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Arbitration (again), habeas (again), and excessive police force (again)

cameras set up on Supreme Court steps

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 had two weeks off between considering which cases to review, which unsurprisingly means the justices have a lot of petitions before them for Thursday’s conference: 249 by my count. They will be considering three of those petitions for a second time because the court relisted them after discussing them at the April 30 conference. They involve three issues the court has considered time and again in recent years: arbitration, habeas corpus and excessive police force. Now please bear with me, as I have to be a bit abbreviated this week because of the press of business.

Badgerow v. Walters, 20-1143, involves a very specific question of arbitration law. In Vaden v. Discover Bank, the Supreme Court held that a federal court, in reviewing a petition to compel arbitration under Section 4 of the Federal Arbitration Act, may “look through” the petition to decide whether the parties’ underlying dispute gives rise to federal-question jurisdiction. Badgerow involves the question whether the same “look through” analysis applies to motions to confirm or vacate arbitration awards under Sections 9 and 10 of the Federal Arbitration Act. Petitioner Denise Badgerow contends that the circuits are divided four-to-two on the issue. Respondent Greg Walters counters that the case self-evidently involves federal issues and a parallel case before the same trial judge has already been confirmed, making this case a bad vehicle because the questioned legal rule is unlikely to have affected the outcome. We’ll have a better idea next Monday whether the court agrees.

The Antiterrorism and Effective Death Penalty Act places strictures on federal courts’ ability to grant relief to state prisoners seeking relief. Among other things, AEDPA precludes a federal court reviewing a conviction on habeas from considering evidence outside the state-court record if a prisoner or his attorney failed to diligently develop the claim’s factual basis in state court, subject to exceptions not relevant here. In Shinn v. Ramirez, 20-1009, the U.S. Court of Appeals for the 9th Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s review of the merits of a claim when a court excuses that claim’s procedural default because the default was caused by post-conviction counsel’s negligence. The 9th Circuit’s decision granted relief to death-row prisoners David Martinez and Barry Jones. When the 9th Circuit refused to rehear the cases en banc, eight judges dissented, saying the panel decision “disregard[s] controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by [AEDPA] on the use of new evidence in habeas corpus proceedings.” The state of Arizona now seeks review at the Supreme Court. Martinez and Jones contend that the case is a poor vehicle. Because the Supreme Court has in recent months summarily overturned appellate court decisions twice in habeas cases (including one other case from the 9th Circuit), this petition is doubtless getting the court’s careful attention.

That brings us to Lombardo v. City of St. Louis, Missouri, 20-391. The case involves a claim of excessive police force, brought by the parents of Nicholas Gilbert, who died while in police custody. Jody Lombardo and Bryan Gilbert contend that a reasonable jury could have found that officers who knelt on Nicholas Gilbert used excessive force when they put him, at a time he was both handcuffed and shackled, onto the ground face-down and pressed into his back until he suffocated. The U.S. Court of Appeals for the 8th Circuit held as a matter of law that the officers’ actions were not excessive force because Gilbert’s conduct could legitimately have been interpreted as “resistance.” This case has been hanging around on the docket for several months. It was scheduled to be considered at each of the court’s conferences from early December until late April, and it was rescheduled at the last moment 13 times, so the case was never actually considered until the April 30 conference. While it’s hard to predict what will happen, as an empirical matter, repeated rescheduling is often a prelude to justices filing separate opinions dissenting from the court’s denial of review. We’ll see what insight Monday’s order list brings.

That’s all for this week. Stay safe!

New Relists

Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30 conference)

Shinn v. Ramirez, 20-1009
Issue: Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.
(relisted after the April 30 conference)

Badgerow v. Walters, 20-1143
Issue: Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act when the only basis for jurisdiction is that the underlying dispute involved a federal question.
(relisted after the April 30 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]

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, April 16, April 23 and April 30 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, April 16, April 23 and April 30 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, March 19 and (after supplemental briefing) April 30 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, April 16, April 23 and April 30 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, April 16 and April 23 conferences)

Ericsson Inc v. TCL Communication Technology Holdings Limited, 20-1130
Issues: (1) Whether, notwithstanding the ordinary rule that a pretrial denial of a motion for summary judgment is not reviewable on appeal, there is an exception for summary-judgment decisions that turn solely on “legal issues”; and (2) whether an order denying summary judgment can be reviewed following trial, at the discretion of the court of appeals, notwithstanding a party’s failure to seek judgment as a matter of law on those grounds under Federal Rule of Civil Procedure 50.
(relisted after the April 23 and April 30 conferences)

Recommended Citation: John Elwood, Arbitration (again), habeas (again), and excessive police force (again), SCOTUSblog (May. 12, 2021, 11:08 PM),