Relist Watch

By John Elwood
on Jun 27, 2014 at 11:36 am

John Elwood reviews Monday’s relisted cases.

For most in the Northern Hemisphere, summer is officially here. Beaches are open, England’s football team (did I say that? I meant “soccer”) is now at leisure playing golf, and Congress is about to recess – or, for experienced dissemblers, have a “district work period.” But for those of us at greater risk of burning from an improperly adjusted computer monitor than from the sun, the summer doesn’t really begin until the Court issues its last order list of the Term.

We’ll take a look at what to expect Monday, but first, we have to sort out what they did with last week’ s relists. The Court’s streak of granting only relisted cases is on course to make it to summer vacation intact; all three additions to the Court’s merits docket are Relist Watch alumni. One-time relist Department of Transportation v. Association of American Railroads, 13-1080, asks whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008 is an unconstitutional delegation of legislative power to Amtrak. (We’ll know if Amtrak has legislative power: the case will arrive fifteen minutes late with a $7 microwaved hot dog.) Joining it will be Hana Financial, Inc. v. Hana Bank, 13-1211, also after a single relist, which asks whether a decision that an older trademark can be tacked to a newer one is legal or factual. Meanwhile, an IFP petition, two-time relist Whitfield v. United States, 13-9026, pulled a major upset and will advance as well. Whitfield asks how much movement is required before a victim during a bank robbery has been forced to “accompany” the robber, which in this case earned Mr. Whitfield a mandatory-minimum life sentence.

Only one of last week’s relists was denied, Ballard v. Pennsylvania, 13-9364, a capital case which asks whether each potential non-statutory mitigating circumstance must be individually listed on the verdict form. As Lyle explained Monday, this case was relisted under unusual circumstances: Ballard, acting pro se, wrote a letter to the Court stating that his attorney was not authorized to file the petition, asking the Court to reject it, and expressing his wish to waive appeals. The Court denied the petition while asking the attorney to respond to his client’s letter. Ballard’s letter certainly explains the need for more time.

The lack of denials from our last installment means we have a slew of sequels this week that the Court considered at Conference yesterday. Wellness International Network, Ltd. v. Sharif, 13-935, which appears to be a former hold for Executive Benefits Insurance Agency v. Arkison, is back again. The petition features four questions presented; the presence in them of the exciting phrase “constitutional authority” is immediately offset by the soporific phrase “bankruptcy estate,” so if you want to know more, please check out last week’s installment — and then get some better hobbies. In the surprising-second-relist category, we have two other entrants: United States v. Wong, 13-1074, and United States v. June, 13-1075. Both ask whether the time limits of the Federal Torts Claims Act can be tolled under various circumstances. Our last sequel is easy sledding: Williams v. Johnson, 13-9085, asks the Court to clarify whether its opinion in Johnson v. Williams last Term meant to bar a deferential review on remand and whether a denial of certiorari or rehearing can actually mean “certiorari granted” under 28 U.S.C. § 1254. Makes sense to us.

The Court also considered a slew of new relists. Young v. United Parcel Service, 12-1226, involves a UPS employee who was not permitted to return to work when pregnant because her doctor said she should not lift objects over twenty pounds. UPS responded that while it would accommodate that restriction if Young were injured on the job, covered by the Americans With Disabilities Act, or had lost Department of Transportation certification, it would not do so for pregnancy. Young filed suit under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), but the district court sided with UPS and the Fourth Circuit affirmed. Young’s petition asks whether an employer that makes accommodations for non-pregnant employees with work limitations must extend those accommodations to employees whose pregnancy requires similar limitations. The Court “invited” the Solicitor General to express his opinion; in response, he argues that the decision below was wrong but that review is not warranted because recent legislation might cause that court (and others like it) to reconsider.

Twin immigration cases Madrigal-Barcenas v. Holder, 13-697, and Melloui v. Holder, 13-034, involve 8 U.S.C. § 1227(a)(2)(B)(i), which states that a noncitizen is ineligible for cancellation of removal if he has been convicted of a controlled-substance offense. The Ninth (in Madrigal-Barcenas) and Eighth (in Melloui) Circuits held that a conviction under a state drug paraphernalia law counts as a controlled-substance offense. Petitioners argue that those decisions created a circuit split with the Third and Seventh Circuits, which require that paraphernalia convictions be related to a substance listed on a federal schedule.

So when does Menards get its case? First, it was Wal Mart, then Hobby Lobby, and now it is Family Dollar’s turn. Family Dollar Stores, Inc. v. Scott, 13-899, involves the discount store’s efforts to argue that under Wal Mart Stores, Inc. v. Dukes a class of women managers could not be certified as a class because salary decisions were made locally by individual store supervisors. The Fourth Circuit disagreed, holding that unlike Wal-Mart, Family Dollar’s salary decisions were centralized. Family Dollar challenges that conclusion, and also argues that the court of appeals improperly exercised pendent appellate jurisdiction to review the district court’s decision to deny the plaintiffs leave to amend their complaint.

Speaking of employment discrimination issues, Mach Mining v. Equal Employment Opportunity Commission, 13-1019, involves the EEOC’s duty to conciliate discrimination claims before filing suit. The EEOC sued Mach Mining, claiming gender discrimination in hiring. The company countered with an affirmative defense that the EEOC had failed to fulfill its statutory obligation to conciliate in good faith before filing suit. The district court agreed but the Seventh Circuit reversed, holding that such an affirmative defense does not exist and that courts could not judge whether sufficient conciliation occurred because the conciliation process was confidential. The company argues that this puts the Seventh Circuit in conflict with every other circuit to consider the issue.

We end with Gelboim v. Bank of America Corporation, 13-1174. A putative plaintiff class sued a group of banks alleging that they manipulated the London Interbank Offered Rate. The case was consolidated for pretrial purposes with several others and the class’s complaint was dismissed with prejudice. The class appealed, but the Second Circuit determined sua sponte that it lacked jurisdiction because not all of the consolidated cases had final orders. Petitioners ask the Court to clarify the circumstances under which consolidated complaints retain their separate identities for appellate purposes. Evidently, the Court granted a similar case, Erickson v. Maine Central Railroad Co. way back in 1990 but dismissed it before reaching the merits. Perhaps the second time’s the charm? [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to petitioners in both Mach Mining and Gelboim.]

And with that, the penultimate (?) edition of Relist Watch is over. If there is a next time, tune in then as we wrap up the Term.

Thanks to Conor McEvily and Dmitry Slavin for compiling and drafting this update.

[page]13-935[/page]

(relisted after the June 12 and June 19 Conferences)

[page]13-1074[/page]

(relisted after the June 12 and June 19 Conferences)

[page]13-1075[/page]

(relisted after the June 12 and June 19 Conferences)

[page]13-9085[/page]

(relisted after the June 12 and June 19 Conferences)

[page]12-1226 [/page]