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Separation of powers and mental health evidence in capital sentencing

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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.

There was a lot of action among the relisted cases at last week’s Supreme Court conference. The court granted review in six-time relisted case Carnahan v. Maloney, which raises the question whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954. It seems very likely that the court relisted so many times because its members were wondering whether the issue would arise so infrequently that it was unnecessary to take the case, since usually the executive branch provides Congress requested documents, and this case involved something of a historical outlier — the Trump administration’s refusal to provide documents involving government documents relating to a Trump hotel. The court’s grant suggests the court may be poised to narrow the scope of  standing for members of Congress to sue to enforce statutes. The court also noted probable jurisdiction for a one-time relist of a mandatory appeal in a redistricting case, Alexander v. South Carolina State Conference of the NAACP, involving allegations of racial gerrymandering in a South Carolina  congressional district. And as expected, the court granted review on the question of how to determine when changes to federal drug schedules means that prior convictions for state offenses are no longer “serious drug offense[s]” for purposes of sentencing enhancements under the Armed Career Criminal Act. Somewhat surprisingly, the court took both the case the government recommended, Jackson v. United States, as well as a second case, Brown v. United States, and consolidated both cases for one hour of argument.

Some petitioners in relisted cases are going home empty handed. The court denied review in three-time relist St. John v. Jones, involving class-action settlements. The court also denied review to the state of Alabama in Hamm v. Smith, on its claim that the U.S. Court of Appeals for the 11th Circuit had erred in holding that Eugene Smith had stated a valid claim that the state’s method of execution was cruel and unusual. Justice Clarence Thomas, joined by Justice Samuel Alito, filed an opinion dissenting from that denial.

Most surprisingly to me, the court denied review in Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC, involving an undoubtedly important and recurring issue involving drug labeling and inducement of patent infringement. The court called for the views of the U.S. solicitor general, who told them that a divided panel of the U.S. Court of Appeals for the Federal Circuit had erred badly in holding that FDA-approved drug labels could be used to support claims of that the makers of generic drugs induced patent infringement for still-patented treatments even if those treatments were omitted from so-called skinny labels on generic versions of the drugs. 

That brings us to this week’s new business. The Supreme Court will be considering a total of 151 petitions and applications at Thursday’s conference. They will be reviewing only two of those petitions for the second time.

First up is Calcutt v. FDIC, involving separation of powers and administrative law claims. Harry Calcutt was president, CEO, and chairman of the board of Northwestern Bank, a Michigan community bank. After a series of loans with the bank’s biggest customer group went sour, Calcutt was removed from his positions and barred from holding further banking positions by the Federal Deposit Insurance Corporation, whose board members are removable by the president only for cause. The FDIC board acted based on the recommendation of an administrative law judge who was removable by the federal Merit Systems Protection Board only for cause; the MSPB is in turn itself removable by the president only for cause. Critics have long argued that such removal restrictions impinge on the president’s ability to supervise the executive branch and ensure that the laws be faithfully executed.

Calcutt challenged the FDIC’s actions. The U.S. Court of Appeals for the 6th Circuit stayed the FDIC’s order pending appeal, but ultimately denied review. The court held that Calcutt wasn’t entitled to relief on his claims that the removal restrictions on the FDIC board members (and the administrative law judge) violated separation of powers, because under Collins v. Yellen, he had not shown that that the removal restrictions had any effect on his case. Then by a 2-1 vote, the court of appeals held that FDIC had erred in not applying a proximate causation standard in determining the harm Calcutt’s actions had caused, but held that remand was not warranted because substantial evidence still supported the FDIC’s finding that Calcutt had caused and would cause harm. 

The majority rejected Calcutt’s invocation of SEC v. Chenery Corp., which held that an agency’s action can be reviewed based only on its own reasoning. The majority wrote that “[r]emand is unnecessary where an agency’s incorrect reasoning was confined to [a] discrete question of law and played no part in its discretionary determination, and [the agency] reaches a conclusion that it was bound to reach.”

Judge Eric Murphy dissented in part. He agreed that Calcutt had not shown that the removal restrictions had affected the FDIC’s past actions. But because the agency had applied the wrong causation standard, Murphy would have remanded for the FDIC to apply the correct causation rules in the first instance. He concluded that the majority had “run[] afoul of basic administrative-law principles” by affirming the FDIC’s decision based on proximate-cause determinations that the agency itself had not made. 

The 6th Circuit denied rehearing, although the FDIC did not oppose it. Justice Brett Kavanaugh stayed the decision pending Supreme Court review; the FDIC opposed the stay on the issue of the removal restrictions, although not on the remand issue.

