Gundy v. United States

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Gundy v. United States

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Relist Watch – John Elwood

Monday at the Supreme Court: Four opinions and a GVR – SCOTUStalk

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Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-6086	2d Cir. -	Oct 2, 2018 Tr.Aud.	Jun 20, 2019	5-3	Kagan	OT 2018

Holding: The judgment of the U.S. Court of Appeals for the 2nd Circuit that 34 U. S. C. §20913(d) – which requires the U.S. attorney general to apply the Sex Offender Registration and Notification Act’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment – is not an unconstitutional delegation of legislative authority is affirmed.

Judgment: Affirmed, 5-3, in an opinion by Justice Kagan on June 20, 2019. Justice Kagan announced the judgment of the Supreme Court and delivered an opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Alito filed an opinion concurring in the judgment. Justice Gorsuch filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kavanaugh took no part in the consideration or decision of the case.

The final three weeks of October term 2018 (SCOTUStalk)
First Mondays, OT2018 #4: “This Is About Frogs” (First Mondays)
Argument analysis: Justices grapple with nondelegation challenge (Mila Sohoni)
OT2018 #1: "Rearranging Deck Chairs" (First Mondays)
Argument preview: Justices face nondelegation challenge to federal sex-offender registration law (Mila Sohoni)
OT2018 #0: "Looks A Lot Like Grift" (First Mondays)
Justices grant review in two new cases (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Sep 20 2017	Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 23, 2017)
Sep 29 2017	Waiver of right of respondents United States to respond filed.
Oct 05 2017	DISTRIBUTED for Conference of 10/27/2017.
Oct 17 2017	Response Requested. (Due November 16, 2017)
Nov 09 2017	Order extending time to file response to petition to and including December 18, 2017.
Dec 18 2017	Brief of respondent United States in opposition filed.
Jan 04 2018	DISTRIBUTED for Conference of 1/19/2018.
Jan 16 2018	Rescheduled.
Feb 05 2018	DISTRIBUTED for Conference of 2/16/2018.
Feb 20 2018	DISTRIBUTED for Conference of 2/23/2018.
Feb 26 2018	DISTRIBUTED for Conference of 3/2/2018.
Mar 05 2018	Motion of petitioner for leave to proceed in forma pauperis GRANTED. The petition for a writ of certiorari is GRANTED limited to Question 4 presented by the petition.
Mar 13 2018	Motion for an extension of time filed.
Mar 14 2018	Motion to extend the briefing schedule on the merits is granted . The time to file the joint appendix and petitioner's brief on the merits is extended to and including May 25, 2018. The time to file respondent's brief on the merits is extended to and including August 2, 2018.
May 24 2018	Brief amici curiae of Cato Institute & Cause of Action Institute filed.
May 25 2018	Joint appendix filed. (Statement of costs filed)
May 25 2018	Brief of petitioner Herman Gundy filed.
May 30 2018	Brief amicus curiae of The National Association of Federal Defenders filed.
May 30 2018	Brief amici curiae of Competitive Enterprise Institute, Reason Foundation, Cascade Policy Institute filed.
May 31 2018	Brief amicus curiae of Pacific Legal Foundation filed.
Jun 01 2018	Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jun 01 2018	Brief amicus curiae of New Civil Liberties Alliance filed.
Jun 01 2018	Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Jun 01 2018	Brief amici curiae of Downsize DC Foundation, et al. filed.
Jun 01 2018	Brief amicus curiae of Institute for Justice filed.
Jun 01 2018	Brief amici curiae of Scholars Whose Work Includes Sex Offense Studies filed.
Jun 01 2018	Brief amicus curiae of American Civil Liberties Union filed.
Jun 01 2018	Brief amici curiae of William D. Araiza and 14 Other Constitutional, Criminal and Administrative Law Professors filed.
Jun 01 2018	Amicus brief of The Becket Fund for Religious Liberty not accepted for filing. (A corrected brief has been submitted - June 1, 2018)
Jun 01 2018	Brief amicus curiae of The Becket Fund for Religious Liberty filed.
Jul 09 2018	SET FOR ARGUMENT On Tuesday, October 2, 2018
Aug 02 2018	Brief of respondent United States filed. (Distributed)
Aug 03 2018	CIRCULATED
Aug 07 2018	Record requested from the U.S.C.A. 2nd Circuit.
Aug 08 2018	Record received from the U.S.C.A. 2nd Circuit. The record is electronic.
Sep 04 2018	Reply of petitioner Herman Gundy filed. (Distributed)
Oct 02 2018	Argued. For petitioner: Sarah Baumgartel, New York, N. Y. For respondent: Jeffrey B. Wall, Principal Deputy Solicitor General, Department of Justice, Washington, D. C.

