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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 is continuing to work through its relisted cases. Last month it granted the petitions filed by the federal government and by a group of schools and libraries seeking to challenge the decision of the U.S. Court of Appeals for the 5th Circuit invalidating a system of subsidies for rural and low-income broadband service.
It appears that the two relisted petitions asking the court to decide whether laws that limit participation on women’s and girls’ sports teams based on sex assigned at birth violates the 14th Amendment and Title IX of the Education Amendments of 1972 are now being held for the transgender-care case United States v. Skrmetti, argued on Wednesday.
And the court denied review in the case asking the court to weigh in on whether the Fifth Amendment’s takings clause applies when the government destroys property during necessary police activity, with Justice Sonia Sotomayor (joined by Justice Neil Gorsuch) filing an opinion questioning whether the court of appeals had applied the correct standard.
On to this week’s newly relisted cases. There are three of them, give or take.
Personal jurisdiction over the Palestine Liberation Organization
We start with Fuld v. Palestine Liberation Organization and its companion case, United States v. Palestine Liberation Organization. When courts entertain lawsuits against out-of-state defendants, they must first determine whether they have so-called “personal jurisdiction” over them – that is, authority under the Constitution’s due process clause to hale them into court and make decisions binding on them. When the cause of action arises under state law, courts must determine whether the defendant has sufficient contacts within the the court’s geographic area of authority that it is fair for the court to exercise its power over them. The question at the center of these two cases is whether the same is true when Congress creates a cause of action against foreign nationals and entities.
The families of dozens of U.S. citizens who were killed or injured in terror attacks in Israel brought suits against the Palestine Liberation Organization and the Palestinian Authority under the Anti-Terrorism Act. The ATA creates a private right of actions for victims of terror attacks committed against U.S. nationals abroad. The United States does not recognize the PLO or PA as a sovereign state, and both are barred from operating in the United States, except for at the United Nations.
The families argue that the PLO and the PA had encouraged such attacks by, among other things, paying the families of Palestinians killed in suicide attacks or in prison for attacks on civilians in Israel. The PLO and PA make such payments to the families of all Palestinians killed or detained in the conflict with Israel.
In one of the cases, a New York jury awarded the plaintiffs a total of $655.5 million in damages. But the U.S. Court of Appeals for the 2nd Circuit reversed, concluding that the district court’s assertion of personal jurisdiction over the PLO and PA violated their rights under the due process clause.
Simplifying the procedural history greatly: Congress then enacted the Anti-Terrorism Clarification Act of 2018 and later the Promoting Security and Justice for Victims of Terrorism Act, both of which provided that the PLO and PA would be deemed to have consented to personal jurisdiction in U.S. courts if they engaged in certain conduct.
As relevant here, the PSJVTA provides that the PA or PLO “shall be deemed to have consented to personal jurisdiction” in an ATA suit if it pays the families of terrorists, either dead or in prison, responsible for injuring or killing a U.S. national and it either maintains an office in the United States or a representative conducts any activity while physically present in the U.S. on their behalf.
The family of another U.S. citizen killed in the West Bank then also brought suit, and the United States then intervened in both cases to defend the PSJVTA’s constitutionality.
The district courts in both cases held that the provisions of the PSJVTA were unconstitutional and granted the PA and PLO’s motions to dismiss the cases for lack of personal jurisdiction. The district courts found that the PLO and PA had made qualifying payments, and one also assumed that they had engaged in activities in the United States that would trigger the law’s application. But both courts held that neither category of conduct could constitutionally be treated as reflecting the groups’ consent to personal jurisdiction in U.S. courts, and they thus concluded that the PSJVTA violates due process.
The 2nd Circuit affirmed, agreeing that the PSJVTA provisions violated due process. The court concluded that the “jurisdiction triggering activities” under the PSJVTA could not “reasonably be interpreted as evincing the defendants’ intention to submit to the United States courts.” Although the government argued that the statute was “centrally concerned with matters of foreign affairs” and that the political branches’ judgments were entitled to significant weight, the court concluded that those considerations could not save the statute from being held unconstitutional. The court also held that acts of Congress were given no additional consideration over enactments of state legislatures and that the due process analyses of personal jurisdiction were the same under either the Fifth Amendment for enactments of Congress or the 14th Amendment for statutes enacted by state legislatures.
The full 2nd Circuit declined to rehear the case, over a dissent by Judge Steven Menashi (joined by Chief Judge Debra Ann Livingston, Michael Park, and (in part) Richard Sullivan, who emphasized that the cases involved a question of exceptional importance about Congress’s ability to legislate in the realm of foreign affairs.
Both the victims’ families and the federal government have separately petitioned for review, arguing that Congress has broader authority than state legislatures to subject parties to personal jurisdiction and that review is warranted because of Congress’s judgment that the PSJVTA is an important measure to further U.S. interests and protect and compensate U.S. nationals.
