November 20, 2024 | Volume 32, Issue 2
This Report summarizes an opinion issued on November 4, 2024 (Part I); and cases granted review on October 21 and November 4, 2024 (Part II).
OPINIONS
Hamm v. Smith, 23-167.
In a per curiam opinion, the Court granted the petition, vacated the Eleventh Circuit’s order affirming the vacatur of respondent Joseph Smith’s death sentence, and remanded the case for further consideration. Smith was convicted and sentenced to death for murdering Durk Van Dam. He challenged his death sentence on the basis that he was intellectually disabled and therefore ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002). Under Alabama law, an individual is considered intellectually disabled if he has an IQ of “70 or below,” shows that he has “significant or substantial deficits in adaptive behavior,” and shows “the onset of those qualities during the developmental period” of his life. Smith presented five “full-scale” IQ scores, which ranged from 72 to 78. After an evidentiary hearing, the district court found that, taking into consideration the standard error, Smith’s lowest IQ score of 72 could reflect a true IQ of 69. That finding drove the district court to consider in detail the other two factors relevant to an intellectual-disability claim—adaptive deficits and onset during the developmental period. The district court concluded that Smith was intellectually disabled, and vacated Smith’s sentence. The Eleventh Circuit affirmed. 67 F.4th 1335.
The Eleventh Circuit noted that, under Hall v. Florida, 572 U.S. 701, 723 (2014), a defendant must be permitted “to present additional evidence of intellectual disability, including testimony regarding adaptive deficits,” if he presents an IQ test score “within the test’s acknowledged and inherent margin of error.” And under Moore v. Texas, 581 U.S. 1, 14 (2017), a defendant whose IQ score “falls at or below 70” when “adjusted for the standard error of measurement” is entitled to present evidence of deficits in adaptive functioning.” Relying on these background principles, the Eleventh Circuit noted the district court’s finding that Smith’s IQ could be “as low as 69” given the standard error; and the district court had also determined, after reviewing dueling experts’ testimony, that Smith’s lowest score could not be “thrown out as an outlier.” The Eleventh Circuit held that the district court had properly applied Hall and Moore and had not clearly erred in determining that Smith had shown “significantly subaverage intellectual functioning.”
The Commissioner of Alabama’s Department of Corrections sought certiorari, asking the Court to review two questions: first, “[w]hether Hall and Moore mandate that courts deem the intellectual-functioning prong satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below”; and second, “[w]hether the Court should overrule Hall and Moore or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.”
After rescheduling and relisting the petition many times, the Supreme Court granted the petition and vacated the Eleventh Circuit’s order. In a very short opinion, the Court first noted that Hall dictates that “‘when a person has taken multiple tests, each separate score must be assessed’ considering the standard error of measurement.” The Court has not, however, told lower courts how they “should evaluate multiple IQ scores” for purposes of intellectual-disability claims. The Court then explained that the Eleventh Circuit’s opinion was open to two interpretations. If the panel had “afford[ed] conclusive weight” to Smith’s low-end adjusted score being 69, then it may have applied “a per se rule that the lower end of the standard-error range for an offender’s lowest score is dispositive.” It was also possible, however, to read the panel’s opinion as taking “a more holistic approach to multiple IQ scores.” Because it was “unclear” which interpretation of the opinion was correct, the Court vacated and remanded for the Eleventh Circuit to clarify “the basis for” its decision.
Justices Thomas and Gorsuch would have granted the petition and set the case for argument.
CASES GRANTED REVIEW
Louisiana v. Callais, 24-109; Robinson v. Callais, 24-110.
