RELIST WATCH

Whether “bump stocks” are “machineguns,” and a very specific arbitration issue

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 did not grant review in any new cases since our last installment. The court did, however, deny review in one case that had been relisted three times – King v. Brownback, involving whether the Federal Tort Claims Act’s “judgment bar,” which bars any claim based on the same subject matter as a dismissed FTCA case, applies when both the actions were originally brought together. Justice Sonia Sotomayor filed a brief opinion respecting the denial of certiorari, emphasizing that the Supreme Court had squarely reserved that issue when deciding that same case during an earlier trip to the Supreme Court. She wrote that “[i]n an appropriate future case, this Court should decide this issue.” But remarkably, eight other relisted cases still remain from the court’s end-of-summer long conference more than a month later.

This Friday’s conference is a small one – the court is considering just 80 petitions and applications. The court will be considering four of them for a second time.

Three of them – Garland v. Cargill, Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives and Garland v. Hardin – concern the same issue: Whether “bump stocks,” a device that harnesses a rifle’s recoil to enable it to fire continuously after the trigger is pulled, are a “machinegun,” the possession and sale of which are generally prohibited by the National Firearms Act. (The term is defined to include both weapons that are designed to shoot more than one shot by a single function of the trigger and “any part designed and intended” to convert a weapon into a machinegun.) In 2017, a gunman opened fire on a music festival in Las Vegas using semi-automatic rifles equipped with “bump-stock” devices, killing 60 people and wounding 500 more. In the wake of the shooting, the Bureau of Alcohol, Tobacco, Firearms, and Explosives issued an interpretive rule concluding that bump stocks are machineguns. ATF then rescinded prior administrative letters it had issued in response to inquiries opining that certain bump stocks were not machineguns.

The three petitions all stem from challenges brought by bump-stock owners to the regulation. In Guedes, the U.S. Court of Appeals for the D.C. Circuit upheld the regulation, holding that “the disputed rule is consistent with the best interpretation of ‘machine gun’ under the governing statutes.” In Cargill, the en banc U.S. Court of Appeals for the 5th Circuit invalidated the regulation, concluding that “a bump stock is excluded from the technical definition of ‘machinegun,’” and even if the statute were ambiguous, the rule of lenity would not permit prohibitions on bump-stock possession. In Hardin, the U.S. Court of Appeals for the 6th Circuit held that “[t]he question is a close one on which reasonable jurists have disagreed,” but “the rule of lenity that is applicable to criminal offenses requires us to rule in favor of” the bump-stock owner. Finally, in a case that is not now before the court, the U.S. Court of Appeals for the 10th Circuit held that the issue was ambiguous and so the ATF rule was entitled to Chevron deference. The court granted rehearing en banc, but later vacated the order as improvidently granted over the dissents of five judges.

The government seeks review in Cargill, which it says provides the best vehicle of the three. The bump-stock owners in both Cargill and Hardin agree that review should be granted. The government argues that Guedes isn’t as good a vehicle as Cargill, but obviously agrees the issue is cert worthy. I don’t think I’m going out on a limb here saying that it seems likely that the court will take one of these cases.

But wait—there’s more! Our fourth new relist, Coinbase, Inc. v. Suski, is on its second trip to the Supreme Court: Just a few months ago in Coinbase, Inc. v. Bielski, the court held that a district court must stay its proceedings while a party seeking arbitration is taking an interlocutory appeal of the district court’s denial of a motion to compel arbitration. Suski involves the interlocutory appeal referenced in the earlier decision. Here is the question the appeal presents: When the arbitration agreement contains a delegation clause that tasks the arbitrator with making the threshold decision about whether a dispute is the subject of arbitration, should an arbitrator or a court decide whether the arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation? Coinbase asserts that this situation arises frequently, and it argues that the circuits are divided: While the U.S. Court of Appeals for the 9th Circuit holds that courts make that decision, the U.S. Courts of Appeals for the 1st and 5th Circuit (as well as the Alabama Supreme Court) compel arbitration so that the arbitrator can decide whether the second agreement narrowed the arbitration agreement.

David Suski, whose underlying dispute involves a promotion Coinbase ran for the cryptocurrency “Dogecoin,” opposes review, arguing that there’s no real split and that this case is a bad vehicle anyway because there’s the antecedent question whether Coinbase’s user agreements are even “contracts evidencing a transaction” that are subject to the Federal Arbitration Act. Suski notes that he supported review in Bielski, in which he was also a respondent, but he says review is unwarranted here.

We’ll know what the court thinks soon. Until next time, stay safe!

New Relists

Garland v. Cargill, 22-976
Issue: Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”
(rescheduled before the Oct. 6 conference; relisted after the Oct. 27 conference)

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 22-1222
Issues: (1) Whether the definition of “machinegun” in 26 U.S.C. § 5845(b) includes non-mechanical bump stocks; and (2) if the definition of “machinegun” in Section 5845(b) is ambiguous, whether that ambiguity should be construed against the government.
(relisted after the Oct. 27 conference)

Coinbase, Inc. v. Suski, 23-3
Issue: Whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.
(relisted after the Oct. 27 conference)

Garland v. Hardin, 23-62
Issue: Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”
(relisted after the Oct. 27 conference)

Returning Relists

Johnson v. Prentice, 22-693
Issue: Whether punitively depriving a prisoner in solitary confinement of virtually all exercise for three years notwithstanding the absence of a security justification violates the Eighth Amendment, or whether such a denial only violates the Eighth Amendment if it is imposed in response to an “utterly trivial infraction.”
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

E.I. du Pont de Nemours & Co. v. Abbott, 23-13
Issue: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in a multi-district litigation.
(relisted after the Sept. 26, Oct. 6, Oct. 13 and Oct 27 conferences)

Payne v. Biden, 22-1225
Issues: (1) Whether the judgment below should be vacated and the case remanded for dismissal as moot under United States v. Munsingwear, Inc; and (2) alternatively, whether the judgment below should be vacated and the case remanded for further consideration in light of Axon Enterprise v. Federal Trade Commission.
(relisted after the Oct. 6, Oct. 13 and Oct 27 conferences)

Biden v. Feds for Medical Freedom, 23-60
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its order granting a preliminary injunction as moot.
(rescheduled before the Sept. 26 conference; relisted after the Oct. 6, Oct. 13 and Oct 27 conferences)

Stirling v. Stokes, 22-1234
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit defied this court’s remand instruction and circumvented 28 U.S.C. § 2254(e)(2)’s limitations on federal-court authority by finding forfeiture based on the state not having offered the statutory argument as an alternative ground to deny relief on the claim when the state was defending on appeal the district court’s sole finding of default; and (2) whether, if the state did forfeit its argument, the 4th Circuit erred in granting relief on a defaulted ineffective-assistance-of-trial-counsel claim by violating basic principles of Strickland v. Washington that require reviewing courts to afford deference to reasonable strategy and that the whole of the evidence be considered in a prejudice analysis.
(relisted after the Oct. 6, Oct. 13 and Oct 27 conferences)