RELIST WATCH

Congressional redistricting, patent infringement, arbitration, and the Armed Career Criminal Act

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.

The Supreme Court will be considering a total of 202 petitions and applications at Thursday’s conference. They will be seeing six of those petitions for the second time.

First up this week is Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC. Under the Hatch-Waxman Act, Congress created a pathway for pharmaceutical manufacturers to get FDA approval to bring the generic equivalent of existing branded drugs to market. The generic drug maker’s abbreviated new drug application (ANDA) must address each patent that the branded manufacturer claims for a method of using the drug. When a brand-name drug has both patented and unpatented uses, its manufacturer must tell FDA the specific sections of its labeling that describe the patented uses. That allows generic manufacturers to carve out those sections and adopt what is colloquially known as a “skinny label” — one labeled for only unpatented uses.

Pharmaceutical manufacturer Teva launched a generic version of the beta blocker carvedilol, whose patent had expired in 2007 and that had two unpatented uses and one still-patented use. Teva adopted a skinny label that carved out the language that GlaxoSmithKline, the branded-drug maker, had identified as covering its one still-patented use. GlaxoSmithKline later sued Teva for allegedly inducing doctors to infringe the patented method of use, based in part on its FDA-approved labeling, and a jury awarded GSK $235 million in damages. The district court set aside that verdict on the ground that no reasonable jury could conclude that Teva’s use of a skinny label had caused doctors to prescribe their drug for the patented use. A divided panel of the U.S. Court of Appeals for the Federal Circuit reversed, holding that “the content of the product label itself” was “evidence of inducement to infringe.” Thus began a marathon series of proceedings that involved two oral arguments, two petitions for rehearing en banc, one grant of panel rehearing on the court’s own initiative, a second divided panel opinion (with a different rationale), “outcry from amici” for both panel decisions, and a denial of rehearing en banc that inspired three separate dissents. Thus, the case has raised at least as many eyebrows as another controversial matter out of the Federal Circuit involving the same judges.

Teva sought review, supported by four amicus briefs. The Supreme Court called for the views of the solicitor general. She has now weighed in. The government concluded that the Federal Circuit’s decision “holding that [GlaxoSmithKline] presented sufficient evidence of [Teva’s] intent to induce infringement is erroneous and warrants this court’s review,” because it will discourage manufacturers from bringing generic drugs to market. I rate this case a likely grant.

That brings us to relist number two: Alexander v. South Carolina State Conference of the NAACP. The Supreme Court has discretionary jurisdiction over most cases, meaning it can decide in the exercise of its discretion whether to hear a case. There are very few cases involving mandatory appellate jurisdiction, in which the court has no choice but to take some action in a case – whether that is to summarily affirm, summarily reverse or vacate, or note probable jurisdiction (or defer consideration of jurisdiction) and set the case for oral argument. Alexander is one of those few cases. Like much of the court’s mandatory jurisdiction, it involves election matters – in this case, a challenge to South Carolina’s congressional redistricting scheme. A three-judge district court composed of two district judges and one appellate judge invalidated South Carolina’s congressional District 1 as an impermissible racial gerrymander, concluding that race was the predominant factor in the adoption of the redistricting plan. The district court also denied South Carolina a stay pending appeal to the Supreme Court.

Before the Supreme Court, South Carolina principally argues that the district court failed to afford the South Carolina General Assembly a presumption of good faith, and also failed to consider District 1 “as a whole.” The state argues that the district court entered “a thinly reasoned order that presumes bad faith” and that impermissibly focused on a single line in Charleston County and equated that single decision to conclude that race was the predominant consideration across District 1. The district court recognized that the Republican-controlled General Assembly sought to create a stronger Republican tilt in District 1, which had surprisingly gone Democratic in 2018. But the state says that the district court disregarded evidence that political considerations rather than race predominated, and the district court failed to explain why the state would have used race as a proxy rather than directly considering political data. Fifteen red states (or at least states with Republican attorneys general) have filed an amicus brief in support of the petition, as has the National Republican Redistricting Trust. The South Carolina State Conference of the NAACP has filed amotion to affirm arguing that the district court’s finding that race was the predominant factor in drawing District 1 was not clearly erroneous. Mandatory appeals always require the justices to take a close look.

It’s hard to believe, given the enormous number of arbitration cases the Supreme Court has decided in recent years, but evidently, there are still some arbitration issues that are still undecided. Our third relist, Petrobras America Inc. v. Transcor Astra Group S.A., presents one of the dwindling number of unresolved arbitration issues: whether, when parties have entered a contract with an arbitration clause that delegates to the arbitrator questions of arbitrability, the arbitrator — rather than a court — must decide whether the contract has been superseded by a subsequent contract. Petrobras America Inc. and Transcor Astra Group S.A. are international energy companies and former partners in a joint venture. They entered into an initial agreement that required arbitration of all relevant disputes. When the joint venture dissolved, disputes arose and the parties resolved them in a settlement agreement. Petrobras later instituted arbitration proceedings on another dispute, and Transcor persuaded the Texas state courts (culminating in a decision by the Texas Supreme Court) that the settlement agreement revoked the parties’ earlier agreement to arbitrate. Petrobras has petitioned for review, arguing that questions of arbitrability should be decided by arbitrators, even if the decision turns on a subsequent agreement that purports to revoke the parties’ earlier agreement to arbitrate.

