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Relist Watch

John Elwood reviews Monday’s relisted cases.

Happy holidays, dear readers! And welcome to the penultimate Relist Watch of 2014. While our nine judges judging haven’t quite achieved the festive spirit of their counterparts to the north (who, after all, live in what was until recently the home of the magnetic North Pole), the Court has dug deep into its bag of gifts and emerged with toys, trinkets, treats, and the odd lump of coal for its practitioners – all of which we, your cheerful correspondents, have the good fortune to announce.

Monday thinned the relist rolls considerably as the Court granted cert. in a trio of cases – thus preserving the relist streak (aside from the Long Conference grants). Commil USA, LLC v. Cisco Systems, Inc., 13-896, a one-time relist, arrived at the Court carrying a bit of baggage: two questions presented and a cross-petition riding in its side car. The government’s invited amicus brief persuaded the Court to lighten the case’s load by denying the cross-petition and limiting review to the first question, whether a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b). The Court also granted cert. in three-time relist Walker v. Texas Division, Sons of Confederate Veterans, Inc., 14-144, thereby vindicating last week’s prediction that the Court had chosen Walker as the proper “vehicle” for determining whether messages on state-issued specialty plates qualify as government speech that is immune from any requirement of viewpoint neutrality. But any points we got for that were immediately offset by the grant in six-time relist Brumfield v. Cain, 13-1433, a case that we were sure would result in a dissent from denial of cert. or somesuch. Brumfield asks (1) whether a state court that relies entirely on proof presented at a petitioner’s penalty phase proceeding to decide his claim of mental retardation has based its decision on an unreasonable determination of facts; and (2) whether the court must fund an indigent petitioner’s attempt to obtain evidence of his mental retardation. Well, two out of three ain’t bad.

Perhaps in the spirit of seasonal charity, the Court chose not to deny cert. in any of last week’s relists. The Court instead engaged in a little “regifting,” allowing a trio of seasoned relists to slouch toward yet another Conference. Kalamazoo County Road Commission v. Deleon, 13-1516 (seventh relist since the record arrived), asks whether it is an “adverse employment action” or a “materially adverse action” when an employer grants an employee’s request for a job transfer that he winds up disliking. Toca v. Louisiana, 14-6381 (second relist since the record arrived, fifth overall), concerns the retroactivity of Miller v. Alabama, in which the Court held that life without parole for minors violates the Eighth Amendment. And Christeson v. Roper, 14-6873 (fourth relist), is a capital case asking (1) whether an actual conflict of interest meets the “interests of justice” standard established in Martel v. Clair and requires substitution of conflict-free counsel, and (2) whether appointed counsel who procedurally defaulted the client’s federal habeas application by untimely filing the petition should continue their court appointment to argue that their own misconduct warrants equitable tolling. [Disclaimer: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, filed an amicus brief in support of the petitioner in Christeson.]

The Justices put three new baubles in our relist stockings. Kimble v. Marvel Enterprises, Inc., 13-720, involves a time-honored Yuletide tradition – arguing over toys. Kimble invented, and later patented, a toy that “allows a child to role play as Spider-Man by mimicking that superhero’s web-shooting abilities with foam string.” After entering into an agreement with the respondent, Marvel Enterprises, Kimble sued Marvel for breach and patent infringement, alleging that the company used his ideas in a toy called the “Web Blaster.” The parties ultimately settled, with Kimble assigning his patent to Marvel in exchange for a royalty from sales. However, the settlement agreement did not provide for any reduction in the royalty rate after the assigned patent expired. Later, when disagreements about royalty calculation resulted in a federal suit, Marvel successfully argued to the Ninth Circuit that under the Supreme Court’s decision in Brulotte v. Thys Co. — an Elwood-argued case! — there is a per se bar on licensing arrangements involving post-expiration patent royalties. Kimble’s petition asks “[w]hether th[e] Court should overrule Brulotte.”

