Relist Watch

Last batch of possible grants before February recess

John Elwood reviews Tuesday’s relists

Not much is happening in D.C. right now, so what can the Supreme Court do to give us a break from the tedium of endless Zoom meetings? How about keeping all of last week’s 10 new relists around another week — and adding 10 more new relists! The court won’t be meeting in conference for four weeks after this Friday. But with so many relists primed to grant, the court may make substantial inroads on filling its fall argument calendar on the next order list.

Seven of this week’s relists have something strange in common: All were considered at the court’s Jan. 8 conference and then were relisted for this Friday’s conference, but never made a stop at the intervening Jan. 15 conference. I can’t remember seeing that happen before, and certainly not to a group of cases en masse. Six of the cases all have one other thing in common: They involve former President Donald Trump or Trump administration policies that now seem likely to be discontinued or modified.

So for starters, we have a pair of cases involving lawsuits challenging Trump’s receipt of income from various hotels and restaurants, allegedly in violation of the Constitution’s emoluments clauses. Trump v. Citizens for Responsibility and Ethics in Washington, 20-330, concerns whether business competitors of the Trump International Hotel have the right to sue the then-president under the foreign and domestic emoluments clauses. And Trump v. District of Columbia, 20-331, involves D.C. and Maryland’s domestic emoluments clause challenge to Trump’s ownership interests in hotels and restaurants, and specifically the availability of the writ of mandamus to correct claimed errors. Now that Trump is out of office, the lawsuits are likely moot. In briefs in both cases last month, the outgoing acting solicitor general, Jeffrey Wall, urged the justices to grant cert and vacate the court of appeals’ decisions (both of which went against Trump) under United States v. Munsingwear in light of the election results. Under the Munsingwear doctrine, the Supreme Court can wipe away a lower court’s ruling if that ruling might normally be worthy of Supreme Court review but intervening events have rendered the case moot before the Supreme Court could review the merits. The parties are likewise duking it out about whether the underlying decision at issue in the four-time relist Trump v. Knight First Amendment Institute, 20-197, involving the constitutionality of Trump blocking people on Twitter, should be vacated under Munsingwear.

Then we have three cases involving Title X of the Public Health Service Act, which authorizes federal funding for family planning services, provided that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” In Rust v. Sullivan, the court upheld a regulation that, among other things, prohibited recipients of Title X funds from making elective-abortion referrals in Title X clinics and also required them to maintain physical separation between those clinics and any abortion-related activities. In 2019, based on Rust, the Department of Health and Human Services instituted new referral and separation provisions. Azar v. Mayor and City Council of Baltimore, 20-454, was filed by the Trump administration and seeks review of a decision by the en banc U.S. Court of Appeals for the 4th Circuit invalidating those regulations. American Medical Association v. Azar, 20-429, and Oregon v. Azar, 20-539, seek review of a decision of the U.S. Court of Appeals for the 9th Circuit upholding them. The Wall argued that both cases should be granted along with the Baltimore case. If the Biden administration is going to revisit the regulations, query whether the court will want to address them now. [Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is among the counsel to the respondent in the Baltimore case. I am not involved in the case.]

Department of Homeland Security v. New York, 20-449, and Wolf v. Cook County, Illinois, 20-450, involve the Trump administration’s “public charge rule.” Under the Immigration and Nationality Act, immigrants can be denied green cards if, “in the opinion of” the secretary of the Department of Homeland Security, the person is “likely at any time to become a public charge.” Congress, however, did not define “public charge.” In August 2019, DHS issued a regulation that defined the term as someone “who receives one or more public benefits … for more than 12 months in the aggregate within any 36-month period.” Various groups, including state and local entities and nonprofit organizations, challenged the rule, district courts entered preliminary injunctions blocking it, and the U.S. Courts of Appeals for the 2nd Circuit and the 7th Circuit affirmed. In petitions filed during the Trump administration, DHS sought review, arguing that the plaintiffs were not proper parties to challenge the rule and that the courts erred in concluding the rule was likely invalid. Again, if the Biden administration seems likely to revisit the rule, it is an open question whether the court will want to address it. Then-Judge Amy Coney Barrett heard the Wolf case as a 7th Circuit judge and dissented from that court’s decision upholding a preliminary injunction. Because of her prior participation in the Wolf case, Barrett is expected to recuse herself from consideration of it.

