John Elwood reviews Tuesday’s relists.

I have an argument coming up, so I’m going to be fairly summary today. There was a fair amount of turnover at the February 15 conference, with one relist getting the nod (while its companion case had to settle for a hold) and one lucky petitioner winning summary reversal. Although the court denied review to a former congressman who sought to challenge criminal charges he was facing, Justice Sonia Sotomayor at least filed an opinion acknowledging that the issue he raised was an important one that might be reviewed “should subsequent developments warrant.” (I’m guessing she means if he’s convicted at trial.) And Justice Clarence Thomas filed an opinion calling on the court to reconsider its defamation jurisprudence in a case that had been rescheduled 12 times – so often that it was one of the rare non-relisted cases I discussed this term.

The rest of the relists are back — including, significantly, that tangle of 56 Armed Career Criminal Act relists that we flagged last time. I never know what to expect when the court relists an ACCA case; I always half-expect a cry of frustration that the statute requires so much of its time.

We have seven new relists this week presenting four new issues.

Kansas v. Garcia, 17-834, involves Kansas state prosecutions of three individuals for identity fraud for using others’ Social Security numbers. Federal law makes it unlawful to knowingly employ an alien who is not authorized to work in the United States. To enforce that prohibition, federal law requires all employees to submit a form (Form I-9) attesting to their authorized status. But 8 U.S.C. § 1324a(b)(5) prohibits the “use[]” of the I-9 form and “any information contained in or appended to” the I-9 “for purposes other than” specified federal law-enforcement actions. The Kansas Supreme Court held that the prosecutions here were pre-empted by Section 1324a(b)(5) because although the state proved its case by introducing the defendants’ tax-withholding forms (which listed others’ Social Security numbers) and not their I-9 forms, the Social Security numbers also appeared on their I-9 forms; thus, the Kansas Supreme Court concluded, the numbers were “any information contained in” their I-9s. Kansas sought review. The court called for the views of the U.S. solicitor general, who argued that the prosecutions did not violate federal law and that the issue warranted review despite “the absence of a square conflict” and the fact that “the Kansas Supreme Court’s decision is an outlier.” We’ll know soon if the justices agree.

Menendez v. Garber, 18-566. Like many states, Ohio has long maintained a statute that tolls limitations when the defendant in a lawsuit is “out of” or “departs from” the state. In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., the Supreme Court held that this Ohio provision imposes an “impermissible burden on commerce” when applied to non-residents, forcing the out-of-state corporation involved there to the choice of either appointing a resident agent in Ohio for service of process or remaining subject to suit in Ohio in perpetuity. Petitioner Heriberto Menendez – an Ohio medical doctor who retired to Florida – was sued by respondent Marshall Garber for malpractice. When Menendez invoked Ohio’s one-year statute of limitations against Garber’s three-year-old claims, Garber said the statute of limitations had stopped running when Menendez left the state to retire after treating him. The U.S. Court of Appeals for the 6th Circuit held that the tolling statute could be applied against Menendez consistent with Bendix because Menendez was not an “out-of-state” resident at the time he treated Garber, so applying the tolling statute to Menendez involved no “favoritism towards in-state firms over out-of-state ones.” The court stated that applying the statute therefore imposed no cognizable burden on any interstate market and was not “governed by the dormant Commerce Clause.” Menendez seeks to revisit that determination, arguing that “there is a deep, acknowledged split among U.S. courts over the proper application of such out-of-state tolling statutes to residents who permanently leave the state, and thus become non-residents, after the events underlying the suit.”

Rotkiske v. Klemm, 18-328, involves the federal Fair Debt Collection Practices Act, which seems to rival ACCA for sheer number of cases. The FDCPA provides that an action under the statute “may be brought in any appropriate United States District Court … within one year from the date on which the violation occurs.” Petitioner Kevin Rotkiske claims respondent Paul Klemm obtained a default judgment against him for a debt by improperly serving Rotkiske at a former address, where an addressee unknown to him purported to accept service on Rotkiske’s behalf. Rotkiske only learned of the default judgment against him when he applied for a mortgage years later. The district court rejected Rotkiske’s argument that the one-year period for filing suit should run from the date when a plaintiff discovered the injury, rather than from the date on which the violation occurred. The U.S. Court of Appeals for the 3rd Circuit heard argument and then sua sponte ordered rehearing en banc. The en banc 3rd Circuit held that “the [FDCPA] says what it means and means what it says: the statute of limitations runs from ‘the date on which the violation occurs.’” Rotkiske seeks to challenge that determination.

Lastly, United States v. Wheeler, 18-420, Lewis v. English, 18-292, Delancy v. Pastrana, 18-5773, and Dusenbery v. Holt, 18-5781, all raise the same issue: whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 in order to raise arguments that were foreclosed by binding circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but that are meritorious in light of a subsequent decision overturning that precedent. The government seeks review of that issue in Wheeler, and it contends that all of the other cases have such flaws that they are not only unsuitable vehicles to address the issue, but should not even be held for Wheeler’s resolution. Petitioners Detric Lewis and Larry Dusenbery (proceeding pro se) vigorously dispute that argument and say that their cases are better vehicles than Wheeler for resolving this issue. The court has relisted all four; we’ll have a better idea which vehicle the justices like best next Monday. But one thing’s for sure: No one can deny that the issue arises a lot.

That’s all for this week. Thanks to Ben Moss for going to the trouble of combing through an extra-big docket to compile the relists.

 

New Relists

Kansas v. Garcia, 17-834

Issues: (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes. CVSG: 12/04/2018.

(rescheduled before the January 4, January 11, and January 18 conferences; relisted after the February 15 conference)

 

Lewis v. English, 18-292

Issue: Whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 in order to raise arguments that were foreclosed by binding (but erroneous) circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but that are meritorious in light of a subsequent decision overturning that erroneous precedent.

(rescheduled before the December 3 conference; relisted after the February 15 conference)

 

Rotkiske v. Klemm, 18-328

Whether the “discovery rule” applies to toll the one-year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. The U.S. Courts of Appeals for the 4th and 9th Circuits have so held, but the U.S. Court of Appeals for the 3rd Circuit (sua sponte en banc) has held contrarily.

(relisted after the February 15 conference)

 

United States v. Wheeler, 18-420

Issue: Whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 conference)

 

Menendez v. Garber, 18-566

Issue: Whether a state statute that tolls limitations while the defendant is absent from the state imposes constitutionally impermissible burdens on interstate commerce when applied to a resident who permanently departs the state after the events giving rise to suit, yet remains amenable to service under the state’s long-arm statute.

(relisted after the February 15 conference)

 

Delancy v. Pastrana, 18-5773

Issue: Whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 conference)

 

Dusenbery v. Holt, 18-5781

Issue: Whether a prisoner whose motion under 28 U.S.C. § 2255 challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 conference)

 

Returning Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4, January 11, January 18 and February 15 conferences)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4, January 11, January 18 and February 15 conferences)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4, January 11, January 18 and February 15 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Nielsen v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Kahler v. Kansas, 18-6135

Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

(relisted after the January 11, January 18 and February 15 conferences; record requested and received)

 

* * *

Past case linked to in this post:

Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888 (1988)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Feb. 21, 2019, 11:40 AM), https://www.scotusblog.com/2019/02/relist-watch-136/