John Elwood provides his best guess about October Term 2017’s last relists.

Every June, before the justices leave town, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference. In recent years, that has overwhelmingly happened on the last Monday of June, which is also typically when the court hands down the last opinions of the term; the resulting order list is usually released the following day.

They’re running a little behind this year, so it looks like the last opinions will come down Tuesday or possibly even Wednesday of this week. And so it appears that the mop-up conference will probably be held the afternoon of whatever day that is. Near as I can tell, that hasn’t happened since October Term 2012, when that conference occurred on the last Wednesday of the month, and everything came out on Thursday.

The court granted six of the last 11 new relists (plus a seventh case that it had relisted twice). The court has not yet relisted any cases this week, but based on the cases it has not yet taken action on, it seems on course to relist 16 this week. If it grants a similar proportion of those cases, it should go a long way toward filling the December argument calendar.

Because of the compressed schedule, I typically go light on “analysis” and mostly just list the questions presented. October Term 2017’s last group of relists includes a few cases whose stay on the Supreme Court’s docket has been especially puzzling for me, so I’ll just note what they are. The first head-scratcher is E.I. DuPont de Nemours and Co. v. Smiley, 16-1189, which sat on the court’s docket for 385 days without action. The case involves a Fair Labor Standards Act question and also a question of deference to an agency’s interpretation of a statute advanced for the first time in litigation. The next puzzlers are a pair of cases involving legislative prayer — Rowan County, North Carolina v. Lund, 17-565, which the court has rescheduled 15 times, and Bormuth v. Jackson County, Michigan, 17-7220, which it has rescheduled 13 times.

Next up are two cases that present the question whether the court should overrule Nevada v. Hall, which held that one state can open the doors of its courts to a private citizen’s lawsuit against another state without its consent: Franchise Tax Board of California v. Hyatt, 17-1299, and Nevada Department of Wildlife v. Smith, 17-1348. If that issue sounds familiar, it’s because the court granted review on one of those cases (Hyatt) a few terms back, but couldn’t resolve the issue because the court was equally divided. Since that time, a new and potentially tie-breaking vote has joined the court.

There are also three cases in which the court sought the views of the solicitor general. Merck Sharp & Dohme Corp v. Albrecht, 17-290 (pre-emption), Herrera v. Wyoming, 17-532 (a wacky jurisdictional dispute involving Wyoming’s admission to the Union and Indian treaty rights) and Fourth Estate Public Benefit Corp. v. Wall-Street.com, 17-571 (copyright). The SG recommended that the court grant cert in all three, although he took the view that whether to grant in Merck presented a “close question.”

There’s something for everyone here. There’s also yet another redistricting/gerrymandering case (Harris v. Cooper, 16-166); yet another Armed Career Criminal Act case (Khoury v. United States, 17-8160, apparently involving the same issue as the already granted United States v. Stitt, 17-765); a habeas issue (Sexton v. Beaudreaux, 17-1106); a habeas jurisdictional issue (Gray v. United States, 17-7769); two cases presenting the question whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings (Obduskey v. McCarthy & Holthus LLP, 17-1307, and Greer v. Green Tree Servicing LLC, 17-1351); and two criminal petitions involving plain error and sentencing (Solano-Hernandez v. United States, 16-9187, and Villareal-Garcia v. United States, 16-9587).

And that’s it for October Term 2017. Thanks once again to Kevin Brooks for compiling the cases in this post one last time. And thanks to both Kevin and Kent Piacenti for performing that hideous task week-in and week-out all term. We’ve been on retirement watch for months. Tune in this October to see whether the Relist Watch team can muster the energy to do this one last time, or if Justice Anthony Kennedy will outlast us.

 

New Relists

Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the 14th Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(likely relisted after June 21 conference)

 

E.I. DuPont de Nemours and Co. v. Smiley, 16-1189

Issues: (1) Whether the Fair Labor Standards Act prohibits an employer from using compensation paid to employees for non-compensable, bona fide meal breaks that it included in their regular rate of pay as a credit against compensation owed for work time; and (2) whether an agency’s interpretation of a statute advanced for the first time in litigation is entitled to Skidmore v. Swift & Co. deference.

(likely relisted after June 21 conference)

 

Solano-Hernandez v. United States, 16-9187

Issues: [Petitioner is a pro se prisoner. I am attempting to obtain a copy from the office of the solicitor general.]

(likely relisted after June 21 conference)

 

Villareal-Garcia v. United States, 16-9587

Issues: [The Federal Public Defender told me that “The FPD does not make available to the public documents that are not available through an electronic service.” I am attempting to obtain a copy from the office of the solicitor general.]

(likely relisted after June 21 conference)

 

Merck Sharp & Dohme Corp v. Albrecht, 17-290

Issue: Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning. CVSG: 05/22/2018.

