Relists Return

John Elwood reviews Monday’s relists.

After a couple of weeks with no new relists, the Supreme Court is back this week with a vengeance. The court has scheduled an impromptu conference for Wednesday, July 1. In most years, an impromptu conference scheduled for the last week of June would be the mop-up conference for the entire term in which all outstanding business for the term is resolved. But the court still has enough outstanding opinions in argued cases that things may continue for a while yet.

At most conferences, the justices actually discuss only a tiny subset of the cases distributed for that conference. But this conference is the rare exception when the justices seem likely to discuss all 25 distributed cases. 16 are newly relisted cases, and nine are cases the court had been holding for argued cases that it recently decided and that it must now dispose of.

16 relists are too many to discuss at any length, particularly with the conference looming. So I’ll be quick. The most high-profile case is Department of Justice v. House Committee on the Judiciary, 19-1328, which arises out of the investigation by Robert Mueller into Donald Trump’s presidential campaign. The House Judiciary Committee sought disclosure of grand jury material in connection with the Mueller report, and the district court ordered the material to be disclosed under an exception to the grand jury secrecy rule for “judicial proceeding[s],” reasoning that this exception includes impeachment proceedings. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. The Supreme Court stayed the mandate pending the filing of the government’s cert petition, so it’s clear the justices are taking a close look at this one.

There are several cases with implications for foreign relations. Nestlé USA, Inc. v. Doe I, 19-416, and Cargill, Inc. v. Doe I, 19-453, raise a number of issues involving the Alien Tort Statute. The court called for the views of the solicitor general, who recommended granting review in Cargill and holding Nestlé. Doppelgangers Federal Republic of Germany v. Philipp, 19-351, and Philipp v. Federal Republic of Germany, 19-520, together with Republic of Hungary v. Simon, 18-1447, all involve the scope of the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue.” The court called for the views of the solicitor general, who recommended that the court grant the Federal Republic of Germany case, deny the conditional cross-petition in Philipp and hold Simon. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the respondent in Simon.]

There are also four cases involving the Federal Trade Commission’s authority to demand monetary relief. At the solicitor general’s urging, the court appears to have held those for the recently decided Liu v. Securities and Exchange Commission, which involved a related question, but now the court needs to decide what further action is warranted. And then there are two cases that appear to present exactly the same question as Liu that the court may need more time with — or perhaps they’ve spotted a follow-on issue.

The court has relisted three capital cases that, broadly speaking, ask whether Moore v. Texas I and Moore v. Texas II, involving the criteria used for determining if a defendant is too intellectually disabled to be subject to the death penalty, apply retroactively on collateral review.

That leaves Reilly v. City of Harrisburg, Pennsylvania, 19-983, which argues that subsequent cases have undermined the test for content neutrality under Hill v. Colorado, which held that it was not improper content-based regulation “to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.” Reilly argues that a Harrisburg ordinance creating “buffer zones” around abortion clinics placed content-based restrictions on speech within the zone. But it’s a little hard to tell whether Reilly is actually a relist and not just a case that arrived in the nick of time for the court to consider it alongside cases it was holding. That’s because another case, Price v. City of Chicago, Illinois, 18-1516, presents exactly the same question, and the court recently released its hold on Price after holding it since October, apparently for the June Medical Services LLC v. Russo admitting privileges abortion-restriction case decided Monday.

We should be hearing from the court about these cases soon. Until then, stay safe! 

New Relists

Republic of Hungary v. Simon, 18-1447
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the respondent in this case.
Issues: (1) Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies; and (2) in a forum non conveniens analysis, whether a district court is required to defer to the plaintiffs’ choice of a U.S. forum when the case’s sole connection to the United States is that some named plaintiffs (representing a putative worldwide class) became naturalized citizens after the time relevant to the complaint, and is permitted to defer to a foreign sovereign defendant’s comity interest in hosting claims in its own courts, when the plaintiffs allege that the sovereign defendant harmed its own nationals on its own soil and the plaintiffs have not exhausted local remedies. CVSG: 5/26/2020.
(relisted after the June 25 conference)

Nestlé USA, Inc. v. Doe I, 19-416
Issue: Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations. CVSG: 5/26/2020.
(relisted after the June 25 conference)

Cargill, Inc. v. Doe I, 19-453
Issues: (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute. CVSG: 5/26/2020.
(relisted after the June 25 conference)

Publishers Business Services, Inc. v. Federal Trade Commission, 19-507
Issues: (1) Whether a district court can award monetary relief under Section 13(b) of the Federal Trade Commission Act, consistent with separation of powers principles; and (2) whether a monetary disgorgement award under Section 13(b) of the FTC Act is a penalty and therefore outside a district court’s inherent equity powers.
(relisted after the June 25 conference)

