One new case, two issues of appellate procedure
on Apr 29, 2021 at 4:19 pm
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
A lot of movement on the relist front this week. The court granted review in relisted cases involving the first two amendments to the U.S. Constitution, summarily overturned a court of appeals decision in a relisted habeas case for the second time in a month, and denied leave to file an “original jurisdiction” lawsuit between two states that had been relisted 10 times, drawing the dissent of Justice Samuel Alito (joined by Justice Clarence Thomas), who argued the court lacked discretion not to hear the case.
While the court disposed of four relisted cases this week, it added only one new relist. Ericsson Inc v. TCL Communication Technology Holdings Limited, 20-1130, arises in the patent context, but raises two general issues of procedure. Ericsson owned a patent important in the age of smart phones, controlling the ability of downloaded apps to access sensitive phone data and hardware (by, say, turning on the microphone and eavesdropping). Ericsson sued TCL alleging its phones infringed its patents. TCL moved for summary judgment alleging that the Ericsson patent was invalid under 35 U.S.C. § 101 because it claimed an abstract idea. The district court denied TCL summary judgment, the case went to trial, the jury found TCL had willfully infringed the patent, and it awarded Ericsson $110 million in damages. At trial, TCL did not present evidence supporting its Section 101 “abstract idea” theory, and it did not raise Section 101 at the close of evidence or when it moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). Nor did it argue that the patent claims were invalid under Section 101 after the verdict, when TCL filed a renewed motion for judgment as a matter of law under Rule 50(b).
On appeal, the U.S. Court of Appeals for the Federal Circuit, by a 2-to-1 vote, held that Ericsson’s patent was invalid under Section 101. The court excused TCL’s failure to raise Section 101 in its motions for judgment as a matter of law for two reasons. First, because there were no disputed material issues of fact, the Federal Circuit concluded that denial of summary judgment to TCL was essentially entry of summary judgment on patent eligibility for Ericsson. Second, the court concluded it had discretion to hear on appeal issues that had been waived, and they chose to exercise it here because the issue had been briefed below. Judge Pauline Newman dissented, arguing that the majority had “set aside the Federal Rules and sound practice for civil trials and appeals.”
In its petition to the Supreme Court, Ericsson argues that the Federal Circuit violated two basic rules of civil procedure made clear in Ortiz v. Jordan. First, parties ordinarily cannot “appeal an order denying summary judgment after a full trial on the merits.” Second, courts are “powerless” to set aside a jury verdict on appeal unless the party seeking review sought judgment as a matter of law under Rule 50 in the trial court. Ericsson argues that there are circuit splits on both issues. TCL argues that “there is no circuit split when a district court’s denial of summary judgment is of the type that effectively grants summary judgment to the nonmovant.” We should have a better idea Monday whether the court is interested in granting review.
Ericsson Inc v. TCL Communication Technology Holdings Limited, 20-1130
Issues: (1) Whether, notwithstanding the ordinary rule that a pretrial denial of a motion for summary judgment is not reviewable on appeal, there is an exception for summary-judgment decisions that turn solely on “legal issues”; and (2) whether an order denying summary judgment can be reviewed following trial, at the discretion of the court of appeals, notwithstanding a party’s failure to seek judgment as a matter of law on those grounds under Federal Rule of Civil Procedure 50.
(relisted after the April 23 conference)
Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]
Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11 conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences)
Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences)
Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences; distributed for April 30 conference after supplemental briefing)
Woodard v. United States, 20-6387
Issue: Whether, as many courts have held, allowing a prosecution to continue after lengthy and demonstrably prejudicial delay in filing criminal charges offends due process, even absent prosecutorial intent to gain a tactical advantage or harass, when the prosecution cannot provide an explanation for the delay sufficient to justify the extent of the prejudice suffered by the defendant.
(relisted after the March 19, March 26, April 1, April 16 and April 23 conferences)
Allen v. Wells Fargo & Co., 20-866
Issues: (1) Whether, under Fifth Third Bancorp v Dudenhoeffer, fiduciaries of an employee stock ownership fund are effectively immune from duty-of-prudence liability for the failure to publicly disclose inside information; and (2) whether Dudenhoeffer’s framework extends beyond prudence-based claims and applies to duty-of-loyalty claims against ESOP fiduciaries.
(relisted after the April 1, April 16 and April 23 conferences)
Doe v. United States, 20-559
Issues: (1) Whether Feres v. United States, which held that the Federal Tort Claims Act broadly precludes claims for injuries “incident to service,” was wrongly decided and should be overruled; and (2) whether, alternatively, Feres should be limited so as not to bar tort claims brought by servicemembers injured by violations of military regulations, during recreational activities or while attending a service academy.
(relisted after the April 16 and April 23 conferences)