Veterans benefits: a consensus candidate for cert

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.

It was a relatively quiet week at the relist window – just one grant, one denial, one apparent hold, and one new relist. Specifically, the justices granted review in Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, a Title VII (employment discrimination) case asking whether a defendant who failed to plead an affirmative defense in its answer may nonetheless assert that defense as the basis for summary judgment, an issue that has divided the circuits. On the other end of the ledger, the court denied certiorari in Skinner v. Louisiana, drawing a dissent from Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson. They argued that James Skinner – convicted of the same murder as co-defendant Michael Wearry, on the basis of the same withheld evidence the court had already found constitutionally fatal in Wearry v. Cain – is entitled to the same relief the court gave Wearry, and that the Louisiana courts’ one-sentence dismissal of his Brady claim as “distinguishable enough” borders on open defiance of the court’s precedents. The court hasn’t taken further action on last week’s relist in Saldano v. Texas, involving a claim that petitioner Victor Saldaño can’t be executed under the court’s precedent in Atkins v. Virginia because of intellectual disability. My best guess (and it is only that) is that the justices are holding the case pending the outcome of Hamm v. Smith, an Atkins case that was argued in December, and which prompted commentary that “Atkins is on … precarious footing.” Stay tuned – Hamm may have more to say about that.

This week, there are a modest 93 petitions and applications on the docket for this Thursday’s conference.

Johnson v. United States Congress. Floyd Johnson is an Army veteran who served from 1983 to 1985 and was honorably discharged after a combat training exercise in Germany “turned deadly.” In 2013, he was convicted of several state felonies and sentenced to 40 years of imprisonment. While in prison he was diagnosed with PTSD, and applied for and received an 80% disability rating from the Veterans’ Administration. But a federal statute, 38 U.S.C. § 5313, caps disability benefits for veterans incarcerated for a felony conviction at the equivalent of a 10% rating.

Johnson could have challenged the VA’s application of Section 5313 through the Veterans’ Judicial Review Act, a 1988 statute that replaced a very limited administrative review scheme with a multi-step administrative and judicial review process, featuring initial decisions by VA regional offices, appeal to the Board of Veterans’ Appeals, then review in the Court of Appeals for Veterans Claims and, on further appeal, the U.S. Court of Appeals for the Federal Circuit – which has “exclusive jurisdiction” to resolve legal and constitutional questions arising in those cases. But instead, Johnson filed a pro se complaint in federal district court naming Congress as the defendant and alleging that Section 5313 violates the bill of attainder clause and the equal protection component of the Fifth Amendment. The district court dismissed on the merits, but the U.S. Court of Appeals for the 11th Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction, holding that the VJRA vests exclusive jurisdiction over constitutional challenges to veterans’ benefits statutes in the Court of Appeals for Veterans Claims and the Federal Circuit. The 11th Circuit held that the VJRA had displaced the Supreme Court’s 1974 decision in Johnson v. Robison, which had held that veterans could bring facial constitutional challenges to veterans’ benefits laws in district court. The 11th Circuit acknowledged that other federal courts of appeals had held otherwise, but concluded that there was no “textual basis” for carving out facial constitutional challenges from the VJRA’s exclusive framework.

Johnson now seeks review with assistance from Stanford Law School’s Supreme Court Litigation Clinic. He argues that his case presents a clean and acknowledged circuit split – a lopsided six-to-two, with only the U.S. Courts of Appeals for the 8th and 11th Circuits holding that the VJRA displaced district court jurisdiction, against the 2nd, 5th, 6th, 7th, 9th, and D.C. Circuits, all of which have recognized that district courts retain jurisdiction over facial constitutional challenges to veterans’ benefits statutes. The government defends the 11th Circuit’s conclusion on the merits, but it agrees the split is real (though narrower than petitioner claims). The government thus says those words that bring joy to every petitioner’s heart: “This Court should grant review and resolve that conflict in this case.“ The government adds that the fact that Johnson’s pro se complaint mistakenly named Congress rather than the Secretary of Veterans affairs as the proper defendant would not prevent the court from resolving the important issue presented.

