Defenses of government contractors, challenges to elections, and intellectual disability in capital case
Here is a short explanation of relists. Here is a short explanation of relists.
The Supreme Court has made good progress in sorting out the current relists. This week, it dealt with four. In Fernandez v. United States the court ruled in favor of the petitioner. SS 2255. The court is now holding a second relisted petition raising a similar issue, Elliott v. United States, pending disposition in Fernandez.
The Supreme Court declined review in 15-time relist Apache Stronghold v. United States, however, which challenged a federal land transfer that would facilitate copper mining at Oak Flat, a site sacred to the Western Apache. Justice Neil Gorsuch and Justice Clarence Thomas dissented, stating that the planned mining operations will permanently destroy a place of worship for the Apaches, preventing them from performing essential religious ceremonies.
The Court also denied review of 10-time relist L.M. v. Middleborough involved a Massachusetts middle school student who was prohibited from wearing a shirt that stated “There Are Only 2 Genders”. The U.S. Court of Appeals of the 1st Circuit upheld this decision, finding no violation of the First Amendment. Thomas and Justice Samuel Alito dissented, arguing that school discriminated against opposing views by promoting gender flexibility while silencing those who disagreed. Thomas, the originalist that he is, also wrote an opinion in which he reiterated his skepticism about the landmark student-speech decision Tinker v. Des Moines Independent School District. However, despite this, he emphasized that the school’s actions, even under Tinker were unjustified.
This brings us to the Supreme Court’s weekly conference. There are 143 petitions on its docket. Four of these cases are newly relisted.
Defenses of government contractors to torts
The GEO Group, Inc. v. Menocal is a class-action brought by former immigration prisoners at a private detention center in Aurora, Colorado, which was operated by The GEO Group, Inc., under contract with U.S. Immigration and Customs Enforcement. Plaintiffs claim GEO forced detainees, under threat of punishment, to clean up common areas. This could include solitary confinement. Plaintiffs claim that there was a separate voluntary program where detainees were allowed to do different jobs but only paid $1 per day. The class action alleged violations to the Colorado common law prohibitions on unjust enrichment and the Trafficking Victims Protection Act. GEO claimed that it was entitled to derivative sovereign immunity based on the 1940 Supreme Court decision Yearsley v. W.A. Ross Construction Co. argued that it was simply executing government directives, and was therefore immune from suit. The district court denied GEO summary judgment, stating that the challenged policies weren’t required by the ICE contracts. GEO now seeks Supreme Court review. It argues that the decision deepens a 5-to-3 circuit split over whether derivative sovereign immunity claims based on Yearsley can be reviewed prior to final judgment. GEO’s cert request insists that denying an immediate review defeats the very purpose immunity was intended to achieve: to avoid litigation costs. The Professional Services Council, among others, has written briefs in support of the ruling by the lower court. They warn that the ruling could chill contractor participation in federal program. Former detainees, however, counter that Yearsley merely provides a merits-based defense and not immunity from suit. They also claim the issue is too factual for an interlocutory appeal. GEO reports that three new courts have weighed-in since the Supreme Court considered the issue last in CACI Premier Technology V. al Shimari. The court denied review in 2021 of CACI, but the government responded to the court by arguing that a Supreme Court review was warranted. Maybe the time has come for a review.
Immunity for federal contractors
In 2016 an Afghan national employed by Fluor Corporation in Bagram Airfield, Afghanistan, pursuant to a Pentagon initiative encouraging the employment Afghan citizens, constructed an explosive vest unsupervised. He then detonated the vest, injuring severely U.S. Army specialist Winston Hencely. Hencely sued Fluor for tort, claiming negligent hiring, supervision and retention under South Carolina Law, as well third-party contract claims. The U.S. Court of Appeals, 4th Circuit, affirmed the dismissal of the case by the district court. They held that the tort claims had been barred because of a federal preemption based upon the “combatant activity” exception of the Federal Tort Claims Act. The appeals court acknowledged that this provision normally bars claims against the federal government but determined that this applied to Fluor as a contracting company since Fluor had been “integrated” into combat operations and worked under the command of military. West Flu If the court wants to revisit Boyle or cabin the FTCA’s combat-zone carve-out, this could be a case to watch.
Standing in election law cases
Bost v. Illinois State Board of Elections features a constitutional challenge to an Illinois law requiring the counting of mail-in ballots that arrive up to two weeks after Election Day, so long as they are postmarked (or certified) by Election Day. Representative The In A Judge 01 He Democratic 01 Gun With around half the states adopting similar postmarked-by-Election-Day counting policies, this case may catch the court’s eye.
