Relist Watch

John Elwood reviews Monday’s relists

Happy New Year, everyone! 2016 was such a trainwreck of a year, right up to the bitter (and I mean bitter) end; 2017 will surely be better! Already, it’s as if a warm breeze has blown into the nation’s capital, ushering in an era of good feeling and unity so profound and sincere that no ironic hyperlink could adequately express it. And it looks like all the weird news stories are finally behind us.

But 2016 was not all bad. It brought with it what will one day be recognized, along with self-driving cars, drone snack delivery, and the clip-on man bun, as one of the defining technological breakthroughs of the 21st century: Relist Watch Select^TM. A week when we have 27(!) new relists seems like a fitting time to reflect on the genius of Voltaire’s quip, “If Relist Watch Select^TM did not exist, it would be necessary to invent it.” (Disclosure: Quotation partly made up.) Without it, there is no guarantee that this would have been posted before, say, the day in late June when the last of this Friday’s grants will ultimately be decided.

Let’s move on to this week’s featured relist. In the early 1970s, amid widespread popular concern about declining legal employment and attorneys’ stagnant hourly rates (resulting even in street protests), Congress took decisive action to ensure full employment for America’s lawyers. The resulting legislation, popularly known as the “Clean Water Act,” prohibits the discharge without a permit of any pollutant into “navigable waters,” defined to mean “the waters of the United States” (to nerds, “WOTUS”).  Because unpermitted discharges can result in steep civil and criminal penalties, the meaning of WOTUS is of central importance. Critics argue that the EPA has defined the term far too broadly, to include not just traditional navigable waters but more and more isolated, insignificant water bodies or even dry erosional features caused by long-past water flow, interfering with development and infringing on states’ traditional regulation of land use. In a series of cases, the Supreme Court upheld an EPA regulation defining WOTUS to include wetlands that abut traditional navigable waters, but invalidated regulations defining the term to include small isolated and remote water bodies that might be used as migratory-bird habitat. In a fractured 2005 decision, the court reversed an assertion of federal jurisdiction over wetlands that “lie near ditches or man-made drains that eventually empty into traditional navigable waters.” In response to those rulings, EPA in 2015 promulgated new regulations defining the term, commonly known as the “WOTUS Rule.” Soon afterwards, many parties challenged the rule. Because of uncertainty about the proper mechanism for challenging the rule, some filed Administrative Procedure Act lawsuits in district courts around the country; some filed petitions for review in courts of appeals under a provision authorizing direct circuit review of actions “approving or promulgating any effluent limitation or other limitation”; most, to be safe, did both. The petitions filed in appellate courts were consolidated in the U.S. Court of Appeals for the 6th Circuit, which in October 2015 issued a nationwide stay of the rule.

National Association of Manufacturers v. Department of Defense, 16-299, asks whether district or appellate courts have original jurisdiction to adjudicate challenges to the WOTUS Rule.  Petitioner the National Association of Manufacturers challenged the rule under the APA in district court. NAM then intervened as respondent in the 6th Circuit and moved to dismiss the various consolidated petitions for review for want of jurisdiction. In February 2016, the 6th Circuit, in a divided ruling that represented the views only of its author (Judge David McKeague), denied the motion to dismiss, holding that it, and not the district courts, had jurisdiction to decide challenges to the rule. Judge Damon Keith dissented, arguing that the challenge should be brought in district court. Judge Richard Griffin concurred only in the judgment, writing that while he agreed with Judge Keith that district courts should have jurisdiction over the challenge, he was bound by “incorrect” circuit precedent holding that appellate courts were the proper forum. NAM now seeks review of that decision. Because of the significant practical importance of the WOTUS Rule, this case is being very closely watched by regulated parties. Disclosure: Vinson & Elkins, whose lawyers purportedly contribute to this post, is counsel to several parties challenging the rule in the 6th Circuit proceedings (which are nominally respondents in the Supreme Court).

There are many other relists that warrant your close attention, including the “biosimilar” cases (Sandoz Inc. v. Amgen Inc., et al., 15-1039 and Amgen Inc. v. Sandoz Inc., 15-1195), and cases involving trial before nonlawyer judges (Davis v. Montana, 16-123) and stripping a naturalized citizen of citizenship (Maslenjak v. United States, 16-309). A grant in one of the many arbitration cases seems likely — probably in one involving a non-governmental petitioner, to give the new Solicitor General additional time and flexibility to decide what the United States’ position will be.  We expect the Court to issue grants Friday, and those granted cases should make up much of the April argument calendar.

That’s all we have for the penultimate Relist Watch of the Obama Administration. Tune in next week for the last one.

