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Relist Watch

John Elwood reviews Tuesday’s relists.

True to form for the second conference in January, last week’s 18 new relists yielded 12 new cases and 11 hours of oral argument. (Texas’ two state-on-top appeals concerning its congressional and statehouse voting districts were consolidated.) An already blockbuster term became better still as the court added cases that should resolve such important issues as whether Securities and Exchange Commission administrative law judges are “officers of the United States” within the meaning of the appointments clause of the Constitution; whether states can collect sales and use taxes on internet and direct-mail sales from out-of-state buyers; whether a court should defer to a foreign government’s characterization of its own country’s law; and what may be the single most contentious and divisive issue the Supreme Court has faced in a quarter century — whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act. Happily, it seems likely that last case will be argued in April, so the legions of citizens who will camp out in line for a week or more to attend argument at least will not be subject to subzero temperatures.

The court is back with more great relists this week – although, because we have passed the court’s traditional cutoff point for granting cases to be argued during the current term, the next grants likely will be argued in October. Indeed, some – and by “some,” I mean “me” – have speculated that the court may have rescheduled these cases precisely so any that are granted would be argued next term. Just days before the January 5 conference, the court rescheduled every one of this week’s newly relisted cases so that they’d be considered for the first time at the January 12 conference. That means that they’d be on their first relist at the third January conference – normally the conference at which the court starts filling its October calendar. The fact that all four of this week’s new relists were rescheduled before relisting suggests that the court won’t try to fit any granted cases on the April calendar, which would require either a short period for filing the reply briefs (two weeks, instead of the usual 30 days), or expedited briefing (which the Roberts court rarely orders). Perhaps the court will use the final April argument spots for as-yet-ungranted cases on a faster track – say, the travel ban or Deferred Action for Childhood Arrivals cases.

You can see why the court is pushing off this week’s new relists: The cases involve sufficiently momentous issues that if the justices decide to take them, they won’t want to knock the opinions out between the late April sitting and the end of June. Exhibit A is Garco Construction, Inc. v. Secretary of the Army, 17-225, which presents the question whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled. Those cases stand for the proposition that courts must defer to an agency’s interpretation of its own ambiguous regulation unless that interpretation is plainly erroneous or inconsistent with the regulation. Despite the fact that he wrote Auer, Justice Antonin Scalia began calling for the court to reconsider “Auer deference” in October Term 2010. By now, several justices have called for it to be reconsidered, though they have stopped short of driving pencils through its heart. For a host of reasons (chief among them that the rule encourages agencies to write ambiguous regulations), Auer is perhaps the most hated opinion of anti-administrativists everywhere.

Next up is a case that has been the subject of some commentary. For those who are only just now emerging from a long coma, Hargan v. Garza, 17-654, involves an unaccompanied teenager (known as “Jane Doe” to protect her privacy) who was caught trying to enter the United States illegally. When she later discovered she was pregnant, she wanted to have an abortion. Seeking to avoid facilitating abortions, the federal government refused to allow her to leave its custody. The full U.S. Court of Appeals for the District of Columbia Circuit ordered the government to permit her to leave. Doe had the abortion on October 25, 2017, instead of October 26, as originally planned. The abortion mooted the legal dispute about whether the government was legally required to release Doe for the abortion before it had sought review of the D.C. Circuit’s decision. The government’s petition seeks summary-action Munsingwear vacatur. To most Americans, “Munsingwear vacatur” obviously means getting pantsed while wearing tighty-whities. But it has a very different meaning in the legal context. As the author of the controlling D.C. Circuit decision in this case previously explained on SCOTUSblog, United States v. Munsingwear, Inc. involves “what to do with a court of appeals decision when the case becomes moot while it is pending on review by a higher court. … In Munsingwear, the Supreme Court held that, where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated.” The idea is that the party seeking review shouldn’t be stuck with a decision it was trying to overturn when it lost that opportunity through no fault of its own. In addition to seeking summary vacatur, the government suggested that the justices “may wish to issue an order to show cause why disciplinary action should not be taken against” Doe’s attorneys for “what appear to be material misrepresentations and omissions to the government designed to thwart this Court’s review” regarding the date of the abortion. Because we at Relist Watch strive at all times to be anodyne, let me just say that much has been written on this case, and I’m not going improve on that here.

The next case is nowhere as gripping as Munsingwear. Section 1 of the Federal Arbitration Act provides that the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Dominic Oliveira is an independent contractor whose agreement with interstate trucking company New Prime includes a mandatory arbitration provision requiring Oliveira to arbitrate all work disputes with New Prime on an individual basis, and mandates that all disputes regarding arbitrability be decided by an arbitrator. Oliveira filed a putative class action in court and opposed arbitration on the basis of the Section 1 exemption. So that poses the question of who decides whether the FAA applies – a court or an arbitrator? The U.S. Court of Appeals for the 1st Circuit held that the applicability of the FAA is a threshold question for a court to determine before compelling arbitration under the act. In New Prime Inc. v. Oliveira, 17-340, New Prime seeks review of that decision, arguing that, under the contract, the arbitrator should decide whether the FAA applies, and that the FAA’s Section 1 exemption is limited to “contracts of employment” and doesn’t apply to independent-contractor agreements.

If you think this post has gone on forever, you haven’t seen anything. CNH Industrial N.V. v. Reese, 17-515, involves a lawsuit filed in 2004. The case concerns whether the healthcare benefits of CNH retirees have vested under the governing collective bargaining agreement. CNH argues that on the case’s *third* trip to the U.S. Court of Appeals for the 6th Circuit, that court effectively revived a circuit-precedent presumption that benefits have vested that the Supreme Court abrogated in M & G Polymers USA, LLC v. Tackett. Court-watchers will note that Judge Jeffrey Sutton dissented from the ruling below. Sutton is tied for third place among current court of appeals judges for the most cert grants in cases in which he dissented (five). He is also tied for second place among that group for having decisions from which he dissented overturned by the Supreme Court (also five; he has a perfect record so far).

We’ll be back again next week and then, blessedly, we all get a month off. Until next time!

Thanks to Kent Piacenti for compiling the cases in this post.


New Relists

Garco Construction, Inc. v. Secretary of the Army, 17-225

Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.

(relisted after the January 12 conference)


New Prime Inc. v. Oliveira, 17-340

Issues: (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

(relisted after the January 12 conference)


CNH Industrial N.V. v. Reese, 17-515

Issue: Whether the U.S. Court of Appeals for the 6th Circuit misinterpreted the Supreme Court’s decision in M & G Polymers USA, LLC v. Tackett, thus creating a conflict with the decisions of other circuits and within the U.S. Court of Appeals for the 6th Circuit itself, by employing rules of contract interpretation explicitly repudiated in Tackett to deem a general duration clause in the collective bargaining agreement ambiguous, and then using extrinsic evidence to hold the healthcare benefits of the retiree class vested for life.

(relisted after the January 12 conference)


Hargan v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12 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, January 5 and January 12 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, January 5 and January 12 conferences)


Hidalgo v. Arizona, 17-251

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, January 5 and January 12 conferences)


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 and January 12 conferences) 


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 and January 12 conferences)


Kisela v. Hughes, 17-467

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 and January 12 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 17, 2018, 11:51 AM),