Relist Watch

Sovereign immunity, legislative censure and another habeas question

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has 138 cases scheduled for review at this Friday’s conference. The court will likely be paying special attention to three of them, which are this week’s new relists. The court will be considering each of these cases for a second time.

We begin with a subject that is all too familiar to long-time readers of this feature. In 1950, the Supreme Court held in Feres v. United States that the Federal Tort Claims Act, through which Congress generally waived the federal government’s sovereign immunity from tort liability, does not extend to service-members’ injuries that “arise out of or are in the course of activity incident” to a person’s active duty service in the military. The so-called Feres doctrine has been subject to severe criticism over the years for reading the scope of federal sovereign immunity too narrowly. The court has repeatedly relisted petitions urging it to overrule Feres. Back in 2011, so long ago that I hyphenated the term “re-list” like some old-timer, the court twice relisted Witt v. United States, 10-885, before denying review. Two terms later, the court relisted Lanus v. United States, 12-862, giving Justice Clarence Thomas time to prepare a dissent from the denial of cert, in which he argued that Feres conflicted “with the plain meaning of the statute,” which is “a sweeping waiver of sovereign immunity.” Fast forward to 2019, when the court relisted Daniel v. United States, 18-460, five times before denying cert. Justice Ruth Bader Ginsburg indicated that she voted to grant review, and Thomas dissented again, writing that “Feres was wrongly decided.” Thomas argued that Feres was having a distorting effect on the law because the desire to allow relief to members of the military had led the court in other cases to “twist[] traditional tort principles to afford them the possibility of relief.”

That brings us to the currently pending petition in Doe v. United States, 20-559. The case involves a former West Point cadet, proceeding under the pseudonym Jane Doe, who alleges that while at the military academy, she was subjected to pervasive sexual harassment and was raped by another cadet during an evening walk while off duty. After withdrawing from the academy, she sued the federal government, but her claims were dismissed under Feres. In her petition, Doe asks the justices to overrule Feres as inconsistent with the text of the FTCA, or, alternatively, to limit Feres so it does not bar claims such as hers, involving plaintiffs injured in violation of military regulations, during recreational activities, or while attending a service academy. We should know soon whether Thomas has persuaded his colleagues of his views.

Next up is Houston Community College System v. Wilson, 20-804. David Wilson was an elected member of the board of trustees of the Houston Community College System. He criticized the other trustees, alleging that they had violated the board’s bylaws, criticized the board’s decision to fund a foreign campus in Qatar, and alleged that another trustee did not live in the district from which she had been elected. The board censured Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure resolution barred Wilson from holding officer positions on the board or from receiving travel reimbursements. Wilson alleged that the censure violated his First Amendment right to free speech. The district court granted the board’s motion to dismiss for lack of jurisdiction, holding that Wilson could not demonstrate “injury in fact” and thus lacked standing to sue. While the appeal was pending, Wilson both resigned his position as trustee and lost an election to be trustee from another district. The U.S. Court of Appeals for the 5th Circuit held that Wilson had properly stated a claim that the board had violated his First Amendment rights by censuring him based on speech about matters of public concern, and it concluded that his claim for damages remained live even though he was no longer a trustee. The 5th Circuit rejected the board’s argument that it had a right as a legislative body to censure Wilson without implicating his First Amendment rights as part of its internal governance procedures. The Houston Community College System now seeks to revisit that determination, alleging that the circuits are divided about boards’ ability to censure members for their statements.

The last case is Alaska v. Wright, 20-940. Sean Wright finished serving his sentence for Alaska state sexual-abuse-of-a-minor convictions in 2016. He then moved to Tennessee, where he was convicted under federal law of failing to register as a sex offender. Wright then filed a habeas petition under 28 U.S.C. § 2254 in federal court in Alaska, challenging his state convictions on speedy trial grounds. The district court dismissed the petition on the grounds that Section 2254 only authorizes courts to entertain such petitions filed by “a person in custody pursuant to the judgment of a State court,” and Wright was not in custody on the Alaska convictions. The U.S. Court of Appeals for the 9th Circuit reversed, holding that Wright’s incarceration and supervised-release term for the federal failure-to-register conviction rendered him “in custody” for purposes of challenging his Alaska state convictions.

The state of Alaska now seeks review, arguing that federal courts lack jurisdiction to consider a Section 2254 challenge to a state conviction for which the defendant has completed his sentence. They argue that it is irrelevant if that state conviction served as a predicate for a federal conviction under which the offender is in custody. Other federal courts of appeals have rejected the 9th Circuit’s conclusion, holding that habeas only allows a prisoner to challenge the judgment under which he is then in custody. The Supreme Court has suggested the same, although it appears not to have squarely held as much.

That’s all for this week. Stay safe!

New Relists

Doe v. United States, 20-559
Issues: (1) Whether Feres v. United States, which held that the Federal Tort Claims Act broadly precludes claims for injuries “incident to service,” was wrongly decided and should be overruled; and (2) whether, alternatively, Feres should be limited so as not to bar tort claims brought by servicemembers injured by violations of military regulations, during recreational activities or while attending a service academy.
(relisted after the April 16 conference)

Houston Community College System v. Wilson, 20-804
Issue: Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.
(relisted after the April 16 conference)

Alaska v. Wright, 20-940
Issue: Whether, when an offender has fully served the sentence imposed pursuant to a state conviction, a federal habeas court has jurisdiction to consider a 28 U.S.C. § 2254 challenge to that conviction merely because it served as a predicate for an independent federal conviction under which the offender is now in custody.
(relisted after the April 16 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1 and April 16 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11 conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1 and April 16 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1 and April 16 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences; now awaiting supplemental briefing)

United States v. Abu Zubaydah, 20-827
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
(relisted after the March 19, March 26, April 1 and April 16 conferences)

Woodard v. United States, 20-6387
Issue: Whether, as many courts have held, allowing a prosecution to continue after lengthy and demonstrably prejudicial delay in filing criminal charges offends due process, even absent prosecutorial intent to gain a tactical advantage or harass, when the prosecution cannot provide an explanation for the delay sufficient to justify the extent of the prejudice suffered by the defendant.
(relisted after the March 19, March 26, April 1 and April 16 conferences)

New York State Rifle & Pistol Association, Inc. v. Corlett, 20-843
Issue: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
(relisted after the March 26, April 1 and April 16 conferences)

Allen v. Wells Fargo & Co., 20-866
Issues: (1) Whether, under Fifth Third Bancorp v Dudenhoeffer, fiduciaries of an employee stock ownership fund are effectively immune from duty-of-prudence liability for the failure to publicly disclose inside information; and (2) whether Dudenhoeffer’s framework extends beyond prudence-based claims and applies to duty-of-loyalty claims against ESOP fiduciaries.
(relisted after the April 1 and April 16 conferences)