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Once more unto the Relist Watch

For (almost) the last time this Term, John Elwood reviews Monday’s relisted cases.

As our dwindling readership can attest, our exclusive concern here at Relist Watch (you’d say our “lifeblood,” if we were at all lifelike) is rank speculation about what cases the Court will decide to decide. Sure, we’re as interested as the next law nerd when the Court makes headlines because it can’t decide a case, and more interested still when it decides by not deciding. But it really only affects our work when the Justices decide not to decide because they’re worried they won’t be able to decide. It either validates our existence or calls it in to question. We can’t decide.

This week brought good news for the petitioners’ counsel in a pair of one-time relists – if “lucky” can really be used to describe people who will spend their summer restricted by SCOTUS briefs; deep down, they envy those who retain their freedom. Jennings v. Rodriguez, 15-1204, involves a government challenge to lower court decisions holding that certain detained aliens are entitled to bond hearings. As the government requested, the Court held its companion, first-time relist Shanahan v. Lora, 15-1205, which poses a narrower challenge to this detention scheme, and (as the government likewise requested) tubed Shanahan’s conditional cross-petition, Lora v. Shanahan, 15-1307, in which the non-citizen contested his classification under the detention scheme. The Court also green-lighted National Labor Relations Board v. SW General, Inc., 15-1251, a complete nerd-fest of a case addressing the scope of a provision of the Vacancies Reform Act.   The case involves whether a person who is temporarily designated to fill a vacant office after the departure of the Senate-confirmed presidential appointee must have served as first assistant for at least ninety days in the year preceding the vacancy. It’s hard to believe that the Court didn’t expedite briefing of a case whose outcome will so plainly affect the upcoming presidential election.

Never have so many gloated so much about so little. Monday also saw the issuance of orders granting the petition, vacating the judgment, and remanding (“GVRs”) that (as your faithful correspondents predicted in noncommittal fashion) occasioned separate writings. Williams v. Louisiana, 14-9409, Flowers v. Mississippi, 14-10486, and Floyd v. Alabama, 15-7553, were all tossed back to lower courts for further Batson-style rumination in light of Foster v. Chatman. True to recent practice, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, concurred in the Williams GVR, remarking that a Louisiana procedural rule – permitting a trial court, rather than a prosecutor, to supply a race-neutral reason for striking a potential juror at Batson’s second step – conflicted with the Court’s jurisprudence. In dissent, Justice Samuel Alito, joined by Justice Clarence Thomas, protested that “whether petitioner is entitled to relief on this [second-step] ground has nothing to do with Foster,” since Foster addressed only Batson’s third step. Alito and Thomas likewise dissented from de GVR in Flowers and Floyd, arguing that the way “the Court treats the State Supreme Court” in GVRing is how “an imperious senior partner in a law firm might treat an associate.” By which we assume they mean “pay someone a tremendous amount of money to take summer associates to lunch.”

Now we must slog through the categorie of ye olde returning relists. We have five. Our guess is that the Court will be eager to dispose of these hangers-on (particularly the old timers) before it leaves for the summer. Our regular readers are both familiar with these cases now, so we’ll be summary. As all but those in particularly deep comas know by now, six-time relist Stormans, Inc. v. Wiesman, 15-862, involves a group of pharmacists who are challenging, under the Free Exercise Clause, a Washington state regulation that requires pharmacies to dispense lawfully prescribed drugs, but whose statutory exemptions don’t include one for religious objectors. Surely, we should be receiving an opinion or eight in this case in the coming days. The rehearing petition in Hawkins v. Community Bank of Raymore, 14-520, likewise scored a sixth relist. Hawkins was affirmed by an equally divided court, to everyone’s great surprise since it involves the treatment of spousal guarantors under the Equal Credit Opportunity Act, consideration of which normally induces hysterical blindness long before people can form an opinion of it. We can’t mention Hawkins without mentioning the rescheduled petition for rehearing that is its doppelganger: Friedrichs v. California Teachers Association, 14-915, a case that was also affirmed by an equally divided Court. Friedrichs has been rescheduled seven times already with such regularity that we’ll just go ahead and predict it’ll be rescheduled once again by the time we get around to publishing this post. Update: Yup.

Capital case Elmore v. Holbrook, 15-7848 (fourth relist) asks whether trial counsel may decide to present evidence of only a single mitigating factor during the penalty phase of a criminal trial without first investigating other mitigating factors, and whether the habeas statutes permit a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief. Third-time relists Jones v. United States, 15-8629, and Beckles v. United States, 15-8544, both ask essentially: (1) whether Johnson v. United States applies retroactively to collateral cases challenging the residual clause of the Sentencing Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the guidelines’ residual clause; and (3) whether the defendant’s robbery (Jones)/possession of a sawed-off shotgun (Beckles) conviction qualifies as a “crime of violence” under the career-offender provision’s residual clause. Both the Jones and Beckles petitions urge prompt action because the Antiterrorism and Effective Death Penalty Act’s one-year bar on Johnson claims runs . . . well, technically, yesterday.

