RELIST WATCH

Funding for Native healthcare programs, and the Armed Career Criminal Act returns

 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.

Since our last installment, the Supreme Court has continued slowly chipping away at the still-sizable number of lingering relists from the end-of-summer “long conference.” The court denied review in five-time relist Johnson v. Prentice, involving an Illinois prisoner’s claim that his nearly three-year term of solitary confinement constituted cruel and unusual punishment prohibited by the Eighth Amendment. Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, filed an opinion dissenting from the denial of certiorari, arguing that the U.S. Court of Appeals for the 7th Circuit had applied the wrong standard and had failed to consider whether prison officials had acted with deliberate indifference to the substantial risk that such long isolation in unsanitary conditions and, for periods, without exercise, posed to the health and safety of petitioner Michael Johnson. But remarkably, seven relisted petitions still remain from the long conference.

As anticipated, the court granted review in one-time relist Diaz v. United States. It presents the question whether, in prosecuting a woman accused of smuggling drugs into the United States, the government can introduce expert testimony that most couriers know they are carrying drugs and that drug-trafficking organizations do not typically entrust large quantities of drugs to unwitting transporters.

That brings us to this week’s conference. The court will be considering 141 petitions and applications at this week’s conference. Five of those cases are first-time relists, raising two distinct questions.

Two cases, Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe, involve federal funding of health services for Native American tribes. The Indian Health Service is an agency within the U.S. Department of Health and Human Services that administers health care programs for tribes. To promote tribal self-governance, Congress allows tribes to contract with the Indian Health Service to oversee these programs themselves. Tribes that choose to do so receive federal funding equivalent to what the IHS itself would have spent if the agency had provided the services directly. The program also provides for the agency to pay the tribe “contract support costs” that the tribe uses to run the program, because it lacks the existing bureaucracy to operate the program. Separately, federal law also permits tribes to negotiate their contracts with the IHS to allow the tribe to bill its members’ insurance (whether private insurance, federal Medicare or Medicaid, workers’ compensation, or some other kind) for the services provided. Under federal law, tribes are allowed to keep insurance payments so long as they spend the proceeds on health care.

The legal dispute concerns the extra contract support costs that the tribes use to administer health programs. Is the tribe entitled to only enough to cover the IHS-funded activities? Or must the agency also fund the tribe’s activities used to provide services that are covered by insurance? In 2021, a (very high-powered) panel of the U.S. Court of Appeals for the D.C. Circuit held (in a case involving Washington State’s Swinomish Indian Tribal Community) that such tribes are only entitled to contract support costs sufficient to cover IHS-funded activities. But in 2022, a panel of the U.S. Court of Appeals for the 9th Circuit held, in a case involving Arizona’s San Carlos Apache Indian Tribe, that the payments must also include services covered by insurance. The court considered the statutes ambiguous, which meant that under normal principles of Indian Law, they must be construed in favor of the tribe. And in 2023, a divided panel of the U.S. Court of Appeals for the 10th Circuit reached the same basic conclusion in three separate opinions in a case involving Wyoming’s Northern Arapahoe Tribe.

The government has petitioned for review in both cases, arguing that Becerra v. San Carlos Apache Tribe presents the better vehicle and should be the lead case in which the Supreme Court hears argument. Both tribes agree that review is warranted, and the Northern Arapaho Tribe gamely argues that its case presents the better vehicle. I suspect the Supreme Court will grant review, hear argument, and reverse, with Justice Neil Gorsuch dissenting. But I’m getting ahead of myself.

Our next three relists — Erlinger v. United States, Thomas v. United States, and Valencia v. United States — all involve the Armed Career Criminal Act, a federal law that imposes a 15-year minimum sentence, and permits a maximum sentence of life imprisonment, for unlawful possession of a firearm if the defendant has three prior qualifying convictions for offenses “committed on occasions different from one another.” The Supreme Court has held that the the Fifth and Sixth Amendments require that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury” and “found beyond a reasonable doubt,” subject only to a “narrow exception … for the fact of a prior conviction,” which can legitimately be the subject of judicial factfinding. These three cases are sequels to Wooden v. United States, in which the court held that determining whether the crimes arose from a “single criminal episode” requires consideration of the facts of the case. The petitioners in these three cases argue that the analysis required by Wooden takes them outside the exception for the “fact of a prior conviction” that judges are still permitted to determine for sentencing purposes, and means that juries must make that determination.

The government not only agrees that review is warranted on this issue, but it has confessed error, agreeing with the petitioners that the decisions below are incorrect. It also says that all three cases are suitable vehicles for resolution of the issue. It thus notes that, “if this Court grants review, it may wish to consider an amicus to defend the holding of the court of appeals.” Because petitioner Paul Erlinger is represented by one of the most experienced Supreme Court advocates in the country (with 108 Supreme Court arguments under his belt), that case may be the favorite.

We should know soon; I rate this issue an almost certain grant. On the day the justices voted to relist this case, the U.S. Court of Appeals for the 4th Circuit denied rehearing en banc, with seven of the judges expressing their view that the defendant’s legal argument is correct, but voting against rehearing because “[t]his appeal raises an important and recurring issue that should be considered by the Supreme Court.” Two other judges thought the defendant should lose but likewise “urg[ed] the Supreme Court to give the courts of appeals guidance in this important matter.”

Until next time, stay safe!

New Relists

Becerra v. San Carlos Apache Tribe, 23-250
Issue: Whether the Indian Health Service must pay “contract support costs” not only to support IHS-funded activities, but also to support the tribe’s expenditure of income collected from third parties.
(relisted after the Nov. 9 conference)

Becerra v. Northern Arapaho Tribe, 23-253
Issue: Whether the Indian Health Service must pay “contract support costs” not only to support IHS-funded activities, but also to support the tribe’s expenditure of income collected from third parties.
(relisted after the Nov. 9 conference)

Erlinger v. United States, 23-370
Issue: Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.
(relisted after the Nov. 9 conference)

Thomas v. United States, 23-5457
Issue: Whether a district court judge properly found, by a preponderance of the evidence, the uncharged, non-elemental fact that a person committed three prior offenses “on occasions different from one another,” as required by the Armed Career Criminal Act, or whether the Constitution requires that fact to be charged in the indictment and proven to the jury beyond a reasonable doubt.
(relisted after the Nov. 9 conference)

Valencia v. United States, 23-5606
Issue: Whether the Fifth and Sixth Amendments of the U.S. Constitution require that facts to prove a defendant’s prior convictions were for offenses committed on “occasions different from one another,” for purposes of increasing the minimum and maximum sentences under the Armed Career Criminal Act, be alleged in the indictment and either proven to a jury beyond a reasonable doubt or admitted to by the defendant.
(relisted after the Nov. 9 conference)

Returning Relists

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

E.I. du Pont de Nemours & Co. v. Abbott, 23-13
Issue: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in a multi-district litigation.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

Payne v. Biden, 22-1225
Issues: (1) Whether the judgment below should be vacated and the case remanded for dismissal as moot under United States v. Munsingwear, Inc; and (2) alternatively, whether the judgment below should be vacated and the case remanded for further consideration in light of Axon Enterprise v. Federal Trade Commission.
(relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)

Biden v. Feds for Medical Freedom, 23-60
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its order granting a preliminary injunction as moot.
(rescheduled before the Sept. 26 conference; relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3 and Nov. 9 conferences)