John Elwood reviews Monday’s relisted cases.

For most in the Northern Hemisphere, summer is officially here.  Beaches are open, England’s football team (did I say that?  I meant “soccer”) is now at leisure playing golf, and Congress is about to recess – or, for experienced dissemblers, have a “district work period.”  But for those of us at greater risk of burning from an improperly adjusted computer monitor than from the sun, the summer doesn’t really begin until the Court issues its last order list of the Term.

We’ll take a look at what to expect Monday, but first, we have to sort out what they did with last week’ s relists.  The Court’s streak of granting only relisted cases is on course to make it to summer vacation intact; all three additions to the Court’s merits docket are Relist Watch alumni.  One-time relist Department of Transportation v.  Association of American Railroads, 13-1080, asks whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008 is an unconstitutional delegation of legislative power to Amtrak.  (We’ll know if Amtrak has legislative power: the case will arrive fifteen minutes late with a $7 microwaved hot dog.)  Joining it will be Hana Financial, Inc. v. Hana Bank, 13-1211, also after a single relist, which asks whether a decision that an older trademark can be tacked to a newer one is legal or factual.  Meanwhile, an IFP petition, two-time relist Whitfield v. United States, 13-9026, pulled a major upset and will advance as well.  Whitfield asks how much movement is required before a victim during a bank robbery has been forced to “accompany” the robber, which in this case earned Mr. Whitfield a mandatory-minimum life sentence.

Only one of last week’s relists was denied, Ballard v. Pennsylvania, 13-9364, a capital case which asks whether each potential non-statutory mitigating circumstance must be individually listed on the verdict form.  As Lyle explained Monday, this case was relisted under unusual circumstances:  Ballard, acting pro se, wrote a letter to the Court stating that his attorney was not authorized to file the petition, asking the Court to reject it, and expressing his wish to waive appeals.  The Court denied the petition while asking the attorney to respond to his client’s letter.  Ballard’s letter certainly explains the need for more time.

The lack of denials from our last installment means we have a slew of sequels this week that the Court considered at Conference yesterday.  Wellness International Network, Ltd. v. Sharif, 13-935, which appears to be a former hold for Executive Benefits Insurance Agency v. Arkison, is back again.  The petition features four questions presented; the presence in them of the exciting phrase “constitutional authority” is immediately offset by the soporific phrase “bankruptcy estate,” so if you want to know more, please check out last week’s installment — and then get some better hobbies. In the surprising-second-relist category, we have two other entrants:  United States v. Wong, 13-1074, and United States v. June, 13-1075.  Both ask whether the time limits of the Federal Torts Claims Act can be tolled under various circumstances.  Our last sequel is easy sleddingWilliams v. Johnson, 13-9085, asks the Court to clarify whether its opinion in Johnson v. Williams last Term meant to bar a deferential review on remand and whether a denial of certiorari or rehearing can actually mean “certiorari granted” under 28 U.S.C. § 1254.  Makes sense to us.

The Court also considered a slew of new relists.  Young v. United Parcel Service, 12-1226, involves a UPS employee who was not permitted to return to work when pregnant because her doctor said she should not lift objects over twenty pounds.  UPS responded that while it would accommodate that restriction if Young were injured on the job, covered by the Americans With Disabilities Act, or had lost Department of Transportation certification, it would not do so for pregnancy.  Young filed suit under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), but the district court sided with UPS and the Fourth Circuit affirmed. Young’s petition asks whether an employer that makes accommodations for non-pregnant employees with work limitations must extend those accommodations to employees whose pregnancy requires similar limitations.  The Court “invited” the Solicitor General to express his opinion; in response, he argues that the decision below was wrong but that review is not warranted because recent legislation might cause that court (and others like it) to reconsider.

Twin immigration cases Madrigal-Barcenas v. Holder, 13-697, and Melloui v. Holder, 13-034, involve 8 U.S.C. § 1227(a)(2)(B)(i), which states that a noncitizen is ineligible for cancellation of removal if he has been convicted of a controlled-substance offense.  The Ninth (in Madrigal-Barcenas) and Eighth (in Melloui) Circuits held that a conviction under a state drug paraphernalia law counts as a controlled-substance offense.  Petitioners argue that those decisions created a circuit split with the Third and Seventh Circuits, which require that paraphernalia convictions be related to a substance listed on a federal schedule.

