John Elwood reviews Tuesday’s relists.

I’m going to be very summary because of the press of professional obligations this week.

As predicted, the Supreme Court agreed with the solicitor general’s recommendation and granted review in Hernandez v. Mesa, 17-1678, involving the liability of American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. Looks like Swartz v. Rodriguez, 18-309, presenting the same question, will be held pending its decision.

After a whopping 14 relists, the court acted summarily in Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483. By a 7-2 margin (meaning it won the support of Justices Stephen Breyer and Elena Kagan), the court summarily reversed the U.S. Court of Appeals for the 7th Circuit’s decision invalidating an Indiana statute requiring that fetal remains resulting from abortions not be treated as “infectious and pathological waste” and incinerated, but instead be cremated or buried. The court noted that it had previously held that a state has a legitimate interest in proper disposal of fetal remains. Justice Sonia Sotomayor noted her vote to deny cert. Justice Clarence Thomas wrote a lengthy concurrence, and Justice Ruth Bader Ginsburg a brief dissent. The court unanimously denied review on the second issue the case raised, involving the validity of a prohibition barring the knowing provision of sex-, race- or disability-selective abortions. Because of what it may portend for various states’ new restrictions on abortion, this is the most carefully analyzed summary reversal (and cert denial) in years. And court watchers will continue to read these particular tea leaves for months to come.

Now we really have to speed up, because we have six new relists this week. Allen v. Cooper, 18-877, involves whether Congress has the constitutional authority to abrogate state sovereign immunity for copyright infringement. That issue comes up more often than you’d think. Monasky v. Taglieri, 18-935, involves the Hague Convention on the Civil Aspects of International Child Abduction, and the circumstances under which a court will determine that a child has established its “habitual residence” under the convention for purposes of determining where that child should reside. The en banc U.S. Court of Appeals for the 6th Circuit divided 10-8 below, so obviously, there’s room for disagreement.

Retirement Plans Committee of IBM v. Jander, 18-1165, involves the pleading standard necessary for making out a claim under the Employee Retirement Income Security Act of 1974 for breach of a fiduciary duty of prudence. The subject matter is sufficiently dense and difficult that the relist may have been necessary just so the justices could plow through the page-long question presented. But because the case would require the court to revisit Fifth Third Bancorp v. Dudenhoeffer, which established it, the case allows us to enjoy once again Breyer’s excellent framing of the goal of the pleading standard: to “readily divide the plausible sheep from the meritless goats.” Which, as an aside, was the name of Breyer’s college band.

That brings us to two related petitions: Comcast Corporation v. National Association of African American-Owned Media, 18-1171, and Charter Communications Inc. v. National Association of African American-Owned Media, 18-1185. Entertainment Studios Networks owns several television networks that it sought unsuccessfully to have carried on Comcast’s and Charter Communications’ cable systems. ESN then sued, claiming that the cable operators’ denial was based on a racist effort to disadvantage African-American-owned networks in violation of 42 U.S.C. § 1981. The district court dismissed ESN’s complaint, but the U.S. Court of Appeals for the 9th Circuit reversed. The court ruled that Section 1981 does not require but-for causation, deepening an acknowledged conflict with other courts of appeals. It also held that ESN’s claim was plausible despite alternative explanations for Comcast’s conduct and the complaint’s failure to allege facts showing that the other companies with which the cable operators contracted were situated similarly to ESN. The cable operators seek to revisit the 9th Circuit’s decision.

That brings us to this week’s last relist: Holguin-Hernandez v. United States, 18-7739. It involves an issue that the justices have considered repeatedly: whether a criminal defendant must formally object after his sentence is pronounced to preserve an objection to the reasonableness of the length of his sentence. The government admits there is a circuit split on the issue, with only the U.S. Court of Appeals for the 5th Circuit requiring a contemporaneous objection. And the government believes that rule is wrong: “When a defendant argues for a given sentence and the district court imposes a different sentence, the defendant has already put the court on notice of his objection to the length of the sentence and so — in accord with [Federal Rule of Criminal Procedure] Rule 51(a), which provides that ‘[e]xceptions to rulings’ are unnecessary — need not repeat that objection after the court announces the sentence.” But the government nonetheless believes the court should deny review in this case because it says the error did not affect the outcome in Gonzalo Holguin-Hernandez’s case. Evidently, the court needs another week to weigh its options. We should have a better idea Monday what will happen.

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

 

New Relists

Allen v. Cooper, 18-877

Issue: Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.

(relisted after the May 23 conference)

 

Monasky v. Taglieri, 18-935

Issues: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.

(relisted after the May 23 conference)

 

Retirement Plans Committee of IBM v. Jander, 18-1165

Issue: Whether the “more harm than good” pleading standard of Fifth Third Bancorp v. Dudenhoeffer can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

(relisted after the May 23 conference)

 

Comcast Corporation v. National Association of African American-Owned Media, 18-1171

Issues: (1) Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation; (2) whether a plaintiff can state a plausible claim for relief if the complaint does not allege facts tending to exclude obvious alternative explanations for the challenged conduct and does not allege facts to support all elements of the claim.

(relisted after the May 23 conference)

 

Charter Communications Inc. v. National Association of African American-Owned Media, 18-1185

Issues: (1) Whether, in accordance with the Supreme Court’s directive that “but-for” causation is the default rule for federal anti-discrimination statutes, the implied cause of action under 42 U.S.C. § 1981 enacted in the Civil Rights Act of 1866 imposes a but-for standard of causation or instead incorporates the “motivating factor” standard first created in the late 20th century for Title VII claims; (2) whether a cable operator has a First Amendment right to include racial considerations among the factors it evaluates in making editorial determinations as to what programming to carry on its limited bandwidth.

(relisted after the May 23 conference)

 

Holguin-Hernandez v. United States, 18-7739

Issue: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

(relisted after the May 23 conference)

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16 and May 23 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)

 

McAleenan 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)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9, May 16 and May 23 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United StatesUnited States v. BagleyBrady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16 and May 23 conferences)

 

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9 and May 16 conferences)

 

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9, May 16 and May 23 conferences; now held)

 

Wheeler v. United States, 18-7187

Issues: (1) Whether a law enforcement officer’s warrantless insertion of keys into a locked apartment door, within a secured multi-unit dwelling, to gain information that was unavailable to the naked eye is an unreasonable search; (2) whether the rule of the U.S. Court of Appeals for the 3rd Circuit, which limits parties to the precise arguments raised in the district court, directly conflicts with the Supreme Court’s traditional rule that parties are not limited to the precise arguments made below but can make any argument in support of a claim that was properly presented.

(relisted after the May 9, May 16 and May 23 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 30, 2019, 11:11 AM), https://www.scotusblog.com/2019/05/relist-watch-145/