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.
Since our last post, the Supreme Court has been showing real restraint at the relist window. Of last week’s seven new relists and 10 returning relists, the justices acted on exactly one: They granted review in one-time relist Department of Labor v. Sun Valley Orchards, LLC, the government petition asking whether Article III allows the Department of Labor to use administrative adjudication to impose civil penalties and back wages on employers accused of violating the conditions of participation in the H-2A visa program. The case revisits the constitutional limits on agency adjudication and the scope of “public rights” in the wake of SEC v. Jarkesy, which held that persons fined by the Securities and Exchange Commission were entitled to a jury trial.
But on to new business. There are 101 petitions and applications on the docket for this Friday’s conference. Four are being considered for a second time.
Hostess with the mostest
No one will be surprised to learn that this week’s likeliest grant reminded me of The Week magazine’s aptly named former feature “Boring but important,” which apparently was cancelled for excessive truthfulness. There’s a reason why the Wuthering Heights posters didn’t exclaim, “Two hours you will never get back.”
To all the parents who stopped packing Twinkies in your kids’ lunches: Behold what your healthy choices have wrought. In 2021, as part of the American Rescue Plan, Congress created the Special Financial Assistance program to provide taxpayer-funded lump-sum bailouts to severely underfunded multiemployer pension plans. To be eligible, a plan must have been “in critical and declining status (within the meaning of [29 U.S.C. § 1085(b)(6)]) in any plan year beginning in 2020 through 2022.” The Bakery Drivers Local 550 pension fund – whose participants are bakery drivers who lost major contributing employer Hostess (the maker of Twinkies) to bankruptcy in 2012 – terminated the plan through a mass withdrawal from it in 2016.
Pension Benefit Guaranty Corp. v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund asks a wonderfully niche but potentially expensive question: whether a multiemployer pension plan that terminated by mass withdrawal in 2016 can still qualify for the American Rescue Plan Act’s Special Financial Assistance program under ERISA Section 1432(b)(1)(A), which covers plans “in critical and declining status” during 2020-2022. The Pension Benefit Guaranty Corp. denied the fund’s SFA application on the ground that, because the plan terminated by mass withdrawal in 2016, it could not have been “in critical and declining status” during the 2020-2022 window.
The fund arranged for a new employer to join and resume contributions in 2022, applied for SFA, and lost in the district court. But the U.S. Court of Appeals for the 2nd Circuit held that Section 1432(b)(1)(A)’s cross-reference to Section 1085(b)(6) imports only that provision’s definition of “critical and declining status” – essentially, whether the plan is projected to become insolvent within the current year or the next 14 years. The court also rejected the PBGC’s argument that because a separate provision (Section 1081(c)) provides that Section 1085 only applies to plans until their termination, the cross-reference to the definition incorporated a requirement that the fund not have been terminated.
The government now seeks review, not claiming any circuit split but saying that the PBGC disagrees and the 2nd Circuit’s holding is “as legally flawed as it is counterintuitive,” and “will likely result in the payment of hundreds of millions of dollars in taxpayer funds to terminated pension plans that Congress intentionally excluded from the SFA program.” The fund says the government’s claims are overblown and the 2nd Circuit’s decision is correct. But first, people have to read a stack of opinions and briefs every bit as engaging as a corporate tax return. My sympathies to everyone involved.
Administrative channeling dust-up
Margolin v. National Association of Immigration Judges is the sort of separation-of-powers food fight that only a true connoisseur of administrative law could love. The case began with National Association of Immigration Judges’ challenge to a policy adopted in 2022 by the Executive Office for Immigration Review, which runs the immigration courts and Board of Immigration Appeals. The policy generally treats public speech about immigration or EOIR as official-capacity speech requiring supervisory approval, effectively preventing immigration judges from speaking about those subjects in their personal capacities.
The district court held that the challenge had to be channeled through the Civil Service Reform Act’s administrative machinery. The U.S. Court of Appeals for the 4th Circuit agreed under ordinary circumstances, the CSRA would route claims like this one through the Office of Special Counsel, the Merit Systems Protection Board, and ultimately the Federal Circuit. But the panel concluded that recent events – including President Donald Trump’s removal of the special counsel and MSPB members, the resulting loss of an MSPB quorum, and the government’s position that statutory removal protections are unconstitutional – may have so undermined the system’s “functionality and independence” that the district court would on remand have to “consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls.”
