Relist Watch
on Feb 2, 2018 at 2:16 pm
John Elwood forecasts the Supreme Court’s next relists.
This may be the winter of our discontent, but for Supreme Court watchers who are both a little lazy and also tied up with their day jobs, it’s a glorious summer of inactivity on the cert front. There are no conferences scheduled between January 19 and February 16. That means court watchers can spend more time with their families, or engaging in worthwhile hobbies, or – best of all, enjoying their hobbies with their families. But with so much time between conferences, the court usually waits several weeks to perform the task of relisting the cases that the justices decided to relist at the last January conference. That means we have to infer from inaction on the dockets which cases will be relisted and which are merely being held for some other case. Thus begins our exercise in semi-informed speculation about what the next batch of relists will be.
After the grant in Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71, the smart money is counting Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74, as a hold for Weyerhaeuser, but (a) no one has ever accused us of being smart and (2) there’s always a chance (albeit truly slim) that the court is deciding whether Markle independently warrants review. Seems more likely the justices would have relisted both cases if they were considering that, so I’m counting Markle as a hold.
It appears likely that the court will relist two cases. First up is Mount Lemmon Fire District v. Guido, 17-587, which concerns a subject of increasing interest to people in my demographic: the scope of the Age Discrimination in Employment Act. The ADEA generally prohibits covered employers from taking adverse employment-related actions because of an employee’s age. As originally enacted, the term “employer” was defined to mean “a person engaged in an industry affecting commerce who has twenty-five or more employees,” and explicitly excluded any “state or political subdivision thereof.” But in 1974, Congress revised the definition in two ways: first, to lower the cutoff to 20 employees; and second, to say that “[t]he term ‘employer’ also means … a State or political subdivision of a state.” The case thus raises the question whether the 20-employee minimum for ADEA coverage, which indisputably applies to private employers, also applies to state political subdivisions. The U.S. Court of Appeals for the 9th Circuit concluded that the Mount Lemmon Fire District outside of Tucson, Arizona, with only 11 employees, was nonetheless covered by the ADEA. Mount Lemmon seeks review, arguing that there is a lopsided circuit split with the 9th Circuit as the lone outlier.
This week’s second likely relist is Wilson v. Callahan, 17-552. Kevin Callahan’s mother and brother checked into a hotel to avoid Kevin, who had recently returned home from a drug-induced hospitalization. When they called to check up on Kevin, he claimed there was someone there with a gun. They then called 911, but warned the operator that Kevin “ha[d] a history of drama” and might be making up the story to cause them to return home. Police officer Thomas Wilson and two other officers went to the Callahans’ house. When Wilson was passing through the doorway to the room where Callahan was, the door shut on him, pinning him in the doorway. Wilson shot and killed Callahan, who was unarmed. Callahan’s mother and brother then sued Wilson, claiming he had used excessive force. At trial, they unsuccessfully asked for a jury instruction that the use of deadly force is unreasonable unless the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury. The jury then found that Wilson had not used excessive force. But the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the Callahans were entitled to such an instruction. Wilson seeks to revisit that determination.
There also are a ton of returning relists, including our current conference champion Sykes v. United States, 16-9604, which appears to be heading into its 11th relist. We should be seeing some opinions in these cases when the Supreme Court returns on February 20 – assuming that anything within 150 miles of Philadelphia remains standing then, whether the Eagles win or lose on Sunday.
Thanks to Kevin Brooks, who compiled these cases on January 22. Like I said, I’ve been busy.
New Relists
Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.
(likely to be relisted after the January 19 conference)
Mount Lemmon Fire District v. Guido, 17-587
Issue: Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.
(likely to be relisted after the January 19 conference)
Returning Relists
Sykes v. United States, 16-9604
Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5 and January 12 conferences; likely to be relisted after the January 19 conference)
Serrano v. United States, 17-5165
Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency when the jury returns a guilty verdict that is set aside for a new trial.
(relisted after the November 21, December 1, December 8, January 5 and January 12 conferences; likely to be relisted after the January 19 conference)
Issues: (1) Whether Arizona’s capital-sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
(relisted after the December 1, December 8, January 5 and January 12 conferences; likely to be relisted after the January 19 conference)
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.
(relisted after the January 5 and January 12 conferences; likely to be relisted after the January 19 conference)
Garco Construction, Inc. v. Secretary of the Army, 17-225
Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.
(relisted after the January 12 conference; likely to be relisted after the January 19 conference)
New Prime Inc. v. Oliveira, 17-340
Issues: (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.
(relisted after the January 12 conference; likely to be relisted after the January 19 conference)
CNH Industrial N.V. v. Reese, 17-515
Issue: Whether the U.S. Court of Appeals for the 6th Circuit misinterpreted the Supreme Court’s decision in M & G Polymers USA, LLC v. Tackett, thus creating a conflict with the decisions of other circuits and within the U.S. Court of Appeals for the 6th Circuit itself, by employing rules of contract interpretation explicitly repudiated in Tackett to deem a general duration clause in the collective-bargaining agreement ambiguous, and then using extrinsic evidence to hold the healthcare benefits of the retiree class vested for life.
(relisted after the January 12 conference; likely to be relisted after the January 19 conference)
Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.
(relisted after the January 12 conference; likely to be relisted after the January 19 conference)
