Relist Watch
on Mar 1, 2018 at 10:06 am
John Elwood finally reviews Monday’s relists.
This week’s installment is going to be even more slapdash brief than usual, because it’s been (and remains) an unusually busy week. And I’m not just talking about my being forced to multitask because of all my responsibilities. The Supreme Court also was quite busy this week with relists. As always happens, just as soon as I say “it’s about time for us to be seeing opinions of some sort” in the repeatedly relisted cases, the court instead granted outright, in the thrice-relisted New Prime Inc. v. Oliveira, 17-340, the twice-relisted Mount Lemmon Fire District v. Guido, 17-587, and the one-time relist Madison v. Alabama, 17-7505. Not all the news was good on the relist front, though. The court denied the Justice Department’s petition for certiorari before judgment in Department of Homeland Security v. Regents of the University of California, 17-1003. But at least the court explicitly “denied without prejudice,” and did so with the observation that “[i]t is assumed that the Court of Appeals will proceed expeditiously to decide this case.” No pressure, guys.
Hot on the heels of last week’s blockbuster 10 new relists, we have five new cases this week. Bank Melli v. Bennett, 16-334, involves the scope of the Foreign Sovereign Immunities Act. The court has been holding this case for Rubin v. Islamic Republic of Iran, which presented the same issue, and which the court decided last week. The court must now decide what to do with Bank Melli: whether to grant, vacate and remand for further consideration in light of Rubin, or whether (as Bank Melli advocated) the court should review this case because “[i]t presents a second important circuit conflict” in addition to the one present in Rubin. We’ll know the answer soon.
The court also relisted Oliver v. McDaniels, 17-682, a state-on-top case arguing that a woman convicted of third-degree murder did not exhaust her double jeopardy claim as required for collateral review and that the lower court improperly concluded that the double jeopardy clause barred her retrial. I’d know more about the case, but (1) the petition was one of the last to be filed before the court started requiring electronic filing; and (2) the state hasn’t responded to my requests to send me a copy of the petition. Don’t expect any action in this case on Monday, though: The court requested the record after relisting the case, and the justices will want to review it before acting. Obviously, they’re taking a close look at this case.
Sause v. Bauer, 17-742, represents an unusual opportunity for a sitting federal court of appeals judge to get a case granted. The (relatively) newly minted Judge James Ho of the U.S. Court of Appeals for the 5th Circuit filed this petition back in November 2017. The petition states that two law-enforcement officers stopped the petitioner from praying silently in her own home while they were there to investigate a noise complaint. The U.S. Court of Appeals for the 10th Circuit concluded that the officers were entitled to qualified immunity on the grounds that the case involved “a unique set of facts and circumstances” and Sause hadn’t “identified a single case in which this court, or any other court for that matter, has found a First Amendment violation based on a factual scenario even remotely resembling [it].” The petition asks whether that decision conflicts with Hope v. Pelzer, which it argues “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.
The next two new relists are capital cases. Wessinger v. Vannoy, 17-6844, involves counsel’s obligation to investigate mitigation evidence in a death-penalty case even if the court refuses a request for funds to conduct such an investigation. Evans v. Mississippi, 17-7245, raises a question that should seem familiar, because it is the very same one presented in seven-time relist Hidalgo v. Arizona, 17-251, namely whether the death penalty is per se unconstitutional. Speaking of Hidalgo v. Arizona, after seven relists, it’s about time for us to be seeing opinions of some sort in that case.
I will end this post the same way I started it: by making no sense at all. For weeks I’ve only discussed new relists as a time-saving measure. But this week I feel compelled to note something about one of last week’s relists. Gates v. United States, 17-6262, involved an argument that the sentencing guidelines provision Gates was sentenced under was unconstitutionally vague. In its brief in opposition, the government noted that the petitioner’s release date from prison was January 31, 2018, and argued that his challenge, which would “affect[] only the length of his sentence rather than the underlying conviction, … will become moot on that date.” Gates’ next brief, which was just one paragraph long, ended in a way that may be unprecedented for a cert-stage reply brief: “This Court should deny Mr. Gates’s Petition for a Writ of Certiorari.” So now, we must ask: Why did the court need to relist a case twice when both parties agreed it should be denied? Is someone brewing up an opinion on mootness?
Thanks to Kevin Brooks for speedily compiling the relists, even if I couldn’t slap this update together as speedily.
New Relists
Issues: (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.
(relisted after the February 23 conference)
Issues: (1) Whether a one-sentence allegation of fact in the background section of the prisoner’s state court brief for appellee is sufficient to exhaust a novel and complex federal constitutional double jeopardy claim; and (2) whether it is unreasonable to conclude that double jeopardy did not bar retrial, when the Supreme Court has repeatedly indicated that double jeopardy does not apply if the trial court lacked the power to enter a verdict.
(relisted after the February 23 conference)
Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.
Issues: (1) Whether counsel in a death-penalty case has a duty to investigate mitigation evidence, even when a state post-conviction court refuses a request for funds to conduct such an investigation; (2) whether the state court’s denial of counsel’s request for funds to conduct an investigation of mitigation evidence constitutes “cause” to overcome procedural default when that denial operated as an objective factor external to the defense that impeded the development and presentation of an ineffective-assistance-of-trial-counsel claim during the state-court proceeding; (3) whether the state court’s denial of counsel’s request for funds to conduct such an investigation renders the available state corrective process ineffective to protect the rights of the applicant under 28 U.S.C. § 2254(b)(1)(B)(ii), such that state-court exhaustion of a claim of ineffective assistance of trial counsel based on the results of such an investigation is not required.
(relisted after the February 23 conference)
Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.
(relisted after the February 23 conference)
Returning Relists
Sykes v. United States, 16-9604
Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5, January 12, January 19, February 16 and February 23 conferences)
Issues: (1) Whether Arizona’s capital-sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
(relisted after the December 1, December 8, January 5, January 12, January 19, February 16 and February 23 conferences)
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.
(relisted after the January 5, January 12, January 19, February 16 and February 23 conferences)
Garco Construction, Inc. v. Secretary of the Army, 17-225
Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.
(relisted after the January 12, January 19, February 16 and February 23 conferences)
Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.
(relisted after the January 12, January 19, February 16 and February 23 conferences)
Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.
(relisted after the January 19, February 16 and February 23 conferences)
Scott v. Federal Deposit Insurance Corporation, 17-567
Issue: Whether the administrative law judges of the Federal Deposit Insurance Corporation are inferior officers under the appointments clause, U.S. Const. Art. II, § 2, Cl. 2.
(relisted after the February 16 and February 23 conferences)
Knick v. Township of Scott, Pennsylvania, 17-647
Issues: (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.
(relisted after the February 16 and February 23 conferences)
Allen v. United States, 17-5864
Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.
(relisted after the February 16 and February 23 conferences)
Gundy v. United States, 17-6086
Issues: (1) Whether convicted sex offenders are “required to register” under the federal Sex Offender Notification and Registration Act while in custody, regardless of how long they have until release; (2) whether all offenders convicted of a qualifying sex offense prior to SORNA’s enactment are “required to register” under SORNA no later than August 1, 2008; (3) whether a defendant travels in interstate commerce for purposes of 18 U.S.C. § 2250(a) when his only movement between states occurs while he is in the custody of the Federal Bureau of Prisons and serving a prison sentence; and (4) whether SORNA’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.
(relisted after the February 16 and February 23 conferences)
James v. United States, 17-6769
Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.
(relisted after the February 16 and February 23 conferences)
Gates v. United States, 17-6262
Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.
(relisted after the February 16 and February 23 conferences)