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Opinion analysis: Justices allow "peace cross" to stand – Amy Howe

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This Week at the Court
The Supreme Court released orders from the June 13 conference on Monday; the justices granted, vacated and remanded Klein v. Oregon Bureau of Labor and Industries.
Also on Monday, the justices released their opinions in four argued cases: Manhattan Community Access Corp. v. Halleck, Virginia Uranium Inc. v. Warren, Gamble v. United States and Virginia House of Delegates v. Bethune-Hill.
On Thursday, the justices released their opinions in four argued cases: Gundy v. United States, McDonough v. Smith, The American Legion v. American Humanist Association and PDR Network, LLC v. Carlton & Harris Chiropractic Inc.
Also on Thursday, the justices met for their June 20 conference; John Elwood's "Relist Watch" compiles the petitions that were relisted for this conference.
On Friday, the Supreme Court will release opinions in one or more argued cases at 10 a.m.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  The Bladensburg Cross does not violate the establishment clause of the First Amendment.
- Gamble v. United States
  The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
see all this term’s cases »
Recent Decisions
- Gundy v. United States TThe judgment of the U.S. Court of Appeals for the 2nd Circuit that 34 U. S. C. §20913(d) – which requires the U.S. attorney general to apply the Sex Offender Registration and Notification Act’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment – is not an unconstitutional delegation of legislative authority is affirmed.
- McDonough v. Smith The statute of limitations for Edward McDonough’s 42 U. S. C. §1983 fabricated-evidence claim against his prosecutor began to run when the criminal proceedings against him terminated in his favor – that is, when he was acquitted at the end of his second trial.
- PDR Network, LLC v. Carlton & Harris Chiropractic Inc. The extent to which a 2006 Federal Communications Commission order interpreting the term “unsolicited advertisement” binds lower courts may depend on the resolution of two preliminary questions that the U.S. Court of Appeals for the 4th Circuit should address in the first instance: (1) whether the order is the equivalent of a legislative rule, which has the force and effect of law, or an interpretative rule, which does not; and (2) whether PDR Network, LLC had a “prior” and “adequate” opportunity to seek judicial review of the order.
- The American Legion v. American Humanist Association The Bladensburg Cross does not violate the establishment clause of the First Amendment.
- Gamble v. United States The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
- Manhattan Community Access Corp. v. Halleck Manhattan Community Access Corp., a private nonprofit corporation designated by New York City to operate the public access channels on the Manhattan cable system owned by Time Warner (now Charter), is not a state actor subject to the First Amendment.
- Virginia House of Delegates v. Bethune-Hill The House of Delegates lacks standing to appeal the invalidation of Virginia’s redistricting plan.
- Virginia Uranium, Inc. v. Warren The U.S. Court of Appeals for the 4th Circuit’s judgment that the Atomic Energy Act does not preempt Virginia’s prohibition on uranium mining in the commonwealth is affirmed.
see all this term’s cases »
Current Relists
- Atlanta Gas Light Co. v. Bennett Regulator Guards Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.
- Banister v. Davis (1) Whether Gonzalez v. Crosby extends to post-judgment motions filed under Federal Rule of Civil Procedure 59(e); (2) whether, if Gonzalez does apply, a timely filed Rule 59(e) motion should toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv); and (3) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has be recharacterized as a successive habeas petition if that recharacterization will effect his ability to file a timely notice of appeal.
- Department of Homeland Security v. Regents of the University of California (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
More Petitions »
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On June 3, Justice Clarence Thomas spoke with David Rubenstein for the Supreme Court Historical Society’s annual lecture at the Supreme Court.

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Cases argued	69
Cases decided	53
Summary reversals	5
Merits cases granted to date	74

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6
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10
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