RELIST WATCH

Does the Americans with Disabilities Act cover gender dysphoria?

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 will be considering 117 petitions and applications at this week’s conference. It will be considering only three of them for the second time.

The court will be looking most closely at Kincaid v. Williams. Kesha Williams is a transgender woman with gender dysphoria, defined as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” Williams spent six months incarcerated in the Adult Detention Center in Fairfax County, Virginia, outside Washington, D.C. Though Williams was initially placed in women’s housing, she was moved to men’s housing when facility staff learned that she was transgender. Williams claims that during her time at the detention center, her prescription hormone medication was confiscated, and she experienced delays in medical treatment and harassment by other inmates and prison deputies. Jail personnel denied Williams’ requests to shower privately and have body searches conducted by women deputies. After her release, Williams filed an action under 42 U.S.C. § 1983, alleging that her treatment by the county violated the Americans with Disabilities Act by failing to accommodate her gender dysphoria.

The district court dismissed her case, noting that the ADA’s definition of “disability” excludes from the statute’s protections “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders.”

A divided panel of the U.S. Court of Appeals for the 4th Circuit reversed, concluding that the current understanding of “gender dysphoria” is distinct from the definition of “gender identity disorder” that was current at the time of the ADA’s enactment, which the American Psychiatric Association has since removed from the Diagnostic and Statistical Manual of Mental Disorders. The majority also concluded that gender dysphoria may have a physical basis. Finally, the majority concluded that it should construe the ADA to cover gender dysphoria to “avoid a serious constitutional question” that would result if the ADA were read to “discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.”

Judge Marvin Quattlebaum concurred in part and dissented in part. He concluded that gender dysphoria was encompassed within the ADA’s broad term “gender identity disorders,” as Congress would have understood it at the time of enactment. He thought it was irrelevant that the American Psychiatric Association had changed its diagnoses since that time; to hold otherwise, he said, would be to “give organizations like the APA the power to effectively modify statutes passed by Congress and signed into law by the President. That cannot be right.”

Fairfax County Sheriff Stacey Kincaid now seeks to revisit that conclusion. Although she identifies no existing circuit split, she argues that a “split amongst the circuit courts is inevitable.” This case clearly has caught the attention of at least one of the justices.

Our other two relisted cases involve petitions held for the recently decided U.S. ex rel. Schutte v. SuperValu, Inc., holding that the False Claims Act’s scienter element — which asks whether a defendant “knowingly” submitted a fraudulent claim to the government — refers to a defendant’s knowledge and subjective beliefs, not to what an objectively reasonable person may have known or believed. Both Olhausen v. Arriva Medical, LLC and U.S. ex rel. Sheldon v. Allergan Sales, LLC present variations on that issue arising under different factual circumstances. [Disclosure: I represent respondent in Sheldon.] The court likely needs another week to determine what to do with those cases — whether it should simply grant the petitions, vacate the judgment below, and remand for further consideration in light of Schutte, whether to deny cert, or whether either of the cases independently warrant review.

That’s all for this week. See you next time! 

New Relists

Olhausen v. Arriva Medical, LLC, 22-374
Issue: Whether a False Claims Act defendant alleged to have “knowingly” violated a provision of federal law can escape liability by articulating, after the fact, an objectively reasonable interpretation of the provision under which its conduct would have been lawful.

U.S. ex rel. Sheldon v. Allergan Sales, LLC, 22-593
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.

