RELIST WATCH

The constitutionality of wealth taxes; plus, educational benefits for veterans

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.

The Supreme Court will be considering a whopping 191 petitions and applications at this week’s conference. It will be considering only two of them for the second time.

This week’s conference is a noteworthy one: it’s the last regularly scheduled conference of October Term 2022. But if the court’s past practice is any indication, it won’t be the very last conference of the term. For many years, before the justices leave town, they hold one last impromptu conference to dispose of all the cases still hanging around after their last scheduled conference, which usually means the unresolved relists. In recent years, that mop-up conference has overwhelmingly happened on the last Monday of June; the resulting order list is usually released the following day.

The two new relists this week involve very disparate subject matter. Under Article I of the Constitution as originally ratified, Congress could only levy “direct taxes” if such taxes were “apportioned among the several States,” meaning in proportion to their populations. The 16th Amendment was added to provide a limited exception to the apportionment requirement; under it, “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” In the 2017 Tax Cuts and Jobs Act, Congress enacted a one-time “mandatory repatriation tax” in an effort to obtain tax revenue from large earnings that corporations held abroad. The MRT classifies a U.S.-taxpayer-controlled foreign corporation’s “accumulated post-1986 deferred foreign income” as part of the corporation’s taxable income during 2017. And under the MRT, U.S. shareholders owning 10% or more of such a foreign corporation could be required to pay a one-time tax due to their obligation to “include in [their 2017] gross income” their “pro rata share” of the CFC’s relevant “income for such year.” Essentially, the tax requires 10% shareholders to pay a tax on their share of the corporation’s retained earnings even though that money has not been distributed to them.

Charles and Kathleen Moore own a 13% stake in an Indian corporation formed to supply affordable equipment to small farmers in poor regions of India. The corporation has earned profits every year, but in keeping with its founders’ vision, it has reinvested its earnings into expanding the business instead of distributing dividends to its shareholders. In 2018, the Moores learned that under the 2017 law, they had to pay a one-time tax for their share of the company’s lifetime earnings in the amount of $14,729. This surprised the Moores, who had never received any dividends from the company and lacked the authority to compel a dividend payment.

The Moores paid the tax and sued the government, asserting that the MRT is unconstitutional because it imposes a direct tax that is not apportioned, rather than a permissible income tax. The district court granted the government’s motion to dismiss, holding that the MRT is a “taxation of income” falling within Congress’s power under the 16th Amendment.

The U.S. Court of Appeals for the 9th Circuit affirmed, holding that “the Supreme Court has made clear that realization of income is not a constitutional requirement.” The court of appeals denied the Moores’ petition for panel rehearing and rehearing en banc. Judge Patrick Bumatay dissented from the denial of rehearing en banc, in an opinion joined by three other judges. He would have read a “realization requirement” into the 16th Amendment.

The Moores now seek review, saying that the 9th Circuit’s decision “shatters what had been an unbroken judicial consensus dating back to Eisner v. Macomber that the 16th Amendment’s exemption from apportionment is limited to taxes on realized gains.” The Moores note that the issue is directly relevant to the constitutionality of a wealth tax that some in Congress have been advocating in recent years.

Rudisill v. McDonough involves the entitlement of veterans to educational benefits under two statutes: the Montgomery G.I. Bill and the Post-9/11 G.I. Bill. The Montgomery G.I. Bill (named for its sponsor, Rep. Sonny Montgomery) was enacted in 1984 and provides benefits to veterans who have served on active duty between 1985 and 2030. The Post-9/11 G.I. Bill was enacted in 2008 and provides benefits to veterans who have served on active duty since September 11, 2001. Each statute caps the education benefits that a veteran may earn under that statute at 36 months (the equivalent of a four-year college degree: nine months per academic year for four years). There are also statutes that govern the interaction of the two provisions – for example, limiting a veteran to 48 total months of education benefits under a combination of various federal programs.

At issue in this case is a provision, 38 U.S.C. § 3327(a)(1)(A), that applies to veterans who have used some but not all of their Montgomery benefits. Such a veteran may elect to receive benefits under the Post-9/11 program, if he otherwise satisfies that program’s eligibility requirements. But a veteran who makes such an election becomes subject to a “limitation on entitlement”: “the number of months of [Post-9/11 benefits]” is limited to “the number of months of unused [Montgomery benefits].” The question presented is whether that provision limits the benefits available to petitioner James Rudisill – essentially limiting him to a maximum of 36 months of benefits — or whether that limitation does not apply to veterans like him who have at least two distinct periods of qualifying service.

Rudisill served in the military three times: 2000-2002, 2004-2005, and 2007-2011. His first period of military service earned him 36 months of Montgomery benefits. Roughly around the time of his second period of military service, Rudisill used about 25½ months of those benefits to pursue a college degree, leaving him with about 10½ months of Montgomery benefits. After his third period of service ended, he sought a graduate degree at divinity school. Instead of using his remaining Montgomery benefits, he elected to receive benefits under the Post-9/11 program. In filling out his application, he acknowledged language saying he would be limited to “the number of months remaining under” the Montgomery program.

Rudisill sought a total of 48 months of benefits. The Board of Veterans’ Appeals denied his appeal, holding that he was not entitled to additional benefits beyond the 36 months allowed by the Montgomery program. A divided panel of the Court of Appeals for Veterans Claims reversed, holding that the Section 3327(d)(2)(A) limitation applies only to veterans who qualified for both the Montgomery and Post-9/11 programs based on a single period of service, and did not apply to veterans with multiple periods of service. A divided panel of the U.S. Court of Appeals for the Federal Circuit affirmed using the same rationale. Judge Timothy Dyk dissented, arguing that nothing in the statute “remotely justifies” the majority’s conclusion. Then the en banc Federal Circuit reversed, holding by a 10-2 vote that “[b]y its plain language, § 3327(d)(2) applies to Rudisill” and was not exempt from the limitation because he had several periods of service.