[Disclosure: I am among the counsel representing the victims’ families in Fuld.]
“Second and successive” habeas petitions
That brings us to Rivers v. Lumpkin. Under federal law, state prisoners can seek a writ of habeas corpus to challenge the lawfulness of their detention. But the Antiterrorism and Effective Death Penalty Act imposes stringent gatekeeping requirements on a “second or successive habeas corpus application.” Courts have long struggled to determine what constitutes a “second or successive” petition, and in particular whether the limits on such petitions apply to amendments that prisoners file to their initial application – frequently acting on their own without the assistance of lawyers to help them explain to courts what they mean to do.
Danny Richard Rivers was convicted of sexual abusing his children and possession of child pornography. After exhausting his available state remedies, Rivers filed a federal habeas petition. The district court denied him relief, and Rivers was granted a certificate of appealability to seek review of his claim that his trial counsel was ineffective for failing to conduct a reasonable investigation and interview witnesses.
While his appeal was pending, Rivers received information he believed was exculpatory, and – acting without a lawyer – filed it with the district court, arguing that it showed his trial counsel’s failure to present exculpatory evidence. The district court deemed Rivers’ submission to be a “second or successive” petition that was barred under the AEDPA.
The U.S. Court of Appeals for the 5th Circuit affirmed, although Rivers argued that the additional information was an amendment to his initial filing, rather than a successive petition.
Rivers now seeks review, arguing that the courts of appeals are divided about what constitutes a second or successive petition. Texas argues that Rivers’ filing was properly categorized as a second or successive petition because it included not just additional evidence relevant to his ineffective assistance claim, but also “a myriad of new claims.” The justices seem to be taking a close look at Rivers’ case.
A replacement for Facebook?
That brings us to our last case. As regular readers will remember, the Supreme Court granted review in Facebook, Inc. v. Amalgamated Bank to decide what kinds of risk disclosures public companies must make in their filings with the Securities and Exchange Commission. At argument, several justices voiced concerns that Facebook’s statements there about the risk of data breaches could be read to suggest that the breaches were merely hypothetical, when in fact data breaches had already occurred – Facebook’s disclosure had come after the company knew that Cambridge Analytica had improperly accessed millions of users’ data. Soon afterwards, the court dismissed the petition in that case as improvidently granted.
Plumbers Local 290 Pension Trust Fund v. Root, Inc. presents an issue that the petition argues is “nearly identical to that already before the Court in Facebook, Inc. v. Amalgamated Bank”: whether a company’s disclosure in the “Risk Factors” section of an SEC filing is misleading if it warns that a risk may or could materialize when that risk has already transpired at the time the company spoke.
The court first considered Plumbers Local in early November, just as it was preparing to hear argument in Facebook. The justices accordingly held Plumbers Local in abeyance awaiting resolution of Facebook. But soon after the dismissal of Facebook, the court released that hold and put the case on for discussion at Friday’s conference. While technically that’s not what I would call a “relist” (because the case isn’t being considered at consecutive conferences), it’s close enough that I thought it was worth bringing to our readers’ attention.
What we’ll soon find out is whether the court is simply going to deny cert in Plumbers Local because it dismissed the case it was being held for, or whether it will grant review in Plumbers Local as a replacement for the dismissed Facebook case.
We should have a better idea very soon. Tune in next time!
New Relists
Rivers v. Lumpkin, 23-1345
Issue: Whether 28 U.S.C. § 2244(b)(2) applies only to habeas filings made after a prisoner has exhausted appellate review of his first petition, to all second-in-time habeas filings after final judgment, or to some second-in-time filings — depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.
(Relisted after the Nov. 22 conference.)
Fuld v. Palestine Liberation Organization, 24-20
Issue: Whether the Promoting Security and Justice for Victims of Terrorism Act violates the due process clause of the Fifth Amendment.
(Relisted after the Nov. 22 conference.)
United States v. Palestine Liberation Organization, 24-151
Issue: Whether the Promoting Security and Justice for Victims of Terrorism Act’s means of establishing personal jurisdiction complies with the due process clause of the Fifth Amendment.
(Relisted after the Nov. 22 conference.)
Plumbers Local 290 Pension Trust Fund v. Root, Inc., 24-224
Issue: Whether a company’s disclosure in the “Risk Factors” section of an Securities and Exchange Commission filing is misleading if it warns that a risk may or could materialize when that risk has already transpired at the time the company spoke.
(Relisted after the Nov. 22 conference.)
Returning Relists
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Parents Protecting Our Children, UA v. Eau Claire Area School District, 23-1280
Issue: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Turco v. City of Englewood, New Jersey, 23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 and Nov. 22 conferences.)
Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 and Nov. 22 conferences.)
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