John Elwood reviews Monday’s relists.

The world’s a mess: Tension in the Persian Gulf; turmoil in global trade; persistent conflict. The way things are going, many people can’t even seek comfort in simple escapism. But amid all the conflict and strife, you can at least take comfort in the familiar ritual of opening a new week’s installment of Relist Watch and saying those familiar words uttered by legions of readers since our second installment: “It’s not funny anymore.”

Last week’s relists yielded one dissent from denial of certiorari, as well as an order granting a petition, vacating the judgment below and remanding for further consideration in light of the solicitor general’s position that the analysis employed by the U.S. Court of Appeals for the 8th Circuit was faulty. Chief Justice John Roberts, joined by all the conservative justices except Neil Gorsuch, dissented, saying that vacatur was not warranted simply because “the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result.” As anticipated last time, the conservatives objected to the Supreme Court’s “no-fault [vacate and remand] practice.” Still no word, however, on a second relisted case in which the government confessed error, Santos v. United States, 18-7096. We should have an answer on Monday.

Five new relists this week. Several of them are quite high-profile. And this may just be my sleep-deprivation talking, but every one of them seems interesting.

The Supreme Court already has a number of important cases before it raising issues about the constitutionality of restrictions on abortion. The most-relisted case on the court’s docket is Box v. Planned Parenthood of Indiana and Kentucky Inc., 18-483, which has been relisted 13 times, and which involves constitutional challenges to state statutes that require health-care facilities to dispose of fetal remains by burial or cremation and that prohibit abortions motivated solely by the race, sex or disability of the fetus. It is joined this week by a case with the familiar caption Box v. Planned Parenthood of Indiana and Kentucky, 18-1019, which involves a constitutional challenge to a statute requiring an ultrasound as part of informed consent at least 18 hours before an abortion. Then there is Harris v. West Alabama Women’s Center, 18-837, which involves a constitutional challenge to Alabama’s ban on what it terms “dismemberment abortion[s].” Although that case has never been relisted, nor is there any public indication it was discussed at the court’s private conference, it has been rescheduled four timesmeaning that someone has been paying close attention to it.

The next high-profile case is al-Alwi v. Trump, 18-740, involving a Yemeni citizen (the one not named “Trump”) who has been detained at the U.S. base in Guantanamo Bay, Cuba, ever since he was captured in late 2001 soon after the U.S. invasion of Afghanistan. The U.S. government has detained Moath Hamza Ahmed al-Alwi under the authority Congress granted the president to combat terrorism under the Authorization for the Use of Military Force. The issues presented are (1) whether the government’s statutory authority to detain al-Alwi has unraveled during the intervening years; (2) whether the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the AUMF authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

My best guess is that there are not four votes for plenary review there. Rather, I suspect the relist was necessary because someone is drafting a dissent from denial of certiorari. Tune in Monday as I surreptitiously log on to SCOTUSblog to delete any parts of this post that do not pan out.

To my lights, the next juiciest issue is Wheeler v. United States, 18-7187, which addresses whether law-enforcement officers may constitutionally insert a key they have seized into a locked apartment door to see whether it fits. After arresting Willis Wheeler, who was suspected of being a drug dealer, agents seized keys from his car. Although those keys did not work at Wheeler’s home, the agents took the keys to an apartment complex where Wheeler had been seen once and tested the keys there on various doors until they found a lock that opened, and then performed a protective sweep of that apartment. Using that information, police applied for a search warrant for the apartment with an application that made clear that they’d unlocked the door using seized keys. During the ensuing search, they found heroin inside a locked safe in the apartment. The district court denied Wheeler’s motion to suppress. The U.S. Court of Appeals for the 3rd Circuit affirmed, holding that Wheeler’s assertion of a Fourth Amendment violation under “reasonable expectation of privacy principles” lacked merit, and that he had failed to preserve the theory that the key test constituted a common-law trespass.

Before the Supreme Court, the government acknowledges that “some disagreement exists among the courts of appeals as to whether a key test can violate the Fourth Amendment.” But the government argues that “no circuit has held that evidence” obtained as the fruit of a key test “should be suppressed where, as here, it was ultimately obtained during a search conducted pursuant to a warrant” and the authorizing magistrate was aware of the warrantless key test. The parties also dispute whether a criminal defendant can raise a new Fourth Amendment suppression theory for the first time on appeal. The key-test issue arises frequently and is obviously important; the question here seems to be whether this case is still an attractive vehicle in light of the warrant and the preservation issue.

