RELIST WATCH

The (likely) last grants of October Term 2021

This article was updated on June 29 at 4:20 p.m.

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.

On Wednesday, the Supreme Court is holding its impromptu mop-up conference, during which the justices meet for the last time before the summer recess. They are considering 63 petitions (most of them cases that have been held for recent merits cases) and one motion. The court will be looking especially closely at 10 of them, which are the newly relisted cases.

We’ll have to be fairly summary because of time pressure, but in brief, the new relists fall into five categories:

• four related cases regarding the scope of conduct that can be punished as wire fraud;
• two cases addressing the standard for determining whether a patent claim is “directed to” a patent-ineligible concept, and whether patent eligibility is a question of law or fact;
• two cases about the scope of preemption under the Airline Deregulation Act;
• one case about the scope of preemption under the Federal Aviation Administration Authorization Act;
• and one criminal case alleging prosecutorial misconduct.

If the past is any guide, we will likely receive an order list disposing of these cases before the end of the week. The court sometimes grants a few cases over the summer, mostly from the emergency docket.

But barring summer grants, that’s (probably) all for this term. Until next time, stay safe!

Update: As of about 1 p.m. on Wednesday, the online dockets of all 10 new relists and all six returning relists bore the notation “DISTRIBUTED for Conference of 6/29/2022,” indicating that they had been relisted for Wednesday’s conference. However, beginning around 3:30 p.m., that notation had disappeared on many of the dockets. As of 4:20 p.m., only three of the 16 cases indicated that they had been distributed for the Wednesday conference: Grzegorczyk v. United States, Canales v. Lumpkin, and Dr. A v. Hochul.  It appeared the notation had been removed from the other dockets. We are uncertain what this means, but those cases are all still pending. 

New Relists

American Axle & Manufacturing Inc. v. Neapco Holdings LLC, 20-891
Issues: (1) What standard determines whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent. CVSG: 5/24/2022
(relisted after the June 23 conference)

California Trucking Association, Inc. v. Bonta, 21-194
Issue: Whether the Federal Aviation Administration Authorization Act preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services. CVSG: 5/24/2022
(relisted after the June 23 conference)

Virgin America, Inc. v. Berstein, 21-260
Issue: Whether the Airline Deregulation Act preempts generally applicable state laws that have a significant impact on airline prices, routes, and services, as the Supreme Court and four circuits have held, or whether it preempts such laws only if they bind an airline to a particular price, route, or service, as the U.S. Court of Appeals for the 9th Circuit has held. CVSG: 5/24/2022
(relisted after the June 23 conference)

Air Transport Association of America, Inc. v. Washington Department of Labor & Industries, 21-627
Issue: Whether the Airline Deregulation Act preempts neutral state laws only where those laws “bind” an airline to a “particular” price, route or service (as the U.S. Court of Appeals for the 9th Circuit held), or whether it preempts any state law that has a “significant impact” on carrier prices, routes or services even if that impact “is only indirect” (as the Supreme Court in Morales v. Trans World Airlines, Inc. and several courts of appeals have held).
(relisted after the June 23 conference) 

Anthony v. Louisiana, 21-993
Issues: (1) Whether the presumption of innocence, the right to confrontation and the right to a fair trial permit a court to allow the grand jury prosecutor to take the stand and offer testimony regarding the prosecutor’s belief about the credibility of the alleged victims, the guilt of the defendant and the strength of the state’s evidence; (2) whether the admission of such prosecutorial testimony constitutes structural error or, instead, is subject to harmless error review; and (3) whether a reviewing court’s conclusion that the evidence at trial supports the defendant’s convictions even excluding the grand jury prosecutor’s testimony meets the state’s burden of proving harmless error beyond a reasonable doubt.
(relisted after the June 23 conference)

Percoco v. United States, 21-1158
Issue: Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.
(relisted after the June 23 conference)

Aiello v. United States, 21-1161
Issues: (1) Whether paying an influential private citizen to advocate one’s position before a government agency can constitute honest services fraud under 18 U.S.C. § 1346; and (2) whether deception that deprives a person of “potentially valuable economic information,” without more, can constitute “money or property” fraud under the federal mail and wire fraud statutes.
(relisted after the June 23 conference)

Kaloyeros v. United States, 21-1169
Issue: Whether the deprivation of accurate information regarding a transaction, without more, is “property” under the wire fraud statute, as the U.S. Court of Appeals for the 2nd Circuit held under its “right to control” theory of property-based fraud.
(relisted after the June 23 conference)

Ciminelli v. United States, 21-1170
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute.
(relisted after the June 23 conference)

Spireon, Inc. v. Procon Analytics, LLC, 21-1370
Issues: (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of the art at the time of the patent.
(relisted after the June 23 conference)

Returning Relists

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29, May 12, May 19, May 26, June 2, June 9, June 16 and June 23 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967 
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29, May 12, May 19, May 26, June 2, June 9, June 16 and June 23 conferences)

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12, May 19, May 26, June 2, June 9, June 16 and June 23 conferences)

Canales v. Lumpkin, 20-7065
Issues: (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.
(relisted after the June 2, June 9, June 16 and June 23 conferences) 

Dr. A v. Hochul, 21-1143
Issues: (1) Whether an administrative rule that targets and forbids religious conduct, while permitting otherwise identical secular conduct, is permissible under the free exercise clause; and (2) whether Employment Division v. Smith should be overruled.
(rescheduled before the April 22, April 29, May 12, May 19, May 26 and June 1 conferences; relisted after the June 9, June 16 and June 23 conferences)

Moore v. Harper, 21-1271
Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
(relisted after the June 16 and June 23 conferences)