With both sides agreeing the court should take the case, and with many veterans’ benefits potentially affected by the constitutional review landscape, this one looks to be headed for the fall argument calendar. Tune in Monday to see if the court takes “yes” for an answer.

New Relists

Johnson v. United States Congress, 25-735

Issue: Whether the Veterans’ Judicial Review Act stripped district courts of the jurisdiction, recognized by this court in Johnson v. Robison, to hear challenges to the constitutionality of acts of Congress affecting veterans’ benefits.

(Relisted after the Mar. 27 conference.)

Returning Relists

Smith v. Scott, 24-1099

Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Foote v. Ludlow School Committee, 25-77

Issue: Whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new “gender” or participates in that process.

(Relisted after the Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, and Jan. 16 conferences; now being held for consideration of response to Fields’ rehearing petition.)

Gator’s Custom Guns, Inc. v. Washington, 25-153

Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Duncan v. Bonta, 25-198

Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Viramontes v. Cook County, 25-238

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Sittenfeld v. United States, 25-49

Issue: Whether, when the government alleges bribery based solely on lawful campaign contributions, the defendant may be convicted based on evidence that is ambiguous as to whether the public official conditioned any official act on the campaign contributions.

(Relisted after the Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Poore v. United States, 25-227

Issue: Whether the limits on agency deference announced in Kisor v. Wilkie and Loper Bright Enterprises v. Raimondo constrain the deference courts may accord the Sentencing Commission’s interpretation of its own rules via commentary.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

District of Columbia v. R.W., 25-248

Issue: (1) Whether a court assessing the existence of reasonable suspicion under the Fourth Amendment may exclude a fact known to the officer, or instead must assess all the evidence when weighing the totality of the circumstances; and (2) whether, under the totality-of-the-circumstances test, the officer in this case had reasonable suspicion to conduct an investigative stop.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Stroble v. Oklahoma Tax Commission, 25-382

Issue: Whether Oklahoma may tax the income of a Muscogee (Creek) Nation citizen who lives and works within the Muscogee (Creek) Reservation that McGirt v. Oklahoma held remains Indian country.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Federal Bureau of Investigation v. Fazaga, 25-430

Issue: Whether dismissal of a claim after assertion of the state-secrets privilege requires a district court to adjudicate the merits of the claim using the privileged information where the privileged information is relevant to a defense.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

National Association for Gun Rights v. Lamont, 25-421

Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Grant v. Higgins, 25-566

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Beaird v. United States, 25-5343

Issues: (1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Stinson v. United States still accurately state the level of deference due to the Commentary of the Federal Sentencing Guidelines; and (3) whether 18 U.S.C. § 922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, whether it is facially unconstitutional.

(Relisted after the Feb. 27, Mar. 6, Mar. 20, and Mar. 27 conferences.)

Reinink v. Hart, 25-179

Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.

(Relisted after the Mar. 6, Mar. 20, and Mar. 27 conferences.)

Bannon v. United States, 25-453

Issue: (1) Whether “willfully” in 2 U.S.C. § 192 – which states that anyone who is “summoned … by the authority of either House of Congress” and “willfully makes default” on the subpoena has committed a crime – requires the government to prove the defendant knew his conduct was unlawful; and (2) whether the proper composition of a congressional committee bears on its “authority” to issue a subpoena for purposes of 2 U.S.C. § 192.

(Relisted after the Mar. 6 conference.)

Whitton v. Dixon, 25-580

Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.

(Relisted after the Mar. 6, Mar. 20, and Mar. 27 conferences.)

Florida v. California and Washington, 22-O-162

Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses (CDLs) “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”

(Relisted after the Mar. 20 and Mar. 27 conferences.)

City of Los Angeles v. Estate of Hernandez, 25-538

Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.

(Relisted after the Mar. 20 and Mar. 27 conferences.)

Castro v. Guevara, 25-666

Issue: Whether a trial court’s determination that a child is “well settled” with regard to the Hague Convention is subject to de novo review, or whether it is reviewed for clear error.

(Relisted after the Mar. 20 and Mar. 27 conferences.)

Saldano v. Texas, 25-5749

Issue: Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner’s Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.

(Relisted after the Mar. 20 conference; now apparently held.)