John Elwood reviews Monday’s relists.

Congress is fighting with the executive branch to try to obtain information this week. But here at Relist Watch, we’re just giving the stuff away.

A lot of throughput this week, as the Supreme Court disposed of five relists.

Most puzzling is City of Newport Beach, California v. Vos, 18-672, which asked whether the Americans with Disabilities Act requires law-enforcement officers to provide accommodations to armed, violent and mentally ill suspects as they bring them into custody. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted, and many thought the court was looking to finally resolve the question. Newport Beach had been relisted four times, suggesting that one of the justices at least had been exploring a dissent; perhaps he or she was talked out of it.

The Court decided that one-time relist Shabo v. Barr, 18-827, was not the vehicle it was looking for to decide an acknowledged circuit split on an important and recurring question: Whether courts of appeals have jurisdiction to review factual findings underlying denials of withholding (and deferral) of deportation in immigration cases.

Santos v. United States, 18-7096, is the Armed Career Criminal Act case in which the government confessed error. The court did as the government recommended and granted the petition, vacated the judgment below and remanded for reconsideration of the government’s position. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, saying that although the court might have had its doubts about the correctness of the judgment, they “share[d] no such doubt” about the validity of the defendant’s conviction.

Speaking of dissents: The court denied review in five-time relist Daniel v. United States, 18-460, the case seeking to revisit the oft-criticized Feres doctrine that bars servicemembers, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act. Thomas dissented. He argued that “Feres was wrongly decided.” And he claimed that Feres was having a distorting effect on the law because the desire to allow relief to members of the military has led the court in other cases to “twist[] traditional tort principles to afford them the possibility of relief.” He was referring, of course, to Air & Liquid Systems Corp v. DeVries, which held that an equipment manufacturer could be sued for liability for illness caused by asbestos the Navy had added to the equipment, and in which Thomas dissented.

And that is to say nothing of the grant in Ritzen Group Inc. v. Jackson Masonry, LLC, 18-938. No, really – we’re going to say nothing about it. You can click on the hyperlink if you want to be reminded that the case involves whether an order denying a motion for relief from the automatic stay in bankruptcy is a final order subject to appeal. You aren’t going to hear it from me.

That brings us to this week’s new relists. Both Hernandez v. Mesa, 17-1678, and Swartz v. Rodriguez, 18-309, involve questions of liability for American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. The court first took Hernandez in 2016 to resolve whether a cross-border shooting violated the victim’s Fourth Amendment rights, and whether the agent would be entitled to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights. Four months after argument, the court basically punted; it vacated the decision below and remanded for further consideration in light of the recently decided Ziglar v. Abbasi, which tightened the standards for recognizing a federal cause of action under Bivens v. Six Unknown Named Agents.

Now Hernandez is back, accompanied by another case that raises the same issue – Swartz. The en banc U.S. Court of Appeals for the 5th Circuit held in Hernandez that a Bivens remedy should not be extended to a claim arising from an injury to a foreign citizen in foreign territory. But a divided panel of the U.S. Court of Appeals for the 9th Circuit held in Swartz that it should. The court called for the views of the solicitor general, who argues that certiorari “is warranted to resolve the conflict on that important question and to provide the lower courts additional guidance after this Court’s decision in Ziglar v. Abbasi.” The government says that Hernandez is the better vehicle, because it addressed whether a Bivens remedy is available for both Fourth and Fifth Amendment claims, and Swartz only addressed Fourth Amendment claims. The odds of a grant are quite high after the solicitor general as amicus recommends review.

That’s all for this week. Thanks to Tom Mitsch for compiling the relists.

 

New Relists

Hernandez v. Mesa, 17-1678

Issues: (1) Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law tort suits for damages against rogue federal law-enforcement officers acting within the scope of their employment for which there is no alternative legal remedy. CVSG: 04/11/2019.

(relisted after the May 16 conference)

 

Swartz v. Rodriguez, 18-309

Issues: (1) Whether the panel’s decision to create an implied remedy for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics in the new context of a cross-border shooting misapplies Supreme Court precedent and violates separation-of-powers principles, when foreign relations, border security and the extraterritorial application of the Fourth Amendment are some of the special factors that counsel hesitation against such an extension; and (2) whether, if the above “antecedent” question is answered in the negative, Agent Swartz is entitled to qualified immunity because there is no clearly established law applying the Fourth Amendment to protect a Mexican citizen, with no significant connection to the United States, who is injured in Mexico by a federal agent’s cross-border shooting. CVSG: 04/11/2019.

(relisted after the May 16 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, May 9 and May 16 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, May 9 and May 16 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)

 

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, May 9 and May 16 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, May 9 and May 16 conferences)

 

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 and May 16 conferences)

 

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 and May 16 conferences)

 

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 and May 16 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 23, 2019, 10:12 AM), https://www.scotusblog.com/2019/05/relist-watch-144/