In a decidedly un-comic-al vein, we have Schultz v. Wescom, 14-59, also from the Ninth Circuit. Nikkolas Lookabill, a twenty-two-year old veteran, was involved in a quarrel with three men in Vancouver, Washington. Police officers arrived at the scene; and while important facts regarding the police confrontation are in dispute, it is undisputed that officers shot and killed Lookabill. Respondents, Lookabill’s stepfather and half-brother, sued the officers/petitioners, claiming that they had violated Lookabill’s constitutional rights. After the officers moved for summary judgment on grounds of qualified immunity, the district court deferred ruling on the motion until respondents had “an opportunity to conduct meaningful discovery” responsive to petitioners’ factual assertions. The officers appealed, but the Ninth Circuit dismissed the appeal for lack of jurisdiction. On cert., petitioners ask “(1) [w]hether the Ninth Circuit erred when it held—in conflict with [other Circuits]—that a district court’s order striking or refusing to consider a qualified immunity motion is not subject to interlocutory appeal, even when it subjects a public official to unlimited discovery for the duration of a lawsuit”; and (2) “[w]hether petitioners are entitled to qualified immunity.” [Disclaimer: John Elwood, who purportedly contributes to this column in various capacities, is among counsel to the respondents in Schultz.]

Our last n00b is a big case for the bankruptcy bar, but that is no guarantee that it will even keep our audience awake. Mind you, that doesn’t distinguish it from our usual material. Petitioner in Bullard v. Hyde Park Savings Bank, 14-116 owned property in Randolph, Massachusetts, on which the respondent held a mortgage. After filing for Chapter 13 bankruptcy, Bullard proposed a “hybrid” payment scheme that divided his debt into a secured claim (backed by the property) and an unsecured claim (representing the part of his mortgage that was “under water”). The bankruptcy court ultimately rejected the hybrid plan as inconsistent with the Bankruptcy Code. On appeal, a bankruptcy appellate panel (BAP) held that although the order denying the plan was not “final” because it left petitioner “free to propose an alternate plan,” the BAP nevertheless had authority to hear the appeal. Then, after acknowledging that decisions regarding hybrid plans “are in disarray,” the panel affirmed the plan’s denial on the merits. On appeal, the First Circuit dismissed Bullard’s appeal on the ground that it lacked jurisdiction under 28 U.S.C. § 158(d)(1). In Bullard’s cert. petition — which Hyde Park supports, in recognition of an “entrenched [circuit] split” — Bullard asks “[w]hether an order denying confirmation of a bankruptcy plan is appealable.” Gordon v. Bank of America, N.A., 13-1416, which raises the same question and which the Court also considered at the last Conference, now appears to be held, presumably for Bullard. Our premonition – make that a supremonition – is that, just as with Walker (the Fifth Circuit license-plate case), Bullard is the Court’s preferred vehicle for addressing this issue.

Since the Court adopted its new practice of publicly announcing that a decision has been made before Conference to reschedule a case, the cases that have been rescheduled have on the whole fared poorly. That was definitely true for last week’s last two rescheduled cases. BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc., 14-123, which was rescheduled for a second time last week, asked whether a district court may certify a class that includes numerous members who have not suffered an injury caused by the defendant. The case’s denial on Monday reminds us that life is made up of sobs, sniffles, and smiles, with sniffles predominating. In the “sobs” department: This week shed some light on our difficulty in obtaining the papers in last week’s challengingly captioned case Sigram Schindler Beteiligungsgesellschaft MBH v. Lee, Acting Director, Patent & Trademark Office14-424. Monday’s order list denied cert., but also included an entry directing counsel for petitioner to show cause why he shouldn’t be sanctioned for his conduct in connection with the petition. Ouch. A similar recent petition can be seen here.

Be sure to tune in next week for our last Relist Watch of 2014! After that, you’ll temporarily have to go elsewhere if you’re looking for an endless series of disappointments.

Thanks to Ralph C. Mayrell and Conor McEvily for compiling and drafting this update.



(relisted after the September 29, October 10, October 17, October 31, November 7, November 14, November 25, and December 5 Conferences)


(relisted after the October 31, November 7, November 14, November 25, and December 5 Conferences)


(relisted after the November 7, November 14, November 25, and December 5 Conferences)


(relisted after the December 5 Conference)


(relisted after the December 5 Conference)


(relisted after the December 5 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Dec. 11, 2014, 5:00 PM),