RELIST WATCH

Preemption, Bivens, conflicts of interest, and free exercise

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.

There was an unusual amount of turnover this week. On Friday afternoon, the Supreme Court granted review in five relisted cases, four of them involving the Environmental Protection Agency’s authority to regulate greenhouse gases, the fifth involving the ability of states to intervene to defend the Trump administration’s “public charge” immigration rule. Then, on Monday morning, the court disposed of two long-running free-exercise-of-religion cases. The court granted the petition in Roman Catholic Diocese of Albany v. Lacewell, 20-1501, involving the application to church health plans of New York’s regulation mandating that employer health insurance plans cover abortions, and remanded for further consideration in light of last term’s Fulton v. City of Philadelphia, which clarified when laws burdening religious exercise are not truly generally applicable and thus subject to strict scrutiny. The court denied review in Dignity Health, Inc. v. Minton, 19-1135, involving a Catholic hospital’s refusal to perform a hysterectomy on a transgender patient. In both cases, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have granted the petitions.

The court also denied review in Coonce v. United States, 19-7862, a capital case in which the defendant, Wesley Paul Coonce, argued that his execution would violate the Eighth Amendment because he has an intellectual disability. Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, filed an opinion dissenting from denial of review. Lastly, the court denied review in American Civil Liberties Union v. United States, 20-1499, involving whether the First Amendment creates a qualified right of public access to the opinions of the Foreign Intelligence Surveillance Court. Gorsuch dissented from the denial of review and was joined by Sotomayor. All things considered, the court disposed of nine of the 13 total relists.

This week, the court added nearly as many new relists — eight of them.

The first two are easy because I previewed both last week as cases worth watching. Knight v. Pennsylvania, 20-7805, like outgoing Coonce v. United States, involves claims of a person convicted of murder arguing he cannot be executed because of his intellectual disability. The court has already called for the record in Knight so at least one of the justices is evidently taking a close look. Volkswagen Group v. Environmental Protection Commission of Hillsborough County, 20-994, involves whether the Clean Air Act preempts state and local governments from regulating car manufacturers’ post-sale, nationwide updates to vehicle emissions systems. At the court’s request, the government filed an amicus brief, which argues that the case does not warrant review although it implicates a circuit split.

A third case that should seem familiar to regular readers is Kahn v. United States, 21-5261, which presents the same issue as three cases that the court has been relisting since the long conference — involving whether doctors convicted of unlawfully dispensing prescription drugs should have been allowed to have a jury consider whether the doctors subjectively believed the prescriptions were medically appropriate. The court has relisted those cases four times already, so it should be addressing them soon.

The only other “business” case on the docket is Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc., 20-1641, involving the anti-discrimination provisions of the Medicare Secondary Payer Act. The act prohibits health plans from “tak[ing] into account” that an individual is eligible for Medicare benefits because they suffer from end-stage renal disease (essentially, kidney failure), and prohibits them from differentiating in the benefits they provide between individuals having ESRD and other individuals covered by the health plan. The U.S. Court of Appeals for the 6th Circuit concluded that the Marietta Memorial Hospital Employee Health Benefit Plan impermissibly discriminates against patients with ESRD by providing reduced coverage for dialysis. The plan seeks to revisit that determination, arguing that the decision conflicts with decisions of the U.S. Court of Appeals for the 9th Circuit.

The court has been very active recently considering cases involving allegations of misbehavior by law enforcement officers as well as claims that courts have overreacted by denying officers qualified immunity. This week, the court will be taking a second look at two petitions filed on behalf of law enforcement officers that have been sued for allegations of misconduct. Egbert v. Boule, 21-147, involves allegations that U.S. Border Patrol agent Eric Egbert violated the Fourth Amendment rights of Robert Boule, owner of a bed-and-breakfast on the U.S.-Canada border called the “Smuggler’s Inn,” by handling Boule roughly during an investigation and also by retaliating against him in violation of the First Amendment by encouraging the Internal Revenue Service to investigate him. The district court dismissed the claims against Egbert, noting that causes of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics are disfavored and have been construed narrowly for years. But a panel of the 9th Circuit reversed, holding that Bivens actions are available for such claims against Border Patrol officers. The court then denied rehearing en banc, over the separate dissents of Judges Patrick Bumatay, John Owens, and Daniel Bress, joined by a total of nine of their colleagues. I may be wrong, but Egbert strikes me as total cert bait.

City of New York v. Frost, 20-1788. After being acquitted for murder (and after spending 3.5 years at Rikers Island in pretrial detention), Jarrett Frost sued the city of New York under 42 U.S.C. § 1983, alleging that police had coerced a statement from a witness falsely implicating him in the murder. Frost alleged that his pretrial detention based on fabricated evidence violated both the Fourth Amendment and the due process clause. The district court granted the city and the police officer defendants summary judgment. On appeal, the U.S. Court of Appeals for the 2nd Circuit held that there was probable cause for Frost’s detention even without the supposedly fraudulent identification, and so his Fourth Amendment claim could not go forward. But, over a dissent, the panel majority held that Frost could pursue a due process claim based on the same facts. New York now seeks review, arguing that the 2nd Circuit’s decision cannot be squared with Manuel v. City of Joliet, which it argues holds that the Fourth Amendment, not the due process clause, governs a claim that a pretrial detention was based on fabricated evidence. New York also argues that the decision deepens a circuit split.

