Relist Watch
on Jan 10, 2018 at 5:17 pm
John Elwood reviews Monday’s relists.
Here it is the second week of 2018, and I’m still writing “Infrastructure Week” on my checks. The justices’ New Year’s resolution evidently involved granting more cases, because after a fall that was fairly light on relists, we now have too many riches: 18 first-time relists, plus three returning veterans. That’s not quite as amazing as it sounds, because eight of those fall into three groups of related cases. The second conference in January is traditionally heavy on relists — last year’s had 27, yielding 16 grants and 13-ish hours of argument. If that pace of grants seems a little lumpy to you, there are reasons for that. First, there is almost a month between conferences from mid-December until early January, so a lot of petitions build up. Second, the second January conference is the traditional cutoff for granting cases that can still be argued that term without expedited briefing. And, relatedly, the solicitor general times the filing of court-invited amicus briefs for the January cutoff, so that category of cases that is statistically likely to yield grants (and thus relists) is over-represented at this conference. (The second, and usually bigger, swell of solicitor general amicus briefs arrives in time for the June cutoff for grant decisions to be made before the court recesses for the summer.)
There are so many juicy cases, it’s hard to know where to begin. Because it’s my party, I’ll begin with Lucia v. Securities and Exchange Commission, 17-130, and Securities and Exchange Commission v. Bandimere, 17-475. Both cases raise the question whether administrative law judges of the Securities and Exchange Commission are “officers of the United States” within the meaning of the appointments clause of the Constitution, meaning that they have to be appointed by the commission as a whole. Because practice at the time was for ALJs to be appointed by SEC staff rather than by the commission, a holding that they are officers would invalidate actions they had taken in the past. This is an issue so important that “Shark Tank”’s Mark Cuban — potentially the next president of the United States if Oprah doesn’t win that office by voice vote — filed an amicus brief supporting the challengers. The solicitor general filed a brief reversing the government’s traditional position that ALJs are employees and instead took the position that ALJs are “officers.” What’s more, the solicitor general recommended that the Supreme Court take Lucia, because the government’s own petition in Bandimere came from the United States Court of Appeals for the 10th Circuit, and the government fretted that Justice Neil Gorsuch might recuse himself because the government’s rehearing petition in that case came through his chambers, raising the risk of a 4-4 tie vote. As if that weren’t enough drama, the day after the solicitor general’s office filed its Lucia brief acquiescing in review, the SEC formally ratified the appointment of the ALJs in question, so their actions going forward would be valid, arguably depriving the cases of continuing importance. Since then, people who are actually smart have debated whether the issue remains live and certworthy or not, and even deployed my favorite Supreme Court put-down, the word “baffling.” I’m just glad that we should have an answer soon, so I can stop being baffled. At least about the appointments clause.
Next up are Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71, and Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74, which involve the Environmental Protection Agency’s efforts to preserve the improbably named “dusky gopher frog,” which now makes its home in a single Mississippi county. The regulated parties characterize the issue as involving whether the government can designate for Endangered Species Act protection land that is “neither habitat” for that species “nor essential to species conservation.” The case drew noteworthy dissents from a panel of the U.S. Court of Appeals for the 5th Circuit and from denial of rehearing en banc by a close vote. As an aside, the petitioners in these cases had to file an environmental impact statement because of rampant deforestation caused by the filing of 13 amicus briefs supporting them.
In an age when members of the public can no longer bestir themselves to leave their vaguely couch-shaped objects to purchase needful items in person, South Dakota v. Wayfair, Inc., 17-494, may regrettably represent the future. The case invites the Supreme Court to revisit precedent that generally bars states from collecting sales and use taxes on internet and direct-mail sales from out-of-state buyers. Justice Anthony Kennedy called for reconsideration of that precedent, and we will soon learn whether the court will take up that invitation. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
The rest of the cases are equally consequential, but we don’t have the space to do extended-dance-remix writeups for each of them. So in condensed format: The identically captioned Abbott v. Perez, 17-586, and Abbott v. Perez, 17-626, and companions Texas Democratic Party v. Abbott, 17-680, and Morris v. Texas, 17-780, involve appeals from a three-judge district court decision rejecting some challenges to Texas’ congressional and statehouse voting districts, but accepting others. Texas seeks review of holdings that certain redistricting decisions were invalid; the challengers raise now–familiar claims that partisan gerrymandering is justiciable. Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 16-1220, principally involves whether a court should defer to a foreign government’s characterization of foreign law. WesternGeco LLC v. ION Geophysical Corporation, 16-1011, involves the availability of lost-profits damages in patent infringement cases for combinations occurring outside of the United States. Washington v. United States, 17-269, involves whether road culverts that reduce fish habitat in Washington state violate Native American fishing rights guaranteed by treaty. And Wisconsin Central Ltd. v. United States, 17-530, involves the question whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1). The government has conceded that the court should take that case, so you’d better get used to hearing about it.
As hard as it is to believe, after all that blather, there are five more relists I haven’t even covered yet. But we’re going to have to leave those for Relist Watch SelectTM below, because I have to leave now to appear on a new talk show on the Gorilla Network. Be sure to tune in next week, when we’ll be back with yet more blockbuster material.
