The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last week the federal government encouraged the justices to review a pair of petitions involving two nearly identical laws in Florida and Texas that seek to regulate how large social media platforms can block, remove, or demonetize user content. Lawmakers in both states passed the bills to address what they perceive as censorship of conservative viewpoints; the platforms countered that the laws violate their own First Amendment rights. This week, we highlight cert petitions that ask the court to consider, among other things, a First Amendment challenge against efforts by another populous state, California, to regulate online content.

In 2018, California established an Office of Election Cybersecurity to combat misinformation posted online about voting and the electoral process. Overseen by California’s secretary of state, the office works closely with social media companies to identify posts about elections that might violate the platforms’ own guidelines on misinformation.

Although the ultimate decision about whether to remove content rests with the platforms, the state’s designation has overwhelmingly proven decisive. During the 2020 election cycle, for example, 98% of the nearly 300 posts that the Office of Election Cybersecurity had flagged as potential misinformation for Facebook and Twitter were removed.

Rogan O’Handley is an attorney and active political commentator on Twitter under the handle @DC_Draino. A week after the 2020 election, he posted a tweet calling for ballots in California to be audited. “Election fraud is rampant nationwide,” he wrote, “and we all know California is one of the culprits[.] Do it to protect the integrity of that state’s elections[.]” The Office of Election Cybersecurity flagged the message for Twitter, which added a warning to the tweet that O’Handley’s claim was disputed and issued a “strike” against his account.

In February 2021, Twitter suspended O’Handley’s account after issuing four additional strikes against him under more stringent content-moderation policies instituted following the Jan. 6, 2021, attack on the U.S Capitol. (O’Handley’s account was reactivated this year.)

Four months after his account was suspended, O’Handley filed a lawsuit against Twitter and California Secretary of State Shirley Weber. O’Handley argued that Twitter and California had acted in tandem to restrict his First Amendment rights.

A federal district court in California dismissed the claims, and the U.S. Court of Appeals for the 9th Circuit upheld that decision. The court of appeals ruled that although “it is possible to draw a causal line from the OEC’s flagging of the November 12th post to O’Handley’s suspension,” there was no “state action” for O’Handley to challenge under the First Amendment. California certainly exercised governmental authority when it flagged O’Handley’s tweet, the 9th Circuit reasoned, but it took no explicit action restricting his speech. And although Twitter did limit O’Handley’s speech, the court explained, it was following its own rules, rather than acting on the state’s behalf.

In O’Handley v. Weber, O’Handley asks the justices to grant review and reverse the 9th Circuit’s decision. O’Handley argues that the distinction between California’s flagging of his tweet and Twitter’s disciplinary response is illusory: Twitter had never monitored his content before it was flagged by the Office of Election Cybersecurity, he contends, and it would not have subjected him to greater scrutiny had the state not brought attention to his account. He urges the court to reinstate his lawsuit so he can introduce further evidence that California exercises coercive authority over online content.

A list of this week’s featured petitions is below:

O’Handley v. Weber
22-1199
Issues: (1) Whether the complaint plausibly alleged that state officials acted under color of state law in violation of the First Amendment when a state agency, which exists to police online speech, singled out petitioner’s disfavored political speech for Twitter to punish and Twitter complied; and (2) whether the government speech doctrine empowers state officials to tell Twitter to remove political speech that the state deems false or misleading.

Argent Trust Company v. Harrison
23-30
Issue: Whether a participant in a plan governed by the Employee Retirement Income Security Act who asserts statutory claims under that statute can be compelled, pursuant to a binding arbitration provision, to submit his claims to individual arbitration.

Pye v. Emmons
23-31
Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit’s novel construction of 28 U.S.C. § 2254(d)— under which a state prisoner is ineligible for federal habeas relief even when the state court has “unreasonabl[y]” rejected his claim so long as the federal court can provide some reasonable “justification” for the state court’s “reason” for denying relief — is inconsistent with the statutory text and in direct conflict with this court’s decision in Wilson v. Sellers; and (2) whether 28 U.S.C. § 2254(e)(1) applies when a state prisoner seeks federal habeas relief solely on the state-court evidentiary record.

The post Once-suspended Twitter user argues California violated his First Amendment rights appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The judge-made doctrine of qualified immunity generally shields government officials from liability unless they violate “clearly established” law. This week, we highlight cert petitions that ask the court to consider, among other things, whether a prison official is entitled to qualified immunity after he forced an elderly diabetic man into a shower filled with feces and then prevented him from cleaning his open wounds for a week.

In 2018, then 67-year-old Lynn Hamlet was incarcerated in the Martin Correctional Institution, a state prison in southern Florida. After waking from a diabetic coma, Hamlet was caught sneaking a bag of rice out of the prison cafeteria. Hamlet contends that he was involved in a long-running dispute with the prison guard who discovered that he had taken the rice; the guard, Hamlet says, had him placed in solitary confinement after the two exchanged words.

A week later, Hamlet was allowed to use the handicapped shower. As the water level in the shower rose, Hamlet noticed a potato-chip bag filled with human feces and urine floating on the surface. He asked Officer Brandon Hoxie, who had escorted him to the shower, to let him out of the shower to avoid exposing the open wounds on his ankles, a result of his diabetes, to the feces and urine. Hamlet alleges that Officer Hoxie instead accused him of being the source of the feces and urine and, after initially letting him out of the shower, forced him back inside for another 30 to 40 minutes.

When Hamlet returned to his cell, he found that Hoxie had taken away his sheets and clean clothes; he also barred Hamlet from showering for another week. Meanwhile, Hamlet tried to wash the feces from his ankles with the only tool remaining in his cell: water from the toilet bowl. Unable to clean his wounds, Hamlet became ill and and eventually ended up in the hospital, where he received his first shower since the incident. Ultimately, a severe bacterial infection compromised a valve in Hamlet’s heart, requiring emergency surgery and a lengthy hospital stay.

Hamlet went to court, arguing that Hoxie had violated his Eighth Amendment right to be free of cruel and unusual punishment by exposing him to feces in the shower and preventing him from cleaning his wounds for a week afterwards. A federal district court in Florida ruled for Hoxie.

The U.S. Court of Appeals for 11th Circuit affirmed. The court held that Hoxie was entitled to qualified immunity because he did not violate a clearly established right. Hamlet had pointed to a prior 11th Circuit decision denying qualified immunity to a prison officer who refused to remove a man’s waist chains for two days and then made him sit in his own excrement while preventing nurses from cleaning him. The 11th Circuit concluded, however, that Hoxie could not reasonably have known that decision prohibited his conduct towards Hamlet because his exposure to feces in the shower “was different in both degree and kind.”

