RELIST WATCH

The last grants of October Term 2022?

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 announced that it would hold its “mop up” conference for October Term 2022 on Thursday, after completing the day’s opinion announcements. The court considered 46 cases at the conference; it was considering 17 for the second time. Given the shortness of time, I won’t analyze each, but the cases present a variety of subjects: the breadth of Title VII of the Civil Rights Act of 1964; qualified immunity; separation of powers, nondelegation, and the Seventh Amendment right to a jury trial; the scope on statutory bars to review of immigration decisions; the form of notice the government must provide in immigration cases; the scope of a statutory bar from discretionary relief from removal for people convicted of crimes of child abuse; and whether a statute that prohibits the possession of firearms by individuals subject to domestic-violence restraining orders violates the Second Amendment on its face. That last case, United States v. Rahimi, which involves a petition for review by the federal government, strikes me as a particularly likely candidate for review.

A state court in Texas entered a restraining order against the defendant in the case, Zackey Rahimi, in early 2020. The order stemmed from an incident in which Rahimi knocked his girlfriend to the ground and pushed her into his car, causing her to hit her head against the dashboard. He later called her and told her he would shoot her if she told anyone about the assault. While the order was in effect, police searched Rahimi’s home because he was a suspect in a series of shootings. They found two guns and ammunition, leading to a charge for violating the ban on gun possession by individuals subject to a domestic-violence restraining order. Rahimi pleaded guilty and was sentenced to 73 months in prison.

Rahimi contended that his conviction violated his Second Amendment rights. The U.S. Court of Appeals for the 5 th Circuit initially rejected that argument, but after the Supreme Court’s June 2022 decision in in New York State Rifle and Pistol Association v. Bruen, it agreed that the ban is unconstitutional.

The federal government now asks the justices to weigh in on the case, arguing that the domestic violence ban is constitutional. The government points to a long history of restricting gun ownership by people who pose a threat to others. 

That’s all for this term. Thank you all for tuning in and for putting up with the drastically reduced humor content – which is a regrettable side effect of the fact that I’m doing all the work myself this term. Have a good summer and stay safe!

New Relists

Muldrow v. City of St. Louis, Missouri, 22-193
Issue: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination as to all “terms, conditions, or privileges of employment,” or whether its reach is limited to discriminatory employer conduct that courts determine causes materially significant disadvantages for employees. CVSG: 5/18/2023
(relisted after the June 22 conference)

Davis v. Legal Services Alabama, Inc., 22-231
Issue: Whether Title VII of the Civil Rights Act of 1964 and Section 1981 of Title VII prohibit discrimination as to all “terms,” “conditions,” or “privileges” of employment, or are limited to “significant” discriminatory employer actions only. CVSG: 5/18/2023
(relisted after the June 22 conference)

Lombardo v. City of St. Louis, Mo., 22-510
Issue: Whether, when officers put a handcuffed and shackled person face-down on the floor and pushed into his back until he died, they are they entitled to qualified immunity as a matter of law because the person struggled to breathe before dying.
(relisted after the June 22 conference)

N.S. v. Kansas City Board of Police Commissioners, 22-556
Issues: (1) Whether qualified immunity insulates a law enforcement officer from liability under 42 U.S.C. § 1983 if there is no factually identical precedent establishing the unconstitutionality of that officer’s conduct, or whether a constitutional right can be “clearly established” by precedent with some factual variation so long as the officer has fair notice that his conduct is unconstitutional; and (2) whether the judge-made doctrine of qualified immunity should be narrowed or abolished.
(relisted after the June 22 conference)

Bystron v. Garland, 22-617
Issues: (1) Whether 8 U.S.C. § 1252(a)(2)(D) bars review of an asserted question of law where a noncitizen has challenged the Board of Immigration Appeals’ interpretation of the statutory extreme hardship standard found at 8 U.S.C. § 1182(h)(1)(B); and (2) whether the Board’s statutory interpretation regarding hardship eligibility falls within the exercise of its inherent discretionary authority, or is a nondiscretionary action that precedes its ability to exercise discretion.
(relisted after the June 22 conference)

Wilkinson v. Garland, 22-666
Issue: Whether an agency determination that a given set of established facts does not rise to the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).
(relisted after the June 22 conference)

Campos-Chaves v. Garland, 22-674
Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.
(relisted after the June 22 conference)

McElrath v. Georgia, 22-721
Issue: Whether the double jeopardy clause of the Fifth Amendment prohibits a second prosecution for a crime of which a defendant was previously acquitted.
(relisted after the June 22 conference)

Gomez-Vargas v. Garland, 22-734
Issue: Whether an agency determination that a given set of established facts does not rise to the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).
(relisted after the June 22 conference)

Securities and Exchange Commission v. Jarkesy, 22-859
Issues: (1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
(relisted after the June 22 conference)

Diaz-Rodriguez v. Garland, 22-863
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Kerr v. Garland, 22-867
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Bastias v. Garland, 22-868
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Garland v. Singh, 22-884
Issue: Whether the failure to receive, in a single document, all of the information specified in paragraph (1) of 8 U.S.C. § 1229(a) precludes an additional document from providing adequate notice under paragraph (2) of that section, and renders any in-absentia removal order subject, indefinitely, to rescission.
(relisted after the June 22 conference)

United States v. Rahimi, 22-915
Issue: Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
(relisted after the June 22 conference)

Jarkesy v. Securities and Exchange Commission, 22-991
Issue: Whether, under special review statute 15 U.S.C. § 78y, circuit courts on a petition for review of a Securities and Exchange Commission final order resolving an enforcement adjudication may “remand” back to the agency after overturning the final order because the proceedings were conducted in violation of law or the Constitution, where Section 78y expressly vests only the jurisdiction to “affirm,” “modify,” or “set aside” the order and does not confer jurisdiction to remand.
(relisted after the June 22 conference)

Gonzalez-Rivas v. Garland, 22-1038
Issue: Whether the conclusion that undisputed facts do not satisfy the “exceptional and extremely unusual hardship” standard is a reviewable “question of law” under 8 U.S.C. § 1252(a)(2)(D).
(relisted after the June 22 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, June 1, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8, June 15 and June 22 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, June 8 and June 15 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, June 8, June 15 and June 22 conferences; rescheduled before the Apr. 21 and May 11 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, June 8, June 15 and June 22 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)

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.
(relisted after the June 8, June 15 and June 22 conferences)

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.
(relisted after the June 8, June 15 and June 22 conferences)

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, June 15 and June 22 conferences; rescheduled before the May 11, May 18, May 25, and June 1 conferences)