Relist Watch

Compelled discovery in foreign arbitration and sentencing reductions after criminal convictions

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has 278 petitions scheduled for review at Friday’s conference. Among the nearly 300 cases, the court will be paying special attention to two of them, this week’s new relists, which it will be considering for a second time. The two cases could hardly be more different.

Section 1782 of Title 28 provides that a federal district court may order a person residing in that district to “give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Servotronics, Inc. v. Rolls-Royce PLC, 20-794, presents the question whether that provision applies to arbitration proceedings, or only cases in courts. Servotronics, which manufactured a valve used in a Rolls-Royce Trent 1000 jet engine installed on a Boeing 787 aircraft, was a defendant in an arbitration proceeding that Rolls-Royce brought in London, England, seeking damages for an engine fire that occurred during a test flight of a Boeing 787 in the United States. The U.S. Court of Appeals for the 7th Circuit held that Section 1782 “does not authorize the district court to compel discovery for use in a private foreign arbitration.” Servotronics notes that until the provision was revised in 1964, it applied to “any judicial proceeding pending in any court in a foreign country.” Servotronics contends that the change in wording suggests Congress intended to include quasi-judicial proceedings such as arbitral proceedings. We’ll have a better idea what the Supreme Court thinks on Monday.

Prepare to shift gears. The U.S. Sentencing Guidelines prescribe ranges for federal judges to consider (and presumptively follow) in criminal sentencing. Defendants who “clearly demonstrate[] acceptance of responsibility” for their offense are eligible to have their offense level reduced by two levels, a significant reduction in sentencing exposure. Defendants who plead guilty routinely receive that two-level reduction. But the relevant provision, Section 3E1.1 of the guidelines, also provides that for more serious offenses, defendants can receive a “third point” – an additional one-level reduction, “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial” and permitting the government and the court to allocate resources more efficiently.

In Longoria v. United States, 20-5715, Martin Rogelio Longoria moved to suppress evidence in his criminal prosecution for being a felon unlawfully in possession of a firearm. He went to trial, he said, solely to preserve his legal challenge to the lawfulness of the government search. After his conviction, the district court gave him a two-level reduction for acceptance of responsibility, but did not give him the third-level reduction because the government had not made a motion. The U.S. Court of Appeals for the 5th Circuit affirmed Longoria’s sentence, writing that “[w]e have long allowed the government to do what it did here: withhold the third point when the defendant seeks to suppress evidence.” Longoria argues that having to contest a suppression hearing does not provide sufficient basis for the government to refuse to move for the third level reduction under Section 3E1.1. The government acknowledges a “narrow conflict among the courts of appeals on the question presented,” but argues that the Supreme Court doesn’t have to take the case because the Sentencing Commission can amend the guidelines to clarify.

That’s all for this week. Stay safe!

New Relists

Servotronics, Inc. v. Rolls-Royce PLC, 20-794
Issue: Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in “a foreign or international tribunal” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the U.S. Courts of Appeals for the 2nd, 5th and, in the case below, the 7th Circuit, have held.
(relisted after the March 5 conference)

Longoria v. United States, 20-5715
Issue: Whether the government, at sentencing, may withhold a motion for a third-level reduction for acceptance of responsibility under USSG § 3E1.1(b) on the ground that the defendant proceeded to a hearing on a motion to suppress evidence.
(relisted after the March 5 conference)

Returning Relists

Biden v. Knight First Amendment Institute, 20-197
Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11 conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Massachusetts Lobstermen’s Association v. Coggins, 20-97
Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Act’s “smallest area” requirement, including designating ocean monuments larger than most states, by vaguely referencing “resources” or an “ecosystem” as the objects to be protected.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

United States v. Tsarnaev, 20-443
Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26 and March 5 conferences)

Small v. Memphis Light, Gas & Water, 19-1388
Issue: Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets 42 U.S.C. § 2000e(j) – which specifies that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” – and should be overruled.
(rescheduled before the Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19, Feb. 26 and March 5 conferences)

Dalberiste v. GLE Associates, Inc., 19-1461
Issue: Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an “undue hardship” under Title VII.
(rescheduled before the Oct. 9, Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19, Feb. 26 and March 5 conferences)

Smith v. Titus, 20-633
Issue: Whether the Sixth Amendment’s public trial guarantee, within the review apparatus imposed by the Antiterrorism and Effective Death Penalty Act of 1996, applies (1) to all phases of a defendant’s criminal trial; or (2) only to pretrial suppression hearings and juror voir dire.
(relisted after the Feb. 19, Feb. 26 and March 5 conferences)