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.
First, some old business. The justices disposed of two repeat visitors last week, producing one winner and one loser. After three relists, Goldman Sachs Bank USA v. Brown finally got the nod. The court will decide when bankruptcy courts can refuse to enforce arbitration agreements in suits alleging violations of the automatic stay. But two-time relist Clemente Properties, Inc. v. Pierluisi-Urrutia struck out: The court denied without comment the petition brought by Roberto Clemente’s family over Puerto Rico’s use of the baseball legend’s image, which raised questions about takings of intangible property and Puerto Rico’s sovereign immunity.
After a quiet week, the relist pipeline is suddenly gushing: The justices have served up 11 new relists for Friday’s conference, up from four last week. Several come in pairs or trios, and the federal government – the court’s most successful repeat litigant – advocates review in three of them.
The government seeks asylum – from the D.C. Circuit
The most consequential new relist this week may be Mullin v. Refugee and Immigrant Center for Education and Legal Services. On his first day back in office, President Donald Trump issued Proclamation 10888, which suspended the entry of aliens “engaged in the invasion across the southern border” and barred those who violate the suspension from invoking provisions of the immigration laws that would let them stay, including asylum.
Three nonprofits and 13 individuals sued. The district court certified a class of people subject to the proclamation who are or will be present in the United States. It held unlawful the proclamation’s restrictions on asylum and other statutory protections, as well as its authorization of removal procedures outside those established by Congress, and issued a classwide injunction. A divided panel of the U.S. Court of Appeals for the D.C. Circuit narrowed the class definition, but affirmed. It reasoned that although asylum is discretionary, the executive cannot categorically deny covered migrants access to asylum by proclamation and informal guidance rather than through the procedures Congress prescribed. Judge Justin Walker dissented in relevant part.
The solicitor general’s petition argues that asylum is discretionary and that the president may categorically deny it to those covered by the proclamation. Requiring the government to accept applications it has already decided to reject, the government contends, serves no purpose. It also challenges the classwide injunction and the breadth of the certified class. The government argues that the ruling threatens to revive chaos at the border. Iowa and 21 other states support the petition, arguing that the decision undermines the federal duty to protect the states against invasion.
The respondents’ brief in opposition argues that Congress expressly gave noncitizens physically present in the United States the right to apply for asylum, regardless of how they entered, and that the president cannot eliminate that right by proclamation. They emphasize the absence of a circuit split and dispute the government’s claims that the policy was responsible for reducing border crossings. They call the remedial issues fact-bound and say the government overstates the border crisis, noting that apprehensions had already fallen more than 90% from their peak before the proclamation.
The D.C. Circuit’s mandate is stayed, leaving the asylum restrictions in place for now. The absence of a split weighs against review, but the invalidation of a major administration policy could well persuade the justices to take another trip to the border. Will the court resolve this case quickly or let it sit for a while as it decides what to do, as it has in other high-profile cases?
GEO-political disputes
Our first group of cases asks whether Washington may regulate private companies that run federal immigration detention centers. In GEO Group, Inc. v. Nwauzor, a class of detainees and the state sued GEO, which operates the Northwest ICE Processing Center in Tacoma under a federal contract, for not paying Washington’s minimum wage to detainees in a voluntary work program for which ICE reimburses $1 a day. GEO argues it’s not a conventional labor relationship, but just an effort to prevent the detainees from becoming restless from idleness. The U.S. Court of Appeals for the 9th Circuit certified the question to the Washington Supreme Court, which held that the state minimum-wage law applied to the detained workers. A divided panel of the 9th Circuit then rejected GEO’s supremacy clause defenses, leaving GEO with a judgment it puts at about $37 million. Seven judges voted to rehear the case en banc, and six joined dissents, arguing that (among other things) the state law “interferes with federal immigration-detention policy” and thus directly regulates the federal government.
GEO argues that Washington cannot regulate a federal detention program through a contractor while exempting its own detainees from the wage law. Washington and the detainees respond that the law applies equally to every private detention contractor, whether it works for a city, the state or the federal government, and that the U.S. Court of Appeals for the 3rd Circuit applies the same test as the 9th. The detainees also note that ICE has since revised its detention standards, which they say limits the decision’s future impact.
In a court-invited amicus brief, the U.S. solicitor general recommends granting review. The government argues that the law discriminates against the federal government, because Washington exempts its own facilities while barring itself from contracting with private ones, and that federal statutes leave detainee pay to the Secretary of Homeland Security. It also says the decision conflicts with a decision of the 3rd Circuit ruling on a New Jersey law targeting private detention contractors.