In Hamlet v. Hoxie, Hamlet asks the justices to grant review and reverse the 11th Circuit’s ruling. He argues that there is a long history of court decisions, both in the 11th Circuit and around the country, establishing that prolonged exposure to human feces while in custody is unconstitutional. But even if that right was not clearly established, Hamlet contends, the Supreme Court has recently ruled that prison officials who forced a man to spend six days naked in cells contaminated with human feces and sewage were not entitled to qualified immunity because – regardless of whether they had violated a clearly established right – the man’s treatment was so glaringly egregious. Hamlet argues that the same reasoning should apply to his case.

A list of this week’s featured petitions is below:

Foremost Title & Escrow Services, LLC v. FCOA, LLC
22-1249
Issue: Whether the U.S. Court of Appeals for the 11th Circuit is correct to relieve an incontestable trademark-holder of its burden to prove that its mark is strong and likely to be confused with a junior mark.

Coinbase, Inc. v. Suski
23-3
Issue: Whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.

Hamlet v. Hoxie
23-7
Issues: (1) Whether it is “clearly established” for purposes of qualified immunity that the Eighth Amendment bars a prison official from forcing a person with diabetes and open wounds to endure prolonged and unnecessary exposure to feces; and (2) whether the court should overrule Procunier v. Navarette and hold that qualified immunity under 42 U.S.C. § 1983 does not extend to a suit alleging that a prison guard subjected the plaintiff to unlawful conditions of confinement, because similar state officials were not immune from similar suits at common law.

The post Florida man contests qualified immunity after infection from forced exposure to human feces appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last summer, the Supreme Court ruled in Siegel v. Fitzgerald that a 2017 law permitting debtors in bankruptcy proceedings in North Carolina and Alabama to pay lower administrative fees than those paid by debtors in other states violated the Constitution’s requirement that Congress provide uniform bankruptcy laws nationwide. That decision left open the question of what, if anything, to do about the debtors who had paid the higher fees. This week, we highlight cert petitions that ask the court to consider, among other things, whether the solution is simply to make the fees uniform going forward, or instead to give a refund to debtors who paid higher fees in the past.

The United States has 94 districts for bankruptcy proceedings in federal court. Most of those districts operate under the United States Trustee Program, housed in the Department of Justice. Six districts, however – those in Alabama and North Carolina – are grandfathered into a different system called the Bankruptcy Administrator Program that is overseen directly by the courts.

Bankruptcy proceedings can often be lengthy and therefore expensive to administer. The trustee program is funded by fees, most of which are paid by companies that file for bankruptcy under Chapter 11 of the Bankruptcy Code, which provides for reorganization. The law that the court struck down in Siegel required a significant five-year increase in fees to make up for a shortfall in funding for the trustee program; however, the federal judiciary, which sets fees for the administrator program, did not raise its fees at the same time, leading to sometimes substantial disparities between the two programs.

In 2016, a group of companies affiliated with John Q. Hammons Hotels and Resorts filed for bankruptcy. Because the proceedings took place in Kansas, the companies paid the regular administrative fees for the trustee program. In 2020, they asked the bankruptcy court for a partial refund, on the ground that the discrepancy between the fees for the trustee program and the administrator program violated the Constitution.

The bankruptcy court rejected that request, but the U.S. Court of Appeals for the 10th Circuit reversed. The court of appeals agreed with the companies that charging debtors in trustee districts higher fees was unconstitutional. And because it could not issue a ruling that increased the fees in Alabama and North Carolina, the 10th Circuit agreed that the solution was for the government to refund the companies the difference between the fees that they paid and what they would have paid under the administrator program.

The government appealed that ruling to the Supreme Court in early 2022, asking the justices to hold its petition for the court’s decision in Siegel and then send the case back to the 10th Circuit. The court did so last June.

Looking at the case once more, the 10th Circuit reissued its prior ruling without elaboration. Although the decision in Siegel ultimately endorsed the 10th Circuit’s reasoning on uniformity, it said nothing about a remedy for the constitutional violation, because the court of appeals in that case had not addressed the question. In light of that silence, the 10th Circuit reinstated its decision ordering a partial refund.

In Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC, the government asks the justices to grant review and decide what, if any, remedy the companies are entitled to. The government argues that the justices rarely grant requests for retroactive relief, and they should not do so here. That is especially so, the government contends, when Congress made clear that it only intended to provide a remedy going forward by amending the law that the court ultimately struck down in Siegel to require administrator districts to charge debtors the same fees as those levied in trustee districts, with no mention of providing a refund to debtors in trustee districts who had paid higher fees in the past.

A list of this week’s featured petitions is below:

Stirling v. Stokes
22-1234
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit defied this court’s remand instruction and circumvented 28 U.S.C. § 2254(e)(2)’s limitations on federal-court authority by finding forfeiture based on the state not having offered the statutory argument as an alternative ground to deny relief on the claim when the state was defending on appeal the district court’s sole finding of default; and (2) whether, if the state did forfeit its argument, the 4th Circuit erred in granting relief on a defaulted ineffective-assistance-of-trial-counsel claim by violating basic principles of Strickland v. Washington that require reviewing courts to afford deference to reasonable strategy and that the whole of the evidence be considered in a prejudice analysis.

Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC
22-1238
Issue: Whether the appropriate remedy for the constitutional uniformity violation found by this court in Siegel v. Fitzgerald is to require the United States Trustee to grant retrospective refunds of the increased fees paid by debtors in U.S. Trustee districts during the period of disuniformity, or is instead either to deem sufficient the prospective remedy adopted by Congress or to require the collection of additional fees from a much smaller number of debtors in Bankruptcy Administrator districts.

Files v. United States
22-1239
Issue: Whether Section 404 of the First Step Act authorizes district courts to impose a reduced sentence for both crack-cocaine offenses and related offenses that are part of the same overall sentence package.

The post Government seeks clarity on remedy after recent bankruptcy decision appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Over 40 years ago, the Supreme Court ruled in Baker v. McCollan that a man who was arrested and kept in jail for three days over a holiday weekend before police discovered that they had mistaken him for a suspect with the same name did not suffer any violation of his constitutional rights. But in other cases, the justices explained, the Constitution might bar police from detaining someone whose name matches an outstanding arrest warrant, but who claims he is the victim of mistaken identity, for a long time. This week, we highlight cert petitions that ask the court to consider, among other things, whether Baker’s three-day period is a strict rule or instead a mere guidepost in cases of arrest due to mistaken identity.

David Sosa is a jet-engine engineer in Martin County, Florida. He was arrested there twice after he was pulled over for traffic violations and police officers found an outstanding warrant for a David Sosa for selling crack cocaine in Texas in 1992. During both incidents, Sosa insisted he was innocent and pointed out that he did not match any of the identifying information in the decades-old arrest warrant, including birth date, tattoos, height, and weight.

After Sosa’s first arrest in 2014, he was detained for a few hours before police scanned his fingerprints and confirmed that they had the wrong person. But Sosa’s second arrest in 2018 was a different story. Sosa repeatedly told various officers after he was arrested on a Friday both that he was not the man they were looking for and that this mistake had happened before. However, no one tried to confirm Sosa’s identity until Monday morning, when officers scanned his fingerprints and released him.