The issues involved in the last two new relists might seem inaccessible on first glance because they have statutory citations smack-dab in the middle of the questions presented. But with a little explanation, both seem straightforward and important.

One of the most basic features of bankruptcy law is that the filing of a bankruptcy petition operates as an automatic stay of most actions against the debtor and against the property of the debtor’s estate. The Bankruptcy Code establishes certain grounds for creditors to seek relief from the automatic stay. Ritzen Group Inc. v. Jackson Masonry, LLC, 18-938, asks whether an order denying a motion for relief from the automatic stay is a final order that can be appealed. Petitioner Ritzen Group argues that it is entitled to relief from the automatic stay because it claims that Jackson Masonry is a financially sound company that declared bankruptcy in bad faith in an effort to wriggle out of an agreed-upon property sale. Ritzen Group notes that Jackson Masonry declared bankruptcy 17 minutes before a scheduled sanctions hearing seeking to compel the sale. Jackson Masonry, in turn, interposes seven arguments against cert in its 13-page brief in opposition. Things will be clearer after Monday’s order list.

Last up is Shabo v. Barr, 18-827. Section 1252(a)(2)(C) of title 8 of the United States Code provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” specified criminal offenses. One of the possible bases that criminal aliens can invoke for requesting withholding or deferral of removal is that they would likely be tortured in the country to which they would be removed. In May 2017, the solicitor general acknowledged in another case that there is “conflict among the courts of appeals as to whether jurisdiction exists to review factual challenges brought by a criminal alien to the denial of a request for deferral of removal under the [Convention Against Torture], notwithstanding 8 U.S.C. 1252(a)(2)(C).” Although the alien in that case had not preserved the argument for Supreme Court review, the solicitor general acknowledged that “[t]his is a recurring question of substantial importance that will warrant this Court’s review in an appropriate case.” Enter Amir Francis Shabo. He is a Chaldean Christian who says that his family fled Iraq in the 1980s after being threatened with death and that his father died in Iraqi custody after Shabo and his brother refused to serve in the Iraqi armed forces. Shabo has completed a prison term for a drug offense, and was ordered removed to Iraq. The Board of Immigration Appeals denied Shabo’s recent motion to reopen his case, concluding that he had not demonstrated that the Iraqi authorities were unable or unwilling to protect him. The U.S. Court of Appeals for the 6th Circuit then dismissed his petition for review on grounds that it lacked jurisdiction to review “the factual question of whether [petitioner] established a prima facie case for relief under the Convention Against Torture.” The government argues that Shabo’s case isn’t a suitable vehicle. Shabo, on the other hand, maintains that his case “is an appropriate vehicle to review and resolve this question.” On Monday, we should find out whom the justices believe.

The court has a conference scheduled every week between now and the end of June. That means a steady march of Relist Watches every week until the term’s business wraps up. I have enough work obligations during that time that they may get a bit summary. Be forewarned.

Thanks to Tom Mitsch for compiling the relists.

 

New Relists

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9 conference)

 

Shabo v. Barr, 18-827

Issue: Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.

(relisted after the May 9 conference)

 

Ritzen Group Inc. v. Jackson Masonry, LLC, 18-938

Issue: Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).

(relisted after the May 9 conference)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 conference)

 

Wheeler v. United States, 18-7187

Issues: (1) Whether a law enforcement officer’s warrantless insertion of keys into a locked apartment door, within a secured multi-unit dwelling, to gain information that was unavailable to the naked eye is an unreasonable search; (2) whether the rule of the U.S. Court of Appeals for the 3rd Circuit, which limits parties to the precise arguments raised in the district court, directly conflicts with the Supreme Court’s traditional rule that parties are not limited to the precise arguments made below but can make any argument in support of a claim that was properly presented.

(relisted after the May 9 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, April 26 and May 9 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, April 26 and May 9 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, April 26 and May 9 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, April 26 and May 9 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, April 26 and May 9 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, April 26 and May 9 conferences)

 

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 and May 9 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 16, 2019, 10:55 AM), https://www.scotusblog.com/2019/05/relist-watch-143/