Rudisill now seeks review, arguing that the Court of Appeals for Veterans Claims and the Federal Circuit panel got it right, and that the limitation of Section 3327(d)(2) does not apply to veterans with multiple periods of service. He argues that although there cannot be any split (because the Federal Circuit has exclusive appellate jurisdiction over them), the issue is important and affects over one million veterans. Rudisill is supported by four friend-of-the-court briefs – including one filed by the Commonwealth of Virginia and supported by 32 other states and the District of Columbia. The government argues that the decision below is correct and “th[e] question arises far less often than [Rudisill] suggests.” But its attempts to play down the significance of the case are undercut by the fact that the government thought the issue was important enough to petition for en banc review.

That’s all for this week – and almost all for this term. If luck holds, we have only one more post standing between us and the summer recess. See you next time!

New Relists

Moore v. United States, 22-800
Issue: Whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states.
(relisted after the June 15 conference)

Rudisill v. McDonough, 22-888
Issue: Whether a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill and the Post-9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.
(relisted after the June 15 conference) 

Returning Relists

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Dec. 2, Dec. 9, Jan. 6 and May 11 conferences)

Luczak v. United States, 21-8190
Issue: Whether the Supreme Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13, May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; and (2) whether it violated the due process clause of the Fifth Amendment for the district court to sentence Gary Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Jan 6 and May 11 conferences)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; and (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Jan 6 and May 11 conferences)

Harness v. Watson, 22-412
Issue: Whether any amendment to a law originally adopted for an impermissible racially discriminatory purpose, no matter how minor the amendment and no matter the historical context, cleanses the law of its racist origins for 14th Amendment purposes unless the party challenging the law can prove that the amendment itself was motivated by racial discrimination.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Feb. 17, Feb. 24, Mar. 3, Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28 and May 11 conferences)

Ross v. United States, 22-5993
Issue: Whether a judge denies a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Mar. 31 and May 11 conferences)

Cain v. United States, 22-6212
Issue: Whether either the jury trial right contained in the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence based on conduct that a jury’s verdict rejected.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Sanchez v. United States, 22-6386
Issue: Whether the use of acquitted conduct to determine a defendant’s sentence violates the Fifth and Sixth Amendments.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Apr. 21 and May 11 conferences) 

Martin v. United States, 22-6736
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the May 11 conference)

Merry v. United States, 22-6815
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing (enhancing) a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences) 

Beachem v. United States, 22-6838
Issues: (1) Whether a court can take into account acquitted, dismissed, or uncharged conduct, of which no jury ever found petitioner guilty of and which he never admitted; and (2) whether a court can enforce an appeal waiver provision when enforcement would result in a miscarriage of justice.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Mar. 17 and May 11 conferences)

Little v. United States, 22-6940
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentencing on uncharged conduct which was never admitted by the defendant nor proven to a jury beyond a reasonable doubt and which was only found by the sentencing court to be proven by a preponderance of the evidence.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Jenkins v. United States, 22-7148
Issues: (1) Whether the district court erred in not appointing new counsel; and (2) whether the district court violated the Fifth and Sixth Amendments by basing its drug weight calculations on acquitted conduct.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Apr. 21 and May 11 conferences)

Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP, 22-914
Issue: Whether a federal court may assume “hypothetical” subject matter jurisdiction to reach a decision on issues of state law against the party challenging the court’s jurisdiction, when the very issue presented on appeal is that of federal subject matter jurisdiction.
(relisted after the May 25, June 1, June 8 and June 15 conferences)

Clark v. Mississippi, 22-6057
Issues: (1) Whether Mississippi continues in the present case to erroneously misapply Batson v. Kentucky by considering the prosecutor’s purported justifications for striking seven of the eight African American prospective jurors presented to it “in isolation,” rather than, as this Court directed it to do in Flowers v. Mississippi, considering those strikes “in the context of all the facts and circumstances” that this Court has recognized as relevant to that determination; (2) Whether, by upholding these strikes in part on the basis of reasons not articulated by the prosecutor in the trial court the Mississippi Supreme Court has adopted from the Fifth Circuit an erroneous interpretation of Batson that conflicts with not only this Court’s clearly established precedent, but also with decisions of other federal circuit courts of appeal and other state courts of last resort.
(relisted after the June 1, June 8 and June 15 conferences; rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11, May 18, May 25, and June 1 conferences)

Olhausen v. Arriva Medical, LLC, 22-374
Issue: Whether a False Claims Act defendant alleged to have “knowingly” violated a provision of federal law can escape liability by articulating, after the fact, an objectively reasonable interpretation of the provision under which its conduct would have been lawful.
(relisted after the June 8 and June 15 conferences)

U.S. ex rel. Sheldon v. Allergan Sales, LLC, 22-593
Issue: Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act.
(relisted after the June 8 and June 15 conferences)

Kincaid v. Williams, 22-633
Issue: Whether the diagnosis of gender dysphoria, found in the Diagnostic and Statistical Manual of Mental Health Disorders — Fifth Edition, is excluded from the Americans with Disabilities Act’s definition of disability under 42 U.S.C. § 12211(b).
(relisted after the June 8 and June 15 conference; rescheduled before the May 11, May 18, May 25, and June 1 conferences)