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There was an odd, one paragraph per curiam in the case of Williams v. Johnson, attached to today’s orders.

PER CURIAM.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judg- ment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for considera- tion of petitioner’s Sixth Amendment claim under the standard set forth in 28 U. S. C. §2254(d).

It is so ordered.

You may recall that this case was already before the Court, and was decided, 9-0, on February 20, 2013. The Judgement of the 9th Circuit was reversed and remanded, but there was some confusion about whether William’s habeas petition should be denied.

On remand, the 9th Circuit Panel (Reinhardt, Kozinksi, and Whyte) dismissed the petition.

In accordance with the Supreme Court’s opinion of February 20, 2013 as well as the resulting judgment, and taking note of the denial of a petition for rehearing on April 15, 2013, the district court’s denial of Williams’s habeas petition is AFFIRMED

But both Reinhardt and Kozinski concurred, noting it was unclear what SCOTUS really meant.

Reinhardt wrote:

I agree that we are likely required to deny Tara Williams’s habeas petition. I write to provide the parties, to the extent possible, an explanation of why we hold that our authority to address this question has been foreclosed by the Supreme Court. The Supreme Court’s opinion, on its face, creates substantial uncertainty as to this court’s duty on receiving the mandate on remand, and specifically whether it remains open for us to decide Williams’s petition under the restrictive AEDPA standard of review—in short, to answer the question whether her conviction violated the Constitution. At the end of the introduction to the Supreme Court’s opinion, it states that Williams’s federal constitutional claim had been adjudicated on the merits in the state court, and therefore that the restrictive AEDPA standard of review applies to her habeas petition. It goes further, however, and states without explanation “that under that standard respondent is not entitled to habeas relief.” Johnson v. Williams, 133 S. Ct. 1088, 1091–92 (2013). ….

Several justices stated that they found the trial judge’s treatment of the case “very troublesome” or leaving them “deeply troubled.” Tr. of Oral Arg. at 18–19, 21. I strongly share their view that the trial judge’s actions abrogated a central tenet of the right to a trial by jury—the inviolate secrecy of jury deliberations—and deprived Williams of the fair trial to which she was entitled. …

We are, of course, required to follow the mandate of the Supreme Court. We are also required to assume that the Court meant what it said in the introduction to its opinion, in which it appears to have denied Williams’s habeas claim, and that it fully considered the petition for rehearing when it refused to reconsider its decision. Given the introduction to the Court’s opinion, and particularly its denial of the petition for rehearing, I believe that we have no option but to conclude that the Court has deliberately precluded us from considering the merits of Williams’s habeas petition under AEDPA. Accordingly, uncomfortable as I am with that result, I respectfully join my colleagues in denying Williams’s petition.

Likewise, Chief Judge Kozinski was uncertain of what to do:

Like Judge Reinhardt, I’m troubled by the Supreme Court’s treatment of Williams’s Sixth Amendment claim. Our confidence in the correctness of a guilty verdict in a criminal case rests in large part on the fact that 12 individuals, fairly chosen, unanimously agree that the defendant is guilty. In Williams’s case, there was a significant departure from this objective process. As  documented by the trial transcript, the Superior Court appears to have removed a juror because he was holding out for acquittal. As several Justices noted at oral argument in the Supreme Court, such conduct by a trial judge is troubling. It cuts at the heart of our adversary system and casts doubt on the resulting verdict. If the trial judge may, during the course of deliberations, delve into the thought process of the jurors and remove those he disagrees with, our confidence in a unanimous verdict is necessarily diminished.

…

I hope I’m wrong, but can see no other way to read the Court’s actions. Deference to the judicial hierarchy leaves room for no other course of action on our part. But I take comfort in knowing that, if we are wrong, we can be summarily reversed.

So, both Reinhardt and Kozinski were correct. And, it took an IFP petition to correct this error. What a fascinating story. The Court’s mandates are always so vague, even in a 9-0 case. I’m glad this was fixed up.

Today in its final orders of the term, the Court GVR’d two cases:

AMBASSADOR SERVICES, INC. V. NLRB The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit For further consideration in light of NLRB v. Noel Canning, 573 U. S. ___ (2014).

NLRB V. GESTAMP SOUTH CAROLINA LLC The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit For further consideration in light of NLRB v. Noel Canning, 573 U. S. ___ (2014).

Each of these cases involved a challenge to the NLRB’s lack of a quorum.

From Ambassador Services, where a quorum was found:

On appeal, Ambassador asserts that the Board lacked a quorum to issue its order because—at the time that the Board issued its decision and order—three of the Board’s five members were intra-session recess appointments made without Senate consent. … While there are certainly some differences between this Court’s opinion in Evans and this case, the reasoning in Evans persuades us that Ambassador’s quorum claim lacks merit and that the authority of the Board to act does not affect our subject matter jurisdiction over the merits issues in this case.

From Gestamp, where no quorum was found:

Board Member Craig Becker served as one of the three panel members in this case. However, Member Becker was appointed by the President on March 27, 2010, during a two-week adjournment of the Senate. See New Vista, 719 F.3d at 213. Because his appointment was constitutionally invalid from its inception, see id. at 221, there were not enough valid members to meet the requisite quorum and the Board lacked the power to lawfully act when it issued its decision in this case. Accordingly, we grant Gestamp’s petition for review, deny the Board’s cross-application for enforcement, vacate the Board’s decision, and remand the case to the NLRB for further proceedings as may be appropriate

As noted above, the United States Supreme Court has granted certiorari review in Noel Canning. See NLRB v. Noel Canning, 133 S. Ct. 2861 (June 24, 2013). Although no formal motion has been made to hold this case in abeyance pending the Supreme Court’s decision in Noel Canning, the option was suggested by Gestamp and opposed by the NLRB in their respective Rule 28(j) letters. See Fed. R. App. P. 28(j). In light of our decision in Enterprise Leasing, we decline to delay further resolution of this appeal at this juncture. We also deny Gestamp’s Motion to Strike the NLRB’s Rule 28(j) letter and/or for supplemental briefing.

So we should get a ruling soon about whether all of the rulings during that time were void, due to a lack of a quorum.