John Elwood provides useless blather to accompany Monday’s relists.

I apologize for slacking off last week, but I was in central Europe taking in the dulcet tones of the language of love while testing the effects of an all-meat diet on the body of a sedentary middle-aged lawyer. After about 10 days among people who see cuts of meat in the most unlikely places, packing myself full of schnitzel and something that I only belatedly discovered translates as “liver-cheese,” I can report that there are no adverse effects besides that “not so fresh” feeling and an inexplicable urge to wear Lederhosen.

I was relieved to return and learn that nothing happened while I was away. In an ordinary term, that would mean all that I have after today is just a mop-up Relist Watch on the last Monday of term, followed by an extended vacation. But this term is so funky, who knows what lies ahead?

If you’re worrying that the court’s grant rate is on the lowish side and it’s not going to have enough cases for next fall, take heart: There are 11 new relists, to say nothing of 18 returning relists that might provide some late-term excitement. We begin this week’s installment with the relists having the best odds of success – the cases in which the court called for the views of the solicitor general. A petition is over 37 times more likely to be granted after the court requests the solicitor general’s views, and the odds obviously favor a petition when the SG recommends review. The SG recommends review in three cases.

The solicitor general believes that Republic of Sudan v. Harrison, 16-1094 (in which the court requested the SG’s views) and Kumar v. Republic of Sudan, 17-1269 (in which the court didn’t) both involve an issue worth the court’s review, namely whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state by mail sent to the head of its ministry of foreign affairs in care of the foreign state’s diplomatic mission in the United States. The SG agrees that there is a split and the issue is important, but the SG believes that Kumar is the “more suitable vehicle.” Both cases involve lawsuits by victims of the terrorist bombing of the USS Cole against the Republic of Sudan as a state sponsor of terrorism.

I was expecting the worst when I saw the caption Washington State Department of Licensing v. Cougar Den, Inc., 16-1498. What I found instead was perhaps the most arcane legal question of the term: whether Article III of the U.S. Constitution precludes application to Yakama Indian tribal members of a tax imposed by the state of Washington on imported fuel purchased out-of-state. If the answer seems obvious to you, that means you’re familiar with the Yakama Treaty of 1855, and whether it creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. I’m sure I’m not the only person thrilled that the court is considering this subject because my student note, which was on this very subject, might finally get cited. Cougar Den, which is incorporated under Yakama Nation law, imported fuel from Oregon to the tribe’s reservation in Washington and sold it there. The SG says that whether review is warranted “is a close question,” but “[o]n balance” the case warrants review to resolve a conflict between the Washington Supreme Court and the U.S. Court of Appeals for the 9th Circuit.

That leaves Dawson v. Steager, 17-419, involving whether the doctrine of intergovernmental tax immunity bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees. West Virginia exempts from state taxation the retirement benefits of former state law-enforcement officers but does not provide the same exemption for the retirement benefits of former employees of the U.S. Marshals Service. A retired deputy U.S. Marshal challenged the state’s failure to extend the exemption to him and lost. The SG argues that the West Virginia Supreme Court of Appeals misapplied the intergovernmental-tax-immunity doctrine. In the SG’s view, “[w]hether this court’s review is warranted presents a closer question” because such issues do not “arise[] with great frequency.” But “at bottom,” the SG “believe[s] that the issue has sufficient legal and practical importance to warrant the court’s review.”

Law nerds shed a tear when the court resolved the sentencing issue in Hughes v. United States without reaching the central question presented by the cert petition, which involved clarifying the rule of Marks v. United States about what the governing rule is in cases involving plurality decisions. The court has another opportunity to resolve that issue in Wass v. Idaho, 17-425, which involves the admissibility of a statement when an officer questions an in-custody suspect before administering Miranda warnings, later administers the warnings, and then obtains a similar statement. Petitioner Shawn Wass seeks clarification of Missouri v. Seibert, in which a four-justice plurality opinion authored by Justice David Souter espoused one rule and Justice Anthony Kennedy, concurring only in the judgment, advocated another.

