and is consistent with other courts, and therefore the petition should be denied. The court is sometimes skeptical when the government switches position because of a change in administration. There’s a good chance we’ll know Tuesday whether the justices are persuaded by the government’s current view.

That brings us to Perez v. Sturgis Public Schools. The Individuals with Disabilities Education Act is a federal law that requires public school districts to make available a free appropriate public education to eligible children with disabilities and ensures special education and related services to those children. The provision establishes procedures to be followed in determining what services a child requires, and creates a right to bring a civil action in court to enforce its provisions. The act also specifies that it should not be construed to limit the rights and remedies students have under the federal constitution and various anti-discrimination statutes, so long as would be-plaintiffs exhaust the IDEA’s administrative procedures if their non-IDEA suit “seek[s] relief that is also available under [the IDEA].”

Petitioner Miguel Luna Perez was a student in the Sturgis, Michigan, public school district. Sturgis failed to provide Miguel with a qualified sign language interpreter for 12 years, interfering with his ability to learn and communicate with others. Perez pursued remedies under both the Americans with Disabilities Act and IDEA. After the IDEA hearing officer dismissed Perez’s ADA claim for lack of jurisdiction, the parties settled his IDEA claim in full. Perez then sued under the ADA to obtain money damages for past harm, which the IDEA did not provide for. The district court dismissed Perez’s ADA lawsuit for failure to exhaust, and the U.S. Court of Appeals for the 6th Circuit affirmed. Before the Supreme Court, Perez argues that the 6th Circuit created a circuit split by holding that IDEA’s exhaustion requirement is not subject to a futility exception, and that the court also erred by holding that the exhaustion requirement applies even though money damages are not available under the IDEA.

The final new relist is Bittner v. United States. Under the Bank Secrecy Act, Congress instructed the Treasury secretary to “require a resident or citizen of the United States … to keep records, file reports, or keep records and file reports, when the … person makes a transaction or maintains a relation for any person with a foreign financial agency.” The secretary’s corresponding regulations require the filing of a single annual report by anyone with an aggregate balance over $10,000 in foreign accounts. The act authorizes a $10,000 maximum penalty for any non-willful violation of the recordkeeping and report-filing provision.

Alexandru Bittner is a Romanian who immigrated to the United States and became a citizen (while retaining Romanian citizenship), working his way up from dishwasher to becoming a very wealthy businessman who maintained 25 foreign bank accounts. While living in Romania, he was unaware of his obligation to file reports about his foreign bank accounts. The government sued to recover penalties for Bittner’s failure to file forms each year disclosing his foreign bank accounts.  The government maintained that each unreported bank account was its own “violation” each year. By contrast, Bittner maintained that the “violation” was failure to file the report, regardless of how many bank accounts were on it. The U.S. Court of Appeals for the 5th Circuit agreed with the government. Bittner notes that the U.S. Court of Appeals for the 9th Circuit agrees with his reading, creating a circuit split.

Somewhat unusually, the government as respondent agrees with Bittner that the court should take the case, writing that “[t]he question presented is important and will often recur, and this case would be an appropriate vehicle in which to address it.” So this case seems to stand a pretty good chance of review.

I normally begin posts by discussing the disposition of past relists. But since there were no grants this week, I was reluctant to begin with what would feel like an anticlimax. So I’m ending this post by noting that one much-rescheduled and -relisted case left us this week: Andrus v. Texas, a habeas case involving a death-row defendant.

During an earlier trip to the Supreme Court, Andrus’ case was relisted a whopping 20 times before the court summarily reversed, ruling in an unsigned opinion that Andrus had demonstrated that his lawyer provided constitutionally ineffective performance at his capital sentencing proceeding by failing to investigate or introduce mitigating evidence. But on remand, the Texas court ruled that the inadequate counsel had not prejudiced Andrus. When Andrus sought review of that decision, the Supreme Court rescheduled Andrus’ petition six times and relisted it nine times. But at the end of all that, the court simply denied review. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan, saying that “the Texas’ courts’ opinion was irreconcilable with this Court’s prior decision” and Andrus’ case “cries out for intervention.” The three justices wrote that they would have summarily reversed a second time.

That’s all for this week. Until next time, stay safe!

New Relists

Monsanto Company v. Hardeman, 21-241
Issues: (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency’s approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s standard for admitting expert testimony — which departs from other circuits’ standards — is inconsistent with the Supreme Court’s precedent and Federal Rule of Evidence 702. CVSG: 5/10/2022.
(relisted after the June 9 conference)

Perez v. Sturgis Public Schools, 21-887
Issues: (1) Whether, and in what circumstances, courts should excuse further exhaustion of the Individuals with Disabilities Education Act’s administrative proceedings under Section 1415(l) when such proceedings would be futile; and (2) whether Section 1415(l) requires exhaustion of a non-IDEA claim seeking money damages that are not available under the IDEA.
(relisted after the June 9 conference)

Dr. A v. Hochul, 21-1143
Issues: (1) Whether an administrative rule that targets and forbids religious conduct, while permitting otherwise identical secular conduct, is permissible under the free exercise clause; and (2) whether Employment Division v. Smith should be overruled.
(rescheduled before the April 22, April 29, May 12, May 19, May 26 and June 1 conferences; relisted after the June 9 conference)

Bittner v. United States, 21-1195
Issue: Whether a “violation” under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.
(relisted after the June 9 conference)

Returning Relists

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29, May 12, May 19, May 26, June 2 and June 9 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967 
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29, May 12, May 19, May 26, June 2 and June 9 conferences)

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12, May 19, May 26, June 2 and June 9 conferences)

Shoop v. Cassano, 21-679 
Issues: (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review; and (3) whether Cassano clearly and timely requested self-representation.
(rescheduled before the Mar. 4, Mar. 18, Mar. 25, April 1, April 14, April 22, April 29 and May 12 conferences; relisted after the May 19, May 26, June 2 and June 9 conferences)

United States ex rel. Polansky v. Executive Health Resources, Inc., 21-1052
Issue: Whether the government has authority to dismiss a False Claims Act suit after initially declining to proceed with the action, and what standard applies if the government has that authority.
(relisted after the June 2 and June 9 conferences)

Canales v. Lumpkin, 20-7065
Issues: (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.
(relisted after the June 2 and June 9 conferences)