John Elwood reviews what may or may not be the relists from the “long conference.”

The new term that began on Monday marks the seventh year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “shadow docket.” The new term dawns during dark days. The country is so divided on basic issues that in a recent poll on the issue “Are puppies cute?,” the leading answers were “What the hell are you looking at?” and “Delete your account!” And the news only keeps getting worse. Even apart from the tragedies I avoid discussing to maintain Relist Watch’s characteristic tone of cheerful stupidity, there was lesser bad news close to the court: reporters met with salad-bar shortages and a broken fro-yo machine in the Supreme Court cafeteria (which — hat-tip — gives this post its title); a holdup in the new court reporter’s release of transcripts delayed the dissemination of important statistical information; and the revamped dockets tripped up the scraping software that pathological types (and the simply conscientious!) use to keep a close eye on the minutiae of the Supreme Court’s docket.

Speaking of which: This is the first Relist Watch we’ve compiled using data from the court’s new dockets, and the numbers of relists out of the “long conference” seem a smidge low compared to years past. So I can’t eliminate the possibility that I’ve overlooked a relist or three. Bottom line: Today’s post may not be very funny, but at least it’s not accurate.

Because of the press of business, we’re only going to flag a few new relists that may be of particular interest. First among them is Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply – that’s right, called for a reply, not a response – for only the second time since 2001. The case involves a hot topic these days, Chevron deference – the doctrine under which courts are supposed to defer to federal agencies’ reasonable (and formal) interpretations of ambiguous statutory language. People of a certain age will recall that, to reduce billboard clutter along America’s highways, Congress gave the Federal Highway Administration authority to withhold funds from states that would not enter into “federal-state agreements” giving the federal government authority to regulate billboards within their jurisdiction. This case involves the FHWA’s interpretation of common language in such federal-state agreements prohibiting signs illuminated by “flashing,” “intermittent,” and “moving” lights. In Scenic America, the petitioner claims that the U.S. Court of Appeals for the District of Columbia Circuit deferred to the FHWA’s interpretation that the prohibition did not apply to digital billboards that periodically change advertisements. Scenic America, an advocacy group that seeks to “preserve and improve the visual character of America’s communities and countryside,” argues that deference was inappropriate because the agency was interpreting not federal statutes, but agreements between the FHWA and individual states. The government (and a private respondent representing outdoor advertising interests) contends that this question is not actually presented here. The rare request that the petitioner submit a reply brief – which is entirely optional under Supreme Court Rule 15.6 – suggests that someone at the court is very interested in whether the issue really is presented in this case.

616 Croft Ave., LLC v. City of West Hollywood, 16-1137, involves an “inclusionary zoning” ordinance enacted by the city of West Hollywood that seeks to address the area’s need for low- and moderate-income housing. Under the ordinance, developers must either dedicate a percentage of new homes they build as low-income housing or pay a fee in lieu of devoting the property to that use. That fee is set by a schedule based on the floor area of the units built. Here, West Hollywood required the builder of a proposed 11-unit condominium to pay a $540,393.28 “affordable housing fee” in lieu of setting aside some property. The developer, joined by a small army of amici, argues that such legislatively set permit conditions are subject to scrutiny under the “unconstitutional conditions” doctrine, but states that California case law limits the application of the doctrine to adjudicative decisions. The city, by contrast, contends that the decision below turned on an entirely different issue – who bore the burden of proving that the fees were reasonable.

Ohio v. American Express Co., 16-1454, involves application of antitrust law to American Express’ so-called anti-steering provisions — contractual provisions that bar merchant customers from steering cardholder customers to credit cards that charge merchants lower prices, by implying that they prefer another form of payment, or even truthfully disclosing the relative cost to the merchant of various cards. Applying the so-called “rule of reason” under Section 1 of the Sherman Act, which prohibits unreasonable restraints of trade, the district court held that AmEx’s anti-steering provisions were anticompetitive because they stifled competition among credit-card companies for the prices charged to merchants and AmEx failed to establish any procompetitive benefits. The U.S. Court of Appeals for the 2nd Circuit reversed, holding that to prove that the provisions were anticompetitive, the government bore the burden of showing not just that the provisions had anticompetitive pricing effects on the merchant side, but also that those anticompetitive effects outweighed any benefits on the cardholder side. Supported by an even larger army of amici than 616 Croft Avenue, Ohio and 10 other states seek to revisit that decision. Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Lastly, Glisson v. D.O., 17-17, involves whether potential beneficiaries of foster-care maintenance payments under the Social Security Act have an individual right to such payments that can be enforced through 42 U.S.C. § 1983. Glisson is this week’s sentimental favorite for entirely foreseeable reasonsDisclosure: Vinson & Elkins LLP, whose attorneys purportedly contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

And with that, I will detain you no longer. Be sure to check out the rest of Relist Watch SelectTM below, where you will also find the rest of this week’s relists. To supplement my review of past “long conference” distribution dates (and tweeted follow-ups), I’ve indicated the case’s initial distribution date in parentheses.

Thanks to Kent Piacenti for compiling the cases in this post.

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New Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) Whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(distributed June 14, 2017; relisted after the September 25 conference)

 

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(distributed July 12, 2017; relisted after the September 25 conference)

 

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anticompetitive effects and thereby shift  to American Express the burden of establishing any procompetitive benefits from the provisions.

(distributed September 6, 2017; relisted after the September 25 conference)

 

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(distributed July 20, 2017; relisted after the September 25 conference)

 

Glisson v. D.O., 17-17

Disclosure: Vinson & Elkins LLP, whose attorneys purportedly contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Title IV-E of the Social Security Act, 42 U.S.C. § 670 et. seq., confers an individual right to foster-care maintenance payments that is enforceable by bringing suit under 42 U.S.C. § 1983.

(distributed September 6, 2017; relisted after the September 25 conference)

 

Oliver v. Florida, 17-5083

Issues: (1) Whether, when a Florida jury recommended a death sentence prior to the Supreme Court’s decision in Hurst v. Florida, and the jury didn’t make any of the findings required by Hurst, the error can be deemed harmless under Chapman v. California, or whether the jury’s recommendation is insufficient to constitute a jury verdict as required by the Sixth Amendment; and (2) whether, when the jury was repeatedly advised by the court that its advisory sentencing recommendation was non-binding, the death-sentencing procedures in this case complied with the Eighth Amendment.

(relisted after the September 25 and October 6 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Worst Monday in October, SCOTUSblog (Oct. 5, 2017, 11:05 AM), http://www.scotusblog.com/2017/10/worst-monday-october/