Relist Watch

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 last scheduled conference of the Supreme Court’s term — which this term is being held Thursday — is usually one that yields many grants. So perhaps unsurprisingly, the court has relisted 10 cases for this conference.

We’ll begin with Patel v. Garland, 20-979, which seems a likely grant, because the government, as respondent, agrees that there is a circuit split and review is warranted on one of the questions presented. Petitioner Pankajkumar Patel checked a box on a Georgia driver’s license application falsely stating that he is a U.S. citizen, even though he was eligible for a license regardless of his citizenship. (He might have had to answer some more difficult questions, though, since he was even then seeking to regularize his immigration status after entering the United States unlawfully.) When Patel later sought to adjust his status to lawful permanent resident and obtain a green card, a divided panel of the Board of Immigration Appeals denied him relief, holding that he is inadmissible because he “falsely represented” himself as a U.S. citizen for a benefit under state law.

When Patel sought review of that decision, the en banc U.S. Court of Appeals for the 11th Circuit parted with decisions of other courts — and rejected the government’s own reading of the governing statute — to hold that the court lacked jurisdiction to review threshold eligibility findings for discretionary relief from removal, including whether the immigrant is inadmissible for incorrectly representing himself as a U.S. citizen. (The government takes the position that the statute forecloses only review of discretionary decisions not to grant relief, not factual findings that are factored into those decisions.) The 11th Circuit also held that noncitizens are inadmissible even if their misrepresentation of citizenship is immaterial to the government benefit sought. While the government agrees the court should review the jurisdictional issue, it argues that the review is not warranted on the question whether a misrepresentation must be material before it renders the noncitizen inadmissible.

Given the court’s important takings clause decision Wednesday in Cedar Point Nursery v. Hassid, it may be a good time to bring takings cases to the Supreme Court. This week we have two. Pakdel v. City and County of San Francisco, California, 20-1212, concerns when a takings claim becomes ripe for review. After petitioners Peyman Pakdel and Sima Chegini purchased a tenancy-in-common interest in a six-unit building in San Francisco and rented one unit, the city and county revised the condominium conversion ordinance to require converters to offer a lifetime lease to any tenants. The city twice denied the couple’s requests for an exemption, but the U.S. Court of Appeals for the 9th Circuit held that decision was not final and subject to federal suit because Pakdel and Chegini had not exhausted available administrative remedies. They challenge that determination.

In Eychaner v. City of Chicago, Illinois, 20-1214, petitioner Fred Eychaner owned property in Chicago’s “River West” area. The city condemned it so it could be used as part of the campus for an existing chocolate factory, as part of a larger plan to create a “planned manufacturing district.” Eychaner challenged the taking in part on the grounds that it was not made for “public use.” But the courts upheld it in part on the ground that it was legitimate to take the property to “prevent future blight,” and also to promote economic development, which the Supreme Court recognized as a legitimate public purpose in the controversial decision Kelo v. City of New London. In his petition, Eychaner asks the court to address whether the possibility of future blight is a permissible basis for a government to take property in an unblighted area and give it to another private party for private use, and whether the Supreme Court should reconsider its decision in Kelo.

The court also has a pair of new administrative law cases, both captioned American Hospital Association v. Becerra and with consecutive numbers. Both concern reductions in the rate the federal government pays under Medicare for drugs dispensed at providers’ offices (20-1113) and at certain hospitals (20-1114). Both cases address whether the regulations at issue warrant deference under Chevron U.S.A. v. Natural Resources Defense Council, and in particular, whether Chevron applies to a statutory interpretation question that the American Hospital Association argues determines both the lawfulness of agency action and the court’s jurisdiction.

Given the recent decision in Fulton v. City of Philadelphia, Pennsylvania, it’s also a good time to be filing religious liberty petitions. Mast v. Fillmore County, Minnesota, 20-7028, concerns members of the Swartzentruber Amish community of Fillmore County, Minnesota, who object on religious grounds to using septic systems to treat wastewater at their houses, and instead wish to use “mulch-basin systems” to treat wastewater. Although those systems permit reuse of “gray water” for agricultural irrigation, Fillmore County says they are prone to backing up and overflowing, endangering health. Petitioner Amos Mast argues that local ordinances requiring him to use septic systems violate the Religious Land Use and Institutionalized Persons Act (or RLUIPA), which bars land use restrictions that impose a “substantial burden” on the religious exercise of a person or institution, unless the government can show that it has a “compelling interest” for imposing the restriction and the restriction is the least restrictive way for the government to further that interest. Mast stipulated that the government has a compelling interest in treating wastewater, but believes the lower court over-read that and didn’t require the government to demonstrate it had a compelling interest in imposing septic systems in particular. In addition, Mast argues that in applying RLUIPA, the courts gave inadequate weight to the fact that 20 other jurisdictions permit “gray-water” reuse systems like those the Amish prefer, and that fact is sufficient to defeat the government’s claim that it used the least restrictive alternative.

