The Return of Relist Watch

By John Elwood
on Jun 20, 2018 at 8:00 pm

John Elwood provides useless blather to accompany Monday’s relists.

I apologize for slacking off last week, but I was in central Europe taking in the dulcet tones of the language of love while testing the effects of an all-meat diet on the body of a sedentary middle-aged lawyer. After about 10 days among people who see cuts of meat in the most unlikely places, packing myself full of schnitzel and something that I only belatedly discovered translates as “liver-cheese,” I can report that there are no adverse effects besides that “not so fresh” feeling and an inexplicable urge to wear Lederhosen.

I was relieved to return and learn that nothing happened while I was away. In an ordinary term, that would mean all that I have after today is just a mop-up Relist Watch on the last Monday of term, followed by an extended vacation. But this term is so funky, who knows what lies ahead?

If you’re worrying that the court’s grant rate is on the lowish side and it’s not going to have enough cases for next fall, take heart: There are 11 new relists, to say nothing of 18 returning relists that might provide some late-term excitement. We begin this week’s installment with the relists having the best odds of success – the cases in which the court called for the views of the solicitor general. A petition is over 37 times more likely to be granted after the court requests the solicitor general’s views, and the odds obviously favor a petition when the SG recommends review. The SG recommends review in three cases.

The solicitor general believes that Republic of Sudan v. Harrison, 16-1094 (in which the court requested the SG’s views) and Kumar v. Republic of Sudan, 17-1269 (in which the court didn’t) both involve an issue worth the court’s review, namely whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state by mail sent to the head of its ministry of foreign affairs in care of the foreign state’s diplomatic mission in the United States. The SG agrees that there is a split and the issue is important, but the SG believes that Kumar is the “more suitable vehicle.” Both cases involve lawsuits by victims of the terrorist bombing of the USS Cole against the Republic of Sudan as a state sponsor of terrorism.

I was expecting the worst when I saw the caption Washington State Department of Licensing v. Cougar Den, Inc., 16-1498. What I found instead was perhaps the most arcane legal question of the term: whether Article III of the U.S. Constitution precludes application to Yakama Indian tribal members of a tax imposed by the state of Washington on imported fuel purchased out-of-state. If the answer seems obvious to you, that means you’re familiar with the Yakama Treaty of 1855, and whether it creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. I’m sure I’m not the only person thrilled that the court is considering this subject because my student note, which was on this very subject, might finally get cited. Cougar Den, which is incorporated under Yakama Nation law, imported fuel from Oregon to the tribe’s reservation in Washington and sold it there. The SG says that whether review is warranted “is a close question,” but “[o]n balance” the case warrants review to resolve a conflict between the Washington Supreme Court and the U.S. Court of Appeals for the 9th Circuit.

That leaves Dawson v. Steager, 17-419, involving whether the doctrine of intergovernmental tax immunity bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees. West Virginia exempts from state taxation the retirement benefits of former state law-enforcement officers but does not provide the same exemption for the retirement benefits of former employees of the U.S. Marshals Service. A retired deputy U.S. Marshal challenged the state’s failure to extend the exemption to him and lost. The SG argues that the West Virginia Supreme Court of Appeals misapplied the intergovernmental-tax-immunity doctrine. In the SG’s view, “[w]hether this court’s review is warranted presents a closer question” because such issues do not “arise[] with great frequency.” But “at bottom,” the SG “believe[s] that the issue has sufficient legal and practical importance to warrant the court’s review.”

Law nerds shed a tear when the court resolved the sentencing issue in Hughes v. United States without reaching the central question presented by the cert petition, which involved clarifying the rule of Marks v. United States about what the governing rule is in cases involving plurality decisions. The court has another opportunity to resolve that issue in Wass v. Idaho, 17-425, which involves the admissibility of a statement when an officer questions an in-custody suspect before administering Miranda warnings, later administers the warnings, and then obtains a similar statement. Petitioner Shawn Wass seeks clarification of Missouri v. Seibert, in which a four-justice plurality opinion authored by Justice David Souter espoused one rule and Justice Anthony Kennedy, concurring only in the judgment, advocated another.

I have the power to foretell insignificant events of the immediate future. I predict that if the court grants review in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 17-1229, the bar section will be completely full on the day it is argued. If you’re wondering how I’m able to make that mildly impressive prediction, take a moment to look over the docket and consider how many suits will be present if just the authors of the 10 amicus briefs show up for argument. Evidently, the intellectual property bar cares a great deal about whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. The petitioner argues that the plain language of the America Invents Act excludes from prior art inventions that, by agreement, are kept secret. The government rarely files unsolicited amicus briefs at the petition stage, but it filed an amicus brief in the federal circuit supporting petitioner Helsinn Healthcare’s reading of the act.