In these consolidated cases, the Court will review a decision by a three-judge district court holding that a map that created a second majority-Black congressional district in the State of Louisiana was an unconstitutional racial gerrymander. Louisiana passed a redistricting plan in 2022 based on the results of the 2020 census. Under the 2022 map, only one of the state’s six congressional districts was a majority-Black district even though, based on the 2020 census, a third of the population is Black. Black voters immediately challenged this plan. In Robinson v. Ardoin, 605 F. Supp. 3d 759 (M.D. La. 2022), the district court preliminarily enjoined the map, holding that Louisiana likely violated Section 2 of the Voting Rights Act (VRA) by failing to create a second majority-Black congressional district. Following the decision in Allen v Milligan, 599 U.S. 1 (2023), the Fifth Circuit affirmed and gave the legislature a small window of time to adopt a remedial plan or go to trial. The Louisiana legislature then adopted S.B. 8 in early 2024, which drew a map with a second majority-Black district to comply with Section 2 of the VRA. The map was also designed to protect political incumbents. The Callais plaintiffs (appellees in both cases) sued the Louisiana Secretary of State in district court alleging that S.B. 8 is an unconstitutional racial gerrymander in violation of the Equal Protection Clause. Louisiana, through its Attorney General, intervened as defendant, along with the previous Robinson plaintiffs, to defend the constitutionality of S.B. 8. A divided three-judge district court agreed with the plaintiffs. 2024 WL 1903930.
The district court found both circumstantial and direct evidence of racial motive in the creation of S.B. 8, and that Louisiana’s proffered alternative political goals could have been achieved through other means. Next, the court found that even assuming compliance with the VRA was a compelling interest for the state to attempt to create a second majority-Black district, the redrawn districts were not sufficiently narrowly tailored to survive strict scrutiny. The court reasoned that the state “simply has not met its burden of showing that District 6 satisfies the first Gingles factor—that the ‘minority group is sufficiently large and geographically compact to constitute a majority in a reasonably configured district.’” In its view, S.B. 8 also “fails to comport with traditional districting principles.” The district court enjoined the use of the S.B. 8 map for any election. A divided Supreme Court entered an emergency stay in May 2024, which permitted the state to use S.B. 8 in the 2024 election. Louisiana and the Robinson plaintiffs then appealed the decision of the district court to the Supreme Court.
In its appeal, Louisiana urges the Court to intervene because otherwise “the State will be sued again no matter what it does.” It argues that under the Court’s precedents, plaintiffs’ burden in challenging S.B. 8 is to prove that “race was the predominant factor motivating the legislature’s decision.” According to Louisiana, this “flexible standard ensures that State legislatures have breathing room between the competing hazards of liability under the Voting Rights Act and the Equal Protection Clause.” And under this standard, Louisiana contends, the “predominant factor motivating the Legislature’s decision to enact S.B. 8 was an order from the Middle District of Louisiana, followed by an affirmance from a unanimous Fifth Circuit panel, each holding that, unless two of the State’s six congressional districts are majority-Black, the State would likely violate Section 2 of the VRA.” Indeed, notes the state, “[b]y the majority’s logic, a State could never survive a predominance analysis when attempting to remedy a VRA violation by drawing a required majority-Black district.”
Louisiana further argues that even if it could be demonstrated that race motivated the redistricting lines, S.B. 8 would still survive strict scrutiny because its enactment served the compelling interest of compliance with the VRA. Louisiana states that “no one disputes that the State has a compelling interest in complying with the VRA,” and there is no “serious dispute that S.B. 8 is narrowly tailored to achieve that interest.” Louisiana faults the district court majority for “ignor[ing] the reality that it is impossible to draw a second majority-Black district in Louisiana that looks ‘better’ than District 6 in the S.B. 8 map.” And Louisiana faults the district court for applying the Gingles factors, which it says “are a creature of this Court’s VRA Section 2 jurisprudence,” which “comprise a Section 2 plaintiff’s burden ‘for proving vote dilution’ under Section 2. They are generally thus fish out of water in, as here, the racial-gerrymandering context.” (Citation omitted.)