Sosa went to federal court, arguing that the officers violated his constitutional rights. A federal district court in Florida dismissed his lawsuit. However, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit reinstated it. The panel concluded that Sosa had plausibly alleged that the officers violated his right to due process by refusing to verify his identity for three days when they should have known he was innocent.

The officers sought review by the full 11th Circuit, which disagreed with the panel. A divided appeals court ruled that Sosa could not proceed with his claim because the Supreme Court’s decision in Baker bars plaintiffs from suing police for prolonged detention if they were only kept in jail for three days.

In Sosa v. Martin County, Sosa asks the justices to reverse the full 11th Circuit’s ruling and reinstate his lawsuit once more. He argues that Baker does not establish a bright-line rule that a plaintiff cannot sue police if he is only held in jail for three days. Instead, Sosa contends, it indicates that courts should consider the totality of the circumstances when deciding whether police should have known someone they arrested was innocent. He is supported by a friend-of-the-court brief from a group of other David Sosas around the country. Despite being protected from Sosa’s predicament where they live, the other David Sosas argue, they would be powerless against a similar violation of their constitutional rights if they traveled to Florida, Georgia, or Alabama under the 11th Circuit’s ruling.

A list of this week’s featured petitions is below:

Sosa v. Martin County, Florida
22-1145
Issues: (1) Whether Baker v. McCollan requires courts to apply a reasonable, totality-of-the-circumstances analysis to a claim of overdetention, or whether the case only protects against mistaken overdetention for longer than three days; and (2) whether Baker’s right against overdetention falls under the Fourth Amendment’s proscription against unreasonable searches and seizures or the 14th Amendment’s guarantee of substantive due process.

Guzman v. Sturgis
22-1211
Issues: (1) Whether, when government officials state their intent to continue to violate an individual’s constitutional rights while actually violating them, those statements can be taken at face value for purposes of determining the subjective intent of the government official in regard to a claim for deliberate indifference and for purposes of determining the retaliatory intent element of a retaliation claim; and (2) whether government officials’ taunts of an individual during their violation of the individual’s constitutional rights are sufficient to support the causation element of a retaliation claim where the taunts are ongoing during the violation.

Ferguson v. United States
22-1216
Issue: Whether 28 U.S.C. § 2255 limits a district court’s discretion to consider—among other circumstance-specific factors—legal errors in prior proceedings as “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) as amended by the First Step Act.

Idaho v. Dorff
22-1226
Issues: (1) Whether a drug-detection dog physically intrudes upon a constitutionally protected area and therefore conducts an unreasonable search under the Fourth Amendment when it touches the exterior of a lawfully stopped car while sniffing for potential contraband; and (2) even if touching the exterior of a lawfully stopped car is a physical intrusion of a constitutionally protected area, whether the actions of a drug-detection dog, taken without direction, prompting, or facilitation by officers, are attributable to the government for purposes of the Fourth Amendment.

The post Florida man contests three-day rule in case of jailing over mistaken identity appeared first on SCOTUSblog.

As Supreme Court watchers look ahead to next term, one small detail to monitor will be the number of paid petitions for certiorari filed at the court. This term’s 1,252 paid cert petitions constituted a nearly 25 percent drop from the previous five-year average, sharply limiting the number of cases from which the justices fill the merits docket.

Paid cases are those in which the petitioner can afford to pay the court’s $300 filing fee and the cost of printing to the court’s specifications (often more than $1,000). These petitions overwhelmingly make up the cases the court agrees to hear. While several thousand in forma pauperis cases are also filed each year, the court grants cert in a fraction of a percent of these cases.

The table below shows the total paid petitions in the last 16 terms:

The average number of paid petitions over the previous 15-year period was 1,589, and the paid docket was quite stable during that stretch. The variation reflected in both the period’s low (2019-20 term’s 1,478 petitions) and its high (2020-21 term’s 1,829 petitions) is likely attributable to the COVID-19 pandemic. The court issued an order in March 2020 extending the deadline for filing petitions for certiorari from 90 to 150 days. As a result, many petitions that otherwise would have been filed in the last few months of the 2019-20 term (which ended on June 30, 2020) were filed in the 2020-21 term.

This year’s decline is substantial: a 21.2 percent decrease from the previous 15-year average, and a 23.9 percent decrease from the previous five-year average. Even compared with the 2019-20 term’s 1,478 petitions, it marks a more than 15 percent decrease. Or think about it this way — paid petition 1,252 was docketed on June 30 this year but was docketed on the following dates in the previous five terms: March 16, 2022, March 10, 2021, April 28, 2020 (at the height of the pandemic), March 29, 2019, and March 8, 2018.

It is difficult to draw meaningful conclusions based on these numbers alone, and it is possible that the 2022-23 term is a one-year blip. The downturn does not seem to be the result of declining merits decisions in the federal courts of appeals. Although they too have decreased in recent years, that decrease has been slow and fairly steady from 2012 through 2023 — not the sudden drop seen this year in the Supreme Court’s paid docket.

Whatever the cause of this term’s decline, the average of 1,589 is consistent with a longer-term trend downward noted in 2007 by David Stras. “Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981,” Stras wrote. “However, beginning in 1994, or at about the time of greatest decline in the Court’s plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994.”

The post Are paid petitions for certiorari in decline — again? appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Rents in New York City are among the highest in the country and rising. According to a report from brokerage firm Douglas Elliman, median rents in Manhattan reached a record high in May of $4,395 per month. Meanwhile, only a handful of residential units in the city are rent-controlled, subject to tight limits on increases in rent. Roughly a third of New York’s housing stock qualifies for a decades-old regulatory regime known as rent stabilization, however, which comes with more modest limits on rent increases and a host of other tenant protections. This week, we highlight cert petitions that ask the court to consider, among other things, whether New York’s recently amended rent-stabilization law is, in effect, a “taking” of landlords’ property without “just compensation” in violation of the Fifth Amendment.

First enacted in 1969, New York’s Rent Stabilization Law governs all apartments in buildings built before 1974 that have six or more units. Owners of rent-stabilized apartments cannot raise rents above a limit set annually by a city-wide oversight board, and they generally must renew a tenant’s lease except in a narrow set of circumstances, such as when the tenant fails to pay rent.

The state legislature has repeatedly amended the rent-stabilization law in response to ongoing pressure from both tenants, who argue that rents remain excessive, and landlords, who insist that the rising costs of maintaining housing have outstripped their ability to increase rents. The most recent amendment in 2019 added conditions on landlords’ ability to take rent-stabilized units off the market for personal use and repealed exceptions to the rent-increase limits for high-income or longtime tenants.

Undeterred by a long history of failed legal challenges to the rent-stabilization law, a group of trade associations representing owners of rent-stabilized apartments went to federal court to challenge the amended law. They raised two primary arguments against it.