You know who thinks there is a reasonable probability that Supreme Court will grant cert in Henry Schein Inc. v. Archer and White Sales Inc., 17-1272? Well, we don’t know their names, exactly, but at least 5 members of the Supreme Court. Back in March, they granted the company’s request for a stay, without recorded dissent. Respondent Archer and White Sales is a former distributor of dental equipment manufactured by the petitioners. Its distributorship agreements required it to arbitrate disputes “arising under or related to” the agreements, “except for actions seeking injunctive relief,” and (by incorporation of American Arbitration Association rules) delegated decisions about arbitrability to arbitrators. When Archer and White Sales sought to challenge the petitioners’ actions in restricting and terminating its distributorship rights under the antitrust laws, it filed suit in district court. The petitioners moved to compel arbitration, citing provisions in the distributorship agreement delegating questions of arbitrability to an arbitrator. The magistrate judge ordered arbitration, but the district court reversed. The court of appeals then affirmed, holding that the matter need not be sent to arbitration because “the argument that the claim at hand is within the scope of the arbitration agreement is ‘wholly groundless,’” concluding that there was “no plausible argument that the arbitration applies here” because the lawsuit sought injunctive relief. The petitioners contend that there is a circuit conflict on “whether the [Federal Arbitration Act] permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

Troy Lambert has a bone to pick with Nutraceutical Corporation. He says he bought its product, “Cobra Sexual Energy,” in reliance on its claims that it would provide him with “animal magnetism” and “potency wood.” He alleges it did nothing of the sort, and also contained an ingredient, yohimbe, that is dangerous for some people. He filed a putative class action, which the district court initially granted, but then decertified. Instead of filing a notice of appeal within the 14 days as provided by Federal Rule of Civil Procedure 23(f), Lambert filed a motion for reconsideration. Fourteen days after the district court denied his motion for reconsideration, Lambert finally appealed. The 9th Circuit held that Rule 23(f)’s deadline is nonjurisdictional and Lambert’s motion for reconsideration tolled the deadline. Moreover, the court held, the deadline was tolled because of other “equitable circumstances,” such as the fact that Lambert “conveyed his intention to file a motion for reconsideration” at a status conference 10 days after decertification. The 9th Circuit, however, “recognize[d] that other circuits would likely not toll the Rule 23(f) deadline in Lambert’s case,” which may have gotten the Supreme Court’s attention. In Nutraceutical Corporation v. Lambert, 17-1094, the company argues that the court of appeals erred.

Kaushal v. Indiana, 17-1356, involves an Indian permanent-resident alien who pleaded guilty to molesting his stepdaughter. Petitioner Umesh Kaushal contends that his defense counsel did not fully advise him of the immigration consequences of pleading guilty and that, days afterward, he met with an immigration attorney who informed him that as a result of his conviction, he was likely to be “picked up” by immigration officials immediately. Kaushal then tried to have his plea agreement set aside, and the trial court denied his motion. The Indiana Court of Appeals affirmed, concluding that Kaushal was not prejudiced by his defense counsel’s supposedly ineffective assistance because Kaushal was aware of the possibility of deportation at the time he pleaded guilty. Before the Supreme Court, Kaushal argues that the fact that he tried to have the guilty plea set aside so promptly demonstrates that he was prejudiced, and argues that his case is part of a “pattern” of Indiana cases in which aliens plead guilty while ignorant of the immigration consequences of their guilty pleas.

Lastly, we have a couple of cases that the court appears to have relisted so it can determine if the petitioners are entitled to relief under cases decided earlier this term. Nieves v. Bartlett, 17-1174, asks whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983, answered in the negative by Lozman v. City of Riviera Beach, Florida. The case involves an arrest made during Alaska’s Arctic Man race, allegedly for criticizing police investigation of underaged drinking. Ramirez-Hidalgo v. United States, 17-7793, asks whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws, answered in the affirmative by Sessions v. Dimaya. But the government argues that Jesus Ramirez-Hidalgo’s challenge to the sentencing enhancement is moot because he has finished serving his sentence and has been deported.

With this, Relist Watch is nearly at an end for another term. We expect to be back Monday for a brief post about relists the court will be considering at its not-yet-scheduled (but widely anticipated) mop-up conference on Monday, June 25.

Thanks once again to Kent Piacenti for compiling the cases in this post.

New Relists

Republic of Sudan v. Harrison, 16-1094

Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability. CVSG: 05/22/2018.