John Elwood reviews Monday’s relists.

With nothing happening in the news, I feel like there’s not much to work with for the traditional flimsy topical introduction. So let’s just get started. Only two new relists this week.

Both Myers v. United States, 18-6859, and Santos v. United States, 18-7096, involve fairly arcane issues about what crimes qualify as predicate offenses under the much-litigated Armed Career Criminal Act – specifically, whether certain state crimes are “divisible,” meaning that even if some subsections wouldn’t qualify as ACCA predicates, others would. What makes these cases noteworthy is how the government handled them. The government initially waived its right to file a response in both, in effect telling the Supreme Court that the cases were so meritless that they didn’t warrant the government’s time. The court nonetheless called for a response in both. When government lawyers dug in to the cases, they had a distinctly different impression than upon first view, and in both cases told the court to grant the petition, vacate the judgment below and remand. In Santos, the government filed a short brief saying that the conviction in question “does not qualify as a violent felony under the [ACCA]” (at least not on the theory the government used below). And in Myers, the government concluded that the court of appeals applied the analysis required by an earlier ACCA case, Mathis v. United States, “in a manner that is inconsistent with this Court’s decision.”

The relists could mean any number of things. Most likely, the justices just need time to carefully review the cases, which involve a complex statute, difficult caselaw and significant factual records. What will be more interesting is if one of the justices decides to file a separate opinion, perhaps complaining about the Supreme Court’s “no-fault [vacate and remand] practice” (at least with respect to Myers), perhaps disputing the government’s position, or perhaps (though this is unlikely) chastising the government for not reviewing the cases more carefully initially. But next Monday when the order list is released, it will be worth reviewing the list to the very end to see if there are opinions in these cases.

Thanks to Ben Moss compiling the relists.

 

New Relists

Myers v. United States, 18-6859

Issues: (1) Whether the principles regarding a statute’s divisibility announced in Mathis v. United States apply both to offenses analyzed under the “force clause” of 18 U.S.C. § 924(e)(2)(B)(i) and those analyzed as “enumerated offenses” under 18 U.S.C. § 924(e)(2)(B)(ii); and (2) whether the offense of first-degree terroristic threatening under Arkansas Code Annotated § 5-13-301(a)(1)(A) qualifies as a violent felony under the Armed Career Criminal Act.

(relisted after the April 26 conference)

 

Santos v. United States, 18-7096

Issues: (1) Whether the “touches or strikes” language in the Florida battery statutes is divisible under Descamps v. United States and Mathis v. United States permitting application of the “modified categorical approach,” or rather, whether “touches or strikes” is a single indivisible element requiring the categorical approach and a finding under Johnson v. United States that a Florida battery-on-law-enforcement-officer conviction is categorically overbroad vis-a-vis the Armed Career Criminal Act’s elements clause; (2) whether, if a statute is divisible under Descamps and Mathis, the “modified categorical approach” permits a district court in an ACCA case to consider undisputed factual allegations in the federal Pre-Sentence Investigation Report to determine which statutory alternative was the basis of the conviction, or — for Sixth Amendment reasons — whether the Supreme Court’s consideration under the “modified categorical approach” is restricted to conclusive documents from the state criminal case; (3) whether an offense with a reckless mens rea — such as Florida aggravated assault on an officer — is a “violent felony” within the ACCA’s elements clause, which requires that the offense “have as an element the use … of physical force against the person of another”; and (4) whether the U.S. Court of Appeals for the 11th Circuit erred under Miller-El v. Cockrell and Buck v. Davis in denying the petitioner a certificate of appealability based upon adverse circuit precedent when all of the above issues are nonetheless debatable among reasonable jurists.

(relisted after the April 26 conference)

 

Returning Relists

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, February 15, February 22, March 1, March 15, March 22, March 29, April 12, April 18 and April 26 conferences)

 

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18 and April 26 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)

 

Daniel v. United States, 18-460

Issues: (1) Whether the Feres doctrine bars service members, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death; and (2) whether Feres should be overruled for medical malpractice claims brought under the Federal Tort claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death.

(relisted after the March 29, April 12, April 18 and April 26 conferences)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18 and April 26 conferences)

 

City of Newport Beach, California v. Vos, 18-672

Issues: (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.

(relisted after the April 12, April 18 and April 26 conferences)

 

Dahne v. Richey, 18-761

Issue: Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.

(relisted after the April 12, April 18 and April 26 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United StatesUnited States v. BagleyBrady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18 and April 26 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 6, 2019, 3:05 PM), https://www.scotusblog.com/2019/05/relist-watch-142/