Three Strikes, You’re Out: Weekly Brief for June 8

Disclaimer: No, none of the Supreme Court’s proceedings this week had anything to do with baseball. However, the Court did decide a civil procedure case involving a certain provision of the Prison Litigation Reform Act called the “three strikes” rule. Hence the image and title. Additionally, the Court added an immigration case to next term’s docket, and Justice Sotomayor wrote a short statement expressing alarm at the Eleventh Circuit’s habeas proceedings. Here’s your weekly brief about the Supreme Court.


This Week:
Decisions: 1
Cert Grants: 1
Opinions Relating to Orders: 1
GVRs: 2

O.T. 2019:
Cases Decided: 42
Cases Remaining: 19*
Weeks Left in Term: 3**

* This number does not include cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

** This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, O.T. 2019 may end later due to measures taken in response to COVID-19.



First thing Monday morning, the Court released an orders list. The Justices granted one (very arcane) case, Niz-Chavez v. Barr, which concerns immigration law. The petition asks about the formatting requirements for a “notice to appear” under 8 U.S.C. §1229(a), which, if served on a non-permanent resident (NPR), triggers the “stop-time” rule of the NPR’s accumulation of ten years’ continuous residence, as the Court recognized in Pereira v. Sessions (2018).

The Court granted, vacated, and remanded two cases: Shrinivas Sugandhalaya LLP v. Setty in light of GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC (decided last week); and Vogel v. United States in light of Banister v. Davis (also decided last week).

One cert denial elicited a statement from Justice Sotomayor. The Court turned down an appeal from Florida inmate Michael St. Hubert. St. Hubert had challenged the process by which the Eleventh Circuit Court of Appeals in Atlanta, GA reviews federal habeas petitions. In short, the Eleventh Circuit’s practice imposes a number of requirements supplemental to the procedure already laid out in the Antiterrorism and Effective Death Penalty Act of 1996.

In her statement, Sotomayor called the Eleventh Circuit’s scheme a “troubling tableau.” She questions whether the Eleventh Circuit’s process can be squared with the requirements of due process. However, she notes that the appeals court has yet to adjudge a due process claim directly. So, Sotomayor would wait to take up a case like St. Hubert’s until the Eleventh Circuit confronts such a case first. “In the meantime,” she adds, “nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative. “


The Court decided one case this week:

Lomax v. Ortiz-Marquez:
A fair word of warning: Civil procedure nuts will enjoy this case. All others probably will not. Another fair word of warning: My synopsis contains a number of baseball puns (as does the Court’s decision).

The Prison Litigation Reform Act of 1995 (PLRA) limits the number of times an inmate may file suit in forma pauperis (IFP), or without paying the normal docketing fee. The PLRA has a “three-strikes-you’re-out” rule. If an inmate has three IFP suits dismissed “on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” the inmate is barred from filing any more IFP suits (28 U.S.C. §1915(g)). Hence the title, “three strikes rule.”

Here, Arthur Lomax, a Colorado inmate, filed his fourth IFP suit. The Tenth Circuit Court of Appeals ruled that Lomax had struck out under §1915(g) since his three prior suits had all been dismissed for “failure to state a claim.” But Lomax appealed to the crew chief (the Supreme Court). He argued that two of those suits were actually foul-tips. Since those two suits were dismissed “without prejudice” (as opposed to with prejudice), he claimed they shouldn’t count as “strikes” under §1915(g).

But, after review, the Court determined that the call would stand; a dismissal for failure to state a claim, with or without prejudice, counts as a strike under §1915(g). Justice Kagan wrote the opinion for a unanimous Court.

Kagan begins with the text of §1915(g)—and ultimately goes no further. The statute is clear: a prisoner accrues a strike whenever an IFP suit is “dismissed on the ground[] that it . . . fails to state a claim upon which relief may be granted.” It covers all such dismissals (with or without prejudice), and it admits of no exceptions. Thus, a called-strike “hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect,” Kagan writes.

Consider it from the opposite point of view. Suppose the Court did choose to create a “without prejudice” exception to §1915(g). To do so, it would have to add language to the provision: for example, “dismissed with prejudice on the ground[] that it . . . fails to state a claim upon which relief may be granted.” Or, “dismissed on the ground[] that it . . . fails to state a claim upon which relief may be granted, unless such dismissal is without prejudice.” Either way, the Court would be “narrow[ing]” §1915(g)’s scope “by inserting words Congress chose to omit,” Kagan says. This the Court constitutionally cannot do.

Thus, the text of §1915(g) makes this case “an easy call,” Kagan concludes. Dismissal for failure to state a claim, with or without prejudice, counts as a “strike” under §1915(g).

(It should be noted that, while Kagan’s opinion was technically unanimous, Justice Thomas did reserve agreement on one particular footnote. Footnote 4 of Kagan’s opinion muses that §1915(g) is not implicated where a court grants a plaintiff leave to amend a complaint. Thomas, evidently, does not agree with this exception to §1915(g). Perhaps he thinks it is reading more into the statute than what it says. In any event, he does not explain his reservation.)


The Court held no proceedings on Tuesday and Wednesday.


On Thursday, the Court conducted its weekly, private (tele-)conference. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s orders list next Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Zadeh v. Robinson. This is one of several “qualified immunity” cases before the Supreme Court. The doctrine of qualified immunity applies in lawsuits against federal officials where the actions in question are discretionary actions performed within the exercise of their official duties. The doctrine has become contentious in cases where police are charged with using excessive force.
  • Hunt v. Board of Regents of the University of New Mexico. This is a First Amendment case which asks whether university disciplinary action for off-campus, political speech violates the Free Speech Clause of the First Amendment.
  • Ohio v. Ford. This is a capital case that asks what the proper standard is for determining whether a criminal defendant is “intellectually disabled” under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment bars a state from suing the leader of the protest for criminal negligence where the leader did not necessarily promote or instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.

The Court held no proceedings on Friday.

The Week Ahead

On Monday, the Court will release orders at 9:30am. There is a possibility of opinions at 10:00am. On Thursday, we may get more opinions, again at 10:00am. Then the Court will hold its next teleconference Thursday afternoon.

Photo Credits: (2013)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s