GEO Group, Inc. v. Ferguson challenges a 2023 Washington statute regulating private civil detention facilities, which GEO says reaches its Tacoma facility alone. The district court preliminarily enjoined it, but the 9th Circuit vacated that ruling, rejecting GEO’s direct regulation and preemption claims and remanding on its discrimination claim against private contractors. GEO says Washington is micromanaging federal detention by regulating a contractor; the state says its requirements resemble those governing other civil facilities. It also points to further proceedings on remand as a reason not to intervene yet.
A grant in Nwauzor seems likely; Ferguson presents a closer question, but at minimum it seems likely to be held if Nwauzor is granted.
Initial public … omissions?
Two companies that went public while business was booming present a question of required disclosures in federal securities filings: How much bad news must a company reveal? Two related relists ask the justices to clarify when withholding information makes an IPO registration statement misleading under Section 11 of the Securities Act of 1933.
In Robinhood Markets, Inc. v. Sodha, the online brokerage rode the GameStop meme-stock frenzy and Dogecoin boom into its July 2021 IPO. Robinhood warned that trading might decline and provided an estimate of second-quarter revenue, but investors say it withheld information showing that trading and other business metrics were already declining. A district court dismissed their claims, but a divided panel of the 9th Circuit revived them. Robinhood’s petition argues that merely omitting material information cannot create liability unless the omission makes an affirmative statement misleading or violates a specific disclosure requirement. The investors respond that the company’s disclosures presented a misleading picture of its performance. The U.S. solicitor general, invited to weigh in, recommends granting review on the Section 11 misleading-omissions question, but not on a separate question concerning disclosures of known trends under Item 303 of Regulation S-K (which the agency is reviewing).
In ON24, Inc. v. Leadersel Innotech ESG, a webinar-platform provider prospered as businesses moved online during the pandemic. Investors allege that the company knew before the IPO that many pandemic-era customers did not intend to renew. An unpublished 9th Circuit memorandum revived the suit. ON24 asks whether describing an unmaterialized risk as hypothetical is misleading, alleging a split with the U.S. Courts of Appeals for the 1st, 3rd and 10th Circuits, and raises two questions that overlap with Robinhood’s. ON24 argues that the court improperly required it to predict future customer cancellations; the investors respond that “the warned-of risk was already materializing.” ON24 also asks the justices either to grant its petition or hold it for Robinhood. Leadersel Innotech answers that the 9th Circuit decision is non-precedential and that the panel found the risk had already begun to materialize.
With the solicitor general supporting review in Robinhood, a grant there looks plausible. Whether ON24 gets invited along is less certain. It seems a likelier hold.
Afghanistan’s frozen billions
It’s not every week that the Taliban is a respondent in the Supreme Court. That said, it has not responded, leaving an Afghan diplomat filing an amicus brief to oppose review – not on the Taliban’s behalf, but on behalf of the Afghan people.
When the Taliban retook Kabul in August 2021, the Treasury Department blocked billions of dollars that Da Afghanistan Bank held at the Federal Reserve Bank of New York. Victims holding judgments against the Taliban sought to execute on the funds under Section 201(a) of the Terrorism Risk Insurance Act, which makes the blocked assets of a terrorist party and its “agency or instrumentality” subject to execution.
A divided panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the denial of turnover. It held that an entity’s status as a terrorist organization’s instrumentality must be determined when its assets were blocked, before the Taliban installed its officials at the bank. Separately, the panel rejected other plaintiffs’ attempt at prejudgment attachment, holding that Da Afghanistan Bank enjoys sovereign immunity as the central bank of Afghanistan, which the executive continues to recognize as a foreign state. Judge Richard Sullivan dissented.
In Havlish v. The Taliban, judgment holders challenge the blocking-date rule, alleging a conflict between the 2nd Circuit and the U.S. Courts of Appeals for the 9th and 11th Circuits. They are backed by Iowa and 30 other states.
In Owens v. The Taliban, plaintiffs who lacked judgments when the district court ruled say the 2nd Circuit is the first court of appeals to require courts to defer to the executive on “foreign state” status, and thus “breaks with th[e] consensus” positions of the U.S. Courts of Appeals for the 1st, 3rd, and 6th Circuits. Ashton v. The Taliban joins Owens in arguing that courts should not defer to the executive branch in determining whether an entity is a “foreign state” entitled to sovereign immunity, and seeks a GVR in light of this year’s decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A.