Louisiana closes by asserting that “the foregoing analyses demonstrate that this case is a poster child for why constitutional racial-gerrymandering and vote-dilution claims are non-justiciable.” Asserts the state: “This case illustrates this ‘lose-lose situation.’ The Legislature had to consider race in seeking to remedy the perceived Section 2 violation identified by the Middle District and the Fifth Circuit. And that is what the legislators did when they sought to carry out the Robinson courts’ mandate. By the lights of the majority below, however, the Legislature considered race too much. But, if the majority were correct, how could the Legislature know when its consideration of race exceeded the ‘just enough’ threshold?”
The Callais plaintiffs argue that Shaw v. Reno, 509 U.S. 630 (1993), which held that redistricting based on race must be held to a standard of strict scrutiny, applies to S.B. 8 because it was wholly motivated by a racial quota of two Black-majority seats. Both the legislature and the state’s attorney general, Callais claims, conceded that “a racial quota of two Black-majority seats was Louisiana’s prime and uncompromisable criterion.” Callais then argues that S.B. 8 could not survive strict scrutiny because the new map was motivated by the state’s political and litigation strategy, rather than the requirements of the VRA. Under Callais’ view, the district court properly reviewed combined claims and defenses under the Equal Protection Clause and VRA, and ordered a remedy on a full record that adequately considered both legal frameworks.
Oklahoma v. EPA, 23-1067; Pacificorp v. EPA, 23-1068.
In these consolidated cases, the Court will decide the proper federal forum for challenges to the Environmental Protection Agency’s actions under the Clean Air Act (CAA), relating specifically to disapprovals of ozone-transport state implementation plans (SIPs). The CAA creates a cooperative federalism regime to regulate air pollution whereby EPA establishes national ambient air quality standards (NAAQS) for pollutants and states then develop programs to regulate air quality to meet the NAAQS. A state meets its CAA responsibilities by creating a SIP that satisfies the interstate-transport requirements of §110 of the CWW. This “good neighbor provision” provides that “upwind States” must “reduce emissions to account for pollution exported beyond their borders” that “contribute significantly” to downwind states’ compliance. EPA reviews and approves or disapproves each state’s proposed SIP on an individual basis. The CAA sets forth the appropriate venue for challenging certain EPA actions, including EPA decisions on SIPs submitted by states. Challenges to “locally or regionally applicable” actions “may be filed only in the United States Court of Appeals for the appropriate circuit” whereas a “nationally applicable” action (or an action where EPA makes a valid determination of “nationwide scope or effect”) may be filed only in the D.C. Circuit.
In 2015, EPA lowered the NAAQS for ground-level ozone, triggering states’ duties to develop and submit SIPs to meet the new standard within three years. Utah and Oklahoma submitted their SIPs; EPA proposed disapprovals of both SIPs in 2022. In 2023, EPA issued its final disapprovals of Utah and Oklahoma’s SIPs along with disapprovals of 19 other SIPs and a deferral on two other states’ SIPs within a single Federal Register notice. In the same Federal Register notice, EPA provided that any challenges to any of its SIP disapprovals must be filed in the D.C. Circuit because EPA’s actions were “nationally applicable” or, in the alternative, because EPA had made a finding of “nationwide scope or effect.”
Utah and Oklahoma (petitioners in 23-1067) filed separate petitions for review in the Tenth Circuit challenging EPA’s disapproval of their SIPs. Affected industry groups in Utah and Oklahoma (petitioners in 23-1068) separately filed petitions for review in the Tenth Circuit. The Tenth Circuit consolidated Oklahoma and Utah’s petitions with the related challenges from industry groups. In the decision below, the Tenth Circuit held that the D.C. Circuit is the proper forum for the challenges brought by petitioners. 93 F.4th 1262. According to the Tenth Circuit, “the nature of the agency’s final action” being challenged was “a final rule disapproving [state plans] from 21 states across the country—spanning eight EPA regions and ten federal judicial circuits.” The court reasoned that EPA’s packaged actions are thus “nationally applicable” because EPA disapproved the states’ SIPs while “appl[ying] a uniform statutory interpretation and common analytical methods, which required the agency to examine the overlapping and interwoven linkages between upwind and downwind states in a consistent manner.” The Tenth Circuit thereafter transferred the challenges to the D.C. Circuit.
