RELIST WATCH

Dismissing False Claims Act cases, promoting prescription fentanyl, and a capital case

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.

The Supreme Court’s sprint to the end of the term continues. The court granted last week’s one new relist, Wilkins v. United States. Thus, the court will revisit its nearly 40-year-old precedents holding that the Quiet Title Act’s statute of limitations is jurisdictional. It seems like the odds are good that the court will conclude that the provision is instead a claims-processing rule and thus both waivable and subject to a variety of defenses.

This week’s conference marks the second of the court’s last four scheduled conferences. We have four new relists this week.

First up is United States ex rel. Polansky v. Executive Health Resources, Inc. The False Claims Act allows private parties, known as relators, to sue in the name of the United States defendants who allegedly have submitted false or fraudulent claims to the government, and they’re permitted to recover a share of any sums they win for the federal government. The FCA gives the government a fair amount of ability to control the litigation. To begin with, the statute requires that the lawsuit be retained under seal while the government investigates the allegations. Then the government can intervene if it wishes and take the lead in litigating the case; or it can decline to intervene and let the relator litigate the case. Polansky concerns whether the government can dismiss such actions after declining to litigate them — and if so, what showing the government has to make to be able to persuade the district court to dismiss.

There is a circuit split about the standard under which courts may review government decisions to dismiss a relator’s claims. Some courts have held that the executive branch has virtually unfettered discretion to dismiss an action brought in its name to remedy a wrong allegedly done to it. Other courts hold that if the government declines to take over a relator’s FCA action, the government must first intervene, and then make a showing that the dismissal is proper under Federal Rule of Civil Procedure 41(a). Other courts have adopted other standards. Relator Jesse Polansky, a former consultant to respondent Executive Health Resources, argues that the Supreme Court should grant review to settle what he calls an “intractable split” on the issue. By contrast, the government and Executive Health Resources contend that the courts have applied only “slightly different” standards and that Polansky would lose under any of them. The court has denied review on at least two past petitions raising the same issue. We’ll find out soon whether the court is any more persuaded by this one.

Next are Kapoor v. United States and Lee v. United States. John Kapoor was the executive chairman and Sunrise Lee a regional sales manager of Insys, a pharmaceutical company that sold a fentanyl spray developed to treat spikes in pain by chronic pain sufferers. Kapoor and Lee were convicted of racketeering for allegedly paying doctors through the mechanism of retaining them for phony speaking engagements to increase prescriptions of their drug, heedless of the abuse potential of the synthetic opioid. Both petitioned for Supreme Court review, principally arguing that non-physicians cannot lawfully be convicted of violating 21 U.S.C. § 841(a), prohibiting unlawful distribution of controlled substances, if they understood that the physician believed their prescribing to be within the usual course of professional practice. If that sounds familiar to you, that’s because two of the still undecided cases this term — Kahn v. United States and Ruan v. United States — involve whether physicians can be convicted of unlawful distribution under the same statute without regard to whether they in good faith reasonably believed that their prescriptions were within the course of professional practice. And the relationship between the new relists and the pending cases is not limited to subject matter: Xiulu Ruan was one of the doctors Kapoor and Lee allegedly conspired with.

It could be the court is just deciding whether to hold these cases for Kahn and Ruan; indeed, it could be that those cases are going to be decided very soon and the court just wants to keep potentially affected cases in the on-deck circle. The main thing that struck me about these cases was that the government filed an unusually fact-intensive joint brief opposing cert — with a 15-page statement of facts here versus roughly eight pages in Ruan and Kahn. Perhaps the government is pushing especially hard to try to persuade the court that Kapoor and Lee don’t warrant relief even if Kahn and Ruan prevail.

Last up is Canales v. Lumpkin. Texas prisoner Anibal Canales Jr. was convicted of murdering Gary Dickerson, another prisoner, for snitching about a shipment of tobacco being smuggled into the prison. He was sentenced to death. During an earlier stage of his habeas proceedings, the U.S. Court of Appeals for the 5th Circuit concluded Canales’ trial counsel rendered constitutionally ineffective assistance during his sentencing proceeding. But on remand, the district court held that Canales was not prejudiced by his ineffectiveness, and the 5th Circuit panel, by a 2-1 vote, affirmed the denial of relief.

This case has been hanging around for quite a while. The court rescheduled this case six times back in 2021, held the case for 11 months, apparently for Shinn v. Ramirez, involving whether a federal habeas court may conduct an evidentiary hearing or consider evidence beyond the state-court record on an ineffective-counsel claim. Last month, the court issued its decision in Ramirez, concluding that the answer is “no.” More recently, the court has called for the record in Canales. Ramirez narrowed the options for habeas petitioners, so it could be that Canales’ petition will simply yield a dissent from denial of cert.

That’s all for this week. Until next time, stay safe!

New Relists

Kapoor v. United States, 21-994
Issues: (1) Whether a non-physician may be convicted of conspiring with a physician to prescribe controlled substances outside the course of professional practice under 21 U.S.C. § 841(a) without regard to the non-physician’s understanding that the physician believed their prescribing to be within the usual course of professional practice; and (2) whether a federal court must grant a motion for judgment of acquittal when, after construing the evidence in the light most favorable to the government and considering both exculpatory and inculpatory inferences, the evidence of guilt and innocence is in equipoise.
(relisted after the June 2 conference) 

United States ex rel. Polansky v. Executive Health Resources, Inc., 21-1052
Issue: Whether the government has authority to dismiss a False Claims Act suit after initially declining to proceed with the action, and what standard applies if the government has that authority.
(relisted after the June 2 conference)

Lee v. United States, 21-6952
Issues: (1) Whether a non-physician may be convicted of conspiring with a physician to prescribe controlled substances outside of the course of professional practice under 21 U.S.C. § 841(a) without regard to the non-physicians understanding that the physician believed their prescribing to be within the usual course of professional medical practice; (2) whether a federal court must grant a motion for judgment of acquittal when after construing the evidence in the light most favorable to the government and considering both exculpatory and inculpatory inferences, the evidence of guilt and innocence is in equipoise; and (3) whether the circuit court erred in failing to address a recent U.S. Court of Appeals for the 5th Circuit case raised in the context of a Federal Rule of Appellate Procedure 28(j) letter that is dispositive of appellate issues raised with the circuit court.
(relisted after the June 2 conference)

Canales v. Lumpkin, 20-7065
Issues: (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.
(relisted after the June 2 conference)

Returning Relists

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1, April 14, April 22, April 29, May 12, May 19, May 26 and June 2 conferences) 

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29, May 12, May 19, May 26 and June 2 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29, May 12, May 19, May 26 and June 2 conferences)

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12, May 19, May 26 and June 2 conferences)

Shoop v. Cassano, 21-679
Issues: (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review; and (3) whether Cassano clearly and timely requested self-representation.
(rescheduled before the Mar. 4, Mar. 18, Mar. 25, April 1, April 14, April 22, April 29 and May 12 conferences; relisted after the May 19, May 26 and June 2 conferences)