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Daubert dust-up and AEDPA angst
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.Since our last post, the Supreme Court has continued its one-in, one-out approach to the relist rolls. Of the returning relisted cases, the justices granted review on just one, Crowther v. Board of Regents of the University System of Georgia, a Title IX case asking whether employees of federally funded schools may sue for sex discrimination in employment under Title IX or instead must proceed under Title VII’s more elaborate scheme. After two relists, the court called for the views of the solicitor general, who in a recently filed brief recommended a grant because there is a circuit split on the issue. The government was not so lucky with its petition in Pension Benefit Guaranty Corporation v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund. There, the court denied the government’s petition seeking review of a pension-law decision that could wind up costing the federal government, as pension guarantor, a bundle. Justice Brett Kavanaugh noted that he would have granted the petition.On to new business. There are 105 petitions and applications on the docket for this Thursday’s conference. Two are being considered for a second time.Daubert revisitedIn Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that under the Federal Rules of Evidence (and particularly Rule 702, governing the admissibility of testimony by expert witnesses), trial judges may admit expert opinions only if they are relevant and rest on a reliable foundation. In practice, that means courts examine the expert’s methods and reasoning – not simply the expert’s credentials – before letting the jury hear the testimony. Applying Daubert is one of the most consequential parts of pretrial procedure in cases involving experts.Today’s first relist presents a potential Daubert sequel. Union Carbide Corp. v. Sommerville asks how much gatekeeping Rule 702 requires after a 2023 amendment, which the Rules Advisory Committee said was undertaken “to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the [expert] admissibility requirements set forth in the rule.” The case began as a putative West Virginia medical-monitoring class action brought by Lee Ann Sommerville, who alleges that Union Carbide and Covestro emitted ethylene oxide from a South Charleston plant and thereby exposed nearby residents to an increased risk of cancer requiring diagnostic monitoring. Because Sommerville’s claim depends on proof of significant exposure, she offered environmental engineer Dr. Ranajit Sahu, who used an air-dispersion model to estimate exposure. The district court excluded Sahu’s testimony, finding that his inputs were “speculative” and rested on assumptions that did not accurately represent the plant’s operations; it later granted summary judgment. A divided panel of the U.S. Court of Appeals for the 4th Circuit reversed, holding that the district court had crossed the Daubert line by treating disputes over Sahu’s choice of source, emissions, meteorological, and background data as admissibility problems rather than matters for cross-examination and the jury. Citing circuit precedent, the majority held that “questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility of the witness’ assessment, not its admissibility.” Chief Judge Albert Diaz dissented, warning that an expert should not receive a “‘get-out-of-Daubert-free card’ simply because he uses an otherwise reliable modeling system.”The petitioners – represented by former Solicitor General Don Verrilli – say the 4th Circuit’s approach is precisely what the 2023 amendment to Rule 702 was meant to stop. They argue that challenges to an expert’s factual basis go to weight only after the court first finds, by a preponderance of the evidence, that “sufficient facts or data support” the expert’s opinion. They frame the case as a split between the U.S. Courts of Appeals for the 1st and 4th Circuits on one side and the 5th, 6th, 8th, 9th, and Federal Circuits on the other. Numerous industry and think-tank amici have filed friend-of-the-court briefs amplifying the theme that the decision weakens Daubert gatekeeping. Sommerville responds that the petitioners have dressed up a factbound abuse-of-discretion ruling as a circuit split – every circuit, she argues, permits exclusion of expert opinions that lack record support or fail to reliably bridge data and conclusions.In addition to the usual choice the Supreme Court faces between granting cert and denying, it could take the intermediate step of asking for the solicitor general’s views on the application of Rule 702 and Daubert here; it has done so in other cases raising such issues within the past few years.Summary reversal baitWalters v. Coleman arises from a single terrible day in and around Roanoke, Virginia, in March 2011. Christopher Coleman – an Iraq and Afghanistan veteran on leave from the army with PTSD and traumatic brain injury – committed three violent attacks in the Roanoke, Virginia area. He held a woman at gunpoint for two hours, eventually shooting her and leaving her partially paralyzed; after being released on bond for that offense, he attempted to run over the woman’s mother with his truck; and later still, he and a companion beat a stranger in a bar so severely that the man required surgery. Two Virginia courts sentenced Coleman to a total of 28 years of active imprisonment (18 additional years of imprisonment were suspended).Coleman later argued that his sentencing counsel failed to present readily available mitigating evidence about his combat service, PTSD, traumatic brain injuries, and lack of juvenile criminal history. The state habeas court rejected that ineffective-assistance claim; the federal district court denied relief as to one judgment and dismissed the other challenge as untimely. A divided 4th Circuit panel reversed, concluding in a remarkable 99-page opinion that Coleman had shown constitutionally ineffective assistance of counsel under Strickland v. Washington and ordering “plenary resentencing” on both sets of convictions. Judge Allison Jones Rushing dissented, saying “the majority disregards AEDPA [the law governing habeas