Relist Watch

John Elwood reviews first Monday’s relists.

The beginning of October Term 2019 finds the Supreme Court once again mired in controversy about basic workplace protections. While the world may be losing its collective mind about important issues, I get to focus on the calming mundanity of compiling relists for the ninth straight term — beginning in such a distant past that I hyphenated the then-unfamiliar term “Re-list.”

We have a dozen relists out of the long conference — down from last year’s 17 relists, but twice the modest number from that conference during October Term 2017. The high number of relists may have something to do with the low number of grants out of the long conference — just five, consolidated into three arguments. On that note: Once again this year I will be subjecting you to my version of phrenology, namely the pseudo-science of tracking the distribution dates of the successful cases from the long conference. Two years ago I postulated, based on three terms’ statistics, that successful petitions were disproportionately distributed later in the summer, which I grandiosely called (using a phrase that already has another meaning) “The September Effect.” Although last term’s long-conference grants didn’t cooperate, this year’s sure did: All five grants were distributed during the second week of September. And as you’ll see below, the long-conference relists this year (unlike last term’s) also tended to be distributed later — the sole June or early July distribution had been previously distributed in April.

Because of the large number of relists, and the press of paying work, my case summaries will be fairly, well, summary. We begin with something it seems odd to have this early in a brand-new term: returning relists. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-1019, involving whether a state may constitutionally require an ultrasound as part of informed consent at least 18 hours before an abortion, was relisted three times last spring and is back to clock its fourth relist.

The second returning case will be familiar to Supreme Court-watchers: Gundy v. United States, 17-6086, in which the court decided last term (by a splintered 4-1-3 vote) that the Sex Offender Registration and Notification Act’s delegation to the attorney general in 34 U.S.C. Section 20913(d) does not violate the constitutional nondelegation doctrine. Gundy has sought rehearing, arguing that his challenge may have fallen short only because Justice Brett Kavanaugh had not yet been seated at the time of argument and did not participate in the case. While Chief Justice John Roberts and Justices Clarence Thomas and Neil Gorsuch concluded that SORNA violated the nondelegation doctrine, Justice Samuel Alito wrote that the law satisfied current doctrine, but said, “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Gundy is hoping Kavanaugh will be the fifth vote to grant him relief. It’s very unusual for a rehearing petition to be relisted, but it seems unlikely that Gundy will get relief unless the court calls for a response from the United States. After all, Supreme Court Rule 44 provides that, “[i]n the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response.”

Department of Homeland Security v. Ibrahim, 18-1509, involves Rahinah Ibrahim’s long-running litigation — the statement of facts in the government’s petition runs 18 pages — over her erroneous presence on the government’s “No Fly List.” After years of litigation and repeated trips to the U.S. Court of Appeals for the 9th Circuit, a federal district court held that Ibrahim, a citizen of Malaysia then in a Stanford Ph.D. program, had her due process rights violated when her name was “brief[ly] and inadvertent[ly] place[d] on the No Fly List,” and ordered equitable relief. The district court then awarded Ibrahim some attorney’s fees as a “prevailing party” under the Equal Access to Justice Act, but denied additional fees on the ground that the government had not acted in bad faith. The en banc 9th Circuit held by an 8-3 vote that the district court had clearly erred in finding that the government had not engaged in bad-faith conduct, pointing to a series of considerations it concluded would “support a bad faith finding.” The government seeks review.

In the old days of paper filings, the court clerk in Cook County, Illinois, made newly filed paper complaints available to reporters as they were filed. After electronic filing started, the clerk’s office would print out hard copies and make them available. But in 2015, the clerk stopped that practice, so reporters could not access complaints until they were posted online, usually later on the day of filing but sometimes not until the next business day. A news service brought suit in federal court, arguing that the clerk’s actions violated the First Amendment by denying the reporters prompt access to court documents. The clerk argued that the court should abstain under Younger v. Harris. The district court declined to abstain. But the U.S. Court of Appeals for the 7th Circuit disagreed, writing:

[I]n our court and apparently in the Supreme Court, as well, the clerks’ offices undertake certain administrative processing before a filing is made publicly available, giving our practices a similarity to the practices in state court challenged in this case. That fact would make it unusual, and perhaps even hypocritical, for us to order a state court clerk to provide such instant access on the basis of the same Constitution that applies to federal courts. Adhering to the principles of equity, comity, and federalism, we conclude that the district court should have abstained from exercising jurisdiction over this case.

In Courthouse News Service v. Brown, 18-1203, the news service seeks to revisit that decision, arguing that the U.S. Courts of Appeals for the 2nd and 9th Circuits have reached contrary conclusions.

On the criminal side, two cases present the question of what showing a prisoner must make before he is entitled to habeas relief because of the risk that his Armed Career Criminal Act enhancement might have been imposed under the act’s residual clause, which the Supreme Court held was unconstitutionally vague in Johnson v. United States. Levert v. United States, 18-1276, and Ziglar v. United States, 18-9343, ask whether a prisoner is entitled to relief when the record is silent as to whether he may have been sentenced based on the residual clause or whether he bears the burden of showing by a preponderance of the evidence that he was sentenced based solely on the residual clause.