Petitioners argue that EPA’s disapprovals of Utah’s SIP and Oklahoma’s SIP are “locally or regionally applicable” actions requiring them to be venued in the Tenth Circuit. According to petitioners, the “relevant actions” for purposes of venue analysis are EPA’s “various SIP denials,” because under the CAA the EPA must separately consider and approve or disapprove each state’s SIP. Petitioners urge the Court to reject EPA’s attempt to use a certain publishing method to “throw[] a blanket labeled ‘national’ over 21 individual decisions rejecting 21 separate [SIPs]” and to instead recognize that the relevant unit of administrative action here is the individual denials. Petitioners note that ten other states and/or their local industries have challenged EPA’s disapprovals of their ozone-transport SIPs in their regional circuits, and a clear circuit split has emerged as to the question presented here. According to the state petitioners, this circuit split has created an “irreconcilable legal incongruity” where certain states like Oklahoma and Utah are forced to litigate in the D.C. Circuit, while other states are litigating their local ozone issues in their regional circuits.
EPA v. Calumet Shreveport Refining, LLC, 23-1229.
This case raises a similar issue as in Oklahoma v. EPA, 23-1067; Pacificorp v. EPA, 23-1068, in the context of challenges by small oil refineries seeking exemptions from the requirements of the Renewable Fuel Standard (RFS) program. The RFS program established under the Clean Air Act (CAA) provides that transportation fuel sold or introduced into commerce in the United States must contain specified volumes of renewable fuel. To implement the program, the Environmental Protection Agency sets renewable-fuel targets as a percentage of overall transportation fuel projected to be sold in the upcoming year and adopts regulations that apply to refineries that produce transportation fuel. An entity qualifying as a small refinery may obtain exemptions from RFS program requirements where compliance would cause the refinery to experience disproportionate economic hardship. A small refinery that is denied an exemption may challenge that “final action” directly in a court of appeals. As discussed above, under the CAA the D.C. Circuit is the exclusive venue for review of final actions that are “nationally applicable” or, in the alternative, actions “based on a determination of nationwide scope or effect.” Conversely, a petition for review of an action that is “locally or regionally applicable” is generally “filed only in the United States Court of Appeals for the appropriate circuit.”
In a pair of final actions issued in 2022, EPA denied 105 petitions filed by small oil refineries seeking exemptions from the requirements of the RFS program. Six of those refineries petitioned for review of EPA’s decisions in the Fifth Circuit, which then denied EPA’s motion for transfer to the D.C. Circuit. 86 F.4th 1121. The court held that the denial actions are “locally or regionally applicable” because their “legal effect” is limited to the petitioning refineries and they do not “bind[] EPA in any future adjudication.” The court further held that neither denial action is “based on a determination of nationwide scope or effect” because there was still a chance EPA would grant small refinery petitions based on “data and evidence” about the particular refineries’ circumstances. On the merits, the Fifth Circuit found the denials unlawful.
EPA argues that the Fifth Circuit decision undercuts the CAA’s clear congressional preference for “uniform judicial review of regulatory issues of national importance.” EPA notes that other small refineries petitioned for review of their denial actions in other regional circuit courts, all of which either dismissed the petitions without prejudice based on improper venue or transferred them to the D.C. Circuit. According to EPA, the D.C. Circuit is the proper venue because the two denial actions apply a uniform methodology to small refineries across the country, making them “nationally applicable.” In the alternative, argues EPA, even if the actions are “locally or regionally applicable,” the actions were based on determinations of nationwide scope or effect because the agency based its decisions on an interpretation of the statutory text and an economic analysis that are “applicable to all small refineries no matter the location or market in which they operate.”
Esteras v. United States, 23-7483.