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

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

Returning Relists

Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28, November 4, November 10, November 22, December 2 and December 9, 2016, conferences, and the January 6, 2017, conference; seems like we should be seeing an opinion of some sort soon)

 

Issues: (1) Whether Alabama’s advisory-jury death-sentencing scheme, which is in all relevant aspects the same as the Florida scheme reviewed in Hurst v. Florida, violates the Sixth Amendment; (2) whether Hurstand the Sixth and Eighth Amendments require, at least, a unanimous jury recommendation for a sentence of death, as the Florida Supreme Court held on remand in Hurst; and (3) whether the Supreme Court’s decision in Hurst applies retroactively to the petitioner’s case, and the cases of other condemned inmates sentenced under unconstitutional capital sentencing laws, when the new rule announced in Hurst implicates the fundamental right to a fair trial and substantially enhances fact-finding procedures.

(relisted after the December 9, 2016, and January 6, 2017, conferences)

 

Issues: (1) Whether, to satisfy his Glossip v. Gross burden, a condemned prisoner is limited to selecting an alternative method of execution from those already permitted by state statute; (2) whether Glossip requires a prisoner proposing an alternative lethal injection drug to provide a specific willing supplier for the alternative drug; (3) whether, to meet his Glossip burden, a condemned prisoner is required to provide, through a medical expert, a detailed protocol for an alternative method of execution including “precise procedures, amounts, times and frequencies of implementation”; and (4) whether it is a violation of the 14th Amendment guarantee of equal protection for a state to arbitrarily deviate from its voluntarily adopted execution safeguards.

(relisted after the December 9, 2016, and January 6, 2017, conferences)

 

Issues: (1) Whether, in a means-of-execution suit, known and available alternatives are limited to those already provided in a statute an inmate is challenging; (2) whether an inmate pleads a known and available alternative by identifying an execution method – firing squad – that other states have used and that the state has admitted it can carry out; and (3) whether an inmate pleads a known and available alternative by identifying a lethal-injection drug and identifying vendors who currently sell it.

(relisted after the December 9, 2016, and January 6, 2017, conferences)

 

New Relists

Issues: (1) Whether notice of commercial marketing given before Food and Drug Administration approval can be effective; and (2) whether, in any event, it is improper to treat Section 262(l)(8)(A) – the Biologics Price Competition and Innovation Act of 2009’s “Notice of commercial marketing” provision which states that a biosimilar applicant shall provide notice to the incumbent seller of the biological product “not later than 180 days before the date of the first commercial marketing of the biological product licensed under” an abbreviated pathway for biosimilars – as a stand-alone requirement and as creating an injunctive remedy that delays all biosimilars by 180 days after approval. CVSG: 12/07/2016.

(relisted after the January 6 conference)

 

Issues: (1) Whether a biosimilar applicant is required by 42 U.S.C. § 262(l)(2)(A) to provide the reference product sponsor with a copy of its biologics license application and related manufacturing information, which the statute says the applicant “shall provide;” and (2) whether, where an applicant fails to provide that required information, the sponsor’s sole recourse is to commence a declaratory judgment under 42 U.S.C. § 262(l)(9)(C) and/or a patent-infringement action under 35 U.S.C. § 271(e)(2)(C)(ii). CVSG: 12/07/2016.

(relisted after the January 6 conference)

 

Issue: Whether a criminal defendant charged with an offense punishable by incarceration is denied due process when he is tried by a non-lawyer judge and when the defendant has no opportunity for a de novo trial before a judge who is a lawyer.

(relisted after the January 6 conference)

 

Issue: Whether the filing of a putative class action serves to suspend as to putative class members a period of repose such as the three-year period applicable to claims brought under Section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a).

(relisted after the January 6 conference)

 

Issues: (1) Whether a district court commits plain error by enhancing a sentence based on a divisible statute without requiring the government to meet its burden of proving that the conviction arose under a qualifying prong of that statute, as five circuits have held, or whether on plain-error review the burden instead shifts to the defendant to affirmatively show that the alleged predicate offense did not arise under a qualifying prong of the statute, as four circuits have held; and (2) whether the district court’s additional enhancement of the petitioner’s sentence based on a second predicate offense under the crime-of-violence residual clause was error in this case because that clause is unconstitutionally vague.

(relisted after the January 6 conference)

 

Issue: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

(relisted after the January 6 conference)

 

Issue: Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.

(relisted after the January 6 conference)

 

Issue: Whether the U.S. Court of Appeals for the 6th Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F), the portion of the Clean Water Act’s judicial review provision that requires that agency actions “in issuing or denying any permit” under Section 1342 be reviewed by the court of appeals, to decide petitions to review the waters-of-the-United-States rule, even though the rule does not “issu[e] or den[y] any permit” but instead defines the waters that fall within Clean Water Act jurisdiction.

