Relist Watch

John Elwood reviews Monday’s relists.

There will not even be a gesture at writing a full post with comical hyperlinks this week. Too many deadlines. So this week, you just get the questions presented for each of the dozen new relists. There are three related Affordable Care Act cases whose questions presented are a study in contrasts; three cases involving inter partes review of patents; a couple of immigration cases involving equitable tolling; two cases involving motions for reconsideration on habeas corpus review; a case involving allegations of fraud by public officials; and case raising the question whether a state can get copyright for annotations to its official code.

The court will issue grants on Monday. And if the past is any guide, the justices also will hold an as-yet-unscheduled conference on Monday. There, they will consider all the cases relisted for the first time after today’s conference before deciding which cases warrant further review and then clearing out of town for the summer later next week.

That’s all for this week. Thanks again to Tom Mitsch for compiling the relists, and thanks to him and Ben Moss for compiling the relists throughout October Term 2018. The old man will probably be compiling the cases alone on Monday. Be very afraid.

 

New Relists

Guerrero-Lasprilla v. Barr, 18-776

Issue: Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

(relisted after the June 13 conference)

 

Dex Media Inc. v. Click-To-Call Technologies, LP, 18-916

Issues: (1) Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply; and (2) whether 35 U.S.C. § 315(b) bars institution of an inter partes review when the previously served patent infringement complaint, filed more than one year before the inter partes review petition, had been dismissed without prejudice.

(relisted after the June 13 conference)

 

Atlanta Gas Co. v. Bennett Regulator Guards Inc., 18-999

Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.

(relisted after the June 13 conference)

 

Ovalles v. Barr, 18-1015

Issues: (1) Whether the application of a legal standard to an undisputed set of facts is a question of law or a pure question of fact that may be barred from judicial review; or, more specifically, (2) whether the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable-tolling purposes, notwithstanding the lack of a factual dispute.

(relisted after the June 13 conference)

 

Maine Community Health Options v. United States, 18-1023

Issues: (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.

(relisted after the June 13 conference)

 

Superior Communications Inc. v. Voltstar Technologies Inc. , 18-1027

Issues: (1) Whether, under 35 U.S.C. § 314(d), a party may appeal the Patent Trial and Appeal Board’s application of 35 U.S.C. § 315(b)’s time-bar provision made during its decision to institute inter partes review; and (2) whether 35 U.S.C. § 315(b) precludes the Patent Trial and Appeal Board from instituting inter partes review when the petitioner sought inter partes review more than a year after it was served with a patent infringement complaint that was voluntarily dismissed without prejudice.

(relisted after the June 13 conference)

 

Moda Health Plan Inc. v. United States, 18-1028

Issue: Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.

(relisted after the June 13 conference)

 

Land of Lincoln Mutual Health Insurance Company v. United States, 18-1038

Issue: Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.

(relisted after the June 13 conference)

 

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 conference)

 

Georgia v. Public.Resource.Org Inc., 18-1150

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.

Issue: Whether the government-edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

(relisted after the June 13 conference)

 

Banister v. Davis, 18-6943

Issues: (1) Whether Gonzalez v. Crosby extends to post-judgment motions filed under Federal Rule of Civil Procedure 59(e); (2) whether, if Gonzalez does apply, a timely filed Rule 59(e) motion should toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv); and (3) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has be recharacterized as a successive habeas petition if that recharacterization will affect his ability to file a timely notice of appeal.

(relisted after the June 13 conference)

 

Patton v. United States, 18-7449

Issues: (1) Whether a district court has the authority to reconsider the merits of a 28 U.S.C. § 2255 action in response to a prisoner’s timely post-judgment motion under Federal Rule of Civil Procedure 59(e); and (2) whether, assuming that a prisoner’s notice of appeal would otherwise be timely under Federal Rule of Appellate Procedure 4(a)(4)(A), the court of appeals’ subsequent decision that the post-judgment motion was, in substance, a successive “claim” for relief renders the appeal of the original judgment untimely and deprives that court of jurisdiction over the appeal.

(relisted after the June 13 conference)

 

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences)

 

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 and June 13 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 and June 13 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 and June 13 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 States, United States v. Bagley, Brady 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 amd June 13 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)