Relist Watch

By John Elwood
on May 9, 2018 at 12:40 pm

John Elwood reviews Monday’s relists.

Everyone has been talking about the historically slow pace of decisions this year. Various explanations have been offered for the phenomenon: The Supreme Court has more controversial cases than usual and fewer unanimous decisions; the court’s early calendars were especially heavy with contentious issues; the court’s newest justice might be writing more separate opinions; or perhaps flaming rivers of magma have threatened the court’s very survival. But it seems to me that people are overlooking the obvious answer: While many people were hoping and praying during the bleak dull days of October Term 2016 that the Supreme Court would finally get some interesting cases, nobody thought to wish that the court would ever actually decide them.

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else.

Probably the most interesting new relist has a really long name: Quality Systems Inc. v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, 17-1056. The case involves the scope of a safe harbor Congress created as part of the Private Securities Litigation Reform Act. Congress wanted to encourage companies to provide investors with forecasts of expected future performance, while providing companies a certain measure of protection from lawsuits that might yield unduly lavish recoveries. To that end, the PSLRA shields from liability any “forward-looking statement” that is “accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” Petitioner Quality Systems argues that courts “are divided over whether (and how) courts should look beyond the cautionary statements themselves in deciding whether the safe harbor applies.” The U.S. Court of Appeals for the 9th Circuit held that the safe harbor’s “meaningful cautionary language” requirement is not satisfied when a company’s forward-looking statement is accompanied by a non-forward-looking statement that the plaintiff alleges is false or misleading, because “it is likely that no cautionary language—short of an outright admission of the false or misleading nature of the non-forward looking statement—would be ‘sufficiently meaningful’ to qualify the statement for the safe harbor.” What?

Just like the recently granted Lamps Plus Inc v. Varela, 17-988, the Quality Systems petition prominently notes that the late Judge Stephen Reinhardt was on the panel that decided the case. But while the petitioner in Lamps Plus worked that fact into the question presented, this petition was in no hurry to draw out that fact: It waited until page three of the introduction. Court-watchers will watch closely whether Lamps Plus will be the last Reinhardt decision the Supreme Court will review, and everyone will be hoping for promises fulfilled. There is at least one more decision by the judge still in the pipeline: an en banc opinion Reinhardt authored that was issued after his death and that allegedly deepens a three-way split on the “any factor other than sex” defense in the Equal Pay Act. That petition is due in July.

BNSF Railway Company v. Loos, 17-1042, will pull the court in different directions. On the one hand, the case is – some would say – spectacularly dull: It involves whether a railroad’s payment to an employee for wages lost because of the railroad’s conduct is subject to employment taxes under the Railroad Retirement Tax Act. On the other hand, the issue is so undeniably important as a practical matter, and the courts are so splintered, that the Supreme Court should do something. On top of all that, there appears to be a strong federal interest, because the U.S. Court of Appeals for the 8th Circuit refused below to defer to IRS regulations providing that lost wages are taxable “compensation” under the RRTA. But how much Railroad Retirement Tax Act can the Supreme Court take? The court is already considering another RRTA case involving the same clause in Wisconsin Central Ltd. v. United States, 17-530, which addresses whether employee income from exercising stock options is taxable “compensation.” But BNSF argues here that Wisconsin Central turns on a different phrase – “money remuneration” – and implicates different questions of interpretation. We’ll see whether the court agrees, and whether they want to enlist the solicitor general’s assistance in deciding what to do with this case. The government already filed an amicus brief supporting BNSF in the court of appeals. Although a grant may come like a (golden) bolt from the blue, maybe some good magic will spare the court from having to address the Railroad Retirement Tax Act twice in two terms, as though the RRTA were some kind of ACCA.

Air and Liquid Systems Corp. v. Devries, 17-1104, involves lawsuits brought by former U.S. Navy seamen against companies who made equipment used aboard ships. The former seamen allege that they developed lung cancer as a result of asbestos insulation that the Navy placed on that equipment. The U.S. Court of Appeals for the 3d Circuit, citing “maritime law’s special solicitude for the safety and protection of sailors,” held that even though the Navy and not the manufacturers added asbestos insulation to the products, the “manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s [conduct].” The U.S. Court of Appeals for the 6th Circuit, by contrast, adhered to “a bright-line rule, holding that a manufacturer of a bare-metal product is never liable for injuries caused by later-added asbestos-containing materials.” We’ll know soon whether Air and Liquid Systems will win review or whether some lone sailor will be allowed to proceed with the lawsuit.