claims] at every turn” and had committed “an egregious overreach into the operation of Virginia’s criminal courts.”Virginia, represented by private counsel (a former Virginia solicitor general), now seeks Supreme Court review. Virginia argues that the 4th Circuit committed two familiar transgressions under federal habeas: it failed to defer to state courts under AEDPA, and it granted relief beyond the issues Coleman himself presented. The state says the panel improperly reviewed the state-court habeas ruling de novo (anew) based on a supposed legal-standard error Coleman had not argued. It also says the 4th Circuit had no authority to disturb the Roanoke County judgment because Coleman did not appeal the district court’s ruling that his federal challenge to that judgment was time-barred. Coleman’s opposition (which is a scant six pages long) casts the petition as mere error correction and urges the court not to miss “the forest for the trees”: in his telling, counsel’s failures led the sentencing judge to believe, wrongly, that Coleman had not been injured in the military, had a juvenile criminal record, and was lying about both. He also emphasizes that the 4th Circuit’s de novo discussion was accompanied by an alternative holding that the state decision was unreasonable even under AEDPA. For good measure, he alleges that the Director of the Virginia Department of Corrections wrote the state court’s habeas decision, which was adopted verbatim.The Supreme Court is unquestionably taking a close look at this one. The justices recently reversed the 4th Circuit twice in AEDPA cases for failure to defer to state-court judgments in Clark v. Sweeney and Klein v. Martin – the former also involving a “party presentation” issue (that courts may rely only on arguments presented to them) similar to the one raised here.That’s all for this week. Check back on Monday to see whether the court serves up a grant, a summary reversal, or just another helping of relist purgatory.New RelistsWalters v. Coleman, 25-867Issues: (1) Whether the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act and the party-presentation principle by granting habeas relief based on its de novo review of the state court’s decision; and (2) whether the 4th Circuit violated AEDPA and the party-presentation principle by granting habeas relief on a state-court judgment that was not before it.(Relisted after the May 14 conference.)Union Carbide Corp. v. Sommerville, 25-919Issue: Whether, under Federal Rule of Evidence 702, challenges to the factual basis of an expert witness’s testimony always go to the weight of the evidence rather than to admissibility, as the 1st and 4th Circuits hold, or whether such challenges go to weight only if a court first finds it more likely than not that an expert has a sufficient basis to support the testimony, as the 5th, 6th, 8th, 9th, and Federal Circuits hold.(Relisted after the May 14 conference.)Returning RelistsGator’s Custom Guns, Inc. v. Washington, 25-153Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Duncan v. Bonta, 25-198Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices 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.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Viramontes v. Cook County, 25-238Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)National Association for Gun Rights v. Lamont, 25-421Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Grant v. Higgins, 25-566Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Reinink v. Hart, 25-179Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Whitton v. Dixon, 25-580Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Florida v. California and Washington, 22-O-162Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses (CDLs) “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)City of Los Angeles v. Estate of Hernandez, 25-538Issue: (1) Whether the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)Florida v. California and Franchise Tax Board of California, 22O163Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)New York Football Giants v. Flores, 25-790Issue: Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)Alabama v. Sykes, 25-847Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)Alabama v. Powell, 25-848Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)E.D. ex rel. Duell v. Noblesville School District, 25-906Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)Smith v. Kind, 25-943Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.(Relisted after the Apr. 17, April 24, May 1, and May 14 conferences.)McCarthy v. Hernandez, 25-748Issues: (1) Whether the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.(Relisted after the Apr. 24, May 1, and May 14 conferences.)Margolin v. National Association of Immigration Judges, 25-767Issues: (1) Whether the decision below – in which the court of appeals held, without notice to or briefing by the parties, that the Civil Service Reform Act of 1978 does not preclude suit in district court when “a factual record” shows that the CSRA is not “function[ing] as intended” – should be summarily reversed for violating the party-presentation principle; and (2) whether the decision below should be summarily reversed for failing to adhere to this court’s precedents holding that the CSRA generally precludes challenges to federal personnel actions in district court.(Relisted after the Apr. 24, May 1, and May 14 conferences.)National Association of Immigration Judges v. Margolin, 25-1009Issue: Whether the Civil Service Reform Act impliedly strips federal district courts of jurisdiction over a pre-enforcement challenge to a broad prior restraint on the speech of federal employees, even where: (a) the challenge could not be raised at all under the CSRA’s review scheme; (b) the CSRA’s review scheme would not guarantee judicial review of the challenge in any event, because the availability of judicial review would turn entirely on agency officials’ unfettered and unreviewable discretion; and (c) any judicial review would come too late to remedy the “here-and-now” injuries caused by the prior restraint.(Relisted after the Apr. 24, May 1, and May 14 conferences.)
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