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Court adds new cases to merits docket

Today the Supreme Court added seven new cases, for a total of five hours of oral argument, to its merits docket for this term. The cases cover a range of issues, from a divorced couple’s dispute over military retirement pay to the scope of the patent exhaustion doctrine, as well as the excessive use of force by the police, the contours of an exemption from federal employee benefits laws for churches, and the interpretation of an international convention on the service of process.

Two of the cases in which the justices granted review today were cases in which the U.S. solicitor general had recommended a grant. The first of those two cases, Impression Products v. Lexmark International, involves a dispute over the sale of toner cartridges used in laser printers. Lexmark International holds several patents relating to the cartridges, which it generally sells subject to a restriction that bars buyers from either reusing the cartridges or transferring empty ones to anyone other than Lexmark. Because Impression Products buys empty cartridges, refurbishes them, and then sells them, Lexmark sued Impression, alleging that the sales infringe on Lexmark’s patents.

The issue in the case is the scope of the “patent exhaustion doctrine,” which provides that a patent holder’s exclusive rights are valid only for the first sale of the patented product. The lower court ruled that a patent holder like Lexmark can bypass the exhaustion doctrine by placing restrictions on the resale or use of the patented product, and that the sale of a patented product outside the U.S. does not exhaust the patent holder’s rights. When the justices asked the federal government to weigh in, Acting Solicitor General Ian Gershengorn urged the court to take on both of those questions, and today the justices agreed to do so.

The federal government also recommended that review be granted in Howell v. Howell, the dispute over military retirement pay. When John and Sandra Howell divorced in 1991, Sandra received half of her ex-husband’s military retirement pay, which began the following year. Fourteen years later, John waived part of that retirement pay in favor of disability benefits, which (unlike retirement pay) are not taxable. John’s waiver also reduced, by approximately $125 per month, Sandra’s share of John’s retirement pay.

The case centers on the interpretation of the Uniformed Services Former Spouses’ Protection Act, a 1982 law that authorizes state courts, in dealing with military retirement pay in a divorce, to treat “disposable retired pay” as either the service member’s property or the property of both the service member and the member’s spouse, depending on state law. The term “disposable retired pay” is in turn defined as the service member’s retirement pay, minus any portion of that pay waived in favor of disability benefits. This means, John contended, that he can’t be required to pay Sandra her share of the retirement pay that he now receives as a disability benefit. But Arizona courts agreed with Sandra that her monthly payments should be restored to the earlier, larger amount and that she was entitled to reimbursement for the lower

payments that she had received. When asked for its views earlier this year, the federal government told the justices that the Arizona Supreme Court’s ruling in Sandra’s favor was correct.

The plaintiffs in County of Los Angeles v. Mendez were shot by police officers in a backyard shack during a search for a felony suspect regarded as armed and dangerous. When the police officers saw a silhouette of the male plaintiff holding what appeared to be a rifle but was actually a BB gun, they fired at the plaintiffs, hitting both of them. The plaintiffs filed a federal civil rights lawsuit against the officers. The district court ruled that the officers’ use of force was reasonable because of the BB gun, but it nonetheless ruled that the officers were liable under the “provocation doctrine,” and awarded $4 million to the plaintiffs. The 9th Circuit affirmed that ruling; the Supreme Court will now review the case.

Water Splash, Inc. v. Menon arises from a state court lawsuit over splash pads, but it comes to the court as a dispute over the interpretation of the Hague Service Convention, which allows service of process between signatory states, without requiring the use of consular or diplomatic channels. The specific question presented by the case is whether the convention allows service of process by mail – a question on which the lower courts are divided.

Finally, the justices also agreed to take on a trio of cases – Advocate Health Care v. Stapleton, St. Peter’s Healthcare v. Kaplan and Dignity Health v. Rollins – involving the interpretation of the Employee Retirement Income Security Act of 1974, which generally applies to employers that offer pensions and other benefits to their employees, but does not apply to church plans. The question presented by the cases is whether that exemption applies to pension plans maintained by employers – such as non-profit religious hospitals schools, and homes for the elderly – that are affiliated with a church, or whether the exemption instead applies only to plans that were originally established by a church. The petitions for review told the justices that the issue was “immensely important,” affecting “hundreds, probably thousands, of nonprofit religious employers and millions of employees.” The three cases were consolidated for one hour of oral argument.

The new cases will probably be slated for argument in late winter or early spring. Additional orders from today’s conference are likely on Monday, December 5, at 9:30 a.m.

Recommended Citation: Amy Howe, Court adds new cases to merits docket, SCOTUSblog (Dec. 2, 2016, 5:17 PM),