PNC Bank National Association v. Secure Axcess, LLC, 17-350, is a fascinating case involving a fascinating issue that divided the U.S. Court of Appeals for the Federal Circuit through a series of fascinating events. But intervening events may have made the whole thing much less fascinating. The America Invents Act established a new post-grant adjudicatory process for challenging the validity of patents, called “covered business method” review. A panel of the Federal Circuit, by a 2-1 vote, read the law narrowly to condition eligibility for CBM review on whether a patent claim itself contains “a financial activity element,” limiting its application. The Federal Circuit then denied rehearing en banc by a 6-5 vote. But in a separate proceeding, the court of appeals affirmed a determination holding invalid all the patent claims that Secure Axcess was asserting against PNC Bank. PNC now seeks vacatur of the Federal Circuit decision under United States v. Munsingwear, Inc., arguing that the case became moot with the invalidation of the relevant patent claims. As a fallback, PNC argues that if the Supreme Court concludes the case is not moot – known in legal circles as “a big if” – it should hold that the Federal Circuit construed the statute too narrowly. The court held the case for four months pending its decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, involving the constitutionality of inter partes review. But now the court is focused on this issue. In my book, there is no way PNC Bank leaves empty-handed. If you disagree, flame away.

Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory. If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times). This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move. Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue. This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals. But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States, 17-7521. Neither of the issues it presents is very promising. First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute. But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits. The other issue the petition raises – whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun – is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

That’s all for now. Let me add that the favorite has now won the Kentucky Derby for the sixth year in a row, showing that some things are more predictable than my humor. We’ll be back next week with more ill-informed speculation about the relists from today’s conference. Until next time!

Thanks to Kent Piacenti for compiling these cases.

New Relists

PNC Bank National Association v. Secure Axcess, LLC, 17-350

Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit’s judgment should be vacated and remanded with instructions to dismiss the appeal as moot, in accordance with United States v. Munsingwear, Inc., when the claims of the challenged patent are invalid, and there is no longer a live case or controversy between petitioners and respondent; and (2) whether, if the case is not moot, the lower court erred in holding that the statutory definition of a patent eligible for covered business method review requires that the claims of the patent expressly include a “financial activity element”—in other words, that the claim have no use outside of financial activity—rather than making covered business method review available for patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.”

(relisted after the April 27 conference)

BNSF Railway Company v. Loos, 17-1042

Issue: Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

(relisted after the April 27 conference)

Quality Systems, Inc. v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 27 conference)

Air and Liquid Systems Corp. v. Devries, 17-1104

Issue: Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

(relisted after the April 27 conference)

Lester v. United States, 17-1366

Issues: (1) Whether the retroactivity analysis of Teague v. Lane is categorical, such that when the Supreme Court held that Johnson v. United States announced a new substantive rule of constitutional law that is retroactive to cases on collateral review in Welch v. United States, it made Johnson’s rule retroactive for purposes of all cases on collateral review; and (2) whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker sentencing guidelines unconstitutionally vague.

(relisted after the April 27 conference)

Kitchen v. United States, 17-7521

Issues: (1) Whether a prior conviction for drug trafficking, Fla. Stat. § 893.135, that rests upon the mere possession of a specified quantity of drugs qualifies as a “controlled substance offense” for federal sentencing enhancement purposes, when the Florida statute is missing the requisite element of intent to distribute, an issue on which the circuits are divided; and (2) whether 18 U.S.C. § 922(g)(1) is facially unconstitutional because it exceeds Congress’ authority under the commerce clause and is unconstitutional as applied to the intrastate possession of a firearm.

(relisted after the April 27 conference)

Returning Relists

Azar v. Garza, 17-654

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, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

Allen v. United States, 17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

James v. United States, 17-6769

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20 and April 27 conferences)

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20 and April 27 conferences)

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20 and April 27 conferences)

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20 and April 27 conferences)

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20 and April 27 conferences)

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20 and April 27 conferences)

Sessions v. Magana-Pena, 15-1494

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.