As noted, no respondent has appeared. The only opposition is an amicus brief jointly filed in the three cases by Naseer Faiq, chargé d’affaires of Afghanistan’s mission to the United Nations, who says no one is currently authorized to appear for Afghanistan in U.S. courts. He argues that the facts are unlikely to recur, that there is no circuit split, and that the immunity issue affects only the petitioners’ priority among creditors. The Havlish petitioners have sought leave to respond, arguing that the legal question is likely to recur in terrorism litigation and does indeed implicate a circuit split.
At the very least, the court will need more time to figure out what to do when the respondent seems unwilling to appear to defend the cases.
Location, location, regulation
How many places can a state declare off-limits to firearms before the Second Amendment right to carry in public becomes largely theoretical? That’s the question in Novotny v. Moore, a challenge to Maryland’s extensive restrictions on carrying firearms in “sensitive places.”
Maryland prohibits licensed gun owners from carrying firearms in numerous locations, including public transportation, parks and forests, healthcare facilities, museums, stadiums, casinos, public demonstrations, and establishments serving alcohol. I thought this was America! A divided panel of the U.S. Court of Appeals for the 4th Circuit upheld those restrictions, finding historical support for them under the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. Judge G. Steven Agee dissented as to many of the restrictions, warning that the majority had stretched the sensitive-places exception too far. The panel separately struck down Maryland’s presumptive ban on carrying firearms on private property open to the public.(After this year’s decision in Wolford v. Lopez, which struck down Hawaii’s similar private-property rule, Maryland dropped its own cert petition seeking review of that ruling.)
The gun owners’ petition argues that historical restrictions on carrying firearms in sensitive places were generally limited to locations where the government provides security, not ordinary places where people gather. Maryland responds that historical regulations support restrictions at crowded places and locations serving vulnerable populations, and contends that review is unnecessary because the lower courts largely agree on the governing principles.
Invoking Wolford, the petitioners ask the justices to grant review or at least send the case back for reconsideration. Whether the court is ready to take on the sensitive-places doctrine so soon after Wolford remains to be seen. But reconsideration under Wolford seems like a real possibility.
A fine line on phone locations
In Sprint Corp. v. Federal Communications Commission, the Commission fined Sprint $12.2 million and T-Mobile $80.1 million for failing to adequately safeguard customers’ location information shared with third-party aggregators, including by continuing to disclose the information after learning of significant security vulnerabilities. The U.S. Court of Appeals for the D.C. Circuit upheld the penalties, concluding that information about a cellphone’s location – even when no call is underway – qualifies as confidential “customer proprietary network information” under the Communications Act.
The carriers’ petition argues that the statute protects only call-location information, not all device-location data. They also contend that the FCC circumvented a statutory penalty cap by treating separate relationships with third-party companies as multiple “continuing violations,” and that the D.C. Circuit improperly deferred to the agency’s interpretation despite Loper Bright Enterprises v. Raimondo. But the carriers’ principal request is narrower: They ask the justices to send the case back in light of this year’s decision in FCC v. AT&T, which held that an FCC forfeiture order does not itself compel payment. That opinion, the carriers say, rested on a key government concession: A company can refuse to pay and contest the penalty in a subsequent enforcement proceeding with a jury. Sprint and T-Mobile say they paid under protest because the FCC’s orders demanded payment and existing precedent left them little choice. The government responds that the carriers always had the option not to pay, that they failed to preserve their claim of being misled, and that AT&T provides no reason for reconsideration. The carriers disagree.
A remand remains possible, although the government notes that the court rejected a comparable request from Verizon. For now, Sprint and T-Mobile are hoping the justices will take their call.
When hot pursuit goes cold
How long can a “hot pursuit” stay hot after police lose sight of the suspect? That’s the question in City of North Las Vegas v. Jones, a case arising from a search for a suspected domestic abuser that ended with police entering a stranger’s backyard and shooting two dogs. The suspect was never found.
After officers saw a man flee over a backyard wall, the officers stated that they established a neighborhood perimeter rather than pursuing him on foot. A K-9 officer arrived about 18 minutes later, and during the ensuing search, his police dog alerted them toward a walled backyard. An officer climbed in without a warrant. Three pit bulls emerged, two of which attacked the police dog and were shot. The dogs’ owners, Genoa Jones and Cornell Tinsley, sued. The district court granted the officers qualified immunity, but the U.S. Court of Appeals for the 9th Circuit reversed on the warrantless-entry claim, holding that the officers had not been in immediate and continuous pursuit and that circuit precedent clearly established the search’s illegality. It left intact qualified immunity for shooting the dogs. Eight judges dissented from the denial of rehearing en banc.
