Relist Watch

By John Elwood
on May 9, 2017 at 10:19 am

John Elwood reviews Monday’s relists.

So on only our third try, we were correct that Justice Neil Gorsuch would fully participate in the court’s conference (with the usual number of incidental recusals) to discuss potential grants and the like. It may have been a milestone in the life of the court – just like when the newest member of the cafeteria committee leaves his mark on the court’s menu (NB: Justice, you’ll get less ribbing for adding poutine if you call the dish “gravy cheese fries.”). But it was largely a status quo conference. The court granted a couple of cases (both, gratifyingly, relists); the rest of the last batch of relists are taking another turn on the relist wheel.

The returning cases include, a bit surprisingly, Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which raises (among other issues) the same question as Merit Management Group, LP v. FTI Consulting, Inc., 16-784, granted last Monday. I would have expected the court simply to hold it for Merit, but perhaps the justices need more time to figure whether to grant on another of Deutsche Bank’s issues.

There is only one new relist this week – but oh, what a relist it is. Peruta v. California, 16-894, asks whether the Second Amendment entitles citizens to carry handguns outside the home for self-defense – including concealed carry when carrying firearms openly is forbidden by state law. Under California law, openly carrying a handgun outside the home is generally prohibited, but concealed carry is permissible with a license. Applicants for concealed-carry permits must demonstrate “good cause” to obtain a license, which some county sheriffs (the relevant decision-makers) interpret to include a desire to carry a handgun for self-defense. The San Diego County Sheriff, however, defines “good cause” to require a showing of a particularized need for self-defense. Petitioners, a group of unsuccessful applicants (and potential applicants discouraged from applying by the sheriff’s interpretation) challenged that interpretation under the Second Amendment. The district court rejected their claims. But the majority of a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in an opinion by Judge Diarmuid O’Scannlain, held that the policy unconstitutionally infringed applicants’ Second Amendment rights. The majority of an en banc panel reached the opposite conclusion in an opinion by Judge William Fletcher, holding that the sheriff may deny concealed-carry licenses on any terms he chooses because there is no independent constitutional right to the concealed carrying of a firearm. (Thanks to the 9th Circuit’s unusual en banc procedures, the en banc panel excluded O’Scannlain.)

Four times, Peruta has been rescheduled – a procedure that, despite the court’s modest explanatory efforts, remains largely shrouded in mystery. It may be that the court was moving the case forward incrementally to ensure that the case was not considered at conference until the court had its full complement of members. In any event, the court relisted Peruta for the first time, which is good news for petitioners’ counsel, who include former solicitor general Paul Clement.

That’s all for this week. Tune in next week for more ill-informed tea-leaf reading!

Thanks to Bryan U. Gividen for compiling the cases in this post.

============================================================

New Relists

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28 conference)

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21 and April 28 conferences)

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 and April 21 conferences)

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held — contrary to several other courts of appeals — that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code — that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).