Foreign intelligence surveillance and immigration

Claud Mccoid

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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.

As we noted last week, the Supreme Court relisted 18 new cases from its “long conference” that marked its return to business after the summer recess. On Monday, the court denied review to just one of those cases, Boardman v. Inslee, a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide that data to the union that represents the providers. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have granted review in that case — just short of the four votes it takes to win review.

The court also called for the views of the solicitor general (a so-called CVSG) in Epic Systems Corp v. Tata Consultancy Services Ltd., involving whether punitive damages that are twice compensatory damages and fall within a state’s statutory punitive damages cap are constitutionally excessive. A relist greatly increases the odds of a grant, but a CVSG may increase the odds of a grant even more. According to one academic study, a petition in a non-pauper case (in which the petitioner is able to pay the usual $300 filing fee) “is over 46 times more likely to be granted following a CVSG.” Every other relisted case is back to be considered another time at this Friday’s conference.

There are also two new relists. American Civil Liberties Union v. United States asks whether the First Amendment requires greater transparency from the Foreign Intelligence Surveillance Court. Congress established the FISC in 1978 to “hear applications for and grant orders approving electronic surveillance” for purposes of gathering foreign intelligence rather than conventional law enforcement. FISC proceedings are not open to the public, however, and the court rarely publishes its decisions. In October 2016, the ACLU filed a motion seeking access to the court’s opinions and orders from Sept. 11, 2001 through the passage of the USA Freedom Act in 2015 (in which Congress required some declassification of opinions but which did not apply to prior opinions). The FISC dismissed the motion, as did the Foreign Intelligence Surveillance Court of Review, also created in 1978. Now represented by former solicitor general, former head of the Justice Department’s Office of Legal Counsel, and prominent conservative lawyer Ted Olson, the ACLU asks for the justices’ review, arguing that “transparency of the judicial process is central to the rule of law.”

Abdulla v. Garland is an immigration case. Abduhlmalik Mahyoub Mulhi Abdulla was born in Yemen in 1976 to two Yemeni parents and entered the United States as a lawful permanent resident in 1990. In 2014, Abdulla was convicted of aggravated fraud, and the Department of Homeland Security used that conviction as a basis for initiating removal proceedings. Abdulla argued he was not removable because he had derived citizenship from his father. An immigration judge rejected Abdulla’s arguments, and the Board of Immigration Appeals rejected his appeal as untimely because it had been filed beyond the 30-day appeal deadline and had failed to demonstrate exceptional circumstances warranting certification of the appeal out of time.

The U.S. Court of Appeals for the 3rd Circuit then held that it had jurisdiction over Abdulla’s untimely appeal but denied his claim on the merits. The court held that it was bound by its prior decision in Jordon v. Attorney General, which held in 2005 that, to establish derivative citizenship under the since-amended version of 8 U.S.C. § 1432(a)(3) that governed Abdulla’s case, the custodial parent must naturalize after the parents legally separate. In this case, Abdulla acknowledged that his father naturalized before the date on which his parents separated.

Before the Supreme Court, the government acknowledges that after the Jordan decision, the Board of Immigration Appeals held in 2008’s Matter of Douglas that derivative citizenship could occur even when the parents’ separation occurred after the relevant parent naturalized. Although neither party cited Douglas (or another relevant BIA decision that post-dates Jordan) before the court of appeals, and although Abdulla’s appeal was untimely, the solicitor general confesses error and argues that the subsequent BIA decisions favoring Abdulla’s position “are entitled to deference.” Accordingly, the government maintains that the Supreme Court should “grant the petition for a writ of certiorari, vacate the judgment below, and remand the case for further proceedings” to permit the court of appeals “to apply the relevant Board decisions in the first instance.” The court apparently needs more time to run the traps on this, and there’s a chance that one or more of the justices may balk at granting relief where the parties did not present the relevant case law to the court of appeals and where Abdulla’s appeal was untimely and did not present an excuse for his delay. 

That’s all for this week. We’ll be off next week because there’s no conference next Friday. But we should be back the week of Oct. 25. Stay safe!

New Relists

Abdulla v. Garland, 20-1492
Issue: Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that petitioner did not derive citizenship through his father under former 8 U.S.C. § 1432(a) because his father naturalized before, rather than after, allegedly separating from his mother.
(relisted after the Oct. 8 conference)

American Civil Liberties Union v. United States, 20-1499
Issues: (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion; and (2) whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.
(relisted after the Oct. 8 conference)

Returning Relists

Dignity Health, Inc. v. Minton, 19-1135
Issues: (1) Whether the free exercise clause of the First Amendment bars a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs; and (2) whether the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow — and thereby endorse and be associated with — medical procedures that violate its longstanding, deeply held religious beliefs.
(relisted after the June 24, Sept. 27 and Oct. 8 conferences; rescheduled after the July 1 conference)