The city’s petition argues that the officers never abandoned the pursuit: They say they established a perimeter and used a police dog to locate a potentially dangerous suspect. Even if the search was unlawful, the city argues, no sufficiently specific precedent clearly established that fact. It also asks the justices to hold that only Supreme Court decisions – not lower-court precedent – can clearly establish law for qualified-immunity purposes. The homeowners respond that the officers never actually established a perimeter or chased the suspect and instead just conducted a neighborhood-wide search without knowing his whereabouts.
The eight dissenting judges may help keep the petition warm. But the court closely reviews many petitions in cases where police are denied qualified immunity, and unless the error was clear enough to warrant summary reversal, the justices may let this pursuit go cold – perhaps with a dissent from denial of cert.
The court has enough to chew on that it seems likely to take a while to finish processing this week’s new offerings. As for me, I’ll be watching Monday’s orders to find out how much of this I get to reuse.
New Relists
GEO Group, Inc. v. Nwauzor, 25-828
Issue: Whether the supremacy clause allows a state to reclassify federal immigration detainees participating in a federal work program as employees and thereby impose its state minimum-wage law just because a private contractor provides detention services at the federal facility where the detainees are housed.
(Relisted after the Nov. 6 conference.)
Robinhood Markets, Inc. v. Sodha, 25-944
Issues: (1) Whether an issuer violates Section 11(a) of the Securities Act of 1933’s misleading-omissions prong by failing to disclose interim financial data that investors may consider material, without an inquiry into whether the omission rendered any affirmative statement misleading; and (2) whether an issuer violates Item 303 – and thus Section 11(a)’s required-statements prong – by failing to disclose and quantify interim financial data before quarterly reporting deadlines.
(Relisted after the Nov. 6 conference.)
Novotny v. Moore, 25-1324
Issue: Whether Maryland’s numerous prohibitions on carrying firearms in many places frequented by the general public violate the Second and 14th Amendments.
(Relisted after the Nov. 6 conference.)
City of North Las Vegas, Nevada v. Jones, 25-1355
Issues: (1) Whether officers’ warrantless search of a backyard in close proximity to the domestic violence victim’s residence was a lawful “hot pursuit” when the suspect’s trail was temporarily lost within the perimeter for approximately 18 minutes but recovered through immediate and continuous police efforts; (2) whether, even if the search did not qualify as a “hot pursuit,” the officers were entitled to qualified immunity because no “clearly established law” was violated; and (3) whether, in the interest of avoiding the perpetual flood of federal court qualified immunity litigation, the court should decide that clearly established law means only the decisions of the Supreme Court, and not lower court decisions, which fail to provide police departments with meaningful guidance because they are highly fact-determinative and subject to numerous differing and often contradictory judicial interpretations.
(Relisted after the Nov. 6 conference.)
ON24, Inc. v. Leadersel Innotech ESG, 25-1376
Issues: (1) Whether an issuer violates Section 11(a) of the Securities Act of 1933’s misleading-omissions prong by describing unmaterialized risks as hypothetical; (2) whether an issuer violates Section 11(a)’s misleading-omissions prong whenever it omits information related to a disclosed fact regardless of whether the omission renders an affirmative statement misleading; and (3) whether an issuer violates Item 303 of Regulation S-K – and thus the prong of Section 11(a) prohibiting the omission of required statements – by failing to disclose immaterial facts as “known trends or uncertainties” that are reasonably likely to have a material impact on financial results.
(Relisted after the Nov. 6 conference.)
Sprint Corp. v. Federal Communications Commission, 25-1422
Issues: (1) Whether this court should grant, vacate, and remand in light of FCC v. AT&T, Inc. and the government’s concessions in that case; (2) whether “location” customer proprietary network information under 47 U.S.C. § 222 refers only to call-location information, not other formation about the location of a mobile device; and (3) whether the number of “continuing violations” arising from a single failure to act under 47 U.S.C. § 503(b) is a legal question for courts to decide, without deferring to the Federal Communications Commission’s conclusion.
(Relisted after the Nov. 6 conference.)