In Holcombe v. Florida, 21-53, James Dale Holcombe was charged with racketeering under Florida law arising out of claims he knowingly purchased and resold fraudulently obtained gift cards. Holcombe’s defense attorney simultaneously represented both Holcombe and his co-defendants, who were witnesses for the state against him and were testifying subject to the condition that they must testify truthfully to receive leniency. The state took the position that defense counsel was subject to a non-waivable conflict of interest; the trial court disagreed, explained the conflict to Holcombe and his co-defendants, and obtained on-the-record waivers. At trial, Holcombe’s lawyer cross-examined the co-defendants he also represented. Holcombe was convicted. On appeal, the state court of appeals held that there was no error because Holcombe could not identify how the conflict had affected counsel’s performance. Before the Supreme Court, Holcombe argues that his attorney’s conflict of interest deprived him of the effective assistance of counsel. He contends that he was not required to prove prejudice, and that prejudice is presumed from his attorney’s actual conflict of interest. 

Last up is Trustees of the New Life in Christ Church v. City of Fredericksburg, Virginia, 21-164. Virginia law provides an exemption from property taxes for “[r]eal property and personal property owned by churches … and exclusively occupied or used … for the residence of the minister of any church or religious body.” The statute does not define the term “minister.” New Life In Christ Church claimed the tax exemption for a property occupied by Josh and Anacari Storms. The church said that the Stormses are “ministers” under the Presbyterian Church in America’s Book of Church Order because they were hired to teach and spread the faith to college students in the community. The city of Fredericksburg denied the exemption because the church’s organizational documents indicated that “Ministers” were “duly ordained person[s] with specific leadership duties,” and the Stormses did not fit that description. Rather, Fredericksburg concluded that the term would apply to the church’s “senior pastor or associate pastor.” The Virginia Circuit Court granted the city summary judgment in a one-paragraph order and the Virginia Supreme Court denied review.

The church has petitioned for cert, arguing that civil authorities violated the First Amendment when they engaged in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister. The church suggests summary reversal would be appropriate, or in the alternative, asks the Supreme Court to grant the petition, vacate the judgment, and remand for further consideration in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “may not refuse to extend that [exemption] system to [the church] without compelling reason.” The justices have rescheduled the case twice, and now have relisted it. We should have a better idea what the court thinks soon.

That’s all for this week. We’ll be back next week. Stay safe!

New Relists

Volkswagen Group v. Environmental Protection Commission of Hillsborough County, 20-994
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems. CVSG: 9/27/2021
(relisted after the Oct. 29 conference)

Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc., 20-1641
Issues: (1) Whether a group health plan that provides uniform reimbursement of all dialysis treatments observe the prohibition provided by the Medicare Secondary Payer Act that group health plans may not “take into account” the fact that a plan participant with end stage renal disease is eligible for Medicare benefits; (2) whether a plan that provides the same dialysis benefits to all plan participants, and reimburses dialysis providers uniformly regardless of whether the patient has end stage renal disease, observe the prohibition under the Medicare Secondary Payer Act that a group health plan also may not “differentiate” between individuals with end stage renal disease and others “in the benefits it provides”; and (3) whether the Medicare Secondary Payer Act is a coordination-of-benefits measure designed to protect Medicare, not an antidiscrimination law designed to protect certain providers from alleged disparate impact of uniform treatment. 
(relisted after the Oct. 29 conference)

City of New York v. Frost, 20-1788
Issue: Whether, where a Section 1983 plaintiff alleges that his pretrial detention was influenced by fabricated evidence, and the existence of probable cause independent of the challenged evidence defeats his Fourth Amendment claim, he may still pursue a due process-based claim based on alleged use of the same challenged evidence in securing the same pretrial detention.
(relisted after the Oct. 29 conference)

Knight v. Pennsylvania, 20-7805
Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
(relisted after the Oct. 29 conference)

Holcombe v. Florida, 21-53
Issues: (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
(relisted after the Oct. 29 conference)

Egbert v. Boule, 21-147
Issues: (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights; and (3) whether the Supreme Court should reconsider Bivens. 
(relisted after the Oct. 29 conference)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29 conference)

Kahn v. United States, 21-5261
Issues: (1) Whether, when the government prosecutes a medical practitioner under the Controlled Substances Act for issuing a prescription outside “the usual course of professional practice,” the government is required to prove that the doctor knew or intended that the prescription be outside the scope of professional practice; (2) whether a “good faith” defense in the context of a licensed medical practitioner prosecuted under the Controlled Substances Act protects doctors who have an honest but mistaken belief that they have issued the charged prescription in “the usual course of professional practice,” and, if so, whether that belief must be objectively reasonable; and (3) whether the “usual course of professional practice” and “legitimate medical purposes” prongs of 21 C.F.R § 1306.04(a) must be read in the conjunctive or the disjunctive.
(relisted after the Oct. 29 conference)

Returning Relists

Arlene’s Flowers Inc. v. Washington, 19-333
Issues: (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.
(certiorari petition relisted after the Jan. 10, 2020, Jan. 17, 2020, Jan. 24, 2020, Feb. 21, 2020, and June 24, 2021 conferences; rehearing petition relisted after the Sept. 27, 2021, Oct. 8, Oct. 15, and Oct. 29 conferences)

Naum v. United States, 20-1480
Issue: Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication.
(relisted after the Sept. 27, Oct. 8, Oct. 15, and Oct. 29 conferences)

Ruan v. United States, 20-1410
Issue: Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.
(relisted after the Sept. 27, Oct. 8, Oct. 15, and Oct. 29 conferences)

Couch v. United States, 20-7934
Issues: (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.
(relisted after the Sept. 27, Oct. 8, Oct. 15, and Oct. 29 conferences)