Petitions of the week

Reservist pay and conspiracy elements

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether approximately 200,000 reservists who are federal employees are entitled to differential pay when voluntarily mobilized and whether the merely hypothetical existence of the elements of a conspiracy is enough to convict defendants under the Racketeer Influenced and Corrupt Organizations Act.

Differential pay for reservists

Adams v. Department of Homeland Security presents the justices with a statutory question that, as Bryan Adams states in his petition, could affect about 200,000 federal employees who serve as members of the military reserves and National Guard. For many of these employees, the salaries they receive in their military jobs fall below their civilian salaries. In 5 U.S.C. § 5538, Congress provided that federal agencies are to provide differential pay – the difference between employees’ military and civilian pay – when employees are on active duty. Specifically, the statute calls for differential pay when a reservist is “perform[ing] active duty in the uniformed services pursuant to a call or order to active duty under … a provision of law referred to in [10 U.S.C. §] 101(a)(13)(b).” In turn, Section 101(a)(13)(b) refers to some specific provisions, as well as “any other provision of law during a war or during a national emergency declared by the President or Congress.” This case addresses what qualifies as such a provision.

Adams works in human resources for the U.S. Customs and Border Protection and as a technical sergeant in the Arizona Air National Guard. His civilian job has an annual salary that is about $11,000 higher than his military salary. For five months in 2018, Adams served in active duty, during which time he did not receive any pay from Customs. His mobilization had come under 10 U.S.C. § 12301(d), which allows for the activation of reservists “at any time … with the consent of that member.”

The U.S. Court of Appeals for the Federal Circuit upheld the denial of differential pay. The court reasoned that Section 12301(d), which is not specifically mentioned in Section 101(a)(13)(b), also did not qualify as “any other provision of law during a war or during a national emergency” because Adams’ service was voluntary and unconnected to a national emergency. In response, Adams maintains that his service stems from the still-declared national emergency from Sept. 11, 2001, and that the statute’s text does not require as close a connection to the operations as the court required. Adams also maintains that the Federal Circuit’s approach is out of touch with current practices because the U.S. Department of Defense’s express policy is to rely on voluntary duty “per section 12301(d).” For example, the department has mobilized, on a voluntary basis, thousands of reservists in response to the COVID-19 pandemic.

Jury instructions for conspiracy

In Smith v. United States, members of the Devil Disciples Motorcycle Club maintain that the district court impermissibly allowed the jury to convict them under the Racketeer Influenced and Corrupt Organizations Act on the basis of hypotheticals. The jury received the following instructions on the elements that the government must have proven beyond a reasonable doubt to secure a conviction:

• One, the existence of an enterprise or that an enterprise would exist.
• Two, that the enterprise was or would be engaged in, or its activities affected or would affect interstate commerce.
• Three, a conspirator was or would be employed by or associated with the enterprise.
• Four, a conspirator did or would conduct or would participate in, directly or indirectly, the conduct of the affairs of the enterprise.
• And five, a conspirator did or would knowingly participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity as described in the indictment; that is, a conspirator did or would commit at least two acts of racketeering activity.

Though the petition acknowledges that conspirators need not have completed all their plans to be guilty of conspiracy, it maintains that an actual agreement must have actually existed for a conviction. The petition further argues that the U.S. Court of Appeals for the 6th Circuit’s decision upholding the jury instructions follows a minority position in a conflict with multiple other circuits.

These and other petitions of the week are below:

Smith v. United States
21-1089
Issues: (1) Whether the jury should have been allowed to convict the defendants on the hypothetical existence of all of the elements of a conspiracy under the Racketeer Influenced and Corrupt Organizations Act; and (2) whether the jury instruction – which, for example, asked the jury to find that “a conspirator was or would be employed by or associated with the enterprise” – violated the defendants’ right to free speech in violation of the First Amendment by punishing mere talk.

National Postal Policy Council v. Postal Regulatory Commission
21-1124
Issue: Whether the nondelegation doctrine should be strengthened to disallow Congress from transferring to a federal agency the power to rewrite the postal rate-setting system without establishing any requirements that the system would have to meet.

Adams v. Department of Homeland Security
21-1134
Issue: Whether 10 U.S.C. § 12301(d) is “a provision of law referred to in section 101(a)(13)(B) of title 10,” with the consequence that federal employees serving on active duty may collect differential pay for periods when they are called to qualifying active duty.

Wade v. Lewis
21-1141
Issue: Whether the Supreme Court’s qualified immunity doctrine demands a nearly identical fact pattern before a case can clearly establish the law — as the U.S. Courts of Appeals for the 11th and 5th Circuits have held — or whether a case can provide “fair warning” despite some factual variation — as the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, and 10th Circuits have held.