Relist Watch

John Elwood reviews Monday’s relisted cases.

As the Term races toward its epic season finale, Court-watchers are bracing for surprise twists. Wild rumors abound: Lord Commander Roberts will be betrayed by those closest to him; a tenacious effort to resist the tide of history at the highest court in the land (not this one) will come up short; a tradition of confidentiality will be breached; and the quiet one will end months of silence with a statement that no one expected. Dubious? It bears remembering that most confident predictions about the Court never come to pass.

Meanwhile, let’s take a look at the plotlines the Court has already confirmed for next season. Last week’s relists yielded a couple of very special episodes.   Dollar General Corp. v. Mississippi Band of Choctaw Indians, 13-1496, involves whether Indian tribal courts have jurisdiction over civil tort claims against nonmembers who enter into consensual relationships with the tribe or its members. The Solicitor General dismissed the story pitch as unbelievable, but the Justices thought otherwise. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] Bruce v. Samuels, 14-844, meanwhile, involves a provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915, that requires prisoners filing civil cases in forma pauperis to pay filing fees through monthly payments of twenty percent of their income. The question is whether the statutory cap is twenty percent per case or whether it is a hard cap of twenty percent regardless of the number of cases filed.

Two other promising habeas corpus storylines were cancelled. Dunn v. DeBruce, 14-807, involving a death-row prisoner’s ineffective-assistance-of-counsel claims, had a good run at the Court, having been rescheduled twice and then relisted twice. Hittson v. Chatman, 14-8589, involved a notoriously complicated question related to Ylst v. Nunnemaker that we have gone to lengths to avoid discussing, met its end after being rescheduled and then relisted three times. Hittson’s departure was met with a short concurrence from Justice Ginsburg, joined by Justice Kagan, and sighs of relief from Supreme Court beat reporters grateful they’ll never have to explain it.

The rest of last week’s cases got callbacks for another chance to try to impress the producers. Jordan v. Fisher, 14-8035, avoided our attempt to jinx it (by suggesting we’d be getting an opinion) and now has as many relists since receipt of the record as The Sopranos had seasons (six). The petition asks (1) whether it is error to deny a habeas petitioner a certificate of appealability in a case in which the state supreme court was divided and another federal court of appeals would recognize the claim; and (2) whether the fact that the prosecutor did not expand the sentence to which the defendant was exposed prohibits a finding of prosecutorial vindictiveness. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Joyner v. Barnes, 14-395, is close behind with five relists. It asks whether “the Fourth Circuit contravene[d] § 2254 (d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied ‘clearly established’ law when they held that third-party religious discussions with jurors did not concern ‘the matter[s] pending before the jury[.]’”

Two long-running series got picked up for a fourth season. To those who have been under a rock, Fisher v. University of Texas at Austin, 14-981, involves an Equal Protection Clause challenge to UT’s use of race in undergraduate admissions. Currier v. Jackson Women’s Health Organization, 14-997, involves the constitutionality of Mississippi legislation requiring its lone abortion clinic to comply with health regulations for outpatient surgical facilities, and requiring physicians working there to have admitting privileges at a local hospital. Perhaps Judge Garza, who dissented in both cases, needs to prepare a dramatic TV spot explaining why review is warranted. The mittens of disapproval are on.

When the Court first began routinely rescheduling cases last fall, those cases rarely met with success. Last week, Luis v. United States, 14-419, which began its life as a lowly rescheduled case, was granted after three relists. This week, two more rescheduled cases have been promoted to relists, suggesting that rescheduling is not just a way station on the train to doom. Umaña v. United States, 14-602, involves a double homicide over a restaurant jukebox. Umaña’s petition argues that the government improperly used hearsay testimony about other homicides in sentencing without permitting him to confront or cross-examine his accusers. Kingdomware Technologies, Inc. v. United States, 14-916, involves a provision of the Veterans Benefits Act that requires the Veterans Administration to restrict contracting competition to veteran-owned small businesses when there is a reasonable expectation that at least two such small businesses will submit fair and reasonable offers. The section states that this requirement exists for purposes of meeting certain annual goals that the VA must set for the participation of veteran-owned small business in its contracts. The VA interpreted the purposes language to mean that it does not have to comply with the requirement unless limiting competition is necessary to meet the goals. Kingdomware Technologies, a veteran-owned small business that sounds like a company the second-least popular kids in your high school would run (the least-popular kids wrote the relist blog), challenged this interpretation in bid protests. The Federal Circuit sided with the VA. Kingdomware’s petition asks whether the purposes language of the law is explanatory or whether it makes the entire section discretionary.

