RELIST WATCH

Private rights of action, overtime pay, and the constitutionality of a billboard tax

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

We have a fair amount of movement on the relist rolls this week. In Monday’s orders, the Supreme Court disposed of three relists. To begin with the unhappy news (at least for petitioners), the court denied review without comment in one-time relist Kelly v. Animal Legal Defense Fund, involving the constitutionality of a Kansas statute criminalizing trespass by deception at animal facilities with intent to damage the enterprise. It’s a little surprising the court let stand a federal court decision invalidating a state statute on constitutional grounds, but animal-rights groups defending that decision argued persuasively that state statutes are in a state of flux and it would be premature for the justices to take up the case now.

A one-time relist that fared better was Mallory v. Norfolk Southern Railway Co., in which the court granted review. That case involves whether companies consent to a state’s courts having general personal jurisdiction over them by registering to do business there. Evidently, the petitioner in Mallory (a railroad worker who wants to sue his employer in Pennsylvania) was successful in arguing that his case is a better vehicle for addressing the issue than Cooper Tire & Rubber Company v. McCall, the other case raising the issue, which the court will now hold pending the outcome of Mallory. 

Lastly, the Supreme Court granted review in seven-time relist Reed v. Goertz, involving the question of what statute of limitations state prisoners face when raising claims seeking DNA testing of crime-scene evidence. It is unusual for the court to grant review on a case that has been relisted so many times; ordinarily, such cases are more likely to result in summary action or an opinion respecting the denial of review. I suspect one of the justices wrote a draft separate opinion that was sufficiently persuasive to shake loose the necessary votes for a grant.

There are three new relists, and two new kinda-sorta relists. 

Gorgi Talevski was a resident of Valparaiso Care and Rehabilitation, a state-run nursing facility near his family home in Indiana. His wife, Ivanka, brought suit in his name against Valparaiso Care, the Health and Hospital Corporation of Marion County, and American Senior Communities, LLC under 42 U.S.C. § 1983 for violations of the Federal Nursing Home Reform Act, a federal statute enacted under the spending clause that establishes minimum standards of care that nursing-home facilities must follow in order to receive federal Medicaid funds. The lawsuit claimed the nursing facility failed to provide adequate medical care, principally by overprescribing harmful psychotropic drugs to restrain Talevski chemically. The district court dismissed the action for failure to state a claim, concluding that while FNHRA may establish federal standards of care, it does not provide a private right of action that may be enforced under Section 1983. The U.S. Court of Appeals for the 7th Circuit reversed, stating that the U.S. Courts of Appeals for the 3rd and 9th Circuits likewise “have agreed that FNHRA confers such [privately enforceable] rights.”

In Health and Hospital Corporation of Marion County, Ind. v. Talevski, the nursing home and related companies seek Supreme Court review, arguing that the Supreme Court has carved back on privately enforceable rights under spending clause statutes in recent years. They contend that overbroad application of the court’s older precedents essentially would “federaliz[e] much medical-malpractice litigation,” and say the court should use this case as an opportunity to clarify the proper tests for recognizing a private right of action. The companies do not appear to contest that all courts of appeals that have addressed the question have reached the same conclusion, but they argue that fact underscores that the Supreme Court’s own precedents are “so open-textured that nearly any Spending Clause statute” could be read to create a private right of action.

Next up is Bartenwerfer v. Buckley. David Bartenwerfer sold a house that he and his wife, Kate, owned (but did not live in) to Kieran Buckley. Unbeknownst to Kate, who consented to the sale but was not involved in it, David allegedly made false representations to Buckley about the property. Buckley later sued. David Bartenwerfer was found liable for misrepresentation and the judgment was imputed against Kate as co-owner. The Bartenwerfers later jointly filed for bankruptcy, and the bankruptcy judge concluded that the judgment for misrepresentation was dischargeable as to Kate because she was personally blameless about the misrepresentations. But the U.S. Court of Appeals for the 9th Circuit reversed in relevant part, holding that fraud imputed against a debtor is non-dischargeable “regardless of her knowledge of the fraud.” Kate Bartenwerfer now seeks Supreme Court review, arguing that the decision below diverges from that of the U.S. Court of Appeals for the 8th Circuit, which requires at least a showing that the debtor “should have known” of fraud before it becomes non-dischargeable.