(relisted after the January 6 conference)

 

Issue: Whether the collective-bargaining provisions of the National Labor Relations Act prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis.

(relisted after the January 6 conference)

 

Issue: Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. § 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection,” 29 U.S.C. § 157, and are therefore unenforceable under the savings clause of the Federal Arbitration Act, 9 U.S.C. § 2.

(relisted after the January 6 conference)

 

Issue: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

(relisted after the January 6 conference)

 

Issue: Whether a company that regularly attempts to collect debts it purchased after the debts had fallen into default is a “debt collector” subject to the Fair Debt Collection Practices Act.

(relisted after the January 6 conference)

 

Issue: Whether the timely filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the five-year period of repose in 28 U.S.C. § 1658(b)(2) applicable to fraud claims under the Securities Exchange Act of 1934, with respect to the claims of the class members.

(relisted after the January 6 conference)

 

Issues: (1) Whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members (Question granted in Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc.); and (2) whether a member of a timely-filed putative class action may file an individual suit on the same causes of action before class certification is decided, notwithstanding the expiration of the relevant time limitations.

(relisted after the January 6 conference)

 

Issue: Whether a provision in an employment arbitration agreement that prohibits employees from seeking adjudication of any work-related claim on a class, collective, joint or representative basis in any forum is invalid and unenforceable under Sections 2 and 3 of the Norris-LaGuardia Act, 29 U.S.C. §§ 102, 103, and Sections 7 and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1), because it “interfere[s]” with the employees’ statutory right “to engage in … concerted activities for the purpose of … mutual aid or protection.”

(relisted after the January 6 conference)

 

Issue: Whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy a statute of repose – such as the five-year period in 28 U.S.C. § 1658(b)(2) applicable to fraud claims under the Securities Exchange Act of 1934 – with respect to the claims of putative class members.

(relisted after the January 6 conference)

 

Issues: (1) Whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; and (2) whether judgment should be rendered for the petitioners on the claim that Texas’ voter-ID law was enacted with a racially discriminatory purpose.

(relisted after the January 6 conference)

 

Issue: Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

(relisted after the January 6 conference)

 

Issue: Whether a state court may decline to follow the Supreme Court’s decision in Daimler AG v. Bauman, which held that the due process clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.

(relisted after the January 6 conference)

 

Issue: Whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims – that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.

(relisted after the January 6 conference)

 

Issue: Whether the five-year statute of limitations in 28 U.S.C. § 2462 applies to claims for “disgorgement.”

(relisted after the January 6 conference)

 

Issue: Whether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing (as three circuits have held), or whether Article III of the Constitution is satisfied so long as there is a valid case or controversy between the named parties (as seven circuits have held).

(relisted after the January 6 conference)

 

Issues: (1) Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution; and (2) whether the Alabama courts unreasonably applied Ake in finding that the petitioner’s rights were satisfied when the only mental health expert he was provided distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records.

(relisted after the January 6 conference)

 

Issues: (1) Whether the court should grant this certiorari petition, vacate the judgment below and remand this case for further consideration in light of this court’s recent decision in Foster v. Chatman; and (2) whether the court should grant this certiorari petition, vacate the judgment below and remand this case for further consideration in light of this court’s recent decision in Hurst v. Florida.

(relisted after the January 6 conference)

 

Issues: (1) Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims; and (2) whether, in light of Hurst v. Florida, Texas’ second punishment special issue, which is a necessary finding for a sentence of death, must be decided by the jury beyond a reasonable doubt.

(relisted after the January 6 conference)

 

Issue: Whether the trial judge’s failure to recuse himself from the petitioner’s capital trial violated the due process clause.

(relisted after the January 6 conference)

 

Issues: (1) Whether the Constitution requires – in a state where each aggravating circumstance is critical to the determination of sentence – that every aggravating circumstance on which a death sentence is premised be found by a unanimous jury; (2) whether the Constitution requires – in a state where a sentencer is required to find that the aggravating circumstances outweigh the mitigating circumstances to impose death – that this finding be made by a unanimous jury; (3) whether the imposition of a death sentence in the absence of a unanimous jury verdict in support of death – a result that, today, can occur only in Montana and Alabama in their standard sentencing procedures, and in extremely rare circumstances in Indiana and Missouri – violates the Constitution; and (4) whether the Constitution prohibits imposition of a death sentence in a case in which the jury was instructed that its sentencing determination would be advisory or a recommendation.

(relisted after the January 6 conference)