First, the landlords argued that the law’s restrictions on reclaiming rent-stabilized apartments from current tenants are an uncompensated physical taking of their property under the Supreme Court’s 2021 ruling in Cedar Point Nursery v. Hassid, which struck down a California law that gave union organizers the right to enter farm property to speak with agricultural workers. Second, they argued that the law’s rent-increase limits are a so-called “regulatory” taking of their property because they require landlords to bear the bulk of the costs to provide sufficient affordable housing, when they should be shared by New York taxpayers as a whole.

A federal district court in New York rejected both claims, and the U.S. Court of Appeals for the 2nd Circuit affirmed. The justices’ decision in Cedar Point does not negate the court’s long history of upholding laws regulating landlord-tenant relationships like the rent-stabilization law against physical-takings challenges, the 2nd Circuit explained, because landlords voluntarily enter into rental agreements with tenants. The court of appeals also disagreed that rent-increase limits are a regulatory taking. That theory was proposed in a dissent by Justices Antonin Scalia and Sandra Day O’Connor from the court’s 1988 decision in Pennell v. City of San Jose; it has never, the 2nd Circuit explained, been adopted by a majority of the court.

In Community Housing Improvement Program v. City of New York, the landlords – supported by 14 friend-of-the-court briefs from business and housing-industry groups – ask the justices to reverse the 2nd Circuit’s decision and allow their lawsuit to proceed. They point out that the U.S. Court of Appeals for the 8th Circuit struck down a COVID-19 eviction moratorium in Minnesota as a physical taking under the justices’ decision in Cedar Point because – like the New York law, they argue – it infringed upon the “right to exclude existing tenants” from private property. And in the hope that a majority of the court now agrees with Scalia and O’Connor, the landlords renew their contention that the law’s limits on rent increases are an unconstitutional regulatory taking. “Subsidizing needy tenants,” they write, “is a public good that should be paid for with public funds.”

A list of this week’s featured petitions is below:

Community Housing Improvement Program v. City of New York, New York
22-1095
Issues: (1) Whether the provisions of New York’s rent-stabilization law that prevent a property owner from regaining exclusive possession and control of her property after the expiration of a lease effect per se physical takings; and (2) whether, by mandating consideration of tenant ability to pay in setting maximum rents, the law forces a subset of owners “alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” and thereby effects a regulatory taking as outlined in Pennell v. City of San Jose.

Shire U.S., Inc. v. Blackburn
22-1180
Issue: Whether a state-law claim is preempted if it places a duty on a drug manufacturer to unilaterally change language approved by the Food and Drug Administration that appears in the highlights section of a drug label.

Columbia Falls Aluminum Company, LLC v. Atlantic Richfield Company
22-1207
Issue: Whether a district court’s equitable allocation of environmental-response costs pursuant to Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act is properly reviewed on appeal only for clear error or for abuse of discretion.

The post Landlords challenge New York’s longstanding rent-stabilization regime appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Someone who files a lawsuit over wrongful treatment might be pleased if the defendant stops its allegedly harmful conduct, rendering the case moot – that is, no longer a live case or controversy. But under the so-called voluntary cessation doctrine, plaintiffs may continue to press their case unless the defendant shows that it cannot simply resume its prior behavior once the lawsuit is thrown out. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government can extinguish a lawsuit alleging that an Oregon man was wrongly placed on the No Fly List by removing him from the list and promising not to put him back on it “based on the currently available information.”

In the wake of the Sept. 11 terrorist attacks, then-President George W. Bush authorized the Federal Bureau of Investigation to maintain a list of people who posed too significant a risk to national security to board a commercial flight through United States airspace. The FBI maintains this list on behalf of the Department of Homeland Security; agents in the Transportation Security Administration, a subset of DHS, consult the list during airport security screenings.

Yonas Fikre is a U.S. citizen of Eritrean descent. While traveling to Sudan in 2010, Fikre was questioned by FBI agents about his ties to a mosque in his hometown of Portland, Oregon. The agents informed Fikre that he would be unable to return to the U.S. because he had been placed on the No Fly List. However, they offered to remove him from the list if he agreed to become an FBI informant.

Fikre refused. Instead, he flew to the United Arab Emirates, where he was imprisoned and tortured by that government’s secret police. Fikre alleges that an interrogator told him the questioning came at the request of the FBI. He was eventually released and, unable to return home to the U.S., sought asylum with a relative in Sweden. The Swedish government ultimately denied Fikre’s asylum request and – after DHS denied his petition to be taken off the No Fly List – flew him by private jet back to Portland.

While still in Sweden, Fikre filed a lawsuit against the FBI. He argued that the agency violated his right to due process under the Fifth Amendment by labeling him a flight risk and failing to provide an adequate way to challenge his status. While the lawsuit was pending, the FBI revised its initial determination and removed Fikre from the list. The government then sought to dismiss the case as moot.

A federal district court in Oregon granted the government’s request. However, the U.S. Court of Appeals for the 9th Circuit reinstated Fikre’s lawsuit. The 9th Circuit ruled that the case was not moot because, under the voluntary cessation doctrine, the government had not made it “absolutely clear” that the FBI would never again label Fikre a flight risk for the same reason it did so in the first place.

With the case back on, an FBI official filed a court declaration stating that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The district court held that this declaration satisfied the 9th Circuit’s standard and dismissed the case once more.

Again, the 9th Circuit disagreed. The FBI’s declaration did not concede that it was wrong to place Fikre on the No Fly List originally, the court of appeals explained; indeed, it defended that decision as “in accordance with applicable policies and procedures.” Absent any indication that the FBI had changed those policies or procedures to provide additional safeguards, the appeals court reasoned, Fikre’s flight status remained at risk should the “currently available information” change.

In Federal Bureau of Investigation v. Fikre, the FBI asks the justices to weigh in and reverse the 9th Circuit’s most recent ruling. The government argues that two other circuits have correctly upheld the dismissal of similar lawsuits over placement on the No Fly List. The 9th Circuit’s holding that the FBI must go further and concede wrongdoing to have Fikre’s case dismissed, the government argues, “confuses mootness with an admission of liability on the merits.”

A list of this week’s featured petitions is below:

Macquarie Infrastructure Corp. v. Moab Partners, L.P.
22-1165
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding that a failure to make a disclosure required under Item 303 of SEC Regulation S-K can support a private claim under Section 10(b) of the Securities Exchange Act of 1934, even in the absence of an otherwise misleading statement.

Center for Medical Progress v. Planned Parenthood Federation of America
22-1168
Issue: Whether First Amendment scrutiny applies when a plaintiff’s claim for damages is based on a defendant’s public speech, even if a plaintiff sues under a law of general application or attempts through creative pleading to recharacterize publication damages as something else.

LeBlanc v. Crittendon
22-1171
Issues: (1) Whether high-ranking state prison officials violate a prisoner’s constitutional rights by failing to promulgate policies cajoling independent, locally elected sheriffs to do their jobs timely and efficiently; (2) whether any clearly established law warned Louisiana Department of Public Safety and Corrections officials that they would be held personally liable for failing to promulgate such policies; and (3) whether any clearly established law warned state prison officials that they would be held personally liable for failing to respond for 17 days to reports of phone calls from family members of persons incarcerated in a local parish jail.