If the facts of Isom v. Arkansas, 18-9517, appeared in a Law and Order script, it would be sent back for rewrite on the ground of implausibility. Sam Pope, as an elected prosecutor in Arkansas, brought burglary and theft charges against Kenneth Isom three times in just over a year; Isom was acquitted of two charges and found guilty of a third. After Isom was released on parole, Pope unsuccessfully asked the governor to rescind Isom’s parole and return Isom to prison. Pope later presided as the judge at Isom’s murder case, at which Isom was convicted and sentenced to death. Pope, denying calls for his recusal, then presided over the coram nobis proceedings in which Isom argued he was entitled to relief because of Brady v. Maryland violations. When the Arkansas Supreme Court denied relief, one dissenting justice argued that the record reflects “special animus that … Pope held towards Mr. Isom.” Before the Supreme Court, Isom argues that Pope’s significant adversarial history toward him created an unconstitutional risk of bias under the due process clause that required Pope’s recusal.

By contrast, if the facts of Guerin v. Fowler, 18-1545, appeared in a Law and Order script, it would be sent back on the ground that it was way too dull. And also probably because it doesn’t involve any crime. The director of the Washington State Department of Retirement Systems argues that the 9th Circuit erred in holding that pensioners have a right to accrue interest on a daily basis, and also argues that an injunction to transfer money to compensate them was an award of money damages barred by the 11th Amendment. So although the case may involve meaty legal issues, it’s not exactly ready for prime time.

The Prison Litigation Reform Act prevents a prisoner from filing or appealing a federal civil action in forma pauperis (which allows the prisoner to pay filing fees over time) if they have filed three or more federal civil actions or appeals that were dismissed because they were frivolous, malicious or failed to state a claim for relief under applicable law. Lomax v. Ortiz-Marquez, 18-8369, involves a narrow question about which there is an acknowledged circuit split: whether dismissals under Heck v. Humphrey, which bars civil suits about convictions that have not been reversed, expunged or declared invalid, count as “strikes” under the PLRA. Colorado state prisoner Arthur Lomax filed the petition pro se, but experienced D.C. appellate counsel arrived in time to file the reply brief.

Swaney v. Lopez, 18-1162, is yet another case on the Supreme Court’s qualified-immunity docket. The case involves claims that correctional officers are liable for disregarding two prisoners’ medical symptoms. The 9th Circuit denied qualified immunity to the officers, saying they clearly violated established law by denying medical care to prisoners exhibiting serious symptoms of pain or disease. The officers seek review, arguing that there is a circuit split on whether the facts alleged constitute deliberate indifference.

Last of all, both Terry v. Oklahoma, 18-8801, and McGirt v. Oklahoma, 18-9526, present another question familiar to Supreme Court-watchers: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. Section 1151(a). The court heard argument on that issue last term in Sharp v. Murphy, but did not resolve it. Late last term, the court ordered Murphy restored to the calendar for reargument, which has not yet been scheduled. [Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Murphy.]

That’s all for this week. We’ll be back next week, hopefully with a shorter list. Thanks to me for compiling the cases because of a glitch at work.

Returning Relists

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-1019
Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
(relisted after the May 9, May 16, May 23 and October 1 conferences)

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1 conference)

New Relists

Swaney v. Lopez, 18-1162
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when a divided panel of that court denied qualified immunity to correctional officers notwithstanding the U.S. Courts of Appeals for the 3rd and 7th Circuits’ authority making clear that the correctional officers’ conduct did not violate prisoners’ constitutional rights, and absent any contrary authority clearly establishing otherwise.
(distributed during the fourth week of July; relisted after the October 1 conference)

Courthouse News Service v. Brown, 18-1203
Issue: Whether Younger v. Harris and its progeny permit federal courts to abstain, on the basis of general principles of comity and federalism, from hearing First Amendment challenges that seek access to state court filings.
(distributed during the third week of April and, after a response was called for and received, the second week of June; relisted after the October 1 conference)

Levert v. United States, 18-1276
Issue: Whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based its original judgment on that provision or another provision of the same statute.
(distributed during the fourth week of July; relisted after the October 1 conference)

Department of Homeland Security v. Ibrahim, 18-1509
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in vacating the district court’s finding of no bad faith in the government’s conduct in this novel litigation brought by a foreign national living outside the United States, asserting a due process right to challenge her presence on the No Fly List and other government lists and databases.
(distributed during the fourth week of August; relisted after the October 1 conference)

Guerin v. Fowler, 18-1545
Issues: (1) Whether, if a state’s statutorily created pension system allows government employees to transfer their accumulated pension contributions into a different pension plan, the employees have a constitutional right to a particular method for calculating interest on the contributions at the time of transfer; and (2) whether the 11th Amendment provides a state immunity from a claim in federal court for money damages, when the claim is framed as a request for an injunction ordering the state to provide compensation to plaintiffs.
(distributed during the second week of September; relisted after the October 1 conference)

Lomax v. Ortiz-Marquez, 18-8369
Issue: Whether prior Heck v. Humphrey dismissals without prejudice are strikes under 28 U.S.C. 1915(g).
(distributed during the third week of July; relisted after the October 1 conference)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(distributed during the fourth week of August; relisted after the October 1 conference)

Ziglar v. United States, 18-9343
Issue: Whether the court of appeals correctly affirmed the denial of Joe Ziglar’s motion to vacate his sentence based on Johnson v. United States, when the district court found that Ziglar had failed to show that he was sentenced under the residual clause of the Armed Career Criminal Act of 1984, which was invalidated in Johnson, as opposed to the ACCA’s still-valid enumerated-offenses clause.
(distributed during the first week of September; relisted after the October 1 conference)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(distributed during the fourth week of August; relisted after the October 1 conference)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(distributed during the first week of September; relisted after the October 1 conference)