(likely relisted after June 21 conference)

 

Herrera v. Wyoming, 17-532

Issue: Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. CVSG: 05/22/2018.

(likely relisted after June 21 conference)

 

Rowan County, North Carolina v. Lund, 17-565

Issue: Whether legislative prayer delivered by legislators comports with the Supreme Court’s decisions in Town of Greece v. Galloway and Marsh v. Chambers, as the en banc U.S. Court of Appeals for the 6th Circuit has held, or does not, as the en banc U.S. Court of Appeals for the 4th Circuit has held.

(likely relisted after June 21 conference)

 

Fourth Estate Public Benefit Corp. v. Wall-Street.com, 17-571

Issue: Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held. CVSG: 05/16/2018.

(likely relisted after June 21 conference)

 

Sexton v. Beaudreaux, 17-1106

Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated the deferential review requirements of 28 U.S.C. § 2254(d) by setting aside a state conviction based on its de novo analysis of an ineffective-assistance claim, without fulfilling its obligation to consider whether fair-minded jurists could agree with the state court’s contrary conclusion.

(likely relisted after June 21 conference)

 

Franchise Tax Board of California v. Hyatt, 17-1299

Issue: Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.

(likely relisted after June 21 conference)

 

Obduskey v. McCarthy & Holthus LLP, 17-1307

Issue: Whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings.

(likely relisted after June 21 conference)

 

Nevada Department of Wildlife v. Smith, 17-1348

Issue: Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.

(likely relisted after June 21 conference)

 

Greer v. Green Tree Servicing LLC, 17-1351

Issue: Whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings.

(likely relisted after June 21 conference)

 

Bormuth v. Jackson County, Michigan, 17-7220

Issues: (1) Whether legislative prayer delivered by legislators comports with the Supreme Court’s decision in Town of Greece v. Galloway or whether it constitutes government speech that violates the establishment clause and the historical understanding of our founders as expressed in their statements and practices and the Treaty of Tripoli; (2) whether the command, “All rise and assume a reverent position” given by a government official before a prayer opportunity constitutes coercion under the standard created by the plurality opinion in Town of Greece v. Galloway; and (3) whether Federal Rule of Evidence 201 requires an appellate court to take judicial notice of evidence that is not subject to reasonable dispute when a party requests it.

(likely relisted after June 21 conference)

 

Gray v. United States, 17-7769

Issues: (1) Whether the Article I military or Article III court system appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal; and (2) whether 28 U.S.C. § 1259(1) confers certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case.

(likely relisted after June 21 conference)

 

Khoury v. United States, 17-8160

Issues: (1) Whether burglary of a vehicle or trailer being used as a dwelling place qualifies as generic burglary under the Armed Career Criminal Act; and (2) whether, where the language of the state statute is plainly broader than the generic offense, a litigant must demonstrate that the state previously applied the statute in a nongeneric way, in order to show the statute is overbroad.

(likely relisted after June 21 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; rescheduled after the March 16 conference; likely relisted after the June 21 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Eaton v. United States, 17-6680

Issues: (1) Whether 18 U.S.C. § 1466(a) is unconstitutional, both facially and as applied to the petitioner; and (2) whether supervised release and the Sex Offender Registration and Notification Act are illegal punishments to which the government does not have the right to subject the petitioner.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Jordan v. Mississippi, 17-7153

Issues: (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14 and June 21 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14 and June 21 conferences)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the Double Jeopardy Clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Wass v. Idaho, 17-425

Issue: Whether, when an officer elicits an admission without first providing a Miranda warning, the admissibility of the suspect’s post-warning statement is governed by the objective, subject-focused test adopted by the plurality opinion in Missouri v. Seibert, or the subjective, officer-focused test adopted by Justice Anthony Kennedy’s separate opinion in that case.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

 

Nieves v. Bartlett, 17-1174

Issue: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

 

Kaushal v. Indiana, 17-1356

Issues: (1) Whether, when a resident alien pleads guilty after incorrect advice by counsel as to clear immigration consequences and discovers the error prior to sentencing, a defendant must prove that he would have opted for trial had he been correctly advised when the sole remedy he seeks is to proceed to trial; (2) whether, when a defendant learns the immigration consequences three weeks after his guilty plea and promptly demands to go to trial, that adequately proves he would have opted for trial had he known the immigration consequences of his plea before he pleaded guilty; (3) whether the instant case represents a pattern of Indiana cases in which alien defendants who plead guilty while ignorant of the immigration consequences of their respective plea are unfairly denied their Sixth Amendment rights to effective assistance of counsel and trial by jury.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch: The final countdown, SCOTUSblog (Jun. 25, 2018, 8:39 PM), https://www.scotusblog.com/2018/06/relist-watch-the-final-countdown/