Relist Watch

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.

Every summer, before the justices leave town for the Supreme Court’s recess, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference (which this year happened last Thursday). In recent years, that “mop-up” conference has overwhelmingly happened on the last Monday of June, which is also typically when the court hands down the last opinions of the term; the resulting order list is usually released the following day. Because the court was running a little behind this year and just released its last opinions on Thursday, the court also held the mop-up conference on Thursday, and the order list will be released Friday morning at 9:30 a.m. Among the 24 cases the justices considered at the conference were 15 relisted cases. Thus, some of these cases are likely to be the last grants of October Term 2020.

Two relists involve free exercise cases that the court held while it was reviewing Fulton v. City of Philadelphia, which the court decided on June 17. The court is apparently considering whether to simply grant, vacate, and remand for the lower courts to reconsider these cases in light of Fulton, or whether it must grant plenary review of the cases and have full briefing and oral argument. Arlene’s Flowers Inc. v. Washington, 19-333, involves whether a state can compel a floral designer to arrange flowers to celebrate same-sex weddings. Dignity Health, Inc. v. Minton, 19-1135, involves whether a religiously affiliated hospital can be compelled to allow medical procedures that violate its religious beliefs. They are joined by recent arrival Carson v. Makin, 20-1088, which asks whether a state violates the free exercise clause or equal protection clause of the Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Similarly high-profile is Box v. Planned Parenthood of Indiana and Kentucky Inc., 20-1375. It presents the question whether, when a court permits an unemancipated minor to have an abortion, the state may require that her parents be notified before the abortion occurs except when such notice would contravene her best interests.

When the court requests the views of the U.S. solicitor general on cases the federal government isn’t involved in, the government not infrequently delivers its invited amicus briefs just in time for the court’s last scheduled conference. So it is no surprise to see that three of the new relists involve invited government briefs on a range of subjects. Hughes v. Northwestern University, 19-1401, involves allegations that a retirement plan charged its participants excessive fees and that those are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act. The solicitor general recommends the court grant review. Cummings v. Premier Rehab Keller P.L.L.C., 20-219, asks whether the compensatory damages available under Title VI of the Civil Rights Act and the statutes that incorporate its remedies, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress. The solicitor general again recommends the court grant review. Then there is a case on the court’s original docket, Mississippi v. Tennessee, 22 Orig. 143, involving a long-running dispute between those two states (and Memphis, Tennessee) over the apportionment of groundwater. There, the solicitor general recommends the court dismiss the bill of complaint and not let the matter proceed.

There are three new relists in criminal cases. Two involve a question about which there is undeniably a circuit split: whether attempted robbery under the Hobbs Act qualifies as a “crime of violence,” meaning that it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In United States v. Taylor, 20-1459, the government has brought its own petition; in Dominguez v. United States, 20-1000, the government claims the case is an unsuitable vehicle for addressing what it concedes is a cert-worthy question. Canales v. Lumpkin, 20-7065, is a capital case involving a prisoner on death row for killing a fellow inmate suspected of snitching on a shipment of smuggled tobacco. Petitioner Anibal Canales argues he received ineffective assistance of counsel at the penalty phase of his trial when his lawyer failed to introduce significant mitigating evidence, and that the U.S. Court of Appeals for the 5th Circuit failed to appropriately reweigh the aggravating factors against the mitigating ones.

In government-facing litigation, the government’s petition in Becerra v. Empire Health Foundation, 20-1312, and its doppelganger, conditional cross-petition Empire Health Foundation v. Becerra, 20-1486, involve the proper method for calculating additional payments available under the federal Medicare program for hospitals that serve a disproportionate number of low-income patients. Gallardo v. Marstiller, 20-1263, presents the question whether the federal Medicaid Act allows state Medicaid programs to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the beneficiary’s tort recovery that compensate for future medical expenses.

We finish with good old private litigation. CVS Pharmacy Inc. v. Doe, 20-1374, concerns whether Section 504 of the Rehabilitation Act (and Section 1557 of the Affordable Care Act, which incorporates its enforcement mechanisms) provides a disparate-impact cause of action for plaintiffs alleging disability discrimination, and whether such claims can be based on facially neutral health-plan terms. Pivotal Software v. Tran, 20-1541, concerns a term of the Private Securities Litigation Reform Act that provides that “[i]n any private action arising under [the Securities Act of 1933], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss.” Defendants in a securities class action alleging false statements in an initial public offering argued that provision facially applies to actions brought in state courts as well as federal ones. A California trial court disagreed, noting that surrounding provisions of the PSLRA explicitly mention state-court actions, suggesting the omission here was limited the provision to federal-court actions only. State appellate courts refused to disturb that holding. Petitioner Pivotal Software and its co-defendants seek to revisit that determination. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the respondents in this case.]

That should be all of the new relists for October Term 2020. Have a good summer, and stay safe! 

