John Elwood reviews Monday’s relists.

Greetings and welcome to the last Relist Watch of the year.  It’s been a time of great excitement for the Supreme Court bar. If it were not enough that the court is reconsidering basic doctrine, there have been exciting moves among the bar itself.

Let me get one non-relisted matter out of the way right at the beginning: The Supreme Court is set to consider at conference tomorrow a motion for a limited remand respondents in the census case filed to permit the lower courts to consider evidence that the Department of Commerce added the citizenship question for the very purpose of suppressing Hispanic participation. [Disclosure: Arnold & Porter is among the counsel to the plaintiffs in this case.] But we also have relists a-plenty: 19 of them. There’s something for everyone: abortion restrictions, the Lanham Act, jurisdiction over foreign states, antidiscrimination law, ERISA, a surprisingly basic Armed Career Criminal Act question and even something called the “Bob Richards” rule. Mind you, there are some relists that seem destined just to be “GVRd” — to have the petition granted, the judgment vacated and the case remanded for further consideration in light of some recently decided case. And, worse yet, some seem destined to have cert denied outright.

That’s all for October Term 2018.  Thanks to Sam Callahan, Andrew Tutt and Graham White for helping me sort the wheat from the chaff before the dockets had been updated.

 

New Relists

Republic of Sudan v. Owens, 17-1236

Issues: (1) Whether plaintiffs suing a foreign state bear a “lighter burden” in establishing the facts necessary for jurisdiction than in proving a case on the merits despite the Supreme Court’s holding to the contrary — at the urging of the solicitor general and the Department of State — in Venezuela v. Helmerich & Payne International Drilling Co.; (2) whether plaintiffs suing a foreign state can establish facts necessary for jurisdiction “based solely upon” the opinion testimony of so-called “terrorism experts,” when the record lacks admissible factual evidence sufficient to establish jurisdiction; and (3) whether the plaintiffs’ failure to prove a foreign state “either specifically intended or directly advanced” a terrorist attack is “irrelevant to proximate cause and jurisdictional causation,” when (i) the Foreign Sovereign Immunities Act’s “terrorism exception” establishes jurisdiction over a foreign state only when the foreign state provided material support “for” a specified act of terrorism, and (ii) proximate causation requires a “direct relationship” between the defendant’s conduct and the resultant injury. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Opati v. Republic of Sudan, 17-1268

Issues: (1) Whether a party who knowingly and intentionally twice defaults; acts to delay, and not in good faith; and affirmatively elects not to contest a nonjurisdictional legal issue before judgment may nevertheless demonstrate “extraordinary” and “exceptional” circumstances warranting appellate review of the forfeited nonjurisdictional legal issue post-judgment; and (2) whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Republic of Sudan v. Opati, 17-1406

Issues: (1) Whether the term “extrajudicial killing” means a summary execution by state actors, as is consistent with international law and the statutory text, context and purpose of 28 U.S.C. § 1605A(a); (2) whether foreign sovereign immunity may be withdrawn for emotional-distress claims brought by family members of victims under 28 U.S.C. § 1605A(a)(2)(A)(ii); (3) whether 28 U.S.C. § 1605A(c) provides the exclusive remedy for actions brought under 28 U.S.C. § 1605A(a), and forecloses state substantive causes of action previously asserted through the “pass-through” provision of 28 U.S.C. § 1606; (4) whether the statute of limitations contained in 28 U.S.C. § 1605A(b) is jurisdictional in nature and, if it is not, whether the U.S. Court of Appeals for the District of Columbia Circuit should nonetheless have heard Sudan’s limitations defense asserted through its timely, direct appeal; and (5) whether the undisputed fact of civil war, internal strife and partitioning of Sudan into two counties constitutes excusable neglect or extraordinary circumstances for vacatur under Rule 60(b) of the Federal Rules of Civil Procedure. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Thole v. U.S. Bank, N.A., 17-1712

Issue: (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019.

(relisted after the June 20 conference)

 

Hall v. United States, 17-9221

Issue: 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 the same conduct.

(relisted after the June 20 conference)

 

Harris v. West Alabama Women’s Center, 18-837

Issue: Whether a state ban on dismemberment abortions is unconstitutional where there is a reasonable medical debate that alternatives to the banned procedure are safe.

(rescheduled before the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences; relisted after the June 20 conference)

 

Babb v. Wilkie, 18-882

Issues: (1) Whether the statement in 42 U.S.C. § 2000e-16(a) that “all personnel actions effecting employees or applicants for employment … in executive agencies as defined in Title 5 … shall be made free from any discrimination” permits federal-sector personnel actions that are not made free from any discrimination or retaliation, as long as discrimination or retaliation is not the but-for cause of the personnel action, or rather prohibits personnel actions where discrimination and retaliation is a factor; (2) whether Title VII bans retaliation in federal employment.

(relisted after the June 20 conference)

 

GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, 18-1048

Issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

(relisted after the June 20 conference)

 

Lucky Brand Dungarees v. Marcel Fashions Group Inc., 18-1086

Issue: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.

(relisted after the June 20 conference)

 

Espinoza v. Montana Department of Revenue, 18-1195

Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

(relisted after the June 20 conference)

 

Romag Fasteners Inc. v. Fossil Inc., 18-1233

Issue: Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).

(relisted after the June 20 conference)

 

Rodriguez v. Federal Deposit Insurance Corporation, 18-1269

Issue: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common-law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.

(relisted after the June 20 conference)

 

Shular v. United States, 18-6662

Issue: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

(relisted after the June 20 conference)

 

Hunter v. United States, 18-7105

Issue: Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell.

(relisted after the June 20 conference)

 

Patrick v. United States, 18-7797

Issue: Whether, in determining if a prior offense is a qualifying predicate conviction under the Armed Career Criminal Act, courts should employ a categorical approach or a conduct-based approach.

(relisted after the June 20 conference)

 

Hayes v. United States, 18-7833

Issues: (1) Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell; (2) whether the U.S. Court of Appeals for the 11th Circuit erred in denying petitioner a certificate of appealability because the issue above is debatable among reasonable jurists.

(relisted after the June 20 conference)

 

Pressey v. United States, 18-8380

Issues:  (1) Whether prior convictions under Fla. Stat. §893.13 qualify as “serious drug offenses” for purposes of the ACCA, §924(e)(2)(A)(ii); (2) whether Florida’s resisting-with-violence offense qualifies as an ACCA predicate, where that offense can be committed by only a minimal degree of force.

(relisted after the June 20 conference)

 

Wilson v. United States, 18-8447

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred in holding that the petitioner’s drug offense qualifies as a “serious drug offense” under the Armed Career Criminal Act where mens rea is not even an implied element of the definition of a “serious drug offense” in § 924(e).

(relisted after the June 20 conference)

 

Moody v. United States, 18-9071

Issue: Whether 18 U.S.C. §924(a) provides for criminal penalties to felons who possess firearms in interstate commerce absent proof that they knew of their felon status, or of the firearm’s movement in interstate commerce.

(relisted after the June 20 conference)

 

Returning Relists

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, January 18, June 13 and June 20 conferences)

 

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, January 18, June 13 and June 20 conferences)

 

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, January 18, June 13 and June 20 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, May 30, June 6, June 13 and June 20 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)

 

Kelly v. United States, 18-1059

Issue: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

(relisted after the June 13 and June 20 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 26, 2019, 6:24 PM), https://www.scotusblog.com/2019/06/relist-watch-149/