Relist Watch Select

John Elwood briefly reviews Monday’s relists.

Because of the press of business, it will be another brief writeup today. The Supreme Court cleared out an enormous number of relists at the February 21 conference — its first conference in almost a month.

The court granted review in Fulton v. City of Philadelphia, 19-123, an important case involving the free exercise clause of the First Amendment. The city of Philadelphia wants to exclude Catholic Social Services from participating in its foster-care program unless the organization ends its practice, based on its religious teachings on marriage, of not providing written endorsements for same-sex couples seeking to be foster parents. The case not only raises questions about how to establish certain religious discrimination claims, but also calls on the court to revisit Employment Division v. Smith — the landmark decision holding that the government can enforce laws that burden religious beliefs or practices as long as those laws are “neutral” or “generally applicable.” The case will likely be heard next term. In light of that grant, the court is now holding serial relists Ricks v. Idaho Contractors Board, 19-66, which likewise involves the validity of Smith, as well as Arlene’s Flowers, Inc. v. Washington, 19-333, involving a First Amendment challenge to a state’s efforts to impose penalties on a floral designer who refused for religious reasons to provide flowers for same-sex weddings.

In Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921, the court filed a short per curiam opinion vacating the judgment of the Puerto Rico Supreme Court because of a jurisdictional defect and remanded for further proceedings. Justice Samuel Alito, joined by Justice Clarence Thomas, filed a brief concurring opinion expressing their belief that the Puerto Rico Supreme Court’s decision not only rested on faulty jurisdiction, but also was wrong on the merits.

Now heading on to more neutral ground. The court called for the views of the solicitor general in Americans for Prosperity Foundation v. Becerra, 19-251, and Thomas More Law Center v. Becerra, 19-255, which both involve constitutional challenges to a California law that requires charities to disclose their donors’ names. Calling for the views of the SG just kicks the can down the road as a formal matter, but it’s good news for the petitioners as a statistical matter. After all, “a petition in a paid case is over 46 times more likely to be granted following a CVSG.”

The rest of the relists met unkind fates. In Arizona v. California, 22O150, a rare relisted original jurisdiction case (which involved a tax dispute), the court denied Arizona leave to file a bill of complaint, over the dissent of Thomas, joined by Alito. The court denied review in six-time relist and capital case Reed v. Texas, 19-411; Justice Sonia Sotomayor filed an opinion respecting the denial of cert. The court denied review in the serially rescheduled and relisted Patterson v. Walgreen Co., 18-349, involving employers’ need to make accommodations to their employees’ religious observance; Alito, joined by Thomas and Justice Neil Gorsuch, filed an opinion concurring in the denial. Lastly, the court denied cert in Baldwin v. United States, 19-402, which called for the overruling of National Cable & Telecommunications Association v. Brand X Internet Services. Thomas dissented, arguing that Brand X (a decision he wrote) was wrong in holding that a federal agency’s statutory construction receives deference when it contradicts a court’s contrary reading. More noteworthy still, he also wrote that the fountainhead of modern administrative law — Chevron U.S.A. Inc v. National Resources Defense Council — “is in serious tension with the Constitution, the [Administrative Procedure Act], and over 100 years of judicial decisions.”

That brings us to the new relists.  There are 17. But don’t worry — all those cases fall into just six buckets.

On the civil side: First up are California v. Texas, 19-840, and United States House of Representatives v. Texas, 19-841, both involving the latest challenge to the Affordable Care Act and the severability of an allegedly unconstitutional provision it contains. Second, U.S. Fish and Wildlife Service v. Sierra Club, Inc., 19-547, involves whether Exemption 5 of the Freedom of Information Act protects against compelled disclosure of a federal agency’s draft documents because the exemption incorporates the deliberative process privilege. Third, VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446, involves the EEOC’s authority to continue investigating a discrimination claim after the commission issues the charging party a right-to-sue letter and the charging party pursues private litigation.

That brings us to the criminal side of the docket. Halprin v. Davis, 19-6156, involves whether a prisoner’s second federal petition raising a judicial bias claim is “second or successive” under 28 U.S.C. § 2244(b)(2) if the judge concealed his bias so the prisoner could not have raised the claim any earlier. Davis v. United States, 19-5421, and both Bazan v. United States, 19-6113, and the differently numbered Bazan v. United States, 19-6431, involve the recurring issue of whether factual error is categorically immune from plain error review.

All the rest of the cases, nine in all, involve the court’s effort to replace Walker v. United States, which presented the question whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act. When James Walker died on January 22, 2020, the court dismissed the case, following its ordinary practice. The court is clearly now considering candidates to replace Walker, relisting no fewer than nine cases that raise the same or related questions: Gomez Gomez v. United States, 19-5325, Borden v. United States, 19-5410, Bettcher v. United States, 19-5652,Smith v. United States, 19-5727, Perez v. United States, 19-5749, Lara-Garcia v. United States, 19-5763, Combs v. United States, 19-5908, Burris v. United States, 19-6186, and Ash v. United States, 19-9639.

We’ll be back next week to sort through next Monday’s relists.  Until next time!

