RELIST WATCH

The first relists of October Term 2022

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 is back. On Monday, the court granted nine petitions from the enormous number that built up over the summer. (And it was the first time in over a decade that the court didn’t issue its grants from the “long conference” before the new term began on the first monday in October — probably the result of Rosh Hashana and the investiture of Justice Ketanji Brown Jackson occurring the week of the conference.) The court also relisted five new cases that it first considered at the long conference.

First up is Buffington v. McDonough, a case that the court already rescheduled seven times last term, and which involves the construction of a statute providing disability pay for members of the military. The U.S. Court of Appeals for the Federal Circuit, by a divided vote, deferred to the Department of Veterans Affairs construction of the statute under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Petitioner Thomas Buffington, an Air Force veteran, argues that before deferring to the agency, the court should have first exhausted all traditional tools of statutory construction, including the canon that ambiguities should be resolved in favor of veterans (the so-called pro-veteran canon). Buffington’s petition presents a second, potentially blockbuster issue that is bound to make people sit up and take notice if it is added to the docket during what is already shaping up to be a significant term: Chevron should be overruled. 

Juno Therapeutics, Inc. v. Kite Pharma, Inc. concerns the test for determining whether the “written description of [an] invention” is so inadequate as to render a patent invalid. The patent statute provides that the description must provide “such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same.” The Federal Circuit has held that the “written description of the invention” must demonstrate the inventor’s “possession” of “the full scope of the claimed invention” including all “known and unknown” variations of each component. Kite Pharma was found liable of infringing Juno Therapeutics’ patent for a method of reprogramming and replicating white blood cells to attack cancer cells. But on appeal, applying the test above, the Federal Circuit invalidated that patent for lack of an adequate written description.

Juno, supported by five amicus briefs, argues that this is another instance of the Federal Circuit improperly applying an extra-textual gloss on the Patent Act. Kite Pharma says the test is well grounded in a half-century of precedent insisting that the patent description actually provide enough information to allow one skilled in the art to practice the invention, and Juno’s patent fell short because it didn’t specify which “millions of billions of possib[le]” types of genetic material to use to practice the invention. We should have a better idea soon whether the court is really interested in the legal education, or whether the justices just needed more time to puzzle over briefs that contain such phrases as “a zeta chain portion comprising the intracellular domain to human CD3 ζ [the Greek letter zeta],” a specified “costimulatory signaling region,” and “a binding element that specifically interacts with a selected target.”

Two years ago in Ramos v. Louisiana, the Supreme Court overruled precedent from the 1970s upholding nonunanimous verdicts in criminal cases. The court there wrote that the Constitution provides a defendant the “right to demand that his liberty should not be taken from him except by … the unanimous verdict of a jury of twelve persons.” Petitioner Ramin Khorrami was convicted of fraud in Arizona state court by an eight-person jury. Seeking to capitalize on Ramos, in Khorrami v. Arizona he asks the Supreme Court to overrule a 1970 precedent holding that states can use juries as small as six jurors to try defendants for felonies. Currently, six states provide for criminal juries of six or eight jurors: Arizona, Connecticut, Florida, Indiana, Massachusetts, and Utah. 

All the rest of this week’s relists involve a party named Shoop — Tim Shoop, the warden of Ohio’s Chillicothe Correctional Institution. Chinn v. Shoop involves the argument of death-row prisoner Davel Chinn that the U.S. Court of Appeals for the 6th Circuit applied a too exacting standard to his claim under Brady v. Maryland that he was prejudiced by the government’s suppression of favorable evidence. And Shoop v. Cunningham involves Ohio’s claim that the 6th Circuit did not apply the exacting standards of the Antiterrorism and Effective Death Penalty Act when, by a divided vote, it granted habeas relief to death row prisoner Jeronique Cunningham based on his claims of juror bias. Sometime Supreme Court short-lister Judge Raymond Kethledge dissented in relevant part, ensuring that this case will get a close look from the court — and may be “summary reversal” bait.

Until next time, stay safe!

New Relists

Buffington v. McDonough, 21-972
Issues: (1) Whether the doctrine of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. permits courts to defer to the Department of Veterans Affairs’ construction of a statute designed to benefit veterans, without first considering the pro-veteran canon of construction; and (2) whether Chevron should be overruled.
(rescheduled before the May 12, May 19, May 26, June 2, June 9, June 16, June 23 conferences; relisted after the Sept. 28 conference)

Khorrami v. Arizona, 21-1553
Issue: Whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Sept. 28 conference)

Juno Therapeutics, Inc. v. Kite Pharma, Inc., 21-1566<
Issue: Whether the adequacy of the “written description of [an] invention” is measured by the statutory standard of “in such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same” in 35 U.S.C. § 112(a), or by the Federal Circuit’s test that the “written description of the invention” must demonstrate the inventor’s “possession” of “the full scope of the claimed invention” including all “known and unknown” variations of each component.
(relisted after the Sept. 28 conference)

Shoop v. Cunningham, 21-1587
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred by granting habeas relief based on an alleged misapplication of its own circuit precedent under the Antiterrorism and Effective Death Penalty Act, which generally prohibits courts from awarding habeas relief to state prisoners but lifts that prohibition with respect to prisoners in custody because of a state-court ruling that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; and (2) whether, when the requirements for a federal evidentiary hearing are otherwise satisfied but Federal Rule of Evidence 606(b)(1) forbids considering the only evidence supporting an evidentiary hearing, a court must hold the hearing regardless.
(relisted after the Sept. 28 conference)

Chinn v. Shoop, 22-5058
Issues: (1) Whether a petitioner who raises a claim under Brady v. Maryland must establish that they were more likely than not prejudiced by the government’s suppression of favorable evidence; and (2) whether the judgment of the U.S. Court of Appeals for the 6th Circuit requiring the petitioner in this case to establish that he was more likely than not prejudiced by the government’s suppression of favorable evidence should be summarily reversed.
(relisted after the Sept. 28 conference)

Returning Relists

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, June 23, June 29 and Sept. 28 conferences)

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.
(rescheduled before the June 16 conference; relisted after the June 23, June 29 and Sept. 28 conferences)