Lastly, we have a group of three relists that raise the same issue. Brown v. United States, Jackson v. United States, and Jones v. United States all concern a single recurring issue involving the Armed Career Criminal Act, a federal sentencing enhancement provision.  The ACCA provides that someone who has been convicted of a felony and possesses a firearm is normally subject to a maximum 10-year sentence. But if that person already has at least three “serious drug offense” convictions, then the minimum sentence – the minimum — is 15 years. Courts decide whether a prior state conviction counts as an ACCA “serious drug offense” using a “categorical approach.” It requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart. If so, the state conviction qualifies as an ACCA predicate offense. But federal drug law often changes — as here, when Congress decriminalized hemp, narrowing the federal definition of marijuana. If the state law doesn’t follow suit, sentencing courts face an issue: What if the state and federal offenses matched (and thus the state offense was an ACCA predicate) under an earlier version of federal law, but federal law has since been narrowed? Thus, the court’s choice of which version of federal law to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented in these three cases is: Whether the “serious drug offense” definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense, or the federal drug schedules that were in effect at the time of the prior state drug offense. The U.S. Courts of Appeals for the 3rd, 4th, 8th, and 10th Circuit have gone with federal law at the time of the firearm offense; the U.S. Court of Appeals for the 11th Circuit has gone with federal law at the time of the prior state drug offense.

The government has told the Supreme Court that there is a circuit split on the issue and recommends that the court should grant review in Jackson, and hold Brown and Jones for that case. I also rate Jackson a likely grant.

We should know more after the court releases its order list next Monday. See you next time!

New Relists

Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC, 22-37
Issue: Whether a generic drug manufacturer’s FDA-approved label that carves out all of the language the brand manufacturer has identified as covering its patented uses can be held liable on a theory that its label still intentionally encourages infringement of those carved-out uses. CVSG: 3/29/2023
(relisted after the Apr. 28 conference)

Petrobras America Inc. v. Transcor Astra Group S.A., 22-518
Issue: Whether, when parties have entered a contract with an arbitration clause that delegates to the arbitrator questions of arbitrability, the arbitrator — rather than a court — must decide whether the contract has been superseded by a subsequent contract.
(relisted after the Apr. 28 conference)

Alexander v. South Carolina State Conference of the NAACP, 22-807
Issues: (1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent; (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case; (3) whether the district court erred when it failed to disentangle race from politics; (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles; (5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and (6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.
(relisted after the Apr. 28 conference)

Brown v. United States, 22-6389
Issue: Whether the “serious drug offense” definition in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), incorporates the federal drug schedules that were in effect at the time of the federal firearm offense, or the federal drug schedules that were in effect at the time of the prior state drug offense.
(relisted after the Apr. 28 conference)

Jackson v. United States, 22-6640
Issue: Whether the “serious drug offense” definition in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), incorporates the federal drug schedules that were in effect at the time of the federal firearm offense (as the Third, Fourth, Eighth, and Tenth Circuits have held), or the federal drug schedules that were in effect at the time of the prior state drug offense (as the Eleventh Circuit held below).
(Rescheduled before the Apr. 14 conference; relisted after the Apr. 28 conference)

Jones v. United States, 22-6683
Issue: Whether the “serious drug offense” definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(A)(ii), incorporates the federal drug schedules in effect at the time of the federal firearm offense (as the Third, Fourth, Eighth, and Tenth Circuits have held), or the federal drug schedules in effect at the time of the prior state drug offense (as the Eleventh Circuit has held).
(Rescheduled before the Apr. 21 conference; relisted after the Apr. 28 conference)

Returning Relists

Carnahan v. Maloney, 22-425
Issue: Whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954.
(relisted after the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21 and Apr. 28 conferences)

Hamm v. Smith, 22-580
Issue: Whether, in an Eighth Amendment method-of-execution case, an alternative method of execution is feasible and readily implemented merely because the executing state has statutorily authorized the method.
(relisted after the Mar. 17 conference)
(rescheduled before the Feb. 24 and Mar. 3 conferences; relisted after the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21 and Apr. 28 conferences)

St. John v. Jones, 22-554
Issue: Whether, or in what circumstances, a court may approve a settlement as “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e)(2) when it pays a substantial cy pres award to third parties from the settlement fund.
(relisted after the Apr. 14, Apr. 21 and Apr. 28 conferences)