New Relists

VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446
Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.
(relisted after the February 21 conference)

U.S. Fish and Wildlife Service v. Sierra Club, Inc., 19-547
Issue: Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.
(relisted after the February 21 conference)

United States House of Representatives v. Texas, 19-841
Issues: (1) Whether the individual and state plaintiffs (the respondents here) possess Article III standing to challenge the constitutionality of Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether Section 5000A, as amended, exceeds Congress’ constitutional authority; and (3) whether, if Section 5000A is invalid, the provision is severable from the remainder of the act.
(relisted after the February 21 conference)

California v. Texas, 19-840
Issues: (1) Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum-coverage provision in Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional; and (3) if so, whether the minimum-coverage provision is severable from the rest of the ACA.
(relisted after the February 21 conference)

Gomez Gomez v. United States, 19-5325
Issue: Whether a statute has as an element the use of force against the person of another when a conviction under that statute can be based on a reckless mental state.
(relisted after the February 21 conference)

Borden v. United States, 19-5410
Issues: (1) Does the “use of force” clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), encompass crimes with a mens rea of mere recklessness? 2. Did the district court violate Charles Borden’s due process rights when it applied to his sentencing a newer, more punitive interpretation of law than that which was in force at the time of his federal offense, such that his guidelines were enhanced from 77 to 96 months to a mandatory minimum sentence of 15 years to life in prison?
(relisted after the February 21 conference)

Davis v. United States, 19-5421
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21 conference)

Bettcher v. United States, 19-5652
Issue: Whether reckless crimes qualify categorically as crimes of violence under the force clause of the Armed Career Criminal Act and the Sentencing Guidelines.
(relisted after the nFebruary 21 conference)

Smith v. United States, 19-5727
Issues: (1) Whether, when determining whether a state offense qualifies as a crime of violence, a federal court is bound by the decision of the state’s highest court to label a mens rea as something greater than negligence when the Supreme Court has unequivocally established that the same mens rea under federal law constitutes mere negligence? 2) When the definition of a crime of violence under federal recidivism enhancement provisions, such as U.S.S.G. § 4B1.2(a)(1), includes the limiting language “against the person of another,” is that language mere surplusage or must a defendant be more than negligent with respect to whether his intentional conduct could harm another?
(relisted after the February 21 conference)

Perez v. United States, 19-5749
Issues: 1) Whether, when determining whether a state offense qualifies as a crime of violence, a federal court is bound by the decision of the state’s highest court to label a mens rea as something greater than negligence when the Supreme Court has unequivocally established that the same mens rea under federal law constitutes mere negligence? 2) When the definition of a crime of violence under federal recidivism enhancement provisions, such as U.S.S.G. § 4B1.2(a)(1), includes the limiting language “against the person of another,” is that language mere surplusage or must a defendant be more than negligent with respect to whether his intentional conduct could harm another?
(relisted after the February 21 conference)

Lara-Garcia v. United States, 19-5763
Issue: Whether a statute has as an element the use of force against the person of another when a conviction under that statute can be based on a reckless mental state.
(relisted after the February 21 conference)

Combs v. United States, 19-5908
Issues: A person is guilty of Texas aggravated assault if his reckless driving causes another person to suffer injury; if he transmits a virus to an unwitting (but otherwise consenting) sexual partner; or if he sends a flashing strobe image over the internet which causes a victim to suffer a seizure. Do these scenarios involve “the use, attempted use, or threatened use of physical force against the person of another?” 2. Should this case be remanded to the U.S. Court of Appeals for the 5th Circuit for further consideration in light of the court’s decision in Shular v. United States?
(relisted after the February 21 conference)

Bazan v. United States, 19-6113
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21 conference)

Burris v. United States, 19-6186
Issues: (1) Does recklessly causing another person to suffer injury necessarily involve the “use of physical force against” that person for purposes of the Armed Career Criminal Act, 18 U.S.C. 924(e)? (2) Given that precedent in the U.S. Court of Appeals for the 5th Circuit (and most others) squarely foreclosed any application of ACCA as of the date of the offense, did the statute—as construed by federal courts—provide fair warning that the enhancement would apply?
(relisted after the February 21 conference)

Bazan v. United States, 19-6431
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21 conference)

Halprin v. Davis, 19-6156
Issue: Whether Randy Halprin’s second federal petition raising a judicial bias claim is “second or successive” under 28 U.S.C. § 2244(b)(2) if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprin’s initial habeas proceedings in the district court created Halprin’s first fair opportunity to present his claim.
(relisted after the February 21 conference)

Ash v. United States, 19-9639
Issue: Whether reckless crimes, like Dustin Ash’s Kansas reckless aggravated battery conviction, qualify as crimes of violence under Sentencing Guidelines Section 4B1.2.
(relisted after the February 21 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24 and February 21 conferences)

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 19-296
Issues: (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council, rather than the rule of lenity, takes precedence in the interpretation of statutory language defining an element of various crimes when such language also has administrative applications; (2) whether, if Chevron deference applies and takes priority over the rule of lenity, such deference can be waived in the course of litigation and on appeal; and (3) whether, if Chevron deference applies and cannot be waived, Chevron should be overruled.
(relisted after the January 10, January 17, January 24 and February 21 conferences)

Cannon v. Seay, 19-311
Issues: (1) Whether, in review of a state decision under 28 U.S.C. § 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendant’s objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial court’s fact-finding; and (2) whether, in granting relief under 28 U.S.C. § 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court in Arizona v. Washington and accord deference to the state court’s ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the court’s oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the state’s mistrial motion.
(relisted after the January 10, January 17, January 24 and February 21 conferences)

The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672
Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.
(relisted after the January 24 and February 21 conferences)