Helix Energy Solutions Group, Inc. v. Hewitt. Michael Hewitt was a supervisor on the offshore vessels of oil and gas services company Helix Energy Solutions Group, Inc., earning at least $963 for each day that he worked, and between $143,000 and $248,000 every year he worked for Helix. After Helix fired him for performance-related reasons, Hewitt sued Helix under the Fair Labor Standards Act, claiming that he was entitled to substantially more in retroactive overtime pay for every week he worked more than 40 hours. The FLSA exempts many highly compensated supervisors from the act’s overtime requirements; employees who perform executive duties, earn at least $100,000 per year, and receive at least $455 per week paid on a salary basis are “deemed exempt” under 29 C.F.R. § 541.601(a). It is undisputed that Hewitt performed executive duties and easily satisfied the annual earnings threshold. But a divided U.S. Court of Appeals for the 5th Circuit, sitting en banc, held that Hewitt was non-exempt and was entitled to retroactive overtime pay because he was paid based on a daily rate rather than at a guaranteed weekly rate, even though his daily rate worked out to be more than twice the weekly minimum. Judge Edith Jones, in dissent, wrote that the majority’s result was not only “counterintuitive” and “incorrect,” but also “counter to two other circuit’s analysis,” pointing to decisions of the U.S. Courts of Appeals for the 1st and 2nd Circuits. And Judge Jacques Wiener wrote that “the original proponents of the FLSA … are turning over in their respective graves.” The company seeks review of the 5th Circuit’s decision, supported by three amicus briefs — one of them filed by six states.

That brings us to two final cases that aren’t relists in the traditional sense, meaning cases that the Supreme Court has considered at consecutive conferences. But at their private conference this Friday, the justices will consider both cases for a second time, and at the risk of engaging in mission creep, I’ve decided to discuss them. Baltimore, Maryland, and Cincinnati, Ohio, like many cities, have municipal excise taxes on “outdoor advertising” — essentially, a business tax on rental billboard advertising space. The Ohio Supreme Court held that the Cincinnati tax was constitutionally impermissible under the First Amendment. It wrote that “[w]hether a censorial intent is manifest or absent, a selective tax creates the intolerable potential for self-censorship by the press and abuse by governmental actors aimed to suppress, compel, or punish speech.” By contrast, the Maryland Court of Appeals held that Baltimore’s similar tax was constitutionally permissible, concluding that the law did not single out the press and was therefore subject to only the lowest form of constitutional scrutiny: rational basis review. Cincinnati seeks review in City of Cincinnati, Ohio v. Lamar Advantage GP Company, LLC, and the billboard companies doing business in Cincinnati have taken the unusual step of agreeing that the court should take the case. The Baltimore billboard companies seek Supreme Court review in Clear Channel Outdoor, LLC v. Raymond.

The Supreme Court held both cases pending the resolution of City of Austin, Texas v. Reagan National Advertising of Austin, LLC, involving the constitutionality of a city sign ordinance that distinguished between on-premise and off-premise signs. Last Thursday, the court held that that sign ordinance was facially content-neutral and thus not subject to strict scrutiny under the First Amendment. Now the court will decide how these cases should be disposed of in light of the City of Austin case. The advertisers have filed supplemental briefs in both cases arguing that nothing about City of Austin diminishes the Supreme Court’s need to take the case to resolve the split.

That’s all for this week. Until next time, stay safe!

New Relists

Clear Channel Outdoor, LLC v. Raymond, 21-219
Issue: Whether a tax singling out off-premises billboards is subject to heightened scrutiny under the First Amendment.

Health and Hospital Corporation of Marion County, Ind. v. Talevski, 21-806
Issues: (1) Whether, in light of compelling historical evidence to the contrary, the Supreme Court should reexamine its holding that spending clause legislation gives rise to privately enforceable rights under 42 U.S.C. § 1983; and (2) whether, assuming spending clause statutes ever give rise to private rights enforceable via Section 1983, the Federal Nursing Home Amendments Act of 1987’s transfer and medication rules do so.
(relisted after the April 22 conference)

City of Cincinnati, Ohio v. Lamar Advantage GP Company, LLC, 21-900
Issue: Whether a municipal excise tax on the business privilege of charging for the use of billboard space abridges the freedom of speech, or of the press.

Bartenwerfer v. Buckley, 21-908
Issue: Whether an individual may be subject to liability for the fraud of another that is barred from discharge in bankruptcy under 11 U.S.C. § 523(a)(2)(A), by imputation, without any act, omission, intent or knowledge of her own.
(relisted after the April 22 conference)

Helix Energy Solutions Group, Inc. v. Hewitt, 21-984
Issue: Whether a supervisor making over $200,000 each year is entitled to overtime pay because the standalone regulatory exemption set forth in 29 C.F.R. § 541.601 remains subject to the detailed requirements of 29 C.F.R. § 541.604 when determining whether highly compensated supervisors are exempt from the Fair Labor Standards Act’s overtime-pay requirements.
(relisted after the April 22 conference)

Returning Relists

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1, April 14 and April 22 conferences)

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14 and April 22 conferences; record requested after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14 and April 22 conferences)