As the petition puts it: “The supervised-release statute, 18 U.S.C. §3583(e), lists factors from 18 U.S.C. §3553(a) for a court to consider when sentencing a person for violating a supervised-release condition. In that list, Congress omitted the factors set forth in section 3553(a)(2)(A)—the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. The question presented is: Even though Congress excluded section 3553(a)(2)(A) from section 3583(e)’s list of factors to consider when revoking supervised release, may a district court rely on the section 3553(a)(2)(A) factors when revoking supervised release?”
The federal criminal code provides that sentencing courts “may” (or “shall,” in certain circumstances) “include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. §3583(a). Once imposed, supervised release can be modified or revoked as prescribed in §3583(e). That provision states in relevant part that “[t]he court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release . . ., if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release[.]” 18 U.S.C. §3583(e), (e)(3). The cross-referenced section, 3553(a), contains “[f]actors to be considered in imposing a sentence.” Although §3583(e) lists several paragraphs of §3553(a) as containing factors for the court to consider in a supervised-release revocation proceeding, it omits paragraph (a)(2)(A). The factor referenced in that subsection is “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. §3553(a)(2), (a)(2)(A).
Petitioner Edgardo Esteras, and his co-petitioners Timothy Jaimez and Toriano Leaks, were each sentenced to a term of supervised release. In each case, the district court found that the petitioner had violated supervised-release conditions. The courts accordingly revoked the supervised-release terms and imposed incarceration. Petitioners allege that in making their revocation decisions the courts improperly “relied on one or more of the factors” in §3553(a)(2)(A). In Esteras’ case, the court referred to revocation as “punishment” and mentioned the need to “promote respect for the law.” In Jaimez’s case, the court “expressly considered the seriousness of the violation conduct and the need to promote respect for the law.” And in Leaks’ case, the court referenced the need for “punish[ment].” Each of the petitioners appealed to the Sixth Circuit, arguing that the district courts improperly considered §3553(a)(2)(A) factors. The Sixth Circuit decided Esteras’s case first. It affirmed, holding that district courts in revocation proceedings may consider §3553(a)(2)(A) factors even though §3583 omits reference to that paragraph. 88 F.4th 1163. The court noted that §3583(e) “never says that the court may consider ‘only’” the factors listed in the cross-referenced portions of §3553(a). Following circuit precedent, the court further reasoned that a “bright-line rule” excluding the §3553(a)(2)(A) factors would be “unworkable” for several reasons, including because those factors “tend to be ‘essentially redundant’” with other §3553(a) factors that the courts are expressly permitted to consider. (Citation omitted.) Later, in both Jaimez’s and Leaks’ cases, the Sixth Circuit relied on the reasoning in Esteras’ case to affirm.
Petitioners argue that the Sixth Circuit incorrectly interpreted §3583(e). As a textual matter, they argue that Congress intentionally meant to exclude reliance on the §3553(a)(2)(A) factors by omitting them from its list. Also, petitioners rely on Tapia v. United States, 564 U.S. 319, 326 (2011), which stated that under §3583(e)’s neighboring provision §3583(c)—a provision containing the same list of cross-references as §3583(e)—“a court may not take account of retribution (the first purpose listed in §3553(a)(2)) when imposing a term of supervised release.” (The government argues that Tapia’s statement on this issue was not a holding.) Petitioners also point to legislative history, which they claim shows that Congress did not want courts to use supervised-release revocation as a mechanism of punishment. Finally, petitioners argue that allowing consideration of §3553(a)(2)(A) factors would raise “serious constitutional questions.” Among these questions are potential double-jeopardy issues raised by using revocation of supervised release to “punish[]” defendants for conduct that could also give rise to a “separate prosecution.” In petitioners’ view, using revocation as punishment might also implicate petitioners’ Sixth Amendment jury-trial rights.
Riley v. Garland, 23-1270.
