John Elwood reviews Monday’s relisted cases.

And now, the end is near

And so we face two final curtains

My friends, I’ll say it clear

I’ll state my case, of which I’m certain

We’ve had some posts that ruled

Others traveled some strange highway

But more, much more than this, we did it my way.

Another year’s Tony Awards have come and gone and once again, Relist Watch has wound up completely empty-handed. No recognition for our virtuoso music performances. No recognition for our heart-rending verse. Not even a lifetime achievement award! How do we really know Hamilton is so good when no one can actually get in to see it? By contrast, Relist Watch is free and available to everyone who wants to enjoy it.

The only thing that keeps us from despairing about our fate as the Susan Lucci of the Tonys is the knowledge that we only have to write a couple more of these flipping things: We have just two more scheduled conferences this Term (plus probably one as-yet-unscheduled mop-up Conference) before we can start campaigning for a 2017 Tony. Watch your back SpongeBob, you sessile metazoan — Relist Watch is coming.

The Court is singing only sad songs this week, because once again we have no new grants to tell you about. The saddest of all involves McCaffree v. BancInsure, Inc., 15-982, the promising newcomer that closed after just one week. Audiences will remain in suspense about whether judicial estoppel applies when a litigant takes inconsistent positions with respect to issues of law as well as fact.

Our returning relists are led onto stage by veteran Stormans, Inc. v. Wiesman, 15-862, which won its fifth relist nomination; hard to believe a contender that has achieved this degree of relist success ever had to pay its dues on the serial-rescheduling circuit. Will this group of pharmacists succeed with their Free Exercise Clause challenge to a Washington state regulation requiring pharmacies to dispense lawfully prescribed drugs? Will the pharmacists get the summary reversal they seek? Or will they have to settle for the legal world’s equivalent of winning good reviews in a show that closes immediately, i.e., a dissent from denial of cert? Let me go out on a limb and say we will almost certainly have an answer within a couple of weeks – but odds are that a draft opinion is circulating.

Also returning for a fifth time is the petition for rehearing in Hawkins v. Community Bank of Raymore, 14-520. This case, which was famously affirmed by an equally divided Court, asks (1) whether spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit, and (2) whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. We should also mention that during the last commercial break the rehearing petition in Friedrichs v. California Teachers Association, 14-915, another case affirmed by an equally divided Court in March, was rescheduled for a seventh (!) time. We’re accepting wagers on what the Court will do with these two rehearing petitions at the fast-approaching end of the Term. The smart money is on “something that seems obvious in retrospect.”

Elmore v. Holbrook, 15-7848, is a capital case beginning its third season as a relist after another three spent biding its time as a far less prestigious rescheduled case. It asks (1) whether, when trial counsel decided to present evidence of a single mitigating factor during the penalty phase of a criminal trial, it was deficient performance to fail to pursue alternative mitigating factors; and (2) whether, when a state court provides a reasoned decision denying relief, 18 U.S.C. § 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief.

Finally, two of last week’s debutantes are sticking around for a second season. Jones v. United States, 15-8629, is a revival, having been to the Court once before. It asks: (1) whether Johnson v. United States applies retroactively to collateral cases challenging the residual clause of the Sentencing Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.” Beckles v. United States, 15-8544, a star in its own right, bristles at being characterized as Jones’s “understudy,” but it raises the same three questions (except that Beckles’s third question involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions urge prompt action because the Antiterrorism and Effective Death Penalty Act’s one-year bar on Johnson claims runs June 26, 2016.

Something has changed with this relist

Something is not the same

It’s through with playing by the rules

Of this relist game

 

So there it goes

Defying gravity

Just look at it

Defying gravity

And you can’t pull it down

One relist has not followed the typical path. Hernández v. Mesa, 15-118, a/k/a, the cross-border shooting case, a/k/a Jesus v. Jesus, a/k/a the relist that is taxing our ability to come up with new jokes about it, was relisted repeatedly last fall before the Court asked the Solicitor General to weigh in; the SG advised the Court to either deny review or at most hold the case for Simmons v. Himmelreich, because a government win there would end Hernández as well. After the government lost Simmons, Hernández was relisted again. Most recently, it has been rescheduled, but only after it was considered at Conference (cases are ordinarily rescheduled before Conference – see?). How many other different notations can it get on its docket?