Next up is Campbell v. Pennsylvania School Boards Association, 20-1294. Simon Campbell, a vocal critic of public school unions, actively used Pennsylvania’s “right to know” law (sort of a Freedom of Information Act analogue) to request information from most, if not all, public school agencies in Pennsylvania — and also made unflattering posts on his website. The Pennsylvania School Boards Association sued Campbell in state court for the avowed purpose of “stop[ping]” Campbell from “harassing districts with unreasonable requests and to stop defaming members of the [association].” Campbell then sued the PSBA in federal court. He claimed that the association was a state actor and that its lawsuit against him in state court represented unconstitutional retaliation against him in violation of the First Amendment. The PSBA, in turn, argued that the First Amendment protects its right to sue in state court, and it defended against Campbell’s federal lawsuit by invoking the Noerr-Pennington doctrine, which shields constitutionally protected conduct from civil liability, subject to certain exceptions.

The district court dismissed and the U.S. Court of Appeals for the 3rd Circuit affirmed, holding that the PSBA was entitled to immunity under Noerr-Pennington. While the district court found (and the 3rd Circuit assumed) that the PSBA’s state lawsuit was objectively baseless, both courts concluded the PSBA was immune from liability in the federal suit even though it admitted it began the suit to stop Campbell’s actions, because the court concluded that the suit was not “subjectively baseless.” In the Supreme Court, Campbell seeks to revisit those determinations; he argues the PSBA is not entitled to immunity because its suit was objectively baseless and was concededly undertaken to stop his protected activity.

Two miscellaneous cases are worthy of attention. City of Austin, Texas v. Reagan National Advertising of Texas Inc., 20-1029, concerns the constitutionality of a municipal sign restriction. In Berisha v. Lawson, 20-1063, Shkelz?n Berisha, the son of the former Albanian prime minister (who apparently is famous there) asks the Supreme Court to overrule the “actual malice” requirement it imposed on public-figure defamation plaintiffs in New York Times v. Sullivan. Berisha argues he was unfairly accused of being a player in a fraud scheme involving in the provision of arms to Afghanistan.

Lastly, James v. Bartelt, 20-997, is a qualified immunity case brought by the family of Willie Gibbons, a schizophrenic man shot and killed by a police officer. The petition notes that while Gibbons had a gun when the officer shot him, he was pointing it at his own head and the officer reported he did not feel threatened by Gibbons. But the case arrives with an asterisk: The court called for the record, apparently right after the last conference, and it hasn’t arrived yet. I have never considered these full “relists” because the court routinely relists them waiting for the papers to arrive, so they generally have a lower grant rate than other relists. Thus, this case likely is just awaiting the arrival of papers.

That’s all for this week. Stay safe! 

New Relists

Patel v. Garland, 20-979
Issues: (1) Whether 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial review of non-discretionary determinations underlying the determination of the Board of Immigration Appeals that petitioner is inadmissible to the United States for permanent residence and therefore ineligible for adjustment of status under 8 U.S.C. 1255(i); and (2) whether a finding of inadmissibility under 8 U.S.C. 1182(a)(6)(C)(ii), for falsely representing oneself as a United States citizen “for any purpose or benefit” under federal or state law, requires a finding that the misrepresentation was material to the purpose or benefit.
(relisted after the June 17 conference)

James v. Bartelt, 20-997
Issues: (1) Whether the U.S. Court of Appeals for the 3rd Circuit’s decision to exercise jurisdiction over an appeal of the District Court’s denial of qualified immunity on a motion for summary judgment is in conflict with Johnson v. Jones and its own precedent; (2) whether the 3rd Circuit’s ruling that inexplicably deviates from the 3rd Circuit’s precedent in Bennett v. Murphy is an error of law; (3) whether an officer who testifies that he was not in fear of his life or the lives of others nor did he feel threatened by Gibbons before fatally shooting a suspect is entitled to qualified immunity; and (4) whether the 3rd Circuit erred as a matter of law when it interpreted the Supreme Court’s holdings in White v. Pauly and Kisela v. Hughes as creating a new standard of review to the established law when it granted Bartelt absolute immunity for his use of deadly force against a suicidal suspect.
(relisted after the June 17 conference)