Calcutt now seeks Supreme Court review, supported by a whopping six amicus briefs. He argues that the 6th Circuit violated SEC v. Chenery Corp. by not remanding the case to the agency after determining that the agency had applied the wrong legal standards. He also argues that the 6th Circuit misapplied Collins v. Yellen, saying it does not require separation-of-powers challengers to offer concrete proof of prejudice as a prerequisite to courts resolving separation-of-powers challenges to removal restrictions on the merits. And he argues that the standard is different when a party challenges both past actions and future actions.

The FDIC concedes that summary reversal is warranted on the first issue because the court of appeals should have sent the case back to the FDIC board after it concluded that the board  applied the wrong standard. But, the government argues, the court of appeals was correct that Calcutt was not entitled to relief on his separation-of-powers challenges, which does not conflict with any holding of either the Supreme Court or another court of appeals.

Calcutt argues in his reply that if the court summarily reverses on the remand issue, it should “kill two birds with one stone” by correcting its “impossible to satisfy” standard for showing a separation-of-powers error was not harmless. Although Calcutt seems to be pitching mainly for summary reversal, he urges the court to grant plenary review on both issues rather than simply reversing on the remand issue.

The second new relist is Chestnut v. Allen. Quincy Allen was convicted of two capital murders and sentenced to death in a South Carolina state court. During the sentencing phase of his trial, the government and defense experts agreed that Allen suffered persistent childhood abuse, and that Allen had a mental illness, an eating disorder called “rumination disorder” — regularly spitting up food after meals and rechewing it. But the government disagreed with the defense’s argument that Allen suffered from schizophrenia. The sentencing judge concluded that “Allen was [not] conclusively diagnosed as mentally ill” and found no “conclusive proof of mitigating circumstances.” After exhausting his direct appeal and post-conviction remedies in the South Carolina courts, Allen filed a federal habeas corpus petition, which the district court dismissed.

On appeal, a divided panel of the U.S. Court of Appeals for the 4th Circuit granted habeas relief. The majority concluded that the sentencing judge had committed constitutional error by “fail[ing] to find that any mitigating circumstance had been established,” and had “used an impermissibly high standard for determining whether Allen suffered from mental illness.”  Judge Allison Jones Rushing dissented, arguing that “[b]ecause fairminded jurists could agree with the [state] court’s decision,” no relief was due. She suggested that the majority had “run roughshod over the considered findings and judgments of the state court.”

Before the Supreme Court, South Carolina argues that the 4th Circuit majority violated the restrictions on granting habeas relief in the Antiterrorism and Effective Death Penalty Act and “needlessly overturn[ed] a state death sentence on an insubstantial premise that Allen’s mental health evidence was not afforded ‘meaningful consideration and effect’” even though the judge stated that he had considered all the mental health evidence.  The court has already called for the record in the case and received it. The decision to relist suggests that the court is giving the state’s petition a serious look. But even if the state gets relief, this case is likely to involve not plenary review, but at most a summary reversal to emphasize the strict requirements of AEDPA. 

We should know more after the court releases its order list next Monday. See you next time! 

New Relists

Chestnut v. Allen, 22-490
Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated 28 U.S.C. § 2254(d) limitations and needlessly overturned a state death sentence on an insubstantial premise that respondent’s mental health evidence was not afforded “meaningful consideration and effect” when the judge stated at sentencing that he had considered all the mental health evidence but did not explicitly reference respondent’s eating disorder.
(relisted after the May 11 conference) 

Calcutt v. Federal Deposit Insurance Corp., 22-714
Issues: (1) Whether Securities and Exchange Commission v. Chenery Corp. and its progeny required the U.S. Court of Appeals for the 6th Circuit to remand the case to the agency after determining that the agency had applied the wrong legal standards; and (2) whether Collins v. Yellen requires separation-of-powers challengers to offer concrete proof of prejudice as a prerequisite to courts resolving separation-of-powers challenges to removal restrictions on the merits.
(relisted after the May 11 conference)

Returning Relists

Petrobras America Inc. v. Transcor Astra Group S.A., 22-518
Issue: Whether, when parties have entered a contract with an arbitration clause that delegates to the arbitrator questions of arbitrability, the arbitrator — rather than a court — must decide whether the contract has been superseded by a subsequent contract.
(relisted after the Apr. 28 and May 11 conferences)

Recommended Citation: John Elwood, Separation of powers and mental health evidence in capital sentencing, SCOTUSblog (May. 18, 2023, 11:01 AM),