RELIST WATCH

Sovereign immunity under the Fair Credit Reporting Act and racially discriminatory juror strikes

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.

First, the “old business.” On Monday, the Supreme Court granted review in Vidal v. Elster, involving whether the United States Patent & Trademark Office violated the First Amendment when it refused to register the trademark “Trump too small.” But it denied review in Leavell-Keaton v. Alabama, involving a claim by a woman on death row that she should have been allowed to present evidence of her good behavior in prison during a resentencing proceeding. Otherwise, all of last week’s cases are back for another week at the court.

The court will be considering 145 petitions and applications at this week’s conference. It will be considering two of them for the second time.

This week’s first new relist is Department of Agriculture Rural Development Rural Housing Service v. Kirtz. Truly dedicated Relist Watch readers may remember this issue from the first weeks of the pandemic lockdown, when the court in Robinson v. Department of Education relisted a petition raising this issue twice before denying review over a dissent by Justice Clarence Thomas, joined by Justice Brett Kavanaugh.

For those whose recollection of that fascinating case have been wiped out by COVID brain fog: As originally enacted, the Fair Credit Reporting Act imposed substantive requirements on consumer-reporting agencies and “persons” who used information in credit reports. The FCRA also expressly defined the term “person” as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.”

The FCRA was later amended to require consumer-reporting agencies to notify “any person” who provided information that a consumer disputed on a credit report. The “person” who furnished the information is then required to “conduct an investigation,” to “modify,” “delete,” or “block the reporting of” any information found to be inaccurate. That person is also required to “report the results of the investigation” to the consumer-reporting agency that notified him – and, “if the investigation finds that the information is incomplete or inaccurate,” to “all other consumer reporting agencies” to which that person provided the disputed information. If the person who furnished the information negligently or willfully fails to comply with these requirements, consumers are allowed to sue “[a]ny person” who fails to comply with “any requirement” under the FCRA.

The plaintiff in the case, Reginald Kirtz, received a loan from the Department of Agriculture’s Rural Development Rural Housing Service, which issues loans to promote the development of safe and affordable housing in rural communities. Kirtz alleges that, even after his loan account was closed with a balance of zero, the RDRHS continued to report the status of Kirtz’s accounts as “120 Days Past Due Date” to Trans Union LLC, resulting in damage to his credit score. Kirtz disputed the inaccurate statement with Trans Union, which notified the RDRHS. But the agency took no action to investigate or correct the disputed information, in violation of the statute.

Kirtz sued, but the agency responded by filing a motion to dismiss for lack of subject matter jurisdiction based on the United States’ sovereign immunity. The district court agreed with the government that the statute did not unequivocally express Congress’s intent to waive sovereign immunity and granted the USDA’s motion to dismiss. But a panel of the U.S. Court of Appeals for the 3rd Circuit that included two former clerks to Justice Anthony Kennedy (who were appointed by presidents of different parties) reversed, concluding that “the FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government.” The court noted that “the Courts of Appeals to have considered this issue are split down the middle” on the issue, with the U.S. Courts of Appeals for the 4th and 9th Circuits holding that the United States is not subject to liability under the FCRA, and the U.S. Courts of Appeals for the D.C. and 7th Circuits holding that it is.

The Department of Redundancy Department now seeks review. The government opposed cert in Robinson when the split was then 2-1, saying that the then-sole outlier holding that the law allowed suit against the government had retreated from its position, suggesting the split might disappear on its own. But the split is now clearly entrenched. While Kirtz gamely argues that recent decisions have undermined decisions supporting sovereign immunity, the depth of the split suggests that this case is a likely grant.

Our second relist is a capital case, Clark v. Mississippi. Tony Terrell Clark alleges that the Mississippi Supreme Court willfully misapplied the Supreme Court’s decision in Batson v. Kentucky against him in holding that Clark was not denied equal protection of the law when the prosecutors struck all but one of the African-American potential jurors from his case, so that he was convicted of murder and sentenced to death by a jury that was overwhelmingly white. In a very fact-intensive petition, Clark argues that the Mississippi Supreme Court failed to compare the prosecution’s rationales for striking Black jurors based on their answers to the similar responses of white potential jurors. They argue that the court’s errors are reminiscent of those the Supreme Court found to constitute reversible error in 2019’s Flowers v. Mississippi.

The state contends that the potential jurors were legitimately struck because they had voiced opposition to the death penalty. The Supreme Court has rescheduled this case 10 times already, and the court has already requested a copy of the record. So clearly, at least one of the justices is taking a very close look at this case. Given how fact-intensive the case is, it seems more likely to be a candidate for a dissent from denial (or at most a summary reversal) than a candidate for plenary review.

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

New Relists

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 conference)

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.
(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; relisted after the June 1 conference)

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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 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 and June 1 conferences)