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One new relist on arbitration clauses

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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.

The Supreme Court continued its rapid turnover in relisted cases, granting review in four such cases on Friday.

The court had a total of four petitions in criminal cases presenting the question whether doctors convicted of unlawfully dispensing prescription drugs should be allowed to have a jury consider whether they subjectively believed the prescriptions were medically appropriate. As I kinda sorta predicted last week when the last of those four petitions was relisted, the court finally granted review in two of them to be argued together: Ruan v. United States, 20-1410, and Kahn v. United States, 21-5261. (The other two cases the court was considering will now be held pending the outcome of Ruan and Kahn and then disposed of as appropriate.)

I was likewise right that Egbert v. Boule, 21-147, was “total cert bait.” The case involves whether actions under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics are available for claims that the Border Patrol violated an inn-keeper’s Fourth Amendment rights for roughly handling him during a search and retaliating for his complaints by encouraging the Internal Revenue Service to investigate him. More surprisingly, the court granted cert in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc., 20-1641, alleging that the U.S. Courts of Appeals for the 6th and 9th Circuits are split on how to apply the anti-discrimination provisions of the Medicare Secondary Payer Act. All of last week’s other relists are back for another trip to the court’s conference this Friday.

We have one new relisted case this week: Morgan v. Sundance, Inc., 21-328. In 2011’s AT&T Mobility LLC v. Concepcion, the Supreme Court held that the Federal Arbitration Act requires courts to “place arbitration agreements on an equal footing with other contracts.” In Concepcion, the claim was that California state law treated arbitration contracts less favorably than other contracts. By contrast in Morgan, the plaintiff/petitioner claims that the U.S. Court of Appeals for the 8th Circuit has given arbitration clauses unduly favored treatment by making it harder to prove that a defendant has waived an arbitration clause than is necessary to prove waiver of other clauses. Despite having a name that conjures thoughts of late-1960s heartthrobs and impossibly exclusive festival tickets, respondent Sundance, Inc. operates Taco Bell franchises. Robyn Morgan, who worked at a Taco Bell franchise that Sundance owned, filed a putative class action in federal court under the Fair Labor Standards Act. Sundance moved to dismiss and later filed an answer to her complaint, making various arguments but not insisting on arbitration. After mediation did not lead to settlement, Sundance moved to compel individual arbitration of Morgan’s claims. The district court ruled that Sundance had waived its right to arbitration by not making it earlier. But on appeal, the 8th Circuit reversed because of “the absence of a showing of prejudice to Morgan.” In her petition, Morgan argues that lower courts are split on whether prejudice is a requirement to prove that a party has waived an argument, and that regardless, prejudice is not a required factor for waiver of other contractual clauses.

That’s all the new relists. But I have one update about one of last week’s relists, Volkswagen Group v. Environmental Protection Commission of Hillsborough County20-994. That case involves whether the Clean Air Act preempts state and local governments from regulating car manufacturers’ post-sale, nationwide updates to vehicle emissions systems. This Friday, the court will be considering for the first time yet another petition VW has brought raising the very same issue, Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost, 21-312. (“Aktiengesellschaft” is the German word for “eat the sadness of your enemies.”) As shown by last Friday’s grant in the case involving the prescribing doctors, the court sometimes waits for all cases raising a question to arrive at conference before acting. So we may get action one way or the other soon.

That’s all for this week. We’ll be back next week. Stay safe!

New Relist

Morgan v. Sundance, Inc., 21-328
Issue: Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts.”
(relisted after the Nov. 5 conference)

Returning Relists

Arlene’s Flowers Inc. v. Washington, 19-333
Issues: (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.
(certiorari petition relisted after the Jan. 10, 2020, Jan. 17, 2020, Jan. 24, 2020, Feb. 21, 2020, and June 24, 2021 conferences; rehearing petition relisted after the Sept. 27, 2021, Oct. 8, Oct. 15, Oct. 29 and Nov. 5 conferences)

Naum v. United States, 20-1480
Issue: Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication.
(relisted after the Sept. 27, Oct. 8, Oct. 15, and Oct. 29 conferences; now held for Ruan and Khan)

Couch v. United States, 20-7934
Issues: (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.
(relisted after the Sept. 27, Oct. 8, Oct. 15, and Oct. 29 conferences; now held for Ruan and Khan)

Volkswagen Group v. Environmental Protection Commission of Hillsborough County, 20-994
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems. CVSG: 9/27/2021 
(relisted after the Oct. 29 conference)

City of New York v. Frost, 20-1788
Issue: Whether, where a Section 1983 plaintiff alleges that his pretrial detention was influenced by fabricated evidence, and the existence of probable cause independent of the challenged evidence defeats his Fourth Amendment claim, he may still pursue a due process-based claim based on alleged use of the same challenged evidence in securing the same pretrial detention.
(relisted after the Oct. 29 conference; now held)

Knight v. Pennsylvania, 20-7805
Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
(relisted after the Oct. 29 and Nov. 5 conferences)

Holcombe v. Florida, 21-53
Issues: (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
(relisted after the Oct. 29 and Nov. 5 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29 and Nov. 5 conferences)

Recommended Citation: John Elwood, One new relist on arbitration clauses, SCOTUSblog (Nov. 10, 2021, 4:07 PM),