Kincaid v. Williams, 22-633
Issue: Whether the diagnosis of gender dysphoria, found in the Diagnostic and Statistical Manual of Mental Health Disorders — Fifth Edition, is excluded from the Americans with Disabilities Act’s definition of disability under 42 U.S.C. § 12211(b).
(relisted after the June 8 conference; rescheduled before the May 11, May 18, May 25, and June 1 conferences)

Returning Relists 

McClinton v. United States, 21-1557

Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13, May 18, May 25, June 1 and June 8 conferences; rescheduled before the Dec. 2, Dec. 9, Jan. 6 and May 11 conferences) 

Luczak v. United States, 21-8190
Issue: Whether the Supreme Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13, May 18, May 25, June 1 and June 8 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13, May 18, May 25, June 1 and June 8 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; and (2) whether it violated the due process clause of the Fifth Amendment for the district court to sentence Gary Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13, May 18, May 25, June 1 and June 8 conferences; rescheduled before the Jan 6 and May 11 conferences)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; and (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13, May 18, May 25, June 1 and June 8 conferences; rescheduled before the Jan 6 and May 11 conferences)

Harness v. Watson, 22-412
Issue: Whether any amendment to a law originally adopted for an impermissible racially discriminatory purpose, no matter how minor the amendment and no matter the historical context, cleanses the law of its racist origins for 14th Amendment purposes unless the party challenging the law can prove that the amendment itself was motivated by racial discrimination.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Feb. 17, Feb. 24, Mar. 3, Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28 and May 11 conferences)

Ross v. United States, 22-5993
Issue: Whether a judge denies a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Mar. 31 and May 11 conferences)

Cain v. United States, 22-6212
Issue: Whether either the jury trial right contained in the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence based on conduct that a jury’s verdict rejected.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Sanchez v. United States, 22-6386
Issue: Whether the use of acquitted conduct to determine a defendant’s sentence violates the Fifth and Sixth Amendments.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Apr. 21 and May 11 conferences) 

Martin v. United States, 22-6736
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the May 11 conference) 

Merry v. United States, 22-6815
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing (enhancing) a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1 and June 8 conferences)

Beachem v. United States, 22-6838
Issues: (1) Whether a court can take into account acquitted, dismissed, or uncharged conduct, of which no jury ever found petitioner guilty of and which he never admitted; and (2) whether a court can enforce an appeal waiver provision when enforcement would result in a miscarriage of justice.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Mar. 17 and May 11 conferences)

Little v. United States, 22-6940
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentencing on uncharged conduct which was never admitted by the defendant nor proven to a jury beyond a reasonable doubt and which was only found by the sentencing court to be proven by a preponderance of the evidence.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Jenkins v. United States, 22-7148
Issues: (1) Whether the district court erred in not appointing new counsel; and (2) whether the district court violated the Fifth and Sixth Amendments by basing its drug weight calculations on acquitted conduct.
(relisted after the May 18, May 25, June 1 and June 8 conferences; rescheduled before the Apr. 21 and May 11 conferences)

Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP, 22-914
Issue: Whether a federal court may assume “hypothetical” subject matter jurisdiction to reach a decision on issues of state law against the party challenging the court’s jurisdiction, when the very issue presented on appeal is that of federal subject matter jurisdiction.
(relisted after the May 25, June 1 and June 8 conferences)

Department of Agriculture Rural Development Rural Housing Service, 22-846
Issue: Whether the civil-liability provisions of the Fair Credit Reporting Act unequivocally and unambiguously waive the sovereign immunity of the United States.
(relisted after the June 1 and June 8 conferences)

Clark v. Mississippi, 22-6057
Issues: (1) Whether Mississippi continues in the present case to erroneously misapply Batson v. Kentucky by considering the prosecutor’s purported justifications for striking seven of the eight African American prospective jurors presented to it “in isolation,” rather than, as this Court directed it to do in Flowers v. Mississippi, considering those strikes “in the context of all the facts and circumstances” that this Court has recognized as relevant to that determination; (2) Whether, by upholding these strikes in part on the basis of reasons not articulated by the prosecutor in the trial court the Mississippi Supreme Court has adopted from the Fifth Circuit an erroneous interpretation of Batson that conflicts with not only this Court’s clearly established precedent, but also with decisions of other federal circuit courts of appeal and other state courts of last resort.
(relisted after the June 1 and June 8 conferences; rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11, May 18, May 25, and June 1 conferences)