Federal Bureau of Investigation v. Fikre
22-1178
Issue: Whether respondent’s claims challenging his placement on the No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”

The post FBI asks justices to wade into No Fly List dispute appeared first on SCOTUSblog.

The Supreme Court agreed to decide what protections Title VII of the Civil Rights Act of 1964 provides to employees who contend they were the victim of a discriminatory transfer. The justices announced on Friday that they had granted review in Muldrow v. St. Louis and six other cases, two of which will be argued together. (I covered one of those cases, United States v. Rahimi, in a separate article.)

The question comes to the court in the case of Jatonya Muldrow, a sergeant with the St. Louis Police Department. She filed a lawsuit against the department, alleging that she was the victim of sex discrimination because she was involuntarily transferred from her position in the Intelligence Division to a patrol position because her supervisor wanted to hire a man for her job. The U.S. Court of Appeals for the 8th Circuit ruled for the police department, reasoning that Muldrow’s transfer had not resulted in a significant employment disadvantage for her.

Muldrow went to the Supreme Court, asking the justices to take up her case. After considering the cases at a conference in early January, the justices sought the Biden administration’s views. In a brief filed last month, the Biden administration urged the justices to grant review. U.S. Solicitor General Prelogar told the court that the rulings by the U.S. Court of Appeals for the 8th Circuit had “no foundation in Title VII’s text, structure, or purpose.”

After considering the case again at two conferences in June, the justices agreed to take up the case. But they instructed Muldrow and the city of St. Louis to brief a slightly narrower question than Muldrow had asked them to decide – whether Title VII bars discrimination in transfer decisions if a court has not determined separately that the transfer decision caused a significant disadvantage.

The other cases (in addition to Rahimi) in which the court granted review are:

• Wilkinson v. Garland, in which the justices will consider whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation;
• Campos-Chaves v. Garland and Garland v. Singh (consolidated for one hour of oral argument), in which the justices will consider notice requirements in immigration cases;
• McElrath v. Georgia, in which the justices will consider double jeopardy issues in the case of a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on another charge. The Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on both charges. McElrath argues that the Constitution’s ban on double jeopardy bars the state from trying him again on the charge on which he had been acquitted.
• SEC v. Jarkasy, in which the justices will review a ruling by the U.S. Court of Appeals for the 5th Circuit finding constitutional defects in the agency’s enforcement proceedings.

Several denials of review garnered separate writings by one or more justices.

In McClinton v. United States, the justices declined to decide whether the Constitution bars federal courts from basing a criminal defendant’s sentence on conduct for which he was acquitted. The question came to the court in the case of Dayonta McClinton, who was convicted for his role in the armed robbery of a CVS pharmacy. Although the jury found that McClinton was not guilty of the shooting death of one of his accomplices, Malik Perry, during a dispute over dividing up the drugs that they stole, the judge nonetheless relied on Perry’s death to increase McClinton’s sentence for the robbery charges. McClinton was sentenced to 19 years in prison – a sentence three times longer than he would have otherwise received. Justice Sonia Sotomayor wrote a statement in which she indicated that the denial of review in McClinton’s case and others presenting similar issues “should not be misinterpreted.” She explained that the U.S. Sentencing Commission will consider questions relating to acquitted-conduct sentencing next year. But if it “does not act expeditiously or chooses not to act,” she wrote, the court may need to step in.

Justice Brett Kavanaugh wrote a short statement that was joined by Justices Neil Gorsuch and Amy Coney Barrett. He echoed Sotomayor’s admonition that the denial of review “should not be misinterpreted.” But because the question is before the Sentencing Commission now, he stressed, the court should wait before granting review.

In a six-page opinion concurring in the denial of review, Justice Samuel Alito outlined some of the arguments against McClinton’s position. In particular, he noted, federal criminal laws in the late 18th century “often gave sentencing judges the authority to impose any sentence that fell within a prescribed range, and in exercising that authority, judges necessarily took into account facts that the jury had not found at trial.”

The court denied review in Roberts v. McDonald, a lawsuit seeking to bar New York and New York City from considering race or ethnicity in connection with the allocation of COVID-19 treatments. In a statement regarding the denial of review joined by Justice Clarence Thomas, Alito wrote that he agreed with that decision because there is no longer a shortage of such treatments. But if “any government again resorts to racial or ethnic classifications to ration medical treatment,” Alito said, “there would be a very strong case for prompt review by this Court.”

Alito, joined by Thomas, also penned a statement regarding the denial of review in Thompson v. Henderson, a case arising from a car accident in Washington state. The jury awarded the victim of the accident, who is Black, $9,200 in damages from the driver, who is white. The Washington Supreme Court awarded the victim a hearing on her motion for a new trial, concluding that the jury’s award may have been tainted by racial prejudice. Alito argued that the state supreme court’s “decision raises serious and trouble issues of due process and equal protection” and “threatens to inject racial considerations into every litigation decision parties make.”

Justice Ketanji Brown Jackson, joined by Sotomayor, dissented from the denial of review in Harness v. Watson, a challenge by two Mississippi men to the enforcement of a provision of the state’s constitution, adopted in 1890, that prohibits people convicted of eight crimes – bribery, theft, arson, fraud, perjury, forgery, embezzlement, and bigamy – from voting. In 1985, the challengers note, the Supreme Court struck down a similar provision in the Alabama constitution that had been enacted to disenfranchise African Americans. The same is true here, the challengers contend: “Just as in Alabama, in Mississippi the offenses set forth in the 1890 Constitution were those that the drafters believed were disproportionately committed by African Americans.”

The U.S. Court of Appeals for the 5th Circuit upheld the 1890 provision. Although the majority conceded that the 1890 state constitutional convention was “steeped in racism” and that the 1890 provision, as originally enacted, would be unconstitutional. But since 1890, the majority explained, Mississippi voters had re-enacted the disenfranchisement provision twice – in 1950 and 1968 – and the challengers do not contend that the 1968 amendment was motivated by an intent to discriminate. In so doing, the majority reasoned, the discriminatory intent behind the 1890 provision became “irrelevant” and “purg[ed] the original taint.”

The challengers came to the Supreme Court last fall, asking the justices to weigh in. After repeatedly rescheduling the case and then considering it at seven separate conferences, the justices on Friday denied review.

Jackson argued that the Supreme Court could have corrected what she characterized as the 5th Circuit’s “clear and constitutionally momentous errors” in a “straightforward and narrow (but significant) manner.” Quoting from the court’s decision on Thursday ending the use of race-conscious admissions at Harvard and the University of North Carolina, in which the court “declared that the Constitution deals with substance, not shadows, and the constitutional prohibition against racial discrimination is levelled at the thing, not the name,” Jackson contended that there “are no shadows in” the Mississippi provision, “only the most toxic of substances.”