Intellectual disability in capital cases
Over two decades ago, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment prohibits the execution of individuals who are intellectually disabled. In Smith In The In The The The In Hamm v. Smith, Alabama contends that the courts below misapplied Hall and Moore by proceeding to the adaptive-functioning prong of the intellectual-disability test despite no IQ score clearly at or below 70. Alabama The Smith 01 The Nine Expect a decision soon on whether this becomes Atkins’ next chapter – a grant seems reasonably likely.
That’s all for this week. Listen
New Relists
Bost v. Illinois State Board of Elections, 24-568
Issue
: Whether petitioners, as federal candidates, have pleaded sufficient factual allegations to show Article III standing to challenge state time, place, and manner regulations concerning their federal elections.
(relisted after the May 22 conference)
The GEO Group, Inc. v. Menocal, 24-758
Issue
: Whether an order denying a government contractor’s claim of derivative sovereign immunity is immediately appealable under the collateral-order doctrine.[the offender’s] [IQ](relisted after the May 22 conference)
Hamm v. Smith, 24-872
Issues[t]: (1) Whether, under a proper application of Atkins v. Virginia, a state can require a claimant to prove an IQ of 70 or less by a preponderance of the evidence; and (2) whether courts evaluating multiple IQ scores must find that every valid score of “about” 75 or less supports an Atkins claim.
(relisted after the May 22 conference)
Hencely v. Fluor Corporation, 24-924
Issue:
Whether Boyle v. United Technologies Corp. should be extended to allow federal interests emanating from the Federal Tort Claims Act’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders.
(relisted after the May 22 conference)
Returning Relists
Ocean State Tactical, LLC v. Rhode Island, 24-131Issues:
(1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use 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 of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17, April 25, May 2, May 15 and May 22 conferences. )
Snope v. Brown, 24-203Issue:
Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17, April 25, May 2, May 15 and May 22 conferences. )
First Choice Women’s Resource Centers, Inc. v. Platkin, 24-781Issue:
Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?
(Relisted after the April 4, April 17, April 25, May 2, May 15 and May 22 conferences. )
GHP Management Corp v. City of Los Angeles, California, 24-435Issue
: Whether an eviction moratorium depriving property owners of the fundamental right to exclude nonpaying tenants effects a physical taking.
(Relisted after the April 17, April 25, May 2, May 15 and May 22 conferences. )
Nicholson v. W.L. York, Inc. dba Cover Girls, 23-7490
Issue: Whether the continuing violations doctrine applies to claims premised on a pattern or practice of discrimination, or instead applies only in the context of hostile work environment claims.
(Relisted after the April 25, May 2, May 15 and May 22 conferences. )
Chambers-Smith v. Ayers, 24-584
Issue: Whether, when a person in state custody obtains new support for a previously available claim, that means she has a new “factual predicate” that restarts her clock to file a habeas petition under 28 U.S.C. SS2244(d)(1)(D).
(relisted after the May 15 and May 22 conferences. )
Case v. Montana, 24-624
Issue: Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.
(relisted after the May 15 and May 22 conferences. )
Meadors v. Erie County Board of Elections, 24-684
Issue: Whether the “capable of repetition, yet evading review” doctrine requires plaintiffs in election law cases to predict and articulate specific plans for their own future electoral participation, or instead it is sufficient to show that the challenged law will continue to affect voters and candidates in future elections. 01 )
Iowa Pork Producers Association v. Bonta, 24-728
Issues:
(1) Whether a party alleging that California’s Proposition 12, “which enacts a pork sales ban to regulate the manner in which pigs are housed in states across the country,” discriminates against interstate commerce, both directly and under Pike v. Bruce Church, states a claim; and (2) whether lower federal courts evaluating fractured opinions from the court consider all justices’ opinions to determine the majority position on a legal issue, or instead are limited to consider only opinions concurring in the result.(relisted after the May 15 and May 22 conferences. )
Posted in Cases in the Pipeline, Featured
Cases: Nicholson v. W.L. York, Inc. dba Cover Girls, Ocean State Tactical, LLC v. Rhode Island, Snope v. Brown, GHP Management Corp. v. City of Los Angeles, California, Bost v. Illinois State Board of Elections, Chambers-Smith v. Ayers, Case v. Montana, Meadors v. Erie County Board of Elections, Iowa Pork Producers Association v. Bonta, The GEO Group, Inc. v. Menocal, First Choice Women’s Resource Centers, Inc. v. Platkin, Hamm v. Smith, Hencely v. Fluor Corporation
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