RELIST WATCH

Relist-palooza: Religious exercise, the False Claims Act, takings clause, RICO, bank secrecy, and more

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.

 This Friday’s conference represents a significant date in the Supreme Court’s schedule: Based on the schedule prescribed by the court’s rules, it is the last conference at which a cert petition can be granted and the case heard during the court’s April sitting. Because it appears that sitting is mostly empty at the moment, this conference will be a critical one for filling up the court’s calendar.

Happily, the court has a lot to work with: There are a whopping 14 new relisted cases this week, although many of them involve the same or similar issues. Between the heavy caseload and the press of business, this update will have to be summary.

In the Equal Employment Opportunity Act of 1972, Congress strengthened the religious protections in Title VII of the Civil Rights Act by requiring employers to accommodate their employees’ religious beliefs and practices unless doing so would impose “undue hardship” on the business. Five years later, the court held in Trans World Airlines v. Hardison that an employer suffers “undue hardship” if accommodating an employee’s religion would require “more than a de minimis cost.” That low threshold for finding “undue hardship” has been criticized over the years for offering little protection to religious observance. During the Trump administration, the court called for the views of the solicitor general in Patterson v. Walgreen Co., and the government recommended that Hardison be reconsidered and overruled in that case. While the court did not grant review, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote an opinion concurring in the denial of review in Patterson to say that although that case was not a suitable vehicle, Hardison should be reconsidered in an appropriate case. As regular readers of this column will remember, the issue arose again in Small v. Memphis Light, Gas & Water and Dalberiste v. GLE Associates, Inc.When the court denied certiorari in those cases, Gorsuch, joined by Alito, dissented.

The issue is back once again in Groff v. DeJoy. Evangelical Christian Gerald Groff worked as a mail carrier for the U.S. Postal Service. USPS signed an agreement with Amazon in 2013 to deliver packages on Sundays, when Groff observed the Sabbath. Groff was initially available to avoid working Sundays by picking up extra shifts during the week, but accommodations eventually ran out and Groff was disciplined for refusing to work on Sundays. Groff sued USPS in federal court under Title VII for refusing to accommodate his religious beliefs and practices. The trial court ruled for the Postal Service under Hardison, and the U.S. Court of Appeals for the 3rd Circuit affirmed, holding that exempting Groff from work on Sundays imposed a more than de minimis cost on USPS because it forced his coworkers to pick up more than their share of Sunday shifts. Groff asks the justices to revisit and overrule Hardison’s more-than-de-minimis-cost test.

Under the False Claims Act, a defendant is liable for submitting a false claim to the government for payment if it acts “knowingly,” which the statute defines as acting with actual knowledge, deliberate ignorance, or reckless disregard. When the truth or falsity of a claim for payment turns on the construction of an ambiguous legal obligation, a number of courts of appeals have held that the defendant does not have the requisite mental state if it acts consistent with an objectively reasonable interpretation of the governing legal obligation – regardless of what the defendant’s subjective understanding of the legal obligation was. That is because, as the U.S. Court of Appeals for the 7th Circuit reasoned in one recent decision, “[a] defendant might suspect, believe, or intend to file a false claim, but it cannot know that its claim is false if the requirements for that claim are unknown.” The pending cert petitions in U.S. ex rel. Schutte v. SuperValu Inc. and U.S. ex rel. Proctor v. Safeway, Inc. both raise this issue; in both cases, the 7th Circuit embraced that reasoning. The Supreme Court asked for the views of the solicitor general in Schutte, and she recommended the court grant review. Although SuperValu persuasively argues in response that there’s no real circuit split, the government’s claim that the issue is important may carry the day.

