John Elwood reviews Monday’s relists, after a fashion.

The work crunch continues at my day job, so another, uh, … succinct installment today. Two noteworthy changes this week.

First, on the abortion front, the Indiana ultrasound case, Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-1019, is no longer being relisted and it appears the court is holding it for the Louisiana admitting-privileges case, June Medical Services LLC v. Gee. Second, we have one new relist: Liu v. Securities and Exchange Commission, 18-1501. The SEC sued petitioners Charles Liu and Lisa Wang for securities violations. The district court ordered disgorgement of their profits as a form of injunctive relief based on circuit precedent, although that decision predated Kokesh v. SEC, in which the Supreme Court held that disgorgement is a penalty. Liu and Wang argue that Congress “has not authorized disgorgement as a form of relief” in civil actions. Uncle Sam counters that disgorgement comes within the SEC’s power to “enjoin” statutory violations and was also authorized by the Sarbanes-Oxley Act of 2002; and in any event, the government argues, Liu and Wang failed to preserve their current argument below.

That’s all for this week. We’ll be back next week with more.

New Relists

Liu v. Securities and Exchange Commission, 18-1501
Issue: Whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty.
(relisted after the October 18 conference)

Returning Relists

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1, October 11 and October 18 conferences)

Paul v. United States, 17-8830
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the September 24, 2018, June 27, 2019, and October 18, 2019, conferences)

Caldwell v. United States, 18-6852
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the February 15, June 27 and October 18 conferences)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 1, October 11 and October 18 conferences)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(relisted after the October 1, October 11 and October 18 conferences)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 1, October 11 and October 18 conferences)

Peithman v. United States, 19-16
[Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to an amicus in this case.]
Issue: Whether 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture imposed jointly and severally among co-conspirators, as the U.S. Courts of Appeals for the 6th and 8th Circuits have held, or whether such joint and several liability is foreclosed under the reasoning of Honeycutt v. United States, as the U.S. Court of Appeals for the 3rd Circuit has held.
(relisted after the October 11 and October 18 conferences)

Posted in Gundy v. U.S., Liu v. Securities and Exchange Commission, Peithman v. U.S., Terry v. Oklahoma, Isom v. Arkansas, McGirt v. Oklahoma, Paul v. U.S., Caldwell v. U.S., Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 29, 2019, 3:00 PM), https://www.scotusblog.com/2019/10/relist-watch-151/