Arlene’s Flowers Inc. v. Washington, 19-333
Issues: (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.
(certiorari petition relisted after the Jan. 10, 2020, Jan. 17, 2020, Jan. 24, 2020, Feb. 21, 2020, and June 24, 2021 conferences; rehearing petition relisted after the Sept. 27, 2021 and Oct. 8 conferences)

Coonce v. United States, 19-7862
Issues: (1) Whether, because the age at which a capital defendant became intellectually disabled does not bear on his moral culpability, the U.S. Court of Appeals for the 8th Circuit erred in concluding that the Eighth and Fifth Amendments permit the government to execute the petitioner, Wesley Coonce ― though his 71 I.Q. and severe adaptive deficits otherwise meet the criteria for a medical diagnosis of intellectual disability that would bar his execution under 18 U.S.C. § 3596(c) and Atkins v. Virginia ― solely because his impairment originated at age 20 rather than before age 18; and (2) whether the 8th Circuit erred in concluding, like other circuits but unlike numerous state courts of last resort, that notwithstanding the Supreme Court’s recent teaching concerning the Sixth Amendment’s confrontation clause, its 70-year-old decision in Williams v. New York allows the admission of testimonial hearsay to prove an aggravating factor at a capital sentencing hearing.
(relisted after the Sept. 27 and Oct. 8 conferences)

Ysleta del Sur Pueblo v. Texas, 20-493
Issue: Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations. CVSG: 8/25/2021.
(relisted after the Sept. 27 and Oct. 8 conferences) 

Naum v. United States, 20-1480
Issue: Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication.
(relisted after the Sept. 27 and Oct. 8 conferences) 

Roman Catholic Diocese of Albany v. Lacewell, 20-1501
Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.
(relisted after the Sept. 27 and Oct. 8 conferences)

West Virginia v. Environmental Protection Agency, 20-1530
Issue: Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, non-air impacts and energy requirements.
(relisted after the Sept. 27 and Oct. 8 conferences)

North American Coal Corporation v. Environmental Protection Agency, 20-1531
Issue: Whether 42 U.S.C. § 7411(d), which authorizes the Environmental Protection Agency to impose standards “for any existing source” based on limits “achievable through the application of the best system of emission reduction” that has been “adequately demonstrated,” grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.
(relisted after the Sept. 27 and Oct. 8 conferences)

Rivas-Villegas v. Cortesluna, 20-1539
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to Daniel Rivas-Villegas based upon the absence of a constitutional violation, by concluding that pushing a suspect down with a foot and briefly placing a knee against the back of a prone, armed suspect while handcuffing him, could constitute excessive force; and (2) whether the 9th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Rivas-Villegas.
(relisted after the Sept. 27 and Oct. 8 conferences)

City of Tahlequah, Oklahoma v. Bond, 20-1668
Issues: (1) Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and (2) whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.
(relisted after the Sept. 27 and Oct. 8 conferences)

Cortesluna v. Rivas-Villegas, 20-1690
Issue: Whether the U.S. Court of Appeals for the 9th Circuit departed from longstanding procedure and precedent and failed to view video and other evidence in the light most favorable to the plaintiff with respect to the central facts of the case and accepted a version of facts that is a “visible fiction” when it “should have viewed the facts in the light depicted by the videotape” and other evidence.
(relisted after the Sept. 27 and Oct. 8 conferences)

Arizona v. City and County of San Francisco, California, 20-1775
Issues: (1) Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend; (2) whether the Department of Homeland Security’s final rule interpreting the statutory term “public charge” is contrary to law or arbitrary and capricious; and (3) whether the decision below as to the rule should be vacated as moot under United States v. Munsingwear.
(relisted after the Sept. 27 and Oct. 8 conferences)

Westmoreland Mining Holdings LLC v. Environmental Protection Agency, 20-1778
Issues: (1) Whether the Environmental Protection Agency may employ 42 U.S.C. § 7411(d) to impose standards of performance on existing stationary sources that are regulated under the “hazardous air pollutants” program of 42 U.S.C. § 7412; and (2) whether 42 U.S.C. § 7411(d) clearly authorizes the EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system.
(relisted after the Sept. 27 and Oct. 8 conferences) 

North Dakota v. Environmental Protection Agency, 20-1780
Issue: Whether the Environmental Protection Agency can promulgate regulations for existing stationary sources that require states to apply binding nationwide “performance standards” at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive states of all implementation and decision making power in creating their Section 111(d) plans.
(relisted after the Sept. 27 and Oct. 8 conferences)

Ruan v. United States, 20-1410
Issue: Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.
(relisted after the Sept. 27 and Oct. 8 conferences)

Denezpi v. United States, 20-7622
Issue: Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.
(relisted after the Sept. 27 and Oct. 8 conferences)

Couch v. United States, 20-7934 
Issues: (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.
(relisted after the Sept. 27 and Oct. 8 conferences)

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