On to new business. Good news for readers who want to avoid facing the emptiness of their lives: given the high number of relists, and the number of significant cases on for yesterday’s Conference (which may find themselves relisted at the as-yet-unscheduled mop-up Conference expected Monday), there is a real prospect the Court will eliminate the grant deficit for October Term 2017. The Court has relisted eight – count ‘em, seven – cases this week. Our billables are totally hosed. Thanks Obama.

The first of this Gang of Eight is a patent case. While it may sound exquisitely dull, listen up, because the odds of a grant are quite good. The petitioner in Life Technologies Corporation v. Promega Corporation, 14-1538, manufactures genetic testing kits used in various fields, such as clinical research and forensic identification. One of the kit’s components, Taq polymerase, is manufactured in the United States, and then shipped overseas to Life Technologies Corporation’s factory in the UK. After Promega Corporation licensed Life Technologies the right to the DNA replication technology for only certain applications (“legal proceedings”), Promega Corporation (exclusive licensee of the technology) sued, alleging Life Technologies had infringed the patent by selling kits into unlicensed fields. Life Technologies won before the district court, but the Federal Circuit reversed. Life Technologies raises two questions about 35 U.S.C. § 271(f)(1), which provides that it is an act of patent infringement to “suppl[y] … in or from the United States all or a substantial portion of the components of a patented invention … in such manner as to actively induce the combination of such components outside the United States.” First, the petition asks whether a single entity (here Life Technologies) can “actively induce” itself to infringe a patent under 35 U.S.C. § 271(f)(1); and second, whether supplying customers a single, commodity component of a multi-component invention from the United States is an infringing act under Section 271(f)(1). The Solicitor General recommends the Court grant only on the second question.

Resource Investments, Inc. v. United States, 15-802, reminds us that the Federal Circuit doesn’t just decide boring patent cases all day: It also resolves dull claims against the federal government! After being retained by Pierce County, Washington, to develop a waste disposal facility in the early ‘80s, Resource Investments, Inc. acquired a parcel of “uniquely desirable” land – desirable, that is, for locating a trash dump – and went about securing necessary permits, including a Clean Water Act permit, which the Army Corps of Engineers denied. Resource Investments challenged the Corps’ jurisdiction under the Administrative Procedure Act, which a federal court rejected. While the APA appeal was pending before the Ninth Circuit, Resource Investments filed a takings claim in the Court of Federal Claims (CFC), arguing that while its claim was for a permanent taking, the claim would be for a temporary taking if the Ninth Circuit reversed in the APA suit. The Ninth Circuit then proceeded to reverse; but because the Corps’ assertion of jurisdiction deprived Resource Investments of the use of its land for more than a decade, they continued with their CFC claim. The CFC ruled for Resource Investments on most summary judgment issues, but as the remaining issues headed for trial, the Supreme Court decided United States v. Tohono O’odham Nation, holding that, under 28 U.S.C. § 1500 – which precludes CFC jurisdiction over a claim if the same claim against the United States is pending in another court – two claims are the “same” if they are based on “substantially the same operative facts.” Seizing on Tohono, the government persuaded the CFC to dismiss the suit on the grounds that it lacked jurisdiction because the APA suit was on appeal when the CFC claim was filed. The Federal Circuit affirmed, identifying two operative and overlapping facts under Tohono: the permit denial and the assertion of economic injury. On cert., Resource Investments raises two questions: (1) whether the Federal Circuit impermissibly broadened Section 1500’s jurisdictional bar when it construed the Court’s “substantially the same operative facts” standard to mean “arising out of the same transaction”; and (2) “[w]hether, in absence of clear congressional intent to bar constitutional claims, § 1500 should be construed to preclude Fifth Amendment takings claims and, if so, whether such an interpretation would be unconstitutional.”

Visa, Inc. v. Osborn, 15-961, and Visa, Inc. v. Stoumbos, 15-962, are twin cases that involve allegations of conspiracy among ATM networks in setting the fees for using those networks to access other providers’ ATMs. The ATM networks of both Visa and MasterCard (petitioners in these two cases) have adopted rules applicable to operators who process transactions over their networks. Respondents, who represent a putative class of consumers, say that these rules are the product of “horizontal” agreements among bank members of Visa and MasterCard’s ATM networks to “fix” ATM access fees by reducing competition at the network level. But (and here’s the important part) rather than alleging that there were agreements to fix these fees, the consumers rely solely on the structure of Visa and MasterCard as “membership associations.” The D.C. Circuit ruled that while association membership alone was insufficient to plead a conspiracy with other members, the plaintiff class members had sufficiently alleged a conspiracy because they claimed the banks used the associations to adopt and enforce a supracompetitive pricing regime for ATM access fees. On cert., Visa & Mastercard ask whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead an element of conspiracy in violation of Section 1 of the Sherman Act.

