John Elwood (briefly) reviews Monday’s relisted cases.

After a blessed week off, Relist Watch is back from its “fall break.” And we are feeling pretty good about ourselves. Why? With October finished, baseball is over, basketball is meaningless, and college football won’t really matter for at least another month. Even Oscar season doesn’t begin for another couple weeks. That leaves America with only two real entertainment options: listening to Adele’s leaked album on loop until Thanksgiving or tuning in for another week of Supreme Court arcana. For a certain demographic – by which I mean immediate relatives of Relist Watch staff and their probation officers – it’s really no choice.

As usual, we start with the winners. Voisine v. United States, 14-10154, was the lone grant among the relists. Voisine was closely watched by gun rights advocates everywhere because the second question presented involved a Second Amendment challenge to the constitutionality of 18 U.S.C. § 922(g)(9), prohibiting gun possession by persons convicted of a misdemeanor crime of domestic violence. Much to their chagrin, the Supreme Court – in keeping with its recent practice – only granted cert. on the first question presented: whether “a misdemeanor crime with the mens rea of recklessness qualif[ies] as a ‘misdemeanor crime of domestic violence.’”

But don’t give up hope just yet, Second Amendment aficionados: there is another. Friedman v. City of Highland Park, 15-133, stuck around for its third re-list. This was, and is, the glamour case among the OT2015 Second Amendment relists, a high-profile challenge to the constitutionality of a city ordinance that bans assault weapons and high-capacity magazines. To be sure, all the statistics suggest that the odds of a grant start falling off around the third relist. But this fall has been a time for beating the odds.

Friedman is a spring chicken compared to our longest-running relist, Mullenix v. Luna, 14-1143, which notched its sixth relist. The case is a state-on-top petition seeking to revisit the denial of qualified immunity to a police officer who shot at a moving vehicle to stop a fleeing suspect who had threatened police. The Court has, on occasion, granted cert. after six relists – mostly, one imagines, to make me look stupid. But at this point, particularly in a qualified immunity case, you begin to expect to see an opinion of some sort (either dissenting from denial or a summary reversal). Given the number of relists and the type of case, Court-watchers should consider this one in the bag.

Left-0f-center types have learned from bitter experience to be wary of cases involving bad acronyms. In that department, we have New Hampshire Right to Life v. Department of Health and Human Services, 14-1273. Wholly apart from the fact that the acronym for the petitioner’s name sounds eerily like the single worst cartoon character of all time, that four-time relist concerns a FOIA request for records related to a government grant to Planned Parenthood. The Court also re-listed for a second time in Nichols v. United States, 15-5238, whose facts sound like the plot of a rejected Farrelly brothers project: Nearly identical sex offenders from the same city (Kansas City) both move to the same foreign country (the Philippines) without updating their sex offender registry information; because courts on either side of the Missouri River have differing views of the law, one becomes a jailbird while the other goes on to become a major political party’s leading candidate to be president. OK, I’ve double-checked my notes, and technically, that last part is completely made up. But in any event, the outcome in their cases was quite different. In addition to a question involving what the Sex Offender Registration and Notification Act prohibits, the petition also asks whether SORNA’s delegation of authority to the attorney general to issue regulations regarding who would be prosecuted violates the non-delegation doctrine.

We say au revoir to our remaining relist from last week, Jacobs v. Louisiana, 15-5004, which ends its threepost run here. This relisted case involving an Eighth Amendment challenge to discretionary juvenile life sentences has been downgraded to a hold, likely pending the outcome of Montgomery v. Louisiana, 14-280, involving the retroactivity of the rule prohibiting mandatory sentences of life imprisonment for juveniles.