AMG Capital Management, LLC v. Federal Trade Commission, 19-508
Issue: Whether Section 13(b) of the Federal Trade Commission Act, by authorizing “injunction[s],” also authorizes the Federal Trade Commission to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.
(relisted after the June 25 conference)

Federal Trade Commission v. Credit Bureau Center, LLC, 19-825
Issue: Whether Section 13(b) of the Federal Trade Commission Act authorizes district courts to enter an injunction that orders the return of unlawfully obtained funds.
(relisted after the June 25 conference)

Credit Bureau Center, LLC v. Federal Trade Commission, 19-914
Issue: Whether the second proviso of Section 13(b) of the Federal Trade Commission Act, providing that the Federal Trade Commission “may seek” a permanent injunction, is an independent grant of authority to “file suit” seeking implied consumer redress remedies circumventing the elaborate enforcement scheme set by Congress.
(relisted after the June 25 conference)

Federal Republic of Germany v. Philipp, 19-351
Issues: (1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims. CVSG: 5/26/2020.
(relisted after the June 25 conference)

Philipp v. Federal Republic of Germany, 19-520
Issue: Whether the Federal Republic of Germany, a foreign state, is subject to jurisdiction under the expropriation exception of the Foreign Sovereign Immunities Act for claims to property that was taken in violation of international law because Germany’s instrumentality (and possessor of the property at issue), Stiftung Preussischer Kulturbesitz, is engaged in commercial activity in the United States. CVSG: 5/26/2020.
(relisted after the June 25 conference)

Reilly v. City of Harrisburg, Pennsylvania, 19-983
Issues: (1) Whether the Supreme Court’s holding in Reed v. Town of Gilbert – that laws restricting speech on the basis of its function or purpose are facially content-based – overruled and replaced the Supreme Court’s previous test for content neutrality set forth in Hill v. Colorado; (2) whether an Article III court’s use of the doctrine of constitutional avoidance to impose a narrowing construction on a content-based regulation of protected speech that is contrary to the law’s plain text and the government’s construction, enforcement and defense conflicts with the Supreme Court’s binding precedents in United States v. Stevens and Reno v. American Civil Liberties Union; and (3) whether the Supreme Court’s holding in McCullen v. Coakley – that the government must demonstrate it seriously undertook to address alleged problems with protected speech by less restrictive tools readily available to it –  requires that the government show, with a meaningful record, that other less restrictive alternatives were tried and failed or that such alternatives were closely examined and ruled out for good reason, as stated in Bruni v. City of Pittsburgh.
(relisted after the June 25 conference)

Team Resources Inc. v. Securities and Exchange Commission, 19-978
Issue: Whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation.
(relisted after the June 25 conference)

Sharp v. Smith, 19-1106
Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit erred in concluding that Moore v. Texas I and Moore v. Texas II were mere applications of Atkins v. Virginia that could be applied retroactively on collateral review, contrary to Shoop v. Hill and the U.S. Court of Appeals for the 11th Circuit; (2) whether, in sua sponte holding that the Oklahoma Court of Criminal Appeals did not rule on the adaptive-functioning prong because its analysis was too cursory, the 10th Circuit violated the Supreme Court’s precedent that forbids the imposition of opinion-writing standards, Johnson v. Williams; and (3) whether, reviewed de novo or with deference, the 10th Circuit erred in granting habeas relief on the respondent Roderick Smith’s claim of adaptive-functioning deficits when Smith’s only expert to opine on this prong improperly administered the adaptive-functioning assessment directly to Smith, contemporaneously administered other tests to Smith that showed malingering and relied on information that was disputed by other witnesses.
(relisted after the June 25 conference)

Department of Justice v. House Committee on the Judiciary, 19-1328
Issue: Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.
(relisted after the June 25 conference)

Keen v. Tennessee, 19-7369
Issue: Whether the Constitution permits Tennessee to evade the mandate of Atkins v. Virginia by legislative inaction and judicial abdication.
(relisted after the June 25 conference)

Smith v. Dunn, 19-7745
Issues: (1) Whether Hall v. Florida and Moore v. Texas announced new substantive rules that apply retroactively to cases on collateral review; and (2) whether a court assessing a challenge to a prosecutor’s use of peremptory strikes under Batson v. Kentucky may reasonably rely on extra-record evidence about a prosecutor’s character.
(relisted after the June 25 conference)

De Maison v. Securities and Exchange Commission, 19-7714
Issue: Whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation.
(relisted after the June 25 conference)

Returning Relists

Really?