John Elwood reviews Monday’s relisted cases.

Like television’s tutelary deity, we at Relist Watch cannot abide losers (even though, and perhaps because, the term is regularly lobbed in our direction). That’s why we begin every week by trumpeting the absolute winners. (Also, technically, we don’t have any “losers” this week; sorry, DT.) We’ve got a bunch of victorious cert. petitions to get through before we even get down to this week’s new business. So settle in, buckle up, hunker down, or do whatever it is that you do when you’re about to experience a serious glut of delicious Supreme Court flummery.

First up, a tangle of one-time relists, all concerning the validity of the Obama administration’s efforts to accommodate religious objections to the Affordable Care Act’s regulatory requirement that employer-provided health care programs make available all contraceptives approved by the Food and Drug Administration. Finding the whole slate of cases cert.-worthy – or, in the lingua seinfeldia, “spongeworthy” – the Court granted and consolidated all seven, which we’ll list here, in approximate order of the petitioner’s meekness: Little Sisters of the Poor Home for the Aged v. Burwell, 15-105; Priests for Life v. Department of Health and Human Services, 14-1453; Zubik v. Burwell, 14-1418; South Nazarene University v. Burwell, 15-119; East Texas Baptist University v. Burwell, 15-35; Geneva College v. Burwell, 15-191; and Roman Catholic Archbishop of Washington v. Burwell, 14-1505. Unless something changes, it seems likely that the tangle of cases will henceforth be known by the name of the petitioner in the lownumbered case, Zubik. Now a whole new group of lawyers faces the familiar situation of how to make the important decision about who gets to argue before the Court.

Since we appear to be drifting toward the cert. pool’s seamier shoals, let’s go ahead and get two-time relist Nichols v. United States, 15-5238, out of the way. In this case, two sex offenders from Kansas City both moved abroad without updating their sex offender registry information. But because one lived in Kansas City, Kansas, and the other lived in Kansas City, Missouri (how does that city work again?) their cases wound up in different federal appellate courts, which came to different conclusions about whether an ex-con must update his sexual offender registration when he moves abroad. Though the petition P’d two Q’s, the Court only took up one: whether the Sex Offender Registration and Notification Act requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided. The Court won’t address whether SORNA unconstitutionally delegates legislative authority to the attorney general.

Our next two cases in the winners’ circle, both one-time relists, are sort of snoozers. But as Ben Carson reminds us, being boring isn’t necessarily an obstacle to success. The petitioner in Husky International Electronics v. Ritz, 15-145 – contrary to popular belief, a distributor of electronic components, not a maker of electronic toys that seeks to counteract the natural American propensity to excessive exercise – will brief 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.” And Simmons v. Himmelreich, 15-109, a Federal Tort Claims Act case, 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.” To counteract the boredom of this paragraph, here’s another link to a video of an adult making creative use of a child’s toy.

Finally, our longest-running relist, the state-on-top Mullenix v. Luna, 14-1143, finally met its end this week – albeit a less dramatic conclusion than the one giving rise to the case. After the case notched its sixth relist, the Court (as we kinda sorta predicted) summarily reversed the Fifth Circuit’s denial of qualified immunity to a police officer who shot at a moving vehicle to stop a fleeing suspect. “Qualified immunity,” the per curiam opinion reads, “shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court went on to hold that the “clearly established right” the Fifth Circuit had identified – that an officer may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others – had been considered and rejected by the Court on a number of occasions.

Because we’ve no dead petitions to bury this week, we’ll move along to the living – some of which are really just limping along. Our oldest candidate is New Hampshire Right to Life v. Department of Health and Human Services, 14-1273, a five-time relist concerning a Freedom of Information Act request for records related to a government grant to Planned Parenthood. An outright grant or denial remains a possibility, but racking up this many relists suggests this case is ripe for an opinion, perhaps a dissent from denial of certl. Notching its fourth relist this week is Friedman v. City of Highland Park, 15-133. The petitioner in that case, a firearm-appreciating doctor who is among the tiny handful of people not running for president … yet, challenges a Highland Park, Illinois ordinance banning assault weapons and high-capacity magazines. Two-time relist Hernández v. Mesa, 15-118, pits against one Jesus against another. The dispute is less eschatological than you might think: this case involves whether the Fourth Amendment prohibition on unreasonable seizures applies extraterritorially to a situation in which a U.S. Border Agent on American soil shoots across the border and kills a Mexican teenager on Mexican soil. The petition also asks whether qualified immunity may be granted based on facts – like the victim’s legal status – unknown to the officer at the time of the incident.