Thanks to Kevin Brooks for compiling the cases in this post.
[This post’s discussion of Lucia v. Securities and Exchange Commission and Securities and Exchange Commission v. Bandimere has been revised to clarify that the procedures used for appointing the administrative law judges involved in those cases is no longer “current.” The post has also been revised to indicate that the SEC as a whole ratified the appointment of the ALJs, rather than ratifying the ALJ’s decisions, and to note that the SEC’s action arguably deprived the cases of ongoing significance.]
New Relists
WesternGeco LLC v. ION Geophysical Corporation, 16-1011
Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). CVSG: 12/06/2017.
(relisted after the January 5 conference)
Lamar, Archer & Cofrin, LLP v. Appling, 16-1215
Issue: Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. CVSG: 11/09/2017.
(relisted after the January 5 conference)
Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 16-1220
Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit, in conflict with the decisions of three courts of appeals, erred in exercising jurisdiction under 28 U.S.C. § 1291 over a pretrial order denying a motion to dismiss following a full trial on the merits; (2) whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the U.S. Courts of Appeals for the 5th, 6th, 7th, 11th and District of Columbia Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the U.S. Court of Appeals for the 9th Circuit); and (3) whether a court may abstain from exercising jurisdiction on a case-by-case basis, as a matter of discretionary international comity, over an otherwise valid Sherman Antitrust Act claim involving purely domestic injury. CVSG: 11/14/2017.
(relisted after the January 5 conference)
Lagos v. United States, 16-1519
Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.
(relisted after the January 5 conference)
Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71
Issues: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
(relisted after the January 5 conference)
Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74
Issues: (1) Whether the Endangered Species Act authorizes the federal government to designate as critical habitat private land that is unsuitable as habitat and has no connection with a protected species; and (2) if the act authorizes such a designation, whether it would be consistent with the United States Constitution.
(relisted after the January 5 conference)
Lucia v. Securities and Exchange Commission, 17-130
Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.
(relisted after the January 5 conference)
Washington v. United States, 17-269
Issues: (1) Whether the treaty “right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes”; (2) whether the district court erred in dismissing the state’s equitable defenses against the federal government when the federal government signed these treaties in the 1850’s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and the plaintiffs showed no clear connection between culvert replacement and tribal fisheries.
(relisted after the January 5 conference)
Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”
(relisted after the January 5 conference)
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.
(relisted after the January 5 conference)
Securities and Exchange Commission v. Bandimere, 14-475
Issue: Whether administrative law judges of the Securities and Exchange Commission, who act as hearing officers in administrative proceedings, are inferior officers under the appointments clause.
(relisted after the January 5 conference)
South Dakota v. Wayfair, Inc., 17-494
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: Whether the Supreme Court should abrogate Quill Corp. v. North Dakota‘s sales-tax-only, physical-presence requirement.
(relisted after the January 5 conference)
Wisconsin Central Ltd. v. United States, 17-530
Issue: Whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1).
(relisted after the January 5 conference)
Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; (4) whether the legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.
(relisted after the January 5 conference)
Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw Texas House of Representatives districts unless the governor called a special legislative session to redraw the Texas House map within three business days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted Texas House of Representatives districts originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether any of the invalidated districts that were unchanged from the 2012 court-imposed remedial plan to the 2013 legislatively adopted plan (in Bell, Dallas and Nueces Counties) are unlawful, when the district court in 2012 issued an opinion explaining why these districts were lawful; (4) whether the Texas legislature had a strong basis in evidence to believe that consideration of race to maintain a Hispanic voter-registration majority was necessary in HD90 in Tarrant County, when one of the plaintiffs in the lawsuit told the legislature it had to keep the district’s population above 50 percent Spanish-surnamed voter registration to avoid diluting Hispanic voting strength.
(relisted after the January 5 conference)
Texas Democratic Party v. Abbott, 17-680
Issues: (1) Whether partisan gerrymandering claims are justiciable; and (2) whether the district court erred by dismissing appellants’ partisan gerrymandering claims without discovery and an evidentiary record.
(relisted after the January 5 conference)
Issues: (1) Whether voting districts, to the degree that they are not drawn to conform to court-recognized criteria, burden the First and 14th Amendment political rights of parties and their adherents; (2) whether there is a frequent-election objective in Article 1, Section 2, of the United States Constitution that requires a redistricting to allow as many voters in a district as possible who have voted in a previous election in the district to use their First Amendment-based accumulated knowledge of an incumbent or candidates to vote in a subsequent election; and (3) whether court-recognized redistricting criteria and a frequent-election objective together present a reliable means by which to measure the representational rights of political parties and their adherents.
(relisted after the January 5 conference)
Chavez-Meza v. United States, 17-5639
Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a pre-printed form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.
(relisted after the January 5 conference)
Returning Relists
Sykes v. United States, 16-9604
Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8 and January 5 conferences)
Serrano v. United States, 17-5165
Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.
(relisted after the November 21, December 1, December 8 and January 5 conferences)
Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
(relisted after the December 1, December 8 and January 5 conferences)
