John Elwood reviews Monday’s relisted cases.

The Court held its penultimate Conference before its summer recess last Thursday.  Below are the cases that were relisted after that Conference, and that were considered today at a special (previously unscheduled) final Conference of the Term.  The results of the June 30 Conference will be announced tomorrow morning at 9:30.

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

Cases Relisted after June 26 Conference:


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 and June 26 Conferences)

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

Issue(s): Whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions. CVSG: 12/02/2013.

(relisted after the June 26 Conference)


Issue(s): (1) Whether the Trademark Trial and Appeal Board’s finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the Board’s finding of a likelihood of confusion absent strong evidence to rebut it. CVSG: 01/13/2014.

(relisted after the June 26 Conference)


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, June 19, and June 26 Conferences)


Issue(s): Whether the Tax Injunction Act, which provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State,” bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.

(relisted after the June 26 Conference)


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, June 19, and June 26 Conferences)

Cases Unresolved After June 26 Conference

Disclosure: John Elwood, a frequent contributor to this blog, is counsel to the petitioner in the case.

Issue(s): (1) Whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “onecase- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing. CVSG: 10/07/2013.


Issue(s): (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision. CVSG: 05/27/2014.


Issue(s): Whether the Ninth Circuit failed to apply the deferential standard of review required by 28 U.S.C. § 2254(d) when it granted federal habeas relief from a state murder conviction on the ground that the prosecutor's request for an aiding-and-abetting instruction at the jury-instruction conference violated a putative constitutional right to prior notice of the government's theory of prosecution - a right that has been recognized in the court of appeals' own precedents, but not established by any holding of this Court.

In addition, Gevo, Inc. v. Butamax Advanced Biofuels LLC, 13-1286, is unaccounted for after the June 26 Conference, but we’ve so far been unable to get papers for that case.  We’ll pass along more information as soon as we have it.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 30, 2014, 9:01 PM),