RELIST WATCH

Ghost guns, six-person juries, and discretionary visa decisions

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.

Between the Feb. 23 conference and the April 12 conference — that’s six conferences — the Supreme Court relisted just one new case. That is a dry spell greater than anything I’ve seen in the more than a decade I’ve been writing this feature.

This week, the court also began clearing out some relists that have been hanging around for a while. The court denied review of nine-time relist Compton v. Texas, involving alleged sex discrimination in juror selection (over the dissent of Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson); six-time relist McKesson v. Doe, involving First Amendment limitations on imposing liability on protest organizers (Sotomayor filed this statement respecting the denial); and three-time relist Michaels v. Davis, involving a confession erroneously admitted at a murder trial (over Jackson’s dissent).

That brings us to this week’s new relists. In short: The dry spell has ended. The court has newly relisted 14 cases – although, in fairness, 11 raise the same issue.

First up is Garland v. VanDerStok, involving the Biden administration’s efforts to regulate firearm parts kits (colloquially known as “ghost guns”) under the Gun Control Act of 1968, which imposes licensing, background-check, recordkeeping, and serialization requirements on persons engaged in the business of importing, manufacturing, or dealing in “firearms.” The act defines a “firearm” to include “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon.” In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a regulation that defined “firearm” to include weapon parts kits that could readily be assembled into a firearm and indicated that “a partially complete … frame or receiver” constituted a frame or receiver. The rule was designed to address concerns that people who were otherwise prohibited from obtaining firearms could readily obtain parts that they could rapidly assemble into firearms.

A federal district judge in Texas invalidated the rule and entered a national injunction against it. By a 5-4 vote, the Supreme Court then stayed the order pending resolution of an appeal to the U.S. Court of Appeals for the 5th Circuit and any cert. petition; Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted to deny the stay. Then the 5th Circuit affirmed, concluding that parts kits and partially completed frames and receivers did not come within the plain meaning of the terms used in the Gun Control Act. The solicitor general now seeks review, supported by the District of Columbia and 20 states, which have filed a friend-of-the-court brief. Because obtaining a stay requires a petitioner to show “a reasonable probability that th[e] court will grant certiorari,” this one has a decent chance – you might even say a reasonable probability — of being granted.

That brings us to our next issue, raised by a large group of Florida criminal cases that the court has had kicking around since November. All raise the same question: whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when a criminal defendant is charged with a felony. The defendants in these cases argue that when the Supreme Court held a few years ago in Ramos v. Louisiana that the Sixth Amendment (as incorporated against the states by the 14th Amendment) guarantees criminal defendants the right to a unanimous jury, it meant a unanimous 12-person jury — not a six-person jury, which is all that Florida affords some felony defendants. Although the state public defender filed the petitions, former solicitor general and veteran Supreme Court advocate Seth Waxman became counsel of record in several of them. The court has been rescheduling these cases repeatedly, postponing their initial discussion by the justices at conference. The justices finally considered them for the first time together at last week’s conference, and someone thought them interesting enough to warrant a return trip this week.

Next up is Lackey v. Stinnie. Ordinarily, under the so-called “American Rule,” each litigant pays its own attorney’s fees, whether it wins or loses. Certain statutes permit the payment of “a reasonable attorney’s fee” to “the prevailing party” in litigation: 42 U.S.C. § 1988 permits the payment of attorney’s fees to parties that prevail in civil rights litigation.

In Lackey, Virginia seeks review on the issue of whether a plaintiff who obtains a preliminary injunction – but does not secure a final judgment — may be a “prevailing party” entitled to attorney’s fees. There, a group of Virginia residents sued in federal court to challenge on due process and equal protection grounds a state statute that required the automatic suspension of the drivers’ licenses of those who failed to pay certain court fines and fees. The district court granted a preliminary injunction after concluding that the plaintiffs were likely to succeed on the merits. The state did not appeal the injunction, so the plaintiffs were able to drive again. Before the case could go to trial, the Virginia general assembly repealed the statute. The plaintiffs then petitioned for attorney’s fees under Section 1988, but the district court rejected that request under a then-controlling decision of the U.S. Court of Appeals for the 4th Circuit holding that obtaining a preliminary injunction was not enough to render a plaintiff a “prevailing party.” The plaintiffs appealed, and though the initial panel affirmed, on rehearing, the en banc 4th Circuit reversed by a 7-4 vote.