GEO Group, Inc. v. Ferguson, 26-71
Issue: Whether the supremacy clause permits a state to enact a law micromanaging the details of how a federal contractor must provide services at a federal detention facility, while exempting the state’s own detention facilities from all those requirements.
(Relisted after the Nov. 6 conference.)
Mullin v. Refugee and Immigrant Center for Education and Legal Services, 26-239
Issues: (1) Whether Presidential Proclamation No. 10888 and its implementing guidance – which suspended the entry of certain aliens and precluded their access to statutory provisions that would enable their continued presence in the country, including asylum – are lawful; (2) whether 8 U.S.C. § 1252(f)(1) bars the classwide relief entered by the district court; and (3) whether the class definition comports with Article III and Rule 23 of the Federal Rules of Civil Procedure.
(Relisted after the Nov. 6 conference.)
Havlish v. The Taliban, 26-292
Issue: Whether, under the Terrorism Risk Insurance Act, a plaintiff’s right to execute on blocked assets depends on whether the assets’ owner was a terrorist party or its agency or instrumentality at the time the assets were blocked.
(Relisted after the Nov. 6 conference.)
Ashton v. The Taliban, 26-293
Issue: Whether, in light of the court’s intervening decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A., which confirms that a court – not the Executive Branch – must resolve through ordinary statutory construction whether an entity is a “foreign state” entitled to sovereign immunity, the judgment below should be vacated and remanded so that the Second Circuit must reconsider, under the correct framework, whether the Taliban and its instrumentalities are entitled to immunity under the Foreign Sovereign Immunities Act.
(Relisted after the Nov. 6 conference.)
Owens v. The Taliban, 26-294
Issue: Whether the Foreign Sovereign Immunities Act requires courts to independently interpret its provisions, or whether a court must defer to State Department websites and Department of Justice litigation filings in determining whether an entity is entitled to sovereign immunity under the FSIA.
(Relisted after the Nov. 6 conference.)
Returning Relists
Khatibi v. Yip, 25-1240
Issue: Whether private instruction in courses required for state licensure constitutes a government speech.
(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)
Moore v. Romero, 25-1295
Issues: (1) Whether, in a use-of-force case which involves multiple instances of force, Barnes v. Felix requires that each use-of-force be analyzed progressively from before the first instance of force used through the last instance of force used, considering the information known to the officer, the suspect’s prior actions (including any compliance, non-compliance, resistance, and reaching or grabbing for a weapon), and the suspect’s reactions to those prior use(s)-of-force; and (2) whether, when analyzing a defendant law enforcement officer’s motion brought under Rule 12(b)(6) or 12(c), in a use-of-force case where body camera video clearly depicts the entire lead-up to and application of force by a law enforcement officer, whether the lower courts may analyze the clearly established prong of qualified immunity at a more general, plaintiff-friendly, level than at the motion for summary judgment stage of litigation.
(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)
City of Bossier City v. Hershey, 25-1323
Issues: (1) Whether a plaintiff can plead single-incident municipal liability without alleging a violation of a clearly established constitutional right; and (2) whether a plaintiff can plead single-incident municipal liability without alleging a complete lack of training on the constitutional right in question.
(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)
Hershey v. City of Bossier City, 25-1389
Issue: Whether the principles of Hope v. Pelzer are limited to Eighth Amendment claims or extend to free speech and free exercise clause claims such that petitioner’s constitutional claims should not be barred by qualified immunity.
(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)
StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology, 25-1404
Issues: (1) Whether the harassers’ subjective discriminatory intent is an element of a hostile environment claim under Title VI; and (2) whether the First Amendment bars a plaintiff from pleading a Title VI hostile environment claim based on “protected speech.”
(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)
Bauer v. Marks, 25-1413
Issue: Whether the law clearly established that the officer’s use of a less-lethal projectile, under the totality of the circumstances, constituted an unreasonable use of force in violation of the Fourth Amendment.
(Relisted after the Oct. 9, Oct. 16, and Nov. 6 conferences.)
Brown v. United States, 25-1342
Issue: Whether an automobile is per se an instrumentality of interstate commerce, which would make a federal offense of every kidnapping involving an automobile under 18 U.S.C. § 1201(a)(1).
(Relisted after the Oct. 16 and Nov. 6 conferences.)
Allen v. Caster, 26-116
Issues:(1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 and Nov. 6 conferences.)
Allen v. Milligan, 26-117
Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 and Nov. 6 conferences.)
Allen v. Singleton, 26-118
Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 and Nov. 6 conferences.)
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[ H/T SCOTUSblog ]
