, the Federal Circuit erred in denying equitable tolling under the Veterans Employment Opportunities Act where the agency’s failure to respond to Freedom of | Information Act requests concealed evidence of its vi- | olation, thereby preventing the petitioner from effec-

tively pursuing his claim in violation of his right to ~

due process.

In 2022, Arizona enacted two laws to ensure that voters are United States citizens. Two nonprofit organizations sued, claiming that one of the laws was enacted with a discriminatory purpose. The district court held a trial, considered the factors outlined in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-68 (1977), and found no discriminatory purpose.

A Ninth Circuit panel vacated this finding. First, the panel majority held that one of the organizations had standing to challenge the law on behalf of its members because an unknown number of unidentified members “may be” injured by the law. Next, the panel majority held that the district court misapplied Arlington Heights by failing to consider the “totality of circumstances” surrounding the laws. The panel majority stated: “We conclude that the totality of the circumstances suggests the Voting Laws were the product of intentional discrimination.”

Judge Bumatay dissented. Kleven judges dissented from the denial of rehearing en banc.

The Questions Presented are:

1. Does Article III allow an organization to sue when an unknown number of its_ unidentified members “may be” injured, as the Ninth Circuit held below in conflict with at least seven other circuits?

2. Did the Ninth Circuit improperly reweigh evidence of discriminatory purpose while purporting to review the district court’s finding for clear error?

1. Did the Ninth Circuit Panel err in a federal habeas case where, following an ex parte contact during trial between multiple jurors and a key prosecution cooperating witness and her non-testifying friend one business day before the jury began deliberations, the friend vouched for the truthfulness of the cooperating prosecution witness and urged them to concentrate on certain prosecution evidence over other evidence, the Ninth Circuit Panel required the defendant to prove prejudice sufficient to grant a mistrial, rather than observing the presumption of prejudice and placing the burden on the prosecution to rebut that presumption and prove Jack of prejudice, as required by the clearly established Supreme Court precedents of Remmer v. United States, 347 U.S. 227 (1954), Mattox v. United States, 146 U.S. 140 (1892), Parker v. Gladden, 385 U.S. 363 (1966) and their progeny ?

2. Did the Ninth Circuit Panel err when it ruled in a federal habeas case that the Nevada Supreme Court’s decision in Meyer v. State, 119 Nev. 554 (2003), which created the state court rule described above that eliminated the presumption of prejudice and shifted the burden of proof from the prosecution to the defense contrary to this Court’s clearly established precedents, and which was used by the state court below to uphold the denial of two motions for a new trial, did not violate this Court’s precedents in Remmer f, supra, Mattox, supra, Parker, supra and their progeny?

3. Are the issues set forth above important questions of federal law that have not been, but should be, settled by this Court?

il

In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), this Court held that, in an illegal-reentry pros- ecution, the fact that the defendant’s waiver of the right to appeal the underlying removal order was “not considered or intelligent” marked a defect in the re- moval proceedings that “rendered direct review of the Immigration Judge’s determination unavailable.” Id. at 840-41. Congress codified that decision at 8 U.S.C. § 1326(d), which expressly allows defendants charged with illegal reentry to collaterally challenge the valid- ity of their underlying removal orders after demon- strating, among other things, that they “exhausted any administrative remedies that may have been available to seek relief against the order.” 8 U.S.C. § 13826(d)(1). Five circuits hold, consistent with Men- doza-Lopez, that an invalid waiver of the right to ap- peal an immigration judge’s decision renders admin- istrative remedies unavailable for purposes of Section 1326(d)(1). In these cases, by contrast, the Ninth Cir- cuit held that whether a defendant’s appeal waiver was “considered and intelligent” is “Immaterial” for purposes of Section 1326(d)(1).

The question presented 1s:

When a person waives the right to appeal an immi- eration judge’s removal order, but that waiver is inva- lid, has the person exhausted available admuinistra- tive remedies for purposes of satisfying Section 1326(d)(1)?

(1)

QUESTIONS PRESENTED

1. Whether the Fourteenth Amendment’s guarantee of due process is violated when a judge knowingly rules on the merits of a case while maintaining an undisclosed, ongoing financial partnership with | opposing counsel’s law firm, and then refuses to vacate those rulings after recusal.
2. Whether a State may constitutionally enforce a rigid jurisdictional deadline that bars any appellate review of a structural due-process violation when the litigant’s attorney becomes unable to practice law during the appeal window, fails to notify the litigant Lo of the judgment or deadline, and fails to file the appeal he had promised to file.
3. Whether recusal without vacatur satisfies due process when a judge’s disqualifying conflict existed at the time of ruling, the conflicted judgment remains operative, and successor courts rely on that judgment in subsequent litigation.

The Fair Labor Standards Act (“FLSA”) prohibits retaliation by an employer or “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. §§ 203(d), 215(a)(3), 216(b). Section 216(b) only authorizes private civil actions to claims against an “employer.” The questions presented are:

1. Whether 29 U.S.C. § 216(b) authorizes a private retaliation action against a person that did not employ the plaintiff?

2. Whether the FLSA authorizes adjudication of a time-barred misclassification claim to establish “employee” status for the secondary purpose of pursuing a third-party retaliation claim against a non-employer?

The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” This Clause guarantees a defendant the right to confront those “who ‘bear testimony’ against her.” Crawford v. Washington, 41 U.S. 36, 51 (2004). A witness’s testimony is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross- examination. Id., at 54. Confrontation Clause violations are reviewed for harmless error.

The following question 1s presented:

1. Whether a reviewing court can properly conclude a confrontation clause violation is harmless when it fails to consider the impact of the erroneously admitted evidence on the jury’s verdict?

i

i

he was black. In 2022, a unanimous panel of the Sixth Circuit granted

habeas corpus relief, ordering that a new penalty trial be conducted

within 180 days. The panel later granted the state 190 additional days.

When Ohio failed to retry the penalty phase within the allotted time, the district court granted the unconditional writ and ordered the vacatur of Mr. Akbar’s infirm death sentence and his “unconditional release” within five business days of February 29, 2024. Ohio took three months to vacate the death sentence. As of today, Mr. Akbar has remained in continuous physical custody for over 28 years and has not

been re-tried. One possible sentence he could receive at retrial is parole

eligibility after 25 years of imprisonment.

The questions presented are:

1. Where a sovereign fails to comply with a conditional writ of habeas corpus, does a district court’s subsequent order of “unconditional release” entitle the petitioner to actual physical release? See Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia & Thomas, JJ., concurring).

2. Where a sovereign fails to comply with an unconditional writ of habeas corpus, is the petitioner entitled to physical release without being subject to rearrest?

1 This petition arises from a capital habeas appeal and challenges, inter alia, the court of appeals’ refusal to bar a penalty phase retrial. Counsel continues to include the capital designation because the questions presented control Mr. Akbar’s risk of future execution by Ohio.

The Federal Land Policy and Management Act makes it a crime to “knowingly and willfully violate[] any… regulation” promulgated by the Secretary of the Interior under the Act. 43 U.S.C. § 1733(a). Be- sides that provision, the Act identifies no criminal con- duct. It merely instructs the Secretary to “issue regu- lations necessary to implement the provisions of [the] Act with respect to the management, use, and protec- tion of the public lands, including the property located thereon.” /d. The question presented 1s:

Whether § 17338(a) violates the nondelegation doc- trine by giving the Executive near-unfettered power to define what conduct is subject to criminal punish- ment?

(1)