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Challenges to administrative action and retroactive relief for prisoners

sketch of numerous cameras lined up outside the supreme court

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 big news from the Supreme Court last week is that the justices disposed of every one of our last installment’s five new relists — three of them by granting review (involving private rights of action, dischargability of fraud debts in bankruptcy by innocent parties, and overtime pay rules), and in two by denying review (involving the constitutionalityof taxing billboards).

This week they’re replaced by three new relists, all involving government petitions in one way or another. The United States is easily the most successful petitioner before the Supreme Court, winning review in over 70% of the cases in which it files a cert petition. The question is whether the United States is such a successful litigant that the court will grant review even in cases it doesn’t want the court to review.

Our first relist this week is the government’s petition in Securities and Exchange Commission v. Cochran. The case presents the same issue as another relisted case in which the court recently granted cert: Axon Enterprise, Inc. v. Federal Trade Commission. Both cases present the question whether statutes that authorize appellate courts to review final agency adjudications implicitly strip district courts of jurisdiction over constitutional challenges to those proceedings. Both cases arise in the context of administrative proceedings brought by independent enforcement agencies against regulated parties — Axon by the Federal Trade Commission, and Cochran by the Securities and Exchange Commission. Both the FTC and the SEC are authorized to investigate and administratively adjudicate violations before administrative law judges, who are insulated from removal by “double for-cause” restrictions (meaning that both the ALJs and their supervisors are subject to for-cause removal restrictions), a structure that the Supreme Court held unconstitutional in Free Enterprise Fund v. Public Company Accounting Oversight Board. In addition, the Supreme Court held a few years back that the appointment procedures for SEC administrative law judges violate the Constitution’s appointments clause. 

Facing the prospect of litigating the agency’s antitrust enforcement action before FTC administrative law judges, Axon filed suit in district court seeking to enjoin FTC proceedings as unconstitutional, focusing on constitutional issues collateral to underlying antitrust issues the agency was pursuing administratively. The Axon district court dismissed the suit for want of jurisdiction, concluding that Congress had implicitly precluded district-court jurisdiction over such actions by creating a statutory review scheme for FTC cease-and-desist orders that bypasses district courts and vests judicial review directly in the courts of appeals. A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed. In January, the Supreme Court granted review in Axon over the opposition of the solicitor general, and the case likely will be heard this fall.

Michelle Cochran, who found herself administratively charged by the SEC for failure to comply with auditing documentation requirements while working for a former employer, brought a similar suit against the SEC. The district court held that a statutory provision permitting appellate-court review of final SEC orders implicitly preempted her suit, but the en banc U.S. Court of Appeals for the 5th Circuit reversed. The SEC petitioned for review, but asked the court to hold the Cochran case pending its decision in Axon and then dispose of the case as appropriate in light of its decision there. But Cochran’s brief, instead of saying the court should deny review or hold the case for Axon, argued that the court should instead grant plenary review and consider her case alongside Axon to make sure that all relevant legal issues are completely resolved. The government didn’t respond to that suggestion, although it filed a rather embarrassing letter admitting that the SEC’s prosecutors had accessed the SEC adjudicator’s files (albeit not in Cochran’s own case). That’s a bad atmospheric fact that doesn’t make administrative proceedings look good. In any event, we should find out on soon whether Axon (in which the first briefs have already been filed) is about to get a companion case.

The next two relists raise a related question: whether a habeas corpus statute, 28 U.S.C. § 2241, grants district courts authority to review a claim that a federal prisoner’s sentence is invalid, when circuit precedent foreclosed the claim at the time of the prisoner’s prior habeas motion, but an intervening Supreme Court precedent changed the construction of the statute and held that new interpretation applies retroactively. Federal prisoners raise that issue in pending petitions in Ham v. Breckon and Jones v. Hendrix. The government — which generally is a pretty successful respondent as well as a successful petitioner — admits that there is a circuit split on the issue. It would have a hard time saying otherwise, since the government itself petitioned for Supreme Court review on this very issue a couple years back in the much-relisted United States v. Wheeler, before a vehicle problem arose (the prisoner won habeas relief and was released from prison) that apparently persuaded the Supreme Court to deny review in that case. But the government opposes review in both Ham and Jones, pointing to supposed vehicle problems and the Supreme Court’s denials of review in cases raising the issue since Wheeler. But something tells me at least one of those cases is going to be granted.

That’s all for this week. Until next time, stay safe!

New Relists

Ham v. Breckon, 21-763
Issue: Whether a district court has jurisdiction under 28 U.S.C. § 2241 to review a claim that a federal prisoner’s sentence is invalid in light of an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court, when circuit precedent foreclosed the claim at the time of the prisoner’s prior motion under 28 U.S.C. § 2255.
(rescheduled before the April 1 conference; relisted after the April 29 conference) 

Jones v. Hendrix, 21-857
Issue: Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.
(relisted after the April 29 conference)

Securities and Exchange Commission v. Cochran, 21-1239
Issue: Whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.
(relisted after the April 29 conference)

Returning Relists

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1, April 14, April 22 and April 29 conferences)

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22 and April 29 conferences; record requested after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22 and April 29 conferences)

Recommended Citation: John Elwood, Challenges to administrative action and retroactive relief for prisoners, SCOTUSblog (May. 11, 2022, 10:19 AM),