RELIST WATCH

Liability for undelivered mail and the chilling effect of subpoenas

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.

Two new cases were granted on Monday from the rolls of relisted cases. First, as I pledged in my last post, I am only too happy to eat crow after predicting that the court would not take one-time relist Villarreal v. Texas to answer the question whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess. So the court will be revisiting that issue for the first time since I graduated from college over 35 years ago. But that bad prediction – I swear I was just trying to goad the court into granting – is offset at least in part by the fact that the court finally granted in Ellingburg v. United States, a four-time relist for which “I rate[d] the odds of a grant” to be “high,” and which will address whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause.

Moving on: There are 202 petitions and applications that have been scheduled for this week’s conference. The justices will be discussing three of them for a second time.

Contrary to the occupation you might be expecting based on her last name, Lebene Konan is a landlord who owns rental properties in Euless, Texas. She alleges that U.S. Postal Service employees intentionally refused to deliver mail to her properties, causing tenants to move out and costing her at least $50,000 in rental income, plus emotional distress and the hassle of chasing down bills via FedEx.

Konan sued the USPS under the Federal Tort Claims Act, asserting claims under Texas law for nuisance, tortious interference, conversion, and intentional infliction of emotional distress. The FTCA generally waives sovereign immunity for torts by federal employees, but its postal exception preserves immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” The question is whether Konan’s claims, based on allegations of intentional nondelivery, fall within “loss” or “miscarriage” or instead slip through the cracks.

The district court dismissed Konan’s claims, finding them barred by the postal exception. It reasoned that “loss” and “miscarriage” cover intentional acts, as the statute only qualifies “transmission” with “negligent.” But the U.S. Court of Appeals for the 5th Circuit reversed, holding that the exception doesn’t apply to intentional nondelivery. The panel argued that “loss” implies unintentional destruction or misplacement, and “miscarriage” requires some attempt at carriage (like delivering to the wrong address). Becaues Konan alleged that USPS had deliberately refused to deliver the mail, her claims didn’t fit within the exception. The 5th Circuit acknowledged it was breaking ranks with the U.S. Courts of Appeals for the 1st, 2d and 8th Circuit, creating a circuit split sharper than a letter opener.

In United States Postal Service v. Konan, the government now seeks review. It notes the acknowledged circuit split, argues that “loss” and “miscarriage” are sufficiently broad to encompass claims of intentional nondelivery, and argues that langauge in the Supreme Court’s decision in Dolan v. USPS indicates that immunity covers situations when mail “fails to arrive at all.” The 5th Circuit’s reading, the solicitor general contends, creates a loophole allowing plaintiffs to dodge the exception by alleging intent, inviting a flood of lawsuits against an entity that delivers 318 million pieces of mail daily.

Opposing review, Konan defends the 5th Circuit’s reasoning, says the cases in the split implicate only theft (not refusal to deliver), and emphasizes the rarity of such lawsuits.

In an unusual move, Konan, reprented by the Stanford Law School Supreme Court Litigation Clinic, has filed a conditional cross-petition (Konan v. United States Postal Service) seeking review of portions of the 5th Circuit opinion in which the Postal Service prevailed. Konan argues that the 5th Circuit is the lone court on the wrong side of a split in holding that the statute that prohibits conspiracy to violate civil rights, 42 U.S.C. § 1985(3), does not apply to federal officials. And Konan argues that the 5th Circuit also erred (and walked into a three-way circuit split) when it held that under Section 1985(3), employees of the same entity cannot be deemed to “conspire” because their conduct is attributed to a single employer (the so-called “intracorporate conspiracy doctrine”).

The government doesn’t deny the split, arguing instead that it warrants further percolation because most of the cases in it predate a 2017 Supreme Court opinion saying that there are “sound reasons to conclude that … agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under § 1985(3).” The government also says there are several record-specific reasons to believe Konan should lose.

I rate the USPS petition a likely grant (which also explains the Stanford Clinic’s involvement in the case). Konan’s cross-petition is too hard to handicap.

Now on to First Choice Women’s Resource Centers, Inc. v. Platkin. First Choice Women’s Resource Centers is a New Jersey faith-based nonprofit that provides services to women facing unplanned pregnancies. In 2023, New Jersey Attorney General Matthew Platkin issued a subpoena demanding extensive records from First Choice, including donor information and internal communications. The attorney general’s office initiated this investigation under the New Jersey Consumer Fraud Act, saying it suspected that First Choice might be misleading women about offering abortion services.

First Choice challenged the subpoena in federal court, asserting that the demand infringed upon its First Amendment rights by potentially chilling free speech and association. A federal district court dismissed the case, deeming it unripe – that is, not yet ready for a court to review – because the state had not yet enforced the subpoena. The U.S. Court of Appeals for the 3rd Circuit affirmed. Subsequently, the New Jersey Superior Court ordered First Choice to comply with the subpoena, threatening sanctions for non-compliance.

First Choice returned to federal court, but the district court again dismissed the case, maintaining that the claims were still not ripe for adjudication. A divided panel of the 3rd Circuit affirmed in a non-precedential summary opinion. The majority held that First Choice’s First Amendment claims were not ripe. It reasoned that First Choice could continue to assert its constitutional claims in state court as that litigation unfolds, and it noted that the parties had agreed to negotiate to narrow the subpoena’s scope and the attorney general was now seeking donor information from only two websites.

Judge Stephanos Bibas dissented, saying he would find First Choice’s constitutional claims ripe because he believed that the case was indistinguishable from Americans for Prosperity Foundation v. Bonta, in which the Supreme Court invalidated under the First Amendment a California law requiring charitable organizations to disclose their principal donors to the attorney general’s office.

First Choice now petitions for review. It argues that there is a circuit split on the question when litigants can bring federal challenges to state investigatory demands. It argues, supported by eight amicus briefs, that such investigatory demands have a chilling effect on First Amendment rights.

In opposition, the New Jersey argues that the 3rd Circuit’s unpublished summary decision did not adopt a categorical rule on either side of the split. And it argues that the case is “an especially poor vehicle” because of its idiosyncratic facts – and in particular, the fact that the state is only seeking information for donors who contributed via websites “that do not include references to [First Choice’s] mission and operations.” The state argues that First Choice’s claims are “factbound,” and the brief unpublished decision will not have broad effects.

We should have a better sense soon whose version of events the justices find more persuasive. Until next time!

New Relists

United States Postal Service v. Konan, 24-351
Issue: Whether a plaintiff’s claim that she and her tenants did not receive mail because Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter. 28 U.S.C. 2680(b).
(Relisted after the April 4 conference.)

Konan v. United States Postal Service, 24-495
Issues: (1) Whether federal employees can be liable under the Ku Klux Klan Act; and (2) whether or under what circumstances the intracorporate conspiracy doctrine — which holds that employees of the same entity cannot be liable for conspiracy — applies to the act.
(Relisted after the April 4 conference.)

First Choice Women’s Resource Centers, Inc. v. Platkin, 24-781
Issue: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?
(Relisted after the April 4 conference.)

Returning Relists

Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)

Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)

Snope v. Brown, 24-203
Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)

L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)