The Bank Secrecy Act and implementing regulations require U.S. persons to file an annual report if they have foreign bank accounts containing more than $10,000. The maximum civil penalty for willfully failing to file the report is either $100,000 or half the balance in the unreported account, whichever is greater. Using that formula, the government imposed on petitioner Monica Toth a civil penalty of $2,173,703. She attempted to challenge that penalty under the excessive fines clause of the Eighth Amendment, but the U.S. Court of Appeals for the 1st Circuit rejected her claim, holding that that provision does not apply because the penalties were not connected with any criminal sanction, but were imposed following an administrative tax audit. In Toth v. United States, she seeks to revisit that conclusion, arguing that because the provisions are avowedly deterrent and non-compensatory, they are subject to the Eighth Amendment’s excessive fines clause.

Dupree v. Younger involves a very basic issue of how to preserve a legal issue for appeal — here, whether a prison official appealing a jury verdict against him can raise a purely legal defense not asserted at trial. Kevin Younger, who was detained awaiting trial at a Maryland state facility, claimed that guards entered his cell and beat him. Younger sued the guards as well as senior prison officials (including then-lieutenant Neil Dupree) with supervisory responsibility over them. Dupree moved to dismiss the lawsuit, arguing that Younger had not exhausted administrative remedies, as required to bring a federal claim under the Prison Litigation Reform Act of 1995. A federal trial court ruled against Dupree, concluding that those remedies were not “available” to Younger because of an investigation that was then ongoing. A jury awarded Younger $700,000 in damages. On appeal, Dupree renewed his argument that the investigation did not exempt Younger from pursuing administrative remedies before bringing a lawsuit. The U.S. Court of Appeals for the 4th Circuit dismissed the appeal on the grounds that although Dupree raised the PLRA defense pretrial, he did not renew the PLRA defense in his post-trial motion asking the trial court to set aside the jury’s verdict.

In his cert petition, Dupree argues that the courts of appeals are divided and most disagree with the 4th Circuit and do not require defendants to raise purely legal issues like the PLRA defense in post-trial motions to preserve them for review on appeal. Dupree argues that the availability of internal prison relief had no relevance to the jury once the trial was underway, and so there was no reason for him to ask the trial court to reverse the jury on that ground.

As sovereign entities that pre-existed the Constitution, Native American tribes possess the common-law immunity from suit traditionally enjoyed by sovereign governments — unless and until Congress unequivocally abrogates that immunity. The Bankruptcy Code abrogates the sovereign immunity of “governmental units,” but the code does not refer to Indian tribes in defining that term. Instead, the code provides a list of federal, state, local, and foreign entities, and then adds “or other foreign or domestic government” in a residual clause. Lac de Flambeau Band of Lake Superior Chippewa Indians v. Coughlin presents the question whether Congress unequivocally abrogated tribal immunity in the Bankruptcy Code. In the decision below, a divided panel of the U.S. Court of Appeals for the 1st Circuit held that because Indian tribes are governments within the territory of the United States, Congress abrogated their immunity in the reference to an “other … domestic government.” In its petition, the Lac de Flambeau Band of Lake Superior Chippewa Indians argues that other courts of appeals have rejected that interpretation and would grant it immunity.

Many other cases, mercifully, can be explained much more quickly. The trio of Fair v. Continental Resources, Tyler v. Hennepin County, Minnesota and Nieveen v. TAX 106 all involve whether the government violates the Fifth Amendment’s takings clause when it confiscates property worth more than the debt owed by the owner. The threesome of Pugin v. Garland, Garland v. Cordero-Garcia and Silva v. Garland involve whether being an accessory to a crime after the fact (or, relatedly, dissuading a witness from reporting a crime), is “an offense relating to obstruction of justice” under immigration law. Some cases are closely related even though the issues are slightly different. Yegiazaryan v. Smagin involves whether a foreign plaintiff can state a cognizable civil claim under the Racketeer Influenced and Corrupt Organizations Act when it suffers an injury to intangible property. CMB Monaco v. Smagin presents the closely related question of whether a foreign plaintiff with no alleged connection to the United States may nevertheless allege a “domestic” injury sufficient to maintain a Racketeer Influenced and Corrupt Organizations Act action based only on injury to intangible property.