What’s this? Another set of twins? Wells Fargo & Co. v. City of Miami, 15-1112, and Bank of America Corp. v. City of Miami, 15-1111, both arise from suits the Magic City brought under the Fair Housing Act. Claiming that Wells Fargo and Bank of America engaged in discriminatory lending practices by targeting minorities for predatory loans, refusing to extend minorities credit on equal terms, and including even more farcical fine print no one ever read in their form contracts, the city of Miami sued the banks, arguing that it suffered losses in property-tax revenue as a result of increased foreclosures and decreased property values. This “multi-step theory of causation,” the Bank of America petition claims, “would have made Rube Goldberg proud.” Who can say? The Eleventh Circuit rejected the banks’ arguments that the city’s theory contravened the FHA’s language, which authorizes only “aggrieved person[s]” to sue, relying on precedent holding that the right to sue under the FHA extends to the limits of Article III. The two petitions essentially raise the same QPs: (1) “[w]hether the term ‘aggrieved’ in the Fair Housing Act imposes a zone-of-interests requirement more stringent than the injury-in-fact requirement of Article III”; and (2) “[w]hether the City is an ‘aggrieved person’ under the Fair Housing Act.” Interesting.

Our last full blown relist, McCrory v. Harris, 15-1262, is a Voting Rights Act (VRA) case in which North Carolina challenges the conclusion of a three-judge district court that two of its congressional districts were unconstitutionally racially gerrymandered. The state’s jurisdictional statement lists six questions presented, and whenever you get six of anything, you begin to wonder whether a few should have been eliminated. The questions include (1) whether it was error to presume racial predominance from North Carolina’s position that a district complies with the VRA by ensuring African Americans have an equal opportunity to elect their preferred candidate “if it contains a numerical majority of African Americans”; (2) whether it was error to require North Carolina to show that a district’s construction was “actually necessary” under the VRA, rather than showing that it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; and (3) whether the three-member court erred in relieving plaintiffs of their burden to prove that “race rather than politics” predominated with proof of an alternative plan.

The reason we were a bit slippery about the number of relists this week is that our eighth new relist, while looking to all the world like a relist, is probably just a released hold that appears to be a candidate for de GVR. Versata Development Group, Inc. v. SAP America, Inc., 15-1145, which raises issues under the Leahy-Smith America Invents Act, was distributed for the June 16 Conference, and then relisted for the June 23 Conference. But sharp-eyed readers will note the case is tied to Cuozzo Speed Technologies, LLC v. Lee, the case concerning so-called inter partes review of patents that the Court decided Monday. Versata argued that that the case at a minimum should be held for Cuozzo, and the government’s brief in opposition argues that all of the issues presented are tied up with those addressed in Cuozzo. So this case may well just be resolved based on Cuozzo; we’ll have to see whether it is relisted for the Court’s mop-up Conference Monday.

We’ve largely resisted the temptation to talk about rescheduled cases, since the Court has always relisted them first before granting. We have made an exception for Friedrichs above. Regrettably for all parties involved, we’re making three more exceptions today. First is Hernández v. Mesa, 15-118, the cross-border shooting case that’s been the subject of a few relists and a CVSG. Last we checked in on the case it had been rescheduled, but only after it had been considered at Conference (usually, cases are rescheduled before Conference). As of this writing, it’s still awaiting a new Conference date. Likewise rescheduled is O’Bannon v. NCAA, 15-1167, the very high-profile antitrust challenge to prohibitions on compensating college athletes. O’Bannon’s rescheduling is probably to put the case in a holding pattern so its companion case, NCAA v. O’Bannon, 15-1388, can catch up. And finally, the Court has rescheduled Delaware Strong Families v. Denn, 15-1234. That case out of the Third Circuit raises a question about whether a state’s interest in “‘increas[ing] … information concerning those who support the candidates,’ Buckley v. Valeo, permits it to condition a charity’s publication of a nonpartisan voter education guide, which lists all candidates equally and makes no endorsements, upon the immediate and public disclosures of the names and addresses of individuals making unrelated donations over the previous four years.”

That’s it! With the end of our last full-length Relist Watch, we are at last poised for release from our duties for the summer, or as the pundits call it, “Rwexit.” We’ll probably be back briefly on Monday to wrap up loose ends, but you’ve been subjected to the last of our strained attempts at humor until this fall. Until then, stay tubed!

Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.


[page]14-520[/page] (relisted after the May 12, May 19, May 26, June 2, June 9, and June 16 Conferences)


[page]15-862[/page] (relisted after the May 12, May 19, May 26, June 2, June 9 and June 16 Conferences)


[page]15-7848[/page] (relisted after the May 26, June 2, June 9 and June 16 Conferences)


[page]15-8544[/page] (relisted after the June 2, June 9, and June 16 Conferences)


[page]15-8629[/page] (relisted after the June 2, June 9, and June 16 Conferences)


[page]14-1538[/page] (relisted after the June 16 Conference)


[page]15-802[/page] (relisted after the June 16 Conference)


[page]15-961[/page] (relisted after the June 16 Conference)


[page]15-962[/page] (relisted after the June 16 Conference)


[page]15-1111[/page] (relisted after the June 16 Conference)


[page]15-1112[/page] (relisted after the June 16 Conference)


[page]15-1145[/page] (relisted after the June 16 Conference)


[page]15-1262[/page] (relisted after the June 16 Conference)


Recommended Citation: John Elwood, Once more unto the Relist Watch, SCOTUSblog (Jun. 24, 2016, 1:18 PM),