Remember how earlier this Term there was that pile of petitions that clearly were destined to be granted, vacated, and remanded (“GVRd”) that the Court nevertheless had to relist ten times before it could finally dispose of them? It appears to be happening again. Now we have yet another group of capital cases from the Gulf Coast that look like potential GVR candidates that instead keep getting relisted: Floyd v. Alabama, 15-7553, Flowers v. Mississippi, 14-10486, and Williams v. Louisiana, 14-9409. Last time we wound up with three separate opinions and a mention in The New York Times. We’ll be watching to see what happens with this crew.

These might be grants tomorrow

Bet your bottom dollar that tomorrow

There’ll be grants

Just thinking about tomorrow

When the Court clears away the relists

‘Til there’s none

Our definition of tomorrow is perhaps a bit elastic. That said; let’s look at “tomorrow’s” potential grants – this week’s new relists. Our first contender in the category of Best New Relist is Chase v. Mississippi, 15-7073, yet another capital case. Ricky Chase argued that he cannot constitutionally be executed due to his intellectual disability, but the Mississippi courts rejected that claim. Chase’s petition argues (1) that the state court unconstitutionally refused to accept data from clinical interviews with persons who knew him during the developmental period; (2) that the state court unconstitutionally imposed a requirement that a death-sentenced prisoner present normed data from clinical instruments to prove intellectual disability; and (3) that the state court unconstitutionally created such a requirement and used it to deny relief to a prisoner who had no notice of it during his evidentiary hearing.

Our next contender is National Labor Relations Board v. SW General, Inc., 15-1251. If boring were measured on a scale of one to ten, this case would be Vacancies Reform Act (that’s about three hundred on a ten-point scale). The VRA is an obscure federal law known only to Appointment Gnomes in the Justice Department’s Office of Legal Counsel (I was one), angry members of Congress who swear that the executive branch is abusing the act, and the acting officials who serve tenuously under it. The act sets out how the president can temporarily fill an office when a Senate-confirmed presidential appointee leaves it. The act’s default rule is that the appointee’s first assistant takes over on an acting basis (under 5 U.S.C. § 3345(a)(1)). The act also establishes two alternatives whom the president can designate: (1) a Senate-confirmed official occupying another executive branch office (Section 3345(a)(2)); or (2) a senior official in the same agency (Section 3345(a)(3)). To keep the president from placing a chosen permanent replacement in a position without the Senate’s consent, the VRA also has a special rule for anyone nominated for the position: Section 3345(b) of the VRA provides that “[n]otwithstanding subsection (a)(1)” (the “first assistant” option), someone who is nominated to fill a vacant office that is subject to the VRA may not perform the office’s functions in an acting capacity unless he served as first assistant for at least ninety days in the year preceding the vacancy. The question in this case is whether this rule applies only to first assistants under the default rule, or whether it also applies to the alternative people the president can designate. Since the act took effect in 1998, the government has successfully taken the position that the special rule applies only to elevated first assistants. Until one day, an eagle-eyed lawyer representing an ambulance provider that had gotten crosswise with the National Labor Relations Board (which, on a ten-point boring scale, is NLRB) argued that the special rule applied to everyone the president designated on an acting basis. Under that interpretation, the board’s acting general counsel was serving in violation of the act, and therefore the NLRB’s complaint against the ambulance provider was unauthorized. The plan worked, and the D.C. Circuit vacated the NLRB’s order against the provider. In its petition, the government asks the Court to drink a couple Red Bulls, dust off Title 5 of the U.S. Code, and figure out what the VRA actually means.