Let’s round out the week’s old business with a trio of habeas cases from the Sixth Circuit. Two of them, White v. Wheeler, 14-1372, and Wheeler v. White, 14-10376, are twice-relisted cross-petitions that arise from a grant of habeas relief to a death-row inmate on the ground that the Kentucky state court erred in failing to strike a potential juror for bias. In White, the Kentucky attorney general argues 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. In Wheeler, the prisoner argues that the Sixth Circuit erred in determining that certain evidentiary matters, on which the court declined to grant habeas relief, were not “clearly established law” under 28 U.S.C. § 2254(d). Finally, Rapelje v. Blackston, 15-161, is a state-on-top habeas petition involving the Confrontation Clause and impeachment with extrinsic evidence and the deference due to state-court conclusions about the harmlessness of any error.

That leaves us with the five new relists, although, technically, one of them – Currier v. Jackson Women’s Health Organization, 14-997 – isn’t “new,” but instead “returning.” Currier was relisted six times last Term, but this week it scored its first relist of the October Term 2015. It is joined by first-time relist Whole Woman’s Health v. Cole, 15-274. Currier, you’ll recall from several of last Term’s posts, is a seven-time relist arising from a challenge to a Mississippi law that requires doctors who perform abortions to have admitting privileges at a local hospital. The district court determined that the law imposed an undue burden on access to abortion and thus was unconstitutional. The Fifth Circuit agreed, observing that the law will effectively close “[the] only abortion clinic” in Mississippi. On cert., Mississippi asks (1) whether the Due Process Clause requires Mississippi to exempt physicians at its lone abortion clinic from complying with a health regulation that applies to physicians at all other outpatient surgical facilities, and (2) whether the bill imposes an undue burden under Casey regardless of the availability of abortion services in adjoining states.

The last time we checked in on Currier, we speculated it had been rescheduled so that another case, Whole Woman’s Health v. Cole, which was being briefed at the time, could “catch up.” Now that the latter matter’s been completely briefed, it’s earned its first relist. Whole Woman’s Health stems from Texas’s House Bill 2 – which, among other things, includes both an “admitting-privileges requirement” and a requirement that abortion providers comply with “the minimum standards … for ambulatory surgical centers” (“ASCs”). The trial court concluded that the challenged requirements imposed obstacles that were not justified by the interests underlying the requirements. The Fifth Circuit reversed, holding that neither the admitting-privileges nor ASC requirements pose an undue burden (save for their application to a certain clinic and doctor in the Rio Grande Valley). On cert., in addition to raising a res judicata issue, the clinics ask: (1) whether, when applying the “undue burden” standard, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that the “undue burden” standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the state’s interest in promoting health – or any other valid interest.

Let’s see if we can make quicker work of the next two related relists, Triple Canopy, Inc. v. United States ex rel. Badr, 14-1440, and Universal Health Services, Inc. v. United States ex rel. Escobar, 15-7. After rescheduling Triple Canopy in late September in an apparent effort to allow Universal Health Services to catch up, the Court has now relisted both cases, which involve the theory of “implied certification” under the False Claims Act (“FCA”). The FCA imposes civil liability for, among other things, knowingly presenting a false or fraudulent claim to Uncle Sam for payment or approval. Under an “implied certification” theory of FCA liability, a plaintiff generally alleges that a defendant impliedly made false representations of compliance with statutory, regulatory, or contractual requirements when it submitted claims for payment to the government, thereby rendering the claims false or fraudulent. Some circuits have limited this liability theory to situations in which the government’s payment is expressly conditioned on compliance with a particular contractual, statutory, or regulatory term that was allegedly breached for violated. But in the First Circuit (whence Universal Health Services comes) and the Fourth Circuit (which produced Triple Canopy), liability attaches under an implied certification theory when a plaintiff alleges only the contractor’s failure to comply with an applicable requirement. On cert., petitioners in both Triple Canopy (and, presumably, Universal Health Services, although they haven’t responded to our requests for their pleadings LLL) ask (1) whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, can result in FCA liability under the implied certification theory; and (2) whether implied certification is a valid theory of FCA liability. Triple Canopy also asks (3) whether Federal Rule of Civil Procedure 9(b)’s requirement of pleading fraud with particularity obliges a plaintiff to plead actual reliance by the government on the false statement in question. [John Elwood, who purportedly contributes to this column in various capacities, is counsel to amici supporting petitioner in Triple Canopy.]

