John Elwood (barely) reviews Monday’s likely relists.

I’m preparing for an argument, so this week’s update will be brief. There’s been a lot of movement on last week’s relists. On Friday, the Supreme Court granted review in the twice-relisted Manhattan Community Access Corporation v. Halleck17-1702, which asks whether the private operator of a public access TV channel is a “state actor” for constitutional purposes. And on Monday, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) dissented from the denial of certiorari in that big group of cases addressing the validity of criminal sentences imposed under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence.” Those actions knocked about 11 cases off the relist rolls.

The court’s next conference isn’t until next Friday, October 26. So the court won’t actually relist the cases on the dockets until Monday, October 22. But it looks to us like they’re likely to relist five new cases. Below, we’ve indicated the questions presented. The court has also rescheduled a few noteworthy cases, but I don’t want to say more about that for fear of mission creep.

UPDATE 10/23/18: Turns out there are seven new relists this week, not just five. We spotted two more when the court relisted the cases on the dockets yesterday. One of the new relists is significant: Kennedy v. Bremerton School District, 18-12, involves a high-school coach who brought a First Amendment suit against his former school district when it fired him for praying after football games. [Disclosure: Along with Relist Watch colleague Kevin Brooks, I filed an amicus brief supporting Kennedy.] The second relist, Sperling v. United States, 17-8390, raises the same question as another of this week’s relists, United States v. Haymond, 17-1672. The issue in Sperling and Haymond involves convicted sex offenders who commit additional sex offenses while serving terms of supervised release after completing their prison terms. Section 3583(k) of Title 18 requires judges to return such defendants to prison for a term of at least five years upon finding by a preponderance of the evidence that the defendants violated the conditions of release. The question presented in both cases is whether that violates the constitutional jury-trial rights of the defendants. Sperling is unlikely to be the vehicle the Supreme Court would use to address that issue, however, because the petitioner failed to object in the trial court and thus the issue arises in a plain-error posture.

That’s all for this week. Thanks to the newly arrived Ben Moss and Tom Mitsch for their willingness to performing the thankless task of compiling the relists.

 

New Relists

Return Mail Inc. v. United States Postal Service, 17-1594

Issues: (1) Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act; and (2) whether an action under 28 U.S.C. § 1498(a) for the eminent domain taking of a patent license by the government is a suit for patent “infringement” under the Leahy-Smith America Invents Act.

(relisted after the October 12 conference)

 

Mission Product Holdings Inc. v. Tempnology, LLC, 17-1657

Issues: (1) Whether, under Section 365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. § 365(g) — terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law; and (2) whether an exclusive right to sell certain products practicing a patent in a particular geographic territory is a “right to intellectual property” within the meaning of Section 365(n) of the Bankruptcy Code.

(relisted after the October 12 conference)

 

United States v. Haymond, 17-1672

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

(relisted after the October 12 conference)

 

Gray v. O’Rourke, 17-1679

Issue: Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veteran Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual.

(relisted after the October 12 conference)

 

Blue Water Navy Vietnam Veterans Association, Inc. v. O’Rourke, 17-1693

Issues: (1) Whether judicial review of an interpretative Department of Veteran Affairs’ regulation under the Administrative Procedures Act should be foreclosed under 38 U.S.C. § 502 when the Veterans Judicial Reform Act provides the sole avenue for review of the Secretary’s decisions; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s decision creates a conflict with the U.S. Court of Appeals for the District of Columbia’s decision in Blue Water Navy Vietnam Veterans Association Inc. and Military-Veterans Advocacy Inc. v. McDonald.

(relisted after the October 12 conference)

 

Sperling v. United States, 17-8390

Issue: Whether the portions of 18 U.S.C. § 3583(k) that require a district court, if it finds by a preponderance of the evidence that a defendant registered under the Sex Offender Registration and Notification Act committed a new violation of the act, to revoke the term of supervised release and to impose a mandatory minimum sentence of five years are “unconstitutional and unenforceable” as held by the U.S. Court of Appeals for the 10th Circuit in United States v. Haymond.

(relisted after the October 12 conference)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12 conference)

 

Returning Relists

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, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

 

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, June 14, June 21, September 24, October 5 and October 12 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, June 14, June 21, September 24, October 5 and October 12 conferences)

 

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(relisted after the September 24, October 5 and October 12 conferences)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5 and October 12 conferences)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5 and October 12 conferences)

 

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. KurtzmanVan Orden v. PerryTown of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(relisted after the September 24, October 5 and October 12 conferences)

 

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(relisted after the September 24, October 5 and October 12 conferences)

 

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

(relisted after the October 5 and October 12 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5 and October 12 conference)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch (UPDATED), SCOTUSblog (Oct. 18, 2018, 10:04 AM), http://www.scotusblog.com/2018/10/relist-watch-130/