Everyone doing alright out there? We have a trio of new relists that raise related issues. We will start with Jennings v. Rodriguez, 15-1204, because it is the government’s preferred vehicle and we’re just lackeys for the powerful. Federal immigration laws set up three categories of detained aliens: (1) inadmissible aliens detained attempting to enter the country; (2) aliens who were already in the country but were detained after being convicted of certain crimes or engaging in certain terrorist activities; (3) all other detained aliens. Under immigration statutes, aliens who fall into the first two categories do not receive bond hearings and can be released into the United States only at the discretion of the Secretary of Homeland Security.   Aliens in the third category get bond hearings at which they must demonstrate that would not pose a danger and are not a flight risk. If they fail to do so, they can get another bond hearing by showing a material change in circumstances. In California, a class of detained aliens covering all three categories challenged this procedure and obtained an injunction in district court. The injunction required bond hearings every six months for all detainees and required the Department of Homeland Security to prove by clear and convincing evidence at those bond hearings that the detainee is a danger to the community or a flight risk. The Ninth Circuit affirmed, based on the principle of constitutional avoidance, and likewise required bond hearings every six months. It also required immigration judges to consider the length of detention as a factor in the hearings. The government’s petition argues that the Ninth Circuit essentially rewrote the immigration statutes and that its decision conflicts with previous Supreme Court precedent and with the decisions of other circuits.

Meanwhile, in New York, Alexander Lora challenged his classification in the second category (due to a conviction for possessing cocaine) as well as the lack of a bond hearing for aliens in that category. A magistrate judge held that Lora was improperly classified because there was a gap between his criminal custody and immigration detention and because he was sentenced to probation and not a prison term. The Second Circuit rejected that ruling but then affirmed on a different ground. It followed the Ninth Circuit in holding that the government must provide a bond hearing after six months and that, at those bond hearings, the government must establish by clear and convincing evidence that the alien is a danger to the community or a flight risk. Shanahan v. Lora, 15-1205, is the government’s petition relating to the bond hearings while Lora v. Shanahan, 15-1307, is Lora’s conditional cross-petition arguing his classification. The government asks the Court to hold both these petitions for Jennings.

You see it’s all a show

Keep ‘em laughing as you go

Just remember that the last laugh is on you

That’s our show for today. You’ve been a great audience. Relist Watch merchandise is on sale in the lobby for all who want it. We’ll see you again next week.

Thanks to Bryan U. Gividen and Dmitry Slavin for compiling and drafting this update instead of sitting in line for Hamilton tickets.

_________________________

14-520

Issue(s): (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

(relisted after the May 12, May 19, May 26, June 2, and June 9 Conferences)

 

15-862

Issue(s): Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.

(relisted after the May 12, May 19, May 26, June 2, and June 9 Conferences)

 

15-7848

Issue(s): (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

(relisted after the May 26, June 2, and June 9 Conferences)

 

15-8629

Issue(s): (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 and June 9 Conferences)

 

15-8544

Issue(s): (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 and June 9 Conferences)

 

15-1204

Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

(relisted after the June 9 Conference)

 

15-1205

Issue(s): (1) Whether criminal and terrorist aliens who are subject to mandatory detention under 8 U.S.C. § 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (2) whether, in any such bond hearing, the criminal or terrorist alien is entitled to release unless the government demonstrates by clear and convincing evidence that he is a flight risk or a danger to the community.

(relisted after the June 9 Conference)

 

15-1307

Issue(s): Whether 8 U.S.C. § 1226(c) applies to noncitizens who were not detained “when . . . released” from criminal incarceration for a listed removable offense.

(relisted after the June 9 Conference)

 

15-1251
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.

Issue(s): Whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, requiring that a person who is nominated to fill a vacant office that is subject to the Federal Vacancies Reform Act may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under subsections (a)(2) and (a)(3).

(relisted after the June 9 Conference)

 

15-7073

Issue(s): (1) Whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins v. Virginia and Hall v. Florida, for a State court to refuse to accept data from clinical interviews with persons who knew a death-sentenced prisoner during the “developmental period” where the uncontested testimony and scientific and clinical consensus finds such data to be useful in determining the second criteria for intellectual disability, i.e., adaptive functioning deficits; (2) whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins and Hall, for a State court to impose a requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins; and (3) whether it violates the Fourteenth Amendment Due Process Clause for a State court to create a novel requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins, and impose that requirement to deny relief to a prisoner who had no notice of the requirement during his evidentiary hearing.

(relisted after the June 9 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 17, 2016, 3:00 PM), http://www.scotusblog.com/2016/06/relist-watch-86/