John Elwood reviews Monday’s relists.

With the recent reduction in trusted sources for Supreme Court news, we untrusted news sources must do our best to fill the gap. So even though I have an argument approaching, I will once again try to rise to the occasion. Happily for me, it’s a light week for relists.

First the old business. The court finally resolved that tangle of 56 Armed Career Criminal Act cases pretty much the way I expected. Otherwise, from last week’s installment, we had one denial, one grant and one relative rarity: a summary reversal that didn’t involve qualified immunity, habeas corpus or the death penalty. Although there were those who thought it wasn’t summary enough.

With that, we’re ready for the new business. That’ll be quick this week, because there is only one new relist. Near as I can tell, it involves a lawsuit between the director of the U.S. Patent and Trademark Office and Kanye West’s latest persona. Although in the interest of “accuracy,” I should note that I just now made that up. Iancu v. NantKwest Inc., 18-801, involves an oddly named immunotherapy company’s lawsuit challenging a decision by the U.S. Patent and Trademark Office finding its cancer-treatment patent application obvious and therefore unpatentable. NantKwest lost the suit, and the PTO sought attorneys’ fees under 35 U.S.C. § 145, which requires an applicant to pay “[a]ll the expenses of the proceedings.” A divided panel of the U.S. Court of Appeals for the Federal Circuit held that NantKwest was on the hook for “the attorney’s fees the [PTO] incurred to defend applicant’s appeal,” but the court, on its own motion, reheard the case en banc and reversed course. The majority held by a 7-4 vote that courts presumptively assess expenses under the “American rule,” which requires litigants to pay their own lawyers’ fees, and that Congress did not act explicitly enough in Section 145 to displace that presumption. The federal government now seeks review of that decision, arguing that the ordinary meaning of “expenses” includes attorneys’ fees. As a non-germane aside, NantKwest is represented by the law firm where Andrei Iancu served as managing partner until his appointment to the PTO in 2017.

That’s all for this week. Thanks to Ben Moss for compiling the relists.

 

New Relists

Iancu v. NantKwest Inc., 18-801

Issue: Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.

(relisted after the February 22 conference)

 

Returning Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4, January 11, January 18, February 15 and February 22 conferences)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4, January 11, January 18, February 15 and February 22 conferences)

 

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4, January 11, January 18, February 15 and February 22 conferences)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Nielsen v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

 

Kahler v. Kansas, 18-6135

Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

(relisted after the January 11, January 18, February 15 and February 22 conferences; record requested and received)

 

Kansas v. Garcia, 17-834

Issues: (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes. CVSG: 12/04/2018.

(rescheduled before the January 4, January 11, and January 18 conferences; relisted after the February 15 and February 22 conferences)

 

Lewis v. English, 18-292

Issue: Whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 in order to raise arguments that were foreclosed by binding (but erroneous) circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but that are meritorious in light of a subsequent decision overturning that erroneous precedent.

(rescheduled before the December 3 conference; relisted after the February 15 and February 22 conferences)

 

United States v. Wheeler, 18-420

Issue: Whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 and February 22 conferences)

 

Delancy v. Pastrana, 18-5773

Issue: Whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 and February 22 conferences)

 

Dusenbery v. Holt, 18-5781

Issue: Whether a prisoner whose motion under 28 U.S.C. § 2255 challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.

(relisted after the February 15 and February 22 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Feb. 27, 2019, 10:54 AM), https://www.scotusblog.com/2019/02/relist-watch-137/