The last of this week’s new relists, Wittman v. Personhuballah, 14-1504, concerns the role that race played in drawing the borders of a congressional district in eastern Virginia. The boundaries of District 3, Virginia’s only House district with a majority-minority population, have been colorfully described as a “grasping claw” and have twice been invalidated by a three-judge panel on the ground that race was the predominant factor in their formation. After the second such ruling, state officials, though they had defended the plan in court, declined to file an appeal. Nevertheless, ten past or current members of Virginia’s House delegation, who had intervened earlier in the litigation, sought probable jurisdiction in the Supreme Court, even though none had actually represented District 3. As our pal Lyle Denniston has observed, Hollingsworth v. Perry (the “Prop. 8” case) was in a similar posture a few years ago, and things didn’t work out well for the interveners there. After the challengers to District 3 raised the issue of “standing” to appeal, the Court directed the parties to brief the issue, which they dutifully did. In their jurisdictional statement, the ten current and former members of Congress argue, among other things, that (1) the three-judge panel ran afoul of Shaw v. Reno by failing to make the required finding that race rather than politics predominated in District 3; and (2) that the panel improperly relieved the challengers of their burden of showing that an alternative districting plan, that would have achieved the Virginia General Assembly’s political goals, “is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan.” But no matter what happens, the Court will not address the question that we really want answered: Has appellee Gloria Personhuballah ever gotten a restaurant reservation without having to spell her name at least three times?

We’ve wasted an awful lot of (y)our time already, so why not waste a little more. There are a number of rescheduled cases this week, but we’re only going to bore you with one; the rest, we’ll save to discuss if they’re relisted. Tuomi v. United States, 15-5756, involves a challenge to U.S. Sentencing Guideline § 4B1.2, which incorporates the Armed Career Criminal Act’s residual clause that Johnson v. United States held was unconstitutional. This case has now been rescheduled a third time, which tends to suggest that, rather than granting, vacating, and remanding the case in light of Johnson, the Court might want to take steps to clarify what the law is regarding Section 4B1.2. Tuomi has filed a pair of supplemental briefs that the Justices are doubtless giving careful attention.

That’s it! Another two minutes and forty-five seconds of your life that you can never get back. Tune in next week when, instead of scrawling 2,500 words on a topic no one cares about, we’ll deliver our dispatch through a more au courant medium.

Thanks to Ralph Mayrell and Conor McEvily for compiling and drafting this update.

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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, June 11, June 18, June 25, and November 6 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, October 30, and November 6 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, October 30, and November 6 Conferences)

 

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 and November 6 Conferences)

 

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 and November 6 Conferences)

 

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 and November 6 Conferences)

 

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 and November 6 Conferences)

 

14-1440

Issue(s): (1) Whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, results in a false claim that violates Section 3729(a)(1)(A) of the False Claims Act under the “implied certification” theory of liability; (2) whether “implied certification” is a valid theory of liability under Section 3729(a)(1)(A) of the False Claims Act; and (3) whether, given Federal Rule of Civil Procedure 9(b)’s requirement that all fraud claims be pleaded with particularity, a “false record or statement” claim under Section 3729(a)(1)(B) of the False Claims Act obliges a plaintiff to plead actual reliance by the government on the false record or statement in question.

(relisted after the November 6 Conference)

 

14-1504

Issue(s): (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the finding of a Shaw violation by the court below was based on clearly erroneous fact-finding; (4) whether the majority erred in holding that the Enacted Plan fails strict scrutiny because it increased District 3's black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance.

(relisted after the November 6 Conference)

 

15-274

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

(relisted after the November 6 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 12, 2015, 2:30 PM), http://www.scotusblog.com/2015/11/relist-watch-72/