There’s one last case not involving the Trump administration that will be appearing at a second conference this Friday after skipping the Jan. 15 conference: Calvary Chapel Dayton Valley v. Sisolak, 20-639. A Nevada church is challenging Gov. Steve Sisolak’s executive orders limiting church gatherings. For example, one directive subjected casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and the like to a “50% of fire-code-capacity” limit, but limited places of worship to gatherings of no more than 50 people, whatever their facilities’ size. While later directives superseded that one, the church maintains they still treat places of worship worse than secular facilities. I ordinarily wouldn’t count this case as a relist because after its first conference, the court called on those respondents who hadn’t yet filed a responsive pleading to do so (only one of three respondents had done so already). The court ordered respondents to file their responses in a hurry — by Jan. 19, with any reply due Jan. 21. So this case clearly has the court’s attention.

The petitioner in Bridge Aina Le’a, LLC v. Hawaii Land Use Commission, 20-54, bought a thousand-acre tract of land in Hawaii on which it planned to build hundreds of homes. But before it could do so, the Hawaii Land Use Commission re-designated the land for agricultural use, stopping the development in its tracks, although the land was allegedly barren and rocky and unsuitable for agricultural use. The developer won at trial, but the U.S. Court of Appeals for the 9th Circuit reversed, holding that the developer hadn’t proven an unconstitutional regulatory taking. The developer now urges the court to revisit its open-ended test for assessing regulatory takings under Penn Central Transportation Co. v. New York City and Lucas v. South Carolina Coastal Council. And in the process, petitioners seek to determine once and for all the maximum number of times a litigant can use em-dashes in their questions presented: seven.

McCoy v. Alamu, 20-31, asks the court once again to revisit qualified immunity. The U.S. Court of Appeals for the 5th Circuit concluded that Prince McCoy, Sr., an asthmatic prison inmate, had presented sufficient evidence to survive summary judgment that a prison guard had sprayed him in the face with pepper spray “for no reason at all,” in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. But by a 2-1 vote, that court held it was not at the time clearly established that a single use of pepper spray, even for no reason, was not the sort of de minimis use of force that did not run afoul of the Eighth Amendment. McCoy seeks to revisit that holding.

Thank goodness we all get a month off now. We hope to see you all back here safe and sound in February, disappointed as ever to be reading this dreck.

New Relists

McCoy v. Alamu, 20-31
Issues: (1) Whether a prison official is entitled to qualified immunity if he gratuitously assaults a prisoner but not every factor from Hudson v. McMillian for when the use of excessive physical force may constitute cruel and unusual punishment favors the plaintiff, as the U.S. Court of Appeals for the 5th Circuit held here, or whether the plaintiff can nonetheless defeat qualified immunity, as the U.S. Courts of Appeals for the 4th, 6th, 9th and 11th Circuits have held; and (2) whether a prison official who assaults a prisoner without justification is entitled to qualified immunity if past precedent involved different mechanisms of force, as the 5th Circuit implicitly held here, or whether precedent concerning unprovoked assaults by one weapon can clearly establish the unconstitutionality of unprovoked assaults by other weapons, as the 4th and 9th Circuits have held.
(relisted after the Jan. 15 conference)

Bridge Aina Le’a, LLC v. Hawaii Land Use Commission, 20-54
Issues: (1) Whether, as the U.S. Court of Appeals for the 9th Circuit’s extensive, published ruling eliminates property owners’ ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including the Supreme Court, the Supreme Court needs to clarify the rules for recovery for temporary regulatory takings; (2) whether, in light of the confusion in the lower courts as to the application of the factors from Penn Central Transportation Co. v. New York City — to the point where it has become almost impossible for property owners to prevail on this theory — the Supreme Court should reexamine and explain how Penn Central analysis is supposed to be done — or dispensed with; (3) whether, in light of the 9th Circuit’s holding that almost no value loss — no matter how great — can ever establish a temporary taking under either Lucas v. South Carolina Coastal Council or Penn Central, it is necessary for the Supreme Court to clarify the standards; and (4) whether, in light of Penn Central’s clear direction that cases like this are to be determined ad hoc, on their individual facts, and the Supreme Court’s approval in City of Monterey v. Del Monte Dunes, that takings liability be decided by a jury, appellate courts need to stay their hands (as mandated by the Seventh Amendment’s re-examination clause) when — as here — reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings.
(relisted after the Jan. 15 conference)

Trump v. Citizens for Responsibility and Ethics in Washington, 20-330
Issue: Whether plaintiffs who claim to compete with businesses in which the president of the United States has a financial interest can seek redress in an Article III court to enforce the foreign and domestic emoluments clauses of the U.S. Constitution against the president.
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