But the Court has more than made up for the loss of Jacobs, relisting thirteen – count them, thirteen! – new relists. For those of you who have no desire to read thirteen hyperlink-encrusted paragraphs, stay put. Most of that bunch relate to one issue – contraception, and specifically the validity of the Obama administration’s religious accommodations to the Affordable Care Act regulatory requirement that employer-provided healthcare programs make available all FDA-approved contraception. These cases have multiplied like rabbits, and now the Court has seven such cases before it. The most famous is Little Sisters of the Poor Home for the Aged v. Burwell, 15-105, followed by the Solicitor General’s preferred vehicle (p.14) for resolving this issue, Roman Catholic Archbishop of Washington, v. Burwell, 14-1505. The rest of the cases, ranked in roughly descending order of the public-relations friendliness of their petitioners’ names (with ties broken by docket number), are Priests for Life v. Department of Health and Human Services, 14-1453, East Texas Baptist University v. Burwell, 15-35; South Nazarene University v. Burwell, 15-119; Geneva College v. Burwell, 15-191; and Zubik v. Burwell, 14-1418. The odds seem pretty good that the Court will take at least one of those cases.

Two relists are cross-petitions: White v. Wheeler, 14-1372, and Wheeler v. White, 14-10376. The Sixth Circuit agreed with the prisoner Wheeler that the state court erred in failing to strike a potential juror for bias and granted his habeas petition. The Kentucky attorney general petitioned for review, alleging that “the Sixth Circuit disregard[ed] the highly deferential standards Congress imposed in 28 U.S.C. §§2254(d)(1), (d)(2) and (e)(1), and the deference owed to trial court’s factual finding of juror bias,” and did not consider whether any such error is subject to harmless-error analysis. Not to be outdone, Wheeler cross-petitioned regarding evidentiary issues on which the Sixth Circuit refused to grant him relief because it concluded the law was not clearly established. If those dueling petitions weren’t enough attention to the Sixth Circuit granting prisoners habeas relief, the Court relisted a third such case, Rapelje v. Blackston, 15-161, a state-on-top petition involving the Confrontation Clause and impeachment with extrinsic evidence and the deference due state-court conclusions regarding the harmlessness of any error.

That leaves the last three new, unrelated relists.

Husky International Electronics v. Ritz, 15-145, may sound vaguely like a 1990s Ben Stiller movie, but it’s a bankruptcy case that presents the question “[w]hether the ‘actual fraud’ bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor.” Simmons v. Himmelreich, 15-109, is a Federal Tort Claims Act case that asks “[w]hether a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the Federal Tort Claims Act’s exceptions to liability, 28 U.S.C. 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.” That is an issue so dry that we are at a loss for how to inject humor into it.

Finally, Hernández v. Mesa, 15-118, presents a situation that law school never prepared me for: A U.S. Border Agent on American soil accused of shooting across the border into Mexico and killing a Mexican teenager. The issue is whether the Fourth Amendment prohibition on unreasonable seizures applies extraterritorially to that situation; the case also presents the question “whether qualified immunity may be granted or denied based on facts—such as the victim’s legal status—unknown to the officer at the time of the incident.”

For the two people not employed by or named John Elwood who have made it to this point, you’re in luck: There’s more! We’re out of relists, but at the risk of mission creep, we have just one rescheduled case we want to put on your radar. Tuomi v. United States, 15-5756, is a spin-off of last Term’s Johnson v. United States, in which the Court held that the Armed Career Criminal Act’s residual clause was unconstitutionally vague. Tuomi challenges U.S. Sentencing Guideline § 4B1.2, which incorporates ACCA’s residual clause. Whether Section 4B1.2 is void for vagueness in light of Johnson has already split the courts of appeals. Tuomi’s case was decided before the Court’s decision in Johnson so the usual course would be to grant, vacate, and remand for the court of appeals to reconsider in light of that case. But Tuomi has now been rescheduled twice, making us wonder whether the Court may be interested in doing something more to clarify what the law is with respect to Section 4B1.2.

We are finished. Stay warm out there, readers, and know that we, the center of your entertainment universe, will be here for you next week.

Thanks to Bryan U. Gividen for compiling and drafting this post.

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14-1143

Issue(s): (1) Whether, when viewing the facts from the perspective of an officer who fired his service rifle at a vehicle involved in a high-speed chase, the officer acted reasonably under the Fourth Amendment when an officer in his situation would believe that the suspect posed a risk of serious harm to other officers or members of the public; and (2) whether the law clearly established that this use of potentially deadly force was unlawful when existing precedent did not address the use of force against a fleeing suspect who had explicitly threatened to shoot police officers.