We’ll find out soon what the Supreme Court thinks. In recent terms, the court announced its grant decisions on the afternoon after the second January conference, to maximize briefing time before argument. We expect the same this year.

Until next time, stay safe!

New Relists

U.S. ex rel. Schutte v. SuperValu Inc., 21-1326
Issue: Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act. CVSG: 12/6/2022
(relisted after the Jan. 6 conference)

Pugin v. Garland, 22-23
Issues: (1) Whether a state offense — like petitioner’s accessory-after-the-fact offense here — that does not involve interference with an existing official proceeding or investigation may constitute an “offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S); and (2) whether, assuming that the phrase “offense relating to obstruction of justice” is deemed ambiguous, courts should afford deference under Chevron v. Natural Resources Defense Council to the Board of Immigration Appeals’ interpretation of that phrase.
(relisted after the Jan. 6 conference)

U.S. ex rel. Proctor v. Safeway, Inc., 22-111
Issue: Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act.
(relisted after the Jan. 6 conference)

Fair v. Continental Resources, 22-160 
Issues: (1) Whether the government violates the Fifth Amendment’s takings clause when it confiscates property worth more than the debt owed by the owner; and (2) whether the forfeiture of far more property than needed to satisfy a delinquent tax debt, plus interest, penalties, and costs, constitutes an excessive fine within the meaning of the Eighth Amendment.
(relisted after the Jan. 6 conference)

Tyler v. Hennepin County, Minnesota, 22-166
Issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment’s takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.
(relisted after the Jan. 6 conference)

Groff v. DeJoy, 22-174
Issues: (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.
(relisted after the Jan. 6 conference)

Toth v. United States, 22-177
Issue: Whether civil penalties imposed under 31 U.S.C. § 5321(a)(5)(C)-(D) — penalties that are avowedly deterrent and non-compensatory — are subject to the Eighth Amendment’s excessive fines clause.
(relisted after the Jan. 6 conference) 

Dupree v. Younger, 22-210
Issue: Whether to preserve the issue for appellate review a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment.
(relisted after the Jan. 6 conference) 

Lac de Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 22-227
Issue: Whether the Bankruptcy Code expresses unequivocally Congress’ intent to abrogate the sovereign immunity of Indian tribes.
(relisted after the Jan. 6 conference)

Nieveen v. TAX 106, 22-237
Issues: (1) Whether the government violate the Fifth Amendment’s takings clause when it confiscates property worth more than the debt owed by the owner; and (2) whether the forfeiture of far more property than needed to satisfy a delinquent tax debt plus interest, penalties, and costs constitutes an excessive fine within the meaning of the Eighth Amendment.
(relisted after the Jan. 6 conference)

Garland v. Cordero-Garcia, 22-331
Issue: Whether dissuading a witness from reporting a crime, in violation of California law, is “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S).
(relisted after the Jan. 6 conference)

Silva v. Garland, 22-369
Issue: Whether, and under what circumstances, an individual’s conviction as an accessory after the fact is categorically “an offense relating to obstruction of justice” within the meaning of 8 U.S.C. § 1101(a)(43)(S) if the statute of conviction does not require the individual to interfere with a pending or ongoing criminal investigation or proceeding.
(relisted after the Jan. 6 conference)

Yegiazaryan v. Smagin, 22-381
Issue: Whether a foreign plaintiff states a cognizable civil claim under the Racketeer Influenced and Corrupt Organizations Act when it suffers an injury to intangible property, and if so, under what circumstances.
(relisted after the Jan. 6 conference)

CMB Monaco v. Smagin, 22-383
Issue: Whether a foreign plaintiff with no alleged connection to the United States may nevertheless allege a “domestic” injury under RJR Nabisco, Inc. v. European Community sufficient to maintain a Racketeer Influenced and Corrupt Organizations Act action based only on injury to intangible property.
(relisted after the Jan. 6 conference)

Returning Relist

Counterman v. Colorado, 22-138
Issue: Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.
(relisted after the Nov. 18, Dec. 2, Dec. 9, and Jan. 6 conferences)