We also have four cases that went straight to relist. Maryland v. Kulbicki, 14-848, involves a murder conviction from back when Friends was a hit new series rather than a one-word summary of everything that was wrong with the era. During Kulbicki’s trial, the state introduced comparative bullet-lead analysis, which compares the lead in bullets to determine if they came from the same box. A decade later, the FBI abandoned that technique as unreliable. During post-conviction proceedings, Kulbicki argued that his trial counsel was ineffective for not challenging the use of the analysis, noting that the very agent who performed the analysis had conducted a study showing problems with the technique. By a one-vote margin, Maryland’s highest court agreed with Kulbicki. In its cert. petition, Maryland argues that it would have been difficult for Kulbicki’s attorney to find studies criticizing the technique in the mid-nineties because most of them had not yet been written and it would have been hard to find them because Al Gore was still working on the Internet. The petition asks if an appellate court violates Strickland v. Washington when it assesses trial counsel’s performance based on scientific advances not available at the time of the trial. And so the relist Kabuki dance begins.

Haven’t we already had enough of cases captioned Johnson v. United States? This version of Johnson v. United States, 14-1006, involves a petitioner who had the innovative idea of paying the employees of her landscaping and snow-removal company by applying for unemployment benefits in their names and using the proceeds to pay them. Apparently, such conduct is frowned upon, because Johnson and her son were convicted of wire fraud and, in addition to prison time, were ordered to pay $315,470 in restitution. In her cert. petition, Johnson asks whether restitution is a criminal penalty subject to the Sixth Amendment requirement that the government allege in the indictment and prove to a jury beyond a reasonable doubt any fact that would increase the amount of punishment.

Sticking with crime dramas, the petitioner in Carlton v. United States, 14-8740, got a visit from his kids and their mother while in prison for a drug offense. Just as there are traditional gifts for wedding anniversaries and various special events, the mother brought with her the traditional gift for letting a special inmate know, “I care”: forty to fifty marijuana-filled latex gloves hidden inside her bra. Transferring the pot from her bra to her toddler’s clothing and thence to Carlton’s mouth (and digestive tract), the stage was set for Carlton to supplement the meagre minibar offerings at the Greystone Hotel. However, prison officials got wise and moved petitioner to a room with no water until he, ahem, relieved himself of the packages he had swallowed (note to self: the Big House is not nearly as fun as television makes it sound).   Carlton was convicted of possessing contraband, and the government obtained a sentencing enhancement for distribution arguing that the mother had testified petitioner used his excretory system for smuggling in order to pay a debt (this is why we only accept bitcoin). Trial counsel acknowledged “that’s what [the mother] testified to, but . . . nothing else has been provided to prove that fact.” The problem was, she hadn’t actually testified to that; no one had. The Fifth Circuit held that the district court’s error in finding that enhancement supported was a fact-finding mistake Johnson had forfeited by not objecting and that, under circuit precedent, it could never constitute plain error. Judge Prado wrote in a concurring opinion that the Fifth Circuit’s approach is contrary to the text of the plain-error rule, Supreme Court precedent, and the practice of every other circuit. Some of the very best cert. petitions are written by court of appeals judges.

If your reaction to our final relist is “hey, I know that case,” you’re right — and you need to get a life. Ford Motor Company v. United States, 14-1085, first appeared in this space when its previous incarnation was relisted in November 2013. Back in the Eighties, Ford responded to an IRS notice that it had underpaid its taxes by making a remittance (no latex gloves were involved) while an audit was ongoing, and later requested that the IRS treat the funds as advance payments on the money Ford owed. For the first and only time in our fortunate Nation’s history, the government was mistaken: Ford had actually overpaid its taxes. Interest is calculated from “the date of overpayment,” but the parties disputed whether that meant the date Ford paid the money or the date it asked the IRS to treat the money as tax payments. The difference is a cool $445 million – enough to pay interest on the federal debt for nearly three hours. Ford’s resulting lawsuit led to a second disagreement – over which U.S. Code provision waives sovereign immunity. The government won in the Sixth Circuit, but when Uncle Sam changed his position on cert., the Court granted, vacated, and remanded so the court of appeals could be the first to pass on the new argument. On remand, the Sixth Circuit again sided with the government. Ford’s new-for-2015 cert. petition asks (1) whether the Sixth Circuit improperly held Ford to a heightened burden construing the substantive interest provision at issue because the provision was read to be a waiver of sovereign immunity and (2) whether the Sixth Circuit improperly frustrated Ford’s right to rely on the IRS’s published guidance materials. We’ll find out soon whether the relist means there will be more exciting news for Ford for 2016.

