Relist Watch

By John Elwood
on May 16, 2019 at 10:55 am

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 times – meaning 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.