I have the power to foretell insignificant events of the immediate future. I predict that if the court grants review in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 17-1229, the bar section will be completely full on the day it is argued. If you’re wondering how I’m able to make that mildly impressive prediction, take a moment to look over the docket and consider how many suits will be present if just the authors of the 10 amicus briefs show up for argument. Evidently, the intellectual property bar cares a great deal about whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. The petitioner argues that the plain language of the America Invents Act excludes from prior art inventions that, by agreement, are kept secret. The government rarely files unsolicited amicus briefs at the petition stage, but it filed an amicus brief in the federal circuit supporting petitioner Helsinn Healthcare’s reading of the act.

You know who thinks there is a reasonable probability that Supreme Court will grant cert in Henry Schein Inc. v. Archer and White Sales Inc., 17-1272? Well, we don’t know their names, exactly, but at least 5 members of the Supreme Court. Back in March, they granted the company’s request for a stay, without recorded dissent. Respondent Archer and White Sales is a former distributor of dental equipment manufactured by the petitioners. Its distributorship agreements required it to arbitrate disputes “arising under or related to” the agreements, “except for actions seeking injunctive relief,” and (by incorporation of American Arbitration Association rules) delegated decisions about arbitrability to arbitrators. When Archer and White Sales sought to challenge the petitioners’ actions in restricting and terminating its distributorship rights under the antitrust laws, it filed suit in district court. The petitioners moved to compel arbitration, citing provisions in the distributorship agreement delegating questions of arbitrability to an arbitrator. The magistrate judge ordered arbitration, but the district court reversed. The court of appeals then affirmed, holding that the matter need not be sent to arbitration because “the argument that the claim at hand is within the scope of the arbitration agreement is ‘wholly groundless,’” concluding that there was “no plausible argument that the arbitration applies here” because the lawsuit sought injunctive relief. The petitioners contend that there is a circuit conflict on “whether the [Federal Arbitration Act] permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

Troy Lambert has a bone to pick with Nutraceutical Corporation. He says he bought its product, “Cobra Sexual Energy,” in reliance on its claims that it would provide him with “animal magnetism” and “potency wood.” He alleges it did nothing of the sort, and also contained an ingredient, yohimbe, that is dangerous for some people. He filed a putative class action, which the district court initially granted, but then decertified. Instead of filing a notice of appeal within the 14 days as provided by Federal Rule of Civil Procedure 23(f), Lambert filed a motion for reconsideration. Fourteen days after the district court denied his motion for reconsideration, Lambert finally appealed. The 9th Circuit held that Rule 23(f)’s deadline is nonjurisdictional and Lambert’s motion for reconsideration tolled the deadline. Moreover, the court held, the deadline was tolled because of other “equitable circumstances,” such as the fact that Lambert “conveyed his intention to file a motion for reconsideration” at a status conference 10 days after decertification. The 9th Circuit, however, “recognize[d] that other circuits would likely not toll the Rule 23(f) deadline in Lambert’s case,” which may have gotten the Supreme Court’s attention. In Nutraceutical Corporation v. Lambert, 17-1094, the company argues that the court of appeals erred.

Kaushal v. Indiana, 17-1356, involves an Indian permanent-resident alien who pleaded guilty to molesting his stepdaughter. Petitioner Umesh Kaushal contends that his defense counsel did not fully advise him of the immigration consequences of pleading guilty and that, days afterward, he met with an immigration attorney who informed him that as a result of his conviction, he was likely to be “picked up” by immigration officials immediately. Kaushal then tried to have his plea agreement set aside, and the trial court denied his motion. The Indiana Court of Appeals affirmed, concluding that Kaushal was not prejudiced by his defense counsel’s supposedly ineffective assistance because Kaushal was aware of the possibility of deportation at the time he pleaded guilty. Before the Supreme Court, Kaushal argues that the fact that he tried to have the guilty plea set aside so promptly demonstrates that he was prejudiced, and argues that his case is part of a “pattern” of Indiana cases in which aliens plead guilty while ignorant of the immigration consequences of their guilty pleas.