Jackson also indicated that she would have granted review in Lombardo v. St. Louis, in a case brought by the family of a homeless man who died in 2015 in police custody. Nicholas Gilbert was arrested on charges that included trespassing and failing to appear in court for a traffic violation. For 15 minutes, six police officers applied pressure to Gilbert, who was face down on the floor of his cell with his legs shackled and his hands cuffed behind us back. Gilbert tried to lift his body up to breathe and pleaded with the officers to stop, saying “It hurts.” He was pronounced dead at a nearby hospital.

Gilbert’s family sued the city and the police officers, arguing (among other things) that the officers had used excessive force against Gilbert, which violated his constitutional rights. The 8th Circuit dismissed their claims, holding that the officers could not be held liable because no reasonable jury could find that the officers had used excessive force.

Over a dissent by Alito that was joined by Thomas and Gorsuch, the justices sent the case back to the 8th Circuit for another look. In a brief opinion, the Supreme Court explained that because the court of appeals had apparently either “failed to analyze such evidence or characterized it as ‘insignificant,’” it had not conducted the kind of “careful, context-specific analysis required by this Court’s excessive force precedent.”

When the case returned to the 8th Circuit, the court of appeals once again concluded that the officers were entitled to immunity. Gilbert’s family, the court of appeals concluded, had not met one of the criteria to overcome the police officers’ immunity – specifically, it had not shown that Gilbert had a clearly established right not to be restrained while lying prone on the floor and resisting.

The family returned to the Supreme Court late last year, once again asking the justices to review the 8th Circuit’s ruling. The justices denied review on Friday, over a dissent from Sotomayor. She wrote that she would have sent the case back to the 8th Circuit again for the court of appeals to “resolve the question of qualified immunity without assuming that Gilbert’s final movements were those of a dangerously non-compliant person posing a threat, rather than of a dying man struggling to breathe while adequately restrained by handcuffs and leg shackles and surrounded by six officers in a secure cell.” She added that courts should “give officers leeway to use judgment in close situations, but not so much leeway that we nullify the Constitution’s protections or permit officers to escape scrutiny by juries.”

Sotomayor dissented from the denial of review in another case involving immunity for police officers: a case brought by the family of Ryan Stokes, an unarmed Black man who was surrendering to police when a police officer shot him in the back and killed him. The 8th Circuit held in Stokes’ case that it was not clearly established that the officer had used excessive force. Sotomayor indicated that she would have summarily reversed – that is, ruled in the family’s favor without additional briefing or oral argument. “It is time,” she wrote, “to restore some reason to a doctrine that is becoming increasingly unreasonable. If this Court is unwilling to do so,” she concluded, “then it should reexamine its judge-made doctrine of qualified immunity writ large.”

Alito, joined by Thomas, dissented from the denial of review in Kincaid v. Williams, in which they had been asked to decide whether the Americans with Disabilities Act covers gender dysphoria – that is, the psychological distress caused by a conflict between a person’s gender identity and the sex that person was assigned at birth.

The question arose in a federal civil rights case filed by Kesha Williams, a transgender woman who suffers from gender dysphoria. By the time Williams was incarcerated at the Fairfax County Adult Detention Center, in northern Virginia, in 2018, she had been receiving hormone therapy for 15 years.

Williams was originally assigned to the women’s side of the detention center, but she was later moved to the men’s side of the prison and required to wear men’s clothing. She contends that she did not consistently receive her hormone therapy, and she was harassed by both prison deputies and male inmates.

After her six months in the detention center ended, Williams went to federal court, where she contended that the Fairfax County sheriff and other prison officials had violated (among other things) the Americans with Disabilities Act. A federal district court in Virginia dismissed Williams’ case, agreeing with the defendants that gender dysphoria is not a “disability” under the ADA. But the U.S. Court of Appeals for the 4th Circuit reversed that ruling, prompting the sheriff to come to the Supreme Court in January.

After considering the case at four consecutive conferences, the justices denied review. In his dissent, Alito described the question before the court as one “of great national importance that calls out for prompt review.” The court of appeals, he contended, “has effectively invalidated a major provision of the Americans with Disabilities Act (ADA), and that decision is certain to have far-reaching and highly controversial effects.” Moreover, he added, the ruling is likely to “raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy.”

And in Clark v. Mississippi, Justice Elena Kagan and Jackson joined Sotomayor’s dissent from the denial of review in the case of Tony Clark, who was sentenced to death for the 2014 shooting death of 13-year-old Muhammad Saeed. Saeed was working with his father at the family’s convenience store when Clark and his nephew attempted to rob the store.

Clark came to the Supreme Court in November, asking the justices to overturn his conviction and death sentence. Clark, who is Black, emphasized that although the pool of 38 potential jurors included 8 Black people, prosecutors struck all but one of those potential Black jurors, leaving a nearly all-white jury. In rejecting his challenge to the constitutionality of the jury selection process, Clark argued, the Mississippi Supreme Court should have reviewed the prosecutors’ strikes, and the circumstances in which they were made, collectively, rather than looking at each one in isolation.

Sotomayor noted that four years ago, the Supreme Court threw out the conviction of a Mississippi man, Curtis Flowers. Flowers, who is Black, was sentenced to death by a jury that included just one Black member after prosecutors struck five other potential Black jurors from the jury pool. By a vote of 7-2, the court held that the jury selection in Flowers’ case violated the Constitution. By denying review in Clark’s case, Sotomayor asserted, “this Court tells the Mississippi Supreme Court that it has called our bluff, and that this Court is unwilling to do what is necessary to defend its own precedent. The result is that Flowers will be toothless in the very State where it appears to be still so needed.”

This article was originally published at Howe on the Court.

The post Court agrees to hear Title VII employer discrimination case appeared first on SCOTUSblog.

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 Supreme Court announced that it would hold its “mop up” conference for October Term 2022 on Thursday, after completing the day’s opinion announcements. The court considered 46 cases at the conference; it was considering 17 for the second time. Given the shortness of time, I won’t analyze each, but the cases present a variety of subjects: the breadth of Title VII of the Civil Rights Act of 1964; qualified immunity; separation of powers, nondelegation, and the Seventh Amendment right to a jury trial; the scope on statutory bars to review of immigration decisions; the form of notice the government must provide in immigration cases; the scope of a statutory bar from discretionary relief from removal for people convicted of crimes of child abuse; and whether a statute that prohibits the possession of firearms by individuals subject to domestic-violence restraining orders violates the Second Amendment on its face. That last case, United States v. Rahimi, which involves a petition for review by the federal government, strikes me as a particularly likely candidate for review.

A state court in Texas entered a restraining order against the defendant in the case, Zackey Rahimi, in early 2020. The order stemmed from an incident in which Rahimi knocked his girlfriend to the ground and pushed her into his car, causing her to hit her head against the dashboard. He later called her and told her he would shoot her if she told anyone about the assault. While the order was in effect, police searched Rahimi’s home because he was a suspect in a series of shootings. They found two guns and ammunition, leading to a charge for violating the ban on gun possession by individuals subject to a domestic-violence restraining order. Rahimi pleaded guilty and was sentenced to 73 months in prison.

