John Elwood briefly reviews Monday’s relists.

Wow. It’s been a longweek. As if the coronavirus weren’t enough all on its own, there’s fresh newsofother disasters. By which I mean parents everywhere realizing their wish they could spend more time with their familiesmight actually be coming true.

My forecast last week that “we’ll be seeing opinions in some of th[e relisted cases] soon” turned out to be correct. The Supreme Court summarily reversed in Davis v. United States, 19-5421, invalidating the unique rule of the U.S. Court of Appeals for the 5th Circuit holding that factual error is categorically immune from plain error review. It took the court just two paragraphs of analysis to dispatch it. The court then GVR’d (granted, vacated and remanded) in two cases raising the same issue, Bazan v. United States, 19-6113, and Bazan v. United States, 19-6431. You aren’t having some quarantine-induced mental breakdown: Both cases involve the same defendant. Finally, the court denied review in Avery v. United States, 19-633,involving a similarly atextual rule. Section 2244(b)(1) of Title 28 creates a rule covering applications by state prisoners for habeas relief under 28 U.S.C. § 2254. Yet six courts of appeals have interpreted the statute to cover applications filed not just by state prisoners under Section 2254, but also by federal prisoners under Section 2255, which the statute does not mention. Justice Brett Kavanaugh wrote an opinion respecting denial to emphasize that “the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor,” and essentially warned the Justice Department to start confessing error now, writing “[i]n a future case, I would grant certiorari to resolve the circuit split.”

There are three new relists this week, but the first two grow out of a single incident. There are a lot of moving parts in Brownback v. King, 19-546, and King v. Brownback, 19-718, so pay as much attention as your squalling children and blaring smoke detector permit. Douglas Brownback was an FBI special agent; Todd Allen was a detective with the Grand Rapids, Michigan, police department. Both worked for an FBI-directed fugitive task force. James King, who is of broadly the same height (within a five-inch range), build (“thin”) and age (within five years) as a known fugitive, had the misfortune to buy a soda from a particular gas station during the same two-hour period when the fugitive usually did so. Brownback and Allen, wearing plain clothes but with badges on lanyards, stopped King and had him put his hands on his head. They removed a pocketknife from his pocket, but when they also removed his wallet, King asked, “Are you mugging me?” and began running. What apparently followed was some tackling (of King), some biting (by King), and a whole lot of punching (by a bitten Allen). Michigan charged King with assault with intent to do great bodily harm, aggravated assault of a police officer and resisting arrest, but a jury acquitted him.

King then sued the United States under the Federal Tort Claims Act, which is a limited waiver of sovereign immunity allowing claimants to sue the federal government for “negligent or wrongful act[s] or omission[s]” if a private person would have been liable under those circumstances under state law. King also sued the federal government for constitutional violations on individual-capacity claims against the agents under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and under 42 U.S.C. § 1983. The district court entered judgment for the federal government on the FTCA claims because the actions were taken within the scope of the agents’ authority in good faith, denied the Section 1983 claims on the ground that the statute applies only to state officials and the FBI was running the show here (even for the state agents), and denied the Bivens claim on the merits on the ground that the police had not violated King’s constitutional rights.

King did not appeal his FTCA claims — only his Bivens and Section 1983 claims against the individual officers. The officers argued (through their government lawyers) that the claims were barred by the act’s “judgment bar,” which provides that “the judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” A majority of the U.S. Court of Appeals for the 6th Circuit concluded that because King had not adequately pleaded all the elements of an FTCA claim in district court, that court never had jurisdiction over the claim, and, as a non-merits disposition, the district court’s decision did not trigger the judgment bar. The majority then concluded that the claim was properly brought under Bivens and not Section 1983 because the conduct was fairly attributable to the FBI and not the state of Michigan. The court also determined that the officers were not entitled to qualified immunity under Bivens. Judge John Rogers (who apparently ties judge Jeffrey Sutton as the 6th Circuit’s most prolific judge) dissented on the grounds that the Bivens claims were precluded by the FTCA’s judgment bar.

Are you still here? I guess people really are hard-up for entertainment during the quarantine. In any event, the federal government sought review, and King filed a conditional cross-petition. The government argues that the final judgment in favor of the United States under the FTCA should bar the Bivens claims. King argues that Allen’s membership in a joint state-federal task force does not preclude him from acting “under color of state law” for purposes of being liable under Section 1983.

The third relist requires way less wind-up. Priscilla Daydee Valdez put an acquaintance in Mexico in touch with someone she knew in Tucson, Arizona, to buy ammunition. Valdez transferred money between the two and then traveled to the store, where her Tucson acquaintance bought 10,000 rounds of ammunition in a transaction I’m confident the clerk thought was completely above-board. They then drove to a spot near the Mexican border and left the car for a time, returning to an empty car after receiving a call that the car was “ready.” Valdez pleaded guilty to charges of attempting to export ammunition, which included a forfeiture count. Although the relevant firearm statute, 18 U.S.C. § 924, provides only for forfeiture of ammunition used in a federal offense, other statutes, namely 21 U.S.C. §§ 853(a) and 2461(c), provide for the forfeiture of “any other property of the defendant” if, as a result of any act or omission of the defendant, the forfeitable property is unavailable. The district court ordered Valdez, who is indigent, to forfeit money of her own because the forfeitable ammunition had disappeared, and the U.S. Court of Appeals for the 9th Circuit affirmed.

Valdez seeks review, arguing that the government can require her to forfeit substitute property only if the original forfeitable property was also hers, and the ammunition here was not. If we have learned anything from the relists and opinions in Davisand Avery, and for that matter the relist in Brownback, it’s that the justices take the wording of provisions seriously. They’re undoubtedly taking a very close look at the forfeiture statutes here.

That’s all this week. Everyone enjoy your familytime!