The en banc court voted 9-6 to deny rehearing, with three concurring and one dissenting opinions. Judge J. Harvie Wilkinson, who voted to deny rehearing, nevertheless wrote that the panel’s opinion “plants the seeds of real mischief” and that “only the Supreme Court can bring an effective halt,” because a court should not decide whether a statute is “functioning as Congress intended.” The government sought a stay of the 4th Circuit’s mandate, but the Supreme Court denied the application without prejudice, holding that the government had not established irreparable harm.
The government’s petition says that the case is “a clear candidate for summary reversal twice over.” NAIJ had conceded that ordinary CSRA preclusion was settled and argued only that its own claims fell outside the scheme, yet the 4th Circuit “sua sponte and without notice to or input from the parties then derailed the case based on post-oral argument events,” namely that the president had removed a member of the MSPB, so that body lacked a quorum on the date the opinion issued. The government thus claims that summary reversal is warranted both for departing drastically from the principle of party presentation (that courts may rely only on arguments presented to them, and which was the basis for the Supreme Court summarily reversing the 4th Circuit just five months ago), and for failing to adhere to Supreme Court precedent that is directly on point in holding that the CSRA channels federal personnel claims to the MSPB. NAIJ responds that the 4th Circuit’s remand is merely interim and that if the adjudicators Congress counted on to supply meaningful and independent review have been brought under presidential control, the premise for implied jurisdiction-stripping starts to wobble.
NAIJ filed a cross-petition in National Association of Immigration Judges v. Margolin arguing that a pre-enforcement challenge to a broad prior restraint on federal employees’ speech need not be funneled through the CSRA at all, given that the policy is not, in NAIJ’s telling, a conventional CSRA-covered personnel action; that the CSRA offers no guarantee of judicial review because the Special Counsel may simply decline to proceed; and that any eventual review would come too late to remedy the “here-and-now” First Amendment injury from a speech restriction that chills public comment before it happens. NAIJ says that the 4th Circuit’s contrary conclusion squarely conflicts with the D.C. Circuit’s decision in Weaver v. U.S. Information Agency, which held that a federal employee may bring “a simple pre-enforcement attack on a regulation restricting employee speech” in district court, so long as that challenge stands independently of any later covered sanction for noncompliance. And NAIJ argues the decision sits uneasily with other Supreme Court precedents suggesting that plaintiffs need not raise their claims administratively if there is no guarantee of judicial review at the end of the road. The government argues “that question is manifestly not certworthy,” because it involves only a splitless application of settled law.
Sequential confessions in a notorious “cold case”
McCarthy v. Hernandez arises from one of the most infamous “cold cases” in American history – the 1979 kidnapping and murder of six-year-old Etan Patz, who vanished walking to his school bus stop in lower Manhattan. This is one of the first cases to establish the practice of putting photos of missing children on milk cartons. The case against respondent Pedro Hernandez rested entirely on his own statements (to police and others). In 2012, after Hernandez’s brother-in-law contacted police, detectives brought Hernandez to the Camden County Prosecutor’s Office in New Jersey, where they questioned him for nearly seven hours in a windowless room without giving Miranda warnings or turning on the video camera concealed in the room. After Hernandez confessed, police read him his rights and then recorded a second videotaped confession. Later that same day – after a walk-through of the alleged crime scene, food, and intermittent sleep – Hernandez gave a third confession to an assistant district attorney. Hernandez had also made incriminating statements to members of a prayer group, a friend, and his ex-wife over the preceding decades.
After a five-month retrial (the first ended in a mistrial), a New York jury convicted Hernandez of felony murder and kidnapping. During deliberations, the jury sent a note asking whether, if it found the initial pre-Miranda confession involuntary, it “must disregard” the subsequent videotaped confessions to both law enforcement and civilians. The trial court answered simply “no,” essentially because applying the fruit-of-the-poisonous-tree doctrine was not the jury’s function. The Appellate Division affirmed, finding the response correct and, in the alternative, that any error was harmless given the extensive evidence of guilt.