Rahimi contended that his conviction violated his Second Amendment rights. The U.S. Court of Appeals for the 5 th Circuit initially rejected that argument, but after the Supreme Court’s June 2022 decision in in New York State Rifle and Pistol Association v. Bruen, it agreed that the ban is unconstitutional.

The federal government now asks the justices to weigh in on the case, arguing that the domestic violence ban is constitutional. The government points to a long history of restricting gun ownership by people who pose a threat to others. 

That’s all for this term. Thank you all for tuning in and for putting up with the drastically reduced humor content – which is a regrettable side effect of the fact that I’m doing all the work myself this term. Have a good summer and stay safe!

New Relists

Muldrow v. City of St. Louis, Missouri, 22-193
Issue: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination as to all “terms, conditions, or privileges of employment,” or whether its reach is limited to discriminatory employer conduct that courts determine causes materially significant disadvantages for employees. CVSG: 5/18/2023
(relisted after the June 22 conference)

Davis v. Legal Services Alabama, Inc., 22-231
Issue: Whether Title VII of the Civil Rights Act of 1964 and Section 1981 of Title VII prohibit discrimination as to all “terms,” “conditions,” or “privileges” of employment, or are limited to “significant” discriminatory employer actions only. CVSG: 5/18/2023
(relisted after the June 22 conference)

Lombardo v. City of St. Louis, Mo., 22-510
Issue: Whether, when officers put a handcuffed and shackled person face-down on the floor and pushed into his back until he died, they are they entitled to qualified immunity as a matter of law because the person struggled to breathe before dying.
(relisted after the June 22 conference)

N.S. v. Kansas City Board of Police Commissioners, 22-556
Issues: (1) Whether qualified immunity insulates a law enforcement officer from liability under 42 U.S.C. § 1983 if there is no factually identical precedent establishing the unconstitutionality of that officer’s conduct, or whether a constitutional right can be “clearly established” by precedent with some factual variation so long as the officer has fair notice that his conduct is unconstitutional; and (2) whether the judge-made doctrine of qualified immunity should be narrowed or abolished.
(relisted after the June 22 conference)

Bystron v. Garland, 22-617
Issues: (1) Whether 8 U.S.C. § 1252(a)(2)(D) bars review of an asserted question of law where a noncitizen has challenged the Board of Immigration Appeals’ interpretation of the statutory extreme hardship standard found at 8 U.S.C. § 1182(h)(1)(B); and (2) whether the Board’s statutory interpretation regarding hardship eligibility falls within the exercise of its inherent discretionary authority, or is a nondiscretionary action that precedes its ability to exercise discretion.
(relisted after the June 22 conference)

Wilkinson v. Garland, 22-666
Issue: Whether an agency determination that a given set of established facts does not rise to the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).
(relisted after the June 22 conference)

Campos-Chaves v. Garland, 22-674
Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.
(relisted after the June 22 conference)

McElrath v. Georgia, 22-721
Issue: Whether the double jeopardy clause of the Fifth Amendment prohibits a second prosecution for a crime of which a defendant was previously acquitted.
(relisted after the June 22 conference)

Gomez-Vargas v. Garland, 22-734
Issue: Whether an agency determination that a given set of established facts does not rise to the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).
(relisted after the June 22 conference)

Securities and Exchange Commission v. Jarkesy, 22-859
Issues: (1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
(relisted after the June 22 conference)

Diaz-Rodriguez v. Garland, 22-863
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Kerr v. Garland, 22-867
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Bastias v. Garland, 22-868
Issue: Whether the provision of the Immigration and Nationality Act providing that noncitizens may be removed, and are ineligible for many forms of discretionary relief from removal, if they have been “convicted of … a crime of child abuse, child neglect, or child abandonment” encompasses a conviction for a state crime of child endangerment that criminalizes a negligent act creating a risk of harm to a child, even if no harm actually ensues.
(relisted after the June 22 conference)

Garland v. Singh, 22-884
Issue: Whether the failure to receive, in a single document, all of the information specified in paragraph (1) of 8 U.S.C. § 1229(a) precludes an additional document from providing adequate notice under paragraph (2) of that section, and renders any in-absentia removal order subject, indefinitely, to rescission.
(relisted after the June 22 conference)

United States v. Rahimi, 22-915
Issue: Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
(relisted after the June 22 conference)

Jarkesy v. Securities and Exchange Commission, 22-991
Issue: Whether, under special review statute 15 U.S.C. § 78y, circuit courts on a petition for review of a Securities and Exchange Commission final order resolving an enforcement adjudication may “remand” back to the agency after overturning the final order because the proceedings were conducted in violation of law or the Constitution, where Section 78y expressly vests only the jurisdiction to “affirm,” “modify,” or “set aside” the order and does not confer jurisdiction to remand.
(relisted after the June 22 conference)

Gonzalez-Rivas v. Garland, 22-1038
Issue: Whether the conclusion that undisputed facts do not satisfy the “exceptional and extremely unusual hardship” standard is a reviewable “question of law” under 8 U.S.C. § 1252(a)(2)(D).
(relisted after the June 22 conference)

Returning Relists

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Dec. 2, Dec. 9, Jan. 6 and May 11 conferences) 

Luczak v. United States, 21-8190
Issue: Whether the Supreme Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13, May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; and (2) whether it violated the due process clause of the Fifth Amendment for the district court to sentence Gary Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Jan 6 and May 11 conferences)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; and (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13, May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Jan 6 and May 11 conferences)

Harness v. Watson, 22-412
Issue: Whether any amendment to a law originally adopted for an impermissible racially discriminatory purpose, no matter how minor the amendment and no matter the historical context, cleanses the law of its racist origins for 14th Amendment purposes unless the party challenging the law can prove that the amendment itself was motivated by racial discrimination.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Feb. 17, Feb. 24, Mar. 3, Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28 and May 11 conferences)

Ross v. United States, 22-5993
Issue: Whether a judge denies a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Mar. 31 and May 11 conferences)

Cain v. United States, 22-6212
Issue: Whether either the jury trial right contained in the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence based on conduct that a jury’s verdict rejected.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Apr. 14 and May 11 conferences) 

Sanchez v. United States, 22-6386
Issue: Whether the use of acquitted conduct to determine a defendant’s sentence violates the Fifth and Sixth Amendments.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Apr. 21 and May 11 conferences)

Martin v. United States, 22-6736
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the May 11 conference)

Merry v. United States, 22-6815
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing (enhancing) a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences)

Beachem v. United States, 22-6838
Issues: (1) Whether a court can take into account acquitted, dismissed, or uncharged conduct, of which no jury ever found petitioner guilty of and which he never admitted; and (2) whether a court can enforce an appeal waiver provision when enforcement would result in a miscarriage of justice.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Mar. 17 and May 11 conferences)

