John Elwood reviews Monday’s relists.

We’re now in a countdown to October Term 2018’s final conference, which I expect to be held June 24, just as the justices issue their last opinions and are about to leave town for the summer. There, they’ll consider all the cases relisted after the last scheduled conference of the term on June 20. Thus, we likely have just three installments after this one until we’re all finished. We’re not numerologists or anything but that number just keeps coming up.  Three new relists were granted this week. And a thrice-relisted petition was granted and the judgment below vacated to consider the effect of intervening legislation. So this really is a thing — we’re not weird or anything.

And the streak continues, because this week there are precisely three new relists. Plus, I suppose, if you want to be super-technical, one more than three: Jordan v. City of Darien, Georgia, 17-1455. But that one doesn’t quite count. It raises a question the court recently resolved – whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law. (Answer: yes). Because petitioner Dwight Jordan would appear to lose under that rule, the court may be determining whether there are complicating factors that might require remand or whether it should simply deny review.

With that, we move on to the three main relists. First: A group of Montana landowners own property within a site designated for cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), because of pollution caused by a now defunct copper smelter. They sued Atlantic Richfield Company in state court, seeking state-law “restoration damages” for cleanup activities beyond those that the Environmental Protection Agency had ordered in its CERCLA response plan. Atlantic Richfield said federal law pre-empted those claims, but the Montana Supreme Court disagreed. When Atlantic Richfield sought review in Atlantic Richfield Company v. Christian, 17-1498, the Supreme Court called for the views of the solicitor general. Turns out that the solicitor general agrees with Atlantic Richfield that the Montana Supreme Court erred in holding those claims were not pre-empted. But he says “review would be premature at the present time” because the case is in an interlocutory posture and Atlantic Richfield might prevail on the merits, and he claims that deferring review “would have limited practical consequences” because EPA wasn’t a party to the litigation and isn’t bound by the Montana Supreme Court’s judgment. You will not be surprised to learn that Atlantic Richfield sees things slightly differently.

Second: Section 413(2) of the Employee Retirement Income Security Act (ERISA) prohibits actions commenced more than three years after “the earliest date on which the plaintiff had actual knowledge of the breach or violation.” Intel Corporation Investment Policy Committee v. Sulyma, 18-1116, concerns what showing must be made to start the clock on that three-year period. Christopher Sulyma, a former Intel employee, invested in the company retirement plan. Although the plan posted relevant documents online and told him they were there, he did not actually look at them, and he argues that he wouldn’t have understood the information they conveyed if he had. The petitioners, two Intel Corporation retirement plans, argue that it is enough that all of the information relevant to an alleged violation was disclosed to the plaintiff more than three years before the plaintiff filed the complaint, even if the plaintiff chose not to read the material or does not recall whether he read it or not. Sulyma argues that because he did not have actual knowledge of events, or actual knowledge that the investments were imprudent, the three-year period did not begin running. The district court agreed with Intel, but the U.S. Court of Appeals for the 9th Circuit agreed with Sulyma. Intel seeks further review.

That brings us to new relist number three. McKinney v. Arizona, 18-1109, asks whether a court must apply current law when deciding, for the first time but long after the flawed original sentencing, whether the mitigating and aggravating evidence in a capital case warrants the death sentence. In 1993, James Erin McKinney was convicted of murder and sentenced to death by a judge in Arizona. More than 20 years later, the 9th Circuit granted McKinney a conditional writ of habeas corpus, holding that Arizona courts had erred by failing to consider nonstatutory mitigating evidence in violation of Eddings v. Oklahoma (namely, that McKinney suffered from post-traumatic stress disorder caused by a traumatic childhood).

The case presents two questions. The first is whether a court must apply the law as it exists today, rather than as it existed at the time a defendant’s conviction first became final, when correcting a defendant’s sentence or conducting a resentencing. When McKinney was originally sentenced, a judge made factual findings that increased the maximum sentence. Now, after Ring v. Arizona, juries must find those facts. So McKinney argues that a jury must make the relevant findings now. The second question is whether the Arizona Supreme Court violated the Supreme Court’s decision in Eddings, and McKinney’s Sixth, Eighth, and 14th Amendment rights, by declining to remand his case for resentencing in the trial court rather than having an appellate court determine whether the sentence is correct.

That’s all for this week. Thanks again to Tom Mitsch for compiling the relists.

 

New Relists

Jordan v. City of Darien, Georgia, 17-1455

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.

(relisted after the May 30 conference)

 

Atlantic Richfield Company v. Christian, 17-1498

Issues: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies. CVSG: 04/30/2019.

(relisted after the May 30 conference)

 

McKinney v. Arizona, 18-1109

Issues: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

(relisted after the May 30 conference)

 

Intel Corporation Investment Policy Committee v. Sulyma, 18-1116

Issue: Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, which runs from “the earliest date on which the plaintiff had actual knowledge of the breach or violation,” bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.

(relisted after the May 30 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, May 23 and May 30 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, May 23 and May 30 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, May 23 and May 30 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, May 16, May 23 and May 30 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 and May 16 conferences; now held)

 

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 and May 30 conferences)

 

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 and May 30 conferences)

 

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 and May 30 conferences)

Posted in Atlantic Richfield Co. v. Christian, McKinney v. Arizona, Intel Corp. Investment Policy Committee v. Sulyma, Jordan v. City of Darien, Georgia, Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 6, 2019, 11:07 AM), https://www.scotusblog.com/2019/06/relist-watch-146/