Relist Watch
on Nov 14, 2018 at 3:22 pm
John Elwood reviews Tuesday’s relists, er, relist.
For the longest time, to be called “national,” a thing had to be either really good or really bad. A trip through the alphabet reminds us of such noteworthy things as the national anthem, the National Book Award, National Car Rental, a national disgrace, the National Enquirer, the National Football League, National Geographic, a national holiday, the NIH, the National Journal, the National Mall, national news, NPR, the National Review, national security, the NTSB, national university, National Velvet, the National Weather Service and the National Zoo. Even the hard letters yield things you can get behind: national kissing day, National O-style guitars, the national quiz bowl, the national youth leadership forum and perhaps the best of all – the national xenopus resource.
But beginning this week, the newly invented name for an unloved neighborhood of a gently mocked suburb of a widely despised city will, for the foreseeable future, be the top Google result you will find when you search for “national l” – National Landing.
Hard as it is to believe, the arrival of Amazon on the outskirts of the national capital has overshadowed the second-biggest story in the national headlines about D.C. this week: the disposition of last week’s seven relists. As suspected, Justice Sonia Sotomayor was unable to persuade the court to grant review in the cases, involving application of harmless error to Florida’s since-invalidated capital-sentencing scheme, which used advisory juries to make a recommendation to the trial judges who would actually decide whether to impose a sentence of death. Instead, Sotomayor filed her fifth opinion dissenting from denial of certiorari on the issue.
This week, the Supreme Court added just one new relisted case, Cochise Consultancy v. United States, ex rel. Hunt, 18-315, involving that font of litigation, the False Claims Act. Under the FCA, a private citizen, known as a “relator,” can bring an action in the name of the United States to recover funds a party allegedly has fraudulently obtained from the government. Such suits are called “qui tam” actions, Latin for “I don’t know what I’m saying.” OK, I’ve consulted my notes and it appears that technically, that is completely false. Turns out it’s short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur” – roughly, “who sues in this matter for the king as well as for himself.” The government has a right to intervene, but if it chooses not to, the relator can continue to prosecute the case alone (unless the government takes the relatively rare step of terminating the suit).
The FCA provides that a civil action ordinarily “may not be brought more than 6 years after the date” of the alleged violation. But the statute also provides for a “discovery” exception that is coupled with a statute of repose: An FCA civil action “may not be brought more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by an official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date” of the alleged violation. Cochise Consultancy presents the question whether a relator can take advantage of that “discovery” exception in a case in which the government has not intervened. The odds of a grant seem pretty high because the relator agrees that there is a circuit split and the issue is important. I suppose that alternatively, the justices could call for the views of the U.S. solicitor general, but they’ve already CVSGd in one other FCA case this year. So perhaps we’ll get an outright grant.
That’s all we have for this week. Thanks again to Ben Moss for compiling the relists.
New Relist
Cochise Consultancy v. United States, ex rel. Hunt, 18-315
Issue: Whether a relator in a False Claims Act qui tam action may rely on the statute of limitations in 31 U.S.C. § 3731(b)(2) in a suit in which the United States has declined to intervene and, if so, whether the relator constitutes an “official of the United States” for purposes of Section 3731(b)(2).
(relisted after the November 9 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)
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, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)
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, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)
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, October 5, October 12, October 26, November 2 and November 9 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, October 5, October 12, October 26, November 2 and November 9 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, October 5, October 12, October 26, November 2 and November 9 conferences)
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, October 12, October 26, November 2 and November 9 conferences)
Kennedy v. Bremerton School District, 18-12
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.
Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
(relisted after the October 12, October 26, November 2 and November 9 conferences)
Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.
(relisted after the October 26, November 2 and November 9 conferences)
City of Escondido, California, v. Emmons, 17-1660
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.
(relisted after the October 26, November 2 and November 9 conferences)
Issue: Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood-alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.
(relisted after the October 26, November 2 and November 9 conferences)