Virginia now seeks review, arguing that the courts of appeals are divided about whether a preliminary injunction is a sufficient determination “on the merits” and sufficiently “enduring” to warrant an award of attorney’s fees. They are supported by Georgia and 18 other states.

Our last new relist is Bouarfa v. Mayorkas. U.S. citizens and lawful permanent residents (known casually as “green-card holders”) can apply for a visa for their immediate relatives. If their petition is denied, they may seek review of that decision in federal court. But Congress, seeking to reduce the second-guessing of immigration officials, has foreclosed judicial review of purely “discretionary” immigration decisions.

Amina Bouarfa, a U.S. citizen, married Palestinian national Ala’a Hamayel in 2011, and together they have three U.S.-citizen children. Bouarfa petitioned United States Citizenship and Immigration Services for a visa that would permit her husband to remain in the country permanently. While the agency approved the petition, two years later it notified the couple it planned to revoke it after uncovering evidence that it said would have caused it to deny Hamayel’s visa – namely, evidence that he allegedly entered a previous marriage in an attempt to evade immigration laws. Bouarfa sued.

A Florida federal district court dismissed her claim because Congress had stripped courts of the power to review purely discretionary decisions, and revocation of a petition for a visa is just that. But the court added that it was “troubled” by the fact that while the initial decision to grant a visa was subject to judicial review, the decision to revoke the visa was not, meaning that agencies could “dodge judicial review” by granting petitions and then revoking them. The U.S. Court of Appeals for the 11th Circuit affirmed.

Bouarfa seeks review, arguing that because “[t]he initial decision to deny the petition would have been judicially reviewable,” it would be “senseless and arbitrary” if revocation decisions made because of a mistake in the agency’s (reviewable) original decision are themselves beyond judicial review. She argues that the courts of appeals are divided on the question, and the court should take her case to avoid the permanent separation of her family.

The court has only granted two cases for next term so far, putting them well behind the number of grants they would normally have this time of year. So this may be an auspicious time to have a relisted case. We’ll know more soon. Until next time!

New Relists

Bouarfa v. Mayorkas, 23-583
Issue: Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.
(relisted after the Apr. 12 conference)

Lackey v. Stinnie, 23-621
Issues: (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.
(relisted after the Apr. 12 conference)

Garland v. VanDerStok, 23-852
Issues: (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.
(relisted after the Apr. 12 conference)

Cunningham v. Florida, 23-5171
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Nov. 17, Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Guzman v. Florida, 23-5173
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Crane v. Florida, 23-5455
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Arellano-Ramirez v. Florida, 23-5567
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Jackson v. Florida, 23-5570
Issue:Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Sposato v. Florida, 23-5575
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Morton v. Florida, 23-5579
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Aiken v. Florida, 23-5794
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony?
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Enrriquez v. Florida, 23-5965
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony?
(rescheduled before the Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Bartee v. Florida, 23-6143
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony?
(relisted after the Apr. 12 conference)

Manning v. Florida, 23-6049
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony?
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 conference)

Returning Relists

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28 and Apr. 12 conferences)

Sandoval v. Texas, 23-5618
Issues: (1) How courts should determine when jury empanelment begins for a particular defendant’s case, triggering the due process right to be present, given that jury selection is one of the most critical phases of a criminal trial; and (2) whether the state court erred when it held, without analysis of the underlying facts, that the trial court did not violate Gustavo Sandoval’s due process rights when it excluded him and his counsel from proceedings in which members of the jury panel who were called for his trial — and who knew the case that they were summoned for — sought discretionary excusals from the court.
(relisted after the Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28 and Apr. 12 conferences)