(relisted after the June 25, June 29, September 28, October 9, October 16, and October 30 Conferences)

 

14-1273

Issue(s): (1) Whether exemption 4 of the Freedom of Information Act permits nondisclosure due to speculative future competition and likelihood that disclosure would substantially harm the competitive position of a grant applicant; and (2) whether exemption 5 of the Freedom of Information Act shields documents and discussions about an agency’s public justification for prior decisions.

(relisted after the September 28, October 9, October 16, and October 30 Conferences)

 

15-133

Issue(s): (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected “arms” that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.

(relisted after the October 9, October 16, and October 30 Conferences)

 

15-5238

Issue(s): (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

(relisted after the October 16 and October 30 Conference)

 

14-1372

Issue(s): (1) Whether the Sixth Circuit disregarded the highly deferential standards Congress imposed in 28 U.S.C. §§2254(d)(1), (d)(2) and (e)(1), and the deference owed to trial court’s factual finding of juror bias required by Wainwright v. Witt, when it granted habeas relief on Wheeler’s Witherspoon/Witt claim; and (2) whether a violation of Witherspoon/Witt should be subject to harmless error analysis.

(relisted after the October 30 Conference)

 

14-1505
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case.

Issue(s): Whether the Religious Freedom Restoration Act allows the government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with “seamless” access to coverage for contraceptives, abortifacients, and sterilization.

(relisted after the October 30 Conference)

 

14-10376

Issue(s): (1) Whether the Sixth Circuit’s ruling – that the lack of Supreme Court case law holding that references to a victim’s pregnancy when the pregnancy is not an issue at trial violates due process means no “clearly established” law exists for purposes of 28 U.S.C. §2254(d) – conflicts with this Court’s rulings holding that “clearly established” law does not require a case with an identical fact pattern but instead includes legal principles and standards flowing from precedent and general standards designed to apply to a myriad of factual situations; and (2) whether this Court’s standard that a state evidentiary ruling can be so egregious as to deny a defendant fundamental fairness and thus violate the federal due process clause is broad enough to constitute “clearly established” law that applies when the prosecution introduces irrelevant evidence of a victim’s pregnancy; and, if so, whether the evidence regarding the victim’s pregnancy and the prosecutor’s ensuing argument are “contrary to” or an “unreasonable application of” this “clearly established” law.

(relisted after the October 30 Conference)

 

15-35
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case.

Issue(s): Whether the availability of a regulatory option for nonprofit religious employers to comply with the Department of Health and Human Services’ contraceptive mandate eliminates either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores, Inc.

(relisted after the October 30 Conference)

 

15-105
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case.

Issue(s): (1) Whether the availability of a regulatory method for nonprofit religious employers to comply with the Department of Health and Human Services’ contraceptive mandate eliminates either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores, Inc.; and (2) whether HHS satisfies RFRA’s demanding test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill HHS’s regulatory objective—namely, the provision of no-cost contraceptives to the objector’s employees.

(relisted after the October 30 Conference)

 

15-109

Issue(s): Whether a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the Federal Tort Claims Act’s exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.

(relisted after the October 30 Conference)

 

15-118

Issue(s): (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. CVSG: 03/01/2016.

(relisted after the October 30 Conference)

 

15-145

Issue(s): Whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor.

(relisted after the October 30 Conference)

 

15-161

Issue(s): (1) Whether the Sixth Circuit erred when it granted habeas relief based on the theory that respondent was denied the right to confront the two witnesses when the state courts did not allow him to introduce their post-testimony written recantations to impeach their former testimony; (2) whether the Sixth Circuit erred in holding that a written statement recanting former testimony is not “extrinsic” to that testimony and that such statements may be admitted by merely “recit[ing] [them] to the jury” without an authenticating witness; and (3) whether the Sixth Circuit erred in concluding that the state court’s determination that any error was harmless beyond a reasonable doubt was objectively unreasonable, where there was other substantial evidence of respondent’s guilt and the evidence was interlocking and not dependent on the credibility of any single witness.

(relisted after the October 30 Conference)

 

 

Posted in Cases in the Pipeline, Everything Else

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 6, 2015, 11:57 AM), http://www.scotusblog.com/2015/11/relist-watch-71/