Little v. United States, 22-6940
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentencing on uncharged conduct which was never admitted by the defendant nor proven to a jury beyond a reasonable doubt and which was only found by the sentencing court to be proven by a preponderance of the evidence.
(relisted after the May 18, May 25, June 1, June 8 and June 15 conferences; rescheduled before the Apr. 14 and May 11 conferences)

Jenkins v. United States, 22-7148
Issues: (1) Whether the district court erred in not appointing new counsel; and (2) whether the district court violated the Fifth and Sixth Amendments by basing its drug weight calculations on acquitted conduct.
(relisted after the May 18, May 25, June 1, June 8, June 15 and June 22 conferences; rescheduled before the Apr. 21 and May 11 conferences)

Clark v. Mississippi, 22-6057
Issues: (1) Whether Mississippi continues in the present case to erroneously misapply Batson v. Kentucky by considering the prosecutor’s purported justifications for striking seven of the eight African American prospective jurors presented to it “in isolation,” rather than, as this Court directed it to do in Flowers v. Mississippi, considering those strikes “in the context of all the facts and circumstances” that this Court has recognized as relevant to that determination; (2) Whether, by upholding these strikes in part on the basis of reasons not articulated by the prosecutor in the trial court the Mississippi Supreme Court has adopted from the Fifth Circuit an erroneous interpretation of Batson that conflicts with not only this Court’s clearly established precedent, but also with decisions of other federal circuit courts of appeal and other state courts of last resort.
(relisted after the June 1, June 8, June 15 and June 22 conferences; rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11, May 18, May 25, and June 1 conferences)

Olhausen v. Arriva Medical, LLC, 22-374
Issue: Whether a False Claims Act defendant alleged to have “knowingly” violated a provision of federal law can escape liability by articulating, after the fact, an objectively reasonable interpretation of the provision under which its conduct would have been lawful.
(relisted after the June 8, June 15 and June 22 conferences)

U.S. ex rel. Sheldon v. Allergan Sales, LLC, 22-593
Issue: Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act.
(relisted after the June 8, June 15 and June 22 conferences)

Kincaid v. Williams, 22-633
Issue: Whether the diagnosis of gender dysphoria, found in the Diagnostic and Statistical Manual of Mental Health Disorders — Fifth Edition, is excluded from the Americans with Disabilities Act’s definition of disability under 42 U.S.C. § 12211(b).
(relisted after the June 8, June 15 and June 22 conferences; rescheduled before the May 11, May 18, May 25, and June 1 conferences)

The post The last grants of October Term 2022? appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

People for the Ethical Treatment of Animals conducts investigations around the country as part of its efforts to combat the mistreatment of animals. To accomplish these exposés, PETA’s members occasionally pose as employees of other businesses and secretly record workplace operations taking place in private areas. This week, we highlight cert petitions that ask the court to consider, among other things, PETA’s First Amendment challenge to a North Carolina law that imposes monetary damages on undercover workplace recording.

The law at issue was enacted in response to a dispute between Food Lion and ABC News in North Carolina in the late 1990s. The grocery-store chain sued the news network after two of its reporters posed as Food Lion employees and used hidden cameras and microphones to record in nonpublic areas for a news segment on unsafe food-handling practices. The U.S. Court of Appeals for the 4th Circuit ruled in favor of Food Lion, although the North Carolina Supreme Court later undid a part of that ruling.

Seeking to codify the 4th Circuit’s decision, the state legislature passed the North Carolina Property Protection Act in 2015. As relevant here, the law allows an employer to sue for money damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.”

Soon after the act’s passage, PETA and a number of other food-safety and animal-welfare groups went to court in an effort to prevent the state from enforcing the law against their members. A federal district court in North Carolina ultimately invalidated much of the law. The court reasoned that the recording prohibition was a content-based restriction on speech because it targets speech critical of an employer’s business, and that it therefore triggers a high level of First Amendment scrutiny – a bar that, the court concluded, the law could not pass.

The 4th Circuit upheld that ruling, in part. It rejected PETA’s contention that the law is always unconstitutional, theorizing that the prohibition could be used in a number of ways consistent with the First Amendment. However, it also rejected the state’s contention that the law does not violate the First Amendment because it does not target speech, but instead applies to all kinds of conduct, including trespass and theft. “Laws cast in broad terms can restrict speech as much as laws that single it out,” the majority wrote. At least as applied to newsgathering efforts by PETA and the other groups, the appeals court concluded, the recording ban is unconstitutional.

In Stein v. People for the Ethical Treatment of Animals, Inc., North Carolina Attorney General Josh Stein asks the justices to grant review and reverse the 4th Circuit’s decision. The state contends that the courts of appeals are divided over whether and when unauthorized recordings on nonpublic property are constitutionally protected speech. Moreover, Stein adds, the 4th Circuit’s decision is wrong on the merits.

A trade association representing farmers in North Carolina filed a companion petition urging the justices to review the 4th Circuit’s ruling. Like the attorney general, the association argues that the law is a valid exercise of the state’s power to protect property and business interests.

A list of this week’s featured petitions is below:

Center for Medical Progress v. National Abortion Federation
22-1135
Issue: Whether the district court’s suppression of speech about a high-profile and highly charged issue of public debate is an unconstitutional prior restraint.

Stein v. People for the Ethical Treatment of Animals, Inc.
22-1150
Issue: Whether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.

City of Arlington, Texas v. Crane
22-1151
Issues: (1) Whether, where a suspect with an outstanding felony arrest warrant refuses repeated commands to turn off his car and exit the vehicle, clearly states he will not surrender, struggles with an officer in the vehicle while revving the car’s engine, making the tires spin, and causing the car to smoke and sway from side to side, would a reasonable officer, who is half in and half out of the vehicle, conclude that the suspect poses a risk of serious harm to the officer or others; (2) whether a police officer attempting to execute a lawful arrest warrant against a suspect in a car who is struggling with the officer and revving his vehicle, making the tires spin and causing it to smoke and sway side to side, “obviously” violates the suspect’s Fourth Amendment rights by deploying deadly force just before the car reverses running over his fellow officer; and (3) whether the mere existence of a municipal policy of allowing traffic stops can constitute the moving force behind a subsequent unlawful use of force sufficient to impose municipal liability for such use of force.

Roper v. Crane
22-1157
Issues: (1) Whether an objective police officer could have believed it reasonable to shoot a person who had warrants for his arrest, had locked the doors and raised the windows of his vehicle, had verbally and physically refused to comply with police commands to turn off and exit his vehicle, while the person was in the driver’s seat of his vehicle revving the vehicle’s engine and spinning the vehicles tires and one officer was partially inside the vehicle close to an open door, when other officers were nearby outside the vehicle; and (2) if so, whether it would have been obvious to every objective police officer that the driver posed no serious threat to life that warranted shooting the driver to stop a threat of harm.

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