New Relists

Arlene’s Flowers Inc. v. Washington, 19-333
Issues: (1) Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
(relisted after the June 24 conference)

Dignity Health, Inc. v. Minton, 19-1135
Issues: (1) Whether the free exercise clause of the First Amendment bars a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs; and (2) whether the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow — and thereby endorse and be associated with — medical procedures that violate its longstanding, deeply held religious beliefs.
(relisted after the June 24 conference)

Hughes v. Northwestern University, 19-1401
Issue: Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1104(a)(1)(B). CVSG: 5/25/2021.
(relisted after the June 24 conference)

Cummings v. Premier Rehab Keller P.L.L.C., 20-219
Issue: Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress. CVSG: 5/25/2021.
(relisted after the June 24 conference)

Dominguez v. United States, 20-1000
Issue: Whether attempted robbery under the Hobbs Act qualifies as a “crime of violence,” meaning that it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
(relisted after the June 24 conference)

Carson v. Makin, 20-1088
Issue: Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.
(relisted after the June 24 conference)

Gallardo v. Marstiller, 20-1263
Issue: Whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical expenses.
(relisted after the June 24 conference)

Becerra v. Empire Health Foundation, 20-1312
Issue: Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.
(relisted after the June 24 conference)

CVS Pharmacy Inc. v. Doe, 20-1374
Issues: (1) Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination; and (2) whether, if Section 504 and the ACA create disparate-impact claims, such claims extend to the facially neutral terms and conditions of health insurance plans.
(relisted after the June 24 conference)

Box v. Planned Parenthood of Indiana and Kentucky Inc., 20-1375
Issue: Whether, when a court permits an unemancipated minor to have an abortion, the state may require that her parents be notified before the abortion occurs except where such notice would contravene her best interests.
(relisted after the June 24 conference)

United States v. Taylor, 20-1459
Issue: Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
(relisted after the June 24 conference)

Empire Health Foundation v. Becerra, 20-1486
Issues: (1) Whether agencies must accurately include key facts and data in notices of proposed rulemaking in order to satisfy the requirements of fair notice and the opportunity for the public to meaningfully comment; and (2) whether, whenever a proposal presents a binary choice of policies, the adoption of one of those policies will always be a “logical outgrowth” of the proposal that can excuse any failure to comply with notice-and-comment obligations.
(relisted after the June 24 conference)

Pivotal Software v. Tran, 20-1541
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the respondents in this case.]
Issue: Whether the Private Securities Litigation Reform Act’s discovery-stay provision applies to a private action under the Securities Act of 1933 in state or federal court, or solely to a private action in federal court.
(relisted after the June 24 conference)

Canales v. Lumpkin, 20-7065
Issues: (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.
(rescheduled before the May 13, May 20, May 27, June 3, June 10 and June 17 conference; relisted after the June 24 conference)

Mississippi v. Tennessee, 22 Orig. 143
Issue: Whether the Special Master correctly determined that Mississippi’s complaint should be dismissed because the groundwater at issue is an interstate resource subject to equitable apportionment and because Mississippi has disclaimed any request for an equitable apportionment. CVSG: 4/30/2021.
(relisted after the June 24 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

James v. Bartelt, 20-997
Issues: (1) Whether the U.S. Court of Appeals for the 3rd Circuit’s decision to exercise jurisdiction over an appeal of the District Court’s denial of qualified immunity on a motion for summary judgment is in conflict with Johnson v. Jones and its own precedent; (2) whether the 3rd Circuit’s ruling that inexplicably deviates from the 3rd Circuit’s precedent in Bennett v. Murphy is an error of law; (3) whether an officer who testifies that he was not in fear of his life or the lives of others nor did he feel threatened by Gibbons before fatally shooting a suspect is entitled to qualified immunity; and (4) whether the 3rd Circuit erred as a matter of law when it interpreted the Supreme Court’s holdings in White v. Pauly and Kisela v. Hughes as creating a new standard of review to the established law when it granted Bartelt absolute immunity for his use of deadly force against a suicidal suspect.
(relisted after the June 17 and June 24 conferences)

Berisha v. Lawson, 20-1063
Issue: Whether the Supreme Court should overrule the “actual malice” requirement it imposed on public figure defamation plaintiffs.
(relisted after the June 17 and June 24 conferences)

Dunn v. Reeves, 20-1084
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.
(relisted after the May 20, May 27, June 3, June 10, June 17 and June 24 conferences)

American Hospital Association v. Becerra, 20-1114
Issue: Whether Chevron deference permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data.
(relisted after the June 17 and June 24 conference)s

Eychaner v. City of Chicago, Illinois, 20-1214
Issues: (1) Whether the possibility of future blight is a permissible basis for a government to take property in an unblighted area and give it to a private party for private use; and (2) whether the Supreme Court should reconsider its decision in Kelo v. City of New London.
(relisted after the June 17 and June 24 conferences)

Mast v. Fillmore County, Minnesota, 20-7028
Issues: (1) Whether, when applying strict scrutiny under RLUIPA, lower courts may rely upon an admission that an interest is compelling generally, or must they require the government to demonstrate that the interest is compelling as applied to the particular claimant, as the Supreme Court has previously held; and (2) whether, when applying strict scrutiny under RLUIPA, evidence that twenty other jurisdictions permit a particular less restrictive alternative is sufficient to defeat a government’s claim that it used the least restrictive alternative.
(rescheduled before the May 13, May 20, May 27, June 3, and June 10 conferences; relisted after the June 17 and June 24 conferences)