City of Austin, Texas v. Reagan National Advertising of Texas Inc., 20-1029
Issue: Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.
(relisted after the June 17 conference)

Berisha v. Lawson, 20-1063
Issue: Whether the Supreme Court should overrule the “actual malice” requirement it imposed on public figure defamation plaintiffs.
(relisted after the June 17 conference)

American Hospital Association v. Becerra, 20-1113
Issue: Whether deference under Chevron U.S.A. v. Natural Resources Defense Council applies to a statutory interpretation question that determines both the lawfulness of agency action and the court’s jurisdiction.
(relisted after the June 17 conference)

American Hospital Association v. Becerra, 20-1114
Issue: Whether Chevron deference permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data.
(relisted after the June 17 conference)

Pakdel v. City and County of San Francisco, California, 20-1212
Issues: (1) Whether a 42 U.S.C. 1983 takings claim is ripe under the finality requirement of Williamson County Planning Commission v. Hamilton Bank when a city has definitively and unalterably imposed a land use regulation on a landowner; and (2) whether the unconstitutional conditions doctrine applies to legislatively-imposed permit conditions.
(relisted after the June 17 conference)

Eychaner v. City of Chicago, Illinois, 20-1214
Issues: (1) Whether the possibility of future blight is a permissible basis for a government to take property in an unblighted area and give it to a private party for private use; and (2) whether the Supreme Court should reconsider its decision in Kelo v. City of New London.
(relisted after the June 17 conference)

Campbell v. Pennsylvania School Boards Association, 20-1294
Issues: (1) Whether state actors, acting under color of state law, are entitled to claim petitioning immunity from liability for a First Amendment retaliation claim brought under 42 U.S.C. 1983; and (2) if such immunity exists, whether a showing that a state actor’s civil lawsuit was (a) objectively baseless, and (b) filed for the purpose and with the intent of chilling First Amendment-protected speech and petitioning activities is sufficient to overcome any petitioning immunity claimed by the state actor.
(relisted after the June 17 conference)

Mast v. Fillmore County, Minnesota, 20-7028
Issues: (1) Whether, when applying strict scrutiny under RLUIPA, lower courts may rely upon an admission that an interest is compelling generally, or must they require the government to demonstrate that the interest is compelling as applied to the particular claimant, as the Supreme Court has previously held; and (2) whether, when applying strict scrutiny under RLUIPA, evidence that twenty other jurisdictions permit a particular less restrictive alternative is sufficient to defeat a government’s claim that it used the least restrictive alternative.
(rescheduled before the May 13, May 20, May 27, June 3, and June 10 conferences; relisted after the June 17 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30, May 13, May 20, May 27, June 3, June 10 and June 17 conferences)

Dunn v. Reeves, 20-1084
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.
(relisted after the May 20, May 27, June 3, June 10 and June 17 conferences)

Hernandez v. Peery, 20-6199
Issues: (1) Whether a Certificate of Appealability (“COA”) should routinely be granted where the state courts and state judges have divided on the merits of the constitutional question as held by the 5th and 7th Circuits, several District Courts and three justices of this Court, or should courts deny a COA despite the dispute among reasonable state jurists as held by the 9th Circuit and District Court below; (2) whether, as a threshold matter, Petitioner made a showing that reasonable jurists could debate whether his petition should have been resolved in a different manner where the California Supreme Court’s published opinion created a split with every state and lower federal court since Perry v. Leeke, which have held that a trial court order that violates the “defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” is structural error, reversible per se; and (3) whether the 9th Circuit improperly looked beyond the threshold inquiry of whether a COA is merited and decided the merits without jurisdiction in contravention of this Court’s holding in Buck v. Davis, where different state court judges reached opposite conclusions on Petitioner’s constitutional claim and where all lower federal and state court authority disagrees with the California Supreme Court’s holding on this constitutional claim.
(relisted after the May 20, May 27, June 3, June 10 and June 17 conferences)