Lastly, we have a couple of cases that the court appears to have relisted so it can determine if the petitioners are entitled to relief under cases decided earlier this term. Nieves v. Bartlett, 17-1174, asks whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983, answered in the negative by Lozman v. City of Riviera Beach, Florida. The case involves an arrest made during Alaska’s Arctic Man race, allegedly for criticizing police investigation of underaged drinking. Ramirez-Hidalgo v. United States, 17-7793, asks whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws, answered in the affirmative by Sessions v. Dimaya. But the government argues that Jesus Ramirez-Hidalgo’s challenge to the sentencing enhancement is moot because he has finished serving his sentence and has been deported.

With this, Relist Watch is nearly at an end for another term. We expect to be back Monday for a brief post about relists the court will be considering at its not-yet-scheduled (but widely anticipated) mop-up conference on Monday, June 25.

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

 

New Relists

Republic of Sudan v. Harrison, 16-1094

Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability. CVSG: 05/22/2018.

(relisted after June 14 conference)

 

Washington State Department of Licensing v. Cougar Den, Inc., 16-1498

Issue: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. CVSG: 05/15/2018.

(relisted after June 14 conference)

 

Dawson v. Steager, 17-419

Issue: Whether the Supreme Court’s precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income. CVSG: 05/15/2018.

(relisted after June 14 conference)

 

Wass v. Idaho, 17-425

Issue: Whether, when an officer elicits an admission without first providing a Miranda warning, the admissibility of the suspect’s post-warning statement is governed by the objective, subject-focused test adopted by the plurality opinion in Missouri v. Seibert, or the subjective, officer-focused test adopted by Justice Anthony Kennedy’s separate opinion in that case.

(relisted after June 14 conference)

 

Nutraceutical Corporation v. Lambert, 17-1094

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f), which establishes a 14-day deadline to file a petition for permission to appeal an order granting or denying class-action certification—and can excuse a party’s failure to file timely within the deadline specified by Federal Rule of Civil Procedure 23(f), in conflict with the decisions of the U.S. Courts of Appeals for the 2nd, 3rd, 4th, 5th, 7th, 10th and 11th Circuits.

(relisted after June 14 conference)

 

Nieves v. Bartlett, 17-1174

Issue: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

(relisted after June 14 conference)

 

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 17-1229

Issue: Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.

(relisted after June 14 conference)

 

Kumar v. Republic of Sudan, 17-1269

Issue: Whether a service packet is “addressed and dispatched … to the head of the ministry of foreign affairs” of a foreign state, as required by 28 U.S.C. § 1608(a)(3), when the service packet is sent by registered mail to the head of the ministry of foreign affairs of the foreign state at the state’s embassy in the United States.

(relisted after June 14 conference)

 

Henry Schein Inc. v. Archer and White Sales Inc., 17-1272

Issue: Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

(relisted after June 14 conference)

 

Kaushal v. Indiana, 17-1356

Issues: (1) Whether, when a resident alien pleads guilty after incorrect advice by counsel as to clear immigration consequences and discovers the error prior to sentencing, a defendant must prove that he would have opted for trial had he been correctly advised when the sole remedy he seeks is to proceed to trial; (2) whether, when a defendant learns the immigration consequences three weeks after his guilty plea and promptly demands to go to trial, that adequately proves he would have opted for trial had he known the immigration consequences of his plea before he pleaded guilty; (3) whether the instant case represents a pattern of Indiana cases in which alien defendants who plead guilty while ignorant of the immigration consequences of their respective plea are unfairly denied their Sixth Amendment rights to effective assistance of counsel and trial by jury.

(relisted after June 14 conference)

 

Ramirez-Hidalgo v. United States, 17-7793

Issue: Whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws by requiring application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after June 14 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24, May 31, June 7 and June 14 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7 and June 14 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7 and June 14 conferences)

 

Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31, June 7 and June 14 conferences)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31, June 7 and June 14 conferences)

 

Arlene’s Flowers Inc v. Washington, 17-108

Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.

(relisted after the June 7 and June 14 conferences)

 

Biestek v. Berryhill, 17-1184

Issue: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

(relisted after the June 7 and June 14 conferences)

 

Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the Double Jeopardy Clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 and June 14 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, The Return of Relist Watch, SCOTUSblog (Jun. 20, 2018, 8:00 PM), http://www.scotusblog.com/2018/06/the-return-of-relist-watch/