John Elwood reviews Monday’s relists.
We don’t have time to linger over the fact that the court set a new record by granting cert in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, after 14 relists, thus unseating the previous champ, District of Columbia v. Wesby, 15-1485 (granted after eight relists). Or the fact that the court granted cert without a relist in the two “travel ban” cases, Trump v. International Refugee Assistance Project, 16-1436, and Trump v. Hawaii, 16-1540. Or that, with those grants, as we said last week, “October Term 2017 is shaping up nicely after two lackluster terms.” (We’re basically back in “every term a blockbuster” mode. See footnote 1 here.) Nor do we even have time to discuss in detail how the court resolved all of the pending relists, issuing separate opinions regarding some and summarily reversing another. No, we have to rush because the court did another one of its anticipated-but-impromptu conferences today, and it considered a lot of new relists that might turn into grants imminently. For times like this … it’s Relist Watch Select™.
The court’s business has ended for another term, which is the traditional time to announce personnel changes. Retirement speculation has been swirling for weeks, so we’re eager to put those rumors to rest: I will not be retiring from Relist Watch. In a closely related vein, you should always carefully read the terms and conditions before clicking “agree” — you have no idea the kind of onerous terms you could be subjecting yourself to. See you back here in October!
Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.
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New Relists
Cyan, Inc. v. Beaver County Employees Retirement Fund, 15-1439
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.
Issue: Whether state courts lack subject-matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims.
(Relisted after the June 22 conference)
Meshal v. Higgenbotham, 15-1461
Issue: Whether a U.S. citizen may bring a Bivens claim in the absence of any other remedy when federal law-enforcement officers unlawfully detain and grossly mistreat him during a criminal counterterrorism investigation abroad.
(Relisted after the June 22 conference)
Issues: (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.
(Relisted after the June 22 conference)
Christie v. National Collegiate Athletic Association, 16-476
Issue: Whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.
(Relisted after the June 22 conference)
New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, 16-477
Issue: Whether a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States and Printz v. United States.
(Relisted after the June 22 conference)
PEM Entities LLC v. Levin, 16-492
Issue: Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state-law rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to recharacterize a debt claim in bankruptcy as a capital contribution.
(Relisted after the June 22 conference)
Rubin v. Islamic Republic of Iran, 16-534
Issues: (1) Whether 28 U.S.C. § 1610(g) provides a freestanding attachment-immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether assets are otherwise subject to execution under Section 1610; and (2) whether the commercial-use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign’s property located in the United States only when the property is used by the foreign state itself.
(Relisted after the June 22 conference)
Leslie v. Hancock Park Capital II, L.P., 16-1136
Issue: Whether a bankruptcy court’s authority to recharacterize putative debt as equity arises from the bankruptcy court’s general equitable powers under 11 U.S.C. § 105(a) as announced in Pepper v. Litton (as five circuits have held) or arises under 11 U.S.C. § 502(b), thus restricting the bankruptcy court’s equitable powers to applicable state law (as two circuits have held).
(Relisted after the June 22 conference)
Marinello v. United States, 16-1144
Issue: Whether a conviction under 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action.
(Relisted after the June 22 conference)
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