So when does Menards get its case?  First, it was Wal Mart, then Hobby Lobby, and now it is Family Dollar’s turn.  Family Dollar Stores, Inc. v. Scott, 13-899, involves the discount store’s efforts to argue that under Wal Mart Stores, Inc. v. Dukes a class of women managers could not be certified as a class because salary decisions were made locally by individual store supervisors.  The Fourth Circuit disagreed, holding that unlike Wal-Mart, Family Dollar’s salary decisions were centralized.  Family Dollar challenges that conclusion, and also argues that the court of appeals improperly exercised pendent appellate jurisdiction to review the district court’s decision to deny the plaintiffs leave to amend their complaint.

Speaking of employment discrimination issues, Mach Mining v. Equal Employment Opportunity Commission, 13-1019, involves the EEOC’s duty to conciliate discrimination claims before filing suit.  The EEOC sued Mach Mining, claiming gender discrimination in hiring.  The company countered with an affirmative defense that the EEOC had failed to fulfill its statutory obligation to conciliate in good faith before filing suit.  The district court agreed but the Seventh Circuit reversed, holding that such an affirmative defense does not exist and that courts could not judge whether sufficient conciliation occurred because the conciliation process was confidential.  The company argues that this puts the Seventh Circuit in conflict with every other circuit to consider the issue.

We end with Gelboim v. Bank of America Corporation, 13-1174.  A putative plaintiff class sued a group of banks alleging that they manipulated the London Interbank Offered Rate.  The case was consolidated for pretrial purposes with several others and the class’s complaint was dismissed with prejudice.  The class appealed, but the Second Circuit determined sua sponte that it lacked jurisdiction because not all of the consolidated cases had final orders.  Petitioners ask the Court to clarify the circumstances under which consolidated complaints retain their separate identities for appellate purposes.  Evidently, the Court granted a similar case, Erickson v. Maine Central Railroad Co. way back in 1990 but dismissed it before reaching the merits.  Perhaps the second time’s the charm?  [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to petitioners in both Mach Mining and Gelboim.]

And with that, the penultimate (?) edition of Relist Watch is over.  If there is a next time, tune in then as we wrap up the Term.

Thanks to Conor McEvily and Dmitry Slavin for compiling and drafting this update.


Issue(s): (1) Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

(relisted after the June 12 and June 19 Conferences)


Issue(s): Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

(relisted after the June 12 and June 19 Conferences)


Issue(s): Whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

(relisted after the June 12 and June 19 Conferences)


Issue(s): (1) Whether, in denying rehearing after deciding Johnson v. Williams, this Court meant to bar a deferential review on remand, or whether denial of rehearing simply reflected that disputes regarding the scope of this Court’s mandate were to be resolved on remand; and (2) whether the previous denial of certiorari as to the question of whether Ms. Williams could prevail under deferential review, or the subsequent denial of rehearing, constituted “certiorari granted” under 28 U.S.C. § 1254, where the Court’s opinion contained no discussion of a question outside a limited grant of certiorari.

(relisted after the June 12 and June 19 Conferences)


Issue(s): Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” CVSG: 10/07/2013.

(relisted after the June 19 Conference)


Issue(s): Whether the plain text of the Immigration and Nationality Act, which states that a noncitizen is ineligible for cancellation of removal if he has been convicted of an offense “relating to a controlled substance," requires that a drug paraphernalia conviction involve or relate to a controlled substance that is actually listed in the federal schedules of controlled substances in order to render a noncitizen ineligible for cancellation of removal.

(relisted after the June 19 Conference)


Issue(s): Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

(relisted after the June 19 Conference)


Issue(s): (1) Whether the Fourth Circuit contravened Wal-Mart Stores, Inc. v. Dukes by holding that discretionary decisions by hundreds of supervisors can serve as the basis for a nationwide class action because "Wal-Mart is limited to the exercise of discretion by lower-level employees, as opposed to upper-level, top-management personnel"; and (2) whether a court of appeals may exercise "pendent appellate jurisdiction" to review an unappealable interlocutory ruling that requires the court to decide legal and factual issues distinct from the ruling over which it has jurisdiction and unrelated to the power of the district court to enter the appealable order.

(relisted after the June 19 Conference)

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit.

(relisted after the June 19 Conference)

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case

Issue(s): Whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.

(relisted after the June 19 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 27, 2014, 11:36 AM),