Hernandez sought habeas corpus review, and the federal district court denied relief. The 2nd Circuit reversed, holding that the trial court’s response was contrary to Missouri v. Seibert. Under Seibert, when police deliberately question a suspect without Miranda warnings, obtain an initial confession, and only then administer warnings before eliciting the same confession again – a tactic designed to make the warnings feel like a formality the suspect has already talked past – any resulting post-warning confession must be suppressed unless curative measures are taken to ensure the suspect genuinely understood his rights. The 2nd Circuit held that the trial court’s one-word “no” in response to the jury’s question about whether it should disregard the post-warning confessions if it found the initial pre-warning confession involuntary was contrary to Seibert, and that the error was not harmless because the confessions were the only evidence against Hernandez.
New York asks the Supreme Court to summarily reverse, pressing two independent grounds. First, the state courts did not violate clearly established federal law because Seibert – which addressed pretrial suppression rulings by a judge – has never been held to apply to jury deliberations at all, and the Antiterrorism and Effective Death Penalty Act permits habeas relief only when a state court contradicts or unreasonably applies precedent that is “clearly established” by the Supreme Court. Second, even assuming some error, the state courts’ harmless-error finding deserved deference under AEDPA: Hernandez’s confession to the ADA came roughly eleven hours and ninety miles removed from the initial interrogation, and was corroborated, New York argues, by details only the killer would know; and Hernandez’s multiple statements to civilians provided independent, wholly untainted evidence of guilt.
Hernandez counters that the 2nd Circuit’s decision is merely a straightforward application of Seibert. He adds that the first jury hung, the second deliberated nine days and sent three notes about the confessions and taint from the initial interrogation, and the pre-Miranda interrogation bore all the hallmarks of the “deliberate two-step strategy” Seibert condemned.
That’s all for this week. Check back Monday to see whether the court serves up a grant, a summary reversal, or just another helping of relist purgatory.
New Relists
Pension Benefit Guaranty Corporation v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund,25-701
Issue: Whether a multiemployer pension plan that terminated through mass withdrawal before the 2020 plan year is eligible for Special Financial Assistance under 29 U.S.C. 1432(b)(1)(A).
(Relisted after the Apr. 24 conference.)
Issues: (1) Whether the Second Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.
(Relisted after the Apr. 24 conference.)
Margolin v. National Association of Immigration Judges, 25-767
Issues: (1) Whether the decision below – in which the court of appeals held, without notice to or briefing by the parties, that the Civil Service Reform Act of 1978 does not preclude suit in district court when “a factual record” shows that the CSRA is not “function[ing] as intended” – should be summarily reversed for violating the party-presentation principle; and (2) whether the decision below should be summarily reversed for failing to adhere to this court’s precedents holding that the CSRA generally precludes challenges to federal personnel actions in district court.
(Relisted after the Apr. 24 conference.)
National Association of Immigration Judges v. Margolin, 25-1009
Issue: Whether the Civil Service Reform Act impliedly strips federal district courts of jurisdiction over a pre-enforcement challenge to a broad prior restraint on the speech of federal employees, even where: (a) the challenge could not be raised at all under the CSRA’s review scheme; (b) the CSRA’s review scheme would not guarantee judicial review of the challenge in any event, because the availability of judicial review would turn entirely on agency officials’ unfettered and unreviewable discretion; and (c) any judicial review would come too late to remedy the “here-and-now” injuries caused by the prior restraint.
(Relisted after the Apr. 24 conference.)
Returning Relists
Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.
(Relisted after the Dec. 5, Dec. 12, and Jan. 9 conferences; now being held for consideration of response to Fields’ rehearing petition.)
Gator’s Custom Guns, Inc. v. Washington, 25-153
Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Viramontes v. Cook County, 25-238
Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
National Association for Gun Rights v. Lamont, 25-421
Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.
(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.
(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Florida v. California and Washington, 22-O-162
Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”
(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
City of Los Angeles v. Estate of Hernandez, 25-538
Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.
(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)
Florida v. California and Franchise Tax Board of California, 22O163
Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.
(Relisted after the Apr. 17 and Apr. 24 conferences.)
New York Football Giants v. Flores, 25-790
Issue: Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.
(Relisted after the Apr. 17 and Apr. 24 conferences.)
Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17 and Apr. 24 conferences.)
Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17 and Apr. 24 conferences.)
E.D. ex rel. Duell v. Noblesville School District, 25-906
Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”
(Relisted after the Apr. 17 and Apr. 24 conferences.)
Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.
(Relisted after the Apr. 17 and April 24 conferences.)