Trump v. District of Columbia, 20-331
Issues: (1) Whether a writ of mandamus is appropriate because, contrary to the holding of the U.S. Court of Appeals of the 4th Circuit, the district court’s denial of the president’s motion to dismiss was clear and indisputable legal error; and (2) whether a writ of mandamus is appropriate, contrary to the holding of the 4th Circuit, when the district court’s refusal to grant the president’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. § 1292(b).
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

American Medical Association v. Azar, 20-429
Issues: (1) Whether the Department of Health and Human Services’ rule for the Title X family planning program — which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options — is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that “all pregnancy counseling” under Title X “shall be nondirective”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which requires that HHS “shall not promulgate any regulation” that harms patient care in any one of six ways, including by “interfer[ing] with communications” between a patient and her provider.
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

Department of Homeland Security v. New York, 20-449
Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in Immigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Security’s final rule interpreting the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

Wolf v. Cook County, Illinois, 20-450
Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in Immigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Security’s final rule interpreting the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

Azar v. Mayor and City Council of Baltimore, 20-454
Issues: (1) Whether the Department of Health and Human Services’ rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.
[Disclosure: My law firm, Arnold & Porter Kaye Scholer LLP, is among the counsel to the respondent. I am not involved in the case.]
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 conference)

Oregon v. Azar, 20-539
Issues: (1) Whether the Department of Health and Human Services’ final rule — which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information — violates appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care, impedes “timely access” to such care, interferes with patient-provider communications “regarding a full range of treatment options,” restricts providers from disclosing “all relevant information to patients making health care decisions,” or violates providers’ ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.
(relisted after the Jan. 8 conference; directed to file but not relisted for the Jan. 15 conference)

Calvary Chapel Dayton Valley v. Sisolak, 20-639
Issues: (1) Whether Nevada Governor Steve Sisolak’s favoring of secular over religious gatherings — for example, under Directive 021, casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more are subject to a 50-percent fire-code-capacity limit, but places of worship are limited to no more than 50 people, whatever their facilities’ size — violates the free exercise clause; and (2) whether the governor’s favoring of secular over religious gatherings violates the free speech and assembly clauses.
(relisted after the Jan. 8 conference, but not relisted for the Jan. 15 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, Dec. 11, Jan. 8 and Jan. 15 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, Dec. 11, Jan. 8 and Jan. 15 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, Dec. 11, Jan. 8 and Jan. 15 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, Dec. 11, Jan. 8 and Jan. 15 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, Dec. 11, Jan. 8 and Jan. 15 conferences) [NB: the parties have reached an agreement in principle to settle]

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, Jan. 8 and Jan. 15 conferences)

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8 and Jan. 15 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(relisted after the Jan. 8 and Jan. 15 conferences)

Gutierrez v. Saenz, 19-8695
Issues: (1) Whether, under the Religious Land Use and Institutionalized Persons Act, the state’s decision to deprive Mr. Gutierrez of the opportunity to be accompanied during his execution by a religious adviser employed by the prison substantially burdens the exercise of his religion, requiring the state to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, for purposes of the free exercise clause, the state’s blanket policy of denying all prisoners the aid of a religious adviser at the time of the execution — adopted for the acknowledged purpose of avoiding the obligation to allow such a minister to a Buddhist prisoner — burdens Mr. Gutierrez’s exercise of religion without legitimate justification.
(relisted after the Jan. 8 and Jan. 15 conferences)

Massachusetts Lobstermen’s Association v. Ross, 20-97
Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Act’s “smallest area” requirement, including designating ocean monuments larger than most states, by vaguely referencing “resources” or an “ecosystem” as the objects to be protected.
(relisted after the Jan. 8 and Jan. 15 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8 and Jan. 15 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8 and Jan. 15 conferences)

Planned Parenthood Center for Choice v. Abbott, 20-305
Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the 5th Circuit’s judgments granting writs of mandamus.
(relisted after the Jan. 8 and Jan. 15 conferences)

United States v. Tsarnaev, 20-443
Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
(relisted after the Jan. 8 and Jan. 15 conferences)

Republican Party of Pennsylvania v. Boockvar, 20-542
Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
(relisted after the Jan. 8 and Jan. 15 conferences)

Scarnati v. Pennsylvania Democratic Party, 20-574
Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
(relisted after the Jan. 8 and Jan. 15 conferences)