Relist Watch

John Elwood reviews Monday’s relists

The year 2020 is finally over, so clearly, everything is going to be smooth sailing from here on out.

With a whole new year, we have a whole new set of relists. There are two new ones. The first, which seems like a likely grant, is United States v. Vaello-Madero, 20-303. In 1972, Congress created the Supplemental Security Income program, administered by the Social Security Administration, which provides monthly cash payments to aged, blind, and disabled individuals who lack the financial means to support themselves. Congress limited the program to the 50 states and the District of Columbia, not Puerto Rico and the other U.S. territories. (Congress provided similar, but lower, payments to residents of Puerto Rico under a different federal program.) Congress later extended SSI to the Northern Mariana Islands in accordance with a 1976 covenant to establish the Northern Mariana Islands as a commonwealth in political union with the United States.

The U.S. Court of Appeals for the 1st Circuit held that Congress’ decision not to extend SSI to Puerto Rico violates the equal protection component of the due process clause of the Fifth Amendment. The Supreme Court summarily rejected a similar challenge to the exclusion of Puerto Rico from SSI under the right to travel, and the court also rejected an equal protection challenge to the differential treatment of Puerto Rico under the Aid to Families with Dependent Children program. The federal government seeks to revisit the 1st Circuit’s decision.

Vaello-Madero is the rare case that has a cert-stage amicus brief supporting the respondent. Such briefs are rarely filed because they are statistically correlated with grants and thus can be counterproductive. This one is unusual, though — it was filed by counsel to a follow-on case still in the court of appeals, telling the Supreme Court to take their case eventually rather than the government’s. We’ll have a better idea soon whether the court agrees.

Next up is Birt v. United States, 20-291. Jamell Birt pleaded guilty in 2001 to possessing crack cocaine with intent to distribute it. At the time, 21 U.S.C. § 841(b)(1) set forth three tiers of sentences for crack-cocaine offenses. Subparagraph (A) established sentences for 50 or more grams of crack cocaine, subparagraph (B) established sentences for 5 or more grams of crack cocaine, and subparagraph (C) established sentences for offenses not covered by subsections (A) and (B). Birt was carrying 185.6 grams of crack cocaine when he was arrested, but under a plea agreement, he pleaded guilty to possessing an unspecified amount and was sentenced under subparagraph (C).

In the Fair Sentencing Act of 2010, Congress altered the penalty range for certain crack-cocaine offenses, which historically have been punished much more harshly than offenses involving powder cocaine. To reduce the disparity in treatment between the two, the Fair Sentencing Act increased the amount of crack cocaine necessary to trigger enhanced penalties. It amended § 841(b)(1)(A) to change 50 grams to 280 grams, and it amended subparagraph (B) to change 5 grams to 28 grams. It did not, however, amend subparagraph (C).

The changes applied only to offenses for which the defendant was sentenced after the act’s 2010 effective date. In 2018, however, Congress passed the First Step Act, which made the changes retroactive by authorizing resentencing for defendants convicted of “covered offense[s]” – defined as offenses with penalties that were modified by the Fair Sentencing Act. Birt sought a reduction in his sentence, which the district court denied on the basis that Birt “is not eligible for relief” because “a conviction for violating 21 U.S.C. § 841(b)(1)(C) is not a covered offense for purposes of the First Step Act.”  The U.S. Court of Appeals for the 3rd Circuit affirmed. Birt challenges that decision.

We’ll be back next week with more.  Until next time, stay safe!

New Relists

Birt v. United States, 20-291
Issue: Whether the term “covered offense” in the First Step Act of 2018 includes violations of 21 U.S.C. § 841(a) involving crack cocaine to which apply the penalties in Subparagraph (b)(1)(C) (as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits have determined) or not (as the U.S. Courts of Appeals for the 3rd, 6th, 10th and 11th Circuits have held).
(relisted after the Dec. 11 conference)

United States v. Vaello-Madero, 20-303
Issue: Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.
(relisted after the Dec. 11 conference)

Returning Relists

Silver v. United States, 20-60
Issues: Whether a public official can be convicted of bribery absent proof of an agreed exchange with the alleged bribe payor, based solely on his unexpressed, unilateral state of mind when receiving a benefit; (2) whether a conviction for Hobbs Act extortion can be based on a theory of simple bribery; and (3) whether, if the government elects not to argue harmless error, a court of appeals may raise harmless error sua sponte, without providing the defendant any opportunity to be heard on the issue.
(relisted after the Dec. 4 and Dec. 11 conferences)

Kane County, Utah v. United States, 20-82
Issues: (1) Whether Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention as of right where the movant does not have a significant, cognizable interest in the lawsuit; and (2) whether the United States adequately represents its title, which is the only interest at issue in a quiet title suit.
(relisted after the Dec. 4 and Dec. 11 conferences)

United States v. Kane County, Utah, 20-96
Issue: Whether an advocacy organization’s environmental concerns qualify as an “interest” required by Rule 24(a)(2) of the Federal Rules of Civil Procedure for the organization to intervene as of right as a party defendant in a pending civil action, where no judicial relief could be granted against that organization in the action and its environmental concerns are unrelated to any claim or defense that the organization could itself assert in the action.
(relisted after the Dec. 4 and Dec. 11 conferences)

Trump v. Knight First Amendment Institute, 20-197
Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
(relisted after the Dec. 4 and Dec. 11 conferences)

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4 and Dec. 11 conferences) [NB: the parties have reached an agreement in principle to settle]