Last up we have previews of coming attractions. Three petitions have been rescheduled. First is Friedrichs v. California Teachers Association, 14-915, a challenge to a California “agency shop” law requiring most of its public school teachers to contribute to the local teachers’ union. The law also requires teachers to subsidize expenditures unrelated to collective bargaining unless the teacher affirmatively objects in writing every year. The petition asks (1) “whether Abood v. Detroit Bd. of Ed. should be overruled and public-sector ‘agency shop’ arrangements invalidated under the First Amendment” and (2) “whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.” The Court’s recent decision in Knox v. Service Employees International Union, Local 1000 suggests that a majority of the Court considers existing doctrine in this area “something of an anomaly,” so the Court may be taking a close look. But would there now even be time left for a grant before the summer recess? And was the point of rescheduling it to push a decision off until the fall?

The other two rescheduled cases involve the Speech or Debate Clause of the Constitution. The first petitioner is former Representative Richard Renzi, who was charged with extorting private investors to buy land owned by his friend and business partner in exchange for a promise to support federal land-exchange legislation. Renzi v. United States, 14-1082, asks whether the Speech or Debate Clause protects (1) legislative fact-finding by a member of Congress and (2) the actions of a member of Congress in developing, evaluating and drafting legislation prior to the formal introduction of a bill. Renzi also asks (3) whether a member of Congress can waive the protections of the Speech or Debate Clause only by explicitly and unequivocally renouncing them. His co-defendant, James W. Sandlin, a private citizen, argues in Sandlin v. United States, 14-1083, that he should benefit if Renzi wins as they were tried together using the same evidence.

None of these newly rescheduled cases have been assigned new Conference dates yet. However, note that Self-Insurance Institute of America v. Snyder, 14-741, which was rescheduled with Kingdomware and Umaña, is back on the docket this week. We will have more to say about it next week if it follows its compatriots in obtaining a relist. Until then, if you’re really bored, you can read our last post about it.

Thanks to Stephen Gilstrap and Dmitry Slavin for compiling and drafting this update.

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14-8035
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.

Issue(s): (1) Whether it is error to deny a habeas petitioner a certificate of appealability in a case in which the state supreme court was divided and another federal court of appeals would recognize his claim; and (2) whether the fact that the prosecutor did not expand the sentence to which the defendant was exposed prohibits a finding of prosecutorial vindictiveness.

(relisted after the April 17, April 24, May 1, May 14, May 21, May 28, June 4, and June 11 Conferences)

14-395

Issue(s): Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied "clearly established" law when they held that third-party religious discussions with jurors did not concern "the matter[s] pending before the jury."

(relisted after the May 14, May 21, May 28, June 4, and June 11 Conferences)

14-981

Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

(relisted after the May 21, May 28, June 4, and June 11 Conferences)

14-997

Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment requires Mississippi to exempt physicians at the State’s only abortion clinic from complying with a medically legitimate health and safety regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether Mississippi House Bill 1390, which requires that abortion physicians have admitting privileges at a local hospital to handle complications that require emergency hospitalization, imposes an undue burden under Planned Parenthood v. Casey regardless of the geographical availability of abortion services in adjoining states in light of the equal protection principle articulated in Missouri ex rel. Gaines v. Canada.

(relisted after the May 21, May 28, June 4, and June 11 Conferences)

14-602

Issue(s): Whether, at capital sentencing, the government may seek to prove the aggravating factor that the defendant committed previous unadjudicated murders through hearsay statements to police of other suspects in those murders, without permitting the defendant to confront or cross-examine his accusers.

(relisted after the June 11 Conference)

14-848

Issue(s): Whether an appellate court violates the core principles of Strickland v. Washington when it conducts a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial.

(relisted after the June 11 Conference)

14-916

Issue(s): Whether the Federal Circuit erred in construing 38 U.S.C. § 8127(d)'s mandatory set-aside restricting competition for Department of Veterans Affairs' contracts to veteran-owned small businesses as discretionary.

(relisted after the June 11 Conference)

14-1006

Issue(s): Whether restitution imposed on a criminal defendant is a criminal penalty subject to the requirement under the Sixth Amendment that the government allege in the indictment and prove to a jury beyond a reasonable doubt any fact that increases the amount of criminal sentences, penalties, and punishments.

(relisted after the June 11 Conference)

14-1085

Issue(s): 1. Whether the Sixth Circuit improperly held petitioner to a heightened burden in construing the substantive interest provision of 26 U.S.C. § 6611; and (2) whether the Sixth Circuit improperly frustrated petitioner's right to rely on the Internal Revenue Service’s own published guidance materials.

(relisted after the June 11 Conference)

14-8740

Issue(s): Whether the Fifth Circuit's decision in United States v. Lopez, as applied in this case to hold that factual-finding errors are not cognizable on plain-error review of a criminal sentence, is contrary to the text of Federal Rule of Criminal Procedure 52(b), United States v. Olano, and Puckett v. United States.

(relisted after the June 11 Conference)

Posted in: Cases in the Pipeline

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