Under the Immigration and Nationality Act (INA), a noncitizen can be subject to removal after abbreviated proceedings if he was convicted of an aggravated felony. 8 U.S.C. §1228(b). The document issued after a finding that a noncitizen is subject to removal under §1228(b) is called a Final Administrative Removal Order (FARO). 8 C.F.R. 238.1(d). A noncitizen who is ordered removed under §1228(b) is ineligible for certain forms of relief from removal. But the noncitizen may pursue withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). A noncitizen may receive relief from removal under the CAT if he shows that being removed to the country designated in his removal order will likely result in his being tortured. If relief is denied, the noncitizen may seek review of the denial only in the federal courts of appeals under 8 U.S.C. §1252. See Nasrallah v. Barr, 590 U.S. 573, 580-81 (2020). A petition for review under §1252 “must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. §1252(b)(1). This case presents two questions related to that 30-day limitation.
Petitioner Pierre Riley, a citizen of Jamaica, has lived in the U.S. for many years. In 2021, he was found removable under §1228(b) because he had been convicted of an aggravated felony. The FARO was issued on January 26, 2021. Riley then sought deferral of removal under the CAT, arguing that he had a reasonable fear that he would be tortured or killed if returned to Jamaica. An immigration judge (IJ) granted Riley’s application for CAT relief. On May 31, 2022, however, the Board of Immigration Appeals (BIA) vacated the IJ’s order and ordered that Riley be removed to Jamaica. Four days later—on June 3, 2022—Riley petitioned for review of the BIA’s decision in the Fourth Circuit. The panel dismissed Riley’s petition for lack of jurisdiction. 2024 WL 1826979. It held that the January 26, 2021 FARO was the “final order of removal” from which Riley’s deadline should be measured. Thus, his petition was untimely because it was filed more than 30 days after the FARO was issued. The Fourth Circuit further held that the 30-day deadline in §1252(b)(1) was jurisdictional. Thus, missing the deadline meant Riley’s petition must be dismissed.
Riley sought certiorari, and the Supreme Court granted review limited to the questions presented by the government’s response brief. Those questions are (1) whether the 30-day deadline in §1252(b)(1) for filing a petition for review of an order of removal is jurisdictional and (2) whether a noncitizen satisfies the deadline by filing a petition for review challenging an agency order denying withholding of removal or protection under the Convention Against Torture within 30 days of the issuance of that order. Riley argues that the answer to the first question is no, and the answer to the second question is yes.
On the first question, Riley argues that the Fourth Circuit improperly read Stone v. INS, 514 U.S. 386, 405 (1995)—which held that “[j]udicial review provisions . . . are jurisdictional in nature”—to require a holding that §1252(b)(1)’s deadline is jurisdictional. Riley asserts that, by default, procedural rules like deadlines are non-jurisdictional, and Congress must speak clearly to deviate from that default presumption. He argues that Congress did not do so in §1252(b)(1). In support, Riley points out that Congress clearly stated in other parts of the statute that “no court shall have jurisdiction” over certain issues. He also relies on the Court’s recent decision in Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023), which held that an exhaustion requirement in the INA is non-jurisdictional. Riley urges that the logic of Santos-Zacaria applies here.
On the second question, Riley argues that because CAT deferral proceedings were still ongoing after the FARO was issued, his deadline should have been tied to the BIA’s May 31, 2022 order resolving the deferral proceedings against him rather than to the date of the FARO. In support, Riley points to 8 U.S.C. §1252(d)(1), which provides that a “final order of removal” may be reviewed by a court only if the noncitizen “has exhausted all administrative remedies.” Riley argues that he cannot have exhausted all remedies, and thus cannot be subject to a final order of removal, while administrative deferral proceedings are ongoing. Riley also cites appellate courts’ decisions and dictionary definitions that agree with his interpretation: “final” means “the last stage in the process.”
The government agrees with Riley on both issues. The Court will therefore likely appoint an amicus to defend the judgment below.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Mana Barari, Supreme Court Fellow
- Elizabeth Hedges, Supreme Court Fellow
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